C (Children)

In children proceedings, a trial judge is entitled to determine the truth of a retracted admission and is not compelled to accept it merely because another aspect of the witness’s evidence is rejected. The party alleging serious wrongdoing retains the burden of proving causation on the balance of probabilities; the seriousness of the allegation may require evidence of high cogency. General assertions, medical references and personality evidence do not necessarily compel findings of repeated abuse. A court may consider an allegation abandoned before a fact-finding hearing when assessing credibility. An indication given at a preliminary fact-finding stage is not a final determination. A professional judge must remain open to persuasion until formal judgment.

The mother sought permission to appeal against factual findings, and refusals to make findings, in residence and contact proceedings concerning her three children. The children lived with the father, while the mother sought residence or unsupervised contact. The Bournemouth County Court held a preliminary fact-finding hearing concerning allegations including domestic violence, an assault said to have caused brain injury, and morphine over-medication. The judge also indicated that, on the evidence then available, the mother could not care for the children. The proposed appeal challenged the judge’s treatment of the evidence, his findings on allegations no longer pursued, and the effect of his indication on the forthcoming welfare hearing.

Lord Justice Wilson gave the leading judgment and Lord Justice Mummery agreed. Permission to appeal was refused on all grounds.

1. The proposed appeal concerned factual findings and refusals to make findings. The mother had to show that the relevant conclusions were not open to the trial judge on the evidence. The court found no arguable merit in the challenge to the judge’s assessment of the parties’ credibility.
2. It was in principle for the trial judge to determine the truth of the father’s retracted admission in the 2001 statement. He was entitled to conclude that the statement had been created at a time when it suited both parties to make those assertions, and that it did not establish that the brain injury had been caused by the assault in Germany. The judge had not found that the injury was sustained in May 1995.
3. The burden remained on the mother to establish that the father’s assault caused the injury. In an enquiry on the balance of probabilities involving a very serious allegation, evidence of high cogency was required before the allegation could be found proved.
4. The judge was entitled to address the morphine allegation even though the mother no longer pursued it at the fact-finding hearing. Its abandonment, and the fact that it was not established, were relevant to her credibility on other issues. The general evidence relied upon to support a finding of continuing domestic violence did not compel that conclusion.
5. A preliminary fact-finding hearing in residence and contact proceedings was unusual, although distinct from care proceedings involving the threshold under Children Act 1989. The judge’s firm indication about the mother’s ability to care for the children could have been expressed more cautiously, but it was not a final determination. A professional judge must remain prepared to depart from an early indication until formal judgment. The judge could therefore continue with the welfare hearing without prejudging the risk assessment concerning the mother’s cohabitant.

Detailed assessment was ordered in relation to public funding. Permission to appeal was refused.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 1527, refused permission to appeal on all grounds and ordered detailed assessment in relation to public funding.
• Bournemouth County Court: His Honour Judge Bond gave judgment on 30 March 2006 in residence and contact proceedings under the Children Act 1989, following a preliminary fact-finding hearing.