Re T and Others (Children) (Adequacy of Reasons)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Simler,Lord Justice Warby |
| Judgment Date | 29 June 2023 |
| Neutral Citation | [2023] EWCA Civ 757 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000862 and 000863 |
[2023] EWCA Civ 757
Lord Justice Baker
Lady Justice Simler
and
Lord Justice Warby
Case No: CA-2023-000862 and 000863
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HH Judge Oliver
ZC21C00130
Royal Courts of Justice
Strand, London, WC2A 2LL
Amanda Weston KC and Josephine Fathers (instructed by Oliver Fisher Solicitors) for the First Appellant
Gemma Taylor KC and Sharan Bhachu (instructed by Thompson Law) for the Second Appellant
Sarah McMeechan and Samuel Prout (instructed by Local Authority Solicitor) for the First Respondent
Julie Okine and Barbara Hecht (instructed by Hecht Montgomery) for the Second Respondent
Ramanjit Kang (instructed by Creighton and Partners) for the Third to Sixth Respondents, by their children's guardian
Hearing date 29 June 2023
Approved Judgment
These two appeals concern findings of fact in public law children proceedings. They are appeals by a 19-year-old man, hereafter referred to as S, and his mother against the judge's decision dated 21 March 2023, by which he made findings of fact against them. The findings came within care proceedings brought by the local authority in respect of S's younger siblings: T, a 16-year-old girl; U, a 14-year-old girl; V, a ten-year-old girl; and W, a five-year-old boy. The appeals are supported by the children's father, acting through his litigation friend, but opposed by the local authority and the children's guardian.
The principal issue arising on the appeals is, once again, the adequacy of the reasons given by the judge for the serious findings he made against S and his mother.
Although the history of the matter which led to the proceedings, and of the proceedings themselves, is complicated, it can be summarised fairly briefly for the purposes of these appeals.
The family has been known to the local authority for 15 years. The father has diagnoses of severe post-traumatic stress disorder with psychotic features and dependent personality disorder. The mother is often his sole carer. There have been lengthy difficulties with housing, money and immigration status which have had an effect on the mother's ability to care for the children. In November 2008, S and T were placed in foster care for a month under s.20 of the Children Act 1989 when the mother had to stay in hospital after giving birth to U. In the following years, a number of referrals and assessments were made and completed. Between July 2017 and March 2018, the children were the subject of child protection plans under the category of emotional harm. At that stage, the local authority had concerns about the mother's anxiety, her ability to prioritise the children's needs, and the speech and language development of U and V, both of whom were described by CAMHS as selectively mute.
Towards the end of 2020, the local authority began to be concerned about T's peer groups: she was reported missing from school on one occasion and was found with a friend who had been assessed as being at high risk of sexual exploitation.
On 5th February 2021, police officers were called to the family home by S as a result of an incident involving T. While they were there, T made allegations that her brother had sexually abused her on occasions when she was aged 11 and 12. She further alleged that her mother had known about the abuse and done nothing to protect her.
T was subsequently interviewed under the ABE procedure. She repeated her allegations and also alleged that on another occasion her mother had slapped her cheek and kicked her.
S was interviewed and denied the allegations. The mother also denied knowing or being told about the allegations. She raised concerns about T's behaviour and the young persons with whom she was associating at school which had led to a deterioration in her behaviour and use of illegal substances.
T has been the subject of an interim care order since the beginning of the proceedings. She has stayed in foster care and several different residential placements. During this time she has suffered significant mental health crises and self-harmed on many occasions. She has absconded from the placements many times and on most occasions returned to her family home. On one occasion when she absconded, she alleged sexual assault by a stranger. At several points during the proceedings, T retracted the allegations against S and her mother, then repeated them, then retracted them again. All professionals accept that her presentation is very complex and extremely worrying. A particular practical concern is that she will reach the age of 17 in the next three months at which point she will be beyond the age at which a care order can be made.
Meanwhile the three younger children remained at home with their parents. By agreement, S moved out of the family home.
