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|Neutral Citation Number:  EWCA Civ 801
|Case No: B4/2018/0076
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING FAMILY COURT
|Royal Courts of Justice
Strand, London, WC2A 2LL
|18 April 2018
B e f o r e :
LORD JUSTICE FLOYD
LORD JUSTICE DAVID RICHARDS
LORD JUSTICE PETER JACKSON
| C (Children : Fact-Finding)
Damian Garrido QC and Sara Granshaw (instructed by Reading Borough Council) for the Appellant local authority
Anna McKenna QC and Jason Green (instructed by Reeds Solicitors) for the Respondent father
Janet Mitchell (instructed by Barrett & Thomson Solicitors) for the Respondent sister L
Written submissions were received from Penny Howe QC and Paul Murray for the Respondent mother and from Isabelle Watson for the Children's Guardian.
Hearing date: 27 March 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Peter Jackson:
- Reading Borough Council appeals from the refusal of HHJ Oliver to make all the findings of fact that it had argued for at a hearing in care proceedings that lasted 19 days and ended with judgments on 14 and 15 December 2017.
- The proceedings concern the youngest three of twelve children of parents with learning difficulties. The children are L, a girl now aged 17, and 14-year-old twins, K (a girl) and D (a boy). K herself has significant learning difficulties and functions at a very much younger age.
- The local authority had been involved with the family for 20 years without legal intervention. The events leading to these proceedings began in March 2016 when the twins' school contacted the police following the discovery that students had been taking and circulating indecent photographs of themselves. K was considered to be at particular risk from sexual exploitation. She was allocated a youth worker, with whom she had regular meetings. There was also concern that L, then 15, was involved in a sexual relationship with an older sister's boyfriend. At an initial child protection conference in December 2016, the three children were made the subject of child protection plans under the category of sexual abuse. Sexualised behaviour by K at school continued. In February 2017, for reasons the judge was unable to understand, professionals started to consider the possibility of familial sexual abuse.
- The event precipitating these proceedings was a meeting in March 2017, when K is said to have told her youth worker that her father had had sex with her within the past month. In April, interim care orders were made and the twins have remained in foster care since then.
- It was not until July, after many preliminary meetings, that K took part in a video recorded interview (VRI) with the police during which she made other statements about sexual activity in the home.
- The judge conducted a long hearing, during which the parents had intermediaries. He gave a full judgment on 14 December and a supplemental judgment on 15 December, answering points of clarification raised by the local authority, and responding to its request for a reopening of his findings.
- His central findings, on which he found the threshold to be crossed, were that the parents:
(1) Are unable to instil in the children an understanding of appropriate sexual boundaries, leading to the children showing sexualised behaviour towards other children and in front of each other – five specific examples at school were given.
(2) Are unable to supervise the children adequately to ensure that they have no opportunity to participate in sexually inappropriate behaviour with other children or with adults whom the parents ought to see as a risk to children – one example was given relating to a 13-year-old and another to an 18-year-old.
(3) Lack insight into risks to the children from child sexual exploitation and child abuse, despite having undertaken safeguarding work with professionals over a number of years – three examples were given concerning the children's access to the internet.
(4) Have neglected their children's physical and emotional needs – a sometimes unclean and unhygienic home and a failure to attend reliably to the twins' personal care needs.
- As a result of these significant threshold findings, the proceedings are continuing to the welfare stage, when a decision will be taken about whether or not the twins can return home.
- The local authority's case against the parents had been much more extensive. It had sought findings that:
(1) The father had had sexual intercourse with K on one occasion.
(2) K, with the father's encouragement, had had sexual intercourse with other male adults in the family home while the father looked on.
(3) The mother had known, been present, and covered it up.
(4) K and L had watched pornography in the family home
(5) L had been seen in the back of a car with a man ten years her senior, from whom she had accepted £10, and was probably being groomed.
(6) The parents encouraged the children not to cooperate with the police or social services.
(7) The parents are unable or unwilling to appreciate the harmful effect of their behaviour on the children (low self-esteem, social isolation and poor social skills).
- The local authority, through trial counsel Mr Garrido QC and Ms Granshaw, criticise the judge for:
(1) Failing to adequately assess K's allegations and evidence.
(2) Failing to form a clear assessment of the credibility of the parents and making unduly favourable assumptions about the effects of their learning difficulties.
(3) Basing conclusions on his own opinions and experience rather than on evidence.
(4) Refusing to reconsider his findings in the light of a subsequent psychological assessment of the family.
- The appeal is nominally supported by the children's guardian but opposed by the parents and the older child L.
- I address the local authority's submissions individually.
Assessment of K's evidence
- The judge felt unable to place any significant weight on K's accounts, such as they were, because of undeniably serious shortcomings in the process of investigation. He found that the statements made to the youth worker came at the end of a long sequence of grossly leading questions, that statements subsequently made to a foster carer were tainted by the carer's antipathy to the father, and that statements made to the police followed up to 20 unrecorded meetings and arose from an investigation conditioned by a desire for K to repeat what she had said before.
- Mr Garrido does not challenge the fundamental criticism of the process undertaken by the youth worker, but he argues that the judge was wrong to say that this undermined the rest of the case. The judge should, he said, have included a careful analysis of the video recorded interview before reaching his conclusion.
- During this appeal, we have been taken to the statements made by K to the youth worker and subsequently. At no stage did she give any spontaneous account that convincingly sustained the local authority's case, and the investigation was characterised at every stage by numerous failures to observe good practice in relation to gathering evidence from a vulnerable young person. It is not surprising that the judge felt unable to rely upon this evidence. The local authority's case at trial, recorded in written submissions, was anything but compelling and Mr Garrido was not able to point us to any part of the VRI that should have led the judge to a different conclusion.
- Complaint is also made about the judge's summary of the medical examination of K, which he described as negative and as proving that she had not had penetrative sexual intercourse. The evidence did not say this in terms, but the absence of any physical findings was something that the judge was entitled to take into account, given the nature of the allegation.
Failure to make a clear assessment of the parents' credibility
- The judge assessed the mother as a truthful witness who was doing her best, would have difficulty in telling and sustaining a lie, and was respectful of authority. He reached a similar conclusion in relation to the father, who he said came across as a straightforward man who did not appear to be trying to hide anything.
- For the father, Ms McKenna QC and Mr Green add that the parents were the subject of covert police surveillance after their arrest, which showed that they were making no attempt to hide anything and were perplexed about what was going on. Also, the court had evidence that 12 members of the wider family had given DNA tests to the police because of a concern that the father might be father to some of his many grandchildren: the results showed that he is not.
- The local authority clearly does not agree with the judge's assessment of the parents, but I am unable to identify any respect in which he could be said to have been wrong in reaching the conclusion that he did. He had the opportunity to assess the parents when they gave evidence – at no point were they caught out in a lie – and also indirectly through their assiduous participation in these lengthy proceedings. He was also entitled to form the view that these were parents whose learning difficulties might make it harder for them maintain a consistent account. He did not, as Mr Garrido suggests, import this as some kind of scientific concept. Rather, it was a permissible aspect of the judicial assessment.
- As a subsidiary argument, Mr Garrido argues that the judge should have been informed by the opinion of social workers who carried out a parenting assessment and who thought the father (though not the mother) might be showing 'veiled compliance'. On this point, the local authority's case in closing was put to the judge in this, to my mind unprepossessing, way: "What has he got to hide? Sexual abuse." The judge cannot in my view be faulted for preferring his own assessment of the parents' credibility and for concluding that the evidence from the parenting assessment went to the welfare stage of the case and not to fact-finding.
Basing conclusions on his own opinions and experience
- This submission is based upon the judge's response to three particular findings sought by the local authority:
(1) In relation to the first finding made by the judge as recorded at paragraph 7(1) above (inability to instil an appropriate understanding of sexual boundaries) the local authority had argued that this was a culpable failure on the part of the parents, rather than an inability. The judge said that, based on experience, a degree of sexual disinhibition was seen in some people with learning difficulties, making the task of parents harder. Asked to clarify, he accepted that there was no direct evidence to this effect, but he relied upon evidence he had heard about these young peoples' difficulty with processing information, and upon his experience as a Chair of the Special Educational Needs and Disability Tribunal.
(2) The local authority sought to prove on the basis of a statement made by K that K and L had watched a pornographic film at home (see 9(4) above). L denied this. The judge did not find the allegation proved, observing that the description 'porno' had not come from K herself, but from the youth worker. He was not satisfied that K was not describing something sexually explicit that they had seen on mainstream television: in fact, he found that this was what K was describing.
(3) In relation to the local authority's case, referred to in paragraph 9(5) above, about what it said was the parents' inadequate response to L being in a car with her sister's boyfriend, the judge found the case not proved. He dealt with this issue in some detail at paragraphs 124-135 of his main judgment, and he attached weight to L's denial that there had been any sexual activity, and also to apparent malice on the part of the informant. He recorded that the police and social services were rightly concerned, but he did not find the concerns borne out. He added an observation that the age difference between the young people (five years) did not necessarily make the relationship exploitative, and referred in passing to a greater age difference between two married members of his own family who had met young.
- In relation to this ground of appeal, the local authority's arguments have some limited purchase. The judge's finding that the parents are unable to instil appropriate sexual boundaries in the children is perhaps a more profound threshold finding than the allegation that they had failed to do so; observations about disinhibition in the children were superfluous to this conclusion, as was the judge's wider judicial experience. Also, the judge was in my view entitled to dismiss the allegation relating to K watching pornography on the basis that he gave, namely that no material of that kind was ever identified, still less found in the family home during the police enquiry; it was unnecessary for him to go further and make a speculative finding about what K might have been trying to describe. The one point on which the local authority's case is, I find, more persuasive, is in relation to the parents' response to L and the older man. The parents (and L) did not deny that the event had happened, but they denied its significance. Consistent with his general view of the case, the judge might have been expected to find that the parents were far too slow to see the dangers in the situation for their daughter, and to add this to his threshold findings as an example of their inability to protect. The passing reference to members of the judge's own family was, as he said in his supplemental judgment, irrelevant and inappropriate, but in my view, nothing turns on that.
- Looking at these three matters overall, I do not see them as undermining the judge's overall conclusions to any extent.
Refusal to reopen findings of fact
- On 15 December, the day after the judge had given his main judgment, he was asked to consider a detailed psychological report in relation to the parents and children from the Anna Freud Centre. This substantial piece of work had been commissioned with a view to it becoming available after the fact-finding hearing and with knowledge of the outcome of that stage of the proceedings. However, the fact-finding hearing had overrun and as a result, the report (not of course based on any judicial findings) became available on Tuesday 12 December, the evidence having concluded on the previous Friday. Written submissions were due to be filed on Wednesday 13 December, with judgment expected the following day. The parties agreed that their submissions would not refer to the Anna Freud report, and it was not seen by the judge before he gave his main judgment. This approach was influenced by the fact that L's 17th birthday, after which public law orders could not be made in her case, was very imminent. However, and in light of the judge's limited findings, the local authority asked him to read the Anna Freud report on Friday 15 December. It drew attention to two particular paragraphs, in which the reporters expressed the view that the father had behaved in a very defensive and quite radically controlling way during their assessment. No similar observation was made in relation to the mother. There was also an opinion that K had experienced post-traumatic stress disorder. The local authority argued that the judge should reopen his findings in the light of this further information. The judge, having correctly directed himself on the need to find a solid basis for taking this course, declined to do so.
- On this appeal, Mr Garrido argued that findings of fact should always be kept under review in the light of further evidence that becomes available. This further expert opinion potentially contradicted what he described as the judge's superficial assessment of the parents. The diagnosis in relation to K might also be relevant to whether she had suffered sexual abuse. The judge's decision demonstrated a failure to keep an open mind as the evidence developed.
- I would firmly reject this submission. The Anna Freud Centre was not commissioned to carry out an assessment of the parents' credibility, nor did it seek to do so. Its observations were made at a time when, by accident not design, it had no findings of fact to go on and the parents themselves were awaiting a serious fact-finding hearing. The father's observed defensiveness and the diagnosis in relation to K were non-specific matters that did not amount to solid grounds for reopening the findings that had just been made. Indeed, had the evidence been of such obvious importance as to constitute solid grounds, it would inevitably and despite any inconvenience have been placed before the judge before he gave judgment.
- I would also reject the submission that as a matter of principle findings of fact should always be kept under review. In all normal circumstances, findings of fact once made are definitive. The court does not engage in some rolling process of review: it will only revisit its findings as a distinct exercise where it has been shown that there are solid grounds for believing that this is required. The further evidence in this case came a very long way short of triggering that exercise and the judge was right to reject the local authority's application.
- Finally, Mr Garrido makes the overarching submission that the judge did not look at the evidence as a whole ('the broad canvas') when arriving at his limited findings of fact. I am no more convinced by this submission than by the individual grounds of appeal. It is apparent from the judgments that the judge took account of all the evidence, though he clearly considered the local authority's case on their central allegations to be weak. The judge is not to be criticised for that. As Ms McKenna and Mr Green put it, the judgment was not a failure to make a proper assessment of the evidence, but rather the product of the local authority failing to establish the facts it had sought to prove.
- It will be apparent that, except in the very limited respects referred to in paragraph 22 above, which have no bearing on the outcome, I do not consider that the local authority's arguments in this court succeed. I would dismiss the appeal.
Lord Justice David Richards:
- I agree.
Lord Justice Floyd:
- I also agree.
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