Re S (Contact: Evidence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,MRS JUSTICE HALE |
| Judgment Date | 16 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1216-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFRMI 97/1300/F,LTA 97/6745/J |
| Date | 16 December 1997 |
[1997] EWCA Civ J1216-10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE RUDD)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Simon Brown
Mrs Justice Hale
CCFRMI 97/1300/F
MR A HOUSTON (instructed by Messrs Paris Smith & Randall, Southampton SO15 2AE) appeared on behalf of the Appellant/Respondent.
MISS E HUDSON (instructed by Messrs Trethowan Woodford, Southampton) appeared on behalf of the Respondent/Petitioner.
Mrs Justice Hale will give the first judgment.
This is an appeal not from what the learned judge did in the court below but from what he refused to do. These are Children Act proceedings between the divorced parents of a little girl, D, who is now aged five, in which allegations have been made that she was being sexually abused by her father. At a hearing on 27th August this year in the Southampton County Court His Honour Judge Rudd gave leave for the father to withdraw his application for a residence order and provided for fortnightly interim contact to be supervised at a contact centre. He refused the father's application for a subpoena duces tecum against the police to produce video and audio recordings of the child's allegations, which are in their possession, and also the findings of a police surgeon who conducted an examination of the child. He also refused an application for a further directions hearing after this material had been produced with a view to obtaining expert opinion upon the allegations.
The judge himself gave leave to appeal. He saw the case as raising a question of principle. This can be roughly stated thus: to what extent in giving directions for the conduct of the case should he have regard to the resources available, the money which would be spent in, as he put it, "giving the case its head", and the proportionality of that expenditure to the assistance to which the court would at the end of the day derive a full forensic examination of the matter at issue.
The background to this question is as follows. D was born 7th August 1992. Her parents were married in 1991, separated in 1994 and divorced at the beginning of 1995. The mother has two older sons, K and W, from an earlier relationship. On 17th November 1994 it was ordered that D was to live with her mother. Proceedings about contact continued, but were concluded on 19th December 1995, when it was ordered that D stay overnight with her father from Saturday morning to Sunday evening one week and from Sunday morning to Monday morning the next and visit him on Tuesday afternoons. It was his case that in fact by agreement contact had built up to be even more extensive than that. This of course speaks well of both parents and is hard to reconcile with the father's allegation that the mother will do anything to stop him having contact.
The context, however, was one of considerable tension between the parents. It is unnecessary for the purposes of this judgment to go into that further. The context was also that of several referrals about the family to the local authority Social Services Department. These are set out in the report from Miss Ruttledge, a social worker. Some of these referrals come from other sources, such as the police and the GP, and some from the parties themselves. Some of them involve allegations of sexual abuse. Thus in June and July 1995 the father complained to the Social Services and the police respectively that D had told him that her half-brother, W, had been hitting her. The father was concerned that W might have sexually assaulted D. In September 1995 an anonymous informant expressed the view to the police that it was father rather than W who had done this. D was seen and did not confirm either allegation at the time. In May 1996 the GP made a referral to the Social Services because D was complaining of a sore vagina and a vaginal discharge and had reddening in her vulva area. But after investigation no further action was taken on that referral.
On 4th February 1997 there was a further referral from the GP because the mother had said that D had told her that "daddy hurts me down below". The mother says that D told her this some time after Christmas, and she stopped contact for a while as a result. D was seen by a social worker and a woman police officer, but refused to speak to them. A medical examination was arranged, but she was very upset and refused to let the doctor touch her.
Shortly after this, on 9th February, the father signed an application for a residence order. His later statement in support of that application complained about various aspects of the mother's care, in particular the mother's drinking, ill-treatment by the half-brothers, W and K, and he also complained of the numerous complaints to the Social Services resulting in investigations and examinations. That seems slightly odd, given that he was responsible for some of those referrals, not only in 1996 but also shortly after this in 1997.
On 14th February the father showed the Child Protection Duty Officer video clips of D. The last clip, taken on 1st February 1997, showed her standing with her legs apart putting her hands on her crotch and saying of her older half-brother "K touches me here". K was interviewed by the police, but again no further action was taken.
Then in May 1997 the mother again alleged that D had told her that the father had fingered her down below. This time the mother made an audio tape-recording of D saying this. The police and Social Services held a strategy meeting. A social worker, Mr Baxter, and a police officer met D at her school. A rapport was established with her and she was taken to the video suite to be interviewed by the police officer. During that interview she made an allegation of digital penetration. As reported, she stated that her father had "put two fingers in my loo". She demonstrated this by forcing two fingers into the bean bag she was sitting on. However, she stopped when she realised that her mother was in the next room and able to view her through the window. Mr Baxter reports that both the police officer and he believed that what D was saying was true. It is unfortunate that his report, which is dated 9th June 1997, states in paragraph 7 that she made the allegation against her father but then in summing-up in paragraph 12 states that:
"It should be noted that in both the formal and informal only Mr L (father) has been indicated by D as hurting her."
It is not clear whether the reference to Mr L, which is not the father's name, is a slip or whether there is a genuine doubt about the person to whom D was referring. I mention that only to indicate the importance for all concerned of knowing exactly what took place on that video.
It was also revealed in the course of the hearing before His Honour Judge Rudd that D had been examined by a police surgeon, but there is nothing about that anywhere in the evidence or papers before us; nor is there any indication of what the findings of that examination were.
After the interview there were discussions between Social Services and police and the social worker contacted the mother's solicitors to advise them that the police and Social Services felt that contact between D and her father should be stopped at this point. They also informed the Court Welfare Officer, Mr Kilsby, of the position. They advised him that they were sufficiently concerned as to the need to protect D that they would take immediate action should unsupervised contact take place.
At the directions hearing on 12th June therefore Mr Kilsby advised that any transfer of residence from the mother to the father was precluded and only supervised contact was feasible. The District Judge at that hearing ordered a report from the Social Services Department under section 37 of the Children Act 1989, a further Court Welfare Officer's report on the issues of residence and contact, he fixed the final hearing for 29th and 30th October and he fixed a half-day hearing about interim contact on 27th August.
On 27th August the father had decided to withdraw his residence application and the parties had reached agreement about interim contact. There was before the court a second Court Welfare Officer's report. This made it clear that the father was not to be prosecuted as a result of D's allegation. The section 37 report from the social worker, Miss Ruttledge, was also before the court. This revealed that the local authority had decided not to apply for a care or supervision order. Somewhat oddly it stated that D did not appear to meet the threshold criteria which have to be established before the court has power even to consider whether such an order would be in the child's best interests. This is odd because the author clearly did believe that D had been abused. She reported that D had repeated the allegation to her. The basis for the decision not to proceed was that the mother was protecting D from the possible risk of further abuse by not allowing contact with the father, although she also stated that the long history of disputes between the parents had subjected the child to emotional abuse. The report concludes with a further warning that:
"If unsupervised contact was allowed by [the mother] or ordered by the court, Social Services would convene a Child Protection Conference to consider the risks of sexual abuse and emotional abuse to D."
Not surprisingly, therefore the father, who had previously been enjoying extensive contact with his daughter, found himself facing the prospect either of prolonged supervised contact, which might well prove impractical,...
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