Neutral Citation Number: [2017] EWCA Civ 1748
Case No: B3/2014/1748
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HIS HONOUR JUDGE ARMITAGE QC
2YJ25597
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/11/2017
Before :

LORD JUSTICE UNDERHILL
LORD JUSTICE BEAN
and
LADY JUSTICE ASPLIN
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Between :

	VERONICA SHITTU
KENNY FAITH SHITTU (a minor suing by her litigation friend Veronica Shittu)	
Appellants/Claimants	
	- and -		
	THE HOME OFFICE	Respondent/Defendant	

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Stephen Cragg QC and Philip McLeish (instructed by Broudie Jackson Canter) for the Appellants
Cathryn McGahey QC and Sian Reeves (instructed by Government Legal Department) for the Respondent

Hearing date: 2 November 2017
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Judgment Approved
Lord Justice Bean : 

1.	The first Claimant, Veronica Shittu, was made the subject of directions for her removal from the United Kingdom. On 15 February 2010 officers of the United Kingdom Border Agency arrived at her home in Stockport to remove her and four children, including the second Claimant (“Kenny”), from the premises with a view to their imminent removal from the UK. The Claimants accept that the attempted removal from their home itself was lawful, but allege that excessive force was used against both Ms Shittu and Kenny. Proceedings were issued in the Manchester County Court on 16 April 2012 claiming damages “for personal injuries suffered and losses and expenses [incurred] as a result of assault and battery by officers of the Defendant”. 
2.	The trial took place before His Honour Judge Armitage QC in February 2014, four years after the incident itself. The hearing lasted four and a half days. The judge heard evidence from Ms Shittu on one side and four immigration officers on the other. By a reserved judgment dated 10th April 2014 he dismissed the claims. The Claimants’ application for permission to appeal was refused on the papers by Kitchin LJ but granted on a renewed oral application by Vos LJ (as he then was). Having heard oral argument from Mr McLeish on behalf of the Claimants Vos LJ said that “there are questions of the reasonableness and proportionality of the force used when it was used which arise even on the judge’s own view of the facts”. He also took the view that there was another compelling reason why an appeal should be heard, namely that it “raises questions as to the confidence of the public in actions of immigration officers in difficult situations of this kind”.
The Claimants’ case
3.	The particulars of claim allege as follows: 
“On 15 February 2010 seven of the Defendant’s officers attending the first Claimant’s home in the early hours. These officers entered the first Claimant’s bedroom and woke her. One officer immediately said to her “we are taking you”. The first Claimant replied that she was not going anywhere and that her daughter had sickle cell disease. The officers insisted they had to take her. The first Claimant was in her nightclothes. The officers tried to force the first Claimant to dress. The first Claimant fell on the floor and started shouting. The second Claimant woke up and ran towards her mother and asked what was happening. A male officer took hold of the first Claimant’s arm and violently twisted it behind her back. A female officer grabbed the first Claimant’s other arm and twisted it behind her. The second Claimant was pulled off the first Claimant. Throughout this incident the first Claimant was shouting that the second Claimant had sickle cell disease and they would hurt her but the officers ignored her. By this time the other children were awake and they all started crying. The first Claimant wet herself and vomited. As a result of the noise generated by the children crying the officers loosened their hold on the first Claimant”.
4.	The pleading goes on to define the assault complained of as being when Ms Shittu was grabbed by the officers; when her arms were twisted behind her back; and when the officers tried to forcibly dress her. In respect of Kenny, the second Claimant, the alleged assault was when she was grabbed and dragged off her mother. In each case the level of force used is described as an unreasonable level of force which was excessive and disproportionate in the circumstances and was without the relevant Claimant’s consent.
5.	The pleading goes on to allege that each Claimant sustained some injury and lasting psychological trauma. The first Claimant is said to have sustained an injury to her arm and developed severe pain, stiffness and discomfort in the left arm and shoulder which at the time of the pleading remained “moderately severe and intermittent”. She became very depressed following the incident and had had suicidal thoughts. She had become paranoid and suspicious and avoided crowds. She was anxious when seeing anyone in uniform. She had developed post-traumatic stress disorder as a result of the incident and required psychiatric treatment. 
6.	The second Claimant, according to the same pleading, sustained a twisting injury to her right leg and developed severe pain, stiffness and discomfort in the right knee and leg which resolved after five months. Following the incident she had become more quiet and clingy to her mother, fearful and with affected sleep. She was woken by nightmares and had started wetting the bed. Her academic performance had been affected and she had become suspicious of people in uniform. 
7.	The bundle before us includes reports by consultant psychiatrists on each side. If liability for assault and battery were established there would be a difficult question of causation, namely to what extent any psychological trauma suffered by each Claimant was caused by the tortious acts of the Defendant’s officers, rather than by the attempted (lawful) removal itself. But that is not in issue before us.
8.	The Claimants, while limiting their overall claim to damages to £50,000, included claims for aggravated and exemplary damages. They alleged that the actions of the Defendant’s officers was “unnecessarily violent and aggressive” and relied on the conduct of the Defendant in the litigation in failing to apologise to the Claimants, seeking to justify its officers’ actions and standing by the conduct of its officers.
The Defendants’ case
9.	The Home Office pleaded in its Defence that the first Claimant had entered the UK unlawfully posing as the wife of a Jamaican man and using a false passport. Her appeal rights against removal had been exhausted. There had been a “pastoral visit” to her home on 12 February 2010. The immigration officers had power to enter the property and detain the Claimants pursuant to the Immigration Act 1971. Removal directions had been issued for 19 February 2010 and it was intended to detain the Claimants as a family only for four days pending that removal. Planning for the detention of Ms Shittu and her four children had taken account of the sickle cell disease of the second Claimant. The team who arrived at the Claimants’ home comprised seven officers which was appropriate given that a family of five were to be detained.
10.	Immigration Officer Amanda Cahill knocked repeatedly on the front door and when there was no reply effected entry using keys. When she spoke to the first Claimant Ms Shittu confirmed her name but then sat on the floor in protest. Both women then went to the back bedroom where (initially unknown to Ms Cahill) the second Claimant was sleeping. Ms Cahill served and explained the warrant for detention and other documents. The first Claimant refused to accept this information, rolled off the bed to the floor and began to shout words to the effect “you kill me, my children have sickle cell, you will kill them if you send them back”. Two other officers entered the bedroom. Ms Shittu became very vocal and was thrashing around on the floor. 
11.	Immigration Officer Dawn Maclean woke the second Claimant who had been asleep in the bed and asked her to come and see her brothers and sisters. The Defence continues:
“At this stage the First Claimant grabbed the Second Claimant, pulling the second Claimant to her by her wrist. The First Claimant then held the Second Claimant, wrapping her arms around her chest as they both faced forwards on the floor with the First Claimant shouting and starting to squeeze the Second Claimant. The Second Claimant began to cry and scream and the officers reasonably perceived that this was due to the force with which she was being held by the First Claimant. The First Claimant was repeatedly requested to release the Second Claimant but refused so to do. The officers then attempted to release the Second Claimant. I.O. Maclean and I.O. Cahill did so by taking the First Claimant’s right and left wrists/arms respectively, while I.O. Kevin Kilbane and I.O. Daniel O’Neill tried to release the Second Claimant. I.O. O’Neill then assisted with the First Claimant’s right arm while I.O. Maclean secured the First Claimant’s head, in part because she was concerned that she might bite one of the officers. The officers sought to use authorised restraint techniques on the First Claimant. The Second Claimant was freed with I.O. Kilbane leading her away and she was then escorted by I.O. Maclean out of the room.
The use of force was then de-escalated. The First Claimant was first rolled onto her side in an attempt to calm her down. The restraint lasted no more than 2-3 minutes. The First Claimant later began to cough and spit on the floor. Officers offered and provided her with a glass of water. Further attempts were made to explain the situation to the First Claimant and although she remained vocal, upset, erratic and screaming, (at one stage the First Claimant began hitting the floor with her fists) there was no further use of force at any stage.”
12.	The Defence contends that “at all times the degree of force used by the Immigration Officers was lawful and reasonable in detaining the first Claimant who was uncooperative and obstructive, and seeking to protect and release the second Claimant. To the limited extent that there was physical contact with the second Claimant, this was limited to physical contact in the context of guiding her away from the first Claimant who, in the officers’ reasonable perception, had been holding the second Claimant so tightly as to cause her to cry and scream”.
13.	It is not in dispute that after three hours at the premises the officers decided not to proceed any further with the arrest, among other reasons because one of Ms Shittu’s 15 month old twins had a bandaged leg from a previous foot injury. 
Father O’Grady’s letter
14.	Two days after the incident, Ms Shittu went to see her parish priest, Father Jeff O’Grady, who immediately wrote to the local Member of Parliament, Ann Coffey MP. The account of the incident in his letter (obviously with the first Claimant as the source) states:-
“At 7am on Monday 15th February two white vans containing eight Immigration Officers – 5 men and 3 women – arrived at her house, entered it with their own key, kicked down the child security gate at the bottom of the stairs, climbed the stairs to meet a trembling, terrified, hysterical mother, clad in her nightgown, her four children still fast asleep.
The officers told her that they had come to take her and children away to deport them with her partner Michael on the 19th February. They ordered her to get dressed which she refused to do, sitting on the floor. Two men and two women officers then tried to force dress her. In the midst of screaming and hysterics Kenny, her 7 year old daughter woke up, and seeing 7 people in her mother’s bedroom, and hearing her mother’s hysterical cries, jumped out of her bed, raced into her mother’s arms, wrapped her arms around her neck and clung on to her for dear life. While still sitting on the floor, the mother’s head was pressed sideways near to the ground, her arm was twisted behind her back and the child was wrestled from her arms, totally hysterical by this stage.”
