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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AA v NA & Ors [2010] EWHC 1282 (Fam) (10 June 2010) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2010/1282.html Cite as: [2010] EWHC 1282 (Fam), [2010] 3 FCR 327, [2010] Fam Law 913, [2010] 2 FLR 1173 |
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This judgment is being handed down in private on 10 June 2010. It consists of 33 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
AA |
Appellant |
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- and - |
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NA - and - Kab, Kar and Qad (by their Children's Guardian) |
1st Respondent 2ndRespondent |
____________________
instructed by Huggins & Lewis Foskett Solicitors) for the Appellant
William Metaxa
(instructed by McMilan, Hamilton & McCarthy Solicitors) for the 1st Respondent
The Guardian did not appear and was not represented
Hearing dates: 24 – 26 May 2010
____________________
Crown Copyright ©
Mr Justice Mostyn :
Introduction
Background
Appeals against findings of fact
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed. The limited role of the Court of Appeal in such cases was explained by Cumming-Bruce LJ in Clarke-Hunt v Newcombe (1983) 4 FLR 482, where he said, at p. 486:
'There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word "Plainly". In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.'
If there is indeed a discretion in which various factors are relevant, the evaluation and balancing of those factors is also a matter for the trial judge. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: see G v G [1985] 1 WLR 647, [1985] FLR 894. Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter. On that ground alone, and even assuming that the principles applied by the judge were indeed correct, I would allow this appeal.
Although it is possible to appeal against a finding of fact, it is notoriously difficult to succeed in so doing. Where findings of fact are made based on the demeanour of a witness, the appeal court will seldom interfere because the trial judge has the special advantage over the appellate judge.
Before we go to the three issues, we must say a few words about the appropriate approach of the court to the issues so far as they are appeals on fact. As Mrs Talbot Rice rightly reminded us, an appellate court is severely handicapped in judging the credibility of oral evidence, even though transcripts are provided, because it has not heard and seen the witnesses giving evidence nor observed their demeanour. She has referred us to statements in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, [1955] AC 370 which made it clear how very difficult it is for an appellate court to interfere with a finding of primary fact founded on the credibility of a witness. Although that case suggests that it may be easier for an appellate court to interfere with an inference drawn from primary facts, that must now be read subject to the cautionary words of Lord Hoffmann in Biogen Inc v Medeva plc (1997) 38 BMLR 149 that specific findings of fact are inherently an incomplete statement of the impression made on the trial judge by the primary evidence and that such findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. It is accordingly necessary for this court to treat the judge's findings with appropriate respect. It must be very slow indeed to interfere with any such findings. That, however, does not mean that an appeal on fact can never succeed. If this court is convinced that the judge was plainly wrong, then it is its duty to interfere.
i) His conclusion was demonstrably contrary to the weight of the evidence, or
ii) The decision making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe.
I would include in the second category errors of principle as to, say, the burden or standard of proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings.
Fact-finding hearings in private law proceedings under the Children Act 1989
The court must ascertain at the earliest opportunity whether domestic violence is raised as an issue and must consider the likely impact of that issue on the conduct and outcome of the proceedings. In particular, the court should consider whether the nature and effect of the domestic violence alleged is such that, if proved, the decision of the court is likely to be affected.
[29] The importance of the Practice Direction cannot be overemphasised and, however experienced the judge, its terms are simply not to be ignored. I repeat: the judge must hear all the evidence. It is simply not good enough for a judge to say he has heard one side, does not think much of it, therefore he is not going to permit cross-examination of the other side of the issues involved, particularly where the safety and welfare of children are concerned. There is no equivalent of the concept of 'no case to answer' in proceedings relating to children: see Re R (Family Proceedings: No Case to Answer) [2009] EWHC Civ 1619, [2009] 2 FLR 83.
[30] Furthermore, in the instant case, I repeat, that both District Judge White and His Honour Judge Sleeman had taken the view that a finding of fact hearing was necessary, and, in my judgment, looking at the allegations made by the mother, they were right to come to that conclusion. Of course, the ultimate result is a matter for the judge, but the judge can only reach that ultimate result, in my view, if he hears both sides and gives both sides a full and proper opportunity to cross-examine.
Burden and standard of proof
If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.
