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Cite as: [2001] NIFam 29

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South & East Belfast Health & Social Services Trust v W [2001] NIFam 29 (05 June 2001)

    Ref: HIGF3433




    D W


    2000/ 11


    There are before the court applications by South and East Belfast Health and Social Services Trust for care orders in respect of the six sons of the respondent DMW. They are G whose date of birth is 7 December 1984 and now aged 16 years and 5 months; S whose date of birth is 17 April 1987 and is now aged 14 years; D whose date of birth is 10 October 1990 and is now aged 10 years and 7 months; Gr whose date of birth is 13 November 1991 and is now aged 9 years and 6 months; Go whose date of birth is 1 August 1994 and is now aged 6 years and 9 months and L whose date of birth is 20 May 1996 and is now aged 5 years. The applications were first brought in August 1999 and there have been interim care orders in place ever since. The children live apart from their mother. Inter alia allegations have been made by some of the boys of sexual abuse and neglect by their mother. There have been ongoing concurrent investigations by the RUC into these allegations and in April 2001 the police sent three files to the DPP for directions whether to prosecute the mother for alleged criminal offences. The decision of the DPP is awaited. In February 2001 the Trust came into possession of the necessary documentation to enable the care order applications to proceed to trial. The case made by the Trust on paper has been prepared and served on the respondent. The next logical step in these proceedings would be for directions to be given for the mother, within a specified period, to file a statement of evidence under Rule 4.18 of the Family Proceedings Rules (Northern Ireland) 1996 in response to the case made by the Trust. The Trust have indicated at an earlier directions hearing that they do not propose to call any of the boys as witnesses, but propose to rely on statements made by them and in particular on three videotaped interviews with S, D and Gr. The effect of that would be that the boys would not be available for cross-examination by counsel on behalf of the mother. Thus, at a directions hearing on 24 May 2001, two objections were made to the conduct of these proceedings. First, that the care proceedings should not be heard in advance of any criminal proceedings which may be directed by the DPP, in other words that the proceedings should be stayed and that the mother be not obliged at this time to file a statement in response to the Trust's case; and second, that if the Trust are determined not to call the boys to give evidence, but seek to rely on the videotaped interviews of S, D and Gr, that the boys should be produced for the purposes of cross-examination otherwise the care proceedings should be halted. The Trust has resolved that they do not propose to produce the boys for cross-examination. I will deal with the second point first.

    Mr O'Hara QC who with Miss Dargan appeared on behalf of the respondent mother submitted that under Article 6 of the European Convention on Human Rights his client was entitled to a fair hearing. If the boys were not produced before the court, she would be denied a fair hearing by not being able to have to cross-examine the boys and having their testimony tested in the usual way. Article 6 states:

    "Article 6 (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

    Article 6 (3) then goes on to define the minimum rights which everyone charged with a criminal offence has and they include –

    "3(d) to examine or to have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

    Thus Mr O'Hara argued that if the DPP decides to prosecute the respondent for any offence based on the complaints made by the boys, they would have to give evidence on behalf of the prosecution at any criminal trial or at least be available for cross-examination. Mr O'Hara argued that if they are competent to detail complaints in a videotape interview then they should be competent to give evidence before the court. He submitted that the decision not to produce the boys but to use the videotape evidence was a tactical decision by the Trust and that the court should intervene and direct that if the videotape evidence is used that the boys be produced for cross-examination. He also submitted that the principal evidence relied on by the Trust in the care proceedings is that of the boys and this makes the right to cross-examine all the more crucial. It was submitted that while these are not criminal proceedings the same principle should apply. He referred to a passage in "Human Rights Law and Practice" by Lester & Pannick at page 144, paragraph 4.6.33 which states –

    "The principle (of equality of arms) will, in certain circumstances, require in particular that the parties to civil proceedings should be entitled to cross examine witnesses. More generally a principle underlying Article 6 as a whole is that judicial proceedings should be adversarial".

    The authority cited in support of this statement is X –v- Austria 42 CD 145 (1972) a decision of the European Commission. A limited report of this decision was available. The proceedings related to the seizure of goods in Vienna and the Commission stated that the right to have witnesses examined in criminal proceedings did not apply as such to the determination of civil rights and obligations. The report goes on to state –

    "However the Commission has previously held that under certain circumstances the refusal of a court to allow a party to a civil action to call a witness or to examine a witness against him might be an infringement of his right to a fair hearing as secured by Article 6 (1) ( see e.g. application No 852/60 Yearbook Vol. 4 pp. 346, 354)."

