PS v BP, Court of Appeal - Family Division, July 27, 2018, [2018] EWHC 1987 (Fam)

Resolution Date:July 27, 2018
Issuing Organization:Family Division
Actores:PS v BP
 
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Neutral Citation Number: [2018] EWHC 1987 (Fam)

Case No: ME17P00309

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

ON APPEAL FROM HIS HONOUR JUDGE SCARATT sitting in the Family Court at Canterbury

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27/07/2018

Before :

THE HONOURABLE MR JUSTICE HAYDEN

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Between :

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Mr L Eaton (instructed by Aletta Shaw Solicitors) for the Appellant

Mr P Hepher (instructed by Brachers LLP) for the Respondent

Hearing date: 18th June 2018

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This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Hayden:

1. This is an appeal against Orders and findings made by His Honour Judge Scaratt, following a fact-finding hearing on the 19th January 2018. The father's (F) Appellant's Notice is dated 9th February 2018. On 12th February 2018 Cohen J issued directions for the filing of appeal documents. The mother (M) seeks to resist the appeal, inviting this court to restore the matter for further directions before the Family Court in Canterbury.

Background

2. The child subject to proceedings (L) is three years of age. F applied on 6th February 2017 for a Child Arrangements Order enabling him to spend time with L who lives with her mother. The matter was listed pursuant to the order of District Judge Green on 29th November 2017 for a fact-finding hearing. It had been determined necessary to conduct such a hearing before the court could reach conclusions on F's substantive application. I have been told that, conscious of the delay that there had been in the proceedings, District Judge Green arranged for the matter to be listed before His Honour Judge Scaratt when an available date emerged in the Court diary. Prior to the hearing Judge Scaratt had no previous involvement in the case nor, inevitably, any opportunity to shape the scope of the hearing.

3. M's lawyers had prepared a Scott Schedule setting out six core allegations which the court was invited to resolve. By the hearing F had dispensed with the service of his solicitors and was acting in person. He was at the time a serving police officer, facing related proceedings in the Criminal Court. He told Judge Scaratt that he had concluded that he should focus his available funds on his own defence costs.

4. Before hearing the case Judge Scaratt had obviously read the papers carefully and had come to two significant decisions. Firstly, he considered that only two of the six allegations identified in the schedule required to be tried; secondly, he had formed the firm view that F should not be permitted to cross examine M directly. It requires to be identified that the allegations Judge Scaratt elected to try were of the utmost gravity. The first alleged strangulation and rape of M; the second concerned attempted strangulation, which was said to have taken place in the presence of the child.

5. As Mr Hepher, who appeared on behalf of M both in this court and in the court below, opened his case before Judge Scaratt, the Judge immediately interjected with the following observation: ``Well...I am not going to allow cross examination of your client by [F]''. This, as I have indicated, had not been foreshadowed previously. It plainly took F by surprise. As a serving police officer F had planned his cross examination of M and was very clear about the material he wished to raise with her. The Judge then moved to a short preliminary ex tempore Judgment in which he set out the reasoning for his decision. The Judge did not invite any representations on the point either from counsel or F. In his Judgment the Judge placed considerable emphasis on my own judgment in Re: A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam). He highlighted the following passages which require to be set out:

``57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M's allegations of violence, choosing to conduct a case which concentrated on undermining M's credibility (which as emerges above was largely unsuccessful).

58.Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59.Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

61.The iniquity of the situation was first highlighted 11 years ago by Roderick Wood J in H v L & R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162. It was reiterated in Re B (a child) (private law fact finding-unrepresented father), DVK [2014] EWHC (Fam). Cross examination by a perpetrator is prohibited by statute in the Crown Court, in recognition of its impact on victims and in order to facilitate fairness to both prosecution and defence. In Wood J's case he called for 'urgent attention' to be given to the issue. This call was volubly repeated by Sir James Munby, President of the Family Division in Q v Q; Re B (a child); Re C (a child) [2014] EWFC 31 and again in his 'View from the President's Chambers (2016): Children and Vulnerable Witnesses: where are we?'

62.In that document the President highlighted the Women's Aid Publication: Nineteen Child Homicides. I too would wish to emphasise it:

"Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control."

Commenting on this, the President asked 'who could possibly disagree?' The proposition, in my view, is redundant of any coherent contrary argument.''

6. The challenges presented by litigants in person cross examining key witnesses have recently been considered by the Court of Appeal, see Re: J (children) (contact orders; procedure) [2018] EWCA Civ 115. There McFarlane LJ highlighted the very substantial difficulties engendered by a litigant in person whose case needs to be `put' to a key factual witness where the allegations are of the most intimate and serious nature and where the litigant and the witness are themselves the accused and accuser. The court made the following observation:

``67. Various strategies to meet this problem have been contemplated and attempted in recent times. One such, which no doubt had some impact on the progress of the present appeal, was the proposition that, where there was no other alternative source of funding for the representation of an alleged perpetrator of abuse for the purposes of cross examining his abuser, the Family Court could direct that funding be provided by HM Courts and Tribunal Service ['HMCTS']. The proposition was held to be sound by Sir James Munby P in Q v Q; Re B; Re C [2014] EWFC 31 in a judgment delivered on 14 October 2014. The judgment in Q v Q no doubt influenced DJ Mornington's decision in April 2015 to transfer this case up for consideration at a more senior level of judiciary. By that time, in another case (Re K and H), HHJ Bellamy had, on 5 January 2015, made an order directing HMCTS to fund representation to enable cross examination on behalf of an alleged abusing father to be put to his former partner. Judge Bellamy's order was the subject of appeal and, on 22 May 2015, this court (Lord Dyson MR, Black and McFarlane LJJ) held that a judge in family proceedings lacked the power to make such an order [[2015] EWCA Civ 543]. Thus, by the time that the present case came before HHJ Allweis for the first time, the prospect of directing that HMCTS should fund representation for this father had ceased to be a tenable option.''

7. Unfortunately, this case did not provide the Court of Appeal with an opportunity to set out definitive guidance to trial Judges as to how this most important and difficult issue is to be resolved when it arises. MacFarlane LJ observed:

``The reality is that the options available to...

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