Re M (A Child) (Care Proceedings: Witness Summons)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Wilson,Lord Justice Longmore |
| Judgment Date | 19 January 2007 |
| Neutral Citation | [2007] EWCA Civ 9 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2007 |
| Docket Number | Case No: B4/2007/0048 |
[2007] EWCA Civ 9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Medway County Court
HH Anthony Bradbury (sitting as a Deputy Circuit Judge)
ME06C00060
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lady Justice Smith and
Lord Justice Wilson
Case No: B4/2007/0048
Ms C Nicholes & Ms G Farrington (instructed by Messrs Rootes and Alliott) for the Appellant child
Mr J Cowen (instructed by Medway Council) for the First Respondent.
Mr G Pulman QC & Mr A Clegg (instructed by Messrs Pearson, Gillingham) for the Second Respondent, Mother.
Mr J Tillyard QC, & Mrs J Wehrle (instructed by Messrs Davis Simmonds & Donaghey, Strood for the Third Respondent, Father.
This is an appeal from the decision of HH Anthony Bradbury sitting as a deputy circuit judge at the Medway County Court in the course of care proceedings relating to L, a girl aged 10 years. On 5 th January 2007, the judge made an order that L should attend for the purpose of giving evidence via video link in the care proceedings. L's guardian applied for permission to appeal the decision. Thorpe LJ considered the application on paper and adjourned it into court, on notice to the respondents, with appeal to follow if permission granted. On 10 th January, we heard the application, granted permission to appeal but dismissed the appeal. This judgment now provides my reasons for those decisions.
The circumstances of the case are unusual. L's parents were married in 1995 in India. It was the father's second marriage. He had been resident in England since the 1970s. L was born in India in 1996. L and her mother remained in India until May 2004 when they came to England for three months and stayed with the father. They came back to England in May 2005 and began to live with the father. L enrolled at a local school. L's first language is Punjabi, although she has been learning English since her first arrival in this country in 2004.
In May 2005, concerns arose when the mother made allegations at the school that L had been physically abused by the father when he was drunk. The upshot was that, in June 2005, L was interviewed on video film by a police officer in the presence of a social worker. The interview was conducted in Punjabi. In the course of two interviews, L alleged that the father had abused her physically and sexually; also he had been violent towards the mother. The mother was also interviewed and made similar allegations, effectively confirming what L had said. The father was interviewed and denied any improper behaviour. L was placed on the 'at risk' register.
In January 2006, L was interviewed again on video tape about an incident of violence in which it was alleged that the father had broken the mother's finger. The following month, mother and daughter went to India for 3 months, returning to this country in May. They began to live with the father. Within about 3 days, the mother made a complaint to the police that the father had abused her physically and sexually. L was interviewed again on video tape. She said that there had been physical violence by her father against her mother and herself and that she was afraid of her father. From that time, the Local Authority placed L with foster parents with the mother's consent.
In June 2006, the mother retracted her allegations against the father. She said that everything that she had ever said against him had been untrue. Moreover, she had told L to make false allegations against her father. Everything that L had earlier said about her father had been untrue. She was thoroughly ashamed of what she had done; she had made these allegations to put pressure on her husband to give up alcohol and smoking.
The Local Authority did not accept the truth of the mother's retraction; they remained concerned about L's safety and welfare. They commenced care proceedings. L was assigned a guardian. Evidence was prepared; the position of the father and mother is united; they both deny that any abuse or misconduct has occurred and contend that it is safe for L to be returned home to live in the family. Evidence from social workers shows that L is not happy at her foster home. She is very closely attached to her mother and wishes to live with her. She is aware that her mother has retracted her allegations against the father. There is evidence that the mother has told L that, if she is asked, she should say that the allegations of sexual abuse were untrue. In July 2006, during a supervisory visit, L repeated the allegations of sexual abuse to a social worker, but it is not clear whether, at that time, L was aware that her mother had retracted the allegations against the father. Since the mother's retraction, no attempt has been made to obtain evidence from L as to whether she spoke the truth at the video interviews. Both her social worker and her guardian have taken the view that it would not be proper for them to canvass those issues with her. Thus, at the commencement of the hearing, nobody knows what L, if asked, would now say about the truth or falsity of her earlier allegations.
The first or fact-finding stage of the proceedings began on Wednesday 3 rd January 2007. On Friday 5 th January, the mother applied to the judge for a witness summons compelling L to give evidence via video link. The father supported it. L's guardian and the Local Authority opposed the application on the ground that it was inappropriate for so young a child to have to give evidence and that in the particular circumstances of this case it would be oppressive upon her if she were required to do so.
The judge gave an extempore judgment after hearing submissions. He granted the order requested. We do not have a transcript of what he said, only a combined version of the notes taken by counsel. It is plainly not complete. However, the judge has seen and approved it after making some handwritten amendments. The note is adequate for the purpose of considering the criticisms of the judge's reasoning in this appeal.
The judge set out the history much as I have done. In the course of that recitation, he referred to the video films of L's various interviews. He said that he had seen them and that, on the films, L appeared nervous but not distressed.
The judge then considered the arguments for and against the making of the order. One of the grounds of the appeal is that, in doing so, he did not analyse the submissions or make clear his view of them. The result, it is alleged, is that it is impossible to see how or why he exercised his discretion as he did.
First, the judge referred briefly to the parents' submission that, if L could be cross-examined, the court would have the best possible evidence available. He then observed that he had a discretion whether or not to make the order. He noted that, if there were criminal proceedings, L might be required to give evidence notwithstanding her young age. He also observed that L's welfare was a relevant and important consideration although it was not the over-riding or paramount consideration. No criticism is made of those aspects of the judgment.
The judge then considered the parents' submission that L herself wished to give evidence. L had quite recently written a letter to the judge, in English. However, the judge considered that this letter did not express a desire to give evidence about the facts, only to convey to him her hopes and wishes for the future. The judge considered that that was a very different matter from giving evidence and he considered that she had probably not considered that question at all. The judge did not mention (although we were told that he was aware) that on the day that L wrote her letter to the judge, she had told her guardian that she did not want to be at all involved in the judge's consideration of what had happened in the past. Although the judge did not say so in terms, it seems to me that, even on the basis of what the judge said, he must have rejected the parents' submission that L positively wished to give evidence. It is not clear whether he accepted that she positively did not wish to do so.
Next the judge considered the submission that the case was unusual in that serious allegations had been made and retracted by the mother. She herself was saying that she had put the child up to telling lies. The judge accepted that that factor meant that the case was unusual, although he did not appear to be saying that he regarded the circumstances as highly unusual.
The judge then referred to the case of B v Torbay Council, a decision of Coleridge J, given in Exeter on 21 st March 2006 as yet unreported but noted in [2006] Family Law, vol 36, p. 924. The judge said that Coleridge J had referred to the importance of the court always having the best evidence if possible. I will say more about the judge's observations on this case in due course.
The judge observed that it was agreed that L's young age was an issue for him to consider. He had been referred to reports of two decisions of the Court of Appeal, R v B County Council [1991] 1 FLR 470 and Re P (Witness Summons) [1997] 2 FLR 447. R v B County Council was concerned with a girl of 17 who had alleged rape by her step-father. In care proceedings in the magistrates' court, the local authority wished to rely on hearsay evidence and refused to issue a witness summons compelling the girl's attendance. An application for judicial review was refused and an appeal from that refusal...
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