This is part 2 of a series of posts about the conjoined appeals. You can read part 1 here.
This post summarises the individual issues in the four appeals. Part 3 will cover the wider issues of principle and some of the themes that emerged in the course of the hearing, and will provide some materials for further reading.
We don’t know what the outcome of the individual appeals will be, and we don’t know which of the points we’ve summarised will be points that the Court of Appeal thinks are important, and which of them it rejects or disregards. Because we don’t have all the skeleton arguments, we may have missed some points that were made in writing but not orally, and in any event we’ve only tried to capture a summary or a flavour of each case, rather than every point raised.
A quick word about how we’ve approached this post
Some legal words we’ve used :
- scott schedule – a table used by family courts in which parents alleging domestic abuse are asked to set out their allegations by list, giving the date or approximate date where possible, a summary of each incident, and the evidence relied upon. Sometimes limited to a particular number of allegations, often six, sometimes ten.
- skeleton argument – a written document by the lawyer representing one party, summarising their main arguments
We are going to give these appeals short identifying labels as a reference point in our subsequent post. The cases are obviously more complex than the labels suggest, but we will need a method of referring to the specific cases later on, and the initials used are not very memorable.
This post does not list all the lawyers involved, but does identify those who had a speaking part, to help anyone who wants to look at the live tweeted accounts of the oral submissions. We’ve also indicated which session of the related to which appeal, so you can match it with the relevant live tweets (links at the foot of Part 1).
The issues in the individual appeals
Re H-N – the Tolson ‘no findings’ appeal
This appeal concerned a boy of pre-school age. The father was a foreign national living abroad. The parents did not live together for any significant period of time. There was an admitted incident of violence in 2016, when the father slapped the mother, and she had slapped him back. The father accepted a caution for this. For two periods in 2018 the mother had taken/sent the child to stay with the father in his home country for a period. When the child was not returned an abduction application was brought on the mother’s behalf, and return was ordered by the foreign court (i.e. the court concluded that there had been an abduction by wrongful retention). In 2019 the father issued an application for residence and leave to remove the child to his home country. He also sought a psychiatric assessment of the mother.
The mother made allegations of rape, coercive and controlling behaviour, domestic violence, emotional and verbal abuse against her and psychological, emotional and physical abuse of their son. HHJ Tolson heard the fact finding hearing in August 2020, and at the end of the hearing he made no findings on any of the allegations. His order recorded that the arrangements for H-N to spend time with F created no unmanageable risk to H-N or either parent and that arrangements for health and safety within the direct contact were to be a matter for the supervising independent social worker.
The mother appealed.
We don’t have the grounds of appeal, but the mother’s skeleton argument tells us that :
In this appeal, as in other cases, the real question is not limited to what happened, but whether those events were abusive themselves, and/or whether there is sufficient evidence of patterns of behaviour which is demonstrative of an abusive relationship.
The mother complained on her appeal that the judge had adopted an unfair approach in his conduct of the hearing, shifting the focus form her allegations onto her ability to care for the child, which were not issues the mother had expected to be facing. She complained that he had made up his mind about the allegations and their relevance before she even stepped foot in court and that he failed to properly evaluate the seriousness and impact of the allegations if true (including the fact that child abduction was itself an act of control). She argued that the judge was wrong to take the view that because the mother’s allegations were made before the child had been sent by her to stay with his father they weren’t going to be relevant to future arrangements.
Although we don’t have the judgment of HHJ Tolson, we are told the judge said that rape allegations as ‘nowadays very common in child arrangement proceedings such as these’, the implication being (Mother argues) that he was implying some scepticism that women fabricate such allegations for tactical reasons.
In the skeleton argument produced on her behalf the mother’s team remind the Court of Appeal that this judge, HHJ Tolson had been strongly criticised by Russell J on a previous appeal from a decision of his in a case of this sort (JH v MF – see here and here), and says that the judgment in this case ‘has the air of a ‘swan-song’ even a rejoinder of this judge to that judgment. In short, it was argued that HHJ Tolson was making a political point (even though in his judgment he said ‘I am not making a political point’ before going on to make a point about the tactical advantages to a litigant of making such an allegation).
The father resisted the appeal. He argued that the judge had properly considered all the evidence, had done exactly what he was supposed to do and quite properly found the mother’s evidence inconsistent and unreliable. He argued that an appeal court which hasn’t heard evidence should be very cautious about interfering with findings of fact, and there was no proper basis upon which to overturn the findings the judge had made after hearing the evidence. His lawyer took the court through some of the inconsistencies in the evidence which he said were a proper basis for the judge’s view she couldn’t be relied upon. His lawyer said that the judge was entitled to rely on these inconsistencies when assessing the mother’s credibility, including the fact that the mother had willingly left the child in his care, which suggested she wasn’t truly fearful of him or the risks he posed to the child.