15.	Father O’Grady expressed outrage at what had happened and wished to “complain in the strongest terms about the inhumane treatment meted out to Mrs Shittu and her children by the Immigration Officers”. He asked the MP to use her good offices to argue that, “purely on humanitarian grounds, Mrs Shittu’s interests would be best served by allowing her and her children to remain in this country”. 
16.	We were told that Ms Shittu and the children have indeed subsequently been granted leave to remain in the UK.
The judgment below
17.	Judge Armitage held:
“14…………The whole tenor of Veronica’s evidence was that she had not been open to persuasion. The essence of her strategy, having regard to her determination to defeat the deportation and her lack of other resources, had been to make it as difficult as possible for the officers to ready the family to leave the building. I accept, in part because it was not seriously in issue, that persuasion had been tried. I am satisfied that Veronica had done and said enough to make it clear beyond doubt that persuasion had no realistic prospect of success before any physical intervention occurred.
……
22. I am cautious about the label "hysterical" applied by Father O'Grady. I conclude that he was using the word in its common sense, describing an emotionally unstable state brought about by a traumatic experience. Certainly the events of 15th February had some of the elements of a traumatic experience for the Claimants, whether they resisted or not. Having heard Veronica's evidence at some length and read the transcript of her interview such hysteria may have been real or feigned. My conclusion is that it was a mixture of both. I do not accept that she was hysterical in the sense of suffering a complete loss of control of her speech and actions. Rather, she was less focussed than would ordinarily be the case about the consequences of what she did deliberately. What followed was the implementation by her of a rational plan formulated in haste on the spur of the moment to try to prevent their removal. Nonetheless it was effective and pursued relentlessly by Veronica. She presented the officers with a stark choice. Give up the attempted removal, or resort to a degree of force.
…
30. Veronica's witness statement, signed on the 21st September 2012 is very superficial. 
“5. Whilst accessing my home the officers used a key which they probably picked up from the landlord, damaged the child protection gate at the bottom of the staircase and entered my bedroom.”
That does not acknowledge that the officers had knocked before entering and that each had seen the other. The officers in the street had seen Veronica at a window on the upper floor and she had seen them in the street after they had alerted her to their presence by knocking. It refers to “her bedroom” as did Father O'Grady's letter, whereas in evidence Veronica said that that was a mistake. There is no account of what preceded the events in a back bedroom. Yet at trial it was common ground that there had been an exchange of words which resulted in Veronica eventually (rather than immediately) knowing why the officers were there and the officers knowing that Veronica was refusing to comply with what they thought were her legal obligations, before any of the adults entered the bedroom. I have no reason to doubt that the female officer, Amanda Cahill, who led her colleague Kevin Kilbane, up the stairs to Veronica, who was at or near the head of the stairs is correct and reliable in her evidence that that occurred outside the bedrooms. One of my reasons is that that was also Veronica's evidence at trial. Indeed in evidence she said variously that she had come out of her bedroom and had been "coming down the stairs" when the officers entered, then "coming out my room" and "I was on the landing". At trial Veronica said that the reference to "my" bedroom in her witness statement (and therefore also presumably in Father O'Grady's letter) was an error. Paragraph 6 of the witness statement, following the proposition at the end of paragraph 5 that the officers had entered her bedroom, continues 
"6. I was startled by the officers presence in my room, and was shivering as the officers stated 'we are taking you', I immediately stated I was not going anywhere as my two children had sickle cell disease and returning them to mosquito-infested environment in sub Saharan Africa would mean a death sentence on them. The officers insisted we have to take you whether you like it or not." 
That appears to me to be an attempt to suggest that the officers had surprised her in her bedroom, when on any view including her own oral evidence at trial, they had not. I regard that as a significant indication that Veronica's approach to this claim is not marked by candour. 
“7. As I was not expecting anybody I was still in my house wear hence not fully covered. The officers said I should cover myself up, tried to force dress me by picking up my trousers, I fell on the floor and started shouting Jesus." 
It will be noted that there is no allegation in that part of Veronica's evidence that physical contact was made by any of the officers with Veronica. It accords with the officers' evidence. In evidence Veronica made plain that she had not simply shouted as described but had raised her voice and shouted a number of things with the maximum force of her voice. No child could have remained asleep or undisturbed for long in such circumstances. I am satisfied, on Veronica's own evidence, that it was her chosen behaviour, which she but not the IOs knew to be in the presence of her child, which frightened Kenny.