The burden of proof is upon the party who makes the allegations. It is not reversed, that is it is not for the other party to establish the allegations are not made out. It is open to the court to make the following findings:
1. That an allegation is true on the balance of probability
2. That an allegation is false
The burden of proof is upon the party who makes the allegations. It is not reversed, that is it is not for the other party to establish the allegations are not made out. It is open to the court to make the following findings on the balance of probability:
1. That an allegation is true
2. That an allegation is false
The allegations
77. The whole management of the case led to a lengthy, fragmented and unsatisfactory hearing in which the findings made were plainly wrong in the light of all of the relevant evidence.
78. Such are the errors (and F could cite many more in the savage findings made against him) that the only fair outcome is for the court to direct that there be a rehearing of the case, ideally (and subject to the issue of listing) before a High Court Judge.
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
While it is true that, strictly speaking, the overriding objective does not apply to family proceedings, I am quite sure that their spirit, if not their letter, should be borne firmly in mind when deciding whether or not to order a rehearing.
The District Judge's findings
i) First, I will set out a survey of the structure of the judgment below.
ii) Second, I will examine the findings of credibility generally.
iii) Third, I will focus on the seven serious allegations of assault made by M.
iv) Fourth, I will examine the cross-allegations of ill-treatment of the children.
v) Finally, I will examine the balance of M's allegations against F, made both within the Scott Schedule and the later ones, together with the 80 allegations made by or on behalf of F against M.
The structure of the judgment below
Credibility generally
My overall assessment of the M was that she was an open, honest and truthful witness who lived a very controlled life at the hands of the F and his family.
And at para 234(5):
The M's evidence was accurate and truthful and where it was not scrupulously consistent this was not the result of any deliberate desire to mislead the court.
Of F, he held at para 201:
My overall assessment of the F is that he is a clever, intelligent and shrewd man who is prepared to go to any length to preserve the status and well being of his mother and siblings before his relationship with the M and children. I find he has not assisted the court in its proper enquiry and that he has been unhelpful.
And at para 234(1):
The F has deliberately set out to mislead the court through a series of lies and underhand strategies
F's mother was held to be "an unreliable witness"(para 202); Da was not "entirely truthful" (ibid); Ma was "not entirely a truthful witness either" (ibid); Ja's evidence was described as "wholly unsatisfactory, unconvincing, untruthful and designed to mislead the court" (para 204); Jo was described as "an unreliable witness" (para 202).
24. The District Judge correctly observed how often in cases of this type there is a lack of independent objective testimony. It is therefore submitted that the District Judge paid proper regard to those issues in the case where the potential existed for it to be proved to the court's satisfaction that the Father had deliberately sought to mislead the court through the provision of untrue evidence. The court was able to make these findings as set out above.
25. As the District Judge also correctly observed in cases of this nature it is important to assess a witness' evidence as a whole in determining the truth of the allegations. Therefore, having made the specific findings of deceit against the Father and the paternal family above, it is submitted that the court was well within the legitimate ambit of reasonable decision-making in taking the view that, with a small number of significant qualifications, the mother and her family's case was to be essentially believed and the Father and his family's case essentially was not.
1. The F has deliberately conspired with Ja to prevent Ms Donnelly from giving evidence to the court and seriously to mislead the court by allowing Ms Donnelly's unsigned statement to remain as current evidence in the case in the full knowledge that that statement was unsigned and would not be signed.
2. That Ja knew the statement would not be signed in December and that F knew this because Ja told him.
3. The F asked Ja to see if she could re-establish relations with Ms Donnelly before the July hearing because the Mother was pushing for her attendance.
4. The F and Ja conspired together to prevent Suzanne Donnelly's evidence being tested in court when they knew she would not stand by her draft statement.
5. The F and Ja conspired to mislead the court in the production of the original letter/draft statement. The Mother submits that F and Ja together conspired to persuade Ms Donnelly into writing a fundamentally misleading letter. Ja and Ms Donnelly did not have significant conversations over the years about the Mother's inadequate and dangerous parenting.
6. Ja was lying when she confirmed on 26/10/09 that Ms Donnelly would have carefully gone through the details of her letter as a professional social worker putting a document before the court and aware of the seriousness of the issues being discussed.
7. Ms Donnelly's version of the circumstances of the letter being written being correct and that it would have been very obvious to Ja that Ms Donnelly was relying on her for all the relevant detail.
8. Due to her grief Ms Donnelly put her signature to a letter which she knows now she did not know to be substantively true at the time.
