SP v DM

I am dealing with the appeal of the mother against the order of Recorder Wood KC made on 22 December 2022. In her order the Recorder made a child arrangements order in respect of the now 3 year old son of the two parties.

The parties were briefly married and have the one child. They separated when he was but one month old. The father had been having contact until the mother unilaterally stopped it in July 2021, expressing her concern that he was behaving inappropriately towards the child, an allegation found to be untrue by the Recorder.

Her order followed a fact-finding hearing that lasted 6 days on 5-8 September and 26 and 29 September 2022.

The procedural history of this case is important. At a directions appointment on 8 March 2022 the District Judge ordered that the allegations made by each party should be limited to four specific allegations plus any allegation of coercive and controlling behaviour. The case was to be listed for the first four open days after 13 May 2022.

The parents exchanged schedules of allegations. The father, in accordance with the order, set out four specific allegations. The mother set out four allegations as follows:

Thus, it was that the mother's 4 allegations were followed by 24 additional allegations. This was not what the District Judge intended.

A pretrial review was listed for 25 July 2022. In a document filed for that hearing the day before, the mother revealed for the first time that she was pregnant. The father had no warning of this. The position statement of the mother said this at para 22:

The parties were represented by counsel and solicitors as they have been throughout. At this pretrial review it is plain that Recorder Howling KC, who conducted the hearing held a ground rules hearing. At paragraph 25 of his order, he set out the participation directions which provided for:

I do not understand how given the contents of this order the mother, through Dr Proudman, can argue that there was a procedural irregularity by not having a ground rules hearing. I should add that the provision made by Recorder Howling was exactly what the mother had sought. In my judgment, these were proper directions to deal with the mother's vulnerability.

The order went on to say that there would be further consideration of the measures at the start of the hearing taking account of the positions of the parties. At the start of the main hearing Recorder Wood returned to the matter of participation directions and made it clear that the mother would be entitled to take breaks whenever she needed and that the judge would keep a close eye on her condition. If the mother felt unwell, she only had to say. No further request was made on behalf of the mother.

The hearing did not commence until the afternoon of 5 September to give the judge reading time. The mother's evidence occupied 2 hours of that afternoon. On the following day, 6 September, her evidence continued; mid-morning she took a break and checked her blood pressure which was at 161/99 and it reduced, as I understand it, a few minutes later. Her evidence then continued, the mother having privately communicated to the judge that she was ready to continue.

On day 3 the mother felt in need of a break and left court and her mother’s evidence was interposed. The mother was not present to hear it, but no doubt her lawyers will have updated her as to what was said. The mother attended hospital that evening, arriving at about 5:00pm for her blood pressure to be monitored and was discharged some two hours later.

On 8 September (day 4) the mother came to court saying that she felt okay to continue her evidence. However, during the morning she felt unwell again and left court to observe the rest of the evidence by a link from her barrister’s chambers in the Temple. The judge accepted the father's counsel unprompted suggested that her few remaining questions should be given to the mother by way of oral recording for her to answer remotely at a time convenient to her. Thereafter the maternal grandfather and the paternal grandmother gave their evidence.

The mother gave her answers from her counsel’s chambers by way of recorded evidence on 13 September. This was an acceptable way forward to all parties and her evidence concluded.

The remaining days of the hearing on 26 and 29 September were filled with the evidence of the father and submissions.

The judgment was handed down on 11 November 2022. It is very detailed, consisting of 209 paragraphs over 43 pages.

The issues in this case on appeal relate to the giving of the mother's evidence only.

The mother sought permission to appeal and to stay the Recorder’s order. A stay was granted by Mostyn J and has been extended right up until today's hearing. Because the Grounds of Appeal significantly attacked the way that the court conducted the fact- finding hearing a transcript was ordered of the entire hearing. It was the late application for that transcript, together with a delay in its production, that has largely led to the unacceptable delay in hearing this appeal. There have been what seem to me to be an unprecedented number of directions orders, 10 in all of which eight were made by Mostyn J.

The judge’s last order is that of 30 June 2023. He left alive the mother’s Grounds of Appeal Numbers 1, 2, 3, 5 and 7 and dismissed 4 and 6 as totally without merit. He sought to confine the ambit of the appeal hearing in ways that have not always turned out to be easy to apply.

