L (A Child) and Another v Reading Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OTTON,LORD JUSTICE KEENE,MR JUSTICE MAURICE KAY |
| Judgment Date | 12 March 2001 |
| Neutral Citation | [2001] EWCA Civ 346 |
| Docket Number | Case No: 2000/0367 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2001 |
[2001] EWCA Civ 346
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Otton
Lord Justice Keene and
Mr Justice Maurice Kay
Case No: 2000/0367
Mr Andrew EDIS QC/Mr Nicholas BOWEN (instructed by Thompson & Leatherdale for the Appellants)
Mr Edward FAULKS QC/ Mr Andrew WARNOCK (instructed by
Barlow Lyde Gilbert for the Respondents)
This is an appeal by the claimants against the decision of Mr Justice Goldring given on the 17th March whereby he ordered that the claims against the second defendant be struck out. By a Respondents Notice it is contended that the learned judge's decisions should be affirmed on additional grounds.
Background
The First Appellant [L]) is now aged 13. In early 1990, when [L] was three years old, her mother made a series of allegations against her father, the Second Appellant (P), claiming that [L] had been the victim of very serious sexual abuse at his hands. The police and social services were called in to investigate. A social worker and police officer, WPC Grey interviewed [L] on 10 th and 11 th April 1990. They erroneously concluded that the complaint by [L]'s mother was well founded and that [L] was at risk of further abuse. It subsequently transpired that [L's] mother suffered from Munchaussen's Syndrome by proxy and that her allegations of abuse were fabricated.
The allegations led initially to private law and then to public law family proceedings that were heard before HHJ Kenny in the Reading County Court between 1993 and 1998. The family proceedings are still in train having been transferred to the High Court. In 1996, in an interim judgment, the father was exonerated and [L] since then has lived with him and had occasional contact with her mother.
The Appellants alleged that the interviews were conducted improperly and that as a result social services were needlessly involved with the family for a number of years. It is alleged that the relationship between [L] and her father was damaged with psychological consequences for both. The factual basis of these proceedings is the 1996 judgment which was highly critical of the conduct of the social worker and the WPC. The Appellants contend that but for the initial damaging, incompetent and misleading video interviewing by the police officer and the social worker and the subsequent misrepresentation of its results there would have been no credible material on which to base the allegation that the father was a sexual abuser. Criminal proceedings were never brought against him. He and [L] would have been spared the subsequent public law children proceedings. [L's] childhood would not have been overshadowed by baseless allegations, neither [L] nor her father would have suffered personal injury, and the father would not have suffered the consequent economic loss and damage to his earning potential and employment prospects.
The Second Defendant, the Chief Constable of the Thames Valley Police, applied to strike out the claims as having no real prospect of success The First Defendant, Reading Borough Council, the employer of the social worker did not make a similar interlocutory application.
The hearing before Goldring J
The application was heard by Goldring J in January 2000. Argument lasted two days and judgment was handed down on the 21 st March.
The Judge found:
(1).That the claim in negligence brought by L was arguable. There was an arguable case of proximity. He found that the Respondent did not owe any duty of care to the father as there was no proximity between a suspect and the police when carrying out their investigatory duties.
(2)That both L's and her father's claims based upon misfeasance and conspiracy were arguable.
(3)That claims should be struck out because the Chief Constable is entitled to witness immunity in respect of the conduct of the WPC during the two interviews and a report of 28 th April 1990 which (it is said) misrepresented the interviews.
Having so found, the learned Judge struck out the whole action. In doing so the learned Judge seems to have treated the application as being for summary judgment under CPR Part 24.2 for the purpose of deciding what test he had to adopt to decide the issue that there was no real prospect of succeeding on the claim or issue. At times he appears to have approached the application as being brought under CPR Part 3.4(2)(a) that the Statement of Case discloses no reasonable grounds for bringing the claim. However we are satisfied that for the purposes of this appeal we should regard Part 24.2 and 3.4 as effectively the same and that no objection can be taken to the Judge's use of language from one rather from the other Part.
