M & L (Children) [2007] EWCA Civ 1307

Case No B4/2007/2208[2007] EWCA Civ 1307
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(HIS HONOUR JUDGE BARBER)
(LOWER COURT NO. KH07CO9041)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 30 th October 2007
Before
LORD JUSTICE WARDLORD JUSTICE WILSONMR JUSTICE HOLMAN
Between
Applicant FatherApplicantRespondent ChildRespondentRespondent MotherRespondent
IN THE MATTER OF M AND L (Children)
(DAR Transcript of
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Mr C Heaton QC and Mr A Comaish (instructed by Messrs Heptonstalls LLP, Goole) appeared on behalf of the Applicant Father.
Miss J Pye (instructed by East Riding of Yorkshire Council) appeared on behalf of the Respondent Local Authority.
Mr J Sampson (instructed by Messrs Myer Wolf Solicitors, Hull) appeared on behalf of the Respondent Children by their Children’s Guardian.
Miss E Shaw (instructed by Messrs Martin & Haigh Solicitors, Scunthorpe) appeared on behalf of the Respondent Mother.
Judgment
[1]A father, as it will be convenient to describe him, applies for permission to appeal against certain findings of fact made by His Honour Judge Barber as if sitting in the Hull County Court on 11 September 2007. It has been directed that, were permission to appeal granted at today’s hearing, which has been conducted on notice to all other parties, the substantive appeal would be heard forthwith.[2]The judge was considering the first stage of a split trial of applications by the East Riding of Yorkshire Council (“the local authority”) for care orders relating to three children, namely twin girls, who were born on 11 October 1994 and thus are now aged 13, and E, also a girl, who was born on 26 July 1995 and thus is now aged 12.[3]The father and mother, as it will be convenient to describe her, began a relationship in 1998, began to cohabit in 2000 and were married in 2003. The marriage has broken down, apparently irretrievably, and the mother is in the process of obtaining a divorce from the father. It follows from the ages of the three children that none is the biological child of the relationship between the parents. The twins are the product of the father’s marriage to another woman, which ended upon her tragic death in a car accident in 1997. E is the product of the mother’s relationship with another man. But, notwithstanding that strictly the man whom I have proposed to describe as “the father” is only a stepfather of E and that the woman whom I have proposed to describe as “the mother” is only a stepmother of the twins, it will nevertheless be convenient to adopt those descriptions.[4]In February 2007, at school, E made allegations that in the past her father had forced her to perform sexual acts upon him. Her allegations led to two videotaped memorandum interviews conducted with E by a social worker and a policewoman in February and March 2007, no doubt in accordance with the guidance issued by the Home Office in 2002 entitled “Achieving Best Evidence”. Ultimately, in June 2007, the local authority applied for care orders referable to the three children. The central allegation was that the father had perpetrated serious acts of sexual abuse upon E, with the result that she had suffered significant harm and that the twins were likely to do so. In the proceedings the mother was the first respondent; the father was the second; E’s biological father, who has played no part in the proceedings, was the third respondent; and the girls, by their Children’s Guardian, were the fourth, fifth and sixth respondents.[5]In the event, after a hearing which continued for four days, the judge, by a judgment delivered orally five days following conclusion of the hearing, in effect upheld the allegations of the local authority. His central finding was that on seven to nine occasions between about 2000 and 2003, i.e. when E was aged between about five and eight, the father had made her perform oral sex on him. From this finding the judge concluded that E had suffered significant sexual and emotional harm at the hands of the father and that the twins would be likely to do so. The judge made, or continued, interim care orders in relation to all three of the girls. It seems that currently the local authority are content for the twins to reside with their maternal grandparents and for E to continue to reside with the mother. Presumably they are satisfied that, in those respective homes, there is adequate protection against unsupervised contact on the part of the father. Certainly, in the case of E, it seems that the mother is adjudged to be genuine in her desire to end the marriage and to protect her from further exposure to the father.[6]In his proposed appeal to this court the father contends that the judge was clearly wrong to make the findings that, whether on the specified occasions or otherwise, he made E perform oral sex on him. He contends that the evidence before the judge was not such as should have led him to do so and that the reasons given by him for making his findings are flawed. The local authority are the main respondents to the appeal and they seek to defend the judge’s finding. The mother and the guardian do likewise.[7]Notwithstanding the lapse of time between the conclusion of the hearing and the judge’s delivery of his judgment, I have the clear impression that, in preparing to deliver it, the judge found that he lacked as much time for preparation as he would have wished. Even the transcript of the judgment which the judge has approved is easy to criticise, at least in minor respects. There is no doubt, however, that at its outset the judge reminded himself accurately about the nature of the application of the civil standard of proof to serious allegations, as set out in the classic exposition of Lord Nicholls of Birkenhead in Re H and others (Minors) (Sexual abuse: Standard of Proof) [1996] AC 563 at 586 D - F.[8]Then the judge addressed E’s two videotaped interviews, which he and all parties had seen, and also the live evidence given to him during the hearing by E via video-link from another court. Following principally, if not exclusively, his survey of E’s evidence, the judge said, in paragraph 15:
“I have to say that [at] the end of that tranche of evidence I have and continue to have a lingering doubt on that evidence alone about what [E] has to say. I have lingering doubt about feeling satisfied as to the appropriate standard to find these allegations proved on the appropriate standard, albeit I have to say that the doubt is only lingering.”
Thereupon, however,