His order reads as follows:

At this hearing I dealt first with ground 7 which reads as follows:

Mostyn J refused permission to appeal on this ground, but did not certify it as totally without merit, thus permitting Dr Proudman to renew her application for this ground to be allowed. I dealt with this as a preliminary issue.

Dr Proudman's argument fell into two parts. First, she argued that a judge should either make an order that a finding was proved or was unproved. A judge should not go on to say that the finding sought was false or untrue unless that was a finding that was specifically sought by the respondent.

This argument seems to me to be plainly wrong. A judge conducting a fact-finding may find that an allegation is made out on the evidence and proved. The judge may also find that on the balance of probabilities, he or she is unable to determine the truth of the allegation. If that be the case, the judge will conclude that the allegation is unproved. But if the judge is satisfied that the allegation is wrong and has no foundation in fact, the judge must have the capacity to say that the allegation is untrue.

It would be wrong if a judge was straitjacketed into only saying that an allegation was proved or unproved. That would permit the person making the allegation to say that they only failed because the judge was not satisfied on the balance of probabilities when in fact, a judge had found that the allegation was completely false. The judge must be able to make the finding that he/she thinks is appropriate on the evidence seen and heard. It is important, also, for the child that clear findings are made when the evidence permits.

The second limb of the argument is that unless the allegation is specifically put to the complainant that she has deliberately falsified the allegation, the judge is not allowed to go on to say that the allegation is false. I do not accept that argument either. It is only during the course of the testing of evidence does it become apparent that an argument is false. The judge heard all the evidence and concluded that in one regard in particular, the mother had deliberately misled the court, namely by alleging that the father had told her that he had been sexually abused by his parents and then asked her not to repeat the allegation. The father had denied he ever said any such thing.

Plainly, one party was telling the truth and one party was not telling the truth. The judge heard the evidence of the parents on this issue and came to the clear conclusion that the mother had made up this allegation. It was clearly put to the mother that the allegation was untrue and that she must have therefore fabricated it. In my judgment, there can be no criticism of the judge for reaching and expressing a conclusion on this allegation. There was no injustice to the mother in the judge making a finding on an allegation which was at the core of the case.

In the circumstances I therefore refused permission to the mother to appeal on this ground. That left the mother with her allegations set out in grounds 1 and 3, which sensibly should be taken together, and ground 2 and ground 5.

I can deal with this quickly. The ground asserts that it was a procedural irregularity not to hold a ground rule hearing prior to the fact-finding hearing.

PD3AA FPR 2010 reads as follows:

Dr Proudman argues that there was no mandatory ground rules hearing pursuant to r.5.2 PD3AA, FPR 2010. In her skeleton argument she quotes the preamble to the order of Recorder Howling KC on 25 July 2022. She does not mention Paragraph 25 which I have quoted at paragraph 8 above. If Mostyn J had been referred to the order in full, it seems to me unlikely that he would have granted permission on this ground.

There plainly was a ground rules hearing at the PTR, so that participation directions were therefore already in place for the fact-finding hearing. The judge rightly reconsidered them at the start of that hearing and she made it clear in addition that there would be frequent breaks and the mother's blood pressure would be monitored. The argument that there was no ground rules hearing is unsustainable.

Dr Proudman goes on to argue that the rules that had been established were not complied with. This has been a difficult area. Dr Proudman was not instructed at first instance and has only come into the matter on appeal. Mrs. Anstey, who represents the father, was trial counsel. She and the mother's solicitor have different recollections.

The trial took place in a courtroom on the lower ground floor level of the main building at the Royal Courts of Justice. It is agreed by both parties that a screen was provided throughout for the mother's use. The courtroom has two sets of doors so that each party could enter by a separate door. There is a dispute as to whether or not this happened, but plainly it could have been put in place with no difficulty.

The mother complained she did not have a separate entry into the court building. The Royal Courts of Justice has many different entrances and this could easily have been arranged. The transcript shows that counsel were in communication by text to ensure that the way was clear when the mother arrived.

The only real complaint that can be made is that they were not provided with separate waiting rooms. As it happens, the lower ground floor of the central block does not have any waiting rooms. It is a very long corridor with various alcoves which could easily have been used. There are waiting rooms in other parts of the building which could have been made available. If this was a genuine issue at trial, it should have been raised with the judge, but it never was. I do not accept that any lapse in compliance with the participation directions in some way makes the trial process unfair or put the mother at a disadvantage.