    The case referred to as No. 852/60 is X v Germany in which the decision of a Labour Court was challenged on the ground inter alia that the complainant was refused permission to call one of his witnesses because the witness had been present in court listening to the case. When declaring the complaint inadmissible on the ground that the right to have witnesses examined guaranteed under Article 6 (3)(d) applied only to criminal proceedings, the Commission observed –

    "Whereas, it is nevertheless conceivable that, in certain types of cases or in certain circumstances, the refusal by a court to allow the witness or witnesses called by the plaintiff to testify, could involve a violation of Article 6 paragraph (1), which recognises the right of everyone to a fair hearing by an impartial tribunal that will determine his civil rights and obligations…"

    and went on to say that no prima facie evidence had been produced about the plaintiff's complaints. Thus it was left open whether and in what circumstances Article 6 might be breached by a failure to produce a witness for cross-examination.

    Proceedings under Article 50 of the Children (Northern Ireland) Order 1995 are not criminal proceedings nor are they necessarily non-adversarial. They may be described as semi-inquisitorial. The respondent is not on trial though grave allegations have been made against her. What is at issue is the welfare of 6 children who have been removed from her care under interim care orders. It was submitted by Mr Toner QC who with Miss Smyth appeared on behalf of the Trust that the videotape interviews were hearsay evidence which was admissible in Children Order proceedings and that the Trust were entitled to lead this evidence in the proposed way.

    Prior to the implementation of the Children Order on 4 November 1996, most applications relating to the welfare of children proceeded under the wardship jurisdiction. It was long accepted in that jurisdiction, which was regarded as an investigative jurisdiction, that hearsay evidence of what children had said or done outside the court proceedings was admissible in evidence. In Re K(Infants) 1965 AC 201 at 242 Lord Devlin said – "It is agreed that the practice always has been to admit hearsay." In Re H; Re K 1989 2 FLR 313 Butler-Sloss LJ (as she then was) cited this with approval stating at page 333 – "Although obiter, it is of powerful persuasion." She went on to hold that the admission of hearsay evidence in children's cases was an exception to the normal rule ( at that time). In that case evidence was given by a social worker of an interview with a child aged 5 years who made allegations of sexual abuse against her father.

    With the advent of the Children Order the use of the wardship jurisdiction in such cases has ended. Article 169 of the Children Order makes provision for the reception of the evidence of children by the court. It also empowered the Lord Chancellor by order to make provision for the admissibility of hearsay evidence in these terms –

    "(5) The Lord Chancellor may by order make provision for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay.
    (6) An order under paragraph (5) may only be made with respect to –
    (a) civil proceedings in general or such civil proceedings as may be prescribed; and
    (b) evidence in connection with the upbringing, maintenance or welfare of a child.
    (7) An order under paragraph (5) –
    (a) may, in particular, provide for the admissibility of statements which are made orally or in a prescribed form or which are recorded by any prescribed method of recording; and
    (b) may make such amendments and repeals in any statutory provision relating to evidence (other than in this Order) as the Lord Chancellor considers necessary or expedient in consequence of the provision made by the order.
    (8) In this Article –
    'civil proceedings' means civil proceedings, before any court or other tribunal, in relation to which the strict rules of evidence apply, whether as a matter of law or by agreement of the parties, and 'court' means any such court or tribunal;
    'prescribed' means prescribed by an order under paragraph (5)."

    The Children (Admissibility of Hearsay Evidence) Order (Northern Ireland) 1996 (the Admissibility of Hearsay Order) was made under Article 169(5) supra and as amended provides –

    "2. In –
    (a) civil proceedings before the High Court or a county court; and
    (b) civil proceedings under the Children (Northern Ireland) Order 1995 or under the Child Support (Northern Ireland) Order 1991 (b) in a magistrates' court
    evidence given in connection with the upbringing, maintenance or welfare of a child shall be admissible notwithstanding any rule of law relating to hearsay."

    Thus any evidence given in connection with the welfare of a child, in civil proceedings in the High Court, which these are, shall be admissible notwithstanding any rule of law relating to hearsay. The definition of the hearsay rule in Cross on Evidence was adopted by Lord Havers in R –v- Sharp 1988 1 WLR 7 and approved by Lord Ackner in R –v- Kearley 1992 AC 228. This defines the rule in these terms –

    "an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted".

    Thus what may have been said by any of the boys in this case to social workers or police officers if tendered as evidence that a particular fact occurred would be contrary to the rule relating to hearsay. The effect of the Admissibility of Hearsay Order is that such evidence is admissible in proceedings under the Children Order. With the advances in technology such evidence is now available in the form of videotaped interviews with the children either by a social worker or a child psychiatrist. Such evidence was received in wardship cases and is now commonly received in proceedings under the Children Act in England and Wales. It is rare for a child to be called to give evidence in such proceedings. In many cases and with good reason it is said it would be contrary to the interests of the child to require the child to attend and to give evidence of such a nature in care proceedings. Is a videotaped interview with a child hearsay, when it is the child himself speaking and making the assertions. In Re W 1990 1 FLR 203, a wardship case, the judge at first instance (who was regarded by the appellate Court members, as a very experienced judge) treated children's statements through the videos as direct evidence and statements they made to a foster parent as hearsay. In the Court of Appeal all the evidence appears to have been regarded as hearsay evidence and the status of the video evidence was not considered separately. It was submitted by counsel on behalf of the appellant in that case that as the proceedings were civil proceedings they were subject to the limitations on hearsay evidence set out in the Civil Evidence Act 1968. It was held that wardship was a special jurisdiction in which hearsay evidence was admissible. Neill LJ said at page 227 –

