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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> GK v PR [2021] EWFC 106 (14 December 2021) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2021/106.html Cite as: [2021] EWFC 106 |
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FAMILY
COURT
SITTING IN THE ROYAL COURTS OF JUSTICE
On appeal from the Family
Court sitting at Chelmsford
Recorder Feehan QC
Strand, ![]() ![]() |
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B e f o r e :
MR
JUSTICE PEEL
____________________
GK |
Applicant |
|
- and - |
||
PR |
Respondent |
____________________
Lewis)
for the Appellant
Stefanie Wickins (instructed by Ellisons Solicitors) for the Respondent
Hearing dates: 13-14 December 2021
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Mr
Justice Peel :
Introduction
Skeleton arguments
i) FPR PD27A by para 2.1(b) applies to all hearings in the Family
Court.
ii) By para 2.2 "Hearing" includes "all appearances before the court, whether with or without notice to other parties, whether at first instance or (subject to 5.2A.3) on appeal and whether for directions or for substantive relief.
iii) By para 5.2A.1 "Unless the court has specifically directed otherwise….and subject to paragraph 5.2A.2 below.." skeleton arguments are limited
to 20 pages.
iv) By para 5.2 all documents in the bundle (which includes skeleton arguments) must
be typed or printed in a font no smaller than 12 point and with 1 ½ or double spacing.
v)
By 5.2A.3 "the bundle
must
comply with PD30A".
vi)
PD30A
makes
separate, tailored provision for the filing of documents relevant to an appeal. It does not
make
separate, or different, provision as to the
length
of skeleton arguments. That is unsurprising. It would be extraordinary if, on appeal,
litigants
are entitled to file skeleton arguments
limitless
in
length,
whereas for the substantive hearing below they are confined to 20 pages. It would similarly be extraordinary if appeals to the Court of Appeal, which are governed by separate rules, are subject (as they are) to strict
limits
as to the
length
of skeleton arguments, but appeals heard by a High Court Judge are not. The same
must
apply to appeals to a Circuit Judge from a decision
made
at District Judge
level.
vii)
Accordingly, in
my
view,
by PD27A skeleton arguments upon appeal are
limited
to a
maximum
of 20 pages, a
limit
which should be scrupulously observed unless directed otherwise.
The general law
on appeal
i) an error of law
has been
made;
ii) a conclusion on the facts which was not open to the judge on the evidence has been reached: Royal Bank of Scotland v
Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93.
iii) the judge has clearly failed to give due weight to some very
significant
matter,
or has clearly given undue weight to some
matter:
B-
v-B
(Residence Orders: Reasons for Decision) [1997] 2 FLR 602.
iv) a process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: Re S-W (Care Proceedings: Case Management
Hearing) [2015] 2 FLR 136.
v)
a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G
v
G (
Minors:
Custody Appeal) [1985] FLR 894.
22. "Like
any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed
legal
or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or
lost;
and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the
law.
To adopt the striking
metaphor
of
Mostyn
J in SP
v
EB and
KP
[2014]
EWHC
3964 (
Fam),
[2016] 1 FLR 228, para 29, there is no need for the judge to "incant
mechanically"
passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."
23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord
Hoffmann in Piglowska
v
Piglowski [1999] 1 WLR 1360. I confine
myself
to one short passage (at 1372):
"The exigencies of daily court roomlife
are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge
knew
how he should perform his functions and which
matters
he should take into account. This is particularly true when the
matters
in question are so well
known
as those specified in section 25(2) [of the
Matrimonial
Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he
misdirected
himself."
It is not the function of an appellate court to strive by tortuous mental
gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt
Lord
Hoffmann's phrase, the court
must
be wary of becoming embroiled in "narrow textual analysis".
"Appellate courts have been repeatedly warned, by recent cases at the highest level,
not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them…..The reasons for this approach are
many.
They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal
issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last
night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited
resources of an appellate court, and will seldom
lead
to a different outcome in an individual case.
iv) In making
his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v)
The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi)
Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.
115. It is also important to have in mind
the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial
legal
points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have
led
him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his
view,
not to spell out every
matter
as if summing up to a jury. Nor need he deal at any
length
with
matters
that are not disputed. It is sufficient if what he says shows the basis on which he has acted."
Domestic abuse
PD12J
Re H-N
Vulnerable
witnesses: Part 3A
3A.3 When considering the vulnerability
of a party or witness as
mentioned
in rule 3A.4 or 3A.5, the court
must
have regard in particular to the
matters
set out in paragraphs (a) to (j) and (
m)
of rule 3A.7.
3A.4 (1) The court must
consider whether a party's participation in the proceedings (other than by way of giving evidence) is
likely
to be diminished by reason of
vulnerability
and, if so, whether it is necessary to
make
one or
more
participation directions.
(2) Before making
any such participation directions, the court
must
consider any
views
expressed by the party or witness about giving evidence.
