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||Neutral Citation Number:  EWCA Civ 638
||Case No: B4/2013/2418 & 2532
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
Her Honour Judge Waddicor
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE PRESIDENT OF THE FAMILY DIVISION (Sir James Munby)
RE: S (Children, W & T)
LORD JUSTICE LEWISON
LORD JUSTICE McCOMBE
|| (1) FB and
||- and -
||WEST SUSSEX COUNTY COUNCIL
Frank Feehan QC and Gemma Taylor (instructed by WMC Legal LLP) for the First Appellant
Colin Morgan (instructed by Edward Hayes LLP) for the Second Appellant
The Respondent Local Authority and the Guardian did not appear and were not represented
Hearing date: 15 April 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice McCombe:
- This case concerns two children, whom I shall call W and T, (W, a boy and T, a girl) born respectively on 23 July 2009 and 17 September 2010. I shall call their mother "M" and their father "F". Other relatives and friends are identified by initials.
- On 15 April 2014 there were before us applications for permission to appeal by each applicant against the judgment and order of 14 June 2014 of HHJ Waddicor, sitting in the Brighton County Court. At the conclusion of the hearing we announced that permission to appeal would be refused in each case, for reasons which would be delivered later. I now give my reasons for reaching that decision.
- As it will be necessary to make certain observations about procedural matters in the case, which may be of general application, with my Lords' agreement, I now indicate that we grant permission for the case to be reported in appropriate law reports, although we have had before us an application for permission to appeal rather than a full appeal.
- Before moving on, I would note that the judge's order was made in care proceedings brought by the West Sussex County Council, based upon allegations of serious sexual abuse of a 14 year old girl. In a "Position Statement" dated 24 February 2014, the Council stated that they had been kept regularly updated by the solicitors for the mother on the progress of the appeal. In paragraph 2 of that statement, the following is to be found:
"West Sussex County Council has regularly confirmed in correspondence with the parties that it maintains a neutral stance in relation to the appeal by the mother and father. West Sussex County Council provides this position statement to formally confirm [sic] to the court this neutral stance."
At the end of the statement, it is said that the Local Authority will be happy to reconsider the question of representation at the appeal hearing "if the court expresses a wish for West Sussex County Council to be represented at the hearing".
- To my mind, this statement fundamentally fails to grasp what were the proper roles of the local authority and of the court respectively in these appeal proceedings.
- Having taken the decision to present these allegations to the judge and having secured findings of fact broadly along the lines that it was seeking below, the least the Local Authority could have done would have been to attend before the court to ensure that the findings were not disturbed to the potential prejudice of the children in this case, who the authority had been contending were at risk from what they said had happened to another young girl at the hands of these parents. Non-participation was not an option. It was never the function of the court to advise the parties, still less to advise upon the obvious, namely that the presence of the local authority was required. That was why Ryder LJ's order (with which no doubt the local authority had been served) had directed an "inter partes" hearing.
- After the grant of permission to appeal, at a hearing without notice to the potential respondents, the Lord/Lady Justices of the court do not see the papers in the case until a constitution to hear the appeal is identified and the papers are delivered, a matter of days before the hearing, to the assigned judges. For my part, at that late stage on the court's designated reading day, I was merely puzzled as to why there was no sign of participation from the local authority. For the future, for my part, I would hope that this type of insouciance on the part of local authorities will be avoided.
(B) Procedural Background
- The judge found proved certain allegations of sexual abuse made by P, the 14 year old sister of the First Appellant (M) against M and her domestic partner, the Second Appellant, F. The incidents of abuse were said to have occurred over the weekend of Saturday and Sunday, 24 and 25 November 2012. Complaint was made about the matter by P to her close friend, Z, on Monday, 26 November 2012. Z encouraged P to report the matter at school, which she did to a staff member, a Mr B, on Tuesday, 27 November 2012. M and F were arrested by the police on the same day. In his interview with the police F declined to answer questions. M gave full answers to the officers and denied any sexual assault on P.
- On 28 November 2012, P gave her account to the police in a video recorded interview. On 3 December 2012, the local authority, began these care proceedings in respect of W and T.
- In their Appellant's Notices, M and F seek to challenge the judge's factual findings against them. They do so on a number of grounds. First, M in particular (but supported by F) argues that the proceedings below were flawed by a number of procedural irregularities, relating to the timetable for the hearing of the case and to interventions by the judge in the course of the hearing of evidence. Secondly, under a number of separate heads, each Appellant challenges the judge's assessment of the evidence before her and her resultant final conclusions of fact. In the end, both appellants concentrated upon the procedural irregularities, which in their submission led to unreliable findings of fact by the judge on the principal issue.
- M's applications for permission to appeal were refused, after consideration of the papers, by Ryder LJ on 16 October 2013, but on oral renewal of both applications before him, each was adjourned to be heard on notice to the Respondent, and it was directed that M's appeal was to follow if permission was granted. No specific direction with regard to F's appeal is recorded in the order, but the parties have understood that the same procedure was intended for F's appeal as for M's. We heard the matter on the merits, without separate consideration of the permission question.
(C) Background Facts
- There are a number of non-contentious background facts.