    "In my judgment, however, it is of crucial importance to take account of the saving which Lord Devlin himself introduced, namely, that a grave allegation against a parent would not be allowed to be proved solely, by hearsay 'at any rate in a case in which direct evidence could be produced'.
    In my judgment, the correct approach to the matter is to recognise that in wardship proceedings, which are of a special kind and which involve to some extent the exercise by the court of a parental or administrative jurisdiction, hearsay evidence is admissible as a matter of law, but that this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed."

    The provisions relating to hearsay in the Civil Evidence Act 1968 were not replicated in the Civil Evidence Act (Northern Ireland) 1971. However, by the Civil Evidence (Northern Ireland) Order 1997 the rule relating hearsay in civil proceedings was abrogated. Article 3 states –

    "3.-(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
    (2) All common law rules providing for exceptions to the rule against hearsay in civil proceedings are superseded by this Order.
    (3) In this Order –
    (a) 'hearsay' means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and
    (b) references to hearsay include hearsay of whatever degree.
    (4) Nothing in this Order affects the admissibility of evidence admissible apart from this Article.
    (5) The provisions of Articles 4 to 6 (safeguards relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this Article, notwithstanding that it may also be admissible by virtue of this Article."

    Articles 4 to 6 of the Civil Evidence Order 1997 provide safeguards which include calling the hearsay statement maker to be cross examined. These safeguards do not apply in relation to hearsay evidence which is admissible apart from the 1997 Order. Schedule 1 paragraph 8 amends the definition of 'civil proceedings' in Article 169(8) of the Children Order.

    Whether under the Children Order or the Civil Evidence Order hearsay evidence involves a statement made otherwise than by a person while giving oral evidence in the proceedings. The words of the child are relayed orally before the court when the video is played. If it is question and answer, it is as if the child is present and is being examined by counsel.

    Such videotape evidence is now admissible in criminal proceedings, in certain circumstances, as the evidence in chief of the child witness – see Article 15 of the Criminal Evidence (Northern Ireland) Order 1999. Evidence by children is now often given by live video link where the child does not appear in the courtroom but is visible to the court and the parties and their legal representatives. Article 169(7)(a) empowers the Lord Chancellor to make provision for the admissibility of statements which are made orally or in a prescribed form or which are recorded by any prescribed method of recording. This would seem to include, inter alia, the videotaping of interviews with children. This power has not been used. Thus such videotape evidence is only admissible if it is hearsay evidence to which the Admissibility of Hearsay Evidence Order applies. Where videotape evidence is used the child does not attend court. Therefore he does not take the promissory oath required by Article 169(1) of the Children Order or, if he does not understand the oath, he does not satisfy the court that he understands the duty to speak the truth and that he has sufficient understanding to justify his evidence being heard. Therefore to that extent a videotape interview with a child contains statements made otherwise than by a child while giving oral evidence in the proceedings. But the words of the child are given orally before the court though they are not received in the usual way in which a witness gives oral evidence, namely by being present in the witness box and having been sworn as a witness. Thus whatever status the videotape has, it is not sworn testimony. What is meant by the words "while giving oral evidence in the proceedings". Evidence is usually given when the witness is present and in open court (or in chambers). In criminal trials legislation was required to enable videotaped interviews with children to be admitted in evidence. Tape, videotape and computer recordings have long been admissible in evidence. These have invariably involved recordings of factual matters which are relevant to the issue before the court, for example, a videotape recording of the commission of a crime. In the instant case the videotape recording is of the complaint made by the child and is often a substitute for the taking of a statement from the complainant. Such a statement would not itself be admissible as evidence in chief, in the absence of special rules permitting its admissibility. For the person who recorded the statement to state what the child said as evidence of the truth of factual matters, would be hearsay at common law. What usually happens is that the social worker or expert interviewer gives evidence that they interviewed the child and produces the videotape as evidence of what was said during the interview. If produced in the form of a written transcript it would be hearsay. A videotape of an interview with a child goes further than the mere written transcript. It enables the listener to hear the inflection in the child's voice and see his demeanour at the same time, neither of which is available through the printed page. Therefore if hearsay evidence, it is an enhanced form of hearsay. In Re N Ward LJ described videotape interview evidence as a form of hearsay. I agree, but it goes beyond mere hearsay. However what the Trust is seeking to do is to substitute the videotape interview for the child's evidence in chief. The child is a competent witness in Children Order proceedings. Where a Trust proposes to adduce evidence at a hearing they are required to serve written statements of the substance of the oral evidence of their witnesses – see Family Proceedings Rules 1996 Rule 4.18. The Trust cannot adduce evidence in respect of which they have failed to comply with this rule, without leave of the court. In addition no person may cause a child to be medically or psychiatrically examined or otherwise assessed for the purpose of the preparation of expert evidence for use in the proceedings without leave of the court – see Rule 4.19. The service of a transcript of the videotape interview would satisfy Rule 4.18. The videotape is real evidence of how that transcript came into existence. The interviewer could give evidence about the demeanour of the child or the inflection in his voice. The videotape is a better form of doing so. Therefore it seems to me that the production of a videotape interview is hearsay evidence albeit in an enhanced form, which is admissible under the Admissibility of Hearsay Order.

