SW and another v Portsmouth City Council and Others; Re W (children) (concurrent care and criminal proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Concurrent criminal proceedings – Findings of fact – Allegations of sexual abuse made against stepfather – Judge in care proceedings finding allegations established – Stepfather being acquitted of rape in criminal trial – Stepfather appealing against findings of fact in care proceedings – Whether judge erring by refusing to compel child to give evidence – Whether judge erring by failing to adjourn proceedings pending outcome of criminal trial.
The child was born in the Gambia in 1992. Following her mother’s marriage to the stepfather, she was brought to the United Kingdom with her two brothers. The local authority became involved with the family as a result of serious assaults by the mother on the child and stepfather. At that time, the mother claimed to have caught them kissing in the kitchen. Care proceedings were commenced by the local authority on 6 December 2007. The mother later retracted her allegations and reconciled with the stepfather. The child initially denied that the stepfather had behaved inappropriately towards her, but subsequently asserted that he had ‘put his penis into [her] vagina’ on at least two occasions. The allegations led to the stepfather being charged in the Crown Court on two counts of rape, whilst facing identical accusations in the care proceedings. The child was unwilling to give evidence in the care proceedings and the stepfather’s applications for her to be compelled to do so were refused. An extended fact-finding hearing lasting 14 days took place during the course of July, September and October 2008, the delay being in part attributable to the stepfather’s lack of legal advice or representation. On 24 October, the judge found the allegations established on the balance of probabilities and accordingly made the findings of rape sought by the local authority. A separate fact-finding hearing took place to determine allegations of violence made against the mother, notwithstanding that she had made numerous admissions in that regard. Following the stepfather’s criminal trial (at which the child gave evidence and was cross-examined), he was acquitted. Supported by the mother, he appealed against the decision against him in the fact-finding hearing. He submitted,
inter alia, that the judge should have required the child to attend to give evidence in the care proceedings or, alternatively that he should have adjourned the care proceedings until the outcome of the criminal trial so that he could be properly informed of the evidence given by the child and the information which emerged from the trial generally.
Held – (1) For as long as the discretion to compel or not to compel children to give evidence in family proceedings remained, it was a discretion which fell to be judicially exercised on the facts of the particular case. If the law was to be changed and children were either to be compelled to give oral evidence in court or to be excused from doing so, it was for Parliament to make the change. Judges were better at assessing the credibility of adults than of children and those hearing family proceedings were used to the assessment of hearsay evidence. If a judge was in doubt about the evidence of a child on video, he or she always had the power to require assistance by way of evidence from an expert in child development; such evidence was always admissible. Those factors militated strongly against the exercise of the discretion to compel and, as authority suggested, it would be a rare family case in which a child would be compelled to attend and give oral evidence to the judge. In the instant case, although the child’s unwillingness to give evidence in the care proceedings was a factor which the judge had been entitled to weigh, it was by no means conclusive; the child had been compellable in both the criminal and care proceedings. However, in all the circumstances, the judge had directed himself properly in relation to the issue and it could not be said that he had exercised his discretion inappropriately when refusing to direct the child to attend to give evidence and be cross-examined; Re P (Child: Compellability as Witness)[1991] 1 FCR 337 considered.
(2) It was established that the starting point was that the existence of criminal proceedings was not a reason to adjourn care proceedings. Where there were such concurrent proceedings, it was essential that each was kept fully informed of the other and the judge conducting the care proceedings exercised his or her case management functions not only with a full knowledge of the state of play in the criminal proceedings, but with a view to ensuring that each was heard at an appropriate time. Lawyers were familiar with the situation where a judge applying the civil burden of proof made findings of abuse whilst a jury, applying the criminal standard, acquitted the defendant. In such circumstances judges had a particular duty to ensure that the process was seen to be fair, which meant, as a minimum, having a detailed knowledge of the criminal proceedings and when they were likely to be heard. In the instant case, notwithstanding the judge’s apparent ignorance of the state of the criminal proceedings and the lack of liaison between the criminal prosecution and the care proceedings, the judge had been entitled to hand down his judgment in October 2008 and get on with the case. The delays had already been unacceptable and there was plain
authority for the course taken by the judge. The exercise of his discretion could not be criticised; Re TB (Minors) (Care Proceedings: Criminal Trial)[1996] 1 FCR 101 considered.
Per curiam. Although the recently updated Practice Direction (residence and contact orders: domestic violence and harm)[2009] 1 FCR 223 [concerning fact-finding hearings] is seen by some as imposing a further burden on an already overstretched system, its importance cannot be overstated. Domestic violence and other forms of child abuse are, in essence, issues of facts which must be brought to the attention of, and resolved by the court. Nobody else can do it, and no decision relating to a child’s welfare can properly be made when such issues remain outstanding. At the same time, the intellectual rigour which needs to be brought to all proceedings relating to children needs to be applied with particular diligence when it comes to this Practice Direction. Fact-finding hearings are time-consuming and can cause delay. The judge who directs one and advocates who seek it, both owe a duty to the children in the case and to the system itself to ensure that such a hearing is strictly necessary and that, in the terms of the overriding objective, such a hearing, where required, addresses appropriate issues and is given an appropriate share of the court’s resources.
