Re P (A Minor) (Care Proceedings: Witness Summons)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Court | Court of Appeal (Civil Division) |
KENNEDY, LJ AND WILSON, J
Appeal – care order made by Judge on findings of sexual abuse by step-father on girl aged 12 – local authority adducing evidence of another child as principal witness of sexual abuse on girl in the form of written and video-taped interviews – parents' application for order that the principal witness aged 12 should be called to give oral evidence and be cross-examined at the hearing – Judge refusing to grant application – whether Judge wrong to refuse to authorize issue of witness summons.
There were two sets of care proceedings relating to a little girl, S born in April 1984. S was the child of the mother by another union before the mother started to cohabit, in 1987, with the step-father. The step-father was a Schedule 1 offender. In 1980 he was sentenced to four years' imprisonment for sexual offences upon three girls and in 1985 allegations of sexual abuse were made by another girl aged 9 who was the daughter of a woman he had married following his release from prison. In 1995 the family came to the attention of the local authority as a result of an allegation of sexual abuse made by a friend of S against the step-father. S was placed in interim care but she was subsequently returned to the mother's care on the removal of the step-father from the home. On 23 April 1996 by a consent order, S was subject to a residence order in favour of the mother on the condition that the family should undergo therapy, and a supervision order was made in favour of the local authority. Shortly afterwards, further allegations of grave sexual abuse against the step-father were made by N, a girl aged 12 and a school friend of S. Both children were interviewed on video-tape by social workers and medically examined but no evidence of vaginal penetration were found. S was taken into care under an emergency protection order and placed with foster parents. The step-father was charged but his prosecution was later abandoned. In September 1996, at an interlocutory hearing relating to the parents' application under CCR Ord 20, r 12 for the issue of a witness summons against N the principal witness, to be called to give oral evidence and be cross-examined. The application was refused. In October 1996 at the substantive hearing, the local authority adduced evidence in the form of written and video-taped interviews of the children pursuant to the Children (Admissibility of Hearsay Evidence) Order 1993. The Judge also received evidence from a child psychiatrist who took the view that N's account raised a high level of suspicion that sexual abuse had taken place, evidence from the other children who had made previous sexual abuse allegations against the step-father and heard evidence from the guardian ad litem that whilst she supported the making of a care order, she also had to relay S's denials of sexual abuse and her wishes to return to live with the mother and step-father. The Judge indicated that she approached N's interview with the greatest of
caution and in full awareness that she had precluded its being tested in cross-examination but concluded that N was telling the truth. Accordingly, the care order in respect of S was granted. The mother and step-father applied for leave to appeal against the order, in particular, submitted that the Judge had been wrong to refuse to authorize the issue of the witness summons against N.
Held – dismissing the applications: It was unusual for a child complainant of sexual abuse to give oral evidence in proceedings under the 1989 Act. However, when a court was asked to order the attendance of a child complainant it should approach each application on its merits without preconceptions. In principle, the older the child, the more arguable would be the application. In most cases, where the child, whether or not a family member, was of N's age (12) or younger, the court would favour the absence of oral evidence even though the concomitant were to be the weakening, sometimes the fatal weakening, of the evidence against the adult. In the present case, the Judge's decision to refuse to authorize the issue of the witness summons could not be faulted and she had made the right order on the evidence. Accordingly, there was no reasonable prospect of success in the proposed appeal and leave to appeal would be refused. Re P (Child: Compellability as Witness) [1991] FCR 337 followed.
Statutory provisions referred to:Children Act 1989, s I.
Children and Young Persons Act 1933, Sch 1.
CCR Ord 20, r 12.
Cases referred to in judgment:(Minors) (Contempt Proceedings), Re[1993] 1 FCR 820.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
P (Child: Compellability as Witness), Re [1991] FCR 337.
Miranda Allardice for the mother and step-father.
Michael Kolenko for the local authority.
Anne Jessup for the guardian ad litem.
MR JUSTICE WILSON.This is an application for leave to appeal by a mother and, as I will call him although he is not married to the mother, a step-father. They wish to appeal against an order made on 12 November 1996 by Her Honour Judge McKinney in the Bournemouth county court, whereby she made a care order in relation to a girl ("S") born on 30 April 1984. So S was at the time of the hearing about 12½ years old and is now nearly 13 years old. S is the natural child of the mother. S's natural father is off the scene and played no part in the proceedings.
The Judge found that the step-father had gravely sexually abused S on about 2 April 1996. She found that the threshold of s 31 of the Children Act 1989 had been crossed, namely that S was suffering significant harm and was likely to suffer significant harm (in the shape of further sexual abuse at the hands of the step-father) and that such harm was attributable to the care given to S, or likely to be given to her if no order was made, not being what it would be reasonable to expect a parent to give to her. She then exercised her discretion and made the care order. S had been living with short-term foster parents and still remains living with them.
Were leave granted, the proposed appellants would base their appeal on a number of points, their main complaint being the one identified by the single Lord Justice on paper as being apt for ventilation before two Judges at an oral hearing of the application for leave, namely that, by an interlocutory decision on 26 September 1996, the Judge had refused their application for an order that the principal witness who spoke of the alleged abuse on S should be called to give oral evidence and be cross-examined. The principal witness was a friend of S, namely a girl ("N") who was born on 20 June 1984 and so was thus two months younger than S. N, therefore, like S, was and is 12 years of age as of the date of the hearing and today.
The relevant background can be sketched shortly. The step-father is a Schedule 1 offender. [See Sch 1 to the Children and Young Persons Act 1933.] In 1980 he was sentenced to four years' imprisonment for six offences of indecent assault upon three girls. In 1984, following his release, he married a woman who had a daughter ("M") then aged 9 years. In 1985 M alleged that the step-father had sexually abused her. In due course she was awarded £5,000 by the Criminal...
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