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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (A Child), Re  EWCA Civ 44 (02 February 2017)
Cite as:  EWCA Civ 44
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ON APPEAL FROM TAUNTON DISTRICT REGISTRY
HIS HONOUR JUDGE BROMILOW(Sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LADY JUSTICE BLACK
LORD JUSTICE CHRISTOPHER CLARKE
|RE S (A CHILD)|
Ms Sarah Morgan QC & Ms Marlene Cayoun (instructed by Porter Dodson LLP) for the Respondent
Hearing dates: 1st December 2016
Crown Copyright ©
Lady Justice Black:
"It is agreed that [the mother] did not complain to anyone at the time. She did not do so when she separated from [the father] in August 2010 and her first complaint of sexual violence was made to the police on 27 June 2013. The context of the timing of this complaint cannot be ignored. Four days earlier, A told his mother about [the father] hurting him and the dispute about contact arrangements was assuming prominence within [the mother's] household. The contemporaneous observations note considerable family anxiety."
The judge's reference to the mother's "first complaint" being made to the police on 27 June 2013 forms the basis of one of the mother's grounds of appeal and I will need to deal with it later. I should therefore set it in context here by noting that the judge had referred earlier in the judgment, at §6, to the mother having made a statement on 25 October 2011 "which included for the first time allegations of sexual violence against [the father]", going on to quote from the account of sexual abuse given by the mother in that statement.
"The context and continuity of the contact dispute helps me to explain this, and I cannot ignore [the mother's] flight to Ireland in April 2015 and her untruthful account about how such a dramatic change in her life came about. She lied about the degree of planning and she tried to deceive family members as well as this court."
"During the course of the judgment I considered the chronology of the contact dispute and the manner in which allegations against [the father] emerged. I also considered the opportunities that [the mother] was offered by the court to advance any allegations against him in the context of a dispute about the level/extent of contact. I specifically acknowledged the final order made by consent in February 2013.
Insofar as the genesis of the rape allegation is concerned, this was adequately reflected in the chronology within the judgment and by reference to [the mother's] statement which explained her delay in making a complaint."
"Allegation 13 is a grave allegation. It accuses [the father] of grabbing his son's arm so that it hurt. The chronology and context of this allegation are vital as I have set out in detail earlier. On 24 June 2013 [the mother] spoke to her Health Visitor. On 10 July A was interviewed by Detective Constable McConnell. Throughout that short interview A was distracted and what he says has no probative value. Later in July A when working with Miss Solway [the local authority family support worker] had something further to say. I have read it. The primary evidence comes from A. I am unable to rely upon what he has said and I note from the outset that no mark was observed on his arm. This allegations is not made out; it did not happen."
The grounds of appeal
The judge's treatment of the allegation of assault on A: submissions and discussion
"Whilst supervising his girlfriend's children, smacked their bottoms whilst he sat on the edge of a metal framed bed and in doing so caused bruising to their thighs as they resisted being smacked. Whilst supervising his girlfriend's children, sat on the edge of a metal framed bed, put them across his knee and smacked their bottoms and in doing so bruised their thighs as they struggled against the bed frame."
The alleged inconsistency in the judge's treatment of the mother's rape complaint: submissions and discussion
"Given the passage of time and the fact that she did not set out the full extent of her allegations against [the father] until October 2011 it has been instructive to consider what, if any, recordings were made earlier."
It seems to me that this observation of the judge's contains an acknowledgment that the full extent of the mother's allegations against the father was set out in October 2011. Accordingly, as in §6, so also in §17, he had in mind that she had made sexual allegations in her October 2011 statement. However, even without this reference, I would not accept that, in evaluating the sexual allegations, the judge had overlooked what he had taken the trouble expressly to set out as part of the chronology of events.
"The likelihood of such an event occurring makes me conclude that [the mother's] account is untrue." (§27 of the judgment).
Ms Bazley submitted, correctly, that the standard of proof is not affected by the likelihood of the events described. She argued that this sentence from the judgment showed that the judge had fallen foul of this established principle.
The judge's approach to the alleged sexual assaults by the father on former partners: the circumstances and the judge's ruling
"Now I entirely accept we are not in a criminal court. The rules in respect of receipt of evidence are very much more relaxed. Nevertheless, what you are asking me to do here is to take account of what somebody else has said about [the father]. [The father] denies that and he is not having a chance to even hear from the person; I am not. It just seems wholly unfair."
"Let us not waste any more time on this. I am very reluctant to have anything to do with this material. I tell you that now. I will hear your submissions at the end about reliability and credibility, but we are not going any further about this now, thank you."
"I am not allowing it, thank you. I do not think it is fair. I do not think it is helping me in determining who is telling the truth in this case."
"Ms Pope invited me to read them; I did so. I asked about the relevance of their evidence and I was told that it went to the issue of propensity or the likelihood of [the father] behaving as alleged towards [the mother].
I asked [counsel for the father] about the contents of the statements. I was told that the evidence was in dispute.
My recollection is that I ruled that in those circumstances it would be unfair for any weight to be attached to this evidence; there was no application to call these witnesses.
Accordingly I attached no weight to the statements of [the 1997 complainant] and [Ms X]."
"I repeat that my recollection is that this point was raised at the start of the fact finding hearing after a number of pre-hearing reviews and efforts to ensure that this long-delayed fact finding hearing took place. I made my rulings at the time and those rulings are, it seems to me, a combination of rulings of law as to admissibility and case management decision. It was my conclusion that this evidence was challenged and therefore it could not delay the trial."
The judge's approach to the alleged sexual assaults by the father on former partners: submissions and discussion
Lord Justice Christopher Clarke:
Lady Justice Gloster: