AB v XY

On 29 October 2018, HHJ Lochrane conducted the first hearing on an application by Ms Y (the respondent to this appeal and described for ease of reference as the wife) for an occupation order in respect of a property at [REDACTED]. The respondent to those proceedings but the appellant in these (and referred to for ease of reference as the husband) is Mr B. The wife was represented by counsel, the husband appeared in person. In the background there was also a divorce petition which the wife had issued in late September 2018. During the 29 October hearing the husband asserted that he was not married to the wife and that a marriage certificate which was produced at the hearing was a forgery. Somewhat to the surprise of both the appellant and the respondent, HHJ Lochrane decided that the question of the existence of a marriage ought to be listed for determination of a preliminary issue on 1 November 2018 with a time estimate of 1.5 hours. The order of 29 October 2018 identifies the preliminary issue.

A direction was also given providing for the simultaneous filing of any evidence including affidavits from any third parties relevant to the ‘question of whether or not the parties were married.’ That evidence was to be filed by 12 noon on 1 November 2018; giving 2 working days for it to be prepared. A final hearing of the applications for occupation and non-molestation orders was listed for 13 December with a time estimate of one day.

On 1 November 2018, HHJ Lochrane heard evidence and made an occupation and non-molestation order. He also made an order deeming service of the wife’s divorce petition thus allowing that to proceed. The findings recorded ‘having considered the written and oral evidence of each party’ are as follows:

In addition to those recorded findings, in paragraph 11 of the judgment HHJ Lochrane makes a finding that the husband has been abusive to the wife (in accordance with her allegations) and had put her out of the house without notice and sought to defeat any claim she might have over the house by transferring the property into the names of his children.

On 15 February 2019 the husband filed an appellant’s notice in the Family Division seeking permission to appeal against the order of 1 November. In particular, paragraph 6 of the Appellant’s notice the appellant sought to challenge the findings recorded in the order and the non-molestation, occupation, and costs orders which were made in consequence. Given that the appellant’s notice was long out of time, the appellant also sought an extension of time for filing his notice. He also sought a stay given that divorce and financial remedy proceedings were underway with an FDA listed on 6 March 2019.

On 19 February 2019 Mrs Justice Gwynneth Knowles gave directions for the appeal to be listed for an oral hearing with the appeal to follow immediately if permission was granted. By that order she provided that the order of HHJ Lochrane dated 1 November 2018 shall be stayed.

The appeal came before me today, 7 June 2019. The order provided for the appeal to be listed on a date to be fixed by counsels’ clerks in a consultation with the clerk of the rules. It is regrettable that a further nearly 4 months has passed before this appeal has been heard. A total of 7 months has elapsed since the relevant order was made. During that time the wife has resumed occupation of the property and I am told by Miss Choudhury that the husband has in effect been sofa surfing at the homes of friends and family, as well as spending periods in hospital.

The grounds of appeal (abbreviated in part) are:

Miss Choudhury supported those grounds with a concise focused skeleton argument. She supplemented them in her oral submissions.

On behalf of the wife, Miss Cooke also provided a helpfully focused and concise skeleton. Importantly within that skeleton, the wife accepted that 4 of the grounds of appeal should be allowed. They were Grounds 3, 6, 9, and 10. Prior to reading her skeleton I had already formed a provisional view that grounds 3, 6 and 9 were unanswerable and so the concessions were quite properly made. Miss Cooke also accepted in respect of ground 2 that as a consequence of the concessions in respect of grounds 3, 9 and 10 that the Family Law Act applications would have to be remitted for rehearing. Miss Cooke though maintained that the remaining grounds did not have a realistic prospect of success and nor was there some other compelling reason why the appeal should be heard. She therefore submitted that permission to appeal should be refused on the remaining grounds. The principal arguments deployed in respect of each ground were as follows:

I shall explore some of the arguments in more detail later.

