M-H (Children)

LORD JUSTICE THORPE: This is an application for permission to appeal a judgment of HHJ Horowitz QC given on 15 December 2005. The application for permission was considered by Wall LJ on paper on 16 February when he directed an oral hearing on notice with appeal to follow if permission granted. In his reasons he warned of the difficulties in challenging findings of fact made by an experienced and careful judge in Children Act proceedings. He went on to say that this court would welcome assistance on the appropriate form of order where the court has made findings of fact. He posed the question should the order record in terms the findings made by the judge. I will return to that question, having expressed my conclusion on the very able submissions advanced by Mr Michael Nicholls this morning in support of the application.

The issue before the judge was one that is familiar and always difficult. He had to decide, largely on the basis of the evidence of the parents, whether during the course of family life there had been disregard of proper sexual boundaries, both in relation to the elder child, S, born on 6 February 1989, and also in respect of the younger child, C, born on 27 February 2000. The judge had two days in which to conduct his investigation, and late on the second day he gave his extemporare judgment. The judgment is briefly extended by his ruling on an application for permission to appeal which was immediately advanced by Mr Nicholls. When it was refused, the application was addressed to this court by a notice dated 5 January. That notice is slightly, but almost permissibly, out of time, and I will return to the question of the due time for filing notices again at the conclusion of this judgment.

The generally difficult task for the judge, of reaching conclusion at a preliminary hearing on allegations of inappropriate sexual boundary or sexual abuse, was heightened in this case by shortcomings in the professional work done both by the relevant local authority and by the relevant child protection unit of the police, following the sounding of alarm bells by the respondent mother. HHJ Horowitz, at the outset of his judgment, referred to these deficiencies and the heightened difficulty for him in arriving at determination.

However, he went on to consider in detail and with care the relevant chronology, starting with the circumcision of child C in February 2004. The judge made it plain that that circumcision had been medically required because child C was experiencing difficulty and pain in urination and required adult assistance in some instances in order to evacuate urine. The judge had to make sense of a developing situation from 8 August 2004, when child C raised the first anxiety in his mother’s mind by saying during the course of bath time that his father had hurt his penis, and demonstrating what he meant by that by squeezing his penis flat at the top using his thumb and forefinger. The mother asked why he thought his father had done that and the little boy said it was to get all the juice out. It is unnecessary for me to record the subsequent elaborations that came over the course of the following twelve months, certainly increasingly florid and increasingly suggestive of the introduction of a measure of fantasy.

The shortcomings in the local professional services – support services for the mother, investigative services, child protection services – inevitably led to a degree of complexity in the chronological story that the judge unfolded, and gave rise to a number of queries and inconsistencies which were rigorously exposed by Mr Nicholls during the trial. It was undoubtedly a case that was not easy to unravel, and a case in which any conclusion was open to criticism on the basis that one positive indicator had been overstressed or one negative indicator had been overlooked.

The father’s response to the case against him was described by the judge as “firm, clear, robust and passionate denial”. His positive case to the court, which the judge described as being “clearly articulated both in his statements and in his evidence”, was that the mother was consciously lying. The judge rejected that counter-attack and described her evidence as cool and calm. He continued, “I see no reason to disbelieve her”.

The judge had to express conclusion on the inappropriate sexual boundaries within the family in relation to both children. He said in relation to child S:

“… it seems to me on the balance of probabilities to which Lord Nicholls has directed me, that I do not think the father was fully reticent and inhibited and private enough to restrain himself from fondling or playing with his genitals in the bath. He fell into that well known parental trap of forgetting how astute and observant children are”. […]

He continued:

“I do have the very clear impression that he did not stop himself from fondling when [S] came into the room, or did not avert the risk that she might come upon him while he had just stopped doing it or even be too late to do so. It is an area I think the father needs to consider carefully, and it is an area in which no doubt with professional assistance, there could be some useful acknowledgement between father and daughter that would help restore their relationship”.

He then came to consider the case in relation to C, which he immediately acknowledged was much more difficult. Having rejected an approach suggested by Mr Brookes, appearing for the mother, as being too simplistic, he expressed himself thus:

“When I add together some of the specifics in what C has said, when I take into account the sexual and fraught atmosphere in the house and the father’s habits, I find a troubling overall picture. The conclusion that I find myself driven to is this. That untoward sexual behaviour did occur, and the father did not observe boundaries with C either. I find myself in a much more difficult position with regard to specifics. It seems to me on a balance of probabilities, and I so find, that there was some degree of wholly inappropriate touching of C’s penis. Whether this was an extension of cleaning while going to the lavatory or whatever, I am not sure”.

