Re J (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Gloster,Lord Justice Briggs |
| Judgment Date | 27 June 2014 |
| Neutral Citation | [2014] EWCA Civ 875 |
| Docket Number | Case No: B4/2013/2165 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 2014 |
[2014] EWCA Civ 875
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, FAMILY DIVISION
Mrs Justice Pauffley
GU08P00833
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lady Justice Gloster
Lord Justice Briggs
Case No: B4/2013/2165
Ms Kate Branigan QC and Miss Alev Giz (instructed by Fisher Meredith) for the Appellant
Mr Paul Storey QC and Ms Camille Habboo (instructed by Blackfords LLP) for the Second Respondent
Miss Sarah Morgan QC (instructed by Russell-Cooke Solicitors) for the Second Intervenor
The first respondent appeared in person
The First Intervener was represented by Mr Mark Twomey but excused attendance
Hearing date: 28 March 2014
In October 2009 a young woman, known in these proceedings as X, who was then aged 17 years, made sexual allegations of a most serious kind against a man who is the father of a young girl, A, born 5 th June 2002, and who was therefore aged just 7 years at the time. A's parents had separated and her father was by then living in Australia. X originally made her allegations of sexual abuse to teachers at her school and to staff at the national charity where she volunteered, they then passed the allegations on to the local social services; the allegations were, however, made on the strict basis that X did not wish any person outside the social services to be told of the detail of the allegations or of her identity. The course of events which then followed the making of these allegations and X's stipulation of conditions led to court proceedings before a High Court judge of the Family Division and then, in turn, consideration on appeal by this court ( Re X [2012] EWCA Civ 1084) and by the Supreme Court ( Re A (A Child) 2012 UKSC 60).
In this judgment, in common with the judgment under appeal, I will refer to A's father as 'F' and A's mother as 'M' (she is also referred to in direct quotations from the evidence as X's aunt).
The circumstances which justified consideration on appeal, and the conclusion of the appeal process, are fully described in the reported judgments and do not require elaboration here. The outcome was that the local authority were required to disclose the detail of X's allegations and her identity in these private law proceedings. It thereby became known to the parties to the proceedings, namely A's parents and her children's guardian, that X was A's mother's niece and the substance of the allegations was that A's father had sexually abused X frequently over the course of a number of years. F staunchly denied the allegations. M retained an open mind but wished for the allegations to be properly assessed by the court. The task of conducting that assessment fell to Mrs Justice Pauffley. At the conclusion of an oral hearing, which spanned some 8 days, to determine the truth or otherwise of X's complaints, so that in due course consideration could be given to whether A and her father should be permitted to resume a normal and unrestricted relationship with one another, Pauffley J concluded that she was in "no doubt as to the outcome" and had "no hesitation in deciding that X's claims against F are fundamentally true". F now brings the present appeal against that conclusion.
Having thus set the scene, it is necessary now to descend to further detail to describe the substance of X's allegations and the particular vulnerabilities which X has which caused extreme difficulty for the court in obtaining and evaluating any evidence from her in the course of the hearing.
X's allegations
At no time did X, who is now aged 21, provide a narrative statement of her allegations. Neither was there an Achieving Best Evidence ['ABE' – Achieving Best Evidence in Criminal Proceedings (March 2011)] interview, which would have been conducted by professionals and video recorded. The content of what X alleges therefore arises from the records made by a number of key individuals who heard her make the allegations. As the judge describes, there are layers of material, with 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 most significant allegations were described in statements made by some 7 witnesses, each of whom gave oral evidence before the judge. They were: 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. In addition the court had information which X herself was able to supply during the two days when she was at court and giving evidence, albeit, as I will explain, by a process which was halting and intermittent.
The judge describes the key matters mentioned by X in October 2009 when she first revealed to PDH at her school what she claimed had happened to her as follows:
When she was 8 years old, F had had an affair and she had told her aunt (M) 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. 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. On the following day a police and social worker visited X at school, but she was too distressed to say anything about her allegations.
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. On the following day 9 th October, X was seen, again at school, by the social worker and, during a long conversation in which X was told about the processes and also told that she would not be forced to do anything, X stated that everything that she had told her teachers was true.
On 5 th November, at a meeting with the social worker and a police officer, X repeated much of the material contained within her earlier discussions at school and with CW1. With respect to this conversation, the judge recalls the following specific element:
"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. X also said that she was still seeing her uncle, though her parents did not know. He had her mobile phone number and tells her "where and when"."
In late January and early February 2010 X spoke about being worried about her cousin, A, and indicated that her abuser was A's father.
X's evidence – associated problems
X has a range of physical symptoms, amounting to significant physical disability, and a range of psychological difficulties. No apparent physical or medical cause can be found for some of X's physical symptoms, which are therefore considered to be either due to, or at least substantially exacerbated by, her psychological difficulties.
During her judgment in the Supreme Court, Baroness Hale gave this summary of the medical and psychiatric evidence that had been seen for the purposes of the appeal:
The salient points are as follows:
'(i) X has a long history of repeated presentations with medically unexplained symptoms beginning in early childhood.
(ii) There appears to be a close temporal relationship between X's reported experiences of abuse and her presentation with episodes of medically unexplained symptoms.
(iii) Most recently, X has experienced episodes of physical illness which have at times been life-threatening. It is the opinion of a number of medical professionals caring for her that psychological factors are, at the very least, exacerbating her symptoms. X has received medical treatment for her condition which has had a number of damaging side-effects and there has been a significant deterioration in her health.
(iv) There does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from the...
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