The finding in relation to Mr Glowania was, per para 226:
Mr Glowania did not attend court to give live evidence and in the circumstances I attach no weight to the written statement from him. In any event the F evidence in respect of Mr Glowania was very unsatisfactory. I found him to be very uncomfortable with the questions put to him and he was what I would describe as very slippery in his evidence "ducking and diving"
Father's skeleton argument describes the "Glowania and Donnelly" issue as "smoke and mirrors" "diverting" the judge. The main issue for the District Judge was, as it should have been, the parties' credibility in the light of all the available evidence. Having been able to make clear adverse findings about the Father's credibility on a number of matters – all of the greatest relevance to the case – and having also assessed the Mother's credibility, and that of other relevant witnesses, he was then able to make the findings he did. It is accepted by the Mother that the findings made against the Father on these matters were indeed "extremely serious and damaging". The District Judge had little option on what had had transpired before him on these issues but to make the findings he did and place considerable reliance on them when assessing the overall credibility of the parents and when making all the determinations he was asked to make. To describe this as "smoke and mirrors" appears to suggest that Father does not think the adverse findings as to his credibility were of relevance to the court's overall determination on contested matters. Doubtless the Father would have liked the court to consider his allegations against the Mother in the absence of these "extremely damaging" findings: his own misconduct made this impossible.
To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.
On that day the baby was crying a lot and she put her hand over its mouth to quieten it and happened to have a tissue in it.
Equally at about the same time local authority social worker to whom F had reported the tissue incident recorded "[M] admitted putting her hand over her son's mouth when he was crying"
I find that the allegation by the family the M stuffed something into Kar's mouth is itself a knowingly false allegation designed to undermine M's relationship with the children and her case generally.
However in this instance the District Judge did not uncritically accept M's evidence as set out above. Rather, he held at para 234(6):
The M's case is that she did not confess what is recorded to the doctor. I am asked by Mr Metaxa to bear in mind the difficulties, as experienced in the trial, of interpretation, to ask itself why the M, knowing a fuss was being made of a tissue not admit anything to do with the tissue to the social worker and then two months later admit having a tissue in her hand and why should the M vigorously deny putting a tissue in the child's mouth but been happy to admit putting her hand over his mouth? Whilst I consider the M is more likely than not to have said what is recorded by the GP [Regarding tissue incident – said that she covered the younger child's mouth with a tissue to try and calm him down as she was getting blamed for this. Categorically denies wanting to harm the children or herself] on balance I am not satisfied on the evidence before me that the M deliberately placed any tissue in Kar's mouth as alleged by the F and his family. Further I do not find that her conduct to Kar was in any way genuinely dangerous nor do I find that anything done by her represents any ongoing and significant risk to the children.
It follows that in this second instance also the District Judge was not satisfied that M's version of events was proved on the balance of probabilities. The effective rejection of M's evidence in these two important instances does not co-exist comfortably with the otherwise almost Orwellian tone of the judgment: "mother good, father bad".
Seven allegations of assault
i) The letter incident (January 2003)
ii) The food in the bin incident (February 2003)
iii) The shaving foam incident (November 2003)
iv) The dinner place laying incident (undated)
v) The Spain incident (2005)
vi) The coat hanger incident (2007)
vii) The expulsion incident (3 September 2008)
The letter incident
The Applicant had written a letter to her mother which she had not posted. The Applicant accepts that in the letter she had set out to her mother how unhappy she was and the extent to which her mother-in-law was making complaint about her and complaint about her to the Respondent. The Applicant felt very isolated. The Applicant did not post the letter however the letter was discovered by the Applicant's sister-in-law. The letter was written in Bengali and the Respondent was unable to read it however he had his mother read the content. The Respondent became angry as to the matters referred to by the Applicant to her own mother of the Respondent's mother. The Respondent hit the Applicant about her face about 6 or 7 times. After the incident of violence the Applicant was then cursed by the Respondent's mother and by her sister-in-law and brother-in-law.