31. In the course of oral evidence much time was taken with the evidence of Veronica and the officers about the attempt to persuade, then force, Veronica to dress. It is clear that there was a need for Veronica and the children to dress, even if they were to remain in the house and most certainly if they were to go into the street. It is equally clear, indeed not really in dispute, that Veronica saw her state of undress and unwillingness to dress as a weapon against her removal. She said so in interview……. “

18.	The judge rejected the claim that the first Claimant was forcibly dressed by the Immigration Officers and there is no appeal from that decision. In the course of that finding the judge was critical of what he described as an attempt by Ms Shittu “deliberately to manipulate the situation by reference to her gender and race.” He concluded that her hysteria was “in some measure feigned for the purpose of obstructing the officers”. He was satisfied on the balance of probabilities that no battery was committed in relation to dressing the first Claimant”. He continued:
 “38. Kenny did not give [oral] evidence but a witness statement, apparently signed on the 27th June 2013, was in evidence before me. I must assess the weight to be given to it. Kenny says that she was born in Nigeria in May 2002. Thus she was almost 8 in February 2010 and just 11 when she signed the statement. Kenny states that she recalls the incident. I am satisfied that she does. On any view this was a most unusual day. I doubt she recalls the date.
“4. I recollect that on the 15 February 2010 I was asleep in bed when I was awoken by noise in the room. I saw the UKBA Officers twisting my mother’s left arm. The officers were trying to force my mother to dress up and my mother was shouting.”
I am not satisfied that that is real recollection. The reference to arm twisting describes the second alleged assault, not the first. There is no detail about how the officers were progressing the attempt to dress her mother, nor even a reference to which items of clothing were being deployed.
“5. I ran towards my mum and held onto her as the other people in the room were strangers. I was pulled by the leg by the officers and this caused me much pain. I was very unhappy about what happened to me and my mother.”
I am unable to accept that that is an account of the events in Kenny’s own words. On any view of the evidence only one officer at a time touched Kenny. Kenny does not mention her mother holding on to her, which her mother admits/alleges that she did. That does not lead to the conclusion that it does not contain the gist of her recollection, but it does point to be being merely a highly edited account in the language of adults. Compared with her mother’s evidence and indeed that of the officers, it merges two stages of the account as told by her mother and lacks any detail about her own treatment. For instance it does not specify which leg was pulled. It does not relate even that she was parted from her mother, much less what Veronica did to resist that forced parting. I do not attach any real weight to that evidence.
…
46. Veronica proposed in evidence that she does not lie. I am willing to accept that, in ordinary circumstances, that is so. Nonetheless it must be difficult for a person to behave honestly and straightforwardly and to avoid at least suppressing the truth if not actively lying and yet to enter the UK and remain here illegally for a number of years. The circumstances were extraordinary, especially on the 15th February 2010 and immediately thereafter. I am satisfied that in relation to Veronica's determination to be and remain in the UK for reasons related to the protection of her children, the circumstances are so out of the ordinary that she is able to suspend her general attachment to the truth. She manifests a strong determination to do all in her power to achieve the protection of her children. I am not able to have the confidence in her truthfulness about the events in this case, which would otherwise have been the case. 
47. In relation to the battery to Kenny and this second event in relation to Veronica, the defendants' case is that some force was used on each. Precisely which officer did what was the subject of close examination at trial. It became clear to me that the detailed accounts of each officer could not be reconciled with the details of the evidence of all others, even when it was common ground that all had been present in the relevant bedroom for all or part of any phase of the event. To that extent cross-examination of the officers was 'successful'. It is also clear that a close examination of the detail contained in the contemporaneous records made by the officers, that is to say the initial reports, personal notebooks, Use of Force Forms and non-contemporaneous documents such as disciplinary/investigatory interviews resulting from Veronica's complaint, and witness statements for this claim reveals much inconsistency of detail and a tendency to 'flesh out' if not exaggerate the accounts of Veronica's activity in relation to Kenny. Cross-examination also demonstrated the effects of time in degrading the clarity of recollection of witnesses about what had happened as well as what had been written on earlier occasions about what had happened. 
48. I repeat that underlying the Claimants' response to the Defendant's case is the proposition that the officers had realised that they had acted unlawfully and therefore have given false accounts in their contemporary documents, in their interviews with the investigator arising out of Father O'Grady's complaint, in their witness statements as evidence in chief and under cross-examination. Regrettably the obvious logical proposition underlying that response, namely that the case being put by the Claimants was that the officers should be disbelieved because they were lying in support of what must be a conspiracy involving some or all of them to avoid the consequences of the wrongdoing, was not put to the early witnesses called by the defendants, nor was cross-examination conducted efficiently to achieve such a finding  namely a preference for the evidence of Veronica to that of the officers. Eventually, I put the problem roundly to the Claimants' counsel and posed the question: when did the conspiracy occur? My reason was that counsel's cross-examination of the officers had concentrated on their serial accounts and the proposition that they had 'improved' with the passage of time and in response to specific points put to them. It was an entirely proper approach, but required methodical chronological analysis in order to make it good. 
…
50. A feature which troubled me during the trial was an absence of evidence about who had decided that the use of force was justified to separate Veronica and Kenny. Nobody claimed to have said anything in terms of either suggesting or ordering the others to separate them, even though the officer in charge had been in the room at the time. The explanation, when I raised the matter, was that it was spontaneous because the circumstances made it obvious that Veronica was hurting Kenny. No officer suggested that Veronica was doing so deliberately. The inference which they invite is that Veronica had not realised that she was causing Kenny’s distress, not the presence and activity of the officers.
