Re M (Fact-Finding Hearing: Residence Order)

Hearing dates: 16th, 17th and 18th December 2009

These appeals concern a well to do family consisting of mother, father and two children. Their apparently ordered lives were shattered when on 19 ^th October 2007 the mother sustained a serious knife wound to her wrist. Emergency services were immediately involved and, almost at once, an issue arose as to whether the father had stabbed the mother whilst sleeping or whether the wound was self-inflicted. Fortunately the children (a girl aged four and a half and a boy aged almost three) were not directly exposed to the event.

The mother issued an application for a residence order and obtained a non-molestation injunction on 24 ^th October. Fortunately the parents were able to agree a shared residence order which was made on 2 ^nd November. That order was continued on 30 ^th November when the mother's share was increased by an extra night.

The local authority had obviously been involved and this enlargement of the mother's share led them to issue an application for an interim care order and for the removal of the children to foster care on 10 ^th December.

That led to a contested hearing on 14 ^th December. The father consented to the local authority's application and the orders were made despite the mother's opposition.

The consequence has been that these two children have lived with foster parents ever since. It was to be two years before they were to return to family life.

What had become public law proceedings were then prepared with a view to a major hearing in the County Court fixed to commence on 27 ^th November, 13 months after the fateful precipitating event. The scale and complexity of the litigation was much increased when on 19 ^th September 2008, the father was charged with attempted murder.

In the public law proceeding there was, of course, a dominant factual issue to be resolved: was it a case of attempted murder or a case of self-harm?

The hearing that commenced on 27 ^th November was before His Honour Judge Bromilow. The Judge heard evidence over the course of six days before delivering his judgment on the disputed factual issue on 10 ^th December. He reached the clear conclusion that the father had stabbed the mother.

Unusually, the evidence over the course of the preceding six days had not been limited to the disputed factual issues. It was essentially a hybrid hearing to tackle both what had happened and what should happen in the future. So the evidence continued until 16 ^th December when it was adjourned to a part-heard hearing on 23 ^rd February 2009.

This first phase of the public law final hearing produced the first application for permission to appeal filed by the father.

This application was additionally for a stay. It was filed on 12 ^th December and immediately referred to Wilson LJ. He refused the stay and adjourned the application for permission. For reasons not clear to me, the permission application was not then considered on paper until the 10 ^th August 2009 when refused on paper by Lord Justice Hughes. When an oral hearing was requested it was listed together with other applications on 21 ^st August before Ward LJ and Waller LJ.

When the trial resumed in the County Court on 23 ^rd February, it made little progress due to the fact that leading counsel were not available on the following days. At the resumption, on 27 ^th February the father applied to Judge Bromilow to reopen the fact finding hearing in reliance on certain new materials.

That application was refused by the Judge on 4 ^th March.

Mr Tolson QC, who has throughout represented the father, informs us that an appellant's notice challenging the refusal to reopen was filed shortly thereafter but never issued. Then a repeat appellants notice was issued on 21 ^st July 2009 and on 10 ^th August, adjourned for oral hearing on 21 ^st August by Hughes LJ.

In April there were two further days of evidence in the County Court.

The father's criminal trial opened in the Crown Court before Cox J on 3 ^rd June and ended with a not guilty verdict on 24 ^th June.

The County Court proceedings resumed on 20 ^th July and were concluded on 22 ^nd when the Judge reserved his judgment, subsequently handed down on 5 ^th August.

The Judge's order on 20 ^th July dismissed the Local Authority's application on the ground that they had not proved the section 31 threshold crossed. On that day, the local authority withdrew from the proceedings.

By his order of 5 ^th August, the Judge granted residence to the mother with very generous contact to the father. He specified three weekends out of four and left the division of school holidays for the parties to agree if they could. In so deciding, the Judge followed the recommendations of the Children's Guardian.

This result produced the father's third notice of application, issued on 7 ^th August and adjourned for oral hearing on 21 ^st August 2009 by Hughes LJ.

On the 21 ^st August the court granted all three of the father's applications for permission. That hearing was on notice and the local authority indicated an intention to challenge the Judge's ruling of 20 ^th July, the reasons for which were given in his reserved judgment. The court put the local authority on terms to ensure no delay and the local authority's respondent's notice was duly filed on 28 ^th August. The four appeals constituted by the court's order of 21 ^st August were listed to commence on 16 ^th December with a time estimate of 3 days.

The conduct of this appeal has not been easy. At a very late stage, the father's solicitors lodged 7 lever arch files. The local authority lodged two further lever arch files. Transcripts came in dribs and drabs immediately before and during the hearing. The grounds of appeal and skeleton arguments generated by the father's first two notices were not much better than formal. On 14 ^th December Mr Tolson QC for the father filed a suggested pre-reading list which was so extensive as to be valueless. It is hard to suppress a sense of irritation that the job of the court has been unnecessarily burdensome as a result of these deficiencies. This is not a family appeal brought into the list precipitately as a result of some emergency. All parties knew on 21 ^st August what they had to do.

That said, I will turn to consider the father's first appeal challenging HHJ Bromilow's conclusion that he had viciously assaulted the mother.

The Judge's essential conclusion was expressed in paragraphs 27–29 of his judgment as follows:

“27. I have found many parts of the evidence profoundly troubling. Mrs M has a history of dishonest behaviour and she has alienated a number of friends. She has behaved provocatively in front of her husband, notwithstanding the state of their marriage, and she has allowed him to assume a greater role in the care of their young children so that she could indulge herself. What she says demands caution. She has given different and inconsistent accounts of what happened. I must ask myself why has she done this? Is it because she continues to be an accomplished liar who has been found out after so much questioning or is it because she was so excitable, having woken from her sleep and no one would take her seriously?

28. In my judgment, the early clues in the evidence are the best and by that I mean the behaviour and demeanour of Mr M. He is apparently a placid and calm man, a caring and responsible father of two young children. On his own account, he found his wife, the mother of his two children, sitting on her bed with her right arm bleeding. He says he saw blood on the bedclothes and a knife by her hip. He said she was on the telephone. Coming upon this scene, what did he do? He says he flicked the knife away and waited until his wife handed the telephone to him. I reject Mr M's account. I find his explanation for flicking the knife incredible and his attempt to explain the nudging of the bed was a rather futile attempt to cover his tracks. His deception continued when he failed to tell the police where they could find the knife. I accept what Mrs M has told me about why she told the emergency services and Mrs Mitchard that she had harmed herself. She was seriously injured, desperate to tell the ambulance service to attend and was prevented from doing so until she agreed to her husband's demands.

29. Having considered and reflected upon all the evidence that I have heard and read, on a balance of probabilities I have reached the following conclusions. During the early hours of 19 ^th October 2007, while Mrs M was asleep in her bedroom, Mr M entered her bedroom and, using a Stanley knife, he cut her right wrist with a single use of...