Appellant mother : Christopher Hames QC (who you will see wrongly referred to as Haines in some of our early tweets – sorry, no edit function on twitter!), Respondent Father : Janet Bazley QC.
This appeal was heard first on the morning of day 1 (19 Jan).
Re T – the cross appeal case
This was an appeal against a decision of HHJ Evans-Gordon concerning a girl, ‘T’. HHJ Evans-Gordon is the only female judge appealed from in this batch. Again the mother had made serious allegations of domestic abuse including rape. At the outset of the fact finding hearing various difficulties emerged about the failure to translate documents for the mother, who did not speak English. That cause some delay and it was said some unfairness to the mother – she had been placed under pressure and had still not had all the relevant documents translated to her before giving evidence, including those that she was cross examined on. The judge made some findings at the conclusion of the fact finding hearing, largely based on the F’s admissions but it was said she had failed to step back and identify the significance of those findings, namely that they were evidence of a really concerning pattern of behaviour.
One finding that was the subject of criticism by both legal teams was a finding about the father placing a bag over the mother’s head and saying this is how you should die, which the judge concluded had happened without anything to trigger it, and that the event had been a joke. The father’s team appealed this finding, saying it was inconsistent with the rest of the judgment and should just be flipped to a non-finding. The mother’s team said the judge had failed to spot that was really abusive behaviour, made more concerning by absence of any trigger for it. Essentially, it was said that this incident could only be explained as an act of extreme intimidation and control, and was therefore strong evidence in support of the broader pattern of controlling behaviour the mother complained of, but which the judge had rejected.
The child had had no contact with her father for over 2 years.
The mother’s lawyer made 3 arguments :
- That the judge failed to ensure a fair hearing in that she gave a premature indication of her view prior to cross examination of the Father, failed to apply PD3AA (vulnerable witnesses – special measures), and allowed unfair cross examination of the mother.
- that she failed to appreciate significance of the findings made and was wrong to find that the father posed no risk to the child or mother in light of them, and that she failed to consider the findings on totality of the evidence and in light of the findings she did make.
- that the judge gave herself an inadequate self-direction which led her into error on consent, on the relevance of sexual history, and as regards demeanour of witnesses in the context of trauma and vulnerability.
In the course of argument the court was taken to a passage in the transcript of the hearing where the judge, part way through the fact finding hearing says
‘it seems to me this is a shocking waste of court time… you’ve all heard and seen the evidence I’ve heard and I’m inviting you to make discussions…lots of pushing and shoving on both sides…it’s not what one might call the type of domestic abuse one is normally invited to find facts about’(NB we don’t have the transcript so this is not verbatim, and based on what we heard read out at the hearing and were able to capture)
In respect of this mother’s counsel asked rhetorically :
If having a bag put over your head with thoughts of death, hands around your neck and being told that is the way you are going to die is not the sort of abuse the court should be considering…the type of insults and anal rape that was being discussed – if this is not the type of case where the court should consider domestic abuse then : WHAT IS? To say it just before F is to be cross examined is significant…(again, not verbatim, and based on what we heard and were able to capture at the hearing)
It was said on behalf of the mother that the translation issues meant the mother was not fully aware of the father’s case before giving evidence. This was understandably probed by the judges, because the mother had been represented throughout. Some of the remarks made by the mother’s lawyers on this issue were interpreted as an attack on the competence of the more junior lawyers involved at that stage. A number of other lawyers later made a point of distancing themselves from these remarks. In summary, it was suggested that junior legal aid lawyers are not always equipped to deal with the sorts of issues that emerged in the course of this hearing – described as ‘insufficiency of representation’.
Appellant Mother : Professor Jo Delahunty QC, Respondent Father : Charles Hale QC.
This appeal was heard second, on the afternoon of day 1 (19 Jan).
Re H – the Tolson ‘loose allegations’ appeal
This is another appeal against HHJ Tolson. Again, a mother making allegations of rape and domestic abuse appeals. Here, we were told that the mother was not opposed to all contact, but did say the father’s explosive behaviour was relevant to how that contact should be managed. This was a case where the court had adopted the familiar (but now often disapproved) practice of limiting the number of allegations to be listed in the scott schedule to 6. We don’t have the detail of the findings made, but we do know the judge found the allegations of rape not proved. The judge found that the mother accepted that the Father was not aware that she did not consent to intercourse. However, this wasn’t part of the father’s case, it wasn’t put to the Mother in the course of evidence, and her evidence was that she told the Father to “stop”.
