A, B and C (Children)
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Baker LJ,Arnold LJ |
| Judgment Date | 01 April 2021 |
| Neutral Citation | [2021] EWCA Civ 451 |
| Date | 01 April 2021 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2021/0038 & B4/2021/0073 |
[2021] EWCA Civ 451
Lady Justice Macur
Lord Justice Baker
and
Lord Justice Arnold
Case No: B4/2021/0038 & B4/2021/0073
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EAST LONDON FAMILY COURT
Recorder Posner
ZE20C00089
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Bagchi QC and Anna Lavelle (instructed by Russell-Cooke LLP) for the 1 st Appellant
James Presland (instructed by Atkins Hope Solicitors) for the 2 nd Appellant
Jacqui Gilliat and Bronach Gordon (instructed by London Borough of Croydon) for the Respondent
Hearing dates: 10 March 2021
Approved Judgment
Introduction
Two separate appeals arise from the decision of Recorder Posner, sitting in the Family Court, East London, on 17 th December 2020. They raise distinct points and are not mutually dependent.
The first appeal, that of ‘D’, the juvenile intervenor in the fact-finding hearing, criticises the process by which serious findings of fact were made against him and which, he argues, are consequentially flawed. He is represented by Mr Bagchi QC and Miss Lavelle.
The second appeal is that of ‘H’, the stepfather of ‘A’, the subject child in terms of triggering the Local Authority's intervention described below, and the biological father of ‘B’ and ‘C’. He accepts the findings of fact made against D but disputes the judge's conclusions as to whether the threshold conditions in s.31 of the Children Act 1989 have been made out in his regard. He is represented by Mr Presland.
The Local Authority, represented by Miss Gilliatt (who did not appear in the court below) and Miss Gordon, resist the appeal and seek to uphold the judgment, particularly as regards the findings against D but with “less vigour” in relation to the threshold conclusions against H.
Background
The case concerns three female children: A (born in December 2012), B (born in March 2016) and C (born in May 2017). The children's mother is ‘G’ who at the relevant times was living with H. A's biological father is ‘J’. D (born in January 2004) is H's nephew.
The proceedings follow allegations by A that she was sexually assaulted by D at the beginning of 2019, starting at a time when she and her family were staying with D, his mother E and sister F, as they awaited to be rehoused, and during a subsequent visit that D made to A's new family home when the three girls were present.
The Recorder found A raised these allegations with G between October 2019 and 12 December 2019. G spoke to J on 12 December 2019 and took A to see him on the following day where A repeated or made similar allegations. J covertly recorded part of the three-way conversation that took place. The recording has subsequently been professionally transcribed and is cited in full in the Recorder's judgment.
J reported A's allegations to the police on 17 December 2019. That evening H went to the home of E, D and F and informed them that A had made allegations that D had raped her. D denied that anything had happened. On the same evening, H also spoke to A, who repeated or made similar allegations to him. The Recorder found that H had not provided a consistent account of precisely what A said to him on this occasion and “ because it took place on the eve of [A's] first interview with professionals … what [H] said to [A] and the manner in which he questioned her could influence her subsequent accounts”.
H accepted that after being informed of the allegations by M, his initial reaction was to wait until after Christmas and to have a family meeting before informing the police. He envisaged that A would make her allegations in the presence of D and the rest of the family and would be asked questions, D would then respond, and thereafter a joint decision would be made about referring the matter to the police.
A was interviewed at school on 18 December 2019 by police officers, a social worker, and teacher. Good practice in recording the critical details that emerged from this meeting certainly was not observed. There were extremely poor notes of the interview and no complete record was made. It appears that A made further allegations in this interview, suggesting that D had come to her home the previous Saturday, 14 December 2019. As a consequence of this latest allegation, all three children were taken into police protection that afternoon.
A was medically examined on 18 December 2019 in accordance with her allegations. Nothing abnormal was detected on external and internal anal-vaginal examination.