Under cross examination the M told me she had a diary in which she wrote a Bengali song. The M confirmed she had written letters to her own mother in the past which had been posted by the F but there was one particular letter the M said she had written to her mother which she had not asked the F to post. It was contained within her diary as a loose letter. Jo told her brother that she saw the M writing something which she hid. She and Da then searched in all the drawers and found a diary and a letter. The F gave the letter to his mother to read as it was written in Bengali. The M told me in the letter she had referred to her mother in law as "betty" which I am told translates to mean "lady" and is taken to be disrespectful in the context in which it was written when referring to someone as such. The M said she had written the letter some 2 or 3 weeks before it was found and her reason for writing was to get her "inner feelings" out to her own mother.
The M told me the F asked the M if she still wanted to post it and at the same time he slapped her. She was not going to post it but to rip it up. However the F did not believe her and she said he continued to slap her. She told me she knows her mother in law still has the letter because she had shown her the same on many occasions. In any event neither the letter nor the M diary has been produced. The F denied the events as described by the M in this allegation as ever happening and said there is no diary. The paternal grandmother told me this incident never happened in her house and therefore asked how she could remember it. Further if the incident never happened she did not curse any one.
The food in the bin incident
The Applicant was pregnant with the parties' first child (though not aware at the time). The Applicant was having difficulty eating. The Applicant put one piece of meat and one piece of potato in the rubbish as she had been unable to eat it. The Respondent's mother immediately complained that the Applicant had thrown all the food in the bin. The Respondent came downstairs. The Applicant explained that she had only thrown out one small piece of meat and a piece of potato. The Respondent's mother immediately told the Respondent that his wife was saying that she (i.e. the mother-in-law) was a liar. The Respondent spoke to the Applicant saying "you're calling my mother a liar?" The Applicant was not given an opportunity to reply and was immediately slapped by the Respondent and punched
The M cried when she explained under cross examination by Mr Bailey how she was criticised by her mother in law for throwing food in the bin. When her mother in law complained to the F she told him she only put 1 piece of meat and a potato in the bin had and the F then said "is my M a liar?" He then slapped and punched her. The F said this allegation is not true and his mother told me it is not unusual for food to be thrown in the bin but there was never any argument about it.
The shaving foam incident
Three of the Respondent's family members to include himself were sitting together laughing about something. The Applicant joined in the laugh albeit she did not really know what they were laughing about. The Respondent's sister-in-law (Ja) was holding a tin of shaving foam. Immediately the family turned on the Applicant asking her "Why are you laughing?" The Respondent's sister-in-law hit the Applicant 3 - 4 times with the shaving foam tin. The Applicant stumbled and fell to the floor. The Respondent said nothing; he got and left for work.
The M stood by her allegation that she was hit with a tin of shaving foam by Ja [also known as Sh] only. When Mr Bailey asked the M to explain why she had told the Guardian it was "they" [referring to the F, her mother in law and Ja: see F126 paragraph 95] she had no explanation for the same but was clear in her oral evidence it was only Ja who threw the tin of shaving foam at her. The M was again emotional in the witness box crying when she explained she did not know why Ja hit her with the tin causing her to fall on to the floor. The paternal grandmother again told me this incident never happened and she would never have allowed it to happen in her house. Ja denied hitting the M as alleged or at all saying "I am not a violent person, if everyone is laughing or joking it makes no sense as to why I would hit her"
The dinner place laying incident
The Respondent's brother asked the Applicant to set the dinner table. The Applicant rarely ate with the family as this was not permitted. The Applicant put out four place settings as there were four people in and four people who would be eating. The Respondent's brother asked the Applicant why she had set only four places. He told her to get more places set. The Applicant set another place. He jested with her and told her to get another; then another; eventually the Applicant said there was no point as there were not that many people in the house to eat. The Respondent's brother replied by saying "If you don't do as I said I will hit you". The Respondent's mother actually stepped in and stopped the Respondent's brother. The Applicant went upstairs crying. She complained to the Respondent concerning his brother's behaviour. The Respondent replied to the Applicant saying words to the effect that she either did as his family members asked or she could expect to get beaten up.
The M described an occasion when in the presence of her mother in law she was setting the dinner table for 4 places and she was then told by Da to set more places when there was no need to do so. She said Da kept on saying to set another place and when she refused he threatened to hit her grabbing her hand and forcing her to set another place. The M became upset and went upstairs telling her husband of what had happened to which he replied "what do you expect if you don't do as you are asked, you can expect to be beaten up". The F and his family denied this incident took place as alleged or at all.
