Re A (Fact-Finding: Disputed Findings)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Aikens,Lord Justice Richards |
| Judgment Date | 19 January 2011 |
| Neutral Citation | [2011] EWCA Civ 12 |
| Docket Number | Case No: B4/2010/2159 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2011 |
[2011] EWCA Civ 12
[2010] EWHC 2175 (Fam)
[2010] EWHC 2216 (Fam)
Mr Justice Roderic Wood
Before: Lord Justice Richards
Lord Justice Aikens
and
Lord Justice Munby
Case No: B4/2010/2159
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Ms Jane Crowley QC and Ms Kate Purkiss (instructed by Goodman Ray) for the Appellant (father)
Mr Anthony Hayden QC and Mr Hassan Khan (instructed by Dawson Cornwell) for the Respondent (mother)
Hearing date: 8 December 2010
Lord Justice Munby:
We are concerned with a little boy, A, who was born in November 2005. His parents are both Kurdish. They are first cousins (the paternal grandfather and maternal grandmother are siblings), the father's side of the family coming from Iraq and the mother's side of the family from Iran. Both have leave to remain in the United Kingdom. A is a ward of court. The wardship proceedings are before Roderic Wood J. In accordance with orders of the court, A is currently being looked after in this country by his father and paternal grandmother. The local authority was joined as an intervener at an early stage and prepared an assessment of A's welfare which raised no concerns about the care provided by the father and grandmother.
Over twenty days between 5 and 30 July 2010 Roderic Wood J conducted a fact-finding hearing as a preliminary to a final hearing which is fixed for 14 January 2011. The primary focus of the hearing was on the allegations the mother made against the father and members of his immediate family as set out in a Scott Schedule which, in its final revised form, identified twenty numbered complaints. The allegations were of grave sexual misconduct throughout the parents' marriage; domestic violence; child abduction; threats of 'honour based' violence. However, during the hearing various allegations against the mother emerged which the judge also considered.
On 19 August 2010 Roderic Wood J handed down a reserved judgment: [2010] EWHC 2175 (Fam). It runs to 82 pages and 335 paragraphs. In accordance with Re A (Child Abuse) [2007] EWCA Civ 1058, [2008] 1 FLR 1423, the judge was asked to clarify certain parts of his judgment. On 28 August 2010 he handed down a further judgment: [2010] EWHC 2216 (Fam). It runs to 26 paragraphs. I shall refer to the two judgments as, respectively, the 'main judgment' and the 'supplemental judgment'.
In the course of the two judgments the judge made many findings about, and in many cases adverse to, both the father and the mother. The core allegations made by the mother against the father were found to be true but Roderic Wood J disbelieved her on many aspects of her evidence, including – and this is an important factor understandably relied upon by the father – as to much of the detail she gave to describe facts which the judge found to be proved. The judge also disbelieved the father on many aspects of his evidence.
On 7 September 2010 the father filed his appellant's notice. The attached grounds of appeal identified ten grounds which, in common with that document, I shall refer to as Ground 1, Ground 2 and so on.
On 3 November 2010 Black LJ, dealing with the application for permission on the papers, refused permission to appeal on Ground 10. In relation to Grounds 1–9 she adjourned the application for an oral hearing on notice with appeal to follow if permission granted. That hearing took place before us on 8 December 2010. The father did not seek to renew his application in relation to Ground 10. There was no respondent's notice. We were, accordingly, concerned only with Grounds 1–9.
There is of course jurisdiction in this court to hear an appeal from a fact-finding hearing even if there is no order: Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334.
The father was represented before us by Ms Jane Crowley QC and Ms Kate Purkiss, both of whom had appeared for him at the hearing before Roderic Wood J. The mother was represented before us by Mr Anthony Hayden QC and Mr Hassan Khan. Although his junior had appeared for the mother at the hearing before Roderic Wood J, Mr Hayden had come into the case at short notice, Miss Lucy Theis QC (as she then was) who had appeared for the mother before the judge being no longer available following her appointment to the Bench. Entirely appropriately in the circumstances, neither A's guardian nor the local authority, both of whom had been represented before the judge, has played any part in the appeal or been represented before us.
We announced at the beginning that we would conduct the hearing on a 'rolled up' basis and announce our decision in relation to permission as part of our judgment. At the end of the hearing we reserved judgment.
Given the imminence of the hearing due to start on 14 January 2011, and the need, in particular, for those preparing reports, assessments and evidence for that hearing to know as soon as possible the outcome of this appeal, and having come to a clear view as to what that outcome was, on 14 December 2010 we handed down a preliminary judgment in which we announced our decision, albeit that we were not then ready to give our full reasons: [2010] EWCA Civ 1413.