    In R -v B. County Council ex parte P 1991 2 AER 65 J. a 17 year old girl made allegations of sexual abuse against her stepfather. The charges were dismissed in the Magistrate's Court. The local authority instituted care proceedings. Prior to the hearing the stepfather's solicitor was notified that they did not intend to call J. as a witness but to rely on her written statements to the police and oral statements to a psychiatrist which were admissible under the Admissibility of Hearsay Order. The stepfather applied to the magistrate for a witness summons to compel J to attend court to give evidence. The magistrate refused the application. The stepfather sought judicial review of the magistrate's decision and the local authority's decision. The stepfather's application was refused. On appeal to the court of appeal it was held –

    "(2) Although technically a child was a compellable witness in care proceedings and a summons could be issued under s 97 of the 1980 Act to procure the attendance at court of a child who was a competent but unwilling witness, notwithstanding that he or she was a party to the proceedings, the use of a s 97 summons was inappropriate to procure the attendance of a child in care proceedings and the court's power to compel a reluctant witness to give evidence was entirely unsuited to a child in view of the procedure under the 1990 order. Accordingly, the court should be very cautious in exercising its discretion to require the attendance of a child and should not issue a summons if to do so would be inimical to the welfare of the child or of its effect on the child would outweigh the legitimate interest of the people seeking the summons or if the application was made with the object of intimidating the child or to procure the attendance of a child whom the applicant for the summons wished to cross-examine. Since the father did not genuinely wish to call J as a witness but in fact wished to procure her attendance so that she could be cross-examined and since he might also have intended to intimidate her into not giving evidence the magistrate had been right not to issue a witness summons to compel her to attend before the juvenile court to give evidence (see p 69 f g, p 71 d f j to p 72 e, p 73 h j, p 74 e h to p 75 g and p 76 b c, post)."

    At page 71 Butler –Sloss LJ said –

    "Research has shown the adverse effects upon some children of the requirement to give evidence in cases of sexual abuse. In cases of young children, such harm may well be inferred (see the report of the Advisory Group on Video Evidence, December 1989 (chairman Judge Pigot QC)). The introduction of the 1990 order clearly envisages an alternative to oral evidence and cross-examination and to make it possible for children making allegations of, inter alia, sexual abuse to do so without the additional stress of a court hearing. The philosophy behind the Children Act 1989 would be thwarted by the ability of the alleged abuser himself being able to require the attendance of the child at court. A court should be very cautious in requiring the attendance of a child in these cases, reinforced as it must be by considerations as to how to deal with a refusal to give evidence after the issue of the summons."

    Later at page 72 she said –

    "I would, however, like to make some comments upon the consequences of the refusal to compel J to give evidence. The stipendiary magistrate said:
    'I fully understand [the appellant's] and his advisers' concern at the way evidence of very serious allegations can be received without the usual opportunity for testing that evidence. Clearly in considering what weight to attach to that evidence I shall have to have regard to the gravity of the allegations and the fact that it was not tested by cross-examination.'
    I should like to indorse those comments. Recently in two decisions of this court comments have been made about the extent to which evidence which has not been tested can be relied upon. In Re W (minors) (wardship: evidence) [1990] 1 FLR 203 at 227 Neill LJ was looking at the special position of wardship in relation to hearsay evidence. Since the 1990 order his observations are much wider application:
    '… hearsay evidence is admissible as a matter of law, but … this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed.'
    A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon. It is clear from the passage from the judgment of the stipendiary magistrate to which I have already referred he has that consideration well in mind."

    Nicholls LJ ( as he then was ) said at page 73 –

    "Perforce the procedure for the taking of evidence has to be modified in the case of young children. Depending on his or her age, the formal questioning of a child may be neither practical or sensible as a means of finding out what the child has to say or as a means of testing the child's truthfulness."

