H v L and R

JurisdictionEngland & Wales
CourtFamily Division
JudgeMR. JUSTICE RODERIC WOOD,Mr. Justice Roderic Wood
Judgment Date07 Dec 2006
Neutral Citation[2006] EWHC 3099 (Fam)
Docket NumberCase No: DA05P00034

[2006] EWHC 3099 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr. Justice Roderic Wood

Case No: DA05P00034

Between:
Re H
Applicant
and
L
1st Respondent
and
R
2nd Respondent

The Applicant H appeared in person

Ms. Sophia Cannon for the 1 st Respondent

Mr. John Church for the 2 nd Respondent

Mr. Deiniol Cellan-Jones (Instructed by the Treasury Solicitor) as advocate to the Court

Hearing dates: 22 nd to 24 th November 2006

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 RODERIC WOOD

This judgment is being handed down in private on 7 th December 2006. It consists of 9 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr. Justice Roderic Wood

The Issue:

1

In the context of a father's applications for a parental responsibility order and a contact order (pursuant to the provisions of Section 4 and Section 8 of the Children Act 1989, hereinafter called "The 1989 Act") in respect of his 9 year-old daughter "R" by a non-marital relationship, it was determined that there should be a fact-finding hearing to determine the truthfulness or falsity of a number of allegations, including allegations that he had on one occasion sexually abused the older daughter (by a different father) of the mother of his child. That sexual abuse was alleged to have taken place when the older daughter (hereinafter referred to as "B") was 9 1/2; she is now 20 years of age. There were, in addition, other allegations relating both to the father's alleged behaviour towards B, and in respect of his behaviour generally, and in particular in relation to the excessive consumption of alcohol and the consumption of class A drugs, in respect of which B could give evidence.

2

In the course of the long forensic history of this case there came a time in March 2006 where the father, no longer able to fund the continuing litigation, but in receipt of earnings which disqualified him from receiving public funding from the Legal Services Commission, began to act in person.

3

All I need add by way of background for the purposes of this Judgment is that B was a borderline anorectic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).

General Principles:

4

The burden of proving the allegations fell upon the mother, since forensically it was she who made them, although the factual evidence had to come from B. The standard of proof required was the balance of probabilities, [see Re: H (Minors) (Sexual Abuse: Standard of Proof) AC 563.]

5

Article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 as incorporated into English Law by Schedule 1 of the Human Rights Act 1998 reads (in part)

"Article 6 (1) In the determination of his Civil rights and obligations, or of any Criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(3) Everyone charged with a criminal offence has the following minimum rights:

(c) To defend himself in person or to legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) To examine or have examined witnesses against him ….." (emphasis supplied).

6

In most, if not all, criminal prosecutions where a child is the alleged victim of abuse various procedures are adopted for the eliciting of such material. These procedures include the playing, where available and appropriate, of video—taped interviews of the child taken under the Achieving Best Evidence protocols. The child is then cross-examined (usually on a video-link) and, if necessary, re-examined. Although, in principle, Article 6 (3) (d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by section 34 A of the Criminal Justice Act 1988 which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by section 35 of the Youth Justice and Criminal Evidence Act 1999 (hereinafter referred to as "the 1999 Act").

7

In civil cases, such as this, there is no automatic right given to a person facing such allegations to have a child witness appear in court for the purposes of giving evidence in chief and/or cross-examination. In Re D (sexual abuse) [2002] 1FLR 723 Dame Elizabeth Butler-Sloss P. sitting as a Divisional Court hearing an appeal from the justices in the context of care proceedings brought pursuant to the provisions of Part IV of the 1989 Act, said this:

"There are cases, particularly with children where a good video interview or a good audio interview will be accepted by the court in lieu of the child giving evidence because it is not the practice to ask children to give evidence in these care proceedings."

8

What, however, is the position in civil proceedings in relation to adults? The quotation from Re D above continues:

"It is not the practice to protect adults. Some adults may need protection and therefore, exceptionally, there may be an adult who does not give evidence but whose statement may be acceptable to the court. That will be a rare occurrence. Normally the court will expect adults to give evidence and at least to give a statement."

9

The same position applies, subject to a very limited category of exceptions which I need not recite, in respect of adult evidence in criminal proceedings in either the justices or the crown court. There is an expectation that an adult witness will give evidence and be cross-examined. Following the widely publicised case of R v Milton Brown (the first instance trial taking place before His Honour Judge Pontius, and the appeal hearing taking place before Lord Bingham of Cornhill LCJ, and Turner and Penrey-Davy JJ. [Milton Brown RV [1998] EWCA Crim. 1486]) Parliament addressed, as a matter of urgency practice and procedure in the criminal courts where a defendant in person has to cross-examine, or may choose to cross-examine, an adult complainant in certain categories of case involving allegations of a sexual offence – see below.

10

There followed swiftly from the decision of R v Milton Brown the passing of the 1999 Act. By section 34 of that Act:

"No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either –

(a) in connection with that offence, or

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings."

As Lord Bingham LCJ. said in Milton Brown:

"When the defendants represent themselves in criminal trials problems regularly arise. Such defendants lack the knowledge of procedure, evidence and substantive law; that appreciation of relevance; that ability to examine witnesses and present facts in an orderly and disciplined way; and that detachment which should form part of the equipment of the professional lawyer. These deficiencies exist even where a defendant attempts to represent himself in all good faith. But the problems are magnified one hundred-fold where the defendant is motivated by a desire to obstruct the proceedings or to humiliate, intimidate or abuse any one taking part in it."

11

In considering this statutory provision I hereafter only refer to the position in relation to adult witnesses. Given that Article 6 of the Convention (see above) (and domestic law prior to its incorporation) nevertheless requires that a defendant in the criminal process shall have the right to have cross-examined any witness (even where they do not do so themselves) Parliament provided in section 38 of the 1999 Act as follows:

"(1) This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.

(2) Where it appears to...

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9 cases
  • Chief Constable v YK and Others
    • United Kingdom
    • Family Division
    • 6 October 2010
    ...into territory which is not directly germane of the present case, I would like to associate myself with the observations of Wood J in H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162 ( H v L and R). In that case, Wood J was faced with a male litigant in person who wished to cross-exami......
  • Re K and H (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 May 2015
    ..."wholly inappropriate" for him to question Y himself. He shared the "profound unease" expressed by Roderic Wood J in H v L and R [2006] EWFC 3099 (Fam), [2007] 2 FLR 162 at para 24. In so far as the judge explained why he considered it to be inappropriate for him to que......
  • J (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 6 February 2018
    ...issue in the family courts on a regular basis: ‘61. The iniquity of the situation was first highlighted 11 years ago by Roderic Wood J in H v L & R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162. It was reiterated in Re B (a child) (private law fact-finding-unrepresented father), D v K [2014......
  • Re W (Fact Finding: Hearsay Evidence)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 6 November 2013
    ...Abuse Allegations: Evidence of Adult Victim) [2002] 1 FLR 723; Re B (Allegation of Sexual Abuse: Child's Evidence) [2006] EWCA Civ 773; H v L [2006] EWHC 3099 (Fam); B v Torbay Council [2007] 1 FLR 203; W (a child) [2007] EWCA Civ 1255; JFM v Neath Port Talbot Borough Council [2008] EWCA Ci......
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