Re N (Residence: Hopeless Appeals)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE WARD |
| Judgment Date | 16 February 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0216-11 |
| Docket Number | 94/1151/F |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 1995 |
[1995] EWCA Civ J0216-11
(Mr Justice Ewbank)
Before: Lord Justice Butler-Sloss Lord Justice Simon Brown and Lord Justice Ward
94/1151/F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (FAMILY DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR P HERBERT (instructed by Messrs Steel and Shamash, London SE1 7AA) appeared on behalf of the Appellant
MR A KIRK (instructed by Messrs Redfern and Stigant, Chatham) appeared on behalf of the Respondent, father
MR C NEWTON (instructed by the Treasury Solicitor) appeared on behalf of the solicitor.
( )
Thursday, 16th February 1995
LADY JUSTICE BUTLER-SLOSS: This is an appeal from a
decision of Ewbank J on 12th August 1994, in what he
saw as, and we would echo, an exceptionally difficult case. It is not necessary for us to call upon either the Official Solicitor or the father as Respondent because I, at least, have come to a clear conclusion about this case.
I would like to say, in my judgment, what was expressed by Ward LJ in the early part of this case: that the exercise of discretion by the judge in a family case is often made against extremely difficult circumstances, where he is faced with the least satisfactory solution for children who are suffering from the breakdown of the marriage of their parents, and where there are factors that mean that no solution post divorce or breakdown of a relationship is a satisfactory one. No decision can be seen to be the right one.
One cannot tell, in the Family Courts, whether decisions are right or wrong. The judge has the unenviable task of using a crystal ball and, based upon the past facts, doing the best he can, with the welfare of the children as the paramount consideration, and praying that he or she gets it right. The more difficult the decision that has to be made, then the more finely balanced the conclusion and the more difficult it is for the loser in the court below to succeed in the Court of Appeal. It is unlikely that the judge can be shown to be plainly wrong because he might have gone, as any member of this court might have gone, either way in this case, as in so many others. It means that those who seek to appeal against the decision of, in particular a High Court Judge, but also a Circuit Judge, dealing with difficult problems and finely balanced decisions ought to consider very carefully the wisdom of attempting to appeal, and what the prospects of success are in the Court of Appeal, limited as the Court of Appeal always is in setting aside findings of fact or assessments of the credibility of witnesses.
Before I go into the aspects of this particular appeal, in my judgment, this was a hopeless appeal that should never have been brought. If, as I suspect, it has been brought on public funds then it is another of the all too frequent examples of public money being spent to no good effect and, indeed, in an adverse way, because it continues to raise the temperature, to exacerbate the unhappy feelings between the parents and to have an adverse effect upon the children who are the subject of the proceedings. I am very sad in this case, as I have been in all too many recently in which I have said exactly the same thing: that these are appeals brought in, perhaps, the height of emotion and understandable upset by a parent where, it requires a particular degree of detachment and common sense from the legal advisers not to be carried away by the enthusiasm, frustration and hurt of their lay client.
We are dealing with two children: Chas born on 9th July 1983, so he is 11, and Emma born on 29th April 1985, so she is not yet 10. The parents were married in 1985 and it was a second marriage for each of them. The mother had four children by her first marriage: a girl called Nicola, who is now either 12 or 16, and three boys ranging from the ages of about 16 to 12. The three boys continue to live with their mother, although Nicola left the home some time ago. The father had three children from his first marriage. They are all, or were, in the care of the local authority, with father having contact with them. The parents parted in 1991. After the parting the mother had a relationship with a Mr Harrison, which may or may not be continuing, and by whom she has had three further children. He does not live in the house with her and unaided she has been coping with, at one stage, seven out of the eight children and currently is coping with, presumably, five of them.
One of the children, a little girl called Lisa, has the great misfortune to suffer from brittle bone disease and needs careful parenting. That has inevitably absorbed a great deal of time and attention of the mother who has given her the devoted care that one would expect in respect of a child with that serious disability.
When the parents parted in 1991, and moved out of the matrimonial home, the father went to Chatham and in due course Chas and Emma went to him. For some reason they were, in a sense, the odd men out in the family with the rest of the children having gone to the mother. There were difficulties over contact but no real difficulties over the care of these children between 1991 and 1993, and nobody has suggested that they were not very well cared for by their father for those two years. Indeed, they would have been living with their father to this day, as they are now back with their father after the Order of Ewbank J of August of last year.
They would have remained with their father and there would have been no upset but for the fact that in circumstances, which it is not necessary for me to investigate at this stage, the eldest child of the family, Nicola, made specific and extremely serious allegations about the sexual abuse perpetrated upon her by her stepfather, the father of the two younger children. These serious allegations were principally of rape which lasted from about the age of 6 until about the age of 12. Nicola suddenly blurted all of this out in a disagreement with her mother and her mother's current partner and then the Child Protection Services swung into place and she was seen by the social worker and a police officer. She made a several-page statement, setting out in some detail the allegations of rape and other less serious allegations.
Proceedings were started in respect of Chas and Emma because the mother took the children for contact, and kept them because of these allegations. Therefore, they lived with her after she heard about the allegations. The children went to her some time after July of 1993, until the hearing before the judge in August of last year. During that time, a year or so ago, the local authority was asked to make a report under section 37 of the Children Act 1989. There was no prosecution of the father in respect of the allegations made by Nicola, which had all ceased some six or seven years before she made the allegations. However, because of the section 37 report, the children were represented by a Guardian ad Litem, a Mr Thom.
The case was, because of its complexity, transferred properly to the High Court. In due course the Official Solicitor represented the children, taking over from Mr Thom, and the Official Solicitor instructed Dr Moran, a consultant child psychiatrist, to see the children and to report on them. He saw the children on two occasions; once, I think, with the mother and on the other occasion with the father. He did not have an opportunity to meet Nicola. In any event, I am not entirely certain that he would have been able to do that. He gave evidence before the judge and Mr Thom's report was before the judge.
The Official Solicitor's approach to the case was undecided, but having heard the evidence of Nicola, that was given to the judge, the problem was as to whether or not, if the children went to the father, the grandmother would provide sufficient supervision of the children within their father's care, which was thought to be somewhat inadequate. The Official Solicitor came down eventually on the side of the children remaining with the mother.
The judge, however, decided that the children should go back to the father. He considered very carefully the evidence of the girl Nicola, who precipitated all of this, and having heard her evidence he formed the view, at pages 111 and 112, that he had a sense of unease about a lot of her evidence. He found that there was no corroboration...
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