Conspiracy by the officers?
51. I recognise that any group, whether it be family, friends or an organised force, may ‘close ranks’ against outsiders. In relation to members of organised forces the motive may be self interest for disciplinary reasons or for the protection of the organisation, or both. Such allegiances may generate very strong motives for providing initial false accounts, from which later deviation, even at the point of oral evidence on oath becomes very difficult. Sometimes it becomes obvious that some witnesses are giving only nominal support to the allegedly false story, giving rise to the inference that although they know their evidence to be untrue, their consciences are salved by their patent lack of enthusiasm. I did not detect that attitude in this case.
…
56. Thus far I detect some evidence of collaboration, but none of dishonest conspiracy. Next comes: “Other Comments/Observations”. Of those who were asked whether they were permitted to collaborate (not all were asked despite the Claimant’s counsel’s application to have the officers remain out of court during other’s evidence, which I refused, but which resulted in the officers taking the hint and absenting themselves voluntarily) the answer was that although they were not prohibited from collaboration, they had not done so. Nonetheless officers Maclean (in charge on the day) and O’Neill had written:
“The subject had grabbed her daughter around her chest and refused to let go of her, when asked by IO Cahill to let go she refused and began screaming and shouting, in the process her daughter became upset. IO Cahill repeatedly asked her to let go of her daughter which she refused.”
With the substitution of “I” for her name, IO Cahill’s form to that point is in precisely the same terms. Thereafter they diverge. I am wholly unable to accept that the foregoing is other than the reason of prior agreement or of plagiarism, whether by ‘cut and paste’ word processing of old-fashioned coping later or looking over someone’s shoulder during composition. The unwillingness by anyone to admit what has happened gives rise to at least a suspicion that it has resulted from a realisation that an innocent explanation must be provided for undeniable force.
…
58. IO Kilbane’s account is different and indeed a more cogent attempted justification of the use of force. He wrote:
“During an enforcement visit to detain Veronica Shittu and her four children IO MACLEAN attempted to escort one of the children, Kenny, out of the bed. As she did this Veronica grabbed Kenny and held her in a bear hug. Fearing for the child’s safety myself, IO O’NEILL, IO CAHILL and IO MACLEAN attempted to get Kenny out of Veronica’s grasp. IO O’NEILL held Veronica’s right arm whilst I tried to loosen the grip she had on Kenny with her right arm. Having managed to loosen the grip Veronica had on Kenny I took Kenny out of the room and passed her on to colleagues to look after.”
That is a succinct statement of the defendants' case at trial, on that phase of the event, albeit not consistent with all the written and oral evidence. IO O'Neill's form asserts that he had grabbed Veronica's right wrist and adds that Maclean had used an inverted wrist lock on her right hand. By contrast O'Neill places Kilbane on Veronica's left arm, with IO Cahill. 
59. I was particularly favourably impressed by IO Kilbane. I found the general thrust of his evidence compelling. I am satisfied by his evidence that there has not been a conspiracy to misrepresent what the officers did and, importantly, why they used force to separate mother and daughter. 
60. Having regard to the acceptance that force was used by four officers, two male and two female, to remove a 7 year old girl from the embrace of her mother in what must on any view have been potentially distressing circumstances for mother and child, it seems to me that the officers' accounts of precisely what each did and in what sequence is of far less importance than why they did it.  Cross-examination of the officers revealed inconsistency of account between them and also in the several accounts each had given from time to time. I recognise that in later accounts there is greater detail. The more elaborate  accounts, for instance in the interviews arising from Veronica's complaint, there is material suggesting that some witnesses were warming to their theme. My conclusion is that when the constraints of a form, notebook or report are removed and a witness is pressed for a more detailed account, the emergence of additional detail and a defensive position is not a cause for suspicion. 
61. A reason for that conclusion is that this phase of the event, that is to say from the emergence of Kenny from under the bedclothes to her removal from the room, probably took only a few seconds encompassing very concentrated actions and attention by all the participants. To find even quite distinct variations of account between witnesses as to what others had done is not, in such circumstances, a matter for suspicion. It is unlikely that all witnesses in such circumstances will see and hear or register every action. If each had nonetheless given a perfectly co-ordinated account the suspicion would be that it was collaborative and not necessarily true. A review of the IOs’ pocket notebooks, initial written accounts and interviews (some verbatim transcripts, others mere summaries), their witness statements and their evidence under cross-examination does not lead me to the conclusion that there was a conspiracy to cover up a recognised and acknowledged misdeed. 
