Re A (A Child) (Vulnerable Witness) (fact Finding)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 15 July 2013 |
| Neutral Citation | [2013] EWHC 2124 (Fam) |
| Court | Family Division |
| Docket Number | Case No: GU08P00833 |
| Date | 15 July 2013 |
[2013] EWHC 2124 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Pauffley
Case No: GU08P00833
The applicant, mother, appeared in person
Alev Giz and Frances Orchover represented the respondent, father, on 1 st, 3 rd and 8 th July; otherwise he appeared in person
Mark Twomey represented the first intervenor, Z County Council
Sarah Morgan QC and Samantha Little represented X, the second intervenor
Paul Storey QC and Camille Habboo represented A by her Children's Guardian, Sara Franklin
Hearing dates: 1 st— 9 th and 11 th July 2013
This judgment is consists of 140 paragraphs. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
This has been the culmination of a process which has its origins in the events of October 2009 when X, a very vulnerable then 17 1/2 year old, made sexual allegations of the most serious kind against her uncle, the father of A.
The hearing, which spanned 8 days, has been so as to determine the truth or otherwise of X's complaints as the first step in considering whether A and her father should be permitted to resume a normal and unrestricted relationship with one another.
The fact finding exercise, to say the least, has been highly unusual. A series of unforeseen difficulties arose over which I had little or no control. To take just two, the quite appalling noise disturbance from Carey Street during the first day of X's oral evidence and the problems in securing continuity of representation for F.
Irrespective of the noise intrusion, at times it seemed as though there would be no chance of X being able to say anything at all over the video link. When she did, the manner in which she gave her answers made clear that the process was enormously difficult and for extremely unusual, only partially explained reasons.
If it had not been for the extremely impressive and dedicated involvement of Naomi Mason, a registered Intermediary with considerable experience of facilitating the evidence of vulnerable witnesses in the criminal and family courts, in all probability, X would have found it quite simply impossible to say as much as she did.
Before I pass from the preliminaries, it is necessary to describe the various ways in which prior to the hearing I intervened so as to ensure that F, A's father, had an advocate on those days when X and her mother gave evidence. Neither could have tolerated direct questions posed by F, a litigant in person.
Accordingly, during the week before the hearing, I involved myself in both exploring the potential for public funding with the Legal Aid Authority and also in establishing whether pro bono representation could be arranged. My inquiries of the Legal Aid Authority assisted the Solicitors tentatively retained by F to make an application to the Exceptional Cases Funding Team. Although successful on the merits, F failed to obtain public funding because he is living with his father, the paternal grandfather. Under the regulations, the Agency is required to take into account the means of another individual who is maintaining or supporting the applicant for legal aid. I was led to believe there would be no prospect of a successful appeal.
On Friday 28 th June, I convened a hearing at which, uniquely, I requested the local authority to underwrite the cost of an advocate for F. With commendable generosity and speed, doubtless recognising the well nigh impossible situation which otherwise would have ensued, Z County Council indicated that it would meet the cost of representation for F for the two days of X's evidence. There was an extension to three days when the local authority came to realise that X's mother was unable to countenance the prospect of answering F's direct questions.
On Monday 1 st July, Frances Orchover appeared for F. She had spent a large part of the previous weekend reading the papers; and had produced a position statement. During the course of the afternoon, I was told there was a difficulty for Ms Orchover in continuing to represent F. It had come to her attention, via the local authority, that at some stage earlier in the proceedings she had been instructed to appear for Z County Council at an interim hearing and had discussed the case with Ms Purkiss.
At lunch time on 1 st July, Ms Orchover had consulted the Bar Council and been advised, in unequivocal terms, that she could not continue.
I was faced with a fait accompli and can only express my gratitude to Ms Giz for agreeing to take up the role of representing F at such short notice.
The allegations — form, content and chronology from 2009-2010
X has not been able to provide a narrative statement. Nor is there an ABE interview. The content of what she alleges arises from the records made at the time by a number of key individuals. Some of the people X spoke to were known to and trusted by her. Others were professionals to whom referrals were made as the result of the initial revelation, a police woman and a social worker.
