Re B (Child Evidence)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Fulford,Lord Justice Richards |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/0742 |
| Date | 22 July 2014 |
[2014] EWCA Civ 1015
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
HER HONOUR JUDGE CAMERON
ME13P00741
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lady Justice Black
and
Lord Justice Fulford
Case No: B4/2014/0742
Mr Alex Verdan QC & Mr Grant Armstrong (instructed by Berry & Berry LLP) for the Appellant
Mr Anthony Kirk QC & Miss Charlotte Hartley (instructed by Davis Simmonds & Donaghey Solicitors) for the Respondent
Hearing date: 1st July 2014
In order to avoid further delay for the children involved in these proceedings, at the end of the hearing of this appeal, we immediately announced our decision to dismiss it for reasons which would follow in writing. These are those reasons.
On 12 February 2014, Her Honour Judge Cameron gave directions in a case concerning a 5 year old boy, C. The proceedings were private law proceedings brought by C's father (F) with the objective of obtaining an order for contact with C who he has not seen since the end of 2011.
In response to F's application for contact, C's mother (M) asserted that F had been violent to her during their relationship. Her allegations, which F denied, were considered material to the issue of contact and it was directed that there was to be a fact finding hearing. M wanted her older child (a daughter, G, who was born in January 2001 so is now 13 years old) to give evidence at the fact finding hearing about some of the violent incidents, those in question having occurred during 2011, and her application to this end was considered by Judge Cameron on 12 February 2014. She ordered the involvement of a Family Court Adviser from CAFCASS ("the Adviser") who was to see G to explore matters further. It is against this that F appeals to this court, with permission of the judge herself.
The order that Judge Cameron made is detailed. The preamble set out that "before determining the issue of whether G should answer questions or whether G should give evidence it is necessary for the Court to obtain a report from a Family Court Adviser on the issues set out below". In the body of the order it was provided that the officer was to "meet G on probably 2 occasions" and then to provide "a section 7 report in accordance with the decision in Re W [2010] UKSC 12 and the Working Party of the Family Justice Council Guidelines December 2011 [2012] Fam Law 79 to assist the court as to whether (and if so how) G should answer questions put in writing and/or to give evidence at the fact finding by videolink".
In fact, the "consequential provisions" of the order which followed entrusted rather more discretion to the Adviser than these general passages imply and envisaged that she may actually proceed to put questions to G. The parties were directed to agree and provide to the Adviser "a list of proposed questions ….that they would seek to be put to G". The officer was then to meet G in a neutral venue and it was:
"left to the Adviser's professional judgment as how to conduct the interviews and whether or not the questions should or should not be put to G and if so the format and formulation of the questions or any additional questions the Adviser feels appropriate to the issues in Re W but the Court's provisional expectation would be that none of the questions proposed by the parties should be put on the first occasion or until the Adviser feels appropriate"
The order set out what the court wanted the report to cover, namely (1) whether it would be "appropriate and/or within G's best interests or potentially harmful for G" to answer any questions drafted by the parties and/or to attend court to give evidence and be cross-examined, whether by video-link or otherwise, at the fact finding hearing (2) whether G was willing to answer questions or attend a fact finding hearing to give oral evidence and (3) if the Adviser decided it was appropriate to put the questions to G, a report of her answers.
The matter was listed before Judge Cameron on 24 March 2014 when she was to consider, amongst other things, whether (and if so how) G would answer the questions posed or give oral evidence. The fact finding hearing was to have taken place on that date but it was postponed in view of the preparation still to be done.
Judge Cameron's judgment
We have the benefit of an extempore judgment given by Judge Cameron explaining the reasoning behind her order. She observed that M's allegations against F were serious allegations. This can be seen from the Schedule of Allegations prepared on M's behalf which features some general allegations plus nine specific incidents, of which eight were to be explored at the fact finding hearing. Precisely what evidence G might be able to give about the incidents is not known as she has not yet given any account. However, M's case is that she can give evidence relevant to the following three incidents:
i) An incident in January 2011 when M says she was pushed down the steps by F and broke her ribs; F says M fell accidentally when he was not even there and points out that she made no allegation of assault at the time, either to the paramedics who attended her or at the hospital;
ii) An incident in February 2011 when M says that in the presence of G, F tried to force-feed her with painkillers whilst threatening to hang her; F says this never happened at all;
iii) An incident in September 2011 when F threatened M in a shop in front of the children; F agrees that he approached M and the children on that day but denies making any threats.
As we have seen from the order, Judge Cameron made her decision about G in the light of the Supreme Court decision in Re W and the Family Justice Council Guidelines. She worked on the basis that G's welfare was a relevant consideration but not the paramount consideration. She referred to "the general evidence of the harm which giving evidence might do to a child" (§6) and to a number of other relevant considerations including "the potential quality of the evidence….the challenges that might be made, the use of focused questioning, the age and maturity of the child…and the time which has elapsed since the events in question occurred" (§5), as well as "the risk of delay…..the support or otherwise that she has had from family or other sources…..her own wishes and feelings about giving evidence" (§6), observing that "an unwilling child should never – or very rarely – be obliged to give evidence".
The judge concluded that she could not "make a proper decision about this matter without specialist help". She said that she particularly had concern about a passage from §30 of Re W where Baroness Hale said:
"Our prediction is that, if the court is called upon to do it, the consequence of the balancing exercise will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that will do to the child."
Judge Cameron's judgment clearly conveys that she recognised the importance, both for the parties and for the children, of the decision she was making about G. It leaves one in no doubt that she was of the view that, if established, the behaviour of which M complained, taken together with any psychiatric assessment that there was in relation to F, had the capacity to influence whether or not F had contact with C. She said at §8:
"This is really such an important issue and the fact finding must be properly conducted, of course, scrupulously fairly so that justice is done to both parties and the Court is given the full benefit of all the best evidence which is available, that it is only fair that the question of G giving evidence is properly looked at by a professional."
The seriousness with which the judge approached her task is underlined by the fact that she took the very unusual step, on 17 March 2014, of giving permission for F to appeal her order to this court.
The Family Court Adviser's report
No stay was granted in relation to the February order until 17 March 2014. By then the Adviser had already seen G and prepared a report. Their meeting took place on 3 March 2014 and the report, which the parties agreed we should see, is dated 13 March 2014. In it, the Adviser set out that G appeared to her to be older than her age, presenting as a quiet, thoughtful young lady who wants what is best for her family. The Adviser reported that G said that she had witnessed a lot of things F did to her mother and did not want anything to happen to her brother. G and the Adviser discussed various ways of giving evidence. The Adviser had been considering meeting G again to go through the questions but that did not happen. The precise reason for that is not spelled out though it may well have been to do with the Adviser's view that the proposed questions for G (which had been drafted by M, F not having been prepared to participate in the process) were inappropriate. She recommended in her report that the questions should be reworded and reduced in number and also that G "should not be compelled to provide live evidence" and/or "subjected to live cross-examination".
Re W and the Guidelines
It is common ground between the parties that the principles set out in Re W and the Guidelines are relevant in this case, although Mr Verdan QC (who, with Mr Armstrong, represented F on the appeal) stressed the difference between the facts in that case and the facts here.
Re W concerned care proceedings in which one of the subject children had made allegations, including during an "achieving best evidence" interview, against her...
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