- I have set out above the dates of birth of the two children, W and T. Their parents' relationship began in 2005, when F was aged 30 and M was 17. M is the eldest of five sisters. She was 24 at the date of the hearing. Her sisters are S, R, P and C (then aged respectively 22, 21, 14 and 12). F was then 38. He has four children from a previous relationship. It was M's unchallenged evidence before the judge that her relationship with F had ended and that she had no intention of resuming it.
- On the weekend in question (24/25 November 2012), P went to stay with M, F and their two children, W and T, as she had done previously on a number of occasions before. On some of the previous occasions, P had been accompanied by her friend, a similar aged girl called Z. It seems that it had been thought that Z would come with P on this occasion, but did not do so for reasons which the judge found unable to decide. It seems, regrettably, that on these visits and, this particular Saturday evening was no different, M, F and P all consumed alcohol together. On this occasion, P was drunk. She became unwell and went upstairs to the bathroom. At some stage she vomited, as the appellants said causing soiling to her clothes. P accepted that her top, but not her jeans were soiled. M went upstairs to check upon P. She decided to remove her soiled clothing. At some stage, as was agreed, F came to the room.
- The central dispute of fact was as to what then occurred. On F's evidence, he left the room as M began to undress her sister to remove soiled clothing. According to P, F stayed and sexual abuse occurred. She said that F forced his penis into her mouth, attempted to place it into her vagina and kissed her on the mouth, inserting his tongue in her mouth in doing so. P alleged that M was present as this happened, indecently assaulted P herself and encouraged P to participate, saying things like, "You like this, don't you?".
- It was common ground that on the following day, P stayed with M and F, until she was dropped off in the early evening at the home of her boyfriend, E, a boy aged about 14. For M and F, it was, of course, contended that P would not have stayed with them throughout that day if her allegations had been true.
- During the course of the day, as recited by the judge, P had spoken to both her mother and to Z. The mother said that P sounded tearful and she tried to find out what the matter was, but P would not say; P told her that she never wanted to go to M's house again. To Z, she said that "something really bad" had happened; she was unable to talk about it but said she hated "that place", i.e. M's home. E said that when P was dropped off, she was "really shaky…paranoid"; she had said to him, "I hate not being able to feel safe". E was not called to court for cross-examination by any party.
- As already mentioned P made fuller disclosure to Z on the following day and, at Z's instigation, reported the matter to Mr B. He described her as upset and sobbing as she gave her account. P gave her video recorded interview to the police, which became her evidence-in-chief before the judge, on the following day.
(D) The Judge's Findings
- In short, the judge accepted P's evidence that she had been sexually assaulted by F, with M's active encouragement. At the direction of the judge (paragraph 1 of her order), the precise facts considered by the parties to have been found proved by the judgment were to be reduced into the form of a schedule (at pp. 176-7 of Vol. 2 of our bundles). We understand that this document was agreed between the parties but has not been finally approved by the judge. That is unfortunate since, with well known limited exceptions in proceedings of this type, appeals are brought against orders rather than judgments. Indeed, an order was drawn up against which (formally) this appeal is brought, but without an approved schedule, we cannot know with final precision what facts were found.
- The findings to be derived from the judgment itself were strenuously challenged by both applicants before us, who recognised, of course, the difficulties facing an intending appellant seeking to overturn findings of fact made by a judge who saw the witnesses and heard their evidence. The law on that aspect of the matter is fully and helpfully set out in the skeleton argument of counsel for M and is not in issue.
- At the forefront of the factual challenge is the inherent improbability that F, who had no history of sexual abuse, and M, a women of entirely good character and seemingly entirely heterosexual, should have sexually assaulted P, M's own sister, a girl who had just vomited over herself. Further, each applicant points to a number of inconsistencies in the accounts of the particular incident given by P and to an allegation by her of an earlier incident of alleged abuse by F on P, only emerging in the course of complaint about this specific incident. The applicants contended that P's evidence about this, was entirely false. I shall return to this "earlier incident" a little later.
- It is submitted that the judge's factual findings failed satisfactorily to meet the inherent improbabilities of the allegations and the inconsistencies in P's accounts, as given in court and to others.
- In my judgment, it is important to consider the process of the judge's reasoning leading to her conclusion. I will then turn to the criticisms of that process. I would observe at the outset that the judgment is a full and obviously careful one.
- At the outset of her reasoning, after setting out a full factual background (which I have only lightly summarised above), the judge recognised "the inherent improbability of the allegations". However, she noted (to my mind equally fairly) the inherent improbability of a 14 year old girl inventing such allegations. The judge asked what benefit P would have had from that course; it had merely driven what the judge described more than once as a dysfunctional family even wider apart.
- The judge recognised that the primary evidence consisted entirely of the conflicting evidence of P on the one hand and of M and F on the other. There was no forensic evidence, although there was quite a lot of circumstantial material, including P's presentation to others after the alleged incident. The judge considered whether the allegations may have been made to seek attention from P's mother, in view of evidence from Z that all P wanted was to be loved by her mother.
