Case No: B4/2008/1092
Neutral Citation Number: [2008] EWCA Civ 1619
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE MILLIGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th July 2008

Before:

LORD JUSTICE THORPE
LORD JUSTICE WALL
and
LORD JUSTICE STANLEY BURNTON
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IN THE MATTER OF R (A Child)

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Mr J Nickless (instructed by Messrs Driver Belcher) appeared on behalf of the Appellant.

Mc C Davies (instructed by Messrs Ewing Hickman & Clark) appeared on behalf of the Respondent.
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Judgment

Lord Justice Thorpe:

1.	This is an appeal against the order of HHJ Milligan, who on 17 April 2008 sat in the Southampton County Court at the commencement of the third day of a fact finding hearing to determine a number of allegations of domestic violence mounted by a mother against the father and his extended family.  Everything relates to future arrangements for the only child in the case, who is R, born on 4 December 2003 and therefore four years of age.  Permission for this appeal was granted by my Lord Wall LJ on 9 June 2008.  

2.	I come now to the factual background.  The father is 35, British born but of Indian origin.  The mother is 24 and she was born in India.  There the parties were married in February 2003.  The mother arrived in this country a few months later, by which time she was already pregnant.  The mother speaks some English, but for any extensive expression is dependent upon interpreters. 

3.	 The family, mother, father and daughter, lived in business premises in Southampton.  It is described as a club.  It is licensed and sells both food and liquor.  There are a number of other members of the paternal family living there, certainly the father’s own parents, and in play are a number of paternal aunts and a paternal uncle and the husband of one of the paternal aunts.  So this is a large, no doubt close‑knit Indian family.  The atmosphere at the home and club was not entirely peaceful since a paternal uncle was prosecuted for some assault at the club, but at a hearing at the beginning of 2008 he was found not guilty.  There are other allegations of violence within the family and home which do not directly concern R.  

4.	Proceedings in the family justice system came with father’s application for prohibited steps and residence, and as a result of that the directions were given for a preliminary fact finding hearing to establish the nature and extent of the physical and emotional abuse that the mother alleged, both to herself and to R.  The mother and child had departed from the home and club as a result of the breakdown of the marriage and were living at a refuge.  A child support worker from the refuge was to give evidence before the judge at the fact finding hearing.  The hearing was set down for three days.  The mother gave evidence on both the first and second days.  The evidence of the child support worker was interpolated and, towards the end of the second day, Mr Nickless, who represented the mother below and represents her here, sought an adjournment in order to investigate whether, as the mother had informed the judge, discrepancies in her written evidence to the court were to be explained by reason of the fact that it was prepared in the solicitor’s office at a time when no interpreter was present.

5.	The case resumed at 10.30 on the third day of trial, by which time Mr Nickless had obtained from his instructing solicitors a complete chronology of the work that they had done in preparation for the case.  On days one and two, Mr Nickless had only had a trainee sitting behind him and it was the trainee who made enquiries on day two of her principal, which revealed that, in fact, an interpreter had been present on 17 January when the mother’s statement had been taken and again seven days later when the mother had been taken through her statement prior to signing it.  So at 10.30 on day three, Mr Nickless very responsibly stood up to inform the court of the chronology of the work done by his instructing solicitors, which revealed that the evidence that mother had given, both on day one and day two, as to the absence of an interpreter, was simply inaccurate.  So Mr Nickless asked his client to explain how she had come to give inaccurate evidence and he received rather a confused response, as a result of which the judge intervened:

“HH JUDGE MILLIGAN: Ms Kaur, this is the question.  You told me yesterday that there was no interpreter when you made your Statement.  You told me today there was.  

MS MANDEEP KAUR: On the first two occasions interpreter was not there.  Then when I went the interpreter was there.  Yesterday when I was questioned, I had said when I was asked the interpreter was there, I said I am not sure, maybe he was not there.  I was not sure whether he was there, interpreter was there or not because I did not remember the dates because number of times I had gone to the solicitors.”

6.	That concluded her evidence.  Mr Nickless proffered her to Ms Davies for the father for cross‑examination.  She simply submitted to the judge that that would be superfluous because it was apparent that the mother had lied, not once but several times, and accordingly she saw no need.  The judge accepted clearly the submission that it was a blatant lie and swiftly disposed of the case without hearing further evidence.  His explanation for so doing has not been transcribed and we have in place a careful note taken by Ms Davies, submitted to the judge, amended by the judge and approved by him.  We can see that the judge considers each of the mother’s allegations seriatim, criticising in respect of each either the quality of the evidence in support or what he perceived as inconsistencies in the mother’s presentation when contrasted with earlier statements given either to the police or to health services or to her own solicitors.  He, having completed that exercise, concluded by observing that he did not find her explanations for inconsistencies persuasive; that she had sought to explain contradictions by saying there was no interpreter present, when it later transpired that there was, and that that threw immediate doubt on her credibility; he said that there was an absence of contemporaneous reports, save for one or two in police statements; he criticised the mother’s demeanour in the witness box, evasiveness, which he thought went beyond any possible language difficulties; and accordingly concluded that she had not proved, even to the ordinary civil standard, her allegations.  He placed no particular reliance on the child support worker, and accordingly accepted the submission from Ms Davies that the mother was an unreliable witness, that the burden of proof had been upon her and that, since she had not discharged it, he would terminate the trial at that point.  The judge refused an application for permission to appeal, and the grounds for which my Lord has given permission were three in number, and I focus only on the first:

