A DECISION THAT WAS “UNJUST BECAUSE OF SERIOUS PROCEDURAL IRREGULARITY AND MULTIPLE ERRORS OF LAW”: WHEN DECISIONS ARE NOT BASED ON THE EVIDENCE
I have hesitated before writing about the judgment in H v F  EWHC 86 (Fam). The judgment reviews a highly disturbing first instance decision. I know that many family law commentators have already commented on the case and I want to look at certain aspects of it. This is a blog about procedure and it is important that someone looks at the procedural and evidential issues in this case in particular. This is not to diminish the other concerns that arise about this case, but to recognise that many others have already commented on these. It is a case that shows how procedural shortcomings can easily lead to major injustices.
“Any finding of fact in private law or CA 1989 proceedings, and in all civil cases must be based only on the evidence. … Yet in the absence of evidence the judge found that the Appellant had been “guilty” of aggressive acts herself”
The trial judge carried out a fact finding hearing in August 2019. The appellant (mother) was represented, the father was not but had assistance from a McKenzie Friend. The mother appealed against the findings made. The trial judge’s findings were robustly overturned.
The trial took place on 8th August 2019. The Appellant, as can be seen from the letter alluded to above, is a vulnerable witness as set out and defined by FPR 2010 r3A.7 (a) (i); (d); (e); (j) and (f) and had applied for screens to be made available in the court room (r3A.8 (a)) as a measure to be put in place to assist her in giving her best evidence: to enable her to do so is the court’s duty under r3A.5. The judge took the inexplicable step, contrary to the expressed view and request of the Appellant, and contrary to the rules of procedure, of ordering that the Appellant give evidence from counsel’s row as “better” than using the witness box and screens. In doing this he had not only decided not to follow Part 3A of the FPR 2010, but he also completely failed to give any or adequate reasons for doing so as required by r3A.9 of the FPR 2010. These are serious procedural irregularities which would allow for an appeal to be granted under FPR 2010 r30.12 (3) (b).
The Appellant’s skeleton argument (as prepared by trial counsel) refers to the unsurprising difficulties that the trial judge then encountered in being able to hear the Appellant’s evidence. It is a matter of further complaint that as a result he actually did not hear significant parts of what the Appellant had said in court; a matter the judge himself accepted in paragraph 15 of his judgment. The judge then proceeded to order that the Respondent, too, should give evidence from counsel’s row making reference to the “feng shui” of the court room and the screens and saying that it was fair and “created some kind of balance” without any application having been made by the Respondent that he needed to give evidence in the same manner as the Appellant. Concerns raised by counsel were dismissed without reasons being given for this decision by the judge. The Respondent was then able to give evidence sitting next to his McKenzie friend who was, as a consequence, able to assist the Respondent in the answers he gave when the Respondent was being cross-examined. It follows that the Respondent was given an advantage and assistance denied to the Appellant. As was submitted by trial counsel in her skeleton argument and I accept “… it is plain and requires no citation that when a witness is giving evidence, they are ‘under oath’ and are to receive no prompting, assistance or advice during the midst of it.”
The 7th ground of appeal, as submitted by counsel, was that the decision was unjust for due to serious procedural irregularity; I would have allowed the appeal on this ground alone, but along with his conduct of this case any broad analysis of his judgment, and approach to the fact-finding is so flawed as to lead to the conclusion that it is unsafe and wrong.
SUBMISSIONS CUT SHORT
The appellant’s counsel was not allowed to develop their submissions fully.
According to trial counsel’s notes the trial concluded at 16:30, and she, as for the Appellant, was unable to make the all the closing submissions she intended to in the time that was allowed to her which commencing at 16:45, not least as her oral submissions were repeatedly interrupted by the judge. The judge did not then call on the Respondent at all. The real risk of the appearance of a partisan approach in the judge’s conduct is self-evident. This was compounded when, after delivering his judgment at 17:55, the judge ordered a s7 report and invited the Cafcass Officer to consider Cafcass contact intervention, yet no evidence in respect of the need for this was given or considered during the trial, and the Appellant was denied any opportunity to address the court about the necessity for, or the imposition of such conditions. The judge then failed to give any reasons for so doing and further compounded his errors when, on 23rd August 2019, the judge directed Cafcass to investigate any child protection concerns in the Appellant’s care of C. Nothing in respect of this was raised at trial, there was no evidence (indeed the opposite was indicated in the safeguarding correspondence) before the court to support such a direction but the trial judge saw fit to impose such a direction, nonetheless.
WRONGFUL RELIANCE ON DEMEANOUR
The grounds of appeal go on iii) to say that the judge was wrong in that he had placed undue weight on the demeanour of the parties in Court when assessing their evidence. Appellate case law is redolent with cautionary guidance and comment on the need to look beyond demeanour when reaching a conclusion about the veracity of any witness yet the judge baldly said at paragraph 13 that the Respondent had the “better of the argument” describing the Respondent’s demeanour as straightforward without more. In this he failed, as he was required to, to give reasons for preferring the evidence of one party over the other (Cf. Lord Justice McFarlane (as he then was) in V (A Child) (Inadequate Reasons for Findings of Fact) (2015) EWCA Civ 274). Certainly the fact that the judge preferred the Respondent’s case was patent throughout his judgment. His reasons, such as they were for dismissing the evidence of the Appellant were wrong; specifically, the judge made a finding regarding the Appellant’s psychological state of mind without any forensic expert evidence (the absence of which had been a matter he himself alluded to previously at paragraph 7 of his judgment) when he said, in an exchange during closing submissions with counsel, “she [the Appellant] gives a description of a woman who is of a highly anxious, it might be said, neurotic, disposition”. In saying thus the judge had apparently reached a conclusion regarding the Appellant’s state of mind without sufficient evidence to support it; moreover it was a conclusion which was contrary to the case of the Respondent. It is necessary to interject here that other than denials it was not possible to decern with any particularity the case put by the Respondent (who was the applicant in the case) because of the absence of reference to it in the judgment.
