Re W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer |
| Judgment Date | 09 February 2010 |
| Neutral Citation | [2010] EWCA Civ 57 |
| Docket Number | Case No: B4/2009/2627 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2010 |
[2010] EWCA Civ 57
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
H.H. Judge Marshall
Before: Lord Justice Wall
Lord Justice Wilson
and
Lord Justice Rimer
Case No: B4/2009/2627
LOWER COURT NO: PO09C00283
Mr Charles Geekie QC (instructed by Dutton Gregory LLP, Winchester) appeared for the Appellant, the “father”.
Mr Andrew Bond (instructed by its legal department) appeared for the First Respondent, Hampshire County Council.
Ms Maggie Jones (instructed by Larcomes LLP, Portsmouth) appeared for the Second to Sixth Respondents, the five children, by their Children's Guardian.
The mother of the children did not appear and was not represented.
Hearing date: 21 December 2009
Lords Justices Wall and Wilson:
A “father” (as it is convenient to call him) has appealed against an order made in care proceedings by Her Honour Judge Marshall in the Portsmouth County Court on 30 November 2009. The judge was due to embark on a fact-finding hearing in the proceedings on 4 January 2010 although since the hearing of the appeal we have been told that, in the event, that date was postponed; and her order on 30 November was to refuse the father's application that the oldest of the five children who are the subject of the proceedings, namely a girl, C, who was born on 27 November 1995 and is thus aged 14, should attend the hearing in order to give oral evidence and in particular to be cross-examined on behalf of the father.
The four younger children are a girl who was born on 24 July 2001 and is thus aged eight; a boy who was born on 8 October 2002 and is thus aged seven; a girl who was born on 17 June 2006 and is thus aged three; and a boy who was born on 14 September 2008 and is thus aged one.
In the light of its apparent urgency we heard the father's appeal on 21 December 2009 and, at the end of it, we announced our decision, namely that it should be dismissed. We added that we would give our reasons in writing later. This we now do.
In the proceedings the applicants for the care orders are Hampshire County Council (“the local authority”). The first respondent to them is the mother of all five children. We have described the second respondent as the father but, more accurately, he is the biological father only of the four younger children and is no more than the de facto stepfather of C. The third to seventh respondents to the proceedings are the five children themselves, acting by their Children's Guardian. As we have implied, the mother and the father are not married. They contend that they are not presently cohabiting. It is clear however that, but for the matters giving rise to the proceedings, they would still be cohabiting; and in principle, and subject to any terms which might be imposed upon the mother as conditions of the return of the four younger children to her, it seems that she and the father would wish to resume their cohabitation.
C has a full sister, N, who is now aged 17 and is not a subject of the proceedings.
The care proceedings have been precipitated by profoundly serious allegations made against the father by C. Back in 2008 she had made allegations of sexual abuse on his part towards her, as a result of which the police had become involved; but C had quickly retracted the allegations and indeed contended that they had been lies; and family life had continued. It seems, however, that, on an occasion at school later that year, C spoke to a friend about what she alleged to be continuing sexual abuse on the father's part towards her. Ultimately, on 18 June 2009, again at school, she made a further detailed allegation of sexual abuse against the father; and on the same day she was interviewed by a WPC pursuant to the Achieving Best Evidence guidance. The local authority issued the care proceedings. C was immediately taken into foster care, where she has remained. The four younger children were also taken into foster care, but, following the making of an order excluding the father from the home and upon an undertaking on the part of the mother not to bring them into contact with him, they were restored to her care. Unfortunately, at any rate to a limited extent, the mother did bring them into contact with him, as result of which they were again removed from her and placed again in short-term foster care (otherwise than with C), where they remain.
The matters relied upon by the local authority for the crossing of the threshold to the making of care orders are entirely founded upon C's allegations against the father. She has alleged that he has on a number of occasions penetrated her vagina with his finger; performed oral sex on her; forced her to perform oral sex on him; raped her vaginally, the last occasion being on 17 June 2009; and raped her anally, the last occasion being on the same date. The father strenuously denies all the allegations. His case is that, just as in respect of the allegations which she made in 2008 but (so he says) rightly retracted, C has maliciously invented the current allegations, perhaps in part as an expression of her jealousy of his much closer relationship with her sister N than with her.
Very soon after the ABE interview C was medically examined but no relevant evidence was thereby obtained. The local authority allege, however, that there is other, forensic, evidence against the father. The police seized from the family home the skirt and knickers which C was allegedly wearing on 17 June 2009 and tests on them have shown semen stains containing the father's DNA. Mr Geekie QC on his behalf hopes to raise significant grounds for considering that those items of clothing may have been innocently contaminated with the father's DNA, for example (we speculate) from sheets on which the parents slept or from the father's own underwear. To the doctor who examined her C also produced a tissue with which, so she said, she had wiped herself following the father's alleged rape of her on 17 June 2009 and had deliberately kept for evidential purposes. Apparently the tissue is shown also to have a trace of semen but in an insufficient quantity to allow for DNA analysis. It will (we again speculate) be a necessary part of Mr Geekie's case that, as part of her plot to frame the father, C somehow acquired some semen and applied a tissue to it.
The father also faces criminal charges, brought against him as recently as in October 2009. He faces charges of nine counts of sexual activity with C involving penetration and four counts not involving it. He will be entering not guilty pleas to all the charges. The criminal proceedings will not be heard for at least several months and it is accepted that H.H.J. Marshall was correct not to wait for the conclusion of the criminal proceedings but to arrange for the fact-finding hearing to which we have referred.
The hope of the parents is that C's allegations against the father will be established to the satisfaction neither of H.H.J. Marshall in the care proceedings nor of the jury in the criminal proceedings; and that the four younger children will then be enabled to return to their joint care. The mother contends that she does not know whether C's allegations are true. Were they found to be established in whole or in part (even if only in the care proceedings), a thorough enquiry would need to be undertaken into the mother's acceptance (or otherwise) of the findings, into her willingness to separate permanently from the father and, generally, into her ability to keep the four younger children safe if returned to her care. But, irrespective of the outcome of the two sets of proceedings, it seems inconceivable that C will ever return to the family home. She has contact with the four younger children but is presently estranged not only from the father but from the mother and indeed also from N, who appears to have been furiously angry with her for making the allegations. C currently appears very isolated.
On 21 September 2009, at a case management conference, the local authority informed the judge that it was agreed on all sides (i.e. including by the Children's Guardian) that they should be granted permission to call C to give oral evidence at the substantive hearing via a video-link. Presumably C's ABE interview, recorded on DVD, was to stand as her evidence-in-chief and, no doubt, the main purpose of calling her to give oral evidence was to enable Mr Geekie to cross-examine her. Within hours of that hearing, and prior to her finally approving the directions which had been presented to her as agreed, the judge, of her own motion, decided that she should receive further argument before granting permission for C to give oral evidence. She directed that the argument be presented at the next hearing, namely on 23 October 2009. At that hearing the local authority revised their position. They indicated that they no longer wished to call C to give oral evidence even by video-link; and that instead they would rely on C's evidence in the ABE interview as hearsay evidence. The Children's Guardian had also changed her mind – partly because in the interim the father had been charged with the criminal offences and C therefore then faced giving oral evidence in those proceedings – and was supporting the revised position of the local authority. Matters were left on the basis that, with his advisers, the father would consider whether to make an interlocutory application to the judge for an order that C should give oral evidence by video-link; and he did so. The hearing of his application took place on 25 November 2009. The judge reserved...
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