The appellant seeks an extension of time to lodge an appeal. The following are some of the relevant dates:

The time for filing the appeal expired on 22 November 2018. The appeal was thus filed some 8 weeks out of time. Knowles J extended the time for appealing. I would observe that it will very often be the case that no written judgment is handed down and that a transcript will be required; with litigants in person there will very often be no note of the judgment and obtaining a transcript (particularly if one is sought at public expense) will lead to lengthy delay. However the 21 day time limit still applies and it is imperative that those instructed to advise on appeals pull out all the stops to obtain the material that they need to make a decision. In particular, in a case such as this requesting a note of the judgment from counsel who was present seems to me to be mandatory. It is part and parcel of counsel’s duty in attending a trial to take a note

The FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity. Permission to appeal may be granted where the appeal has a realistic prospect of success or where there is some other compelling reason.

In Re F (Children) [2016] EWCA Civ 546 Munby P summarised an approach to

The parties referred to a variety of authorities on appeals against findings of fact. See for instance:

The central thrust of the appeal, even ground 7, was that the process adopted amounted to a serious procedural irregularity which rendered the decision unjust. I say this also really applied to ground 7 because even in respect of Miss Choudhury’s contention that the finding was wrong, a significant component in her argument was that the process had not provided the judge with sufficient material to enable him to make a reliable decision, and that lack of time prevented a proper forensic analysis of the evidence that did exist or a proper opportunity for the judge to consider the evidence properly and reach a balanced decision upon it.

In Re S-W (Care Proceedings: Case Management Hearing) - [2015] 2 FLR 136the President (Sir James Munby) said:

It is clear from appellate courts of the highest level, that on an appeal from a first instance judge in relation to fact-finding this court should not interfere unless compelled to do so by the identification of clear and substantial errors in the process of the evaluation of the evidence and the drawing of conclusions of fact from that evidence.

The court may conclude a decision is wrong or procedurally unjust where:

The directions of 29 October provided for each party to file further evidence by 12 noon on 1 November. The husband filed his evidence somewhat earlier. Sometime between 12 noon and 1 PM the wife filed her further statement. That did not contain any narrative but rather produced a list of 29 documents and exhibits which were said to support the existence of a marriage. The statement amounts to some 161 pages. Within it was a letter dated 31 October 2018 from the Jordanian embassy in London which stated that they had examined the wife’s Jordanian passport and her family book. They confirmed that she was married to the husband in Jordan on 9 June 2010 as shown on the copy of their marriage contract. The copy marriage certificate bore a stamp from the embassy dated 1 November 2018. The statement did not set out the wife’s account of the circumstances leading up to the marriage, the marriage ceremony itself or its immediate aftermath. That is hardly a surprise in respect of the first statement which was made in support of an application for a Family Law Act 1996 order. It is perhaps also not a surprise in respect of the second statement given the very limited time that was given to produce it. However in a case where the central issue was the existence or otherwise of a valid marriage the cornerstone of the evidence must surely be the wife’s evidence of the marriage itself, the supporting the marriage certificate which the husband challenged the veracity of. How the parties were perceived by others after the event or indeed how they presented after the event will of course be of some relevance but there are many examples of individuals presenting as husband and wife when in fact they have not undertaken either any marriage ceremony or a marriage ceremony sufficient to create a valid marriage in law.

The hearing commenced with exchanges over whether the husband had provided the wife’s legal team with all of the documents. Even at that stage the judge records the limited amount of time that had been given in preparation. Following that the wife was called. The relevance of the marriage ceremony itself was recognised by Miss Cooke who asked the wife to give evidence in chief on that. After she had given evidence in chief, the husband was given the opportunity to cross-examine her. The 20 pages of transcript illustrate a relatively familiar picture of a litigant in person struggling to ask questions in the way a trained lawyer would. Very significant periods record exchanges between the judge and the husband rather than questioning by the husband of the wife. A degree of frustration on the judge’s part emerges. There are several references in which the judge refers to the need to hurry up or to running out of time. The husband was then sworn and in effect gave no evidence in chief. He was then cross-examined by Miss Cooke, which takes up about 20 pages of the transcript as well. During the course of the husband’s submissions the judge refers to the fact that they need to be out of the building in half an hour. References were made in the course of exchanges to the judge of having sworn statements from 3^rd parties who confirmed they were married (self-evidently they were not called). At 5:44 PM submissions finished. The judge gave his decision over a period of 14 minutes thereafter.