62. The Claimant argues that the operational plan, as exhibited, was so tightly timetabled, allowing only half an hour for packing and departure, that the force was used simply to facilitate rapid accomplishment of the task, in the face of dogged opposition. I acknowledge the force of that argument. The officers' answer, particularly IO Maclean, was that the timing was the standard allocation. It was achievable, but there was no requirement that it be achieved. I am persuaded that the timetable did not influence the manner in which the officers dealt with the Claimants. It seems to me that in any circumstance where those to be removed presented a degree of resistance, whether by argument or physical obstruction, the officers had to accommodate what they found and to adapt the timetable, as it was. 
63. Neither Veronica, nor any of the officers, said that any officer had given any order or oral encouragement to others to take Kenny from Veronica. I am satisfied that they acted spontaneously to circumstances which seemed to them, at the time, sufficient to warrant immediate intervention. This was distinctly different from the situation, argued by the Claimants' counsel, in which there was an opportunity for the officers to retreat and negotiate. If the officers are correct about what happened, an emergency had arisen. 
64. I am satisfied that Veronica also acted spontaneously. She saw her daughter, one of the children primarily at risk if they were deported, being taken from the room by an officer and took the opportunity to grasp her. I am satisfied that she was very fearful that all would be removed that day, into detention pending deportation. I am satisfied that she did not deliberately mistreat Kenny. The whole point of her resistance was to avoid harm. However I am satisfied that, in the agony of the moment, she did squeeze Kenny sufficiently tightly in her attempt to prevent her from being taken from the room, that it reasonably appeared to the officers that she was in fact harming the child. I find that Kenny was facing away from her mother, not towards her. I am satisfied that the force used to compel her to release Kenny was not greater than was reasonably required to protect Kenny from actual and impending harm and that the participating officers not only believed that that is what they were doing, but also that they were right. This was a heated and volatile situation. The heat and volatility was all generated by Veronica. Her actions were unpredictable. They dealt with it swiftly as a brief incident in what became a drawn out and ultimately unsuccessful removal. 
65. 1 have reached my conclusions of fact on the basis that 1 found the officers' evidence on the critical factual issues to be more credible than Veronica's, despite the failure of the officers to explain the resemblances in some of the Use of Force forms.” 

The law 
19.	 There was essentially no dispute between counsel as to the law which the judge had to apply. The first skeleton argument (drafted by Mr McLeish) of the Claimants seeking permission to appeal to this court stated at paragraph 2:-
“The D has consistently defended its use of force on the single basis that the force used by its officers was necessary in order to protect Kenny from her mother. The C accepts that there is a two limbed common law defence of necessity to assault available to the D, if it can prove, on the balance of probabilities: 
a)  That the D reasonably believed that it was necessary to take the action which it took.
b) That the action taken in all the circumstances was reasonable.”
This formulation is derived from the decisions of this court and the House of Lords in Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398; [2008] 1 AC 962; and Ms McGahey QC, for the Defendant, accepted it as a correct statement of the law.
UKBA’s Family Removals Guidance 
20.	Chapter 45 of UKBA’s enforcement instructions and guidance gives guidance to Immigration Officers on the removal of families from the UK. Section 45.5.5 (as worded in 2010) provided:- 
“45.5.5: Control and Restraint:
All family members, including children, should be arrested as a whole unit and the arrest should be made as soon as practicable, to ensure that the family is legally in immigration custody for conveyance to a designated place of detention. It will normally be that arrests in such circumstances will be under administrative powers contained in paragraph 17 of schedule 2 of the 1971 Act and not under criminal powers.
In all cases, if restraint is considered necessary, it must be overseen by a supervising officer who is not personally directly involved in the application of force and he or she should record events appropriately. Force must be age appropriate, only be used for the shortest possible period and de-escalated at the earliest opportunity when either the individual starts to comply or the officers’ objectives (of securing the safety of the individual or others, or, in the cases of adults only, to overcome resistance) have been fulfilled. The officer’s objectives behind the use of force must be clarified and limited.
Use of force on adults
It remains the Agency’s position that force on adults (i.e. any type of physical intervention) should only ever be used when it is immediately necessary to secure the safety of the individual or others, or to overcome resistance, and that it should be used only as a last resort when all other avenues of seeking voluntary compliance by way of persuasion have been exhausted.
Use of force on Children and Young People
The control and restraint of children and young people must be limited to circumstances where it is necessary for an officer to use physical intervention to prevent harm to the child or any individual present whilst ensuring they comply with a requirement to leave the UK.
Physical intervention must not be used simply to enforce the removal of children where there is no threat of violence. In the vast majority of cases there will not be a need for officers to exercise physical control or restraint of minors.
UKBA staff must give consideration to the need to safeguard and promote the welfare of the child concerned, and of any potential adverse impact to their physical or emotional wellbeing. Children who have been identified as having additional vulnerability, such as learning difficulties, medical conditions, etc may be more adversely affected by the use of the force and staff give due consideration to this.
In cases where there is active physical resistance, and physical intervention is deemed absolutely necessary to prevent harm, Officers must ensure that any action is age appropriate, limited to the minimum level of force required in that particular circumstance, justifiable and proportionate. All physical interventions should be in line with officer safety training and it is imperative that restraint must only be used for the shortest possible period and de-escalated at the earliest opportunity.