There are layers of material — X's initial claims, her subsequent retractions and then further disclosures all occurring within two narrow time frames in October / November of 2009 and then in February 2010. The more significant revelations have been described in statements made by the seven witnesses who had involvement. Each of them has given oral evidence — X's then Headmistress, "HM" (who was also the child protection officer at the school), her Pastoral Deputy Head "PDH", the Head of Sixth Form "HSF", two members of a national charity for which X carried out voluntary work "CW1" and "CW2", a local authority social worker and a police officer.
Overlaid upon that evidence is the information X herself was able to supply during the two days when she was at court and giving evidence, though intermittently, with the assistance of Naomi Mason over the video link.
X's claims
The key matters mentioned by X when, on 1 st October 2009 she first revealed to the PDH at her school what she claimed had happened to her, were these –
• When she was 8 years old, her uncle had had an affair and she had told her aunt who did not believe her.
• As a result, her uncle was punishing her.
• He had taken her clothes off, licked, touched and had sex with her.
• He had also videoed her.
• X said the punishment was until she felt pain.
• It was, she said, a "deal" between her and her uncle because she had done wrong.
• Her uncle and aunt had divorced and he had gone back to Australia. When he came back to England, he collected her from school in a hire car. She hated the smell; he would take her to a quiet location and would have sex with her.
• During the summer between year 7 and year 8, she said she had missed two periods and taken tablets in an attempted overdose because she was concerned she might be pregnant. X said she had done a test which was positive and if it had been right, she had been the "murderer" of a foetus. She had not told "him" as she had been scared.
• X said her uncle did not come back so much. "It's quicker now." "No messing about, he just gets on with it."
• She said he had not been able to find her during the summer of 2009 because she was in (an identified foreign country).
• She said, "Don't really do that much talking, he does the talking."
• When X was reminded that the information she had supplied would have to be passed on, she said, "I deserve to be punished … Must suffer the consequences."
• She had then said, "None of it was true. I lied." She was not willing to sign anything. A little later she said, "I lied because I was bored."
Over the next few days, there was a series of discussions between X and several of her teachers, PDH, HM and HSF. On 5 th October 2009, after a further conversation in which X had said sometimes it happened more than others and often at short notice when F is back in England. A referral was made to the police and social services.
The following day, 6 th October, there was a visit to X's school by a police officer and social worker. X who had been very distressed on that day did not say anything about her allegations, refused to talk about her uncle in Australia and avoided questions by speaking of her uncle in America. She also made clear she did not want involvement from Children's Services and would not agree to her parents being informed.
On 8 th October 2009, X made a series of significant documented allegations to CW1 and later on that day to the organisation's Deputy Child Protection and Vulnerable Adults Officer in the presence of CW1.
The next day, 9 th October, X was seen again at school by the social worker. There was a long chat. X was reassured, told about the processes and also that she would not be forced to do anything. X then stated that everything she had told her teachers was true. She agreed to meet again with the police officer at a later date.
On 5 th November that meeting occurred. X repeated much of the material contained within her earlier discussions at school and with CW1. She spoke about the difficulties for her in talking — that it would make her a coward, that she deserves punishment and that you have to be punished when you do something wrong. She also said she had hurt someone deliberately; she had told her aunt that she had walked in on her uncle who was with another woman when she was 8 years old. Her aunt had been upset....
To continue reading
Request your trial
-
D (A Child) (No 2)
...EWCA Civ 1905, Re A (Vulnerable Witness) [2013] EWHC 1694 (Fam), [2013] 2 FLR 1473, and Re A (Vulnerable Witness: Fact Finding) [2013] EWHC 2124 (Fam), [2014] 1 FLR 146. Two more examples are Wiltshire Council v N [2013] EWHC 3502 (Fam), [2014] Fam Law 418, and In re C (A Child) (Care Proc......
-
Re J (A Child)
...judgment sets out the detail that underpins each of these topics. The judge's judgment is published on Bailii with neutral citation [2013] EWHC 2124 (Fam) and is in the public domain. I do not therefore propose to quote extensively from it, rather my purpose is to highlight those matters w......