Da was very anxious in his oral evidence to refute the allegations against him of violence towards the M by saying on 24/4/09 that "nobody shouts at my sister-in-law - in fact it was the other way round. Everyone was walking on eggshells really". When the accusations against him of violence against Mother were put to him he said: "That is just rubbish...it don't even sound right.... I wouldn't even threaten her. I am careful with people's feelings".
The Spain incident
The family had gone to Spain and stayed in a hotel while the villa was being completed. The Respondent, his mother, his brother and sister-in-law went out from the hotel early each morning returning very late at night and leaving the Applicant alone with the care of the two children Kab and Kar. After four days the family moved from the hotel into the new villa. The Applicant and the two children had to sleep downstairs on the floor. Again the Applicant remained with the children all day. Towards the end of the holiday the Applicant asked whether it would be possible for the Respondent to spend a day with her and the children and to take them to the seaside. The Respondent became very angry and shouted at the Applicant as to her position within the family. Later that evening the Respondent became very, very angry with the Applicant shouting, cursing and swearing. The Applicant was feeding Kab. A further argument ensued, the Applicant accepts that she became very upset and was crying. The Respondent dragged the Applicant physically to the bedroom and held a hand over her face. The Respondent then slapped the Applicant across the face. The Applicant accepts she slapped the Respondent back. Immediately the Respondent's mother said "Did you see that? She raised her hand to her husband?" The Respondent stood in front of the Applicant and tried to slap the Applicant right and left across her face, the Respondent's mother picked up used nappies from the bathroom and threw them at the Applicant and spat at her.
The M described to me from the witness box how during a 2 week holiday in Spain with the F and his mother and brother she was not taken out other than on 1 occasion when they went to McDonalds. She was left with Kab and Kar at the family home which had recently been constructed whilst the rest of the family went out buying things for the property, furniture etc. She told me she felt bad because she was left alone with the children and even worse when they returned because they would go upstairs talking together making her feel left out. The M told me on the day before the return flight the F asked her if she wanted to go to the seaside but she did not wish to do so because it was left right to the end and also her mother in law said to take her. An argument ensued whereby the M said she started to cry.
The M said Da told the F to tell her to shut her up whereupon he went over to hit her but her mother in law stopped him from doing so. The F she said held his hand over her mouth and she pushed the F back. Her mother in law said "did you see what she has done, she raised her hands to her husband" and she went to the bathroom, picked up some used nappies and threw them at her. The F told me there were never any arguments when they were in Spain though there was an incident when Kar aged 9 months fell off the bed and he asked the M why she had left him on the bed alone. He remembered the M pushing but not slapping him. He said he did not provoke her to do so or respond to her pushing him. He said his mother did not throw any nappies which she also denied as did Da.
The coat hanger incident
The Applicant's mother was visiting from Bangladesh. An argument ensued and the Respondent was physically violent to the Applicant. The Respondent used a coat hanger to beat the Applicant. This caused the Applicant to sustain injuries to her face, her arms and her back.
The M cried excessively when she told me she never hit her children with a coat hanger as alleged or at all. Whenever the children were crying family members she said would ask them if she had hit them which in the end resulted in it becoming a routine for Kar to say she had. Under cross examination she told me it was the F who hit her with a coat hanger causing injuries to her arm and not to her face and back as set out in her schedule of allegations [number 8]. The M had no explanation as to why her Scott Schedule stated "…to sustain injuries to her face, arms and her back"
Apparently the M had placed a dress/sari her own mother had bought for her in the F the wardrobe against the F wishes whereupon she says he became angry and threw it on the floor. She then took her own clothes out of the wardrobe and throw them on the floor as she was upset with the F. She would not put the clothes back into the wardrobe when he told her to do so and it was then he hit her with a coat hanger. The maternal grandmother was visiting at the time and the M says she told her of the assault and showed her the bruising she sustained to her arms. The F said the incident as described by the M did not happen. He told me his mother in law [the maternal grandmother] had arguments with her daughter and she apologised to him and to members of his family for the M behaviour.
He said Kab told him his mother had hit him with a coat hanger which he saw on the bed and when he went to speak to the M about this she was in anger and started to throw her clothes in to the middle of the floor. He went onto say the M "went off her head shouting and screaming" and that the M has "a split personality". He said she had hit him, pushed him, scratched his arm and stopped him from getting out of the bedroom and that it "sounds silly but I use to make a run for the bedroom door because I did not want to get into any confrontation with her". The maternal grandmother told me she heard her daughter crying and was told by her the F had hit her with a coat hanger on her head and arm and because her shoulder was black and put some Vicks on it. She confirmed the accuracy of what is recorded by Pervin Khan at section 7.8 at F74 and F75 of the bundle save that she did not tell her the M sustained several bruises [paragraph 7.8.2] but that she had 1 bruise at the top of the arm/shoulder and another on the head.