Given the much more extensive and much more florid possibilities of sexual abuse that arose from the later words of the child, it can be seen that the judge was arriving at a very cautious conclusion, rejecting a great deal of the case that he had had to consider against the father. That interpretation of the judgment is fortified by the future that the judge mapped out. In the following paragraph he said that the difficulties in the family “cry out for some quality therapeutic family work, both with the whole family and with members of the family”. He went on to suggest that the parties should consider with their legal advisers just what sort of therapeutic or remedial work is available, and it should not be investigative work, it should be therapeutic. He then said he would like the matter to be restored before him in January for directions, which he hoped might be agreed to progress the therapeutic work. He said:

“I regret that in the meantime it seems to me that we must keep the framework of supervision. I would hope that we could move away from that as soon as possible, and that perhaps is something that can be put on the agenda in January, [perhaps] a 30 minute directions appointment”.

So the way ahead that the judge felt to be apt, given the low level of his specific finding, was that the parties should at once seek to engage in a therapeutic referral which would allow the court, within the space of a month or so, to remove the requirement for supervision of contact. Now, Mr Nicholls in arguing his appeal has made it plain that if he succeeds his consequential target is the removal from the order of 15 December of paragraphs 2 and 6, which are the paragraphs that essentially confine the father to the existing regime of supervised contact. I would only observe with the advantage of hindsight that the pursuit of the appellate road, as an alternative to the road mapped out by the judge to arrive at the destination of lifting the supervision safeguard, has taken a good deal longer than the judge’s route would have done, and has also had a negative effect on the commencement of the therapeutic referral.

Mr Nicholls in a helpful note has informed us that both the Tavistock Clinic and the CAMS department in Milton Keynes have refused the referral on the grounds that there has been no risk assessment, that there was continuing conflict between the parents on contact and finances, and that there was a pending appeal. At least the determination of the appeal will remove one of those obstacles. The other it is open to the parties themselves to end by desisting from continuing conflict during the therapeutic process. Hopefully the first seeming impediment to commencement can be overcome by drawing the clinic’s attention to the judgment of HHJ Horowitz and if necessary the judgment of this court.

Mr Nicholls’s ultimate submission is that the judge, at the end of the evidence, was left with no more than suspicion which he has then impermissibly elevated into evidence, and elevated sufficiently to satisfy the high standard of proof that the case demanded. I cannot accept that submission. It seems to me that the analysis of the judgment that I have already offered demonstrates that the judge was careful to exclude findings on any of the florid statements of the child where clearly he felt that the evidential standard had not been met. His finding of inappropriate sexual boundaries was clearly justified by the evidence in relation to the words of the child on 8 August, in the context of the history of recent circumcision and in the context of the disregard of appropriate sexual boundaries in relation to the elder child. So I am not persuaded by Mr Nicholls’ submissions. I would, however, in recognition that this case is by no means easy, grant the application for permission and dismiss the consequential appeal.

In conclusion I will express my opinion on the two procedural questions, the first relating to the time within which the notice must be filed, the second the question raised by Wall LJ. The Civil Procedure (Amendment Number 4) Rules 2005, made in 2005 but not coming into force until 6 April 2006, will have the effect of extending the period within which a notice of appeal must be lodged in this court from 14 to 21 days. Had this amendment been in force at the end of last year, it would probably have saved the notice in this case from slightly exceeding the time limit. But the point that I want to stress is that this general extension for all cases in the Court of Appeal may not be generally appropriate for family appeals involving children, where so often time is of the essence. I would simply wish to draw attention to Rule 11(C)(i) which inserts a new phrase into the rules to this effect: after the words “such period as may be directed by the lower court” there are to be inserted the words “which may be longer or shorter than the period referred to in sub paragraph (b)”. The simple effect is that the judge in the lower court may have regard, and should have regard, to what time limit should be imposed for the issue of any notice in this court. If the judge feels that the urgency of the case requires expedition in the appellate process then it is open to the judge to say not 21 days, which is the general rule, but 14 days, or 7 days, or whatever shorter period that he feels appropriate.

Turning to the point raised by Wall LJ, I am of the opinion that in any case in which there is to be a split trial, as a general practice the order directing the preliminary trial should settle the issues that are to be determined. At the later stage when the judge has heard the evidence and expressed his conclusion, the order to reflect that conclusion should refer back to the form of the issue settled for determination and make express finding on each of the paragraphs of the settled issue.

That does not meet or facilitate the requirements of an appeal, since it is perfectly plain from the decision in Re V [2000] 1 WLR 790 that this court will without technicality entertain and determine appeals brought against preliminary findings of fact, even if the outcome has not been the subject of some substantive order. The reason why I favour a formal practice of an issue settled by the court directing a preliminary trial and a resultant order ruling on the issue as settled is that there is then a clear record as to the outcome of the preliminary trial. That is not so much for the immediately succeeding second stage of the split trial but so that there is a record for the parties, for other disciplines who have to continue to work on the case and for others who may have to investigate and to retrieve the past, in relation to some future issue that may arise on the formation of a new family by one or other of the parties to the first dispute. Here, the order skilfully drawn by counsel deals with a range of points but gives absolutely no indication of what it was that the judge was trying out or what his conclusions on the issues were. That shortcoming, for I believe it to be a shortcoming, would be easily met by the more laborious but useful practice of a carefully settled issue for determination and an order that decides the issues set by the preliminary direction.

LADY JUSTICE SMITH: I agree.