- As I have said, there were a number of inconsistencies in P's evidence about the incident of sexual assault on the weekend in question, helpfully collected together in paragraph 10 of the written closing submissions of counsel for F before the judge. As to these, the judge said this in paragraphs 57 and 58 of her judgment:
"57. I have considered the inconsistencies in P's evidence which have been highlighted by Miss Gemma Taylor and Mr Morgan. I bear in mind that it is frequently the case that victims of sexual and or violent offences give inconsistent evidence, as indeed do other witnesses. There are for example inconsistencies in the evidence of [M] who has said different things about when she put certain clothing in the washing machine on the night in question. It does not follow that [M] is lying about the clothing. It is almost inevitable that there will be some inconsistencies. Giving evidence is not and should not be a test of memory. More importantly, I have to ask myself whether consistency itself is a pre-requisite for establishing the truth of an allegation and whether a witness under the influence of alcohol could reasonably be expected to give a clear account. Experience tells those who deal with this sort of case that sometimes victims push certain details out of their minds as a way of coping. Details of what happened are not necessarily recalled in chronological order and recollections may differ at different times.
58. When I take everything into account, I do not consider that the inconsistencies in P's account undermine her credibility."
- Immediately thereafter, the judge gave her assessment of P as a witness. She said this:
"58……What struck me about P was that she was a straightforward witness. She was willing to accept her propensity to drink a lot of alcohol. She did not try to supply detail when she had difficulty to remember. This, in answer to the question about where [M's] hands were she simply said she did not know. When asked how long the alleged assault lasted, she said she did not know, but that "it felt like ages". She gave her evidence on DVD and in court in an unemotional, perhaps detached way. Miss Linda Taylor invited me to consider P's demeanour in the DVD. I am conscious that it is easy for a tribunal to attach a great deal of weight to demeanour. Equally, I am conscious that there is no typical reaction of a victim of sexual assault. I am unable to attach any particular weight to P's demeanour."
- The judge found M to have given evidence in a very emotional way, with a distress that was "palpable and genuine". It was found that she tended to dwell upon the consequences for her children when asked what might have been "a particularly difficult question".
- The judge assessed the evidence of M's two sisters, S and R. She found them straightforward and honest; they had, however, "sided" with M and had said in terms that they knew whom to believe and whom to disbelieve, but they accepted that they had not questioned M about what P had said.
- The mother of P and of M gave evidence. The judge said that she was struck by her lack of empathy with her daughters; she was resentful of the difficulties caused by them and regarded P as a "trouble maker" who had gone out of her way to achieve what she wanted, namely to live with Z, as she had done in the February before the hearing.
- The judge found F to be an evasive witness. She gave two examples in the following passage:
"62….For example, when he was asked if he used cannabis on the 24 November he initially said he had used it throughout the day. Later, he said he had started using cannabis in the afternoon. I formed the impression that he deliberately altered his evidence because he realised that he had admitted to using cannabis before driving. His evidence that [M] had made sexual advances to him shortly after they met was implausible. I say this partly because of the look of disbelief on [M's] face when he gave this evidence and partly because it seemed incongruous-he was an experienced man in his early thirties and [M] was 16 or 17 and he was her first "proper boyfriend."
- Having made those assessments, the judge stated that she found P's evidence to be a truthful account of what happened on 24 and 25 November. She then gave her reasons. I summarise them:
i) The judge found support for P's account in what she said to E, to Z and to her mother on 25 November, the day after the alleged incident.
ii) She had maintained the allegation for 5 months in the face of family hostility and when it would have been an easy way out to decline to come to court to make it again.
iii) Her comments to those to whom she spoke on 25 November were unrehearsed and were said immediately after the events. The judge found the failure immediately to report precisely what had happened in her first contact with Z was explained by P feeling initially embarrassed and ashamed.
iv) The parents relied upon P's failure to give detail, about the use of M's hands when the alleged kissing occurred. The judge found this not to be surprising in the light of alcohol consumption and, on P's evidence, in the aftermath of a traumatic incident. The lack of detail was consistent with the consumption of a lot of alcohol and with P's evidence that, when she awoke on the next morning, her instinct had been to think that it was a dream, but she went on to piece it all together. The judge found that totally plausible.
v) The failure by P to remonstrate with M and F and to ask to go home was explained by P as arising from her not feeling comfortable and feeling it rude in doing so. The judge said that this might appear to be a rather unusual response from somebody who had been raped and sexually assaulted. On the other hand, the judge said, it served to highlight that P was simply a child in the home of her sister and that she was confused and upset by what had happened.
vi) The judge recited evidence given by S and R about their conversations/text exchanges with P concerning what she had alleged. At one stage R had asked P if she was aware of what she had done. Over two responses P answered: "I am not fucking dumb and I fucking regret it. All my family are acting like I don't exist and I don't even live at home any more. … I never lied about any of it! I am not that sick to make up something like that". The judge found that such exchanges gave a ready opportunity for P to retract her allegations and resume closeness with her sisters. The judge held that she did not do so because the allegations were true.
vii) The judge recalled Mr B's evidence that P was away from school from November 2012 to February 2013. P had explained her absence as arising out of being unable to go out because of feeling nervous or panicky. She said, "I felt everyone was looking at me. I was scared that [F] would come to Worthing, if I am honest. I was scared about men in general…I think the anxiety was all linked to the incident on 24th November". The judge accepted this evidence.