The expulsion incident
The Applicant mentioned to the Respondent the fact that there was no cereal for the children. An argument ensued. The Respondent's sister sprayed water in the Applicant's face. The Applicant asked the Respondent's sister why she had done this who responded by saying "If I had fire I would put fire in your face" (Zo). The Applicant's sister-in-law then goaded her and wanted her to come near to her so that she could hit the Applicant. The Applicant's mother-in-law grabbed hold of the Applicant, the Respondent's sister then threw a shoe at the Applicant (Zo) and at this point the Respondent came into the area (the Respondent having been upstairs), the Respondent got angry with the Applicant for having talked back to his family. The Respondent's mother told the Applicant to get out of the house. The Applicant said that she would go and went upstairs. The Applicant called the police, the Respondent snatched the phone from the Applicant. The Respondent's mother spoke to the Applicant saying "What makes you think you are allowed to use the phone, nothing in this house belongs to you". The police wanted to speak to the Applicant and she spoke to them. Subsequently police officers attended. Later that day the Respondent's sister, Ma, spoke to the Applicant saying "Why did you not go to the dads". The Applicant took this to mean the police but this actual expression is very insulting in the Bengali language. The Respondent's sister then began pushing and prodding the Applicant in her shoulder (Ma). The Respondent came in to the room and spoke to the Applicant saying "You are a shameless person, why are you still in my house? He went on to say "You see I'll kick you out in a while". The Applicant came downstairs to get some food for the children. Comments were made by other family members "Is that shameless thing still in our house". The Applicant was feeding Qad, the Respondent came in and told the Applicant to get out of the property. The Respondent's sister started shoving and pushing the Applicant again. The Respondent's sister simply asked the Applicant "Why not just go?" The Respondent's sister suggested the Applicant go to her aunt's home. The Applicant was pushed and shoved by various members of the Respondent's family. The Respondent then punched the Applicant and one of the Respondent's sisters also did. Once pushed out of the house the Applicant was restrained by the Respondent's sisters from getting in and was pulled back by her hair the whole incident being witnessed by the parties' children.
The M told me in her oral evidence on the morning of 3rd Sep having fed the children she asked the F to get some cereal for Kab as it had finished. He then went into the kitchen to ask his mother if the cereal was indeed finished which upset her because it seemed as if he did not believe her. She told me the paternal grandmother [denied by her] verbally abused her and said that as she always had a problem with the F she should get out of the house. Words were exchanged. With the commotion Jo came in to the kitchen and without saying anything started spraying water at her face and in her mouth. The M then told me Jo said "if I had fire I would put fire in your mouth" and then picked up 1 of the M shoes from the passage and threw it at her. Both then swore at each other, Jo went upstairs and the F then asked the M why she swore at his sister to which she responded that Jo swore so why shouldn't she.
Jo told me prior to the incident on 3rd Sep she had never had an argument with the M whilst she was unaware of the cereal incident she saw the M was in a bad mood but that "it was never my intention to piss her off further". She denied she was furious at the M, argued with her or had sworn at her. She said "when I lightly sprayed a little bit of water in the M face" she took it the wrong way. Although the M was swearing, snarling and goading at her she denied saying she would spray her with fire and denied throwing a shoe at her. Jo told me that social services never spoke to her. The paternal grandmother denies telling the M to leave the house. The M told me Kab was next to her and asked him to get ready. The paternal grandmother asked where she would go with the kids too which she replied she would call the police and was about to when the F grabbed the phone from her and called the police himself.
Two police officers arrived, an English officer who spoke to the F and his family and a Bengali speaking officer who spoke to the M in her bedroom. The M told me she was asked by the police officer if she wished to leave the property to which she said no because she had nowhere to go, her aunt's home in Whitechapel being too small and because it was Ramadan. The officer said he would give the family a warning. The M told me after the police officers left Ma verbally abused her and also punched her on her shoulder. The F came in to her bedroom and Kab she said was nearby. When the M told the F to tell his sister not to hit her she [Ma] denied she had done so and told the F to leave. Kab she said told his F that she had been hit by Ma and she was shown a text she had sent to Naveen a boy she had known in Bangladesh. The paternal grandmother then started accusing her of having "many men" which the M said she denied.
