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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 >> P -S (Children)  EWCA Civ 223 (21 March 2013)
Cite as:  2 FCR 299,  2 FLR 27,  1 WLR 3831,  WLR(D) 113,  Fam Law 792,  EWCA Civ 223,  WLR 3831
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ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
HER HONOUR JUDGE ISABEL PARRY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PITCHFORD
SIR ALAN WARD
| P -S (Children)
Miss Ruth Henke QC and Miss Clare Williams (instructed by Carmarthenshire County Council) for the 1st Respondent
Mr Edmund Cofie (instructed by John Itsagwede & Co) for the 2nd Respondent
Mr Matthew Rees (instructed by Cameron Jones Hussell & Howe) for the 4th Respondent
Hearing date: 12th November 2012
Crown Copyright ©
The Rt Hon. Sir Alan Ward:
"6. … I did not use it [meeting M] as an opportunity to ascertain what his wishes and feelings were because those wishes and feelings were already perfectly obvious from formal reports that the Court had received from the Guardian and the fact that he now wished to have separate representation.
7. I explained to him what the task of the Court is in trying to achieve a welfare outcome for children that reflects their wishes and feelings. I explained also that the Court has to look at the whole picture, all the evidence that is available about the child and about the people who are looking after him and who want to look after him. It was not appropriate for me to discuss any issues evidentially with him, such as the reasons why he does not see his mother and the reasons why he apparently absconded to her care in early December 2010.
8. I assessed M to be reasonably subdued during our meeting. …
9. M only became animated when talking about matters that are far removed from the heavy emotional baggage which must constitute his day-to-day life and his feelings about his brother and mother.
10. I endeavoured in our meeting to follow the guidelines that are given to judges in terms of meeting children so they have a full understanding of the process and how they are involved in it."
The judgment on M's giving evidence
"12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …
13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence."
"37. It is likely, in my judgment, to be enormously harmful to M to assume a responsibility for the outcome of this case, which is exactly what he would do if he came to court to give evidence. … If [I may not be able to arrive at a conclusion which is consistent with his wishes] then he will feel that he has failed and moreover that there is a prospect that his relationship with those who would be responsible for his care and his own Guardian would be damaged. …
38. I question whether there is anything more that M can tell me or which I am going to be able to assess from his demeanour that is going to assist me with the determination of the relevant issues. …
39. I am prepared to accept, both for the purposes of this application and for tomorrow's hearing that M would like to return to the care of his Mother, and if that involves A's father to their joint care I am perfectly prepared to accept that he will be bitterly disappointed if he is not able to achieve that. I am also prepared to accept that there may be some short-term emotional harm to him as a result of a rejection of that case which is put on his behalf. But, as the advocates will be aware, there is rarely a perfect outcome to proceedings involving children, and this case is no exception.
40. The conclusion that I have arrived at is that the additional benefit to the determination of the relevant issues of M giving evidence is significantly outweighed by the very real potential detriment.
41. If there is really no evidential matter on which M's evidence can assist the Court, slow though I am to arrive at this conclusion, I have to question whether there is any need for him to be placed in the invidious position of giving evidence when the giving of that evidence may make matters significantly harder for him should the case go against his express wishes."
The judgment on the care application
"45. It is clear from the available evidence at 28th May Mother had decided that she needed to prioritise her own personal issues above the welfare of the children, that she behaved in a somewhat high-handed if not arrogant fashion with the Local Authority, that they were left with the impression that there was no certainty as to when she would be returning to resume the care of the children. I am satisfied that that degree of uncertainty was deliberate on the part of the Mother. I am also satisfied that as the Local Authority has conceded, if she had dealt with them openly and honestly and shared proper information with them, the situation that has arisen in respect of the children may not have."
The judge was therefore satisfied that the threshold criteria were met.
"56. I have to arrive at the conclusion that there is simply no material which allows me to arrive at a conclusion that the children could be safe in the care of their Mother and which would avoid a repetition of the uncertain living arrangements, financial arrangements and neglect which the evidence that the court has accepted was the feature of the children's lives until 28th May."
"77. In my judgment, the available evidence suggests that the father has no real understanding of the difficulties that affect Mother's parenting and has not been prepared to gain that insight during the period that he had been involved in the proceedings."
There were, therefore, "irredeemable flaws in the plan of the parents to care as joint carers."