In her ABE (Achieving Best Evidence) interview on 19 December 2019, A made further allegations, including the claim that D had put his penis into her mouth and ejaculated on an occasion when he visited her home.
D was interviewed by police on the same day. He denied the allegations.
The Local Authority issued care proceedings on 11 February 2020. On 19 February, the children were made the subject of interim care orders.
G and H subsequently separated. H went to live with E, D and his older sister, ‘K’, in April 2020 whilst he searched for alternative accommodation.
D was rightly made an intervenor in the proceedings. An intermediary was instructed on his behalf. The Recorder's understanding, as recorded in her judgment, was that D required an intermediary ‘because his ability to deal with large amounts of information and understanding of certain language and concepts including court terminology is limited by reason of his age.’ Questions that were intended to be put to him in cross examination were directed to be submitted in advance to the intermediary to ensure they were phrased in an appropriate way for him to understand and to then be approved by the Recorder.
Findings of fact and threshold conclusions
The Local Authority inter alia sought three findings of fact against D and a finding of fact against H that he failed to take any protective action once he became aware of the allegations in December 2019.
So far as is relevant to these appeals, on 9 December 2020, the Recorder found, that:
1. D had anally raped A on multiple occasions during January and February 2019 at his home and once in April 2019 in the garden of A's home when he had also orally raped her and ejaculated into her mouth.
2. H did not know or suspect that D was sexually abusing A at the time, but once he became aware of A's allegations he did not take any protective action. His response to the allegations, as indicated above, had been inappropriate.
3. If A knew that H had been living with D since April 2020, this message would be ‘potentially emotionally harmful’.
As to threshold:
1. The relevant date was 18 December 2019, when the children were taken into police protection.
2. A had suffered significant physical, emotional, and sexual harm at the hands of D.
3. H was likely to fail to protect A, B and C from future sexual abuse by a person or persons unknown and was likely to cause them significant emotional harm.
4. The threshold was crossed in respect of B and C, ‘by virtue of them being in their parents' care at the relevant time’.
Decision under appeal
The Recorder, rightly in my view, was critical of the conduct and recording of A's interview at school on 18 th December 2019. It was described as ‘poor police and social work practice given the centrality of [A's] allegations and this being her first account to professionals.’ However, the Recorder was satisfied that a proper record of A's answers had been made by the teacher who was ‘conscientious and competent’. Nevertheless, the judge concluded that in the absence of a record of the questions asked it ‘sound[ed] a clear need for caution in my assessment of [A's] allegations.’
The Recorder concluded that H was likely to have first learnt of the allegations on 16 th December directly from A. The Recorder regarded H as being unable to place A's needs before those of D and interpreted his visit to D's home on 17 December 2019 to have alerted D and thereby given him time to prepare what he would say to the police.
The Recorder decided that the questions of whether A had been sexually abused and, if so, by whom, were inextricably linked. The only person whom A had ever accused of sexually abusing her was D: it would be illogical to find A's description of what had happened to her to be credible, but not her identification of the perpetrator.
The Recorder gave little weight to the lack of supporting medical evidence. By the time A was physically examined, the forensic window had long passed. Although no-one had noticed any change in A's behaviour in January or February 2019 consistent with her being sexually abused, reactions would differ with each individual child. She could find no motive for A to make up the allegations nor was this a case in which any of the adults had an interest in prompting false allegations to serve their own ends.
The Recorder recognised that there were inconsistencies in A's account. The number of times the sexual abuse was alleged to have occurred at D's home ranged between 11 and 24, which the judge recognised as an ‘improbably large number.’ A had also alleged on one occasion that the sexual abuse in the garden had happened on 14 December, although the covert recording taken by J indicates that A must have been referring to D's visit in April 2019. The Recorder concluded that either A was lying or had made ‘a mistake of such magnitude that it shows she is not a reliable reporter’. However, she had also considered that since A was questioned on her allegations ‘at least 4 times...
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