    Lord Donaldson MR said at page 76 –

    "I have great sympathy for the appellant in his wish to clear his name. Unfortunately care proceedings are not intended or designed for this purpose. Indeed there may be cases in which the fact that the children are persistently making false allegations may be one of the factors pointing towards the need for a care order."

    In Re P (Witness Summons) 1997 2 FLR 447, N a 12 year old girl made allegations against her friend's stepfather. The allegations were recorded on videotape. In care proceedings in respect of her friend, her mother and stepfather made an interlocutory application for an order that N should give oral evidence and be cross-examined. That application was refused. The judge heard the videotape evidence and accepted that such evidence required to be treated with great caution. He found the allegations true and made a care order. On an application for leave to appeal against the ruling that N should have given oral evidence and been cross-examined, leave was refused. It was held that in effect what was sought was a witness summons against N and the court had a discretion whether or not to order the attendance of a witness. In principle, the older the child, the more arguable the application that the child should attend court. The paramountcy principle in Article 3 of the Children Order did not apply as the issue of a witness summons was not a question related to the upbringing of a child. At page 451 when considering the Admissibility of Hearsay Order which then applied in England and Wales and since replaced, Wilson J. said –

    "Although not in terms limited to evidence given by children, the Order was formulated with such evidence in mind. As Butler-Sloss LJ said of the 1991 Order in C –v- C (Contempt: Evidence) [1993] 1 FLR 220, 223C:
    'The Order is designed to provide a way for the evidence of children to be placed before the courts in civil proceedings within the scope of the Order without the requirement for them to attend court.'
    The effect of the Order was that the local authority were entitled to adduce in evidence the written and videotaped record of N's interview and yet to decline to call her to give oral evidence. Since it was admissible and clearly relevant, there was no room for the court to decline to accept that evidence unless the local authority were to call N."

    These cases demonstrate that in children's cases there is no absolute rule that children should be called as witnesses to give evidence and be cross-examined. Where the evidence of children forms the only or the major part of the case being made against parents in care proceedings, does the lack of opportunity to test their evidence through cross-examination infringe the parents right to a fair hearing. It was accepted that the rules of evidence in care proceedings are a matter for the individual states. The issue is whether those rules are fair. The right to cross-examine in criminal cases has been specifically included in Article 6. It must follow therefore that in civil cases there is no absolute right to cross-examine witnesses. It will depend on the nature of the proceedings and the issues involved. A limited qualification of the rights protected by Article 6 is acceptable if reasonably directed by the national authority towards a clear and proper public objective and if the qualification is proportionate to that objective – see Procurator Fiscal and Others –v- Brown 2001 UKHRR 333 at 334G. The parents are not on trial in care proceedings. The issue is the welfare of the child. Therefore what the court has to do is to balance the special needs of children and proceedings relating to them, with the rights of parents including their right to protect themselves against false accusations and their right to retain their family life. Are the rules that permit the evidence of children to be given as hearsay evidence and which thereby deny the opportunity to cross-examine proportionate to the aim of providing protection for children and compatible with the right of parents to a fair hearing. As Nicholls LJ observed it is not always sensible or practical to require children to give evidence in court and to be cross-examined like adults. The protection of children and special rules to cater for them are legitimate aims of a democratic society. It is clear that hearsay evidence of children requires to be approached with great caution. When given in this way the courts should take into account that it has not been tested in cross-examination when determining the weight to be attached to it, if any. In those circumstances the rights and interests of the parents are protected and a fair balance is achieved between the parent and the child and their respective rights. Therefore, when approached in this way, the use of hearsay evidence of children and the consequent lack of opportunity to the child is compatible with the right to a fair hearing of the parent.

    If the DPP decides to prosecute the respondent, the boys, or some of them, would require to give evidence in those proceedings ( in some manner ) and to be available for cross-examination. It was submitted by Mr O'Hara that if that was so there was no justification for not calling the boys to give evidence in the care proceedings. The DPP has yet to make a decision whether or not to prosecute. However, even if he did, I do not consider that the fact that they may give evidence in any criminal proceedings, should require them to give evidence in the care proceedings. If it did happen, no doubt it would be a matter to be taken into consideration by the court in the care proceedings. These are two different types of proceedings, with different objectives, rules and procedures. The fact that the boys may be called as witnesses and cross-examined in one set of proceedings is not inconsistent with their evidence being given as hearsay evidence in the other set of proceedings, in which they are not produced for cross-examination. Therefore, I decline to stay the care proceedings or direct the attendance of the children to give evidence or to be cross-examined.

