Re X (Children) (Disclosure for Purposes of Criminal Proceedings)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 31 March 2008 |
| Neutral Citation | [2008] EWHC 242 (Fam) |
| Court | Family Division |
| Date | 31 March 2008 |
| Docket Number | Case No (omitted) |
[2008] EWHC 242 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Mr Justice Munby
Case No (omitted)
This judgment was handed down in private but the judge hereby gives leave for it to be published in this form
Attention is drawn to the injunction referred to in paragraph [86] of this judgment
The names of the advocates and solicitors are omitted in the interests of the children
Hearing date: 23 January 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 29 June 2007 I handed down a previous judgment in this matter: Re X (Children) [2007] EWHC 1719 (Fam). That judgment dealt in part with certain disclosure issues which had arisen in the context of care proceedings in respect of four children, A, B, C and D. The father of the children was Mr X (who I will again refer to as “the Defendant”). He and his wife, Mrs X, are now divorced.
Further disclosure issues have now arisen in the same proceedings.
The background
The background is to be found summarised in paragraphs [3]-[9] of my previous judgment. I need not repeat here what I said on that occasion. But I should elaborate the somewhat obscure reference in paragraph [8] to certain very serious offences.
I should explain that B was born in January 1992. D, who was born in August 2006, is her child. So B was only 14 1/2 when D was born and only 13 when D was conceived. Furthermore, D's father is B's own father, the Defendant. So D was the result of father/daughter incest.
On 30 May 2007 the Defendant was arrested and charged with incest, specifically, and following the relevant statutory language, that between January 2004 and December 2005 he had penetrated B's vagina with his penis contrary to sections 25(1) and (6) of the Sexual Offences Act 2003. Since, as I have said, B was born in January 1992, the offence charged covered the period when she was 12 and 13 years old. The Defendant appeared at the Magistrates' Court in November 2007 charged with a single offence under section 25 of the Sexual Offences Act 2003. He was remanded to appear before the Crown Court later that month.
Also in November 2007 I began the final hearing of the care proceedings in respect of A, B and C. The proceedings in respect of D had already come to an end (see Re X (Children) [2007] EWHC 1719 (Fam) at para [75]). Counsel for the local authority and counsel for Mrs X produced an agreed threshold criteria document (see section 31(2) of the Children Act 1989). The Defendant was invited to agree this document. He declined to do so. Instead he signed a document making certain limited admissions. That document is set out in Part 2 of the Schedule to the order referred to in paragraph [82] below.
During the course of the hearing somewhat Delphic references were made by the local authority's counsel to certain disclosures that had very recently been made by B. In due course I was shown two documents. The question then arose as to whether these documents – what became known for the remainder of the hearing as 'the Delphic material' – should be disclosed to the Defendant and his legal advisers. His counsel submitted that they should; counsel for the local authority and counsel for Mrs X took the lead in submitting that they should not. Having heard argument, in particular as to the proper application in the circumstances of the principles in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, I ruled that the contents of the documents were not to be revealed either to the Defendant or to his advisers.
Not least in the light of the Delphic material, neither counsel for the local authority nor counsel for Mrs X was prepared to accept the Defendant's limited admissions as correctly summarising the true extent of his abuse of B. They submitted that he should be required to give oral evidence. Pointing to the decision of the Court of Appeal in Re Y and K (Split Hearing: Evidence) [2003] EWCA Civ 669, [2003] 2 FLR 273, they correctly submitted that the Defendant was a compellable witness, that he had no right to refuse to give evidence and that by virtue of section 98(1) of the Children Act 1989 he could not even refuse to answer questions which might incriminate him.
At this point the Defendant sought permission to withdraw from the proceedings and indicated that he was not prepared to give evidence. I refused his application for permission to withdraw and, despite protest from his counsel, who understandably declined to call him as a witness, ruled that he should give evidence. I observed that even if he had the right to refuse to answer a question on the grounds of some privilege that was no answer to his obligation to enter the witness box and be sworn (or affirmed); any claim to privilege could and should be taken after he was sworn and by way of objection to some specific question. I made it clear to the Defendant, in his presence and hearing, that I was making an order that he go into the witness box and be sworn and that if he refused to do so he would be guilty of contempt of court for which he could be both fined and imprisoned.
The Defendant gave evidence on 29 and 30 November 2007. At no time was any claim to privilege made by him or on his behalf. He was cross-examined first by counsel for the local authority and then by counsel for Mrs X. There is a transcript of his evidence. In large measure it speaks for itself but I need to fill out the picture in two respects.
Mrs X steeled herself to sit in court throughout the Defendant's evidence. It was, very obviously, and as one would expect, a harrowing experience for her. She sat there weeping, desperately wanting to know what had happened to her child. She listened largely in vain, for the Defendant's evidence, as can be seen from the transcript, was very far indeed from being frank. It was in fact, as I find, very far indeed from being the truth either.
The other matter is this. There is reference on page 15 of the transcript to something the Defendant wrote down. The note reads as follows:
“I was impotent. I had trouble siring 3 children. I though [sic] I had fertility problems.”
As to this I observe only that the Defendant was plainly not impotent, for there is no suggestion anywhere in his evidence or elsewhere that he did not achieve full penetration on each of the seven occasions on which he admits having had sexual intercourse with B. And the fertility problems to which he alludes did not prevent him fathering D, a baby who is indubitably proved by DNA tests to have been his child.
I interpolate at this point some dates which need to be borne in mind when considering the Defendant's evidence and the questions he was being asked. B was removed from school in early April 2004, just before the Easter holidays, when she was just 12 years old. Thereafter she was educated at home. What had been planned as a family holiday in Malta, though in the event only the Defendant and B went, began in July 2004, when B was just 12 1/2 years old. It lasted much longer than originally planned – for some eight weeks in all.
A recurrent theme throughout his evidence was the Defendant's professed difficulty – his embarrassment – in answering questions in court in the presence of so many people, a stance he maintained even after I had reduced the number of those in court to the absolute minimum. I was not particularly impressed with this stance, which seemed to me to be little more than a device to avoid having to face up to the realities of what he had done. But I decided to give him a final opportunity to be frank. At the end of his evidence I said this (transcript pages 27–28):
“Mr [X], there are not going to be any more questions here but, as I mentioned yesterday, this is really your final opportunity, if not forever for a very long time, to tell us what happened and I am going to give you the opportunity, if you want to help us further, of writing down anything further you want to tell us. Not here and now today but you can write it down over the course of the next few days and send it to me because more than once you have suggested there are things which you find very difficult to say and it may be that there are things you would feel able to say if you wrote them down. I am going to give you a final opportunity to add to what you have told us already by putting it in writing and you can have until the middle of next week to do that. I am spelling that out so that if there is anything further you want to tell us and you put it in writing, then I will consider it. If, on the other hand, you do not take up that opportunity then I will have to make my decisions and draw whatever inferences are appropriate, come to whatever conclusions are appropriate on the basis that you have told us nothing further beyond what you have told us today. So that you have a final opportunity over the course of the next few days, if you wish to do it, of writing it all down and sending it to me and my final decision will be based upon everything I have heard, including what you have told us in the witness box over the last two days, together with anything that you may choose to put in writing over the next few days.”
The Defendant elected not to avail himself of that opportunity.
At the end of the hearing I approved the threshold criteria document.
Part 1 of that document is agreed between Mrs X and the local authority. It is, I am quite satisfied, an accurate distillation and description of what the evidence convincingly establishes.
I do not, out of consideration for B and the other children, propose to...
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