the judge proceeded as follows:

“I ask myself at this juncture, “Is there anything else that helps me?”
Well, there certainly is. I have seen and heard from both mother and father. I have heard evidence from witnesses and of course I have read the papers.” Then the judge went on to describe the overall impression which each parent had made upon him when they had been in the witness box.[9]There has been considerable debate in court today as to the amount of evidence which the judge intended to encompass in the phrase “that tranche of evidence”. All agree that he intended to refer to the evidence given by E in the recorded interviews and the evidence which she gave live by video-link. The issue is whether he also intended to refer to such evidence given by the father, and to such limited evidence given by the mother, as directly related to the allegations of sexual abuse upon E. Mr Heaton QC, to whose overall presentation of the father’s case today I would pay warm tribute, contends that the judge did so intend. Mr Heaton’s main arguments are that, prior to paragraph 15, the judge had referred to one aspect of the mother’s evidence in support of E’s account and to one aspect of the father’s evidence in denial of it. Furthermore, again prior to paragraph 15, the judge had recorded the submission of Mr Comaish, who represented the father before the judge just as he represents him, as junior counsel, today, in the following terms:
“[Mr Comaish] says that, in the light of [the father’s] stout denials, I cannot be satisfied about this child’s veracity, credibility.”
Finally Mr Heaton points out that in no subsequent part of the judgment did the judge expressly refer to such of the father’s evidence as directly related to the allegations made by E. Thus, says Mr Heaton, if that part of the father’s evidence was not referred to, however elliptically, prior to paragraph 15, it was not referred to at all. Of course Mr Heaton follows up with a complaint that, in that event, the judgment would indeed be faulty. The firmest submission for the contrary view comes from Mr Sampson on behalf of the three children, by the guardian. He points out in particular that it was only after the judge’s reference to “that tranche of evidence” that he referred most explicitly to the evidence of the parents and other witnesses and to the impression which each parent had made on him when in the witness box.[10]During the hearing my mind has wavered but in the end I am persuaded by Mr Heaton’s arguments upon this point of construction. I consider that the judge was intending to refer to all the evidence which he had received directly on the subject of E’s allegations, in particular the evidence given by the father. I believe that, within the parameters of that evidence, Mr Comaish’s recorded submission prevailed, albeit by a narrow margin. The judge was divorcing the father’s evidence in relation to E’s allegations from his evidence in relation to other matters and was concluding that, standing alone, the father’s denials were sufficiently “stout” to leave the lingering doubt.[11]Mr Heaton proceeds to complain that the judge never identified the reasons why the evidence left him with a lingering doubt and that, without such reasons, it is impossible for this court to be satisfied that the evidence which he then proceeded to consider was sufficient to dispel such doubt. On any view it would have been better for the judge to have sought to explain in terms why, at that stage, he harboured the lingering doubt. But in my view the answer to Mr Heaton’s complaint lies, again, in his own junior’s submission, as recorded by the judge. On the face of them, and taking them alone, the father’s denials seemed stout; and, in the judge’s survey of the specific evidence as to sexual abuse pro and con, it was they which gave rise to the lingering doubt.[12]What, then, was the further material which in the end served to dispel the judge’s lingering doubt and thus to lead him to find E’s allegations proved? It related to allegations of very serious physical, including sexual, violence on the part of the father towards the mother. Mr Heaton stresses that, by their schedule of proposed findings, the local authority explained that findings referable to these allegations would be relevant to their future assessments of the parents and to the second, outcome, stage of the hearing. There was thus no suggestion - whether in that document or apparently in the course of the hearing - that findings in relation to them would help to inform findings in relation to the father’s alleged sexual abuse of E.[13]In the event, having heard oral evidence from the mother, her sister, the father and two other witnesses, and having, without opposition, read other evidence, the judge made the following findings (none of which is - or in my view could be - the subject of any proposed appeal):(a) on an occasion in 1999 the father head-butted the mother, thereby causing her to lose her balance and consciousness, and that, in giving his version of the incident, namely that it was an accident, the father had been lying about it;(b) on an occasion in 2000 the father had tied the mother to a bed and attempted to rape her;(c) on 19 February 2000 the father had raped the mother and that in his evidence to the court the father had not told the truth about that incident;(d) that on a Friday in 2004 the father had raped the mother.[14]Then

