R v B. County Council, ex parte P
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE NICHOLLS,THE MASTER OF THE ROLLS |
| Judgment Date | 17 January 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0117-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 1991 |
| Docket Number | 91/0017 |
[1991] EWCA Civ J0117-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(THE PRESIDENT)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Nicholls
Lord Justice Butler-Sloss
91/0017
MR. SIMON BUCKHAVEN (instructed by Messrs. Sarjeant & Sheppard) appeared for the Appellant.
MRS. DIANE BARNETT (instructed by The County Solicitor) appeared for the Respondent County Council.
MISS PAMELA SCRIVEN (instructed by Messrs. Gardner Leader, and Messrs. Rowberry Morris) appeared for the Respondent Guardian Ad Litem.
This is an appeal from the dismissal by the President on 4th December 1990 of the appellant's application for judicial review. The matter arises out of the allegations by the appellant's stepdaughter of sexual abuse by the appellant, strenuously denied by him, and his efforts to require the girl, whom I shall call J., to give evidence in order that she may be cross-examined and shown to be a liar.
The relevant facts are that J., who is 17 and was born on 5th September 1973, is the eldest of four children who until March this year were living with the appellant. J. and her sister L. are stepchildren of the appellant and there are two younger children who are his natural children. The mother left some years ago and the appellant ever since has cared for the four children with the help of a succession of female companions. In March 1990, J. made serious allegations of sexual abuse against the appellant. As a consequence, the County Council was granted place of safety orders in respect of all four children on 21st March. Care proceedings were instituted by the County Council in respect of all four children. The police investigated, arrested the appellant and charged him with criminal offences. However, at the Magistrates' Court on 22nd June the prosecution offered no evidence against the appellant and the case was discharged under the provisions of section 6 of the Magistrates' Courts Act 1980.
Interim care orders were made in respect of the children in the care proceedings which were continuing. The substantive hearing came before a stipendiary magistrate sitting in the Juvenile Court on 5th November.
The appellant's solicitors wrote to the County Council requiring them to call J. to give evidence in the care proceedings. A written statement made by J. to the police and oral statements made by her to a child psychiatrist were to be relied upon by the County Council in support of its applications for care orders for all four children. The admissibility of such evidence in care proceedings is provided by the Children (Admissibility of Hearsay Evidence) Order 1990 and was made under the provisions of the Children Act 1989. Rule 2(2) provides:
"In civil proceedings before a Juvenile Court:
(a) A statement made by a child…shall be admissible as evidence in connection with the upbringing, maintenance or welfare of the child, notwithstanding any rule relating to hearsay."
The County Council replied to the appellant's solicitors that they did not intend to call J., having regard in particular to evidence in their possession from the child psychiatrist and the social worker as to the likely harmful effect upon J. of giving evidence.
The decision of the County Council not to call J. forms the ground for the first application for judicial review.
On 5th November counsel for the appellant applied to the stipendiary magistrate for an order excluding the statements of J. and requiring the County Council to call her as a witness. The stipendiary magistrate rejected that application. Counsel then applied for a witness summons under section 97 of the Magistrates' Courts Act 1980 requiring J. to attend before the juvenile court to give evidence. The stipendiary magistrate refused that application and that refusal forms the ground for the second application for judicial review.
I shall turn first to the application for judicial review of the decision of the County Council not to call J. It can be disposed of quite quickly. Mr. Buckhaven for the appellant wisely does not rely on it to any great extent. The President said:
"The matter which the County Council had to consider was within their discretion and, furthermore, there is evidence that they acted unreasonably in taking the decision that they did take. They had the evidence of a psychiatrist and social worker, both of whom indicated that to call this child would be likely to cause her harm. But essentially this is not in my judgment a reviewable decision."
In my judgment, an application on the basis that this County Council acted unreasonably within the Wednesbury principles has no chance of success. I do not consider that the President was intending to say that such a decision was not capable of judicial review, since clearly it is. But an application cannot succeed unless there is clear evidence of unlawful or unreasonable behaviour by a local authority m the decision making process. This local authority carefully considered the question of J. giving evidence and came to a decision well within the limits of its discretion and as such cannot be faulted. I entirely agree with the President that the application for judicial review cannot succeed on that ground.
The main issue of the appeal is, however, whether J. can be required to come to court to give evidence. The evidence of J. has great significance for the decisions as to the other three children. J. herself is now 17 years and 3 months and any decision about her is of very limited duration, if, indeed, an order was to be made at all. The appellant's case is that J. is a consummate liar and is telling a pack of lies but will not dare to repeat such lies in the witness box. Counsel's application for a witness summons to the stipendiary magistrate was on the basis that if possible someone else, possibly the mother who has so far played no part in the proceedings, would call J. as their witness and he would then be able to cross-examine her. He was naturally not at all anxious to call her himself but as a matter of last resort he was prepared to do so.
The stipendiary magistrate held that he did not have a discretion to consider the welfare of J. in deciding whether to issue a witness summons since she was over the age of 17, but he refused the witness summons on the basis that the purpose of the exercise was to test the evidence forthcoming by cross-examination and not to introduce material evidence.
On the application for judicial review the President did not decide the issue of material evidence since he considered that it did not arise. He held that section 97 did not apply to a child who was a party and, further, that an application intended to get a child to court for the purpose of cross-examination was an abuse of the process prescribed by section 97. He also held that, although J. was 17 at the time of the application for a witness summons, her welfare was nonetheless a matter for the consideration of the court.
Section 97 provides for procuring the attendance of a witness at court:
-
(1) Where a justice of the peace for any county…is satisfied that any person in England or Wales is likely to be able to give material evidence…at an inquiry into an indictable offence…or at the summary trial of an information or hearing of a complaint by such a court and that person will not voluntarily attend as a witness…the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence…"
Section 2(6) of the Children and Young Persons Act 1969 provides that:
"Section 97 of the Magistrates' Courts Act, 1980 (under which a summons or warrant may be issued to secure the attendance of a witness) shall apply to care proceedings as it applies to the hearing of a complaint."
It was and is common ground that J. is a competent witness and is unwilling to give evidence. In my view, the evidence which J. could give is material and it has not been suggested to the contrary either by the County Council or by the guardian ad litem.
Does a witness summons apply to a party? In principle there would appear to be no reason for it not to do so. In the High Court a subpoena could be issued at the request of one party to require the attendance of another party although for obvious reasons it is not likely to be a frequent occurrence. Unlike a subpoena, a witness summons in the magistrates' court does not issue as of right but the principles upon which it issues are similar to those relied upon for the setting aside of subpoenas. By the Evidence Act 1851 section 2 all who are competent to give evidence in civil proceedings are also compellable witnesses unless they fall within certain exceptions which do not include parties.
The jurisdiction of the juvenile court is a hybrid one, dealing both with juvenile offenders and children and young persons in need of care and protection. Section 1 of the Children and Young Persons Act 1969 imports both those elements into the care proceedings. Nonetheless, section 97 is incorporated into the Act without any provisos, and despite a valiant attempt by Mrs. Barnett for the County Council to argue to the contrary I cannot see why a party in care proceedings should be in any different position from any other civil proceedings and consequently subject to the issue of a section 97 summons if the justice considers it appropriate.
Is a child in any different position from any other party? Until 1988 the child was the only respondent to an application by a...
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