Re S (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lady Justice Gloster,Lord Justice Vos |
| Judgment Date | 09 February 2016 |
| Neutral Citation | [2016] EWCA Civ 83 |
| Docket Number | Case No: B4/2015/0191 & 0192 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2016 |
[2016] EWCA Civ 83
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
HER HONOUR JUDGE MOIR
UY14C90023
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lady Justice Gloster
and
Lord Justice Vos
Case No: B4/2015/0191 & 0192
Mr Andrew Bagchi QC & Miss Carly Henley (instructed by Hay & Kilner Solicitors) for the Appellant
Ms Rachel Langdale QC & Mrs Fiona Walker (instructed by North Tyneside Council Legal Services) for the Respondent
Mr Nicholas Stonor QC (instructed by Caris Robson solicitors) for the Children's Guardian
Hearing date: 26 th November 2015
The appellant has two young children who are four and two years old. In April 2014, the local authority commenced care proceedings in relation to them because the appellant's sister, K, alleged that he had sexually abused her over a prolonged period of time, commencing when she was six years old. On 15 October 2014, HHJ Moir found these allegations proved. The care proceedings were concluded on 8 December 2014 with the making of a supervision order in relation to the children, who were to live with their mother. The order provided that the mother was to make them available to spend time with the appellant "on a reasonable basis", the court defining a reasonable basis as weekly supervised contact.
The appellant appealed against two case management decisions made by HHJ Moir in preparation for the fact finding hearing and against the findings of fact themselves. The case management decisions are (1) Judge Moir's decision on 16 September 2014 that K would not give oral evidence at the fact finding hearing and (2) a like decision on 29 August 2014 in relation to two friends of K's (X and Y).
Represented before us at the appeal hearing were the appellant, the local authority and the appellant's children through their guardian. The mother, appropriately, did not participate in the appeal. Whilst there was some continuity of representation for the local authority and the guardian in both the first instance proceedings and the appeal, Mr Bagchi QC and Miss Henley who appeared for the appellant came into the case at the appeal stage only.
K was not a party to the care proceedings (or the appeal) and was not represented at the appeal hearing, although at first instance a guardian had been appointed to look after her interests in certain respects and she had representation for some of the hearings before Judge Moir. The explanation for this unusual position will appear as I set out some of the factual background.
K's allegations and retractions in the period preceding the commencement of care proceedings; the medical evidence; the criminal proceedings
K was born in December 2000 and is now nearly 15 years old. She is approximately 10 years younger than the appellant. She first said something to an adult about being abused by the appellant on 13 March 2013 when she spoke to an assistant at her school. She explained that she felt the need to speak up because the appellant had had a row with his partner and had come back to stay at home with K and their mother (hereafter "the paternal grandmother") and she feared that she would suffer further abuse. According to the account that K gave then, the appellant's activities with her had started when she was about six years old and continued from then on, including an incident which she said occurred a "couple of weeks ago". An Achieving Best Evidence interview was carried out the following day and a second one on 20 April 2013. Allegations were made in each of these ABE interviews.
There was evidence that K had also spoken of abuse to her friends, X and Y. She was said to have told X about it in approximately 2006 and again in approximately 2012. She was said to have spoken to Y in late January 2013 about abuse by the appellant since she was six. X and Y's accounts of what K said about the appellant's conduct were recorded in ABE interviews carried out in March and April 2013. Each girl also described what K told them about her worries about the situation.
There is no need to go into the detail of K's account of the appellant's conduct towards her. She spoke of quite regular sexual activity which hurt. It continued despite her asking the appellant to stop and she said he had threatened to kill her, had brought a knife once, and had tried to strangle her. She described the abuse as having first happened following a shopping trip in town with the appellant and the paternal grandmother when, after their return home, the paternal grandmother went out again. She also described in detail an occasion on the day of a family wedding in 2011. There was a further detailed description of an incident some time in early 2013. On that occasion, K was ill in bed at home and the appellant was there. He came into her room and, on K's account, denied by the appellant, he woke her and asked her to take her top off. The paternal grandmother's evidence was that she went upstairs and the appellant was in the bedroom near to K. The grandmother asked whether the appellant had touched K. Questioned during the fact finding hearing as to why she had asked that, she said it was a slip of the tongue and there was nothing sinister about her question.
K was medically examined twice after she spoke about her allegations at school, first on 22 April 2013 and secondly on 9 May 2013. Both examinations, which were carried out by Dr Jones, were thought to show signs strongly suggestive of anal penetration. There was no evidence of vaginal penetration, although K had alleged that it had occurred and that she bled. However, Dr Jones' evidence was that it can occur without leaving any physical signs. K's routine medical records were also available by the time of the fact finding hearing and Judge Moir drew upon them in a number of respects. They included a number of instances of K being thought to have a urinary tract infection. These included a record of K being presented to the general practitioner in November 2006 (when she would have been nearly six years old) with dysuria, vulval redness/soreness, a discharge in her pants and a slight streak of blood in her urine. Judge Moir dealt with this entirely appropriately, commenting (paragraph 24 of the judgment of October 2014) that there was nothing diagnostic about it, and that whilst it may be supportive of K's allegation, it may equally be coincidental. Of more possible significance, for reasons I will explain in due course, the general practitioner records contained no record of K being taken to the doctor for constipation.
The appellant was arrested, interviewed and charged as a result of K's allegations. Not long after he was charged, K contacted the police on 8 July 2013 in an attempt to bring a halt to any further action about what she said the appellant had done. This was the first of a number of incidences of her seeking to stop the care/criminal process either by saying she did not want things to proceed further or by retracting her allegations. At this stage she was not retracting the allegations, rather indicating that she did not want to pursue the case as she had had her justice for what had happened and the abuse had now stopped. On 18 July 2013, she made a police witness statement along these lines.
The appellant was due to appear at the Crown Court on 17 September 2013. On 16 September 2013, K contacted the police again, unhappy that the criminal case was proceeding. The same day, she and the paternal grandmother attended on the police and K said to DC Menzies that she had made it all up because she was jealous. On 7 October 2013, the paternal grandmother handed DS Fryer, who was working on the case, a handwritten note written by K and addressed to the officer. The note said that K wished not to proceed with the investigation as she felt she had found her justice. In it, she said, "[t]hrough the years I suffered the abuse I hoped it would finally end and now it has. I am his only victim and certainly the last of that I have been assured." She said she wanted the case dropped and everything back to normal.
On 11 October 2013, DS Fryer spoke to K again. The police note made about this is not entirely unequivocal. It seems to be to the effect that K told DS Fryer that she had lied to DC Menzies when she said that she had made up the allegation, because she was so desperate for the case to be discontinued. She remained unsupportive of the prosecution.
DS Fryer was then contacted by the paternal grandmother on 16 October 2013 (the officer's statement of 22 September 2014 says 16 October 2014 but this must be a mistake) with a request that she collect a further letter from K to the officer. In that letter, K said that she needed to confess before the situation got even further out of hand and that everything she had said was a lie. She said that she "didn't think all of this would happen", that she was sick of being pestered by police and social services personnel, and that she could not "apologise enough for everything I have done and caused". On 29 October 2013, the prosecution offered no evidence against the appellant and the criminal case was discontinued.
K's position appears then to have remained for some time that she had made up the allegations. She wrote a letter dated 14 February 2014 saying that the appellant was innocent and that the appellant's children were at no risk and complaining of social services' continuing intervention in the children's family.
The steps taken by Judge Moir to safeguard K's interests
When she became involved in the care...
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