Grounds 1 and 3 were grouped together by Mostyn J. Ground 1 reads:

Ground 3 reads:

The direction of Mostyn J refused the mother's permission to appeal these grounds in so far as they amount to a criticism of the Recorder’s conduct. Instead, what he directed was that the appeal court should consider whether there was an independent inquisitorial protective duty to override the mother's acceptance of her willingness and desire for the hearing to continue and should she have adjourned the case until after the birth or devise alternative forms of questioning. The judge directed that there should be PTA on this limited basis, “although I am doubtful that it will succeed.”

It is simple to say that the issue can be recast into the terms of whether the court should have taken its own decision to adjourn the hearing and/or devise different forms of questioning, regardless of what the mother had said. But, in practical terms it has proved very difficult to implement Mostyn J’s ruling because the argument inevitably involves assessing the decisions taken by the Recorder and the mother criticising them.

It is important to break down the individual areas of complaint which comprise ground 1. First, it is said that the judge was wrong to hear a fact-finding hearing when the mother was in a late state of pregnancy, contrary to judicial guidance.

Dr Proudman refers me to paragraph 15 of F (A Child: Adjournment) [2021] EWCA Civ 469:

It is important in looking at this case and the other authorities to which Dr Proudman referred me, to examine the individual facts of the case. In F the mother wanted an adjournment of care proceedings. The judge refused to adjourn. Before the trial was due to begin, she appealed his decision to the Court of Appeal, who allowed the appeal. This was a very different case to the one that I have to consider where a mother was actively keen that the hearing should proceed with her full participation.

It is also important to look at the equal treatment book with care. It is correct that it advises that a woman in the last month of pregnancy should not be expected to attend a court or tribunal unless she feels able to do so. It is important to underline the words “unless she feels able to do so”. This mother was keen to do so, and Dr Proudman is wrong to assert on her behalf that her attendance at court was contrary to judicial guidance. It was in accordance with her wish. It would be patronising for the court to ignore that fact.

I will return to the question of the mother’s ability to give best evidence. The next allegation relating to ground 1 was that the mother was admitted into hospital during her oral evidence. This is true to the extent that on the third day, she did attend the outpatients’ unit for her blood pressure to be monitored and was discharged within about two hours. She returned to court the next morning to resume her evidence.

The next allegation is that the judge requested the mother to take her blood pressure when she felt it desirable in the witness box whilst her alleged abuser was in court. In fact, the mother's solicitor assisted her in taking her blood pressure in court on at least some occasions. This was done behind the screen. The solicitor can be heard on the tape telling the judge what the blood pressure results were. At no stage did the mother or any member of her legal team, say that the mother was uncomfortable with the experience or suggest a different regime.

When the hearing started on 5 September the mother was 33 weeks pregnant, well short of the last month of pregnancy. But for the recorded answers which were provided the following week, her evidence concluded that week. She gave birth at 39 weeks on 16 October.

It is true that the mother's evidence, if the recorded answers are included, lasted in total for eight days of which the period 9-12 September were non-sitting. The mother had a number of discussions with her legal team, as the transcript reveals, including in relation to the matters that comprise ground 5. The judge made it clear that the lawyers could speak to their clients throughout the trial even if they were in the witness box, save as to matters relating to their evidence. Once again, there was no complaint made by the mother's legal team about this situation. If the mother now asserts, as she does through Dr Proudman, that she could not speak to her legal team about other matters, that is not supported by the transcript.

During the course of the appeal hearing, the mother has sought to enlarge on ground 1. She complains that the trial was unfair in that the mother was not able to be present during the evidence of her parents, one of whom gave evidence on day three and the other on day four. On day three, the mother was on her way to hospital having felt unwell, and on day four, the mother was listening from her counsel's chambers. Both gave their evidence in the absence of the mother with her knowledge and approval.

In the way that has become habitual in these cases, the mother has filed a lengthy statement describing the effect of the trial process upon her. She says that the combined effect of the absence of the special measures that should have been in place, the high blood pressure that she was suffering from, the interposition of evidence that she missed, the vulnerability that she felt as a result of the abuse that she suffered during the relationship, the fact that she was having to give readings from the witness box and that her condition made it impossible for her to give her best evidence. The father's response is to say that the court must look at the transcript.

Throughout the trial and before, the mother was represented by experienced specialist counsel and had the same solicitors as she still has. Not once was any complaint made by her or by them on her behalf. During the trial process and at every stage when asked, the mother confirmed that she was all right and wanted the case to continue. At any stage when her blood pressure was high, the court granted an adjournment to allow it to reduce to normal. Repeatedly, the judge made it clear that the health of the baby must take priority and that if the case needed to be adjourned, it would be.

