Re W (Minors) (Wardship: Evidence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE McCOWAN |
| Judgment Date | 03 November 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1103-1 |
| Docket Number | 89/1048 Case WG 905 of 1988 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 1989 |
[1989] EWCA Civ J1103-1
Lord Justice Neill
Lord Justice Butler-Sloss
Lord Justice McCowan
89/1048
Case 88 WG 9350
Case WG 905 of 1988
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. CIVIL DIVISION
ON APPEAL PROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
MR JUSTICE ANTHONY LINCOLN
Royal Courts of Justice
MRS M. PUXON, Q.C. and MISS L. HARRIS (instructed by Messrs Straker, Holford & Co.) appeared on behalf of the appellants.
MR J. COLE (instructed by the Solicitor to the London Borough of Lewisham) appeared on behalf of the respondents.
I will ask Lord Justice Butler-Sloss to give the first judgment.
This is an appeal from the order of Lincoln J. made on 20th July 1989 relating to the future of three little girls, Tammy born on 1st February 1982, Sarah born on 12th October 1984 and Sophie born on 19th March 1986. The three children became wards of court in 1988 on the application of the Local Authority, who now apply for an order that all three children be placed for adoption. The judge granted their application and terminated contact with their parents, the appellants.
Tammy is the daughter of the second defendant by a previous association and the other two girls are the daughters of both him and the first defendant (whom I shall call "the mother"). The third defendant is the paternal grandmother, who has played no part in these proceedings.
Tammy has had a disturbed upbringing with several changes of care within the family before she was taken into care by the Local Authority on 15th April 1987. Tammy's mother played no part in her upbringing and she was cared for during the first eighteen months by her father and grandmother. The judge found that the grandmother
"was a very powerful personality who dominated her family. She was also impulsive and hot tempered",
In July 1983 the father set up house with the mother and Tammy lived with them. Comments were made about the habits of Tammy at that time which led the judge to the view that something was obviously wrong with her. On 15th August 1987 an incident occurred which triggered off all the subsequent proceedings. The father in bed woke to find Tammy, then five, fondling his penis. The judge set out the father's account and that he was in a state of shock. The father told the mother, who called the Social Services. The grandmother in Norfolk was also telephoned and she agreed to take the child back with her for a while. The judge found it to be an extraordinary episode and if the father had not told the mother and she had not called in the social workers, nothing would have been heard of it. He said:
"I am quite unable to reach any conclusion about what happened in the father's bed on 15th August. I decline to find, on a balance of probabilities, that on that occasion the father sexually assaulted his daughter. On the other hand, if the father's description of the episode is correct, then his method of handling and managing it was deplorable."
Tammy's life was then split between Lincolnshire with the grandmother, and visits to London to the father and mother. The social workers lost touch with her and the judge was satisfied that the family hindered their efforts to find her. The Local Authority therefore issued wardship proceedings to trace her whereabouts. She was found a month later, well and happy. There were continuing disputes between the mother and father on the one side and his mother over the standard of care Tammy was receiving and where she should live. She continued to move between the parents' home and the two homes of the grandmother. On 15th April 1988, in circumstances which are still in dispute before this court, Tammy was placed by the family in the care of the Local Authority. It appears from the oral evidence of the social worker, Miss Grant, that the judge's assessment of the father's approach to the hand-over was incorrect and that in fact, so far from being the instigator of the move, it was initiated by the grandmother and the father was a reluctant participator.
The judge found that:
"it would be unthinkable to return Tammy to such an environment".
There is no appeal from that decision to place her permanently elsewhere. But both before the judge and to this court the Local Authority rely heavily on the history of Tammy to influence the court not to return the two younger girls to their parents, and her experiences are therefore relevant.
When Tammy went into care there was some concern as to neglect and some allegations of physical abuse, both by an anonymous letter accusing the grandmother and her other son, Gary, who lived with her, and by the grandmother and Gary accusing the parents. But the question of sexual abuse did not at that stage arise. Tammy was placed with foster parents, who kept a record of her behaviour. The judge round that:
"They are a continuous record. I am not prepared to believe that they were concocted. There is too much detail, some of it trivial, some of it significant. I can see no reason for the Halseys to write fiction about the child".
In July 1988 Tammy began to describe her "secrets" and told the foster mother about Uncle Gary, about watching pornographic videos with him, and taking part in sexual acts with him. She later implicated her father and other relatives. She also implicated the father in sexual activities with the two younger girls. She described the reaction of the mother, who hit the father after being told by Sarah and then smacked Tammy. The father vehemently denied these allegations. In a video-recorded interview with Dr. Glaser, a child psychiatrist (seen by the judge), Tammy repeated these allegations implicating the father and Gary in sexual acts with the two little girls. The interview was criticised in some respects by Dr. Connell, whose comments were endorsed by the judge, particularly with regard to increasing pressure and insistence of questions. The judge recognised and took account of the fact that this child did tell untruths and was found to have done so on previous occasions. It is, however, accepted that Tammy has been exposed to inappropriate sexual experiences, the extent of which has not been assessed in these proceedings, and Dr. Connell recommended that Tammy be removed from the family.
As a result of these allegations Sarah and Sophie became wards of court on 31st August 1988, and were placed with different foster parents from Tammy. They were also interviewed by Dr. Glaser, on two occasions. The interviews were inconclusive and apart from one incident at the second interview, there were no allegations of sexual abuse. The judge said:
"There was an unexpected episode in the course of this interview when Sarah suddenly lay prone on the floor and performed a sexual movement of her body saying 'Daddy goes like this on me'".
The children, however, spoke more freely to their first foster parents, who kept a running record which the judge accepted was not concocted. There were entries relating to masturbation and bad language. Sarah spoke of secrets and implicated Gary and her father in sexual activities with Sophie and herself. The judge set out what Sarah had said, and said, at page 13 of his judgment:
"These are very disturbing descriptions. If the children are fantasizing about their father and mother, their state of mind is so abnormal, sexually orientated and ugly that only a very poor upbringing could have brought about such results. If they are telling the truth, the parents' behaviour described by the girls must raise the most serious questions about the parents' mental and sexual state and their ability to rear children".
The three girls were medically examined by a consultant paediatrician, whose findings were criticised by a clinical forensic practitioner called by the parents. The judge did not rely upon the medical evidence to support allegations of sexual abuse, but pointed out that it did not follow that other forms of sexual abuse had not occurred.
Dr. Connell made a report and gave evidence. In his report he expressed his view about the mother:
"I am, however, quite clear that Sarah and Sophie love their mother, and that she is well able to look after them, give them a structure to their life and give them the emotional care they need".
After expressing his concerns about the method of interviewing and the circumstances in which the younger children made their statements, he said:
"Having said this, it is my opinion that unless there is a clear explanation as to why and how the disclosures took place; a clear picture of whether or not there was a possibility of learnt responses from others (such as Tammy or other children), it is inescapable that there is a marked suspicion of sexual abuse by the father and that there is therefore a risk if the children go home".
In his evidence he modified his report and told the Judge that he did not have the same anxieties about Sarah and Sophie as he had about Tammy. He recommended, despite some worries, the return of the two younger children under supervision which he said was essential. A criticism of the judge by Mrs Puxon for the appellants was that he did not refer to, and appeared not to have recalled, the change of emphasis in Dr. Connell's evidence.
This was a long hearing spread over a considerable period of time, with two long adjournments. The problems were very difficult and complicated; there were underlying and deep-seated family relationships and animosities, particularly between the grandmother and Gary on the one side and the parents on the other side; but they united from time to time and showed a common front...
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