J, P and Q (Care Proceedings)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Warby,Lord Justice Coulson |
| Judgment Date | 26 January 2024 |
| Neutral Citation | [2024] EWCA Civ 22 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000854 and 000963 |
[2024] EWCA Civ 22
Lord Justice Coulson
Lord Justice Baker
and
Lord Justice Warby
Case No: CA-2023-000854 and 000963
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT EAST LONDON
HH Judge Thain
ZE22C00055
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Twomey KC and Shaun Murphy (instructed by Edwards Duthie Shamash) for the First Appellant
Cyrus Larizadeh KC and Michael Bailey (instructed by Copperstone Solicitors) for the Second Appellant
William Tyler KC and Giles Bain (instructed by Local Authority Solicitor) for the First Respondent
Nick O'Brien (instructed by GT Stewart Solicitors) for the Children, by their Children's Guardian
Hearing date: 22 November 2023
Approved Judgment
This judgment was handed down by the judges 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 10:30am on 26 January 2024.
Introduction and background
These two appeals are brought against findings made in care proceedings. The three girls who are the subject of these proceedings are J, now aged 15, P, 8, and Q, 2. They have an older sister, Y, aged 17, who was the subject of separate care proceedings. The mother of all four girls is the second appellant. The first appellant, hereafter referred to as F, is the father of P and Q. The father of the two older girls has played no part in the proceedings.
In 2008, another girl, hereafter referred to as B, then aged 7, the daughter of a former partner of F, made allegations of serious sexual abuse against F which led to his prosecution on a number of charges. Later that year, following a criminal trial, F was acquitted of the rape of B. The jury were unable to agree on verdicts on twelve further counts of sexual offences. The Crown Prosecution Service decided not to seek a retrial and not guilty verdicts were subsequently entered.
In November 2020, Y made allegations of physical abuse against her mother and was made subject of a police protection order. Care proceedings were started in respect of her and she was placed in foster care under an interim care order. In the autumn of 2021, the mother gave birth to Q. In December 2021, J also made allegations of physical abuse against the mother and went to stay with her grandfather. On 27 December 2021, J told a friend over social media that she had been sexually abused by F for the previous three years. She then repeated the allegations to police and social services and on 29 December, she was interviewed under the Achieving Best Evidence (“ABE”) procedure. F was arrested and charged with rape and sexual abuse of J. He denied all the allegations. When informed of the allegations, the mother told the police that J was lying. When Y was interviewed, she told police that she was unaware of any sexual abuse of J but said that F had insisted on shaving her and her sister in the shower.
Care proceedings were issued in respect of J, P and Q. On 14 March 2022, an interim care order was granted in respect of J who was placed with her grandfather with whom Y was living. P and Q remained at home with their mother under interim supervision orders. F was prevented from visiting the property by bail conditions and his contact with P and Q was professionally supervised. The local authority alleged that the mother continued to ostracise J and as a result there were difficulties in arranging contact between J and her younger sisters. It was alleged that on one occasion the mother had put the phone down when talking to J after saying that she “could not deal with this” and had prevented J collecting her belongings. Subsequently Y and J moved to separate foster placements and, although Y has now returned to her grandfather, J remains in foster care.
In July 2022, J made an allegation that she had been sexually assaulted by an unknown man on a bus. Examination of CCTV footage subsequently revealed that her allegations were in some respects untrue and that the acts that had taken place on the bus were consensual. When challenged, J accepted that she had lied about aspects of her account. As a result, the CPS decided not to proceed with the charges against F and the criminal proceedings concluded with no evidence being offered.
Meanwhile, the local authority had discovered about the earlier allegations made by B and the previous prosecution in 2008. They contacted B, by then an adult in her early twenties, who agreed to give evidence in the care proceedings.
