Re U (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Lewison,Lord Justice Moore-Bick |
| Judgment Date | 09 April 2015 |
| Neutral Citation | [2015] EWCA Civ 334 |
| Docket Number | Case No: B4/2015/0129 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 April 2015 |
[2015] EWCA Civ 334
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Watford County Court
His Honour Judge Wilding
IL13C00388
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Lewison
and
Lady Justice King
Case No: B4/2015/0129
Brian Jubb (instructed by Edward Oliver & Bellis Solicitors) for the Appellant
Oliver Millington (instructed by London Borough of Lewisham) for the 1st Respondent
The 2nd Respondent was not represented
Xenia Stavrou (instructed by Edward Hayes Solicitors LLP) for the 3rd Respondent
Hearing date: Tuesday 17th March 2015
This is an appeal against a case management order made by His Honour Judge Wilding on the 12 December 2014, at the Family Court in Watford. The judge refused an application for an adjournment of an application made by the appellant (the father), for a re-hearing of care proceedings concluded in July 2014 in relation to 4 of his children
The central issue of the appeal is whether the judge should have adjourned the hearing of the application. It had been submitted by Mr Jubb on behalf of the father that should the appeal be allowed, the case throws up important issues as to the interpretation of s31 F(6) Matrimonial and Family Proceedings Act 1984, a new power inserted by the Police and Criminal Proceedings Act 2010 Schedule 10, whereby the family courts have power to vary, suspend, rescind or revive any order made by it. In the event it is now agreed by all parties that that the interpretation of the new section is not a matter which should concern this court in relation to the issues now before it.
Background
The appellant KU (the father) and VU (the mother) have 5 children. The eldest ZU, was born on the 21 October 1995. Although not subject to care proceedings given her age, ZU featured in the case having made an allegation that the father had sexually abused her when she was 14 or 15 years of age.
There are 4 other children of the marriage, AU (born 30 March 1999), BU (born 19 February 2003), and CU and DU (twins born on 9 September 2011).
Care proceedings were commenced on the 17 May 2013 in relation to the 4 youngest children of the family. The case became a paradigm example of care proceedings where the case management judges endeavour to have a case heard with expedition in the interests of the children was thwarted at every turn. As a result through no fault of the court or the local authority, proceedings have not yet been concluded after 22 months.
Following the issue of the care proceedings, directions were given by HHJ Brasse on 11 July 2013 for disclosure from the Metropolitan Police Service. The finding of fact hearing was listed for the 27 August 2013. A late and, what was described by HHJ Wilding who was to be the trial judge as a fallacious public interest application was then made by the police. This meant that that finding of fact hearing was lost and relisted for the 18 November 2013, only to be adjourned again, due to the failure of the police once again to comply with the court's order for disclosure.
The finding of fact hearing was finally heard in December 2013, by which time, despite assurances to the contrary, no charging decisions had been made by the CPS in relation to allegations of rape which had been made by ZU. The matter therefore came on before the judge, no decision having been made as to whether the father was to be prosecuted.
This was not however a single issue case. At paragraph 4 of his judgment, the judge identified the key issues in the case:
i) Whether the children had been physically abused their parents;
ii) Whether ZU had been sexually abused by her father;
iii) Whether the children had been present during and had witnessed domestic violence;
iv) Whether the parents had failed to protect the children from harm.
The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:
"Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children."
The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father's instruction. The judge made the inevitable finding that the mother had failed to protect the children.
In relation to the credibility of the parents, the judge made the following finding:
"Their evidence to my mind was characterised by evasiveness, defensive responses, obstruction, obfuscation and downright lies. I preferred the evidence of ZU and AU in every respect in regards to these incidents and I find they happened as pleaded."
The judge having found that the children had been subjected to physical violence and had witnessed domestic violence, found also that they had suffered emotional harm; the particulars of emotional harm centred around 3 examples found on the schedule when ZU or AU had either taken an overdose or otherwise tried to harm themselves.
The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
The focus in both the care proceedings (in relation to ZU's allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj's evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as "utterly unconvincing witness" clearly "partial and biased". He did not accept her evidence and believed it likely that she had been "put up to it by the father or someone on the father's behalf".
Accordingly the judge, having analysed various inconsistencies that he had identified in the girls' evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.
Following the making of the findings, the parents underwent a parenting capacity assessment and a psychological risk assessment. The conclusions of each of the assessors was that none of the children should be returned to the care of either parent, that the twins should be placed for adoption, with the two older children placed in long term foster care.
At the subsequent welfare hearing, the mother dishonestly asserted that she had separated from the father on the 11 April 2014 and since that date had been living with her brother and his wife; it was on this basis she had sought an assessment as a single parent. It became clear within the criminal proceedings that that had been a lie and that the parents had been, and continued to be, a couple (although it is unclear to me as to whether...
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