"84. I have been given no evidence which allows me to arrive at the conclusion that there is any real possibility that father will act independently of the Mother or that he has the sort of commitment to these children that will prevent him from returning the children immediately to her care should the family relocate in Ireland. There is a total absence of evidence that allows me to arrive at the conclusion that he has any real commitment to the welfare interests of his son and step-son, and therefore further assessment is pointless."
"87. However, the court's duty is to assess and interpret his wishes and feelings in the light of other welfare concerns. For the reasons that I have explored in detail in this judgment, I cannot conclude that Mother, father or the parents jointly offer any plan which has the remotest prospect of meeting M's global welfare needs.
88. … Dr Street [a clinical and counselling psychologist] indicated that when M was anxious about himself, it translates into an anxiety about his Mother because that was the role he had played in the family. It was not Dr Street's view that M would vote with his feet and leave foster care if his wishes were not acted upon. He felt that in the current foster placements (as opposed to the foster placement in December 2010) there was a degree of containment and flexibility around that degree of containment which allowed M to continue to feel safe in the foster placement, albeit that he would necessarily retain a concern about his Mother."
"91. … looking at the Guardian's evidence also and the relationship she has formed with M, and the evidence of Dr Street … these may well be the wishes and feelings that M wishes the court to know about. However they are the product of his anxiety about his situation and his anxiety about his mother. As there is a genuine risk to his psychological adjustment as an adolescent and young adult in returning to the care of his Mother, I have to take the risk that Mr Blake invites me to, which is that he may act of his own volition, but the court would have to deal with that situation, as would the Local Authority, because to return him to the care of his Mother, which is what he wishes, would be detrimental to his well-being."
"97. I accept there needs to be a balance between the expressed wishes and feelings of the child in question and circumstances likely to prevail if the child's wishes are acted upon or not acted upon. In my judgment, it is unnecessary to place any gloss on the s.1(3) 'checklist' in terms of elevating the risk of harm to any particular degree. It should be apparent from the analysis I have given of the parents' claims but I make it plain if it is not, that I consider that the risk of harm from Mother is overwhelming in its likelihood for these reasons. The court is satisfied that there are real question marks over her ability to separate off her own psychological needs from the needs of her children. … There are many comments made by the Mother, one of which I have referred to, which is: "My children need me but I don't need them" which are indicative of such a state of mind [that the Mother is simply unable to recognise what are the psychological and parenting needs of her children].
98. … The situation therefore must be that there is little or no prospect of Mother improving the standard of parenting that she has delivered to the children which the court has found to be deficient in terms of meeting the children's welfare interests … Her concept of parenting is inappropriate."
Discussion on the issue of M giving evidence
"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." (I have added the emphasis)
States Parties reaffirmed their commitment to the realisation of Article 12 at the twenty-seventh session of the General Assembly on Children in 2002. But still children were marginalised. So, in 2006 the Committee on the Rights of the Child held a day of general discussion on the right of the child to be heard in order to explore the meaning and significance of Article 12. That led to the publication of General Comment Number 12 (2009).
"34. A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. …
35. After the child has decided to be heard, he or she will have to decide how to be heard: "either directly, or through a representative or appropriate body." The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. …
38. The opportunity for representation must be "in a manner consistent with the procedural rules of national law". This clause should not be interpreted as permitting the use of procedural legislation which restricts or prevents enjoyment of this fundamental right. On the contrary, States parties are encouraged to comply with the basic rules of fair proceedings, such as the right to a defence and the right to access one's own files. …
42. The context in which a child exercises her or his right to be heard has to be enabling and encouraging, so that the child can be sure that the adult who is responsible for the hearing is willing to listen and seriously consider what the child has decided to communicate. The person who will hear the views of the child can be … a decision maker in an institution (e.g. a director, administrator or judge), …
43. Experience indicates that the situation should have the format of a talk rather than a one-sided examination. Preferably, a child should not be heard in open court, but under conditions of confidentiality. …
45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously."
"32. … this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift."
If the circumstances of the case demands it, as they did in this case, the child will be afforded separate legal representation by solicitors and counsel.
"23. The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.
24. When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided. Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given great weight.
25. In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors. One will be the issues it has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations. Another will be the quality of the evidence it already has. Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined. Sometimes there will be nothing useful to be gained from the child's oral evidence. …
26. The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child. Further specific factors may be … the child's own wishes and feelings about giving evidence … However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.
29. In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings. …
30. … The essential test is whether justice can be done to all the parties without further questioning of the child. Our prediction is that, if the court is called upon to do it, the consequence of the balancing exercise will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that it will do to the child. A wise parent with his child's interests truly at heart will understand that too."
