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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Kent CC v D & Ors (4) (Re W) [2015] EWFC 95 (22 July 2015) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2015/95.html Cite as: [2015] EWFC 95 |
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COURT
OF JUSTICE
FAMILY
DIVISION
![]() ![]() Strand, London, ![]() ![]() |
||
B e f
o r e :
____________________
Kent ![]() ![]() ![]() | Applicant |
|
- and - |
||
ME14C00883 |
||
AK |
1st Respondent |
|
- and - |
||
JD |
2nd Respondent |
|
- and - |
||
KD By Her ![]() ![]() |
3rd Respondent |
|
ME14C00882 |
||
JE |
1st Respondent |
|
- and - |
||
JS |
2nd Respondent |
|
- and - |
||
VE, SE & LE By Their ![]() ![]() |
3rd, 4th & 5th Respondents |
|
- and - |
||
ME14C00884 |
||
JC |
1st Respondent |
|
- and - |
||
LF |
2nd Respondent |
|
- and - |
||
![]() ![]() By Their ![]() ![]() |
3rd & 4th Respondents |
____________________
Frank
Feehan
Q.
C.
& Ms Katie Phillips, (instructed by Kent
County
Council)
for
the Applicant in all three
cases
ME14C00883
Mr Paul Storey Q. C.
& Mr Stephen
Chippeck
(instructed by Pearsons and
Co)
for
the 1st Respondent
Mr Philip Newton (instructed by Stilwell & Harby Solicitors) for
the 2nd Respondent
Mr Philip McCormack (instructed by Davis
Simmonds and
Donaghey
Solicitors)
for
the 3rd Respondent
ME14C00882
Mr Cyrus
Larizadeh & Ms
Dorothea
Gartland (instructed by Robinsons Solicitors)
for
the 1st Respondent
Mr John Thornton (instructed by Boys & Maughan Solicitors) for
the 2nd Respondent
Ms Jo Porter (instructed by Berry & Berry LLP Solicitors) for
the
3rd, 4th and 5th Respondents
ME14C00884
Ms Louisa Adamson & Mr Clive
Styles (instructed by Kingsfords LLP)
for
the 1st Respondent
Mr Mike Batt (instructed by Morris Sutherland Solicitors) for
the 2nd Respondent
Ms Jo Porter (instructed by Berry & Berry LLP Solicitors) for
the 3rd and 4th Respondent
Ms Mary Robertson (instructed by Rootes Alliott Solicitors) for
the 5th Respondent
Hearing date:
22nd July 2015
____________________
Mrs Justice Theis DBE:
Introduction
In relation to AK
1. That shewas
more involved
with
Z than she revealed (466). She
was
in regular
contact
![]()
with
Z (481)
2. That shewas
involved in the arrangements
for
Z being sold
for
sex, knowing that she
was
under 16 (484)
3. That shewas
at least
complicit
in
causing
or permitting the exposure of Z to inappropriate and abusive sexual activity, knowing that she
was
under 16 (482, 497)
4. That she kept Z in her home against her (Z's)will
(485)
In relation to JE and the E household
1. That her knowledge of Zwas
significantly more than she revealed and this
was
![]()
due
to more
direct
![]()
contact
she had
with
Z than she said (480). She
was
in regular
contact
![]()
with
Z (481).
3. Shewas
probably at the least
complicit
to some extent in
what
![]()
was
happening to Z in terms of her being sold
for
sex. The precise extent of her involvement/
complicity
is
difficult
to say but the
Court
is only able to make positive
findings
that she knew Z
was
being sold
for
sex and that she knew Z
was
under 16 years old and she took no action in relation to this (482 and 497).
In relation to JC
1. That her relationship and knowledge of Zwas
![]()
far
more than she has said (480) and that she
was
in regular
contact
![]()
with
Z (481).
2. Shewas
probably at the least
complicit
to some extent in
what
![]()
was
happening to Z in terms of her being sold
for
sex. The precise extent of her involvement/
complicity
is
difficult
to say but the
Court
is only able to make positive
findings
that she knew Z
was
being sold
for
sex and that she knew Z
was
under 16 years old and she took no action in relation to this (477 - 480, 482 and 497).
In relation to JS
1. That hewas
supplying
drugs
to JC
from
his home address (503(3)).
2. That he introduced JC todrugs
(501).