Cases referred to in judgmentsA and B (Minors) (No 1) (Investigation of Alleged Abuse), Re[1995] 3 FCR 389.
A and B (Minors) (No 2) (Evidence and Procedure), Re[1995] 3 FCR 449, [1995] 1 FLR 351.
B v Torbay Council [2007] 1 FLR 203.
Clarke-Hunt v Newcombe (1982) 4 FLR 482, CA.
G (Children’s Case: Instruction of Experts), Re[1994] 2 FCR 106.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647, [1985] FLR 894, HL.
M (a child) (care proceedings: witness summons), Re[2007] EWCA Civ 9, [2007] 1 FCR 253, sub nom LM (By Her Guardian) v Medway Council, RM and YM [2007] 1 FLR 1698.
P (Child: Compellability as Witness), Re[1991] 1 FCR 337, sub nom R v B County Council, ex p P [1991] 2 All ER 65, [1991] 1 WLR 221, [1991] 1 FLR 470, CA.
Practice Direction (residence and contact orders: domestic violence and harm)[2009] 1 FCR 223, [2008] 2 FLR 103.
R v Exeter Juvenile Court, ex p RKH, R v Waltham Forest Juvenile Court, ex p B [1988] FCR 474, [1988] 2 FLR 214.
R v L [2006] EWCA Crim 1902, [2006] 2 FCR 724, sub nom R v Levey [2006] 1 WLR 3092, [2007] 1 FLR 462.
TB (Minors) (Care Proceedings: Criminal Trial), Re[1996] 1 FCR 101, [1995] 2 FLR 801, CA.
.
AppealThe stepfather, SW, appealed against findings of fact made by Judge Marston in care proceedings to the effect that it had been established on the balance of probabilities that he had abused his stepdaughter, ISW. The facts are set out in the judgment of Wall LJ.
The stepfather appeared in person with the assistance of his McKenzie Friend.
Naznin Islam for the mother.
Colin Morgan for the local authority.
Kelly Ward for the children.
WALL LJ(giving the first judgment at the invitation of Thorpe LJ).
Introduction[1] I have found listening to this appeal a dispiriting experience. I will, in a moment, explain why that is. I hasten at the outset, however, to record that my sense of dismay has little to do with the judge at first instance, whose decision is challenged and who, it seems to me on a full reading of the documents, has done more than his competent best to keep an otherwise ill-managed case on the road.
[2] At the same time, I do not wish to be unfair, and I am the first to acknowledge that, viewed through the prism of this court, a care case pending in the county court can look quite different to the way in which it presents on the ground. I propose, accordingly, to use this judgment in part as a means of reminding the profession of matters, which at least at first blush, appear not to have been given the attention in the court below which they deserved.
[3] I should, however, make it clear at the outset that, although I would give permission to appeal, I have come to the conclusion that the appeal itself must be dismissed, and that, despite the deficiencies which I shall attempt to identify, the judge in my view was entitled to reach the conclusions which he did, and that his exercise of discretion cannot by any stretch of the imagination be designated plainly wrong.
[4] My dissatisfaction arises from the following features of the case:
(1) the fact that the appellant (as a party to the care proceedings from which the appeal comes) had to face serious allegations of sexual abuse (the rape of his stepdaughter then...
To continue reading
Request your trial
-
A Local Authority v DG and Others
...given and observations on best practice made in SW v Portsmouth City Council, Re W (children) (concurrent care and criminal proceedings)[2009] 3 FCR 1 and R v L[2006] 2 FCR Held – (1) (i) When a party to care proceedings was ordered to file and serve a response to threshold and/or to file a......
-
Cambridgeshire County Council v PS and Others
...Oldham Metropolitan BC v GW[2008] 1 FCR 331 and SW v Portsmouth City Council, Re W (children) (concurrent care and criminal proceedings)[2009] 3 FCR 1 considered. In those circumstances, the appeal was dismissed and the proceedings were remitted to the allocated judge for a further hearing ......
-
Re W (Children)
...Order: Sexual Abuse) [2009] 2 FLR 1106 and as SW v Portsmouth City Council, Re W (children)(concurrent care and criminal proceedings) [2009] 3 FCR 1. As my judgment in the earlier appeal was written anonymously, and the case has been reported under initials, I propose to maintain the report......
-
Re W (Children)
...and by Wall and Thorpe LJJ in SW v Portsmouth City Council; Re W (children: concurrent care and criminal proceedings) [2009] EWCA 644, [2009] 3 FCR 1. And it was followed by Wall and Wilson LJJ in their joint judgment in the present case: [2010] EWCA Civ 57. Each had previously stated that......