L-R (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Rafferty,Lord Justice Kitchin |
| Judgment Date | 24 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1129 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case no: B4/2013/1088 |
| Date | 24 July 2013 |
[2013] EWCA Civ 1129
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE HINDLEY QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice McFarlane
Lady Justice Rafferty
and
Lord Justice Kitchin
Case no: B4/2013/1088
Mr Jeremy Weston QC and Ms Michelle Brown (instructed by Messrs Haslaw) appeared on behalf of the Applicant father.
Mr John Vater QC (instructed by Coventry County Council) appeared on behalf of the First Respondent local authority.
Mr Alistair MacDonald QC and Ms Elizabeth Walker (instructed by Messrs Penmans) appeared on behalf of the Second Respondent Mother
Mr Nicholas Goodwin appeared on behalf of the Third and Fourth Respondents, the children through their guardian.
(As approved)
In February of this year, HHJ Hindley QC was tasked with undertaking a fact-finding hearing in connection with care proceedings relating to the welfare of two young girls. The girls, to use the initial of their first names, were O, who was born on 27 May 2005 and therefore now eight years of age, and J, born on 14 August 2011 and so now fast approaching her second birthday. The case, however, revolved around the appalling circumstances of the life and death of the middle child in this family, all three children being born to the same mother, but each with a different father. He was a boy, D, born on 15 July 2007.
On 3 March 2012, D was taken to hospital after the mother and her then partner, Mr K, who was the father of the youngest child J, had called an ambulance. D was four years and 8 months of age at that time. Evidence before the judge indicated that by the time he was seen at hospital, D had either been deeply unconscious or in fact dead for some 36 hours. Examination showed that he had a very significant head injury, multiple bruises over his body and that he was severely emaciated. As a child who was over four and a half, he weighed a mere 10 kilograms.
As a result of these appalling findings, both the mother and Mr K, who were living together as the parental figures in the family that included all three of the children I have mentioned, have been charged with murder, with the offence of causing or allowing the death of a child, and the offence of cruelty and/or child neglect. They are currently on trial before the Crown Court in Birmingham, that trial having taken place over the recent weeks, and it is understood that it may conclude with the jury retiring to consider their verdict during the course of the next few days. The court has made an order, but I repeat it in the course of this judgment, that nothing that has been said during the course of submissions before this court today or may be said by me in this judgment is to be reported at all until the conclusion of the criminal trial. In any event, nothing that is said in this judgment is to identify either of the two children as being the subject of care proceedings.
The care proceedings commenced in relation to O and J effectively upon the discovery of the circumstances I have described. The local authority sought care orders in their case, and relied upon the following matters to satisfy the threshold criteria in section 31 of the Children Act 1989. Firstly, that the two girls had been exposed to significant domestic violence that had been a feature of the life of this mother with her various partners; secondly, exposure to the effects of chronic parental alcohol and drug abuse; thirdly, exposure to the systematic ill-treatment and abuse of young D that had taken place over a period of at least months if not longer; fourthly that the parents had actively covered up their abuse of D; and fifthly that neither parent had protected D or the other children from the effects of that abuse.
I anticipate that it goes without saying that the utterly shocking circumstances of D's existence in the period leading up to his death were at the highest end of the scale experienced even by seasoned judges sitting in the Family Court. It is not necessary for me to go into any further detail for the purposes of this judgment, other than to record Judge Hindley's summary which was in these terms: "His treatment overall … was at the extreme end of cruelty to a child."
The case before this court today does not focus upon the outcome of the care proceedings or the detailed findings that the judge was able to make, the focus is upon the fact that the judge found Mr K to be in contempt of court because of his conduct during those proceedings and, at the conclusion of the process, on 19 February 2013, the judge sentenced him to a period of 18 months' imprisonment in consequence of that contempt.
