S (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur |
| Judgment Date | 07 July 2015 |
| Neutral Citation | [2015] EWCA Civ 877 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 July 2015 |
| Docket Number | Case No: B4/2015/0191 & 0192 |
[2015] EWCA Civ 877
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
(HER HONOUR JUDGE MOIR)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur
Case No: B4/2015/0191 & 0192
The Applicant appeared in person
The Respondent did not appear and was not represented
This is an application for permission to appeal an order made by HHJ Moir, on 16 September 2014, when she refused the application made on behalf of the applicant to call PA (the applicant's sister then aged 13 years, 9 months) to give oral evidence concerning allegations that she had made against the applicant and subsequently the order, made on 15 October 2014, based upon the findings made by HHJ Moir concerning the credibility of the allegations made by PA, which evidence she received by way of video recorded interviews conducted by the police.
The very brief facts of this case are as follows. The applicant was married at the relevant time. He had two children. at the time of the judgment those children were aged 3 1/2 and just over 1 years of age. The local authority wished to protect the children from what they considered to be the risk presented by the applicant on the basis of the allegations that had been made by his sister PA. Those allegations are of serious sexual abuse commencing when PA was 6 years of age and only ending some 4 weeks before she made her first allegations against him to a teaching assistant, just after she had turned 12 years of age.
The applicant had been arrested and interviewed by reason of those allegations. The prosecution intended, however, did not take place. PA indicated that she did not wish to proceed with the allegations and consequently, and somewhat surprisingly it may seem, on 29 October 2013 the prosecution offered no evidence against the applicant when he appeared before the Crown Court sitting in Newcastle upon Tyne.
The complainant had made complaints to two of her friends. She had made disclosure to a teaching assistant and others subsequently. She had been video recorded making those allegations, which videos were available and relied upon in the Children Act proceedings.
PA had apparently retracted those allegations on several occasions. This is referred to within the judgment of HHJ Moir not only on 15 September but also on 15 October. I am unable to be sure from the description of those retractions as to whether or not the complainant actually did suggest that her complaints were not true, or merely that she did not wish to proceed with them. In any event, the application before the judge was quite clearly that this applicant could not receive a fair trial without the complainant, PA, giving evidence before the court.
I turn to the first judgment and determination made in this regard, that is that of 16 September 2014. The judge was aware that the allegations of PA were the basis of the case that the local authority made in respect of the two children with which the court were concerned. Subject to her allegations, the position of the applicant would either be confirmed within the family, or he would inevitably be removed and safeguarding measures taken. This fact was pertinent to the issue before the judge.
The judge reminded herself of the approach that she must take in accordance with the guidance given in Re W (Children) [2010] UKSC 12, and also the approach reflected in the Working Party of the Family Justice Council Guidelines in December 2011. In addition, she indicated that she had considered the authorities of Re J (A child) [2014] EWCA 875 and also Re B (A child) [2014] EWCA 1015. She went on to consider the welfare considerations in respect of PA giving evidence before the court, reminding herself throughout that this was not the paramount consideration in her determination of the application.
The judge reminded herself of the evidence given by a social worker and the guardian, who had been appointed to report to the court on the capacity of PA to give evidence before the court. The judge was satisfied that their evidence unequivocally pointed to the fact that PA should not give evidence before the court. Both considered that PA was a vulnerable teenager, despite her initial impression of...
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