Tuesday, October 07, 2008

B (Children): Not seeing double

I couldn't help but notice that there were two cases both named In the matter of B (Children) reported on Family Law Week this week. The two cases are not related, but both involve expert witnesses and both are of interest in their differing ways.

The first case chronologically was B (Children) [2008] EWCA Civ 1034. In this case the mother was applying for permission to relocate to her native Germany, with the two children. Her application was refused by Her Honour Judge Hallon in the Bromley County Court and she sought leave to appeal. Her counsel argued that the judge had given too much weight to the evidence of an expert who had prepared a report much earlier in the proceedings. According to counsel, that report had been "anodyne", but when she gave evidence at the hearing she had been trenchantly against the mother's application, despite having had nothing to do with the case for some considerable time: "Effectively [counsel] says that he was ambushed". In the Court of Appeal Lord Justice Thorpe had some sympathy for counsel, "but the problem for [him] is that he raised no objection at the crucial moment with the witness there before the court answering questions in her live evidence". The judge was therefore entitled to place reliance on the expert's evidence. Accordingly, whilst leave to appeal was granted, the appeal itself was refused.

The second case was B (Children) [2008] EWCA Civ 1037. In this case the applicant was seeking leave to appeal against a finding of fact in care proceedings that he had sexually abused children. The finding was based upon evidence of children witnesses with no independent corroborating evidence, but an expert had given the opinion that the evidence of one of the children was "probably true", second from the top of his own seven-point scale for evaluating such evidence. It was argued that the judge should not have accepted this as crossing the balance of probabilities threshold of proof, as the expert had not considered the evidence to meet the top of his scale: "very probably true". This was not accepted by Lord Justice Hughes in the Court of Appeal, who found that: "For my part, one would have thought that “probably true” seems incapable of meaning anything less than that the allegation is proved on the balance of probabilities. But even if there is room for debate about what [the expert] meant, it is absolutely clear that the judge applied the correct test". The application for leave to appeal was therefore refused.


  1. I can't comment on the second judge, but Judge Hallon, as you may know, is widely known in legal circles as someone who will order as many "expert" witness reports as she needs to have her own view of the world confirmed. Her judgments are generally known NOT to be just but "waterproof", i.e. it is Hallon herself who picks and chooses "evidence" and refuses permission to present evidence to parties she dislikes. It can only be hoped that opening up the secret family courts will lead to self-righteous judges like Hallon to find themselves in a position to be held accountable for her miscarriages of justice which I have been observing far too long... one day!
    Your blog is very interesting to read; keep it up!

  2. I can't comment about Judge Hallon, but you are obviously entitled to your opinion.

  3. You may be interested to hear that Judge Hallon was forced to quit as judge in this case on 11th May 2009 following an application to recuse herself because of verbal abuse of the unrepresented mother in an earlier hearing in November 2008 and blatant bias. The case was transferred to the High Court in London. Always remember that the judgments you read online may reflect only the distorted perception of abusive judges who are themselves caught out by the system eventually. Will keep you updated & wish you well for your blog!

  4. Cafcass have declared their own 3 year old Section 7 report on this family invalid in time for the High Court hearing on 28th July 2009 and have officially apologised to mother and children for the officer's lack of understanding of domestic violence issues and ignorance of the children's wishes and feelings. This means that the whole of the above judgment is coming under increasing scrutiny and the Press are now observing closely. Watch this space!


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