In her statement the mother recounted one important piece of information not found in the reports that she annexed, which was that she was advised by her medical team that she was fit to participate in the forthcoming four day hearing, of which she was expected to be in the witness box over a significant part of a 2 day period.

Dr Proudman took me through a short tour of various cases in which she had appeared, only a couple of which need reference. In GK v PR Peel J said:

CM v IP [2022] EWHC 2755 (Fam) was a case heard by Morgan J who said this:

Again, it is important to look at the facts in those cases. In GK the mother spent the second day of the two day case listening to evidence from her hospital bed. In CM there had been no ground rules hearing and none of the measures that the mother had requested were in place.

It can be dangerous to extract principles from cases which have such different factual backgrounds.

The difficulties facing the judge should not be overlooked. This was a long, outstanding case fixed for four days. The mother wanted the case to continue. She was plainly an intelligent woman. She instructed experienced counsel and solicitors. Her wish that the case should continue is not conclusive of whether it continues but is an important relevant factor.

If a judge was to be confronted with a party whose health condition made it visibly undesirable to continue then the court would have to adjourn, even if it meant an adjournment for many months. But this was not such a case. This was a case of a litigant who wanted to and felt able to continue and demonstrated no sign that she was not able to continue, given breaks when needed.

The judge took a pragmatic way through the difficulties. On the two occasions that the mother was not herself in court, the judge dealt with the evidence of other witnesses. They were her parents and paternal grandmother, all of whom had filed statements, and the mother knew what they were going to say. She took no objection to the course that was taken and neither she nor her lawyers asked to adjourn so that she could hear them. It was an agreed and sensible use of time.

The court has a mandatory duty to ensure that a trial is conducted fairly and that a vulnerable party is properly protected. I approach with some caution the mother’s complaints about how she felt about the process, in circumstances where her complaints are so different to what was said, or not said, at court. I also bear in mind the schedule prepared on behalf of the father, which sets out his response to the appellant’s statement and which by reference to the transcript casts doubt on many of the assertions made by her.

The question posed by Mostyn J is whether the Recorder “is to be fixed with an independent inquisitorial protective duty to have overridden [the mother’s instruction to continue] and adjourn the case until after birth”.

The mother says that the court did have that duty in the light of her vulnerability, high blood pressure, fact that she was giving BP readings from the witness box, went to hospital, missed a chunk of the evidence, the length of time that she spent in the witness box and the overrunning of the case.

I accept that there will be cases where the court has a duty to override the desire of a litigant to continue with the case. In such a case, it is likely to be clear that the party is unable to do themselves justice or is physically or psychologically not well enough for the case to continue. In this case the judge took great pains and trouble to ensure that the mother was well enough to continue and wanted to continue and the answer was always in the affirmative.

I do not doubt that the court does have “an independent inquisitorial protective duty” but I am satisfied that it carried out that duty by establishing participation directions and keeping them under constant review. I do not accept that in this case the judge’s protective duty required her to override what the mother and her legal team were saying to the court. At every stage the court complied with the medical advice that the mother had been given and what she wished.

Whilst the judge might have stopped the hearing, she was not, in my judgment, under any obligation to do so.

I turn now to ground 3. At no stage did the appellant seek an alternative form of questioning either before or during the hearing. The appellant made it very clear that she wanted to give evidence in the courtroom. It was in fact counsel for the father who suggested the alternative form of questioning and the mother who was resistant to it. The judge agreed that the mother would give her final evidence by way of answers to pre-recorded questions in the chambers of her counsel at the earliest opportunity.

The mother accepts that she went into the four day hearing expecting to be in the witness box over a significant part of 2 days. Because the first day started late and the breaks that were needed, and because the sheer number of allegations the mother raised, her evidence took longer than had been anticipated. When her evidence remained unfinished on day 4, the judge imposed a different form of questioning on the mother, despite her request to the contrary. I cannot see how there can be criticism of the judge in failing to apply an alternative means of questioning when in fact that is exactly what she did.

The judge was wrong to strikeout allegations of sexual abuse and put undue pressure on the mother to remove allegations of sexual abuse from her Scott schedule whilst in the midst of her oral evidence, which was a procedural irregularity and contrary to PD12J.

Once again, it is important to look at exactly what happened. The judge was confronted with a schedule prepared on behalf of the mother, which far exceeded that which had been permitted by the court.

I put to Dr Proudman that a court cannot be expected to make findings on every allegation of domestic abuse in all cases. She did not accept that. She said that the court needs to grapple with every allegation of abuse, as they were all relevant to the question of the impact upon the mother and the child. If the mother was the victim of abuse, then there is a heightened risk to her and the child, and the judge should not unilaterally and arbitrarily have decided that the allegations should be pruned. The allegations of sexual abuse were relevant to the child's welfare and should be heard as they were relevant to risk.

It is therefore necessary to set out what they were:

The judge on day 2 said that she could not see the relevance of the first allegation. Dr Proudman did not accept that it was not a relevant allegation. She says that it illustrated a pattern of behaviour on the part of the father and goes to the whole issue of whether or not the mother could trust the father. It was an important allegation which the judge should have dealt with.

A study of the transcript shows the way that matter developed. The judge wished the mother to be selective about her allegations as set out in sections 3 and 4 (see paragraph 5 above). During the course of the hearing, there was debate about the number of allegations to be determined. The mother offered to forgo the allegations of sexual abuse of her to be replaced by the allegations set out in Section 3. To try and curtail further discussion, the judge eventually determined that she would leave in all the allegations under Section 4, save for the issue of the father’s virginity.

Later in the hearing, the mother, having discussed the matter with counsel, elected not to pursue the allegations of sexual abuse of her.

Mostyn J granted permission to appeal on this ground, quoting “Again, I doubt it will succeed.” Having been referred to the transcript and in particular the passage where the mother, having discussed the matter with her lawyers, chose to abandon section 4, I do not accept that the Judge failed in any way to deal with the allegations.

In my judgment, the judge was fully within her case management powers to take the view that the question of whether or not the father said he was a virgin was irrelevant to the issue of risk to the child or the mother. I do not accept the principal argument put by Dr Proudman in this respect that any allegation has to be determined in order to satisfy the requirements of H-N [2021] EWCA Civ 448.

The court is under a duty to conduct a hearing that is proportionate and relevant. It cannot let a hearing develop into a rummage through every aspect of the parties’ lives together. Where the complainant alleges that an act amounts to abuse the court must have the power to be selective and to choose those allegations which are material and, above all, which impact upon the welfare of the child.

It follows from all this that I do not accept the arguments put forward on behalf of the mother. I take the view that this very difficult hearing was conducted fairly and in accordance with the way that the mother wished, given her condition. I do not accept that her vulnerabilities were not properly taken into account, and nor do I accept that the court failed in its duty to protect her. I have no doubt that the case was a great strain for the mother. Everyone appreciated that. It does not follow that an adjournment would in any way have reduced the strain upon her. She was entitled to take her own view as to whether the case continued or not. The judge always made it clear that the health of the unborn child must take priority and at all times the advice of the mother's treating team was followed.

In all these circumstances the appeal is dismissed.

A tragedy of this case is that in the last two years, the child has seen his father on only one occasion since July 2021, namely in February 2022. The judge had made a detailed order in December 2022 to restart contact. That has all been stayed by order of Mostyn J.

The consequence of the dismissal of the appeal will be the removal of the stay. I have considered simply reimposing the contact order made by Recorder Wood. I am told that the virtual contact by way of video continues to take place twice per week.

The order of the judge provided that after video contact there should be one hour of contact twice a week in Week 2, followed by two consecutive weeks of two hour contract. This was then to be extended over a period of many weeks leading to overnight contact finally starting in week 13.

In my judgment, the proper order would be to say that there should be one hour of contact on a Saturday and Monday as provided for in the order for Week 2, and that it thereafter should be extended in accordance with the order of the Recorder. I anticipate that some changes are likely to be needed because I am told that the child has now started nursery school. If that is the case, then the parties should seek to arrange an urgent hearing before the Recorder.

The parties are to send in their written submissions as to costs limited to 6 pages each. The submissions will need to cover the issue of principle as to whether a costs order should be made, summary assessment and enforcement.

I also require the parties to explain to me how it was that the court made an order for transcripts of the whole of the evidence for six days at public expense in circumstances where, by judging from the cost schedules provided, the parties were well able to pay for it themselves.

Those submissions should be filed by 18 September 2023 and I will deal with them in writing.