the judge proceeded as follows:

“The person with the voracious and almost unstoppable [sexual] appetite was [the father]. One remarkable feature of this particular case is that [the father’s] desire for oral sex was such that [the mother] bought for him a device shaped like a mouth which simulates oral sex. She did that in order to give him a hint that it was not something she enjoyed particularly, but there it is and nobody disputes that such a sex toy was bought albeit [the father] said he never used it.”
[15]Then the judge returned to the central allegations of the father’s sexual abuse of E. He said:
“Did he have oral sex with [E]? So we are coming back to making a full circle. Revisiting the allegation that [E] made, I have to say having heard all the evidence, having decided about credibility, having remarked upon [the father’s] desire for oral sex I have no doubt whatsoever that [E’s] complaints are well-founded. They are not just proved to me on balance of probability bearing in mind the appropriate standard and the appropriate test they have to apply which I referred to at the beginning of this judgment. I have to say I am sure about it beyond doubt. I also take into account the allegations made by … a 16 year old girl who on occasions babysat for [the father] and she is now 18. When she was 16 she developed a crush on him. I find that on her, initially, undisputed evidence, one evening, [the father] invited her to watch a DVD at his home. When there he plied her with drink, alcohol, sat next door to her on the sofa and kissed her and put his tongue in her mouth. She realised, albeit that she had a crush on him, that there was something further that may well happen and so she went home. She became nervous and left, in my judgment a very sensible decision. All this at the end leads me to conclude that [E] has indeed suffered significant sexual and emotional harm from [the father].”
[16]So, what extra material did the judge find which, when added to the evidence given by E herself, led him to make the findings referable to her. There is no denying that the construction of the two paragraphs which I have quoted is odd. In the former the judge refers to certain matters and appears to conclude that such are the matters, when added to E’s evidence, which lead him to make the finding. Then, however, in the latter paragraph, he refers to an entirely different area of the evidence and brings that into account as being part of the evidence by reference to which, apparently, he makes the finding. Notwithstanding the purported conclusion in the former paragraph, I have no doubt that the proper construction of the judgment is to analyse the material referred to in the latter, as well as the former, paragraph as being the material upon which the judge relied.[17]What, then, is the material to which he refers in the two paragraphs? His reference in the former to “having heard all the evidence” takes the enquiry no further in concrete terms. The concrete references are, in the former paragraph, first, to his “having decided about credibility”, second, to his “having remarked upon the father’s desire for oral sex”, and, in the latter paragraph, third, to the finding that on one occasion the father had plied a girl, then aged 16, with alcohol, had sat next to her on a sofa and had kissed her in the form of putting his tongue in her mouth, the implication being that, had she not then gone home, he might well have tried to have intercourse with her. We have, therefore, to focus upon credibility, upon the father’s desire for oral sex and upon the incident with the 16 year old girl.[18]To what does the word “credibility” in this context refer? The judge’s reference, as he would be the first to admit, is not explained. Nevertheless counsel are agreed that, by that reference, he was referring to his adverse conclusions about the father’s credibility in relation to the disputed allegations that he had assaulted and in particular raped the mother.[19]The question is whether the judge was entitled to treat those matters as probative of the allegations made by E. An enquiry into whether a matter is probative requires “a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow”: per Lord Bingham of Cornhill in O’Brien v The Chief Constable of South Wales Police [2005] 2 AC 534, at [4]. Later in that paragraph Lord Bingham added that:
“It is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters.”
