SB v A Local Authority (1st Respondent) KB (2nd Respondent) JB (through a Children's Guardian) (3rd Respondent) GB (by a litigation friend, the Official Solicitor) (4th Respondent)

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lord Justice Sullivan
Judgment Date10 October 2012
Neutral Citation[2012] EWCA Civ 1269
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2011/1880/FAFMF
Date10 October 2012

[2012] EWCA Civ 1269

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The High Court of Justice Family Division

The Hon Mrs Justice Pauffley DBE

FD09C00539

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The President of the Family Division

Lady Justice Arden

and

Lord Justice Sullivan

Case No: B4/2011/1880/FAFMF

Between:
SB
Appellant
and
A Local Authority
1st Respondent
KB
2nd Respondent
JB (through a Children's Guardian)
3rd Respondent
GB (by a litigation friend, the Official Solicitor)
4th Respondent

Paul Storey QC and Camille Habboo (instructed by Charles Allotey & Co) for the Appellant

Frances Heaton QC and Damian Stuart (instructed by the Local Authority) for the 1st Respondent

Jenni Richards QC and Katherine Scott (instructed by Steel and Shamash through the Official Solicitor) for the 4 th Respondent

Hearing dates: 26 June 2012

Sir Nicholas Wall P:

Introduction

1

At the conclusion of the argument in this case on 26 June 2012 we took an unusual course. Following discussion amongst ourselves, we were each of the opinion that the appeal fell to be dismissed. Given both the importance of the subject matter for the parties and the length of time the case had take to reach this court, we decided to announce our decision, but to reserve our reasons. This we duly did, and this judgment is designed to explain why it was that I came to the conclusion that the appeal should be dismissed.

The appeal

2

This is an appeal is by a father against findings of fact made by Pauffley J on 1 July 2011. The findings are contained in a recital to an order made by the judge on that date following a 14 day hearing. They read as follows:—

"AND UPON the Court having made findings that (the father) had exposed himself to (G) touched her sexually and raped (G) on more than one occasion…….."

3

The judge gave a number of directions, and refused the father permission to appeal. On 19 October 2011, Thorpe LJ on paper likewise refused permission to appeal: however, the father renewed his application and at an oral hearing on 26 January 2012, Ward LJ granted permission. As the case is ongoing, and since, as a consequence of the appeal no further reports or risk assessments have been undertaken, this judgment will be written anonymously.

Appeals against findings of fact

4

It is well recognised that appeals against findings of fact, and perhaps particularly against the findings of an experienced High Court Judge on the subject of sexual abuse, are extremely difficult to mount. The reason for this is not far to seek. It is the trial judge who sees and hears the witnesses. It is the trial judge who has the "feel" of the case. It is the trial judge who has immersed him or herself in the evidence over a period of many days, and who knows the case better at the end of that process than anyone else.

5

Mr. Paul Storey QC recognised this fact at the outset in his skeleton argument:

"We are fully aware that in a three week case the Court of Appeal will proceed from the starting point that the first instance Judge saw the witnesses and their personalities, together with those of the parties. We have very clearly in the forefront of our minds in launching this Appeal the observations made by the House of Lords in Re D (An Infant) (Adoption: Parents' consent) [1977] AC 602at 606 [Lord Wilberforce] and of Steyne and Hoffman LJs inRe C (A Minor) (Adoption: Parental agreement; Contact) [1993] 2 FLR 260at pages 273 to 275. Similarly, the case ofPiglowska v Piglowski [1999] 1 FLR 1360at page 1372, andBiogen v Medeva PLC [1997] RPC 1at page 45 and the observations therein about the advantages to the first instance Judge over the appellate Court. More recently inRe A (A Child) (Fact finding speculation) [2011] 1 fcr 141 at paragraph 38 and Re L, R, MH & C (Children) [2011] EWCA Civ. 525 Munby LJ discussed the difficulties for a Judge in bringing the dynamics of the hearing onto the printed page in the form of a judgment. We rely on the observations of Munby LJ at paragraph 46 of the latter case as follows:"

"Findings of fact must, of course, be based on the evidence (including inferences that can properly be drawn from the evidence) and must, of course, be adequately explained and reasoned."