The transcribed judgment runs to a little over 3 pages. The judge identifies that he listed the matter for determination of the marriage issue because it would be relatively determinative of the credit of either party, which would affect their credit in relation to the occupation and non-molestation orders. I take it from that, not that the judge considered the existence of the marriage to be relevant from a legal perspective, but rather that it was an issue of fact which would give rise to findings on credibility which would be imported into the main application.

The judge considers some of the most significant items of evidence. He refers to the considerable volume of documentation that the wife had produced which suggest a clear impression of the parties living together as husband and wife. He considered the husband’s denial of discussions with a Visa company to be untrue and inconsistent with there not being a marriage. He plainly found the husband to be a dishonest witness and a significant component in this was the husband’s volte face from the directions hearing when he claimed the wife was a mere lodger through to his evidence that day where he accepted they had presented themselves as husband and wife. The judge concluded that a wedding ceremony did take place in June 2010. He did not consider any of the evidence relating to the ceremony itself or the criticisms that the husband made of the marriage certificate. It is clear that the judge considered the marriage certificate to be significant albeit it is equally clear that there was no one item of evidence which dominated the landscape. It was clearly a constellation of matters which led HHJ Lochrane to the conclusion that a marriage had taken place.

Returning then to the grounds of appeal. In respect of those grounds which it is accepted must succeed I must consider whether they have any bearing on the residual grounds which remain in contention.

During the course of the hearing it is clear that the allegations of abuse made by the wife against the husband were not the subject of any cross examination. Given the listing of the matter for determination of the preliminary issue of whether a marriage existed and the time estimate that was to be expected. Nor was there any exploration of the circumstances in which the wife had left the house, still less any exploration of the circumstances in which the property had been transferred into the names of the respondent’s children some 3 years earlier and whether the husband retained a beneficial interest in the property. Again this is not surprising given that they were not issues that either the husband or the wife were expecting to be determined that day.

Miss Cooke argues that those findings essentially all followed on from the judge's conclusion that the husband was not a credible witness on the marriage issues. They came after and consequent upon those findings. Therefore they being made in error cannot influence the reliability of the judge's findings in relation to the marriage. Whilst as a matter of linear logic this may have some merit I do not accept that judicial decision-making can be compartmentalised in the way that it suggests. Several decisions reached without the necessary procedural or evidential foundations suggest as a matter of substance that the decision-making process generally was flawed; that impacts upon the marriage findings as well as the other findings. However irrespective of that matter of substance, as a matter of form it is hard to imagine that an objective observer would have considered that justice had been seen to be done to the husband in those circumstances.

The circumstances in which this issue came to be listed may be informative in terms of whether the process was regular and fair or not. Usually issues as to the existence of a marriage would arise in the context of a divorce petition itself. That might give rise to issues of the existence of a marriage or the validity of an accepted marriage or both. It might also lead to questions about whether a presumption of marriage applied. The consequence of the order made on 1 November is to determine that a marriage ceremony took place. It seems clear from the approach taken by the parties that they also accepted that the consequence of that finding was that it created a valid marriage