[20]It is convenient first to address the judge’s reliance on the father’s lack of credibility. How (asks Mr Heaton) can the father’s lies to the judge on the issues of violence (albeit including, let us not forget, sexual violence) towards the mother be probative of any sexual abuse of E? The lies are, so Mr Heaton submits, simply not probative of the abuse. There is, to use his word, a “dislocation” between the two matters. No rational, objective or fair-minded person could - so he submits - conclude to the contrary.[21]Mr Heaton refers to the decision in R v Lucas [1981] QB 720 and submits that in criminal proceedings the father’s lies in these other areas could never be admitted as corroboration of the allegations referable to E. As it happens, I do not regard that submission as obviously correct. It seems to me to be at any rate arguable that, in the criminal court, the father’s lies in that regard might be held to relate to a “material issue” in the enquiry into E’s allegations and thus, albeit no doubt with the necessary consideration of the myriad reasons why people are led into dishonesty, to be admitted into evidence under the principles in that case. But, as Mr Sampson so firmly submits to us, it is clear that, by his reference to credibility, the judge was not purporting to use the father’s lies as corroborative of E’s account. Rather, he was importing them into his requisite analysis of the credibility of the rival accounts given to him in relation to E’s allegations.[22]Here in my view we reach the clear answer to this proposed appeal. At the point, in paragraph 15, when the judge paused and chose to survey one tranche of the evidence, he was noting the father’s denials as well as E’s allegations and was concluding that, at face value, the denials were sufficiently stout to leave him with the lingering doubt. By the time, however, when he had surveyed all the other evidence in the case, he had found the material with which to revisit the issue of E’s allegations and, on this occasion, to appraise the father’s denials other than at face value. The material was that the father was a liar even when on oath in relation to numerous matters. Thus the denials which at face value had seemed stout were exposed, on analysis, to be very likely to be as false as his other denials. On analysis, they were not stout at all and they no longer gave rise to any such lingering doubt as left proof of E’s allegations beneath the threshold identified in Re H.[23]Since therefore I have reached the firm conclusion that the judge was entitled to find E’s allegations proved by reference not only to her own apparent veracity but also to the father’s destroyed credibility, I regard it as unnecessary to determine whether he was entitled to consider as probative the two further features upon which he relied. The girl to whom the father had given a sexual kiss was aged 16. But, on the other hand, she was still a schoolgirl. If probative at all, the evidence on that matter was surely only of very little weight. Whether a man’s preference for oral sex with an adult woman is probative of - i.e. helps to prove - an allegation that he forced a child to perpetrate acts of oral sex upon him is in my view very difficult. At one stage I had assumed that I would have to say something on the subject. But it is, no doubt, a highly controversial subject and judicial comments might well be liable to misinterpretation. So I am happy to be able to park the issue for this court’s future consideration in a case in which there is no escape from it.[24]It will be clear that I propose that the father’s approach to this court should be rejected? Should his application for permission be refused? Or should it be granted but thereupon his appeal dismissed? In the end I find myself of the view that the proposed appeal is not arguable and so I would refuse permission.[25]I agree.[26]I also agree. I read the judgment to amount to this: the child’s evidence which the father challenged was not enough standing alone to satisfy the judge. But it was not enough just to form a judgment on that evidence alone, rather on the evidence in the case as a whole, including the evidence of the father. The father’s credibility was in tatters, so to quote

the judge in paragraph 28 of his judgment:

“… having decided about credibility, having remarked on [the father’s] desire for oral sex I have no doubt whatsoever that E’s complaints are well-founded.”
[27]That is such a strong finding of credibility that the only conclusion has to be that the judge did not believe anything he said, and in particular did not believe his denial that he had abused the girl. The finding of abuse was therefore inevitable, and it seems to me that there is no real prospect of successfully in arguing otherwise. For that reason, I too would have refused permission to appeal. Like my Lord, I find the question of the probative value of oral sex to be a difficult one and, like him, I would prefer not to express a concluded view on that aspect of the case.[28]The result is that the application for permission is dismissed. Thank you.

Order

Application refused