The hearing and judgment
At the fact-finding hearing, the court was therefore required to determine (1) B's allegations of sexual abuse against the father from 2008; (2) J's allegations of sexual abuse against F; (3) whether the mother failed to protect J from such abuse; (4) whether J, P or Q were at risk of sexual abuse from F; and (5) J's allegations of emotional and physical abuse levelled against her mother.
In the course of a ten-day hearing which started on 23 January 2023, the judge heard oral evidence from nine witnesses, including B, F and the mother. Although J had at one stage indicated that she would give evidence, in the event she did not. Her allegations were therefore put before the court in the form of the recording of the ABE interview.
It is unnecessary to refer in detail to most of the evidence for the purposes of this appeal. The judge's approach to B's allegations is, however, central to the issues we have to consider. Before referring to the relevant parts of B's oral evidence, three important factors must be mentioned. First, as noted above, B had been interviewed under the ABE procedure in 2008. Although the judge at the fact-finding had a transcript of the interview, the video recording was no longer available. Secondly, the transcript of B's oral evidence at the criminal trial in 2008 was also unavailable, having apparently been destroyed in 2015. Thirdly, in a statement in the present proceedings, B said that, whilst she could remember some things that had occurred and comments that had been made before and after the alleged incidents, she could not remember the acts themselves. She added: “it is as if my brain blacks out the memory”. B described difficulties she had experienced in the following years, including diagnoses of obsessive-compulsive disorder, post-traumatic stress disorder, emotionally unstable personality disorder, and anorexia.
In her evidence in chief, B said that, after signing her statement in these proceedings, she had read the transcript of her ABE interview, that this had been the first time she had read the transcript, and that it “made my memories that I had remembered more clear”. She said that she was sure that everything she had said in the interview was true. Asked why she had wanted to be involved in these proceedings, she replied:
“After the first, obviously, my trial back in 2008, I had always had it in my head that it was going to happen again because I…and I didn't…I blamed myself for letting it, because I didn't do enough the first time to stop him then. So, I always knew that there was going to be a day that it was going to come back and it was going to happen again, and I felt like it was my fault, and even though…I don't get sort of any outcome out of this, I knew that I had to do something for…I had to do something for the kids that…that it had happened to, because I know what comes, sort of, after.”
In cross-examination on behalf of F, Mr Murphy focused initially on B's statement that she was unable to “remember the acts themselves”. In answer to various questions, she said:
“I can remember the lead-up. I can remember sitting there or standing there, but I cannot remember physically doing it …. I knew what happened, but I can't remember, like, if I sort of play it back in my brain, I can't see myself doing it, no …. I can remember the before but the acts themselves, it seems to stop, and then I can remember afterwards …. I can't remember doing the acts themselves, but I know that I did them. I can remember doing … but I can't, like, sort of replay them in my head …. Although I know that that is what I did, I can't see it.”
Although Mr Murphy asked further questions about some matters mentioned by B in her statement, he did not put to her a number of points in F's statement where he disagreed with her account.
Following submissions, judgment was reserved and delivered on 11 April 2023. The judge started by summarising the background, the issues to be determined, and the sources of evidence put before her, which included a core bundle of over 1,800 pages. At paragraph 20, she made the following observation which I set out in full as it is relevant to one of the grounds of appeal:
“It is worth emphasizing at the outset that my decisions on the evidence are not influenced by opinions expressed by others. The fact that F was acquitted by a jury on one count with a hung jury on the remaining counts carries neither weight nor relevance in these proceedings. Similarly, the views expressed by other witnesses, be they police officers, family members or friends, adds no value to the evidence. Those individuals do not have access to the wealth and array of evidence before me. They will not have heard that evidence tested. They do not scrutinize the evidence in the way my role requires me to, nor will they consider and apply the standard of proof required in this court.”
The judge then added that her judgment would not rehearse all of the evidence and submissions put before her and that she would highlight only those matters relevant to her assessment of the allegations.
Over the following eleven paragraphs, the judge summarised the relevant legal principles by reference to case law. In the course of doing so, she reminded herself (at...
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