3A.5 (1) The court must
consider whether the quality of evidence given by a party or witness is
likely
to be diminished by reason of
vulnerability
and, if so, whether it is necessary to
make
one or
more
participation directions.
(2) Before making
any such participation directions, the court
must
consider any
views
expressed by the party or witness about giving evidence.
3A.6 (1) The court must
consider whether it is necessary to
make
one or
more
participation directions to assist (a) the protected party participating in proceedings; or (b) the protected party giving evidence.
(2) Before making
any such participation directions, the court
must
consider any
views
expressed by the protected party's
litigation
friend about the protected party's participation in the proceedings or that party giving evidence.
3A.7 When deciding whether to make
one or
more
participation directions the court
must
have regard in particular to—
(a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—
(i) any other party or other witness to the proceedings ormembers
of the
family
or associates of that other party or other witness; or
(ii) anymembers
of the
family
of the party or witness;
(b) whether the party or witness—
(i) suffers frommental
disorder or otherwise has a significant impairment of intelligence or social functioning;
(ii) has a physical disability or suffers from a physical disorder; or
(iii) is undergoingmedical
treatment;
(c) the nature and extent of the information before the court;
(d) the issues arising in the proceedings including (but notlimited
to) any concerns arising in relation to abuse;
(e) whether amatter
is contentious;
(f) the age,maturity
and understanding of the party or witness;
(g) the social and cultural background and ethnic origins of the party or witness;
(h) the domestic circumstances and religious beliefs of the party or witness;
(i) any questions which the court is putting or causing to be put to a witness in accordance with section 31G (6) of the 1984 Act;
(j) any characteristic of the party or witness which is relevant to the participation direction whichmay
be
made;
k)
whether any
measure
is available to the court;
(l)
the costs of any available
measure;
and
(m)
any other
matter
set out in Practice Direction 3AA.
The background
The hearing before the judge
i) Hayden J in F v
M
[
2021]
EWFC 4 at para 113:
"Ms
Jones has invited
me
to
make
comment on the use of Scott Schedules (i.e. a table identifying the allegations and the evidence relied on in support) in cases involving this category of domestic abuse. Having given the
matter
considerable thought I have come to the clear conclusion that it would not be appropriate to give prescriptive guidance. Whilst I entirely see the advantage of carefully
marshalling
the evidence and honing down the allegations, I can also see that what I have referred to as a particularly insidious type of abuse,
may
not easily be captured by the
more
formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this
kind
is a pattern of behaviour, possibly over
many
years, in which particular incidents
may
carry significance which
may
sometimes be obvious to an observer but to which the
victim
has become inured. It seems to
me
that what is important is that the type of abuse being alleged is
made
clear to the individual who is said to be the perpetrator.
An intense focus on particular and specified incidentsmay
be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour. This was the issue highlighted in the final report of the expert panel to the
Ministry
of Justice: 'Assessing Risk of Harm to Children and Parents in Private
Law
Children Cases' (June 2020). It is, I hope, clear from
my
analysis of the evidence in this case, that I consider Scott Schedules to have such severe
limitations
in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool
more
generally in factual disputes in
Family
![]()
Law
cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given
much
judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a
matter
for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach."
ii) The Court of Appeal in Re H-N [2021]
EWCA Civ 448 at para 46:
"… serious thought is now needed to develop a different way of summarising and organising thematters
that are to be tried at a fact-finding hearing so that the case that a respondent has to
meet
is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be."
iii) Poole J in FG & HI and JK [2021]
EWHC
1367 at paras 25 and 26:
"25. Since Scott Schedules had been prepared and the case has beenmanaged
by reference to them, I did not dispense with them but, at
my
invitation, the parties prepared short narrative summaries of their respective cases about the allegedly coercive and/or controlling behaviour of the other. The summaries were
very
different in style and illustrated the complexities involved in presenting allegations for a finding of fact hearing such as this one where there are overlapping allegations by the
mother
against the father of coercion and control, physical
violence
against the
mother,
physical
violence
against the child, and allegations by the father against the
mother
of control, fabrication, and abduction. How can the party alleging a pattern of coercion and control over a relationship that has
lasted
several years present that case for a finding of fact hearing in a way that is proportionate and
manageable,
and without giving a day by day account of the whole relationship?
"26. Patterns of behaviour are formed frommany
individual incidents of conduct. It is difficult therefore to separate the pattern from the specific events said to establish the pattern. In this case every one of the
mother's
allegations is denied by the father. The court cannot
make
findings about a pattern of behaviour without evaluating the evidence in relation to specific incidents that allegedly contributed to that pattern. The difficulty is in identifying a
limited
number of incidents that would, if proved, establish a pattern of behaviour. Some specific instances of behaviour will not constitute abuse themselves and
may
appear to be relatively trivial if
looked
at in isolation but are in fact important evidence of a pattern of abuse, or the effects of abuse, when set alongside other findings.
i) 3 of sexual abuse;
ii) 13 of verbal
abuse;
iii) 6 separate, individual allegations which did not fit into either of the above categories.