"The guidance that the Supreme Court gives in Re: W (Children) (Abuse: Oral Evidence) does not turn the world on its head; it still requires a measured balance between the demands of justice and the needs of child welfare …".
"to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge's task."
I note that the purpose was to satisfy the children that the judge had understood their wishes, not to satisfy the judge that, if he saw them, he would be better able to understand what their wishes were. Thus the guidance went on to say:
"It cannot be stressed too often that the child's meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the Cafcass officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her."
The problem that has arisen in this appeal was not one which appears to have been contemplated by the Committee.
"8. In the light of Re: W in deciding whether a child should give evidence, the court's principle objective should be achieving a fair trial.
9. With that objective the court should carry out a balancing exercise between the following primary considerations:
i) the possible advantages that the child being called will bring to the determination of truth, balanced against;
ii) the possible damage to the child's welfare from giving evidence i.e. the risk of harm to the child from giving evidence;
having regard to [a number of factors]."
Those factors include many which have relevance only to a child giving evidence to support a threshold allegation of whether or not some harm had been done to the child or children, see in particular d, e, f, i, j, n, and u. That said, the Guidance is helpful in dealing with the issue of whether the child should give evidence at the disposal stage to the care proceedings when the real question is what the welfare of the child demands.
"51. So there is a useful distinction between these two levels of participation and involvement of children. If an application governed by the December 2011 guidelines results in a direction for oral evidence, the risk of contamination of the proceedings is no greater than with the involvement of any other witness.
52. However, if the application is governed by the guidelines of April 2010, and results in a decision from meeting between judge and child, then the risk of contamination is obviously increased. So in all these cases there are a range of distinctions that need to be drawn. The judge needs to consider what are the objectives of the proceedings. Are the objectives of the trial to establish what has happened in the past or are the objectives of the trial to establish what should happen in the future?
53. Equally important, it seems to me, is to consider what stage have the proceedings reached? Are they continuing proceedings? Are they concluded as far as evidence and submissions are concerned but the judgment is still reserved, or are the proceedings at the post-judgment stage?
54. Here of course we are concerned with a case in which the objective of the proceedings was to establish what had happened and the proceedings were at a stage where evidence was concluded but judgment reserved. It seems to me that that is the most dangerous situation in which a judge is likely to meet a child.
55. Much safer is the ground when the issue is what should happen in the future and the judge is anxious to ascertain for himself the strength of the child's wishes and feelings and perhaps what has contributed to the formation of those wishes and feelings."
"In the determination of his civil rights and obligations … everybody is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …"
Is there a rebuttable presumption that the mature child's wishes should prevail?
"I can see no possibility at all of a successful appeal in relation to the judge's determination that it was not in the interests of either of the boys to be cared for by the Mother. I will not rehearse all the factors that the judge identified in careful detail in this regard but they included the Mother's neglect of the boys, the events of May 2010, the Mother's failure to co-operate with any authorities, her failure to have contact with the boys for many months, her failure to provide any material which would permit the court to conclude that things had changed for the better, and the Mother's inability to provide psychologically for the children. I see no merit in the argument that there is a requirement that to override the wishes and feelings of a child of M's age, very powerful evidence of harm is required. S.1 sets out the features that require consideration in any case and it would be inappropriate to impose sub-tests when the one principle is that the child's welfare is to be the court's paramount consideration. As for Article 8 ECHR, the judge dealt with that properly."
I heartily agree.
"The attack on the second judgment seems hardly to advocate given that this was an unusual case in which the Mother had walked out on M, acknowledging that he needed her but rejecting his needs in favour of her own. So what was the judge to do? The only short-term future for him seems to be the foster home in which he was established. Of course that would not resolve the longer-term problems but it certainly provided an attractive immediate solution. But of course it is said by Mr Blake that the grant of permission in relation to the first must logically result in the grant of the second since had the judge acknowledged M's right to testify and had she received his oral evidence by video link, arguably she might have arrived at a different conclusion. So the grant of permission in relation to the second judgment is not to be taken as overlooking the high quality of the judgment and the obvious care that the judge brought to the welfare issues that determines the ultimate argument."
Again, I totally agree. It is clear that Thorpe LJ would not have given permission to appeal the care order on the merits but for the right to give evidence point.
Lord Justice Pitchford:
Lord Justice Elias: