Case No: B4/2011/2538,
B4/2011/2538 (A),
B4/2012/1148
Neutral Citation Number: [2012] EWCA Civ 1923
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL COUNTY COURT
(HIS HONOUR JUDGE HOROWITZ)
(HER HONOUR JUDGE COX)
(HIS HONOUR JUDGE RICHARDS)

Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 15th November 2012
Before:

LORD JUSTICE McFARLANE

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IN THE MATTER OF L (Children)

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(DAR Transcript of 
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Mr Bernard Limbrey (instructed by Black White Solicitors) appeared on behalf of the Applicant Mother

The Respondent Father appeared in person

Jillian Hurworth (instructed by Daniel and Harris) appeared on behalf of the Respondent Children by their Guardian

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Judgment
Lord Justice McFarlane: 

1.	The court is hearing three separate applications for permission to appeal made by  MML, who is the mother of two children, J, born on 2 September 2006, and therefore now aged six years old, and M, born on 19 July 2009, and therefore three.  The father of both children is her former husband, MM.  Nothing I say in this judgment, or that has been said in the course of this hearing, is to identify either child as being the subject of proceedings in relation to their welfare and is not to identify either parent as being the parents of such a child.  The applications for permission to appeal arise out of long-running private law proceedings in relation to the welfare of both boys, but in particular the trigger event that led to the court proceedings occurred on 17 November 2009, when the mother claimed that young J, who was only aged three at that stage, had said things to her that indicated that he had been sexually abused by his father.  Contact was limited or stopped.  The father applied for contact in March 2010, and it has been those proceedings, and the progress of them through the court system, that leads to these various applications for permission.  

2.	The allegations, unfortunately, were not the subject of any full judicial hearing until August 2011, when HHJ Horowitz conducted a fact-finding hearing.  He concluded that the allegations made of sexual impropriety were not established, and the primary application that the mother makes today is for permission to appeal HHJ Horowitz’s conclusions in that regard.  But, on the way, she has issued in a timely manner, first of all, an application for permission to appeal an order of HHJ Cox of 26 September 2011 (that is appeal no. 2011/2538) and, secondly, orders of HHJ Richards on 4 April 2012 (appeal no.2012/1148).
3.	The two applications that precede the August hearing have never been before a Lord or Lady Justice of this court prior to the hearing before me last week and then again today.  It is not apparent to me why that is the case.  Nonetheless all three cases are before me today, and it is right that I deal with the earlier matter first of all, and shortly.  The primary focus of the mother’s Notices of Appeal in relation to each of those two orders was upon the two judges’ (HHJ Cox and HHJ Richards) determination that there be some interim contact to the two boys in the period prior to the fact-finding determination.  

4.	Insofar as she does seek to appeal those matters, to my mind they are very much water under the bridge now and it will not profit anybody for the full Court of Appeal now to hear an appeal in relation to them.  No matter of law or principle is raised.  It is a challenge to the exercise of the judge’s discretion.  I therefore refuse permission to appeal in relation to the order of HHJ Cox of 26 September 2011.

5.	HHJ Richards not only dealt with interim contact on 4 April, but also made certain directions for the conduct of the fact-finding hearing.  In particular, he directed that the only live oral evidence should come from the two parties.  The consequence of that was that two expert witnesses, Dr Weir and Dr Furman (and I will explain their role in more detail in due course), were simply to be taken on paper from the written reports that they had submitted and would not be subject to cross-examination at the hearing.  In addition, there were a range of witnesses, lay and professional, who had had some involvement in the case, in particular the social worker and police officer involved in the original child protection referral that took place in November 2009.  Their contribution, similarly, was to be on paper and not by way of oral evidence, and the mother does seek to challenge that aspect of the case.  Therefore I will consider the points that she seeks to make in that regard, as part of looking at the whole process, as it has turned out to be, leading up to and concluding in the judgment of HHJ Horowitz.  I make that latter observation because, as is well known, any challenge based on the fairness of the court proceedings under domestic law or under Article 6 of the European Convention on Human Rights is not a challenge that will succeed by cherry-picking odd points from the determinations of the trial judge as the process unfolds.  The Court of Appeal will have to look at the process as a whole to determine whether it has been fair or not.

6.	Before turning to the criticisms that the mother makes in detail, it is necessary to give some context to the allegations.  I have indicated the background, but there are a number of unusual features to it.  It was established, and indeed admitted by the father, that some week or two before the child, J, said anything to his mother in November 2009, he, the father, had inserted a finger into the child’s anus.  The father is a medical practitioner.  He was, he says, concerned that the boy may be suffering from constipation, and he undertook what is referred to in the judgment as a digital rectal examination.  It was the father’s case that it was this procedure which, in terms of sexual content, was an entirely innocent, and he would say justified, process that led to J saying whatever it was that he may have said some week or so later.

7.	It is also a factor in the case that the father made plain to the police officers who first investigated the case, and then to the court, that he had for some deal of time been concerned about the clarity of his own sexual orientation and had by that stage come to the fairly settled view that he was homosexually orientated, and this, too, was a feature in the case.

8.	The evidence before the judge, as well as that of the lay parties, and the paper trail that recorded the police and social work investigation, included expert evidence from Dr Weir, who is, as I gather from the judgment, now a retired consultant psychiatrist.  His report was aimed at the issue of the reliability or otherwise of what J had from time to time said about these matters.  The second expert, Dr Furman, is a paediatric gastroenterologist and he was brought into the case to comment upon the father’s explanation of having undertaken a digital rectal examination.

9.	The conclusion of Dr Weir, to record it in very short terms, and of course the judge sets it out in more detail, was that the complaints of the boy might relate to actual events of a sexual nature, but he said, and this is to quote the judge: 

“...it was equally possible...that the allegations have arisen as a result of suggestive questioning and anxiety.”

And he gave further advice as to that matter.  The evidence of Dr Furman was that medical practice in this country by expert gastroenterologists would, as I read the judgment, never have contemplated digital rectal examination in this way as being advisable for a young child who might be constipated.  In any event, it is not current practice now, but equally the doctor did not go further than that and indicate it was ruled out, as it were, by medical thinking.  His evidence, therefore, was to the effect, to quote the judge, that he did not think that a digital rectal examination was “appropriate”.

10.	HHJ Horowitz evaluated such evidence as was called.  He heard the two parties give evidence, and it seems that he was impressed by the credibility and consistency of the father in his description of these events.  And at paragraph 31, he came to the description of his conclusion by summarising the submissions made by counsel for the child, Ms Jillian Hurworth, I pick up the judgment halfway through paragraph 31: 

“She said that a plausible or possible explanation was that [J] had described what father had done, mother had over-reacted and from thereon it all goes running, and run it does, with repeated questioning of the child, the total collapse of the marriage, police intervention which does not satisfy the mother and inordinate delay in bringing this matter to court.  I find that an astute analysis and I would go a little further and say that it seems to me -- and I have material so to find, and do -- that between the day of the digital rectal examination, to use that term, and [J] saying what he did to the mother, I (a) bear in mind the fraught atmosphere between the adults, (b) bear in mind -- and so I find -- that there was a defecation problem, both parents considered that constipation was a possible problem, to which I add this, that [J] would have been aware that his bottom, and its behaviour was a matter about which the adults were aware and concerned.”

The judge then goes on to make more detailed findings, the effect of which was to find not proved the detailed allegations that the mother sought to establish.

11.	The appeal that the mother seeks to launch is supported in full by a detailed skeleton argument prepared by trial counsel on her behalf, Ms Lorenzo.  Unfortunately, due to an accident, Ms Lorenzo has been physically prevented from attending court.  Her place was taken at short notice last week by Mr Bernard Limbrey of counsel.  He and I were in some difficulties in that he had not been supplied with some of the key documentation, and I therefore adjourned the oral hearing to today.  Mr Limbrey has had the benefit, first of all, of having access to all of the various drafts of the various Scott schedules that were prepared in the run-up to the fact-finding process, and also he and I have taken delivery of the mother’s “exhibits bundle”, which has been numbered to be part G of the court bundle, which the mother says should have been before HHJ Horowitz.

12.	It is right to say that each of the points the mother seeks to make are procedural.  She does not seek to attack the core finding of the judge on the basis of the material as it was before him.  This is not an appeal that she would seek to run on the basis that the judge was plainly wrong in coming to the conclusion that he did, on the evidence as it was before him and on the basis procedurally as the case was set up for hearing before him.  The grounds that she wishes to pursue are about how that set-up came to be and her criticisms of it.

13.	Taking the points in turn, in the manner that Mr Limbrey has set them out in his skeleton, which in turn adopts Ms Lorenzo’s order, the first point is about the Scott schedule.  Having been through a substantial paper chase in this regard, Mr Limbrey has very helpfully brought clarity to matters, and I can deal with this very shortly.  There were some five different versions of the Scott schedule prepared for the court.  One was prepared by the mother and is dated 25 November 2011.  The mother’s complaint in the Notice of Appeal is that that Scott schedule was not before the court in any way at the hearing, and it was a mystery to all at the hearing last week as to what had happened to that document.  The court enquired how it had gone totally missing if it had been prepared by the mother on her computer.  It then became apparent that it still sat as a Word document on her computer.  I now have a printout of it in my hand, and that shows from the properties log from the computer that it was created on 25 November and has not been modified since that date.  The log, interestingly, says that it was never printed out.

14.	Mr Limbrey has compared that document with the Scott schedule that was before the court.  That sits at page B256 onwards in the bundle.  The only difference Mr Limbrey can detect is that there are two additional findings of fact included in the Scott schedule that was before the judge, namely numbers 3 and 5, but otherwise it replicates the mother’s document.  And indeed, looking at it, albeit just to take snapshots, not only does it replicate the basic allegations, it actually replicates the precise words used by the mother in the two or three places I have looked in the document, in particular including a slightly unusual use of English and it replicates the mother’s apparent summary of what the father said.

