W (Children)

This is an appeal brought by the mother of two children, a boy now aged 12 and a girl soon to be ten years old. It is an appeal against the order made by HHJ Marston in the Portsmouth County Court on 3 April 2012. The order as drawn is, I regret to say, defective in that what it orders is: 1) Judgment is handed down; and 2) More understandably, time running on the appeal is suspended until Monday 16 April. In fact what the judge was ordering, as is apparent from the judgment he did hand down, was that he was refusing this mother's application to reopen and in effect set aside and rehear matters that were previously before HHJ Black in the Portsmouth County Court on 25 August 2009.

Let me sketch in the background leading up to that 2009 hearing. These parties met in 1989 and married in August 1999. It was an unhappy marriage and they separated in 2008 and they divorced in 2009. The proceedings relating to the children seem to have begun with an application by the father for a residence order, and to resist that application the mother made a series of serious complaints about the husband's behaviour, at that stage behaviour towards her. They were directed to be set out in a Scott schedule, which is before us. To summarise those allegations they are specifically that on her 18th birthday father forced mother to have anal sex with him but then, more generally, over a period of eight years from 2000 to June 2008 the father raped mother on an average of once a month, both vaginally and anally, including when she was pregnant, as is recited in allegation 6 of that Scott schedule.

There are in additional some allegations of physical violence, one in particular that where the mother alleges that the father shoved her against a bookshelf causing her to split her lip and chip a tooth, leaving her with a permanent scar on her lip, to which the father responds that she fell out of bed and hit her head on a bedside table and bookshelf. There is another allegation that he gave her a black eye. There are also other allegations that the father encouraged mother to self-harm, joining in such activities and telling her that he would rather see her dead than with someone else, this at a time when she may have been having an affair with a man with whom she certainly did associate after the separation of the parties.

Those allegations were directed to be tried in a fact-finding hearing over two days and that matter was listed before HHJ Black, who was managing the case at that stage. On the day, 25 August 2009, counsel for the mother asked to see the judge with counsel then for the father, neither of those members of the Bar appearing before us today. The transcript of what has happened before the judge has now been produced to this court, although it was not available to HHJ Marston. I have read that transcript. The judge was careful to ask whether everyone was happy for counsel to see her directly in the absence of the parties and mother's counsel confirmed that was the position. In a statement prepared for these proceedings the mother agrees that she was happy for counsel to see the judge.

Trying to summarise the discussion, it seems that mother's counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other. She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father's contact. The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head. She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

The judge, that is to say HHJ Black -- pragmatically and sensibly in my view --- enquired what the true nature of the dispute was going to be. And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother's case. She said:

So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached. The matter was therefore further adjourned for that process to take place and the parties then finally came back before the judge, this time with their clients present and an order was made, and it is necessary to emphasise the fact, by consent. The order was simply that the mother would make the children available for contact in accordance with a schedule that was attached to that order, but importantly the recitals to the order of 25 August 2009 read as follows:

That was the order put before the judge, though in the discussion that followed it is relevant to observe that when the judge saw that draft it was she who said:

And so the matter went off for the court to manage this progressive contact and that resulted in a number of further hearings taking place before HHJ Black. They resulted in orders being made again by consent on 24 September that contact should take place as directed. There was a final hearing of the matter on 24 September 2010 where again counsel was instructed. I understand, I hope correctly, that although counsel that had represented the mother on the occasion I have dealt with at length on 25 August appeared for the mother on one of those occasions, other counsel appeared for her thereafter, and Ms Earley who appears before us today appeared for her on 24 September when the final order was made by consent. It is significant that that order for contact was that there should be staying contact alternate weekends, that the parties would agree holiday contact no later than two months before the holiday commenced. The importance of those hearings is that they were an implementation of the plan envisaged by HHJ Black for progressive contact leading to the mother being satisfied that the children stay overnight and for holidays with this father.

