Re W (Fact Finding: Hearsay Evidence)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Davis LJ,Arden LJ |
| Judgment Date | 06 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1374 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/1942 & 1984 |
| Date | 06 November 2013 |
Care proceedings – Evidence – Hearsay – M having nine children – F being father of all but eldest child (T) – Care proceedings being brought in relation to five of children – F being accused of sexually abusing T and one of younger children (C) – T being vulnerable adult at time of proceedings – Judge relying on hearsay evidence of sexual abuse from social worker relating to when T was a child – Judge also relying on retracted complaints of T given as an adult – T not giving evidence – Court finding that F had sexually abused T and C – M and F appealing – Whether judge weighing evidence correctly.
M had nine children of whom F was the father of all but the eldest (T). T was a vulnerable adult in her twenties who had learning difficulties. Care proceedings were brought in relation to five of the children, who ranged in age from 15 years down to three years. At the conclusion of a fact-finding hearing in June 2013, the judge found that F had sexually abused T on more than one occasion, beginning when she was a child, that F had also sexually abused C over a number of years, starting when she was six years old, and that M knew of the abuse of T and had failed to protect the children. Much of the local authority’s evidence in relation to the sexual abuse findings was hearsay. The principal source of evidence about what had happened to T was obviously T herself—she had spoken to social workers about her experience in 2012/2013 and they had reported to the court what she had said. However, T had later retracted her complaints in two letters. The judge wished for T to give evidence to court, but in the event she did not make a statement or attend to give evidence. The judgment contained no reference to why direct evidence from T had not been available. It referred to the retraction letters, but did not set out how the judge had approached them in evaluating the complaints. The judge also relied on older allegations that were contained in a social worker’s note, made in 2003, of a telephone call from a health visitor. The health visitor appeared to have been reporting something that had happened 13 years before which had involved the maternal grandmother taking T to the GP with bruises. The note read ‘… [T] was masturbating and saying “dad did it to me” ’. The maternal grandmother, the only participant in the alleged events who had given evidence on the subject at the fact-finding hearing, denied that anything like
that had occurred. The judge found that the note was an accurate record as to what T had said at the time and that the grandmother had not been honest when she denied having any recollection of the alleged events. The judge recorded that there had been no evidence as to whether or not the note had been followed up by the local authorities. F and M appealed against the sexual abuse findings. Whilst not arguing that hearsay evidence of T’s complaint was inadmissible, F submitted that the judge had to determine what weight that evidence would bear and, in all the circumstances of the case, that she was wrong to rely on it; properly evaluated, what T was reported to have said about sexual abuse had no weight at all and could play no part in the judge’s findings.
Held – The problem with the judge’s approach was the lack of critical scrutiny of the material which she had gone on to use in evaluating the allegations in relation to T. As well as considering the reliability of the grandmother as a witness, the judge needed to address the deficiencies of the note as evidence. It might have been that the judge had kept all the relevant circumstances firmly in mind, but unfortunately they had not been articulated in the judgment. In particular, there had been no recognition that the material had been multiple hearsay or that, far from being a contemporaneous record, the note had related to events which had been 13 years old, or that the absence of details and context had complicated the interpretation of the event described. There were obvious questions that arose, for example as to: whether the health visitor had been recounting something that the grandmother had told the GP about T or whether T had said something to the GP; what T had said that her dad did to her; and whether it related to the bruises or to the masturbation or to something else altogether. One possible indicator of the significance or otherwise of the material would have been whether it was followed up by the authorities either in 1990 or in 2003; the judge should have spelt out whether she had had in mind the relevance of that consideration. As it was, she had accepted that the note was an accurate record of what T had said and had left it at that without further evaluation. Given the limitations of the material, more had been needed. Where an adult’s evidence was central to a finding or findings sought, it would normally be expected that the adult would give evidence, although there were, of course, situations in which that would not be possible. Where it was said to be impossible to obtain a statement from a witness or to secure a witness’s attendance at court, the court needed to know the reasons why so that they could be considered when estimating the weight (if any) to be given to hearsay evidence. There were ways in which witnesses could be assisted to overcome difficulties in engaging in court proceedings, including special measures. Alternatively, a witness summons might be appropriate. However, none of those options seemed to have been considered in the present case. If none of the available measures had secured direct evidence from the witness, the judge would have needed to have regard to the reasons for that in weighing the hearsay evidence on which reliance
was placed instead. A judge might have been less uncomfortable in giving weight to such evidence if there was a good reason for the witness’s non-engagement (such as profound psychological difficulties or a protracted physical illness) rather than if the reason was hard to divine or the non-engagement appeared to have been a matter of deliberate choice on the part of the witness. The retraction of a complaint normally required careful and specific consideration. The fact that a complaint was subsequently retracted did not prevent a judge from accepting that it was in fact true, but it gave rise to questions which had to be addressed sufficiently fully and directly in the judge’s reasons so that one could be confident that the fact of the retraction had been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation. Where, as in the present case, the only evidence before the court about the complaint was hearsay, that was particularly so, and the judgment had been insufficiently specific. It had to be apparent from the judgment that the judge had taken into account all the central features that had been relevant to the decision, both the positive and the negative. The judgment had to show, first, which features of the evidence the judge considered to be significant in pointing towards there having been abuse, secondly, that those features had been considered critically in the light of the features that undermined that hypothesis or pointed away from it, and, thirdly, why it was, having weighed all of that up, that the judge had found the local authority’s case established. It might have been the case that the judge had gone through that process in arriving at her conclusions, but unfortunately it was not possible to be confident from the judgment that the evidence had been weighed correctly, warts and all. Therefore the finding of the judge in relation to T had to be overturned. The finding in relation to C had to be overturned as well because it either was, or might have been, influenced by the judge’s finding in relation to T. Similarly, the finding concerning M’s knowledge of the abuse of T and her resulting failure to protect the children was dependent on the finding in relation to T and could not stand. The appeal would therefore be allowed in relation to the findings identified and remitted for a rehearing in that respect (see [17], [20], [22]–[25], [28], [31]–[33], [36], below).
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