At all times, officers are accountable for and have to justify any decisions and actions that take. Force must only ever be used by staff trained in the use of Control and Restraint (C&R), and who have received refresher training within the last 12 months.
On every occasion when force has been used against a child, a comprehensive incident report must be completed as soon after the operation as practicable. A copy of this report must be sent to the officer of the Agency’s Children’s Champion.
Use of force in the presence of children
The wellbeing of children within our care is paramount; as such, the restraint of adults during a family detention visit should not be routine, given the possible impact that this may have on any child/children present.”
The grounds of appeal 
21.	 The grounds of appeal (save for ground 6, which was not pursued) are as follows:
“Ground 1: The Learned Judge was wrong to decide that a reasonable and/or proportionate method for protecting an 8 year old girl who is squeezed too tightly by her mother is to immediately resort to restraint against the mother in order to forcibly remove the child from her arms. Any reasonable person seeking to protect a child in these circumstances would first attempt less invasive and more child-centred methods, and the judge was wrong to hold otherwise. 
Ground 2: The learned judge misled himself because he erroneously regarded Veronica's use of passive resistance to avoid deportation as: 
a) morally wrong and/or unlawful, a judgment expressed in paragraph 6 and in the third last sentence of paragraph 9; and 
b) a moral and/or legal justification for the use of force, a judgment expressed in the final sentences of paragraphs 14 and 22.
Ground 3: The learned judge either failed explicitly to find, or if he did so find, failed to supply any reasons for finding; that the officers genuinely believed that the first Claimant was harming her child BEFORE the decision to use force was taken rather than AFTER force was already in the course of being applied.
Ground 3A: Although the learned judge found that prior to C1 harming C2, officers were engaged in attempting to remove Kenny from her without her consent and in doing so were touching C2, he has failed to give any reason why this initial touching was not already an unlawful battery of the latter.
Ground 4: The learned judge appears to have accepted that the operative reason in the minds of the immigration officers for using force to separate mother and child was the altruistic motive of trying to protect the child. However the only evidence relied upon in reaching that conclusion were the claims of immigration officers themselves, and contrary to the guidance of Goff LJ in Armagas Ltd v- Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep.1 at 57, these claims were not evaluated "by reference to objective facts proved independently of [the officers'] testimony, in particular by reference to the documents in the case and also to pay a particular regard to [their] motives and to the overall probabilities." 
Ground 5: The Learned Judge failed to provide any reason why any belief held by immigration officers that she was capable of harming her daughter so severely as to warrant being restrained was a reasonable one.”
Discussion 
22.	Although Mr Stephen Cragg QC placed Ground 1 at the forefront of his argument and argued it first, I think it is more logical to deal with Grounds 3-5 first: as with a trial judge giving judgment at the end of a witness action, it is usually better to make or consider findings of fact before going on to deal with the legal implications of the facts. 
23.	I begin with Ground 4, since this goes to the heart of the factual dispute. This was whether the Immigration Officers who separated Kenny from Ms Shittu did so with a view to protecting the child from harm or to facilitate the removal of the family from their home. The judge found, in paragraph 64 of his judgment, that it was the former. It would have been open to him to reject the explanation given by the Immigration Officers, and I doubt whether such a conclusion would have been appealable. However, he reached his conclusion after listening to lengthy cross-examination of the four witnesses for the defendant, and with a proper appreciation of the points made on the other side. For example, it was pointed out to him that the standard operational plan for a removal only requires officers to give a family 30 minutes to pack their belongings before leaving. At paragraph 62 the judge acknowledged the force of the argument for the Claimant that the officers were using force “simply to facilitate rapid accomplishment of the task in the face of dogged opposition”. Nevertheless, for the reasons he gave, he was satisfied that this was not their motivation. Similarly, in paragraph 50 he observed that he had been troubled during the trial by an absence of evidence about who had decided to use force to separate Veronica and Kenny, but he accepted the evidence that the use of force “was spontaneous because the circumstances made it obvious that Veronica was hurting Kenny”. It was open to him on the material before him to do so.
24.	Ground 4 refers to the guidance in the Ocean Frost case (Armagas Ltd v Mundogas SA [1986] 1 AC 717) that the testimony of witnesses should be evaluated by reference to objective facts which can be proved independently. Any trial judge, particularly one as experienced as this trial judge in hearing witness actions, is very well aware of this proposition. In any event, if one is referring to elementary principles of judgecraft set out or cited in the Ocean Frost case, it is as well to refer to the words of Lord Macmillan in Powell v Streatham Manor Nursing Home [1935] AC 243 at 256:-
“Where….the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard the witnesses unless it can be clearly shown that he has fallen into error”.
