Re R (A Child) (Family dispute: Evidence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Stanley Burnton |
| Judgment Date | 17 July 2008 |
| Neutral Citation | [2008] EWCA Civ 1619 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2008 |
| Docket Number | Case No: B4/2008/1092 |
[2008] EWCA Civ 1619
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE MILLIGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall and
Lord Justice Stanley Burnton
Case No: B4/2008/1092
Mr J Nickless (instructed by Messrs Driver Belcher) appeared on behalf of the Appellant.
Mc C Davies (instructed by Messrs Ewing Hickman & Clark) appeared on behalf of the Respondent.
(As Approved)
Lord Justice Thorpe:
This is an appeal against the order of HHJ Milligan, who on 17 April 2008 sat in the Southampton County Court at the commencement of the third day of a fact finding hearing to determine a number of allegations of domestic violence mounted by a mother against the father and his extended family. Everything relates to future arrangements for the only child in the case, who is C, born on 4 December 2003 and therefore four years of age. Permission for this appeal was granted by my Lord Wall LJ on 9 June 2008.
I come now to the factual background. The father is 35, British born but of Indian origin. The mother is 24 and she was born in India. There the parties were married in February 2003. The mother arrived in this country a few months later, by which time she was already pregnant. The mother speaks some English, but for any extensive expression is dependent upon interpreters.
The family, mother, father and daughter, lived in business premises in Southampton. It is described as a club. It is licensed and sells both food and liquor. There are a number of other members of the paternal family living there, certainly the father's own parents, and in play are a number of paternal aunts and a paternal uncle and the husband of one of the paternal aunts. So this is a large, no doubt close-knit Indian family. The atmosphere at the home and club was not entirely peaceful since a paternal uncle was prosecuted for some assault at the club, but at a hearing at the beginning of 2008 he was found not guilty. There are other allegations of violence within the family and home which do not directly concern C.
Proceedings in the family justice system came with father's application for prohibited steps and residence, and as a result of that the directions were given for a preliminary fact finding hearing to establish the nature and extent of the physical and emotional abuse that the mother alleged, both to herself and to C. The mother and child had departed from the home and club as a result of the breakdown of the marriage and were living at a refuge. A child support worker from the refuge was to give evidence before the judge at the fact finding hearing. The hearing was set down for three days. The mother gave evidence on both the first and second days. The evidence of the child support worker was interpolated and, towards the end of the second day, Mr Nickless, who represented the mother below and represents her here, sought an adjournment in order to investigate whether, as the mother had informed the judge, discrepancies in her written evidence to the court were to be explained by reason of the fact that it was prepared in the solicitor's office at a time when no interpreter was present.
The case resumed at 10.30 on the third day of trial, by which time Mr Nickless had obtained from his instructing solicitors a complete chronology of the work that they had done in preparation for the case. On days one and two, Mr Nickless had only had a trainee sitting behind him and it was the trainee who made enquiries on day two of her principal, which revealed that, in fact, an interpreter had been present on 17 January when the mother's statement had been taken and again seven days later when the mother had been taken through her statement prior to signing it. So at 10.30 on day three, Mr Nickless very responsibly stood up to inform the court of the chronology of the work done by his instructing solicitors, which revealed that the evidence that mother had given, both on day one and day two, as to the absence of an interpreter, was simply inaccurate. So Mr Nickless asked his client to explain how she had come to give inaccurate evidence and he received rather a confused response, as a result of which the judge intervened:
“HH JUDGE MILLIGAN: Ms K, this is the question. You told me yesterday that there was no interpreter when you made your Statement. You told me today there was.
MS K: On the first two occasions interpreter was not there. Then when I went the interpreter was there. Yesterday when I was questioned, I had said when I was asked the interpreter was there, I said I am not sure, maybe he was not there. I was not sure whether he was there, interpreter was there or not because I did not remember the dates because number of times I had gone to the solicitors.”
That concluded her evidence. Mr Nickless proffered her to Ms Davies for the father for cross-examination. She simply submitted to the judge that that would be superfluous because it was apparent that the mother had lied, not once but several times, and accordingly she saw no need. The judge accepted clearly the submission that it was a blatant lie and swiftly disposed of the case without hearing further evidence. His explanation for so doing has not been transcribed and we have in place a careful note taken by Ms Davies, submitted to the judge, amended by the judge and approved by him. We can see that the judge considers each of the mother's allegations seriatim, criticising in respect of each either the quality of the evidence in support or what he perceived as inconsistencies in the mother's presentation when contrasted with earlier statements given either to the police or to health services or to her own solicitors. He, having completed that exercise, concluded by observing that he did not find her explanations for inconsistencies persuasive; that she had sought to explain contradictions by saying there was no interpreter present, when it later transpired that there was, and that that threw immediate doubt on her credibility; he said that there was an absence of contemporaneous reports, save for one or two in police statements; he criticised the mother's demeanour in the witness box, evasiveness, which he thought went beyond any possible language difficulties; and accordingly concluded that she had not proved, even to the ordinary civil standard, her allegations. He placed no particular reliance on the child support worker, and accordingly accepted the submission from Ms Davies that the mother was an unreliable witness, that the burden of proof had been upon her and that, since she had not discharged it, he would terminate the trial at that point. The judge refused an application for permission to appeal, and the grounds for which my Lord has given permission were three in number, and I focus only on the first:
“The trial judge was wrong in law or alternatively his decision was unjust due to procedural irregularity in that he should not have entertained the submission that no case to answer…”
Mr Nickless has filed a skeleton argument in support and Ms Davies has filed hers in response. I am quite clear in my own mind that Mr Nickless has far the better of the argument. I would wish to emphasise that the judge was conducting a preliminary fact finding...
To continue reading
Request your trial
-
Aa v Na and Others
...orders: domestic violence and harm)[2009] 1 FCR 223, [2008] 2 FLR 103. R (a child) (fact finding hearing), Re[2009] EWCA Civ 1619, [2009] 2 FLR 83. R v Lucas [1981] 2 All ER 1008, [1981] 1 QB 720, [1981] 3 WLR 120, S (a child) (abduction: grave risk of harm), Re[2002] EWCA Civ 908, [2002] 3......
-
A Local Authority v W
...Case Management)[2012] EWCA Civ 1489; [2013] 1 FLR 1089 and another private law case, In re R (Family Proceedings:No Case to Answer) [2008] EWCA Civ 1619; [2009] 2 FLR 83, Sir Mark concluded that the correctmodern approach to the summary dismissal of public law proceedings is that set out i......
-
Re Z (Unsupervised contact: allegations of domestic violence)
...orders: domestic violence and harm)[2009] 1 FCR 223, [2008] 2 FLR 103. R (a child) (fact finding hearing), Re[2009] EWCA Civ 1619, [2009] 2 FLR 83. AppealThe mother of three children appealed against an order of Judge Collins CBE, sitting in the Principal Registry of the Family Division on ......