On an issue such as status it seems to me that had it arisen in the context of the divorce it is inevitable that an entirely different procedural course would have been followed. The wife would have been given an opportunity to provide a full statement setting out the circumstances in which they came to be married, including her narrative account of the lead up to and the conduct of and the immediate aftermath of the ceremony. Enquiries would have been made in the Amman court to check the register. The husband would have had the opportunity to consider that evidence and to respond in detail to it giving his own account of his whereabouts at the time and to have obtained advice from Jordanian lawyers who might have inspected the register. In the light of that evidence, consideration might have been required as to the necessity for the instruction of a single joint expert on Jordanian law. Had the husband continued to maintain that the signature on the certificate was not his, consideration would have been given to the need for a handwriting expert. In referring to these I am in no sense seeking to predetermine whether they were necessary or will be necessary at any reconsideration of this issue. However the questions would be asked and answered. They were not addressed at all in this instance. The purpose of ‘time’ is not purely to prepare a statement but rather to reflect and to consider both what evidence might be required but more broadly what approach should be taken to the litigation. I note that the wife at no stage set out a narrative account of the marriage. Her case was essentially based on documents produced between 12 noon and 1pm on the day of the hearing, albeit she gave some oral evidence. The husband’s evidence had been filed prior to the wife’s evidence.

Whilst there is undoubtedly merit in robust case management and the rapid disposal of issues of fact even the simplest and relatively insignificant issues require some space for preparation. On important issues such as status which have far-reaching consequences, the need for careful preparation, the opportunity for reflection, collation of material, the seeking of advice assumes a premium. The fact that the husband did not raise any objection or request any additional time seems to me to be relatively unimportant in the context of the significance of the issue before the court. It emerges from his evidence that he challenged the veracity of the marriage certificate and the inferences that could be drawn from other items of evidence deployed by the wife. It is abundantly clear that there were a raft of further enquiries that would have been undertaken had more time been available. I’m quite satisfied that the timetabling of the hearing on 1 November and the opportunity for the consideration and deployment of evidence was insufficient given the magnitude of the issue in play. It does fall into the category of ‘undue acceleration’ which in my view is a serious procedural irregularity and which makes the decision unjust.

On the basis of the evidence that was before the court on 1 November and on the basis of the issues that were raised during that hearing it seems to me that a 1 ½ hour time estimate was inadequate. Albeit the time extended to something closer to 3 hours the picture which emerges is of a rather fractious hearing in which the husband was hurried along and where the limited time estimate was identified at the outset as creating a pressure. That pressure built as the afternoon progressed. It may be that there are cases where issues of status could fairly be determined in a 3 hour hearing. I do not consider that this was one of them, particularly where the preparation had been so compressed. In the circumstances I’m satisfied that taken in its entirety, the manner in which the hearing took place was inappropriate and crossed the border into one which became procedurally irregular and unfair.

Having reached the conclusion that the hearing was procedurally irregular and that the outcome was consequently unjust by reason of the consequences of the flawed decisions and as a result of the procedural irregularities identified above, the appeal must be allowed and the findings set aside.

As a result of my conclusions in respect of the procedural irregularity these grounds to some extent become redundant. However having heard argument on them I set out my brief conclusions.

Miss Cooke is right in saying that the Jordanian family book was only part of the evidence that the court relied upon. In so far as ground 5 might be construed as asserting that the Jordanian family book was inadmissible that cannot be right. The question of the weight that were to be given to an untranslated document was a matter for the court in the light of what the parties had said about it. It is clear from the judgment that the Jordanian family book was in no sense determinative of the conclusion that a marriage had taken place. It was one part of a much wider evidential picture which emerged from the documents. I’m not satisfied that the judge was wrong to admit that document or to take it into consideration.