"She was unwell and was in resus for a couple hours while her condition stabilised. Her symptoms started after the court hearing on 14th; she was extremely stressed and anxious. She was questioned about past trauma which included about when she was raped, smothered and choked by her ex-partner on several occasions….She reports her symptoms were highlylikely
the stress of this event….".
This letter
was, of course, not available to the judge during the hearing. It indicates the enormous stress which GK
may
have been under whilst giving her oral testimony.
i) By way of introduction, the judge referred to the large
volume
of evidence, and said that "
Many
of the allegations
made
depend upon the findings I
make
as to the credibility of the parties. I see
my
task in this judgment as being to survey the broad canvas of the evidence, to
make
findings as to who I can rely upon, to compare oral testimony with any documentary support or contradiction and then to indicate the effects of that exercise in setting put what I do and do not find".
ii) The judge set out the background.
iii) He then cited well-established principles as to the approach to be taken in fact-finding cases. He referred to the caution to be applied when considering demeanour. He referred at other points in the judgment to the fact that people lie
for different reasons (the
Lucas
direction, although he did not reference it by name) and cited the seminal judgment of Russell J in JH
v
MF
[2020]
EWHC
86 (
Fam).
He
made
a number of references in the judgment to patterns of coercive and controlling behaviour.
iv) The judge went on to review the written and oral evidence of the parties and concluded that GK's evidence left
him with grave concerns, whereas PR overall tried to assist the court with truthful answers.
v)
He then proceeded to analyse each of the sexual allegations, the grouping of
verbal
abuse allegations, and the further six uncategorised allegations, in each instance either positively rejecting GK's case, or
making
no finding, being unpersuaded that she had proved her case.
The appeal
Ground 1: Failure to apply Part 3A of the FPR 2010, PD3AA and PD12J
i) No ground rules hearing took place before the fact-finding trial. The rules are clear as to the need for a ground rules hearing. Had it taken place, the vulnerability
issues raised in this case would have been addressed. As it is, the judge was
left
without any previous court guidance, and in
my
view
ought therefore to have applied a
more
critical, or proactive, eye to participation
measures.
This case demonstrates, in
my
opinion, why early identification of potential
vulnerability,
and a ground rules hearing, are indispensable elements of the case
management
process.
ii) The judge made
no reference to Part 3A in his judgment.
iii) This was not a straightforward case. The allegations contained in the witness statements were numerous. Even when refined in the Scott Schedule they still numbered, initially at least,
29. The bundle was extensive. Some of the allegations were of the utmost gravity.
iv) GK has a medical
condition which is exacerbated by stress, and counsel referred to her anxiety and health at the start of the fact-finding hearing. It is apparent from the GP
letter
(available now to
me,
but of course not available to the judge, and therefore I have the wisdom of hindsight) that her condition resurfaced as a result of the process of giving evidence. The anxiety for a woman giving evidence in court against a former partner, alleging abusive conduct, and in the context of seeking to (as she sees it) protect her child, cannot be underestimated. The transcript shows that, albeit after giving her evidence, she became unwell during the hearing, towards the end of the first day, including saying that she was struggling to breathe.
v)
No thought was given to a different process of cross examination (perhaps written questions and/or questions directed
via
the judge, or a focus on particular topics). The
very
fact of reducing a
long
witness statement to a number of identified examples, while perhaps of assistance to a judge trying to pick his way through the evidence,
may
not have best served the case.
vi)
It became clear during the hearing before
me
that, during GK's evidence at the fact-finding hearing, PR was able to see her throughout on screen. It also appears that she was able to see PR as the camera was pointed at his counsel, behind whom he sat. In
my
judgment, these arrangements were not appropriate and although her counsel does not appear to have raised objection, it should have been addressed at the outset given the nature of the allegations, GK's potential
vulnerability
and the possible impact upon her.
Ground 2: Wrong to dismiss the allegations of rape
Ground 3: wrong in the approach to allegations of verbal
and emotional abuse and coercive and controlling behaviour.
Ground 4: Wrong to dismiss further six allegations of domestic abuse.
i) An allegation was made
that PR covered GK's
mouth
and nose in a threatening
manner.
In dismissing the allegation, there is no
mention
of a report to
medical
professionals of being choked by PR which, on the face of it, is consistent with GK's account.
ii) Another choking allegation is not found to be proved, but the judge did not refer to reports made
by GK to the police and
medical
professionals of the alleged incident.
iii) When referring to text messages
after separation, the judge described them as an irritant, yet GK's reports to the police
laid
bare what she described as their abusive and harassing nature i.e the impact upon her of the nature and quantity of
messages
sent by PR was not properly considered by the judge.
Ground 5: Failure to consider corroborative evidence.
Ground 6: Judge failed to address additional allegations of domestic abuse.
Conclusions
The way forward