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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (Children)  EWCA Civ 83 (09 February 2016)
Cite as:  3 FCR 40,  Fam Law 441,  EWCA Civ 83,  1 FLR 1476
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ON APPEAL FROM NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
HER HONOUR JUDGE MOIR
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
LORD JUSTICE VOS
Ms Rachel Langdale QC & Mrs Fiona Walker (instructed by North Tyneside Council Legal Services) for the Respondent
Mr Nicholas Stonor QC (instructed by Caris Robson solicitors) for the Children's Guardian
Hearing date: 26th November 2015
Crown Copyright ©
Lady Justice Black:
K's allegations and retractions in the period preceding the commencement of care proceedings; the medical evidence; the criminal proceedings
The steps taken by Judge Moir to safeguard K's interests
K's position as ascertained by the social worker/K's guardian
"I don't feel like my point has been put across and that I have been listened to. I told them I wanted it dropped. My best interests are that I didn't want this to carry on in the way that it did. Fifteen months is a hell of a long time. There is nothing else I want to say. I am sick of it now. It is never ending."
New evidence since Judge Moir's orders
Judge Moir's judgments
Re K giving evidence: judgment of 16 September 2014
i) K's degree of maturity;
ii) The availability of recorded ABE interviews;
iii) The time that had elapsed since the events occurred;
iv) The degree of support that K would have from her family or otherwise, and in particular the support offered by the paternal grandmother;
v) The risk of delay being caused by arranging for K to give evidence;
vi) K's fluctuating views about giving evidence and her feelings generally, including her sense of responsibility for the rift in her family and the situation of the appellant and his children;
vii) The appellant's clear denial of the allegations, from the outset, albeit that the full detail of his case was not yet available;
viii) The opportunity that there would be for the ABE evidence to be challenged in submissions; and
ix) The lack of opportunity to cross-examine K if she did not give evidence.
"16. I am not certain how much benefit it will be to the court to hear oral evidence from K or whatever that evidence may be [sic]. Bearing in mind her vulnerability, the possible motives (by which I mean the fact that she is anxious to reunite her family), the fact that she has maintained the truth of the allegations and retracted the allegations at various stages and the fact that she is unwilling must raise concern as to the quality of the evidence which she will give, even if it was by video-link.
17. Overall, I have taken the view that K should not be required to give oral evidence for the reasons that I have outlined. Most particularly, I am not sure that it will assist the court very greatly, whether she maintains the allegations or denies them, but I am sure from the evidence that has been given that it will cause emotional harm to K, who is vulnerable in any event. In those circumstances, I do not take the view it is appropriate to take the exceptional course of requiring an unwilling young person to give oral evidence before the court."
Re X and Y giving evidence: judgment of 29 August 2014
The fact finding judgment of 15 October 2014
"The interviews in themselves are not sufficient evidence upon which to base conclusions as to the truth or otherwise in respect of the allegations. Other elements of the evidence must be considered and effectively cross-referenced with the information provided by police interviews."
"Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002, BAILII:  ECHR 551. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point."
Lady Justice Gloster:
i) The single issue was whether the Appellant had abused K.
ii) The case against the Appellant depended entirely on the veracity of K's allegations.
iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred.
iv) There was no medical evidence of vaginal penetration, despite K's repeated allegations that she had had full penetrative sex and that she was "no longer a virgin". In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that "penetration through the hymen can occur without leaving any physical signs"; see paragraph 30 of the judgment.
v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions.
vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a "mature young person who had the capacity and competence to give instructions." The social worker who assessed described her as a "determined and strong willed individual who speaks her mind", and also observed K as being "quite fragile in her presentation and lacking in self-esteem."
vii) In deciding whether K should give evidence, the judge relied upon the opinion of K's guardian and the social worker to the effect that:"I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling.….I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]".
viii) On any basis, the evidence of K's guardian and the social worker as to K's wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K's evidence by the judge.
ix) As a result of the judge's ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called "vulnerability, a fragile presentation and her lack of self-esteem", the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K's case.
x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights ("the ECHR") to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.
Lord Justice Vos: