C (A Child) (Fact-Finding)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Andrews,Lord Justice Peter Jackson |
| Judgment Date | 04 May 2022 |
| Neutral Citation | [2022] EWCA Civ 584 |
| Docket Number | Case No: CA-2022-000144 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 584
Lord Justice Peter Jackson
Lord Justice Baker
and
Lady Justice Andrews
Case No: CA-2022-000144
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT GUILDFORD
HH Judge Nisa
GU21C00043
Royal Courts of Justice
Strand, London, WC2A 2LL
Ranjit Singh (instructed by Rosewood Solicitors) for the Appellant father
Peter Horrocks (instructed by Local Authority solicitor) for the First Respondent local authority
Sharan Bhachu (instructed by Owen White and Catlin LLP) for the Second Respondent mother
Hearing dates: 24 March 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 4 May 2022.
This is an appeal by a father against some of the findings made by a circuit judge in care proceedings involving his daughter, A, now aged 14. At the end of the hearing before this Court, we informed the parties that the appeal would be dismissed for reasons to be given at a later date. This judgment sets out my reasons for joining in that decision.
The background to this appeal can be summarised briefly. Following the breakdown of her parents' relationship in 2011, A lived with her father for over nine years until February 2021 when, aged 12, she was found alone at home by the police and removed to a family placement. In the course of a section 47 investigation, she informed a police officer and social worker that she had been left alone frequently, that her father drank excessively and that he physically assaulted her. As a result, he was arrested on suspicion of child neglect. In a police interview on 28 February, after his solicitor had read out a prepared statement, the father answer “no comment” to all questions. On 24 March 2021, A was interviewed on video. In the course of the interview, which lasted 48 minutes including two breaks, she repeated her allegations of neglect and physical abuse, referring to notes she had made prior to the interview.
A few days later, A showed a social worker a further note in her notebook in which she had written that her father had lifted her top and “hit my boons [sic]”. For reasons which are unclear, this allegation was not followed up by the police or social services for several weeks. Meanwhile, the local authority started care proceedings asserting that the threshold criteria were satisfied on the basis of A's allegations of neglect and physical abuse. A was made subject to an interim care order. On 24 April 2021, the father filed a statement in the proceedings denying the allegations which he said had been fabricated by A under the influence of her mother and grandmother.
Over the next few months, A moved placement four times, including a brief but unsuccessful placement with her mother. During this period, her behaviour was very disturbed, and she took an overdose on two occasions. On 21 May 2021, A was visited at school by police officers and a social worker investigating the additional entry in her notebook. In the course of a conversation with the investigating officer, when the other officer and social worker were waiting outside, A alleged that the father had touched her breasts, threatened her with a knife if he did not let him touch her, and threatened to strangle her. When the police officer asked the other officer and social worker to come into the room and read back the note she had taken of the allegations, A became very distressed and ran to be comforted by the social worker.
For various reasons, including the amount of disruption A had been experiencing, there was then a further delay in the investigation. Eventually, on 3 September 2021, A took part in a second formal interview which lasted 28 minutes including two breaks. In the course of this interview, which was again recorded on video, A made further allegations against her father, including that he had touched her breasts and threatened her. On this occasion, A did not take any notes with her into the interview room.
Following these further allegations, the local authority filed an expanded threshold document setting out 25 findings it was seeking, principally against the father but including some against the mother. The father's legal representatives applied for an order that A give evidence at the fact-finding hearing. At a case management hearing on 20 September, a district judge directed the children's guardian to prepare a report as to whether A should give evidence and listed that issue for a “ Re W” hearing before the trial judge on 29 November. The parents filed responses to the local authority's revised threshold document. In his responses, the father denied all the allegations and asserted, in respect of the sexual abuse allegations, that that they were “entirely fabricated” and that he believed that A had been “brainwashed” into making them so that the police could extend his bail conditions. On 4 November, the guardian filed a report recommending that A should not give evidence “in any form”. At the hearing on 29 November, the judge directed that A should not give evidence but asked the guardian to consider whether she should provide answers to limited written questions. In response, the guardian recommended that she should not be required to answer any further questions.
The fact-finding hearing took place over seven days in January 2022. The judge watched the video recordings of A's two interviews. The local authority called a number of professional witnesses including those involved in the investigation and interviews of the child. The mother attended the hearing and gave evidence. The father refused to attend court or give evidence via a video link, notwithstanding the judge's warning that an adverse inference might be drawn. There was no application to the judge to reconsider her decision that A should not give evidence.
At the conclusion of the hearing, the judge gave an ex tempore judgment. She started by identifying the relevant legal principles, referring to an agreed note of the law prepared by counsel and citing a number of authorities, including:
(a) the observations of this Court in Re JB (Child: Sexual Abuse Allegations) [2021] EWCA Civ 4 about the approach to interviews conducted under the Achieving Best Evidence (“ABE”) Guidance;
(b) the principle in R v Lucas [1981] QB 720. although she added that “no one has asked that I apply that to any of the evidence”;
(c) the observations of this Court in Wiszniewski v Greater Manchester Health Authority [1988] PIQR 324 concerning the drawing of adverse inferences.
The judge proceeded to summarise the evidence given by the professional witnesses called by the local authority — police officers and social workers — whom she described variously as clear, consistent, accurate, truthful and reliable. She set out in some detail their evidence concerning the statements made by A about her father during the various conversations and interviews that took place in the course of 2021. The judge then considered the evidence given by the mother, concluding that, whilst she loved A, her volatile behaviour was likely to cause her emotional harm and that she lacked the insight and understanding to care for her daughter safely.
The judge then addressed the father's failure to attend the hearing or give evidence. She said:
“I understand that the reason given by him is that, if A is not attending court, then he is not attending court either. I think that is an absolute ridiculous reason for an adult to give as to their non attendance. Mother is clearly in court. I do not see why the father should not be in court. There are serious allegations that are being levied at the father. His response is a simple denial and saying that the mother or the grandmother or both have put A up to making these allegations against him.”
She proceeded to consider the father's limited written response to the findings sought by the local authority. She went through the allegations of neglect and verbal and physical abuse, and concluded that she was satisfied by the local authority's evidence, and proceeded to make the findings as sought, save for some which she decided were a repetition of others.
The judge then turned to the allegations of sexual abuse. At paragraphs 98 to 101 of her judgment, she said:
“98. It is clear that in the ABE interviews she has not been prompted. The interviews I would say have been in accordance with the guidelines, despite the fact that the second interview, the truth and lie test was not recorded on the tape, I am satisfied that the interviews conducted this test. The ABE interviews have considerable weight attached given the disclosures made, the demeanour of A at those interviews and the fact that she has not been prompted.
99. In fact, she has been left very much to her own devices and my observation is that in the first interview, which is recorded, A has considerable notes in her hand. She seems very confident when she is looking at her notes: great reminders for her as to what she wants to talk about and she moves on from one note to another and you can see the way she moves the pages in doing that. Nobody is prompting her at all. Very few questions are asked of her and I would say that that is very appropriate, otherwise the criticism would be that she is being probed and she is being prodded and she is being led. She certainly has not. The second interview, she reveals, I would say, very serious allegations, more serious than the first interview and she is more withdrawn. She does not have the use of the notes in the same way as she did before, but she is able to demonstrate by using a drawing that was made for her to indicate where her father had touched her. It is quite...
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T (Fact-Finding: Second Appeal)
...of Underhill LJ in Re JB (A Child) (Sexual Abuse Allegations) [2021] EWCA Civ 46 at paragraph 48 and my observations in Re C (A Child) (Fact-Finding) [2022] EWCA Civ 584 at paragraph 21. Secondly, he stated that: “it is for the local authority to prove its case and the burden of proof alw......