T (Fact-Finding: Second Appeal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Falk,Lord Justice Singh |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWCA Civ 475 |
| Docket Number | Case No: CA-2023-000399 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 475
Lord Justice Singh
Lord Justice Baker
and
Lady Justice Falk
Case No: CA-2023-000399
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LIVERPOOL
HH Judge Greensmith
LV21C50015
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Goodwin KC and Sarah Watters (instructed by Local Authority Solicitor) for the Appellant
Deirdre Fottrell KC and Robert Povall (instructed by Paul Crowley and Co) for the First Respondent
Shaun Spencer KC and Chuba Nwokedi (instructed by Broudie Jackson Canter) for the Second Respondent
Jonathan Sampson KC and Elizabeth Brennan (instructed by Morecrofts) for the Third Respondent
Barbara Connolly KC and Jonathan Jackson (instructed by Hogans) for the Fourth, Fifth and Sixth Respondents, by their children's guardian
Hearing date: 4 April 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on 5 May 2023.
This is a second appeal from a decision by a circuit judge allowing an appeal against findings made by a deputy district judge in care proceedings involving four children, hereafter referred to as T, U, V and W.
Summary of background
The family are originally from a country in Africa. T was born in that country in 2005 to the father and his then wife. In 2010, after their divorce, the father married his present wife, hereafter referred to as “the stepmother”, and in 2013 she gave birth to their first child, U. In 2015, the father arrived in this country and two years later was joined by the stepmother, T and U. Subsequently, the stepmother gave birth to two further children, V and W, in 2018 and 2020 respectively. In December 2020, all members of the family were granted indefinite leave to remain in the UK.
On 6 May 2021, T, then aged 15, made allegations at school, at a meeting with her head of year and her father, that the stepmother had, over the course of around three years, been waking her up in the middle of the night and taking her to a car outside occupied by two male family friends, X and Y. T alleged that X would kiss her in the front of the car and that Y would have sexual intercourse with the stepmother in the back of the car. She alleged that the men had threatened her with violence if she said anything about it. A joint visit between the police and social services took place and the parents agreed to all the children being accommodated under s.20 of the Children Act 1989.
The local authority started care proceedings and all four children were made subject to interim care orders. On 15 May 2021, T was interviewed by the police under the Achieving Best Evidence (“ABE”) procedure.
In the course of the proceedings, various directions were given in preparation for a fact-finding hearing. Initially all four children were jointly represented by a children's guardian, but it was then decided that T should be separately represented by her own lawyers who she instructed directly. A “ Re W” hearing was arranged to determine whether T should give evidence, but in the event it was agreed by all parties that she would not be called.
In March 2022, a fact-finding hearing started in front of Deputy District Judge Hornby, in which the local authority sought findings in line with T's allegations and, in addition, findings against the father and stepmother of failure to protect T, physical and emotional harm of T, and a likelihood of significant harm to the younger children. In the event, the hearing, which was being conducted partly via video link, was adjourned part heard for various reasons including technical problems. During that adjournment, the second child, U, made allegations of physical abuse by her father which the local authority started to investigate. In view of the delays which had already occurred, the judge decided not to extend the adjournment while those allegations were investigated but rather to consider them at a later date, if appropriate.
As a result of the various delays, the hearing was not completed until July 2022 and the final version of the deputy district judge's judgment was not handed down until 27 September. In the judgment, he made findings substantially in line with those sought by the local authority. Subsequently, he responded to requests for clarification of the judgment on behalf of the stepmother, the father and T.
The father and stepmother filed notices of appeal against the findings. On 9 December 2022, a final care order was made in respect of T who remained living in foster care. On the same date, permission to appeal against the findings was granted by HH Judge Brandon.
On 7 February 2023, the appeal hearing took place before HH Judge Greensmith. On 8 February, he delivered an oral judgment in which he allowed the appeal on all grounds, set aside the deputy district judge's findings, and reserved the case to himself for a welfare hearing. The order made following the hearing provided that the existing interim care orders in respect of the three younger children would remain in force until the conclusion of the proceedings.
On 28 February 2023, the local authority filed a notice of appeal to this Court. On 1 March 2023, Moylan LJ granted a stay pending determination of the permission to appeal application, stating that this was “with the consequence that the current interim care orders and the current arrangements for the children must remain in place pending determination of the application for permission to appeal”. On 8 March, Moylan LJ granted permission to appeal and extended the stay until the determination of the appeal. On 16 March, the stepmother and the father each filed respondent's notices inviting this Court to uphold the appeal judge's decision on different or additional grounds.
The ABE interview
Before considering the judgments in the lower courts, I shall summarise the ABE interview, which featured significantly in both judgments.
T was accompanied by an interpreter, although in the event she answered most of the questions in English herself. At an early point in the interview, the following exchange took place:
“O: Okay, so telling the truth and telling a lie do you know what the difference is?
T: I'm not sure.
O: Okay. So, what do you think would happen if we told a lie?
T: It won't go back to us.
O: Okay. What do you think the consequences would be?
T: I'm not sure about that.
O: Okay. Do you need any assistance from [the interpreter]?
T: No.
O: No? Are you sure? Okay. So, if we tell a lie, do you think it's good to tell a lie?
T: No.
O: No. Okay. And if we do tell a lie about someone else, do you think that person could get into trouble?
T: No. For now will get in trouble but then in the back, it would be back to you.
O: Yes, because you told the lie about someone else.
T: Yes.
O: So, initially that person could get into trouble, couldn't they?
T: Yes, for now. Tomorrow it would be your turn.
O: But then if we find out that it was the other person, like yourself telling the lie, then it would come back. Yes?
T: Yes.
O: So, to tell the truth is a good thing. It's positive, isn't it?
O: Yes.
O: So, in this room everything we say have to be the truth and that's for me, you, [the interpreter] and also [officer's colleague] next door because I will be going after the interview to speak to [her] to see if she's got any questions she wants me to ask. So, it's important we all tell the truth, okay?
T: Okay.”
The officer then said “I know you've come here to talk to us about something you've disclosed”. She asked T to give as much detail as she could. T then gave an account in what the deputy district judge described as a “lengthy narrative”. At some points the transcript of this narrative is difficult to follow but it includes statements by T that her stepmother had taken her outside to the car where two men were sitting, one in the front, the other in the back; that she had sat in the front where the man “was trying to kiss me and I was like what are you doing?”; that the men had said that if she told her dad they would kill her and her dad; that she had told her dad who was shocked; and that she was afraid to tell the police because she didn't want to lose her family.
Following this narrative, the officer asked T a lengthy series of questions, the transcript of which extends to over sixty pages. It is accepted that some of the questions were leading or closed. During this process, T gave more details about the two men, including their names and type of employment, and that they were regular visitors to the property. She gave more details of how the stepmother had got her to get into the car, of how the man in the front had tried to kiss her, and the threats made by the two men. Asked how often this had happened, she replied “it was every night”, at different times, but always when her dad was asleep. When asked where her stepmother would be, T replied that she had been in the back of the car and sometimes she had sex with the other man there. With the assistance of the interpreter, T gave some details of how her stepmother and the other man had had sex. When asked how long this had been happening, T replied “three years … every night before. If I didn't make excuses or say something.” Asked how long her dad had known about what was happening, she replied “about two years or something … two years and a half”. She described a conversation she had had with the priest at the family's local church. Towards the end of the interview, she described how the man in the front of the car had touched her breast.
The deputy district judge's judgment
After outlining the background briefly and the history of the proceedings, the deputy...
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