    I turn now to the first question. Should the respondent be directed to file a statement of the evidence which she proposes to give or should the care proceedings be stayed pending the final disposition of any criminal proceedings. There is no rule or principle that criminal proceedings take precedence over care proceedings. Care proceedings can be heard in advance of criminal proceedings. If there is a principle involved it is that care proceedings should be heard without delay, consistent with Article 3(5) of the Children Order. In Re TB 1995 2 FLR 801 a hearing date for care proceedings was vacated to enable the criminal trial of the mother and stepfather to take place before the hearing of the care proceedings. The GAL's appeal against the decision to vacate the hearing was allowed. It was held that –

    "Where care proceedings in respect of children and criminal proceedings in respect of their parents were both pending, the welfare of the child should take precedence over the family who faced criminal proceedings. The fact that criminal proceedings were pending was not of itself a reason to adjourn care proceedings, unless some detriment would be caused to the children if the care proceedings were not adjourned. The issue of delay was all-important, although there would be cases in which the child's welfare would be best served by the care proceedings taking place after the criminal proceedings had been concluded. In determining what was in a child's best interests, it was relevant for the court to consider what would be the effect on the parent's trail of the care proceedings being heard first, although that would not of itself be a determinative factor."

    Mr O'Hara sought to distinguish that case from the present on the ground that the evidence in Re T B was almost entirely expert evidence. I do not think that factor alters the principle involved. The recent reports filed in this case strongly suggest serious adverse consequences for the children should these proceedings be delayed.

    The gravemen of Mr O'Hara's application that the care proceedings be not heard before the criminal proceedings (if any), is that any statement filed by the respondent or evidence given by her in the care proceedings, may be used against her in subsequent criminal proceedings. Article 171 protects persons who give evidence in care proceedings from self-incrimination in criminal matters with the exception of perjury. It is in these terms –

    "171-(1) In any proceedings in which a court is hearing an application for an order under Part V or VI, no person shall be excused from –
    (a) giving evidence on any matter; or
    (b) answering any question put to him in the course of his giving evidence,
    on the ground that doing so might incriminate him or his spouse of an offence.
    (2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury."

    Thus a statement or admission made in care proceedings is not admissible in evidence against the person making it in proceedings for an offence other than perjury. A 'statement' includes a written statement filed under Rules 4.18 of the Family Proceedings Rules. If criminal proceedings follow care proceedings, any written or verbal statement made by a parent is not admissible in the criminal proceedings. If it is not admissible in the criminal proceedings it cannot be used by the prosecution in those proceedings for any purpose. Any attempt to water down this protection against incrimination only defeats the objective of the Children Order, to encourage frankness and candour on the part of witnesses in the best interests of the child.

    It was submitted by Mr O'Hara QC that the protection thought to be provided by Article 171 is illusory. He referred to Re L 1999 1 FLR 165 in which the mother and father were both awaiting trial on charges of murder in relation to three of their children. In addition the father faced many charges of sexual assault. The parents submitted that it would be unfair to require them to give evidence in care proceedings which might prejudice their position at the criminal trial. They argued that Article 171 did not protect them against cross-examination in the criminal trial as to any statements or admissions. The headnote reads –

    "Held – putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility did not amount to using those statements against the witness, and therefore, whatever Parliament's intention had been, and in the absence of concessions by the prosecution, there was nothing to prevent statements made in care proceedings being used in cross-examination at trial by both the prosecution and the co-defendants. The Children Act 1989, s 98(2) did not, therefore, give absolute protection to the mother and father, and it was not possible to draft an injunction which could achieve such protection. However, the parents' submissions were lacking in substantial merit, as truthful witnesses would not suffer by cross-examination on their statements, even where the statements contained slight consistencies. The court would have to consider what inferences to draw from the parents' refusal to give evidence. The police application for disclosure and leave to obtain the transcript should be granted following the guidelines se tout in Re C (A Minor) (Care Proceedings: Disclosure)."

    The police authority were represented at the hearing and counsel for the authority informed Johnson J that prosecuting counsel in the criminal proceedings was of the view that whilst Section 98(2) [in Northern Ireland Article 171(2)] does not in terms prevent such cross-examination, the meaning of section 98(2) must be broad and thus it was not open to the prosecution to use statements and admission in criminal proceedings whether by cross-examination or otherwise. Johnson J commented that this concession was not one demanded by law. He then referred to Re K & Others (Minors) (Disclosure) 1994 1 FLR 377 where at p. 381 it was said Booth J held that putting inconsistent statements to a witness in order to challenge their evidence or attack their credibility did not amount to those statements being "used" against them. Johnson J. then referred to R-v- Martin 1998 2 CAR 385 in which an affidavit in High Court restraint proceedings was used in cross-examination of the accused and commented that this was to the same effect. In Re L the parents were blaming one another. It was submitted that section 98 would not prevent one defendant from cross-examining the other defendant on statements or other inconsistent matters arising out of the evidence given in care proceedings. Such use may not be against a defendant by the prosecution but could conceivably be in defence of a co–defendant. Johnson J concluded that the section might not provide the protection it was thought to do and felt he was unable to bind the trial judge in the criminal proceedings. As a result the parents did not give evidence in the care proceedings and he commented that he would have to consider what inferences if any he drew from their failure to do so. He ruled that the application by the police for disclosure and leave to obtain the transcript of the care proceedings should be granted in line with Re C (A Minor) (Care Proceedings: Disclosure) 1996 2 FLR 725.