- As part of her conclusions, the judge dealt with what was accepted to be unsatisfactory evidence about the possible earlier sexual incident between P and F, which it was urged before the judge, reflected adversely upon the credibility of P. The point was also advanced before us as a criticism of the judge's upholding of P's account. It is convenient to deal with this now.
- This all arose out of evidence from Z and Mr B that P had mentioned a previous sexual assault by F, the date of which the judge found to be far from clear. P had said that this was while she was in year 8 at school, i.e. when she was about 12 years old. She believed it had occurred at the home of M and F when she was drunk. In cross-examination, it emerged that P had no independent recollection of the incident, but relied upon something that M had said to her, namely that F had entered her room when she was asleep, had removed her clothes and had encouraged P to fellate him. P said that M had said to her a little time later, "you gave [F] head". She believed the conversation had occurred at a particular house of F and M to which they had in fact moved when P was aged about 13 and was in year 9, not year 8. The local authority did not pursue a finding of fact in this regard. In her evidence, P gave some further details of the conversation with M. She was asked why she did not complain about it at the time. He answer was,
"I was denying it, I think. I didn't believe it at the time. I didn't want to believe it."
- The arguments of M and F as to the effect of this on P's overall credibility are recited in paragraphs 30 and 31 of the judge's judgment as follows:
"30…….First it is obvious that P was not telling the truth about the alleged earlier incident because quite simply it could not have happened when she said it did. Secondly, whereas P purports to recall the detail independently in the police interview, in court she could not remember the alleged assault per se. Thirdly, if P genuinely believed that she had been assaulted on an earlier occasion, she would not have been willing to return to the home of [F] and [M]. Fourthly, she would not have been happy for [Z] and [C] to go to the home of her alleged abuser.
31. Ms Gemma Taylor urges the court to reject P's evidence not just about the earlier alleged incident, but also of the events of 24th and 25th November on the basis that it would be unsafe to rely on the evidence of a witness who, in Ms Gemma Taylor's words, was prepared to give elaborate detail to different people about an event that cannot have happened."
The judge's finding about the matter appears in paragraph 67 of the judgment:
"67. I have also considered with care whether the lack of clarity and the differing accounts given by P of the alleged earlier incident undermines her credibility about events in November 2012. I did have concerns that, on the one hand, P could not remember [F] doing anything previously, but then gave some detail to the police. However, when I look at the evidence as a whole I do not find those inconsistencies particularly troubling. When people try to recall a number of incidents that occur at different times, sometimes they recall what other people have said to them; sometimes they become confused. Very few people make contemporaneous notes of what happens. I am not invited to make any findings about the alleged earlier incident and I am not able to do so save that I do find that [M] said to P at some stage in the past that she had fellated [F]."
- Finally, the judge turned to an argument for the parents that there was no evidence of "grooming" in this case. The judge did not accept that submission. As to this, the judge said,
"75. In some respects the case is very different from cases in which one might see grooming, but there is no set criteria for grooming. I stress that there is no suggestion that either [F] or [M] ever put any pressure on P not to tell anybody. However, overall I am satisfied that there are elements here of possible grooming. I repeat that there is no evidence at all of previous deviant sexual behaviour by [M] or of homosexual proclivities. In relation to [F], the evidence is that he has some history of being sexually attracted to teenage girls. [M] herself is an example. She was 16 or 17 when they met. She is now 24, looks, it might be said, considerably younger that that, and her unchallenged evidence was that she was sexually inexperienced when she met [F].
76. P was a 14-year old girl. She did have previous sexual experience and she was very vulnerable. It seems to me that there is some basis for at least questioning whether [F] viewed her as fair game. Why then, if [M] has no previous history, did she become involved in the sexual assault of her sister? Ms Bryan for the local authority suggested to [M] that she did so because [F] wanted her to do so and because she was incapable of standing up to him. This was denied by both [M] and [F], but I find that there is compelling evidence that this is exactly what was going on."
- The judge also found that there were aspects of the evidence indicating that F had the capacity to be controlling in his attitude to M. She recited a number of features pointing in this direction, while fairly recognising that F was not always controlling (giving other examples). She recited M evidence that the good times in her relationship with F outweighed the bad. She said the picture was quite complex. She found that M had "spent her last teenage years wrapped up in [F] and, …, fairly isolated". The judge recorded the relative difference in size between the small, 9 stone M and the "sturdy and powerfully built" F. She noted that she had found that there was an incident of physical violence committed by F on M on the night in question (although, as I understand it, after the alleged assault on P).
- The judge's final conclusions were these:
"84…….I find that on that night, for whatever reason, whether out of frustration or anger or sexual desire, he decided that P was fair game and that he involved [M] in the activities. I have no doubt that she was not a particularly willing participant, but she did participate. She did so in the knowledge that her own children were in the house and she did so knowing that her younger sister was drunk and extremely vulnerable. She could have made a decision to leave, but she did not. Although the behaviour of [M] was shocking and abusive, I do not consider that she, on her own, is a sexual deviant.
85. The protestations by [M] of her innocence, in my judgment, stem entirely from her shame that she was involved in this activity and her inability to come to terms with it. After all she is faced with a massive dilemma. The family is divided. All of the family has taken sides with [M] against P. Once the findings of fact are known – as they will be – [M] is going to be in some difficulty with regards to her family. She is also likely to be in difficulty until the outcome of the police investigation is known. I am sensitive to the point that if she admits to what happened she renders herself liable to prosecution and, indeed, renders [F] liable to prosecution because she would be an important prosecution witness. So I do not underestimate the difficulties that she faces now.
86. In relation to [F] I detect no shame or remorse on his part, rather a distinct coldness towards P and, from my perspective, an inexplicable inability to recognise that she needed protection. The last thing she needed was to be abused by the people she trusted."
(E) The applications and my conclusions
- Against these findings by the judge were ranged two strands of argument, as already mentioned: first, procedural irregularity, and secondly, unsound factual findings (arising in part out of the alleged irregularities).
- I will take these matters in turn.
- The proceedings were begun on 3 December 2012. At a number of stages, either at formal allocation/review hearings or otherwise, directions were given by Judge Waddicor between 13 December 2012 and 17 April 2013. It is apparent that there were delays by the police in providing proper disclosure of material in their hands, including the ABE interview material in respect of Z and others. On 17 April 2013 while disclosure was still incomplete, the judge directed that the "fact finding" hearing should be fixed for 5 days beginning on 29 April. While complaint was made before us that the time between 17 and 29 April was too short for proper preparation, it does not appear that any application was made to the judge to fix a later date.
- It appears that on 29 April Miss Gemma Taylor, then appearing alone for M, had had sight, in the week before the hearing, of the video recording of P's interview, but not those of other witnesses, in particular that of Z. Understandably, Miss Taylor was anxious to check what P was reported as having said to others to see what inconsistencies there may have been. It appears that Miss Taylor did have a three page police summary of Z's interview.
- We were told that the additional DVD material arrived at the court from the police either late in the week preceding the fixed hearing or early on Day 1 of the hearing. We have seen the transcript of the exchanges between Counsel and the judge on Day 1, in which the difficulties arising from the late disclosure were discussed. Miss Taylor for M and Mr Morgan for F were anxious to consider the material and it appears from the transcript that Miss Bryan for the Local Authority had provided in her witness template for the first day to be taken up in viewing the additional material and in formally taking P's evidence in chief by playing her recorded interview. Miss Taylor raised the difficulty of cross-examining Z, E and possibly C without transcripts of the interviews.
- One of the chief procedural complaints before us was as to the judge's handling of this matter. It was argued for M that the judge did not deal fairly with counsel's difficulty in taking instructions and in preparing for cross-examination without transcripts of these interviews. Miss Taylor pressed the issue of transcripts before counsel and the judge had seen what the additional DVDs contained. The high-water mark of the complaint raised before us can be seen from the following extract from the proceedings on Day 1, recorded at pp. 7E – 8G of the transcript (Appeal Bundle 1, pages 203-4)
"JUDGE WADDICOR: I do not think it is appropriate for me to listen to that now. Nobody knows what is on them and what they contain. I suggest that everybody looks at them and if you think it is a problem, raise it then. There is not going to be the time to obtain transcripts; we have to deal with this the best way we can on what is available.
So I suggest you go away and look at it. If you think there is anything that is going to cause a problem, you raise it after everybody has seen all of the DVDs and you note what the problems you say are. There may not be any problems.
MS GEMMA TAYLOR: Your Honour, I can say now that [Z's] evidence is going to be very significant because of differences------
JUDGE WADDICOR: Look, I am not going to listen to this now. It is not appropriate for me to listen to anything in a position of complete ignorance – which is shared by everybody – as to what is on these DVDs.
MS GEMMA TAYLOR: We do know what is covered in the DVD of [Z] because we have a note of it in the police disclosure.
JUDGE WADDICOR: Yes.
MS GEMMA TAYLOR: And it is important as she is the first ----
JUDGE WADDICOR: Ms Taylor, I am not going to listen to any application now without seeing the DVD. So I am just going to suggest you go away and see it. If it is your case then that there needs to be a transcript, you can raise that point later. But I cannot see the mechanism for obtaining a transcript now. And I am very mindful that your lay client in particular, understandably, is very anxious for this case to get off the ground.
MS GEMMA TAYLOR: Your Honour, I am also very mindful that my client would like there to be a fair trial-----
JUDGE WADDICOR: yes. Ms. Taylor---
MS GEMMA TAYLOR: -----and if I am not in a position to properly cross-examine because the child witness has not got a transcript of the evidence that she has given in the DVD ---
JUDGE WADDICOR: Ms. Taylor, I am most unhappy that you continue to flog this point at this moment. The time to do it is when everybody has seen the DVDs."
- It is objected that the judge was demonstrating unseemly haste in the face of a serious concern being expressed by Counsel. It is to be noted, however, that what the judge was saying was that it was more appropriate for these questions to be raised when everyone had seen and assessed the DVD material. She was not shutting the matter out entirely, merely encouraging counsel (perhaps robustly) to see the material first and to raise any material point afterwards.
- It appears that during the course of the day enquiries were made about having the outstanding interviews transcribed and it emerged that this could be done by the Wednesday of that week, Day 3 of the hearing, and a direction was sought from the judge to permit release of materials to the transcribers. This was duly done. Arrangements were also made to re-schedule the witnesses so that P would not give evidence until the Wednesday when it was thought that the most important transcript at least, that of Z's interview, would be available.
- I would observe at this stage that after Miss Taylor had raised her concern about the transcripts at the beginning of Day 1, Mr Morgan raised an additional worry about the absence of any notes made by social workers or school staff of P's early complaints to them. That is a matter which Mr Morgan also put before us as an underlying procedural irregularity in the hearing before the judge
- We were informed that the newly transcribed material arrived about an hour before proceedings were due to start on Day 3. We note that no application was made at that stage, by any party, for the proceedings to be adjourned for further preparation time.
- The proceedings continued with P being sworn as a witness and her short evidence in chief being conducted by the solicitor for the Local Authority, Mr Edwards. Mr Feehan QC for M argued before us that it was characteristic of the judge's anxiety to press on with the case over-hastily that she required Mr Edwards to do this in the absence of counsel, Miss Bryan. However, it appears that the reason for Mr Edwards calling the witness was that Miss Bryan was delayed in arriving at court. In due course she conducted re-examination for the Local Authority. Mr Edwards did not ask for proceedings to be adjourned until Miss Bryan arrived. Nor did Miss Bryan, when she arrived, suggest that she was prejudiced by the course taken.
- For my part, I have reviewed the transcript of Miss Taylor's cross-examination of the witness and it appears to me that it was conducted with skill and with appropriate tenacity, even though dealing with a young witness. It was submitted before us (paragraph 16(4) of M's skeleton argument) that Miss Taylor did not probe as fully as she might have done inconsistencies between P's account and what she had told Z. However, I do not consider that this weakened the effectiveness of the ground made by her in her cross-examination. Moreover, this was not a jury trial and the judge was clearly alive to the inconsistencies in P's various accounts.
- In the end, I do not find that the hearing was rendered unjust by the late arrival of the extra DVD materials and its subsequent transcription. In particular, I note that when counsel had seen the DVD recordings and did have the transcripts, there was no application for an adjournment, even for an hour or two for further preparation. It was urged upon us that such an application would have been unrealistic, in view of the fixed desire of the judge to proceed with all haste. Mr Morgan courteously submitted that, in the circumstances, it might have done more harm than good to the judge's perception of the parents' case if a formal adjournment application had been made. I understand these submissions. However, on reviewing the material as a whole, I do not consider that the hearing was rendered ineffective or unfair by reason of this aspect of the proceedings.
- The next principal feature of the applications to us was that the judge intervened inappropriately and too frequently in the examination of the witnesses. It was submitted that the judge interrupted the proper flow of cross-examination thereby diminishing its effectiveness. In this context, we were referred by Mr Feehan to the well-known cases of Yuill v Yuill  P 15 and Jones v National Coal Board  QB 55, and to the less well-known (indeed previously unknown to me) decision of the Court of Appeal of British Columbia in Faryna v Chorny  DLR 354.
- The crux of Mr Feehan's challenge to the judge's handling of the case in this respect is to be checked by reference to the following two passages from the judgment of Denning LJ (as he then was) in Jones v NCB (supra) as follows:
"And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v Clewer. The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that : "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal."
…..[I]t cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness's evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested, and it loses much of its effectiveness in counsel's hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return."
- Annexed to the skeleton argument for M was a helpful schedule providing page references to a number of interventions by the judge in cross-examination. I have studied those interventions for the purpose of deciding whether or not this judge's interventions crossed the impermissible line identified by Denning LJ in Jones (supra). Was this a case in which (in the words of Denning LJ) a "judge…actuated by the best of motives, has nevertheless intervened so much in the conduct of the case that one of the parties – nay, each of them – has come away complaining that he was not able properly to put his case; and those complaints are...justified"? (Loc. Cit. pp. 64-65)
- In my judgment, the answer to that question is, "No". At no stage did the judge "drop the mantle of a judge" and "assume the robe of an advocate". The interventions were indeed frequent, and possibly they were more frequent than absolutely best practice would have dictated, but it seems to me that they were designed to fulfil the permissible purposes of clearing up points, keeping the advocates within the rules (not that they trespassed culpably beyond them) and to show proper concern for the position of a young witness. The latter feature of a case such as this permits and requires at times a somewhat more interventionist approach by a judge, than that which prevails in cases such as those involved in the reported decisions.
- Mr Feehan also referred, more in the background of his argument, to the absence of other materials for deployment and consideration at the hearing: for example, the notes of teachers, social workers and police among others and the results of any intimate samples taken from P. Again, however, there was no application made to the judge, either before or at the hearing, that vacation of the hearing date or an adjournment was required to obtain this further material.
- I turn to the criticisms of the judge's conclusions on the facts. I do so bearing in mind the submission that the judge impaired her ability to make accurate findings by the perceived procedural irregularities to which I have referred above.
- For M, the headlines of the proposed grounds of appeal were to be found in paragraph 20 of the skeleton argument, as follows:
"20. The judge believed P's account of events in spite of the following serious evidential problems:
(1) As part of her account she had made an allegation of previous abuse which was manifestly false.
(2) She had lied to the police about whether she was able to be in contact with anyone on the day after the abuse was said to have occurred and nevertheless remained in the home of M and F.
(3) The accounts of abuse given to Z and to a lesser extent E were materially contradictory with those later given to the police and social services.
(4) Her allegation that M was an enthusiastic participant was flatly contradictory with the court's own finding that M had been forced to participate.
(5) Her allegation is flatly contradictory with the court's finding that M has no homosexual proclivities."
- These points were in substance to be found also in Grounds 1 to 4 of the skeleton argument for F, presented by Mr Morgan. In addition, in his further grounds, Mr Morgan criticised the lack of detailed analysis by the judge in her judgment of the evidence of the local authority on the one hand and of the parents on the other. He challenged the judge's finding of an element of grooming and the judge's support for her findings in what she found to be the "controlling" feature of F's relationship with M and a finding of some violence on the day in question, in the face of an earlier direction that the "fact finding" was to be confined to allegations of sexual misconduct alone.
- I do not accept these criticisms of the judge's findings of fact. As I have said already, it seems to me that the judgment was carefully prepared and considered. It appears to me that the judge quite adequately set out the primary features of the evidence of all the main witnesses. She stated her assessment of each from having seen them in the witness box. She then moved to those features of the evidence that had led her to her conclusions.
- The judge reached the view that the inconsistencies of P's account had been adequately explained by her, i.e. by the important features of alcohol and trauma. Her stay with her sister and F after the alleged assault was explained; P was a child in the home of her sister and was confused and upset by what had happened. That was supported, in the judge's view, by the accounts of her mother and Z of their perception in the early telephone contact that P was upset and was reporting that something had happened. Her account was supported by the further observations of her demeanour by E and by Z after she had left the company of M and F.
- The judge also found that P had maintained her allegations in the face of significant difficulties which the fact of them presented in her relations with her mother and her other sisters, and in the face of invitations to retract.
- Much was sought to be made by the applicants of what they contended to be the significant impairment of P's credibility by what M's skeleton argument described as the "manifestly false" allegation of previous abuse. It was submitted that the judge was wrong not to give significantly more weight to this in assessing P's evidence. In my judgment, the judge's assessment of his matter in her judgment (in paragraphs 67 and 68 of the judgment) was an entirely permissible one. Further, as Mr Feehan acknowledged in argument, in answer to a question from the Bench, the contention that the allegation was "manifestly false" depends on an assumption that P's recollection of the school year in which M's remark about was made was an invention by her rather than a mistake in her memory.
- The judge also had before her evidence of elements of "control" by F of M. She was not obliged to ignore it, simply because the scope of the hearing had been confined by her earlier direction to allegations of sexual abuse. Nor was she obliged, in my view, to ignore the evidence of the one incident of violence that she found had occurred on the important weekend in question. That was part of the "res gestae". It was not, to my mind, an impermissible sortie into the wider circumstances of domestic violence, lurking behind the aspect of the matter into which she had to inquire.
- The findings of fact were, in my view, properly open to the judge on the evidence and her judgment was properly reasoned in reaching her conclusions.
- For these reasons, therefore, I did not find that the materials presented to us on these applications disclosed sufficient prospect of success to warrant the grant of permission to appeal. Nor did I find any other compelling reason why permission should be granted. Accordingly, I concluded that both applications should be refused.
Lord Justice Lewison:
- I agree both with Lord Justice McCombe's conclusion and his reasoning. There are two points that I wish to add. The first concerns reliance on Jones v NCB. That was a very extreme case on the facts. Moreover, since 1957 when that case was decided there has been a culture change in the conduct of litigation. More attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court's resources to any individual case. This is true both of civil litigation (see CPR Part 1.1) and family proceedings (see FPR Part 1.1). One of the corollaries of this new culture is that a judge is expected to take a more active part in the proceedings than would have been the case half a century ago: see Jemaldeen v A-Z Law Solicitors  EWCA Civ 1431;  CP Rep 8. That said, if a judge does overstep the mark, even in a family case, this court will intervene. Thus in Re J (A child)  EWCA Civ 1231;  1 FLR 716 counsel was prevented from pursuing a line of relevant cross-examination. She rightly objected to the judge that she was being denied the opportunity to put her client's case, but the judge did not accede to her objections. This court ordered a new trial. As McCombe LJ has pointed out in our case there was no objection by counsel to any of the procedural decisions made by the judge, nor to her conduct of the hearing itself. In particular it seems to me to be quite clear that the judge was amendable to the renewal of objections about the contents of the DVD once everyone had had a chance to see them. But having seen them, the objections were not pursued.
- The second point is that the judge was well aware that she had a very difficult factual decision to make. On the one hand there were inherent improbabilities in P's story. On the other hand there was no reason for P to have persisted in her story all that time. The weighing of conflicting evidence is pre-eminently a matter for the trial judge. For all the reasons given in a string of decisions of the House of Lords or the Supreme Court, culminating most recently in McGraddie v McGraddie  UKSC 58  1 WLR 2477, an appeal court should not overturn findings of fact made by a trial judge unless compelled to do so. Like McCombe LJ I consider that the judge weighed the evidence with care. She took into account all the pros and cons of accepting P's evidence; and in the end she did. That is a conclusion of fact which, in my judgment, is unassailable in this court.
- These were the reasons, in addition to those given by McCombe LJ, why I joined in the decision to refuse permission to appeal.
The President of the Family Division (Sir James Munby):
- I agree with McCombe LJ that these applications for permission to appeal must be dismissed for the reasons he has given. I have nothing to add to what he has said so far as relates to the disposition of the present case. I agree also with what Lewison LJ has said and associate myself explicitly with his observations in relation to Jones v NCB. I add a few words on some points of practice of wider application.
- My first concern relates to the decision that there should be a separate fact-finding hearing. I make no criticism of those involved, who were conforming with what was then understood to be appropriate practice. But for the future judges and practitioners considering the use of a separate fact-finding hearing in a care case must bear in mind the current approach, which is to discourage their use except in a relatively limited group of cases. In Re S, Cambridgeshire County Council v PS and others  EWCA Civ 25, Ryder LJ made clear, para 29, that a split hearing in a care case will usually be appropriate only in either "the most simple cases where there [is] only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made" or "the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child." He went on, "For almost all other cases, the procedure is inappropriate." I agree. This is not the kind of case in which, in future, a split hearing should be ordered.
- My second concern relates to the ambit of the fact-finding hearing. It is essential that, if there is to be a separate fact-finding hearing, the ambit of the hearing should be clearly defined and understood by all. In the present case the judge, having initially ruled that the exercise was to be confined to the allegations of sexual abuse and was not to extend to any allegations of domestic abuse, in the event when on to make findings in relation to the latter, even though they were never, as I understand it, included in the local authority's schedule of findings sought. It is essential, if the ambit of a fact-finding hearing alters as the case proceeds, that the adjustment is promptly reflected in the schedule of findings sought. Otherwise there is scope for misunderstanding or worse.
- My third concern relates to the difficulty this court has had in ascertaining precisely what findings were actually made by the judge. The schedule of findings sought by the local authority (not contained in the appeal bundle and provided only when we asked for it) contained nine numbered paragraphs. The judge's ex tempore judgment was not expressed by reference to those numbered paragraphs. Immediately after judgment had been delivered, counsel appearing for the local authority invited the judge to state her findings specifically by reference to the schedule. The resulting colloquy extends over some three pages of a transcript which was also not included in the appeal bundle. In the upshot the order the judge made contained the following paragraph:
"The allegations contained in the schedule of findings as amended are found to be proved. (The parties shall submit an agreed amended schedule of findings by 17 July 2013 following receipt of the typed transcript of Judgment)"
When I asked where this document was, we were taken to a document in the bundle with the unpromising heading 'Schedule of findings sought by the local authority at the fact finding hearing commencing 29 April 2013 (amended following judgment)' What was needed, what the order required, was not a schedule of what the local authority had alleged but a schedule of what the judge had found proved. Even worse, the document was annotated 'NOT YET FINALISED – AS PROPOSED BY WSCC'.
- The simple fact is that, even now, the court's order has not been complied with. Yet worse, there is, even now, no authentic, definitive, record of precisely what findings the judge made. This is simply shocking. It is, I regret to say, yet another manifestation of a deeply rooted culture in the family courts which I had occasion to condemn in Re W (A Child), Re H (Children) 2013] EWCA Civ 1177, paras 50-51: "the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts." Despite our inquiries, I was left wholly unclear as to how this deplorable state of affairs had been allowed to persist for so long. It must be remedied without delay: the parties as soon as possible must put before the judge for her approval an agreed schedule of the findings she made. For the future, there must be no repetition.
- My final concern relates to what, I am bound to say, was the quite astonishing attitude to the appeal evinced by the local authority. It was neither present nor represented before us. Even more surprisingly it filed a remarkably perfunctory position statement which, without condescending to particulars, simply announced that "it maintains a neutral stance in relation to the appeal" and "in light of its neutral stance … has chosen not to file/serve a Respondents Notice." I do not understand what the local authority thinks "neutrality" means. A guardian may on occasions, as indeed in the present case, appropriately maintain a stance of neutrality in relation to a fact-finding hearing. The guardian, after all, is not setting out to make a case and prove facts. The local authority, in contrast, had commenced the proceedings, had decided to make a number of allegations – as it happens very serious allegations – and had succeeded in persuading the judge that most of them were proved. How in the circumstances could the local authority be neutral? Had it suddenly become indifferent to the outcome? Surely not. The consequence is that the court was deprived of any assistance by way of response. Even if, in order to conserve taxpayers' money (as the position statement said), it was appropriate not to send an advocate to attend the hearing, written submissions resisting the appeal and setting out, even if fairly briefly, why it was being said that the appeal should be rejected would surely have been of assistance. I add these observations by way of supplement to what McCombe LJ has already said on the point, comments with which I entirely agree.
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