The contempt arose in the following manner. Standard and uncontroversial directions were given for Mr K to file witness statements, and to file his response to the schedule of threshold findings that had been issued by the local authority. Although this court has not seen the orders themselves, we understand that directions in that regard were given on 30 November 2012, and more particularly at a directions hearing which was a joint hearing for the criminal proceedings and the family proceedings conducted by Macur J on 20 December. That judge on that occasion took the decision that the care proceedings could not wait for the criminal trial to take place, and that the judge in the family case should proceed to undertake a fact-finding process which would stop short of determining the cause of D's actual demise, but the parties should co-operate with that process and be required to file evidence in the family proceedings, notwithstanding that both the mother and the father were facing the trial in the Crown Court which was, as it has done, to take place some six months or so later.
We are told, and I accept, that the parents, and in particular Mr K, were given a clear warning on that occasion by Macur J as to the need to comply with the directions that I have described.
In January, shortly before the fact-finding hearing was due to take place, Mr K parted company with the legal team that he was at that stage instructing. The current solicitors and counsel were brought in only effectively one week before the fact-finding hearing commenced. That hearing started on 4 February, and Mr K's express position to the judge was in these terms: (a) that he would not seek rehabilitation of either of the girls to his own care; (b) he would not challenge the expert evidence or seek for any of the experts in the family case to be called to give oral evidence; (c) he did not wish to give evidence at the fact-finding hearing; (d) but he did wish to be fully involved in any welfare hearing at any later stage.
The fact-finding hearing commenced. On the first day of the hearing, HHJ Hindley required the father to comply with the previous directions and made it plain that she would, at the appropriate stage of the trial, require him to give oral evidence from the witness box. She warned him of the consequences of his failure to comply with those directions, which might include a finding of contempt, with the court's punitive powers then being available to her.
On the second day of the hearing, the father and his counsel sought what turned out to be a fairly substantial adjournment to consider his position. After that process, he again, through counsel, indicated that he was not intending to give evidence. Once again, we are told, and I accept, the judge repeated her warning.
Stepping back from that account of the trial process, it is necessary to understand the legal context in which this judge, sitting in the Family Court, was operating. The principal statutory provision that was in play was section 98 of the Children Act 1989, which reads as follows:
"98 Self-incrimination
(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from —
(a) giving evidence on any matter; or
(b) answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.
(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury."
The judge will also have had in mind the accepted position, as it is in family proceedings, that the exception described by section 98 of the Children Act applies to all witnesses, and further that parents in proceedings of this sought are compellable witnesses. Authority, if authority is needed, is to be found in obiter observations of Hale LJ in the case of Y and K (Children) [2003] EWCA Civ 669, but also in the judgment of Holman J in the case of Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] 2 FLR 690, where that judge made it plain that the father's failure in those proceedings to give evidence amounted to contempt of court.
Notwithstanding the protection provided by the terms of section 98(2), which limits the use to which any material arising in the family proceedings from evidence given can be used, the case of Re EC [1996] 2 FLR 625 has established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process. A more recent development is the enactment of section 119 of the Criminal Justice Act 2003, which...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2017-09-21, IA/14472/2015 & others
...for the Home Department [2016] EWCA Civ 705. Counsel suggested that the judge had clearly applied Nagre [2013] EWHC 720, MF (Nigeria) [2013] EWCA Civ 1129 and AE (Algeria) [2014] EWCA Civ 653. The judge considered proportionality and concluded that it was in the best interests of the child ......
-
Upper Tribunal (Immigration and asylum chamber), 2014-09-11, IA/33641/2013
...Rules. The judge then recognised that she should consider Article 8 outside of the Rules and referred to MF (Nigeria) v SSHD [2013] EWCA Civ 1129. She also referred to Gulshan and Nagre. After that the judge referred to further well-known case law in terms of Huang (described as UKHL 11) as......
-
Upper Tribunal (Immigration and asylum chamber), 2014-03-24, IA/14748/2013
...by the parties with reference to the degree of difficulties [see MF (Nigeria) –v- Secretary of State for the Home Department [2013] EWCA Civ 1129] they would face if required to relocate to Pakistan rather he applies the test of insurmountable 5. In any case it appears at paragraph 74, the ......