“The trial judge was wrong in law or alternatively his decision was unjust due to procedural irregularity in that he should not have entertained the submission that no case to answer…”

7.	Mr Nickless has filed a skeleton argument in support and Ms Davies has filed hers in response.  I am quite clear in my own mind that Mr Nickless has far the better of the argument.  I would wish to emphasise that the judge was conducting a preliminary fact finding hearing, the purpose of which is to make essential preparation for what will be the subsequent determination of child welfare issues; classically here, the nature and extent of the father’s contact or, alternatively, with which parent the child should be primarily resident.  The judicial exercise is vital, not only to lay the foundation for the subsequent hearings but in the interim to inform professionals who have to make assessments and reports to the court.  It is to be emphasised that the judge in that function, as in all family proceedings, sits in a quasi‑inquisitorial role.  His function is the pursuit of child welfare.  He is not adjudicating rights and wrongs as between adults who may have grievances and embattled positions as between themselves that overhang and encumber the determination of the child welfare issues.
8.	Both counsel have sought from this appeal some guidance as to the appropriate test that judges should adopt when conducting preliminary fact finding hearings.  There is no clear present authority.  The principles that govern submissions of no case in criminal proceedings are very well known.  Equally the appropriate principles governing submissions of no case in civil law are clear; Mr Nickless in his skeleton argument has particular cited the case of Benham Ltd v Kythira Investments Ltd & Another [2003] EWCA Civ 1794, and has drawn from the judgment of Simon Brown LJ classic statements of principle to be found in paragraph 27, paragraph 32 and paragraph 39.  The effect of those citations is to demonstrate that, in civil, if the defendant elects to call no evidence, then the judge will determine the outcome on the balance of probabilities, albeit with the possibility of adverse inference being drawn against the defendant for not giving evidence.  If the defendant is not put to his election as to whether or not to call evidence of his own, the judge must consider whether the claimant has a real prospect of success, what Simon Brown LJ in paragraph 27 describes as:

“…a different and lower test than that of a balance of probabilities, the test to be applied once the court has heard all the evidence that is to be called.”

9.	In public law, counsel have cited the decisions of this court in Re Y & K (Children) [2003] EWCA Civ 669 and Re F (A Child) [2007] EWCA Civ 810.  In the first of those cases, the court allowed an appeal when a trial judge had dismissed allegations of sexual abuse after the evidence of the local authority and without hearing any evidence from the parents.  In Re F, another case involving a finding of fact in respect of sexual abuse, the judge had determined:

“I have stated my view that the local authority’s evidence… fell short, by a substantial margin, from that required to substantiate the allegations against the father.”

10.	This court allowed the subsequent appeal by the local authority and my Lord Wall LJ in his conclusion said:

“I also have to say that, in my judgment, a circuit judge is not necessarily obliged simply to try the case which is put in front of him.  He is entitled --indeed obliged -- to consider whether or not the case presented to him is being presented as it should be -- and that the relief sought is genuinely in the interests of the child.  However, I think it is unfortunate that the judge appears to have introduced the concept of ‘no case to answer’ which in my judgment has little or no place in care proceedings under the 1989 Act.”

11.	Should the approach in private law cases be any different?  I conclude that it is desirable to give a very clear message to judges trying preliminary fact finding enquiries that it is simply not appropriate to accept a submission of no case to answer.  Before I express my general view, I would in relation to this case simply draw attention to the fact that the judge was risking derailing the whole future management of the case by taking the line that he did principally on the basis of his conclusion that the mother had deliberately lied.  I would emphasise against that that this was a witness unable to testify in her mother tongue.  She did advance an explanation which was not plainly incredible.  This was a case in which police and health authorities had been involved by the mother on a number of occasions.  This was a case in which she had taken flight to a refuge.  This was a case in which the child support worker testified of her concerns that the child had been subject to emotional abuse.  This was a case in which the child was also said to be a victim of both physical and emotional abuse.  This was a case, accordingly, in which the child might well have had separate representation with the appointment of a rule 9.5 guardian.  

12.	The importance of preliminary fact finding hearings in domestic violence cases was emphasised by this court in the conjoined cases of Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 3341 some years ago now, and the importance of this judicial task has been subsequently emphasised by direction from the President.  Underlining the guidance given by this court and the President is a general social policy, given the prevalence of domestic violence in our society and the extent to which in the past it has been a submerged evil.