    It was submitted by Mr O'Hara that the protection once thought absolute under Article 171(2) may not be so watertight. He referred to the case of Saunders –v- UK 23 EHRR 313. He submitted that any written statement made or oral evidence given in the care proceedings might be used against the respondent in cross-examination in any subsequent criminal proceedings. This would inhibit her from filing a statement or giving oral evidence and if she failed to give oral evidence adverse inferences might be drawn against her. This was unfair and contravened Article 6 of the European Convention.

    It is necessary to examine in detail some of the cases to which reference has been made. Re K was a case in which Booth J had already made care orders. It was common case that two of the children had been sexually abused. The father denied he was the perpetrator. The mother was the principal witness against him. Booth J was not satisfied the father was the perpetrator and pointed to inconsistencies in the evidence given by the mother and previous statements which she had made to the police. The father sought disclosure of her evidence adduced in the care proceedings for his defence in the criminal proceedings. This evidence was not to be used against him. The quotation from the judgment of Booth J to which I have referred above was in fact a submission made by counsel on behalf of the father and in the context of the use contemplated in the circumstances, counsel was not incorrect. Putting inconsistent statements to a prosecution witness in order to challenge their evidence or attack their credibility does not amount to those statements being used against them in criminal proceedings. Booth J did not say that putting inconsistent statements to a defendant in a criminal trial would not be using those statements against him. With respect I cannot think what other purpose there would be in putting inconsistent statements to a defendant in a criminal trial other than to use them against him. Re K is not authority for the proposition put forward. The reference to it in Re L was clearly obiter or per incuriam and the headnote in both cases does not reflect accurately what is contained in the judgment

    R –v- Martin & White is a very different case. The appellants were convicted of being knowingly concerned in the fraudulent evasion of duty chargeable on alcoholic drinks contrary to the Customs and Excise Management Act 1979. Martin had sworn an affidavit in restraint proceedings pursuant to an order which provided that "no disclosure made in compliance with this order shall be used in evidence in the prosecution of an offence alleged to have been committed by the person required to make that disclosure". Martin gave evidence and was cross-examined on the affidavit and in particular about the absence from it of any reference to a specific company. His counsel objected on the ground that this was unfair. The trial judge ruled in favour of the prosecution. In his closing speech prosecuting counsel sought to address the jury on the affidavit. At this point counsel on behalf of Martin drew attention to the proviso above. The trial judge persuaded prosecuting counsel that there was no need to place the affidavit before the jury and the matter was left there. At the appeal hearing prosecuting counsel accepted that he should have sought leave of the trial judge before cross-examining Martin about the affidavit. Giving the judgment of the court Rose LJ said at page 397 –

    "3. However, we cannot envisage circumstances in which any such affidavit could become admissible in evidence during a criminal trial at the behest of the Crown, either in the course of the prosecution case or, as was thought to have happened here, by being purportedly proved by way of cross-examination of the accused. We would hope and expect that, in future cases, the Crown and the court will be alert to the limitations subject to which an order for disclosure by affidavit is made. We accord no less weight to the order's proviso, stemming, as it does from the conscious attempt in In Re O to emulate the statutory protection, than to the provisions of section 31(1)."

    He then went on to say on the same page –

    "4. But the proviso does not, in our judgment, prevent the Crown from cross-examining the deponent, as accused, to credit, in reliance upon the content of an affidavit sworn pursuant to a restraint order. When Martin gave evidence about substantial trading by AMI there could be no objection to cross-examination challenging the veracity of that evidence by reference to Martin's failure to mention AMI in his affidavit. We say this for several reasons.
    First, it would be an affront to common sense if Martin could make two seemingly contradictory statements under oath, without any risk that his veracity could be challenged.
    Secondly, we find no objection in principle arising out of the proviso. An earlier statement utilised to demonstrate inconsistency, and thus to impugn credit, does not, per se become admissible in evidence: Birch (1925) 18 Cr App R 26, Golder (1961) 45 Cr App R 5, [1960] 1 WLR 1169. Provided the use of the affidavit is limited to challenging credit, it is not being used 'as evidence in the prosecution'.
    Thirdly, however, such use of the affidavit should be subject to safeguards aimed at reconciling the proviso with the immediate needs to the Crown. In our judgment, prosecuting counsel should seek prior directions from the judge as to the precise use which can be made of the affidavit. This will alert the judge and defence counsel to the situation and enable the judge to maintain an oversight that reconciles use of the affidavit with the proviso."