Counsel for the mother said it was wrong for the court to hive off parts of the father’s behaviour rather than see it as ‘a part of a comprehensive whole’. It was suggested that the tendency to fall into this sort of error was promoted by the use of a scott schedule, and that this case illustrated that particular difficulty : the judge described the allegations of coercive control as ‘rather loose allegations of wider control’ and refused to deal with them. It was argued that the judge had been so focused on the allegations of rape that he had not properly considered the more pervasive patterns of behaviour that were likely to give rise to a risk to the child, and that this was contrary to the guidance in PD12J and good practice. In the mother’s skeleton argument it was put like this :
‘[it was] wrong to hold that findings of rape, domestic abuse (in front of the child) and coercive control would not create a direct risk of harm to the child … and to treat them as immaterial to the order under contemplation.‘
The mother sought a rehearing of the fact finding (with a ground rules hearing first), so that there was a clear factual basis for risk management of contact going forwards. The father’s barrister asked rhetorically, what is the point of rehearing everything now that the events in question are several years ago and contact has progressed and is established? On the father’s behalf it was pointed out that there had been significant unexplained delay in the mother actually setting out her allegations, and the rape allegations had arisen very late. The fact that the mother had not mentioned her rape allegations earlier was said to be an inconsistency the judge was entitled to rely on when considering the mother’s credibility. In fact, said the father’s team, she hadn’t asked the judge to make findings about a pattern of behaviour in her schedule.
Appellant Mother : Amanda Weston QC, Respondent Father : Denise Gilling QC.
This appeal was heard third, on the morning of day 2 (20 Jan).
Re B-B – the consent order case
In this case the mother appealed against the decision of HHJ Scarratt. Unusually, it concerned an appeal from a consent order. The mother had made serious allegations of domestic abuse including rape. The appeal court was told that at a hearing in March 2019, intended to be the fact finding hearing, the judge had threatened* the mother with removal of her child and said he could have him adopted (a judge has no power to make an order for the non consensual adoption of a child without an application first being made by a local authority, so this was not factually accurate). There was no dispute that the judge had said this (although there was some debate about the right phrase to described it – threatened was the word used by the lawyer representing the Womens’ Groups). The court had heard the audio recording of the hearing, including the mother’s sobs. The mother’s lawyers said this amounted to inappropriate pressure on the mother to negotiate contact.
At a hearing in August 2019 the mother, through her lawyer, invited the judge to abandon the fact finding hearing and to make a consent order for contact between the child and his father. This was the order the mother now wanted to appeal. The mother’s case was said that the mother’s consent was coerced, partly in light of the judge’s comments to her at the earlier hearing (in the course of the appeal hearing King LJ noted that he had also made some disparaging remarks about the need for a fact finding hearing almost as soon as the August hearing began, which had echoes of the March remarks, albeit less shocking in content). The mother said the judge had been wrong to agree to make the order for a contact order, not only because of the consent issues but also because the judge had failed to conduct a risk assessment and failed to make findings material to whether contact arrangements would place the Mother and the child at risk of unmanageable harm in line with the guidance in Practice Direction 12J. She said that the allegations the mother had made should have raised sufficient red flags about whether or not the contact was safe to enquire further rather than just accepting the proposal. As far as we could tell from the hearing and skeleton the mother had not retracted her allegations, she had merely asked the court to approve an order instead of proceeding with the fact finding hearing.
The mother also pointed out that the judge’s order meant that if she later failed to comply with the order for the protection of the child she would be left with no ‘reasonable excuse’ for the breach. She suggested that this would leave her vulnerable to allegations of ‘parental alienation’ because her allegations of domestic abuse and consequent risk were ignored by the court.
The mother’s appeal had been brought over a year after it had been made, and initially she had complied with it. It appears that contact had only really stopped during the pandemic, and the application for permission to appeal out of time was made at the point where the father was attempting to return the matter to court. The father’s team said this timing was significant, the mother’s team said that this was simply a reflection of how long it took her to access advice that she had good grounds to appeal and to get that appeal drafted.
Appellant Mother : Amanda Weston QC, Respondent Father : Teertha Gupta QC (the court also heard briefly from his junior, Clarissa Wigoder).
This case was heard last, on the afternoon of day 2 (20 Jan).
* Update 25 Jan: We have been contacted by Rights of Women about the reference to the attribution of the word ‘threatened’ to the oral submissions made on behalf of the womens groups. Rights of Women say that the word used was ‘abuse’ / ‘abusive’. We agree that term was used, but from our note (made via live tweet) the submission was that the remarks were both abusive and threatening. See our live tweets here, which record counsel for the Womens’ groups as saying :
“my clients would say with strong voice what they faced was belittling, disbelieved, dismissed and on occasions being threatened. I don’t shy away from that last word, and y’days discussion with Mr Gupta there was a struggle to find the appropriate adjective for the behaviour of a senior experienced J with a vulnerable mother in front of him, who as part of the frustration of the delays went as far as saying one option open to him was adoption…We don’t hesitate to give that a name and the name we give it v squarely is abuse. Mindfulness as to language is required when dealing with families caught in this nightmare….”
We think our tweet is accurate in recording the use of both terms, apparently in reference to the comments of HHJ Scarratt, but are happy to note the position of Rights of Women here.
Part 3 can now be found here.
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