15.	I am utterly satisfied that there is nothing in this point about Scott schedules.  Almost word for word, the document the mother produced was before the judge, and if it was different, it contained two additional allegations for him to consider, and therefore from the mother’s perspective was not a detriment to her.  Mr Limbrey says her point is that it was not her document that was before the judge.  I really question what insight the mother might have to the process if that is the only point she has now spent quite a deal of time trying to establish before me.  There is absolutely nothing in it.  The key allegation that the judge was to consider was the one that he did consider, which arose from what did or did not happen between the father and J in November 2009.

16.	The next matter raised is in relation to a photograph that did or did not come into the guardian’s possession and was or was not before the judge.  Nothing seems to have turned on that document in the judge’s judgment.  He records the to-ing and fro-ing and the content of the photograph.  It certainly did not play any part, as I read the judgment, in the judge’s determination.
17.	Moving on to the oral evidence that was called, as I have described, HHJ Richards set the hearing up on the basis that none of the professional or expert witnesses would give live evidence.  Two separate points are made.  First of all, in relation to the expert witnesses, Mr Limbrey says that, with regard to Dr Weir, the use of veracity experts is, in Mr Limbrey’s submission, a controversial matter and should be taken carefully by a court, and that the cross-examination of Dr Weir, and then also Dr Furman, might have caused the doctors to alter their view or the court to be aware of factors around their view that might have called it into question.  No second expert was available to challenge the view of either of these two, Dr Weir and Dr Furman, and so the hope or expectation is that thorough questioning by mother’s counsel would have caused them to change their views.

18.	 Whilst I understand the submission, it is out of proportion, in my view, to the result that the mother says would have obtained.  Here, the judge took into account the ambivalent view of Dr Weir, who quite properly indicated the psychological matters that might be in play in a case such as this.  The judge also took account of Dr Furman’s evidence, which was not to support the father’s activity as being part of mainstream medical practice, but to show matters in the round.  In the end, the judge decided the case primarily on the credibility of the father and the view he took of that evidence, and the calling of the experts, in my view, was not a material irregularity in the case.

19.	The time for challenging that case management decision was in April 2012, when it was made.  The mother seemingly referred to it in the grounds of appeal which she put in, but that appeal, for whatever reason, was not progressed, and Ms Hurworth tells me (she being counsel for the child) that the other parties and the judges were never made aware of the mother’s pending appeal in relation to that issue.  Judges in the family courts enjoy a wide margin of discretion in case management decisions, and it is in my view unarguable to submit that the case could be put before the full Court of Appeal, and that that court now would say that the determination of HHJ Richards, and the endorsement of it by HHJ Horowitz, was outside the margin of discretion.

20.	The point made about other professional witnesses, social workers and police constables, is really very narrow.  Mr Limbrey says that had they been called, they could have told the court about the father’s demeanour when he was first told of these allegations and interviewed, and also the detail of the interview could have been produced, and that would have allowed the court and the mother’s counsel to compare and contrast what the father said later about these matters.  We have been taken to, in the court bundle, the material that we have at page C88, and then at C27, which are first of all a handwritten note of the interview and then a typed-up narrative based on that note.  Nothing there indicates that the father said anything in the interview that was different to his later account, and there is no observation by the officers of any notable aspect of his demeanour.  

21.	After he had sat down, Mr Limbrey was encouraged to stand up again to add to his submissions.  The mother had instructed him that there was a handwritten admission by the father in the court bundle.  Some time was taken trying to track this down, and it turned out she was referring to page C88, which is the officer’s handwritten note of the interview, and the only words that Mr Limbrey could point to were these: “Placed finger into son’s bum.”  That, of course, is what the father has always said that he did in the course of a medical procedure.  In no way is it an admission, and the fact that the mother characterised it as that and instructed her counsel to draw it to my attention, I am afraid only underlined for me the lack of insight that the mother has to the reality of the strength of the evidence in this case.

22.	This was an important allegation.  It, if proved, would indicate very serious conduct.  If proved, it would indicate a significant risk to children having contact with the father.  It warranted, and in my view got, a thorough judicial evaluation at a hearing where the mother was represented by counsel, and at which a wealth of evidence was available.  In passing, I record that the substantial bundle of exhibits that the mother relied upon and complained was never before the court, but was produced almost at the moment before the judge gave his handed-down judgment, has now been looked at by Mr Limbrey, and he tells me that there is no point that now arises from any document in that bundle to the effect that it contains any material that should have been put before the judge.  Again, that indicates to me the soundness of the process as it was before the judge.

23.	HHJ Horowitz’s judgment indicates a descent to detail and evaluation which is proportionate to the seriousness of these allegations.  I find nothing in the process before the judge, or in the judge’s judgment, to indicate any unfairness or irregularity in the trial.  I, for my part, have taken seriously the role of auditing what went on in the lower court and have given the mother probably far more latitude than other judges in this court would give her to present her case to the court in support of her applications for permission to appeal.  Having now undertaken that exercise, I am absolutely satisfied that there is no possible ground for appeal.

24.	I therefore refuse all three applications for permission.

Order:  Applications refused.