The M told me she was told by the family to get out and the F said if she does not go he would kick her out. Qad had fallen asleep and a little while later the M said she went downstairs where she made noodles to feed the children. The rest of the family were in the living room and she told me she could hear them talking about her. She believes the family were planning how to get her out of the house. The M told me when she subsequently came down the stairs the paternal grandmother and Jo said to her "haven't you gone yet" again denied by them. Ja arrived home around 6.00/6.30 pm. The paternal grandmother told me she saw the M had a suitcase and asked her where she was going with it.
The F says at E9: "my sister Ja and my wife had gone outside with the suitcase with my youngest son Qad. I then called Qad back whilst the other two were kissing my family goodbye. When my youngest son came inside, I made a split second decision and instinctively shut the door on her; I was petrified that she would take my children to Bangladesh and that I would never see them again" Ja and Ma refer to the M having a bag or bags in their police statements but nothing is said about what happened to either the suitcase, the bag or the bags or the contents. The F told me it suddenly dawned upon him as the M had a suitcase and the children's passports he decided to keep the children because of his fear the M would take the children to Bangladesh.
The M told me Qad was in her arms when he was taken from her and she was pushed out of the house. The F having taken hold of Qad from Ja shut the door and the F put the chain on. She was then hit by Ja and held her by one of her hands. With the other hand the M said she was banging on the door to be let in and then called to Kab through the letter box. She told me Ja pulled her from her hair away from the door saying at the same time if she continued banging on the door the police would be called and they would make a case against her. The M said she was punched by Ja in the shoulder, pushed into her car and then driven to her aunt's in Whitechapel. The M denied she had any suitcase with her. When giving her evidence on this incident I observed the F to be emotionless whereas upon recalling the same was clearly very painful for the M who cried throughout.
Da told me he was outside for the whole time the police attended (address) and only after they left did he ask what had happened. He told me he saw the M come down stairs with a big suitcase and asked his sister to take her to her aunt's. I observed Da to struggle to tell me what happened next and he appeared to be more concerned with the front door as he told me "whenever that door shuts I get stressed, it has antique lead lights, I'm very worried of the door closing". I was left with the impression Da was more concerned about the damage to the door than the welfare of his nephews.
In her statement to the police dated 09.10.08 at page 6 section H of the bundle Ja spoke of the M having a bag with her whereas in her statement to this court she says it was a suitcase. Asked by Mr Metaxa to explain the inconsistency Ja said "those are just small details. If I had known how important it is to be accurate I would have been so". In any event she was unable to explain what happened to the 3 pieces of luggage when the M was taken to her aunt's without the children. She denied manhandling the M out of the house or shouting or abusing the M as suggested by her. She told me she was simply trying to calm the M down. She also denied assisting Ma in putting the M in to her car reiterating she was not a violent person.
Ja went on to say under cross examination by Mr Metaxa "I don't think there was ever an opportunity to ask my brother why he shut the door to the M". She accepted on being asked questions by counsel for the Guardian that the situation for the children when the M left would have been very difficult for them, they would have been bewildered, confused and unsure of what was going on. She recalled the boys were upset and were crying. She said "I was very honest with the boys and told Kab and Kar their M had gone to live with their aunty, she is okay and safe". She said the children did not speak about their M but accepted the children would have heard much more of the family conversations than they believed though they would try to shield them from them because of their professionalism.