6

For G, Ms Jenni Richards QC put the same point a slightly different way;—

"The Court has jurisdiction to hear an appeal from a fact-finding hearing even if there is no order: In the Matter of A (A Child) (No. 2) [2011] EWCA Civ 12 at [7].

The trial judge who has seen and heard the witnesses has an "immense" advantage over an appellate court: In the Matter of L, R, MH and C [2011] EWCA Civ 525 at [43]. He is "uniquely placed to assess credibility, demeanour, themes in the evidence, perceived cultural imperatives, family interactions and relationships"In the Matter of A (A Child) (No. 2) at [39].

In Piglowska v Piglowski [1999] 3 All ER 632 Lord Hoffman (quoting from his own judgment in Biogen Inc v Medeva (1996) 38 BMLR 149) explained the need for appellate caution in these terms: "It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance…of which time and language do not permit exact description, but which may play an important part in the judge's overall evaluation."

Put another way, "Character and personality certainly cannot be judged as well from a transcript of evidence…as by seeing and hearing those involved"In the Matter of A (A Child) (No. 2) at [36].

Provided that the judge's decision is adequately explained and reasoned, the judge is entitled to explain his thought processes and reasoning in whatever seems to him to be an appropriate and illuminating way: In the Matter of L, R, MH and C at [46].

A judge should give reasons for his findings but he is not required to go on and give reasons for his reasons: In the Matter of A (A Child) (No. 2) at [43].

The Court of Appeal is only entitled to interfere if it considers that the trial judge was plainly wrong to reach the conclusions he did— SW and KSW v A City Council [2009] EWCA Civ 644 at [81]"

7

There was thus no dispute as to the law, and it is clear, as Mr Storey accepted that the father had a very steep hill to climb. In my judgment it is not simply a question of demonstrating—if he can—that the judge's assessment of credibility is flawed: to enable this court to interfere he must show that in one or more than one respect, in Lord Fraser of Tullybelton's words in G v G [1985] 1 WLR 647, 652 the judge was "plainly wrong"—in other words that there is palpable error or errors by the judge such as to make her conclusion unsustainable. It is not enough, in my judgment, to argue that the judge was wrong to prefer witness A to witness B.

8

For the father, Mr Storey submitted that he had a number of points of sufficient gravity to vitiate the judge's decision and to demonstrate that her conclusion was "plainly wrong". I propose to examine two of them in particular as they seemed to me the points on which Mr. Storey placed greatest emphasis.

9

The first I propose to designate the "alibi" point—in summary that G's charge she was raped on a particular occasion is; (a) demonstrably untrue because the father has a "watertight" alibi for the time in question and (b) that her lack of credibility on this occasion infects the balance of her evidence. The second is what I will call the "opportunity" point namely that the flat which G, two of her brothers, and her parents occupied was so tiny and so arranged, that the rapes of which G complained simply could not have taken place there.

10

Before I set out the facts, however, it is worth pointing out—indeed it is an essential element in child protection—that a judge exercising powers under the Children Act 1989 has the right to make findings of fact on the balance of probabilities against an individual even though, on the same facts either a jury has acquitted that individual or a criminal prosecution has not been pursued. The reason for this is not far to seek Criminal proceedings, which require a jury to be sure before they convict, are concerned with punishment and guilt: civil proceedings are concerned with child protection and whether or not a given event occurred or series of events occurred.

11

The question in the instant case is thus not that the father should be vindicated on the basis that it was impossible to mount a criminal prosecution against him, but whether or not the evidence, taken as a whole, warrants the findings sought by the local authority: in a nutshell, was the judge entitled to find as she did on the balance of probabilities?

The essential facts

12

I can take these from the judgment of the Judge:

"5. The two subject children are G who was born on 26 th February 1994 so that she is now 17. [I interpolate—she is now 18] She is represented in these and the Mental Capacity Act proceedings by the Official Solicitor as her litigation friend. J is her younger brother. He is 7 years old, born on 15 th February 2004. They have older siblings, L who was born in December 1985, now 25 and P who is 24 years old; he was born in December 1986."

6. The children's mother is KB, born in 1967; their father is SB, born in 1964. They were married in 1984 and continue to live in the family home in South London together with P and J. L lives at her own accommodation and G is looked after by her foster mother…. with whom she has lived...

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