13.	I am also concerned in the present case that the judge seemed to found himself in part upon his own interpretation of what was likely to have happened in a non‑resident Indian family.  His views and his conjectures are set out in paragraphs 36 and 37 of his judgment.  Again, there are important social policy issues surrounding diversity and ensuring that the family justice system ensures standards that gain the confidence of the whole range of minority communities in our society.

14.	So if I were formulating a general test, I would incline to say that trial judges in preliminary fact finding hearings involving serious allegations of domestic violence should never terminate the case without hearing all available evidence.  It may be dangerous to say ‘never’, but I can only conceive of a termination that rested on a concession from the applicant that that was inevitable or appropriate at the conclusion of the evidence.  So long as the applicant sails on into the gunfire I think the judge has the obligation to hear the case out.  His obligation derives from his responsibilities to the child.  There are many obvious instances in which what may seem to be a frail case at the conclusion of the applicant’s evidence, nonetheless at the conclusion of all the evidence can be seen to be one that is not without substance or foundation.  

15.	So for all those reasons I would allow the appeal and direct a retrial before another judge, arrangements for allocation to be in the hands of HHJ Marston, the designated family judge in Hampshire.

Lord Justice Wall:  

16.	I agree that this appeal should be allowed.  When I considered the case on paper on 9 June 2008, I expressed my reasons for giving permission to appeal in the following terms.  Firstly, it seemed to me that the application raised in acute form the questions as to (a) whether, and (b) the circumstances in which, it was appropriate or might be appropriate for a judge to make a finding of no case to answer at a finding of fact hearing in private law proceedings relating to children. Secondly, the case raised the question: if such a course was properly open to a judge on the facts of a particular case,  in what manner in which the power falls to be exercised?: I also expressed the view that  whether or not the mother ultimately succeeded in her appeal,  the points she made were  plainly arguable and should be considered by the full court.  

17.	We have now of course today heard full argument and I am extremely grateful to both counsel for the depth and clarify of the arguments which they have placed before us.  However,  having heard  argument and read the various authorities submitted to us, I have to say that I entirely agree with my Lord in finding it impossible to envisage circumstances in which a judge, hearing what I will in shorthand describe as a Re L, V, M, H fact finding hearing within private law proceedings involving domestic violence, should entertain an application that there is no case to answer.  

18.	The reasons for that I think are self‑evident.  The enquiry is quasi‑inquisitorial.  The objective is to identify and resolve issues of fact which are relevant to the ultimate question for  the court, namely what is in the best interests of a particular child. In my judgment it is impossible fairly to achieve that objective without hearing all the evidence available on the particular issues engaged and having that tested.  

19.	For these reasons I am attracted to Mr Nickless’s first ground of appeal, which my Lord has read and which I will not repeat.   I would add simply this:  that private law proceedings under the Children Act 1989 are quite different in my view from conventional civil proceedings, and it is inapt to apply the rules relating to making submissions of no case to answer in conventional civil litigation.  These are, as I have already stated, private law family proceedings. They are quasi‑inquisitorial, and the function of the judge remains throughout the duty to reach a solution which is in the best interests of the child.  The fact finding exercise is designed to inform that process and, as my Lord has made clear, the judicial function cannot in my judgment properly be undertaken without hearing all the available evidence.  For these reasons, I am in complete  agreement with my Lord’s judgment, and this appeal should, in my view, be allowed.

Lord Justice Stanley Burnton:

20.	I agree with both judgments.  If these had been civil proceedings, the judgment of HHJ Milligan could not have been supported.  Since at least 1936, the courts have set their face against submissions of no case to answer.  I refer to the judgment of Romer LJ in Alexander v Rayson [1936] 1 KB 169 and 178, which was referred to by this court in the case of Benham, to which Thorpe LJ has referred.  That earlier authority, and the general considerations of civil cases, led Brown LJ to say:

“Rarely if ever should a judge try in a civil action let a jury entertain a submission of no case to answer.”

21.	Scott‑Baker LJ, in Benham, agreed with the judgment of Simon Brown LJ and said: 

“Only in the most exceptional circumstances should a judge entertain a submission to dismiss an action at the close of the claimant’s evidence without putting the defendant to his election.”  

22.	The election to which he referred of course is the election not to call any evidence.  If the election is made the judge then decides the case on all the evidence that he has heard and such inferences as he may draw from the failure of the defendant to call evidence.  In the present case, the judge addressed the matter without requiring the father to make his election and then applied a test to the evidence before him which was inappropriate at a half time stage: that is to say, he applied the test that he would have applied had he heard all the evidence in the case.  

23.	However, this was not a civil case, and, in agreement with my Lords, it seems to me that it is inappropriate in all circumstances but, conceivably, the rarest, such as Wall LJ has referred to, for a submission of no case to answer to be entertained.  The child is in reality the subject of these proceedings, and it is inconsistent with the status of the child and the need to make a decision which is in the interests of the child for a decision to be made on partial evidence.  

24.	In those circumstances I too would allow this appeal.

Order: Appeal allowed