We refused the father permission to appeal on Grounds 5 and 7; gave him permission but dismissed the appeals on Grounds 1, 2, 8 and 9; and gave him permission and allowed the appeals on Grounds 3, 4 (but only to a limited extent) and 6.
The order giving effect to our decision was made the same day.
We now hand down judgment giving our reasons.
Roderic Wood J was faced with a task unusually difficult even by the standards of complex fact-finding hearings in the Family Division. In the first place (main judgment paragraphs [14]-[19]) he was faced with a number of practical difficulties. Many of the witnesses required interpreters who on occasions did not agree with each other's translations. The witnesses in Iraq gave evidence by a video link on which the visual images frequently broke up. The witnesses in Iran gave evidence by telephone link. The mother, for security reasons, was not present in the courtroom and gave evidence from an unknown location by video link. Many of the witnesses insisted, despite judicial intervention, on giving very long answers to questions which presented difficulties for the interpreters.
Quite apart from all those difficulties, Roderic Wood J was also confronted with the fact that neither party, indeed very few of the witnesses, was consistently honest and straightforward. If anything, quite the contrary. Of one of the family witnesses the judge said (main judgment paragraph [190]; see also paragraph [331]) that he struck him as "one of the few witnesses called by either side of the family as not speaking from a script." Tellingly, he singled out another witness (main judgment paragraphs [205], [269]) as being "thoroughly honest and compelling" and someone whose evidence "profoundly impressed" him; "I did not doubt anything she said."
As to the mother and the father the fact is that the judge found them both to be not very frank (main judgment paragraph [104]) and indeed to be liars (see below). He said (main judgment paragraph [329]) that "Both have been found wanting in large measure."
The judge variously described the father as a "wholly unreliable historian" (main judgment paragraph [47]) and as lying to the United Kingdom immigration authorities (main judgment paragraph [35]), to various benefit authorities (main judgment paragraph [115]), and to the court (main judgment paragraphs [35], [38], [60], [65], [115], supplemental judgment paragraph [7]). On occasions the judge observed (main judgment paragraphs [35], [38], [219]), that he could not believe a word of the father's account. On other occasions he described the father's evidence as "incredible" (main judgment paragraphs [83], [206]), "wholly" or "completely" unconvincing (main judgment paragraphs [219], [226]), "wholly unsatisfactory" (main judgment paragraph [253]) or "wholly unimpressive" (main judgment paragraph [274]). At one point he described the father (main judgment paragraph [115]), as "patently lying to the court". On various matters he said in terms that he did not believe him (main judgment paragraphs [201], [204], [253], [274]) or that he rejected his evidence (main judgment paragraphs [226], [227]).
The judge described the mother's evidence as containing "inconsistencies" (main judgment paragraphs [70], [227], [230]), and the mother as being an "unreliable witness" (main judgment paragraph [193]), a "hopeless historian" (main judgment paragraph [87]), an "inconsistent reporter of events" (main judgment paragraph [155]) and "woefully inaccurate" (main judgment paragraph [285]); as giving "a series of conflicting accounts" (main judgment paragraph [213]), "exaggerating" (main judgment paragraphs [83], [108], [110]), and "re-writing history" (main judgment paragraphs [72], [79], [193]). He found that she had knowingly deployed lies to the United Kingdom's Embassy in Tehran (main judgment paragraph [39]) and that she had lied both to the Metropolitan Police (main judgment paragraphs [298], [300]) and to him (main judgment paragraphs [108], [198], [297], supplemental judgment paragraph [11]). In another instance he rejected her "wholly improbable account" (main judgment paragraph [246]). Referring to the mother's ABE interviews he said (main judgment paragraph [284]) that "anyone reading [them] would be entitled to raise an eyebrow at aspects of their...
To continue reading
Request your trial
- Medway Council v M, F and G (by her children's guardian)
-
Tower Hamlets London Borough Council v MK and Others
...be drawn from the evidence and not on suspicion or speculation" (per Munby LJ in Re A (A Child) (Fact-finding: Speculation) [2011] EWCA Civ 12 2011 1 FCR 141). (6) Whilst appropriate attention must be paid to the opinions of medical and other experts, their opinions need to be considered i......
- Devon County Council v EB
-
Anne Edith Powell v University Hospitals Sussex NHS Foundation Trust
...properly (fairly and safely) be drawn from the evidence, but not mere speculation ( Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12, per Munby LJ); (3) The court must survey the “wide canvas” of the evidence ( Re U, Re B (Serious injuries: Standard of Proof) [2004] E......