25.	In the Ocean Frost Dunn LJ, after citing this passage, went on to say that (especially if both principal witnesses show themselves to be unreliable) it is safer for a judge, before forming a view as to the truth of a particular fact, to look carefully at the probabilities as they emerge from the surrounding circumstances and to consider the personal motives and interests of the witnesses. In my view Judge Armitage did exactly that in the present case, with care and in considerable detail. 
26.	IOs Amanda Cahill, Dawn MacLean, Daniel O’Neill and Kevin Kilbane were the four officers involved in the act of separating Kenny from Ms Shittu. Each compiled a “use of force form”. IO Cahill also completed a “verbal abuse/threatening behaviour report form” on the day of the incident with a detailed account of the incident running to 1½ pages typed with single spacing. 
27.	The case followed the pattern of many criminal trials as well as civil ones where evidence is given by several agents of the State (police officers, immigration officers and the like) on one side and by a single individual on the other about an incident which lasted no more than a few minutes, involved a great deal of sudden movement and was not captured on film or CCTV, but where the agents of the State make notes or complete forms within a short time of the incident. If their accounts are identical they are cross-examined on the basis of collaboration, collusion or (as in this case) conspiracy. If their accounts differ, they are cross-examined on the discrepancies. This is familiar territory for most circuit judges and the judgment in the present case shows that the judge dealt with this issue conscientiously and correctly. This central ground of appeal is, in effect, a perversity challenge to the findings of fact. In my view it is not sustainable. The judge was entitled to accept IO Kilbane’s account of the incident for the reasons he gave.
28.	Ground 3 criticises the findings or lack of findings of a genuine belief by officers that the first Claimant was harming her child before the decision to use force was taken. But this is, with respect, fully answered in paragraph 64 of the judgment. The judge found that “in the agony of the moment” Ms Shittu squeezed Kenny sufficiently tightly that it reasonably appeared to the officers that she was in fact harming the child in what the judge correctly described as “a heated and volatile situation”. He found that the heat and volatility were generated by Ms Shittu whose actions were unpredictable. The judge was satisfied that the force used to compel Ms Shittu to release Kenny was no greater than was reasonably required to protect Kenny from actual and impending harm; that the officers believed that this was what they were doing; and that in his view they were right. In paragraph 63 he had said that he was satisfied that the officers acted spontaneously in circumstances which seemed to them at the time sufficient to warrant immediate intervention.
29.	Ground 3A was added by amendment at the permission to appeal stage without the Home Office having had the opportunity to make representations about it. The issue is not mentioned in the judgment below and seems only to have been mentioned in the briefest of forms, if at all, in oral argument. If the judge was right on the issue of the officers’ motive, Ground 3A cannot succeed. If (contrary to my view) the judge should have held in the Claimant’s favour on the motive issue, Ground 3A would add nothing. Mr Cragg realistically accepted that even if this ground were soundly based in fact and in law it could not of itself warrant any more than nominal damages. I would therefore formally refuse leave for it to be raised in this court.
30.	Ground 5 is, with respect, a jury point. It is of course unusual for mothers hugging their daughters to cause them injury. But this was a mother who on any view of the facts was in an extremely agitated state, upset and screaming. On this issue too the findings by the judge at paragraph 64 of the judgment were open to him on the evidence.
31.	Against the background of my conclusion that the findings of fact by the trial judge cannot successfully be challenged I return to Ground 1. I accept that 8 year old children are not usually embraced by a parent in circumstances which can even justify, let alone require, the forcible separation of parent and child. But this was an unusual case where the mother had lost control and had the child in what IO Kilbane described as a “bear hug”, and the child was screaming. In those circumstances the trial judge was entitled to find that the officers genuinely and reasonably believed that it was necessary to take the action which they did and that such action was in those circumstances reasonable. This is not, therefore, a suitable case in which to pronounce on what level of force would be appropriate in order to separate an adult from a child, where there is no perceived risk of imminent harm to the child, simply in order to facilitate a removal.
32.	Mr Cragg left Ground 2 until last and I have done the same. I do not think that the judge’s findings of fact can be impugned on the basis that “he erroneously regarded Veronica’s use of passive resistance to avoid deportation as morally wrong and/or unlawful – or as a moral and/or legal justification for the use of force”. He made a finding at paragraph 22 that Ms Shittu presented the officers with the stark choice of giving up on the attempted removal or resorting to a degree of force. That was not part of the Defendant’s case on the issue of whether the separation of Kenny from her mother was an unlawful assault and battery; on the contrary, it became part of the Claimants’ case in arguing that the purpose of using force had been to facilitate the removal. Nevertheless the judge found that Kenny was extracted from her mother’s “bear hug” because of the reasonable perception of the officers that the child was suffering harm. On the basis of that finding of fact on the central issue in dispute, the question of what the judge thought about the reasonableness or otherwise of Ms Shittu’s campaign of passive resistance is simply irrelevant.
Conclusion  
33.	 I would dismiss this appeal.
Lady Justice Asplin:  
34.	  I agree.
Lord Justice Underhill: 
35.	I also agree.