Re R (Children) (Fact-finding hearing: applicable concepts)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice McFarlane,Lady Justice Gloster |
| Judgment Date | 16 February 2018 |
| Neutral Citation | [2018] EWCA Civ 198 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2017/2463/CCFMF |
| Date | 16 February 2018 |
[2018] EWCA Civ 198
Lady Justice Gloster
Lord Justice McFarlane
and
Lord Justice Hickinbottom
Case No: B4/2017/2463/CCFMF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
Mrs Justice Theis DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
June Venters QC and Miss Yasmin Ulhaq (instructed by Venters Solicitors) for the Appellant
Janet Bazley QC and Catherine Jenkins (instructed by X County Council) for the 1 st Respondent
Malcolm Chisholm (instructed by Child Law Partnership) for the 2 nd Respondent
Hearing date: 6 December 2017
Judgment Approved
On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father. As a result of that tragic event the children, A, a girl aged 10 and B, a boy aged 7, were removed to foster care and their father was arrested and charged with their mother's murder. In due course, after the father had been acquitted of all criminal charges, Mrs Justice Theis conducted a fact finding hearing within child care proceedings in the Family Court which concluded with a finding that the father had “used unreasonable force and unlawfully killed the mother”. It is against that finding that the father now appeals, permission to appeal having been granted by me on 19 October.
Although Miss June Venters QC, the father's advocate before Theis J and before this court, has raised a number of grounds of appeal, both in her pleaded case and with additional grounds raised for the first time orally in submissions, the court has taken the unusual step of limiting submissions to two central matters in order to determine whether the appeal must succeed in any event on either or both of these points, irrespective of the additional matters that are now relied upon.
In short terms, the two issues which are the focus of this judgment are:
a) The extent to which, if at all, the Family Court should import elements of criminal law into a fact-finding determination within child care proceedings;
b) Whether the amount of time allowed for preparation by the father's legal team in this case was so constricted that the resulting trial was unfair within the terms of Article 6 of the European Convention on Human Rights.
Background
In view of the narrow focus of this judgment, it is not necessary to rehearse the factual background other than in outline terms.
The mother's death occurred in the context of an acrimonious relationship between the parents following the father's discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A's arm and to the back of the father's head.
The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.
The father's account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.
Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father's Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:
“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother's) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away.”
Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother's body indicated a single continuous movement rather than two.
The judge heard a wealth of evidence relating to the family circumstances and relationships generally over the period of six months or more prior to the mother's death and, of course, about the night of 2 June in particular. The court had available to it the “bundle” from the criminal proceedings comprising well over 1000 pages of statements and other written material, together with transcripts of the oral evidence given by each of the key witnesses in the crown court followed by a transcript of the judge's summing up.
In order to understand the appellant's case regarding procedural unfairness it is necessary to set out a short chronology of the key procedural steps that were taken.
The local authority issued its application under CA 1989, s.31 for care orders with respect to the two children on 3 June 2016. The application form contained the following statement under the heading “grounds for the application”:
“The mother was found dead at the family home through a fatal neck injury at about 8.30pm on 02.06.16. The father was found to have injuries (lacerations to head) and was taken to hospital. The father is now in custody having been arrested on suspicion of the murder of the mother.
There are reasonable grounds to believe that:
The children are suffering significant emotional/psychological harm as a result of having witnessed the incident or the immediate aftermath of the incident during which their mother died and their father suffered injury.
The children [suffered] significant physical harm by being exposed to this serious incident. Both are requiring hospital treatment. One of the children sustained a laceration to the arm, the other received bruising.”
The orders made following a series of case management hearings conducted in the second part of 2016 indicate an acceptance by the Family Court that the father's criminal trial should precede any final hearing in the Family Court. At that stage the criminal trial was fixed for hearing in December 2016.
Each of the 2016 case management hearing orders records, under the heading “threshold”, that:
“the s.31 threshold for the making of orders is not in dispute.”
Further, under the heading “the key issues in the case are:” the following appears in each order:
“a) Where should the children be placed?
b) What are their therapeutic needs?”
Experts were instructed within the family proceedings to assess the children's therapeutic needs and the various realistic options for their future care and, specifically, “whether the father can provide safe parenting to the children”.
On 4 October 2016 the Family Court listed an Issues Resolution Hearing before Theis J on 24 February 2017 and directed that the matter be listed for a final hearing on 27 March 2017 with a time estimate of 5 days. The court order, made on the basis that the father's criminal trial would conclude in December 2016, expressly stated:
“a) All parties accept that an extension of time is required for the psychological assessment of the father by Dr A, such that the interviews take place after the criminal trial. All parties accept that the current timetable will need to be amended accordingly.
b) Father has indicated that in the event he is found not guilty at the criminal trial, he will seek unsupervised contact with the children and, ultimately, for the children to return to his care”
The directions relating to the final hearing were on the basis that the witnesses to be called related to the welfare stage, and did not include any expert or factual witnesses relating to the circumstances of the mother's death.
Unfortunately, in December 2016, the father's criminal trial was adjourned and re-fixed for hearing in May 2017. On 25 January 2017 Theis J conducted a further case management hearing. At that hearing the statement of “key issues” was enlarged to include “what harm has been caused to the children by their father?” and to consider, more generally, the management of family relationships within the children's wider paternal and maternal family. Also, by that time, the question of whether or not the father had taken cocaine and/or codeine (opiates) around the time of the mother's death had been identified as an issue. The final hearing date in March 2017 was vacated and replaced with a nine day listing starting on 11...
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