    While it may be an affront to common sense for a person to make two seemingly contradictory statements under oath without his veracity being challenged, it does not follow that either or both statements would be admissible in a criminal trial where admissibility is governed by, amongst other matters, the Police and Criminal Evidence Act or Order. It may be arguable that the use of a document to challenge credit is not "using evidence in the prosecution". However, if it is used by prosecuting counsel in cross-examination, it is difficult to see that it is other than being used as evidence in the prosecution. However, the main issue is whether it should be used at all, not the use that is made of it. If it is not admissible in evidence against the person prosecuted as part of the prosecution case, then its use in any form should never arise. A defendant in criminal proceedings is in a very different position from an ordinary witness. However, the use which may be made of a statement made by a defendant not forming part of the prosecution case has been considered in two cases neither of which was referred to in the cases I have mentioned. One of these is a Court of Appeal decision of the former Lord Chief Justice of Northern Ireland, Lord Lowry, in R –v- Foxford 1974 N I.R. 181. In that case a solider was on trial for manslaughter. A written statement made by him to the Royal Military Police and which did not form part of the prosecuting case, fell accidentally into the hands of prosecution counsel during the trial. When the soldier was giving evidence in his own defence he was cross-examined out of the written statement made to the RMP. The Court of Appeal strongly disapproved of this course of action following R-v- Treacy 1944 AER Lord Lowry said at page 209:

    "We come now to the second main head of ground (b)(iv), which refers to the putting in of the appellant's statement for the first time during his cross-examination. It appears that the statement in question, presumably suggested to have been made at 4.40 am on 28 February, very shortly after the appellant came off duty from this eventful patrol, was not capable of proof as part of the Crown case because the taker of the statement was not known. It was not very damaging, but it did contain one of the supposed inconsistencies – it was accepted by the Crown that there were only three – in the appellant's written statements, which the learned trial judge listed among his reasons for finding the appellant's evidence unreliable and unacceptable.
    Humphreys J had something to say on a similar point in R –v- Treacey [1944] 2 All ER 229m at page 236:
    'In our view, a statement made by a prisoner under arrest is either admissible or it is not admissible. If it is admissible, the proper course is for the prosecution to prove it, give it in evidence, let the statement if it is in writing be made an exhibit, so that everybody knows what it is and everybody can inquire into it and do what they think right about it. If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination.'
    To the same effect, in regard to admissible statements, is R –v- Rice [1963] 1 QB 857, 867. In the light of the authorities Mr Hutton candidly admitted that the Crown's use of the statement constituted a material irregularity. We fully accept that Crown counsel disclosed the statement and its contents to the defence as soon as they themselves learnt of its existence; it appears that it emanated almost by chance from military custody at a late stage of the trial. But it is the objective irregularity of the procedure and its effect on the defence which we have to look at.
    On the score of admissibility, as distinct from proveability, the present case may resemble Treacey's case more close than was supposed. As we have seen, the prosecution cannot introduce in cross-examination a statement which would have been held inadmissible if tendered as part of the Crown case. There was no proof of the circumstances in which the statement at 4.40 am on 28 February was taken, and therefore, even when allowance is made for the relaxation of the requirement that the statement should be voluntary (see section 6 of the 1973 Act) there was no opportunity of considering how the trial judge might have exercised his discretion on the fairness of admitting a statement taken, as it would appear, without caution from a man who was exposed to the danger of a serious charge and may have been very tired as well as upset."

    This authority is binding on the courts in Northern Ireland. Therefore a statement filed in care proceedings or a transcript of evidence given in such proceedings is not admissible in evidence against the maker or his spouse as part of the prosecution case nor is it capable of being used to cross-examine the maker as defendant, when not proved as part of the prosecution case, in any proceedings for an offence other than perjury. Thus the respondent in this case is protected under Article 171(2). In those circumstances she will not be placed in any invidious position nor subjected to any unfairness and no issue under Article 6 of the European Convention arises.

    During the course of the hearing an issue arose as to whether a written statement or a transcript of evidence in care proceedings could be put into the hand of a defendant in criminal proceedings and not identified and the witness asked whether he adhered to the evidence he had given. It seems to me that the answer to this is to be found in R –v- Foxford. Once the document is not admissible in evidence against the defendant that is an end to it. No use may be made of it and it matters not whether he has made prior inconsistent statements.

    In proceedings under the Children Order no documents held by the court and relating to the proceedings can be disclosed to anyone (including the police and the DPP) other than a party to the proceedings, their legal representative, the GAL, the Legal Aid Department or a welfare officer without leave of the court. Any request for leave to disclose a document filed in or a transcript of care proceedings requires to be carefully considered with Article 171(2) in mind.

    I therefore direct that the respondent file a statement within 14 days in response to the case made by the Trust.




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    2000/ 11

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