She is undoubtedly a troubled young woman. She alleges that she was abused as a child and that it has affected her mental health. There are psychiatric reports documenting that fragility. It is sadly demonstrated by the events that happened in March of 2011 she reported that in some consensual sexual activity with the man she was living with, she sustained cuts to her genitalia. Very little detail is given about this. Subsequently she may have said that it was self-inflicted. She had, as is apparent from the recitation of the facts made, a number of attempts at self-harm and sadly matters came to a head on 8 December 2011 when the children woke as usual went up to her bedroom and found her having taken an overdose, distressingly for them finding, as it is said, blood coming from her nose. As a result of that and the intervention of the school and the social services department, the children were placed in father's care. He had issued an application for residence of the children on 8 August 2011, and on 22 December 2011 an order was made without notice to the mother, who was apparently in hospital, that the children should reside with the father. Thereafter the court gave sundry directions for the resolution of what had become a disputed residence application.

Mother sought then to resurrect the allegations she had abandoned before HHJ Black, and at a directions hearing in February 2012 the court agreed that the matter should be determined as a preliminary issue. It is a pity that there is no formal application or no order directing exactly what that preliminary issue should be, but the effect of it undoubtedly was that the mother was seeking to set aside the order made by HHJ Black in August 2009 and was wishing to have tried all of the issues which had been abandoned on that occasion.

In support of that application, mother filed a witness statement of 9 March 2012 in which she set out her dealings with counsel who then represented her and I make it plain again, if it need be made plain, that it was not Ms Earley. On the contrary she explained that she had a good relationship with Ms Earley but found that new counsel gave her "a very hard time" when they met in conference, testing her evidence. She explained that she was beginning to feel it was all hopeless and that her resolve to go through with things was starting to crumble. She said:

It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black. In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected. She put in her own witness statement in January 2012 when she was without legal advice and there she said:

So the matter came before HHJ Marston and he refused to allow mother to re-open the fact-finding inquiry. He gave as his reasons firstly that HHJ Black was perfectly entitled to abandon the hearing. I agree with him. Having seen the transcript of the proceedings before HHJ Black, I cannot see that her conduct of the matter can be criticised in any way at all. Secondly, he considered the possibility that the mother's account was correct and that she was bullied and he dealt with that by saying:

The third fact he took into account was the collapse in her mental health and the very firm views expressed by the children, the evidence being that they were doing well in their placement with their father and the evidence that the boy in particular would be disastrously affected by further uncertainty. Those were new facts he had to contend with. He said that he did not consider it could be appropriate to have a fact-finding hearing at that stage. He was of the view that :

After commenting at page 6 of that report that the children are expressing their desire to live with their father, she goes on to say this :

Ms Earley has valiantly attacked the judgment. Her submission is that these are very serious allegations of misconduct by this husband to his wife and that they would demonstrate, if established, that his personality is such that he would present a risk of emotional harm to the children were they to be in his care. The allegations, she submitted, in summarising her case in a nutshell:

She relied on a judgment of McFarlane J (as he then was) in Re W (Care Proceedings: Litigation Capacity)[2008] EWHC 1188 (Fam), [2010] 1 FLR 1176. In that case a baby had suffered a fractured leg. There were criminal proceedings that followed that event and the step-father pleaded guilty to causing grievous bodily harm to the child. He sought in the family proceedings to withdraw that plea of guilty and he asked that the family court should grapple with whether or not he had in fact injured the baby. McFarlane J said at paragraph 72 of his judgment:

I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children. In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing. Matters had moved on because mother had suffered a further breakdown in her mental health. She was unable to care for the children. They were placed with father. They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened. It may be a matter of debate as to whether the more appropriate course would have been to have appealed. This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise. Here, in effect, the gist of the application is to set aside HHJ Black's order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort.

Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong. In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother's allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father's care unsupervised and unsupported for weekends and over holiday periods. She consented to all of those orders. She was aware of the effect of the compromise in August when she agreed those orders. She did not then complain. She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care.

To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters. He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father's account as on her account. There was little medical evidence, it seems, to corroborate her account. She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her. She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

Taking a view as to the prospects of her success, they could not be put as anything like reasonable. On the contrary, they appear, as the judge concluded, to be weak. What was the benefit to the children? In my judgment not a great deal. The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care.

For all those reasons, I conclude the judge was right to draw the line where he did. I would therefore dismiss this appeal.

This is an attempt at appealing a case management decision of HHJ Marston. The exercise of his discretion in reaching his case management decision was not in my view plainly wrong. On the contrary, it was in my view plainly right for the reasons which have been given by my Lord. I agree with those reasons. I too would therefore dismiss this appeal.

I agree with both judgments.