At the outset of the appeal we were invited by Mr Andrew Edis QC for the Appellants to read the judgment of HHJ Kenny. We declined to do so for two reasons. We considered it appropriate to approach the application and the appeal on the basis of the pleading in the Statement of Case and not upon the text of Judge Kenny's judgment. Secondly, the Second Defendant does not accept the findings or the strong language in which they were expressed. Mr Edward Faulks QC, on behalf of the Respondent, correctly pointed out that the police were not a party to either the private or the public proceedings. We consider that it would be a matter for the trial judge to determine whether the police can challenge Judge Kenny's conclusions and that it was not appropriate to determine this issue on this appeal.
The Pleading
"2.7 The following day [the mother] telephoned a social worker employed by Berkshire County Council, one Sandra Sullivan, and repeated what she had told Mrs Schofield. It was agreed that [L] would be interviewed at [the mother's] home on 10th April 1990.
2.8 The interview was carried out by Sandra Sullivan and WPC Grey. It was not video recorded, nor were any contemporaneous notes made by either Sullivan or Grey. During the course of the interview both women were concerned by two statements made by [L] :
(i) that Daddy helped her go to the toilet ;
(ii) that she played a "dog and bone" game with her Daddy.
Sullivan and Grey were concerned that these statements were made in an aroused manner and that in their opinion they implied that fellatio had taken place.
2.11 The further interview took place the next day, 11th April 1990, it was video recorded. It will be contended at trial that, as a matter of fact :
(i) The interview was conducted improperly, incompetently, and was grossly unfair to both the 2nd Plaintiff and [L]
(ii) it elicited nothing that could be described as evidence of sexual abuse or improper conduct by the 2nd plaintiff.
(iii) the interview contained both outrageous and oppressive questioning ;
(iv) the interview and the questioning techniques were themselves highly abusive towards [L]
(v) [L] was pestered and pressed by both WPC Grey and Sandra Sullivan until she became upset ; and
(vi) that [L] was exposed to a large number of inappropriate sexual suggestions ;
(vii) that despite this treatment, at no stage of the interview did she indicate anything that could have been consistent with a sexual experience or other abuse ;
(viii) [L] specifically denied that the "dog and bone" game was naughty
(ix) [L] stated that she played it with her mummy as well as her daddy ; and that
(x) it emerged at a later stage of the interview that the 2nd Plaintiff was not the only person [L] referred as "Daddy" but that she was also referring to another boyfriend of [the mother] a Barry Cresswell.
2.12 On 19th April 1990, following various allegations made by [the mother], [P] was arrested and questioned by the Thames Valley Police on suspicion of sexually abusing [L]. He was interviewed and thereafter released without charge. During the said interview, in which he did not have the benefit of legal advice he refuted all suggestions of improper conduct.
2.13 Sandra Sullivan attended a child protection case conference convened by Berkshire County Council on 25th April 1990. She described the interview on 11th April 1990 as follows :
"[L] said she did not like the games she played with her father and that he put his "willy" near her genital area. At this point she broke down and sobbed and the interview was terminated ."
Sandra Sullivan also stated of the "dog and bone" that [L] was sucking the bone, "one end of which she had put in her mouth, while the other end was attached to her father."
2.14 In a report dated 28th April 1990, on the police file, WPC Grey stated :
"On 10th April 1990 [L] again stated that Daddy had touched her vagina she also stated that she played a game where she had to bite and lick a "bone." It appears from what [L] said and actions she carried out, [P] had been putting his penis in her mouth ."
2.16 Following the July 1995 judgment when the 2nd plaintiff was exonerated of sexual abuse allegations, His Honour Judge Kenny made various orders designed to promote contract between [L] and [P].
2.17 The family proceedings continued and on 23rd October 1996 His Honour Judge Kenny granted Berkshire County Council a full care order in relation to [L].
2.18 On 30th October [L] was placed with the second plaintiff, she has lived with him ever since. [The mother] has had limited supervised contact."
The issues on the appeal and...
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