B v Reading Borough Council and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MACKAY,Mr Justice Mackay |
| Judgment Date | 24 June 2009 |
| Neutral Citation | [2009] EWHC 998 (QB) |
| Date | 24 June 2009 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ02X01802 |
[2009] EWHC 998 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Mackay
Case No: HQ02X01802
Mr N. Bowen QC & Miss Shu Shin Luh (instructed by Gabb & Co) for the Claimant
Mr A. Miller (instructed by Watmores) for the 1 st and 2 nd Defendants
Mr A. Warnock (instructed by Barlow Lyde & Gilbert) for the 3 rd Defendant
Hearing dates: 31 st March – 7 th April 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Mackay:
Between 1990 and 1995 B went through the most terrible experience that a father can face, being falsely accused of sexually assaulting his three year old daughter. In 1995 a court found that no such abuse had occurred and he began the process of re-building his relationship with the child, in these proceedings named L. He says that the effect of those five and a half years has continued to blight his life and claims that responsibility for it in law lies with a social worker and a police officer who together investigated the allegation in its early stages.
L was initially a claimant, but soon after achieving her majority she returned to live with her mother and in due course filed notice discontinuing her claim, having told her solicitor that she did not recall past events and wanted to get on with her life. She is now 22.
The history of this litigation, as has been said before, does little credit to those concerned with its conduct. The proceedings in the Family Court took no less than five and a half years and 23 days of hearings to reach the conclusion that B had not abused L, and that contact between him and L should resume. The Queen's Bench proceedings were begun by a writ issued in May 1998 and have taken 11 years to come to trial because of a combination of inertia, funding problems and heavy interlocutory activity involving two appeals to the Court of Appeal. This has meant that I am trying fact-sensitive allegations of great seriousness over a distance of 19 years. But before I deal with those facts in any detail there are issues of law I must decide, the answers to which will shape the case and the decisions I need to reach.
The background in brief
B is now 52 and met SJ in 1984. They formed a relationship, bought a house together and on 16 February 1987 their daughter L was born.
When L was 16 months old they separated, their relationship having broken down. For the first nine months or so B enjoyed regular contact with L by agreement, but further differences arose between B and SJ which resulted in that contact becoming infrequent and at times non-existent.
After a period of contact in January 1990 SJ began to raise the possibility that B had sexually abused L. That led to the events which have been the subject of intense and necessary focus in this trial. The outcome was that L was placed on the At Risk Register, SJ cut all contact between B and his family and L, and private and public law care proceedings began their slow course through the County Court. I will have to look in detail at what led to this process and the basis on which it is alleged that the current Defendants are legally responsible for it. But first the issues of law which I must address.
The Judgments of HHJ Kenny
HH Judge Kenny (“the Judge”) was the Designated Family Judge who managed and heard two forms of process. The first was an originating application by B, issued on 20 May 1991 under the Guardianship of Minors Act 1971, asking that he be afforded access, as it was then still called, to L. The second was in the form of Public Law proceedings issued on 5 October 1993 under s. 31 of the Children Act 1989 by Berkshire County Council (the legal predecessor of the first two Defendants) seeking a care or supervision order in relation to L. These were consolidated and were the subject of an initial 10 day hearing culminating in an interim order made on 14 October 1993. The Judge adjourned the hearing, made an interim supervision order in favour of the local authority and an interim contact order in favour of B's parents at the discretion of the local authority and on the advice of the social worker. The judge expressed the clear but provisional view on the evidence he had heard up to that stage that he thought that B had not sexually abused L and if she had been subject to any sexual abuse it could not reasonably be attributed to him.
Plainly the Judge was hoping that that would resolve matters, but it did not. The case returned to him (the Judge having tried unsuccessfully in the interim to transfer it to the High Court) and in October 1995 another 14 days of evidence and submissions were heard. The issues which the Judge had to decide were defined by him as these:—
i) Whether B had sexually abused L in the past;
ii) Whether L should have contact with B or his family;
iii) Whether SJ's views on the issue of sexual abuse of L by B or the need to prevent him or his family having contact with L were honestly held or reasonable;
iv) If such contact would be in L's best interest how it was to be achieved in view of her opposition to it.
As to the first issue he found that he was sure that L had not been so abused by B, and that is the only finding that directly concerns me in this current trial. The Judge gave his reasons for this finding over 28 paragraphs of his judgment. It was the case, as is apparent from that judgment, that the only persons then contending that there was any evidence of such abuse were SJ and her mother (who was separately represented by counsel, I was told).
In the second of his two judgments the Judge made swingeing criticisms of Mrs Sullivan and WPC Grey, the social worker and police officer who had conduct of the initial investigation of SJ's complaints, in particular in respect of their questioning of L at an interview on 11 April and their reporting of their findings to the Case Conference. The meat of these criticisms is set out at Paragraph 36 of the Re-Re-amended Particulars of Claim and repeated by Astill J at paragraph 13 of his judgment.
On 19 December 2002 in these current proceedings the Claimants (L was still a party then) applied to Astill J for an order/declaration that they be entitled to rely on those two judgments as “evidence admissible in these proceedings and [as] being finally determinative of the facts stated in them”. It was also sought to strike out certain passages in the defences inconsistent with those findings.
Astill J refused the application and no attempt was made to appeal his decision. There is therefore an immediately obvious problem. This is because I am urged by Mr Bowen for B to revisit his application, to say that Astill J was wrong and that the findings should be admitted. There are no new circumstances he has identified which might justify my overturning a decision of a judge of competent and equal jurisdiction to my own, apart from the fact that I have heard the evidence whereas he was proceeding on the basis of the pleaded cases. I was referred by Mr Warnock, for the Third Defendant, to CPR 29.9 and the decision of Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 Ch at [7] where he held that for the High court to revisit one of its earlier orders there must be shown to be “some material change of circumstances or that the judge who made the order was misled in some way”. I agree with him that, absent material changes in the case, the court should not entertain an argument which could have been raised at the earlier hearing, for otherwise no interlocutory decision would be of any value, and the opposing party would never know the parameters of the case it has to meet.
I decided during the opening that I would defer this issue until I had heard the whole of the case, that I would look at the two judgments (as I have done) de bene esse and that in any event I would admit in evidence as hearsay, subject to weight, any parts of the evidence put before the judge in the care proceedings such as were shown or summarised to me and appeared to me to be relevant.
But the second objection to Mr Bowen's application is that I am satisfied that Astill J was right. The application was based on abuse of process, that it would be a collateral attack upon the judgment of the judge to re-litigate his findings in these proceedings, and on the cognate concept of issue estoppel because the issue had been litigated already between the same parties or their privies.
Mr Bowen said that either Astill J failed to understand, or he failed adequately to explain to him, the process the Judge had been engaged on and the link between that and these proceedings. He was relying on the principle explained by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at [31 A-F]; it is there described as a broad merits-based exercise, taking account of the public and private interests involved, and where the crucial question is whether a party is misusing the process of the court by raising an issue which could and should have been raised before.
I am as unimpressed by this line of argument as Astill J was. He understood Mr Bowen's arguments, and set them out at [17]. A number of authorities including Johnson were cited to him and he reviewed them. He concluded his decision in this way at [33]:—
“The reason that I find no support for Mr Bowen's submissions is that the essential question here is whether …. what the care judge said about the conduct of the social worker and the woman police constable can...
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