The last incident concerns mother's leaving of the FMH on the 3rd September 2008. In her Scott Schedule the mother refers to an argument with F during which Jo sprays water at her and states: "if I had fire I would put it in your face". This is in complete contrast with what she told the Contact Supervisor on the 29.9.08 that Jo has said she was spraying mother to cool her down. Both accounts cannot be right. Again it is suggested that the mother is deliberately setting out to exaggerate and mislead in her account to the Court. The Scott Schedule continues that Jo was goading the mother to hit her. The mother in law then grabbed the mother and Jo threw a shoe at her. This account of grabbing and throwing a shoe is not in the mother's FLA statement at para 7 pE16. Neither is it in the account given to Matthew Pilkington by the mother. In the Scott Schedule F now comes downstairs and drags the mother into the kitchen. No mention is made of this to Dr Whittle (internal page 5 at F44). The Scott Schedule then records that the mother in law told the mother to leave the house. The mother said she would go. However, to Matthew Pilkington the mother stated that she decided she wanted to leave the house and take Kab with her (para 32 F7). To Dr Whittle the mother said that she said she would leave and told Kab to get his things (internal p5 F44). Her mother in law said she could leave but without the children. Mother then called the police and F is alleged to have snatched the phone from her. This is not referred to in the mother FLA statement. The police then attended and offered to escort the mother from the premises but she refused. The Scott Schedule then alleges that Ma asked her why not go to her "dad's" and then assaulted her by pushing and prodding her in the shoulder. In her FLA statement the mother simply states that her sister in law (unspecified) was "pushing her". In her Contact of the 27.09.08 the mother tells the supervisor that her sister in law took her phone from her and hit her with it. The mother in oral evidence denied telling the supervisor this. In her police statement at H54 the mother states that Ma punched her on the right shoulder as soon as the police left. In oral evidence, the mother stated that she makes no distinction between a push and a punch, which is nonsensical. To Mathew Pilkington the mother stated that after the policed left the situation had calmed (para 34 F7). No mention is made of an assault by Ma. In the Scott Schedule the mother was threatened by F to kick her out, but to Mathew Pilkington, the mother stated that F had had a calming influence, trying to diffuse the argument (para 31 F7). Mother told Mr Pilkington that it was her mother in law and Ja who were complaining and suggesting that she leave. The Scott Schedule alleges that a sister in law started shoving and pushing her and asked he why not go to her aunt's home. She was then pushed and shoved by various members of the family, whereupon she was punched by F and one of his sisters. M was then pushed out of the house and restrained by Ma and Ja from getting back into the house, her hair was pulled and this was witnessed by the children. This account is very different to that given by the mother in her police statement at H54 where having taken Qad from her, F then proceeds to punch her on the back, shoulder and hand near the wrist. In her police statement, once outside the property, Ja grabbed the mother and pushed her into the car. In this account, the mother is assaulted downstairs by F alone, not as stated in the Scott Schedule. In her FLA statement, at paragraph 9, the mother is assaulted by F and a sister in law (in oral evidence she stated this was Ja. The mother's FLA statement contained a number of amendments in relation to the role's of the sister-in-laws, notably at paragraph 10, when one sister in law becomes two. In oral evidence the mother said she was punched by Ja outside of the house but neither her Scott Schedule not her FLA or police statements make that assertion. The mother's account to Dr Whittle, at internal page 6 F45 gives a completely different account as to any force used upon her. Here, her sister in law pulled her by the hand out of the house. Her other sister in law pulled her into the car. It is strongly suggested that in the light of the mother's injuries observed by the police, consistent with smashing the window of the front door, and her inconsistent and contradictory accounts of the use of force against her, her evidence is unreliable.
The cross-allegations of ill-treatment of the children.
I find the M has been assaulted by the F in front of Kab and Kar but I do not find the F has hit the children with a belt.
There was no finding in relation to the more general allegation. Implicitly the District Judge acquitted F of hitting his children.
Could the court deal specifically with whether the father has hit the children (not with a belt, which is dealt with in subpara 14 on page 64)? This was also included in the original list of what the children said happened but is not now in the list.
I find the M has been assaulted by the F in front of Kab and Kar and I also find that the F has hit the children on their face, back and legs with his hands but I do not find the F has hit the children with a belt. (emphasis added)
i) as to assessment of credibility generally;
ii) as to the judging of the seven serious allegations of assault; and
iii) as to the finding that F mistreated his children by hitting them
are of such a scale and degree that the whole judgment is rendered unsafe and should be set aside. Mr Metaxa submits that these erroneous aspects can safely be severed from the rest of the findings and that the findings as to (a) M's very late entrants and (b) F's 80 allegations are basically sound and can be left intact. He even submitted that the subject matter of these findings was the really important stuff, and that the seven allegations of assault were basically peripheral and unimportant. I do not see it that way at all. To accuse someone of Domestic Violence is an allegation of the utmost seriousness. M saw it that way too. They dominate her Scott Schedule. The late entrants seem to be little more than an afterthought.
The rest of the allegations
The way ahead