In her skeleton argument, Miss Cooke mounts a compelling argument in support of the judge’s finding that a marriage had taken place. By reference to the evidence before the court on 1 November, she is able to demonstrate that there was a raft of material before the court which justified the finding that the judge reached. Had that conclusion been reached after a procedurally appropriate pathway to trial and after an adequate exploration of the issues at trial she would have been in an almost indomitable position. There plainly is a significant amount of evidence that supports the contention that the husband and wife held themselves out as such even to the extent of an application being made for the wife’s naturalisation as the husband’s wife. It may very well be that after a fuller exploration of matters a judge will reach the same conclusion as HHJ Lochrane. On the other hand further exploration of the matters identified by Miss Choudhury in her 12 subparagraphs of ground 7 might alter the landscape. Further enquiries in Jordan, information about the laws of marriage in Jordan or further exploration of the circumstances of the marriage either with the parties or with others might result in a different picture emerging, either as to the marriage ceremony itself or the validity of any marriage that was entered into. Plainly only the husband and wife know the true answers to all of these questions. By the end of any further trial process many others will also know the answers. The consequences may be far-reaching.

Taken in combination the application of a stamp to the marriage certificate and the letter from the Jordanian embassy provide in my view a sufficient evidential foundation (for appellate purposes) for HHJ Lochrane to have concluded that the Jordanian embassy had authenticated the marriage certificate. It is likely that a fuller process of authentication will be pursued during any remitted process but I conclude that to the extent that HHJ Lochrane did accept the marriage certificate as authentic he was entitled to do so on the evidence before him. Judges and litigants do not operate in a perfect world where every possible step can be taken to authenticate documents or to secure witnesses. Real life does not allow that. Judges in busy family courts are entitled to take a robust approach to these matters. Had the only issue in relation to this case been whether the marriage certificate had been fully authenticated, this appeal would have failed.

However my conclusions on grounds 5, 7, and 8 are somewhat arid given my findings in relation to grounds 1 and 4 and the acceptance by the wife that grounds 2, 3, 6, 9, and 10 should be allowed and the applications remitted.

The appeal against the order of 1 November is therefore allowed on the basis that the process adopted which led to that decision amount to a serious procedural or other irregularity leading to an unjust outcome.

The findings contained at paragraph 6 are set aside.

I will remit the matter for further consideration by the DFJ at the Chelmsford family court. Given the nature of the dispute over the existence of the marriage, it seems to me that it will be essential that the Petition and the Family Law Act applications are listed together so that the court can case manage both to a final hearing. If either party intends to make a part 25 application for either a single joint expert in Jordanian law or a forensic handwriting expert those applications must be ready for consideration at the directions hearing. It will be a matter for that judge to determine whether they consider it is necessary in the light of any evidence that is then before the judge. I assume that enquiries will be made with the relevant court in Jordan, where it is said the ceremony took place, to establish whether there is a register there and a record of a ceremony taking place on 9 June 2010.

The non-molestation and occupation orders are set aside. However given that the wife has been residing in the property for some 7 months and given that the husband makes cross allegations of abuse against her, it is clear that the two cannot resume living under the same roof. Miss Choudhury concedes that the property cannot be subdivided to allow that. In the parameters of this appeal it is not possible for me to delve in detail into the competing merits of the parties’ positions at the current time. However given the indication from the husband that he intended to move back into the property if his appeal was allowed, I have to consider the interim position pending any further hearing in the family court. On balance it appears to me that pending any more detailed enquiry the status quo that has existed over the last 7 months should endure until consideration can be given to the up-to-date positions of the parties. In reaching that decision I adopt a very summary approach to the housing needs and resources of the parties, their financial resources, the likely effect of an order, and the conduct of the parties in relation to each other. I will make further orders in the same terms.

Ms Choudhury invited to me to make an order for costs in relation to this appeal or at least a costs order in respect of those parts of the appeal which were conceded. I decline so to do. Ultimately the question of costs is a question of doing justice between the parties. Until the central issues are determined it will not be possible to decide what is the fair order to make in respect of costs. If the ultimate outcome of the dispute over the existence of the marriage is that the court concludes that no marriage ceremony took place that might lead to one outcome. On the other hand if the decision is that the marriage took place and that the husband well knew it that would lead to another. Given that the course that was adopted in the court below was not one which was sought by the wife but was one determined upon by the court of its own motion, I