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 |
| Date | 06 November 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/1942 & 1984 |
[2013] EWCA Civ 1374
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
HER HONOUR JUDGE DAVIES
LU13C03205
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lady Justice Black
and
Lord Justice Davis
Case No: B4/2013/1942 & 1984
Ms Jane Cross QC & Ms Georgina Clark (instructed by Adams Moore Family Law) for the 1 st Appellant
Mr Alex Verdan QC & Ms Beverley Roberts (instructed by Solomon Levy Solicitors) for the 2 nd Appellant
Miss Frances Heaton QC & Giles Bains (instructed by Luton Borough Council Legal Services) for the 1 st Respondent
This appeal concerns findings of fact made by Her Honour Judge Davies on 21 June 2013 in care proceedings in relation to five children. The appellants are the parents of those children; I will refer to them as the father (F) and the mother (M). The respondents to the appeal are the local authority, four of the children by their guardian, and the remaining child who is separately represented. The guardian contributed to the appeal process in writing but was excused from attending. We also received a position statement on behalf of the child who is separately represented of which we have taken note even though it arrived at a late stage. All the other parties were represented before us by counsel, to whom we owe much gratitude for their very clear and focussed argument.
At the end of the appeal hearing, we announced that the appeal was allowed for reasons that would be given later in writing. I now set out the reasons that led me to my decision.
M has 9 children of whom F is the father of all but the eldest, T, who is 28 years old. The children who are the subject of the care proceedings range in age from 15 years (twins who are girls) down to 3 years. I will not set out the details of any of the children except in so far as it is necessary in order to explain our decision in relation to the appeal. For that purpose, one needs to know that one of the twins is called C, and that amongst the older children, there is a brother who is in his early twenties to whom I will refer as B.
The hearing before Judge Davies lasted for five days. In addition to reading the trial bundles, which we are told extended to four lever arch files, she heard oral evidence, including from three social services witnesses, a jointly instructed psychologist, the parents and the maternal grandmother. At the conclusion of the hearing she 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 6 years old, and that M knew of the abuse of T and had failed to protect the children. The parents' appeal was directed to these findings and certain findings ancillary to them which the judge also made; I will refer to these challenged findings globally as "the sexual abuse findings". The judge made other findings which are not challenged and which, in summary, were as follows: that F had physically abused C causing her emotional harm and that M knew of the physical abuse; that the children had suffered significant emotional harm as a result of being drawn into the details of the case by their parents; and that M had acted in breach of a written agreement with the local authority in taking the youngest child to the home of the paternal grandparents.
It was agreed that although M was the first appellant, F's counsel would bear the burden of advancing the appeal because it largely revolved around findings about his conduct. M supported what was said on F's behalf.
A number of grounds of appeal were advanced by F but I think it is fair to say that the principal complaint was about the way in which the judge approached the hearsay evidence adduced by the local authority. I will concentrate upon this issue because it is sufficient to determine the appeal and, as there is to be a rehearing of the factual issues, it is important that I say as little as possible about the evidence so that the judge who deals with this matter is free to evaluate it as he or she thinks proper. Nothing that I say in this judgment should be taken as indicative of any view as to the weight (or lack of weight) of particular pieces of evidence. Making findings of fact is a complex process which depends upon the judge's evaluation of the whole of the evidence presented and of the witnesses who appear before him or her. It is only when the whole jigsaw is assembled that the weight of an individual piece of evidence can reliably be determined.
This case gave rise to no general arguments of principle. There is a great deal of authority on the subject of hearsay evidence in cases concerning children. I will list below the authorities that were cited to us as of particular relevance to the issue but we were not asked to revisit them or to venture any general guidance, the appeal being approached with commendable practicality on the basis that the judge erred in the way in which she treated the evidence in this particular case. The authorities were: Official Solicitor v K [1965] AC 201; Re W (Minors)(Wardship: Evidence) [1990] 1 FLR 203; R v B County Council, ex parte P [1991] 1 FLR 470; Re N (Child Abuse: Evidence) [1996] 2 FLR 214; Re D (Sexual Abuse Allegations: Evidence of Adult Victim) [2002] 1 FLR 723; Re B (Allegation of Sexual Abuse: Child's Evidence) [2006] EWCA Civ 773; H v L [2006] EWHC 3099 (Fam); B v Torbay Council [2007] 1 FLR 203; W (a child) [2007] EWCA Civ 1255; JFM v Neath Port Talbot Borough Council [2008] EWCA Civ 3; Enfield LBC v SA (By her Litigation Friend, The Official Solicitor) [2010] EWHC 196 (Admin); Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12 [2010] 1 FLR 1485; Surrey County Council v M, F and E [2013] EWHC 2400 (Fam).
We were also referred to the Children (Admissibility of Hearsay Evidence) Order 1993, the Civil Evidence Act 1995 and Articles 6 and 8 ECHR.
Much of the local authority's evidence in relation to the sexual abuse findings was hearsay. The principal source of evidence about what happened to T was obviously T herself. She had spoken to social workers about her experience in late 2012/early 2013 and they reported to the court what she had said. However, Judge Davies (who very properly attended to the case management of this case throughout) was quite rightly intent on ensuring that her evidence should be received by the court in a more direct form and made an order on 20 March 2013 that if the local authority were relying on her evidence, they were to file a statement from her. A date was given for the filing of the statement and when that was not complied with, an extension was given. However, still no statement was forthcoming.
T's position was discussed at a directions hearing on 6 June 2013. There is a difference of recollection as to the extent to which any reason was given for the absence of a statement from her but it may be that the local authority explained to the judge that T was not co-operating with the process, as Miss Heaton QC explained to us on their behalf during the appeal hearing. No orders were sought from Judge Davies or made by her with a view to resolving such problems as there were.
By the time that the final fact finding hearing commenced on 17 June 2003, nothing had changed. T had not made a statement and she did not attend to give evidence. It seems that the hearing proceeded without any discussion of why this was or what should be done about it.
T is a vulnerable adult who has suffered from depression and she has learning difficulties, although no one suggested that they were such as to prevent her from giving evidence. Social services are involved in relation to her children, of whom there are four, the youngest having been born at the end of April 2013. In her statement of 3 May 2013, Ms McMenemy (one of the social workers who gave evidence to Judge Davies) spoke of reports that T was under a great deal of pressure from her family to write a statement supporting them and said that T was not now willing to provide a statement confirming what she had said about abuse (B62/3). However, it appears that there was no up to date evidence about T's position offered to the court either at the directions hearing on 6 June 2013 or at the fact finding hearing. The judge should at least have been told, for example, what efforts had been made to obtain a statement from T and/or to secure her attendance at court and why these had foundered, and she should have been fully informed about any continuing personal difficulties on T's part which it appeared were getting in the way of the process.
It may not be entirely surprising, in the circumstances, that the judgment contained no reference at all to the reasons why direct evidence from T was not available. The judge said only this about T's absence:
"On behalf of F, I am reminded that he has Article 6 rights to a fair trial. I must bear in mind that he has a right to cross examine witnesses and, if witnesses have not been called to give evidence, I must consider what weight should be given to their evidence." (§7)
"T has not been called to give evidence, either by the local authority or by the parents; and I must remind myself it is for the local authority to prove the case, it is not for the parents to disprove it." (§8)
"I have to bear in mind that T has not attended court to be cross examined…" (§22)
Whilst not arguing that hearsay evidence of T's complaint was inadmissible, Miss Cross QC for F submitted that the judge had to determine what weight that evidence would bear...
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