On 19 July 2021, S was joined as an intervenor to the proceedings. His lawyers applied for T to give evidence at the fact-finding hearing. That application was opposed by the local authority and the guardian. After a Re W hearing on 19 November 2021, the judge came to the conclusion that T would not give evidence. Participation directions were also made in respect of S.
The findings sought by the local authority were set out under the following headings:
(1) When T was aged around 11 to 12, S sexually abused her by anally raping her on 20 occasions and on one occasion taking a photograph of her with one of her breasts exposed.
(2A) T informed her mother that S had abused her. The mother told her not to tell anyone. Mother failed to protect T and is unable to protect the children from sexual harm from S.
(3) The mother has influenced or sought to influence T to conceal or withdraw her allegations about S.
(4) On 5 February 2021, the mother hit and kicked S, pulled her hair and choked her.
(5) During December 2020, the mother grabbed T's hair and S hit, grabbed and punched her.
(5A) At times there were heated arguments between T and the mother. These escalated into physical altercations and necessitated the police being called. On those occasions, T was beyond the control of her parents.
(5B) On 27 December 2020, S physically intervened in an argument between T and her mother and accepts restraining his sister.
The fact-finding hearing was originally listed in December 2021 but had to be adjourned due to a number of practical and evidential difficulties. The original time estimate given by the parties had been 13 days. The court reduced the time listed to 10 days, then reduced it again to 9. The adjourned hearing listed in April 2022 had to be adjourned again and the fact finding finally went ahead in August 2022. In the event, it continued over twelve days in August, September and October during which fifteen witnesses gave oral evidence to supplement the extensive written evidence. At the conclusion of the evidence, the court directed written submissions with the intention of delivering judgment in November 2022. A request for the matter to be listed for oral submissions was refused. Instead, the court afforded the parties the opportunity to file supplemental submissions in response.
Before judgment could be delivered, however, U made allegations of a similar nature against S. It was therefore agreed that judgment would be delayed while the allegations were investigated and the local authority decided whether to seek further findings. In the event, it was decided that no further findings would be sought. The judge was then asked to hand down a written judgment (which could then be translated and explained with the assistance of intermediaries) but declined to do so because of shortage of time.
On 21 March 2023, the judge delivered an oral judgment in which he made substantially the findings sought by the local authority. Following the judgment, lawyers representing S initially invited the judge to clarify the judgment, but those representing the mother subsequently informed the court that they intended to appeal against the findings and the request for clarification on behalf of S was withdrawn.
On 9 May 2023, notices of appeal were filed on behalf of both S and the mother. On 7 June, permission to appeal was granted on both applications.
At the hearing of the appeal today, we have been told that the current position of the family is as follows. S is now living in independent accommodation. He does not visit the family home and has no direct contact with his siblings. T has a place allocated for her in semi-independent accommodation but is currently back living in the family home. U's circumstances have deteriorated very alarmingly. She is currently detained in a mental health unit under section. The two younger children, V and W, who were briefly removed into foster care at the end of last year after U made her allegations, are currently at home.
The judgment
At an early stage in the judgment, the judge explained what he was going to do in these terms (at paragraph 3):
“This judgment can only last about an hour because I have another hearing. It cannot therefore go into every single detail of every single bit of evidence of the 12 days of hearing, otherwise we would be here for 12 days. If it needs to be expanded, it will be. But I am going to give much more of an overview than anything else.”
He then referred to the law in these terms:
“10. The law that I need to apply has been agreed between junior counsel in the case. I have a 14-page note dated 27 October 2022. That note will not be read in full, but I will, if necessary, read it into the judgment at a later stage.
11. Suffice it to say the burden of proof falls on the Local Authority. It is on the balance of probabilities. It is not for the person against whom allegations are made to prove they are innocent.
12. One has to...
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YM (Care Proceedings) (Clarification of Reasons)
...Abuse Allegations) [2022] EWCA Civ 1002, Re C, D and E: (Care Proceedings: Adequacy of Reasons) [2023] EWCA Civ 334, Re T and Others (Children) (Adequacy of Reasons) [2023] EWCA Civ 757 and most recently Re J, P and Q (Care Proceedings) [2024] EWCA Civ 6 In Re I, King LJ noted that “req......