If the Appellant appeared to be, and was in actuality anxious, and the judge referred to her as anxious from the outset of the hearing, and again in his judgment (see paragraph 15) is unsurprising given the judge’s comprehensive failure to apply Part 3A. The failure of the judge to provide the Appellant with the means of giving her best evidence was evidenced by the fact that her oral evidence was not heard by the judge and was not picked up on tape. To go on, as this judge did, to use it as one of the reasons he questioned her evidence is aberrant. Moreover, in his judgment the judge wholly failed to consider or even to entertain any likelihood that her anxious presentation was as a result of previous abuse, including the probability that this had included abuse by the Respondent. Or, as was submitted by counsel for the Appellant that, that as a vulnerable witness, she was likely to have been distressed when she gave her evidence which, in turn, would have had an impact on her ability to recall matters that had taken place. During oral her evidence, in response to a question by counsel, the Appellant had said she was “stressed, nervous. I haven’t slept, eaten anything. It’s hard if he can be here”. It is of note that there are facilities for witnesses to give evidence by video link near or in the Central Family Court.
FINDING ON MATTERS NOT PUT
At ground v) the Appellant submitted that the judge “had been wrong to made findings on matters which were not put to the Appellant”. This ground referred to two matters, the first being that the judge found (at paragraph 30) that the Appellant had been “guilty of aggressive behaviour herself, on occasions.” This had not been put to the Appellant during the trial and it is improper to make findings against a party when that party is not given an opportunity, when giving evidence, to answer them. In addition it did not appear to form any part of the Respondent’s case.
Secondly, after failing to deal with the text messages, sent by to the Appellant by the Respondent, during the hearing and on being addressed by counsel in respect of this failure on application for permission to appeal, the judge had concluded that graphic, sexually explicit and threatening texts such as “If you don’t shut up I will stick my cock up your ass” were consistent with “sexting” and were not “helpful”. It had not been the Respondent’s case that the texts were “sexting”, nor was this put to the Appellant during her evidence. Not only was the content of the texts likely to have been relevant in connection with any consideration of controlling and coercive behaviour, it may well have had relevance in connection with the complaints of sexual assault. Notwithstanding the relevance of the texts as evidence, it would seem that the judge wholly failed to understand that is the effect on the recipient that is pertinent when considering whether any message or communication is threatening and/or abusive.
STANDARD OF PROOF
Mrs Justice Russell went on to make stringent criticisms of the trial judge’s approach to many issues in the case.
Finally, having previously dealt with procedural matters in respect of Part 3A which was ground vii), it is necessary to consider the judge’s approach as to the standard of proof he was obliged to apply. As Lieven J said when allowing the appeal “at paragraph 10 of his judgment the judge made comments on his approach to the standard of proof ought to be considered. The judge appeared to be troubled by the fact that if he made a finding, the binary nature of the law means he would have to proceed on the basis it was correct, even if he were wrong.” It is evident that in making his observations the judge was, in fact, applying a higher standard of proof than the simple balance of probabilities; for at paragraph 10 the judge said, after describing the standard of proof as a difficulty in this case, “So, if I find myself in respect of a particular allegation 51 percent favouring the evidence of one party and only 49 percent of the other, if in other words it is finely balanced, there is a grave risk that I get it wrong – but thereafter would have to treat my findings as absolutely correct.” He compounded the impression that he was troubled by applying the correct balance of proof when went on to say “In short, whilst it is the court’s duty to investigate and make findings, as best it can in accordance with the evidence, there is very often so far that the court can safely go before the benefits of a fact-finding begin to diminish.”
The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof)  2 FLR 141. The words of Lord Hoffman in Re B which apply to serious sexual and physical abuse and assault as they would to any finding of fact: “If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one.” The judge gave the appearance of being reluctant to apply that standard, moreover, at paragraph 22, having reiterated that the standard of proof is the simple balance of probabilities he went on… “[t]he difficulty here is that on any view, as I have said the mother’s case is poised, it might be said exquisitely poised, on a point between non-consensual and consensual sexual intercourse which was not, at the time towards the mother’s taste or inclination.” This comment is a further example of the judge’s apparent reluctance to apply the binary system and thus the correct standard of proof. The judge has erred in law by applying, or appearing to apply, a higher standard of proof.
Any finding of fact in private law or CA 1989 proceedings, and in all civil cases must be based only on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation)  EWCA Civ.  “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation”. Yet in the absence of evidence the judge found that the Appellant had been “guilty” of aggressive acts herself. The judge has erred in law by making this finding.