In relation to LF
1. That he knew of the sexual exploitation of Z by individuals, although not specifically of her being exploited by JE (493).
The updated evidence regarding Z
The Law
'When
the
court
is
considering
![]()
whether
a particular
child
should be
called
as a
witness
the
court
![]()
will
have to
weigh
two
considerations:
the advantages that
will
bring to the
determination
of the truth and the
damage
it may
do
to the
welfare
of this or any other
child.
A
fair
trial is a trial
which
is
fair
in the light of the issues that have to be
decided.'
![]()
At paragraph 26 she stated
'We
endorse the view that an unwilling
child
should rarely, if ever, be obliged to give evidence.'
Submissions
(1) Z should not be permitted to pick and chose
which
proceedings she participates in. This is particularly so
when
considering
the observations of HHJ O'Mahony regarding the
false
allegations she has made before and
during
the
criminal
proceedings.
(2) By not requiring Z to give evidence this court
is
depriving
itself of the advantage the judge had in the
criminal
proceedings of being able to observe her oral evidence over a number of
days.
(3) There are relevant issues that they seek to explore with
Z that
were
not
fully
dealt
with
in the
criminal
proceedings.
(4) It is acknowledged Z would
suffer emotional harm if she
was
required to give evidence, although the information available to the
court
is out of
date,
due
to Z's
failure
to
co-operate
with
any Re
W
assessment. It is submitted that Z
was
able to give evidence over a number of
days
within
the
criminal
proceedings, and there is no reason
why
she should not be able to
do
so if
carefully
and sensitively handled
within
these proceedings. It is submitted there is no evidence of grave harm suffered
during
the
criminal
process.
(1) There is no evidence thatwould
indicate a
change
in Z's vulnerability and ability to engage
with
the
court
to give evidence.
(2) The evidence the
court
has
from
Z LA sets out Z's extreme stress
during
the
criminal
proceedings, exacerbated by her
frequent
attendance and the
conclusion
of the trial; her extreme stress regarding her previous experiences and her
family
leaving the
country
![]()
without
her; her anger at being placed in secure accommodation and her reluctance to provide any evidence in relation to any more proceedings; her intention to kill herself if she
was
not allowed to join her
family
in Slovakia.
(3) In the updated statement
dated
8.7.15 XLA state that since their previous statement on 22.5.15 Z has
continued
to experience high levels of stress in relation to her experiences of having to provide evidence in the previous proceedings and her
family
returning to Slovakia.
(4) The most recent statement
from
XLA
details
Z's views
were
sought on three separate occasions in respect of giving evidence in the
family
proceedings. On each occasion she has been
clear
she
did
not
want
to participate in the proceedings or give evidence.
(5) Although Z has not engaged in an up to
date
assessment XLA report that in any event the psychological aspect of Z's
functioning
![]()
would
affect her ability to give evidence and
deal
![]()
with
a
court
situation.
(6) The
court
has significant additional material to
consider
in its evaluation of Z's accounts; video recording and notes
from
the memory refreshing exercise and transcripts of all of her evidence in the
criminal
proceedings.
Discussion
and
Decision
(1) If Zwere
able to give oral evidence undoubtedly this
court
![]()
would
have the best opportunity of assessing her evidence. It has rightly been referred to as the 'gold standard' and it
fully
protects the Article 6 and 8 rights of the parties,
which
include the adults and the
children.
Reliance is placed on
what
took place
within
the
criminal
proceedings
where
the reliability of Z's evidence
was
tested through the
forensic
process.
(2) However this
court
![]()
cannot
ignore the evidence it has
concerning
Z's
welfare.
In November I
concluded
that a
combination
of her express
wishes
and the evidence the
court
had about her psychological vulnerability resulted in the
court
![]()
determining
she should not be required to give oral evidence. Since Z
concluded
her oral evidence in the
criminal
proceedings her psychological position has
deteriorated
to the extent that XLA sought and obtained orders to place her in secure accommodation to protect her. In the two statements the
court
has
from
Z LA it is
clear
Z
was
suffering extreme stress through a
combination
of events. Her expressed
wishes
have not
changed;
on each occasion she
was
asked about giving evidence in these proceedings it
was
![]()
clear
she
did
not
want
to participate in them.
(3)
Whilst
this
court
![]()
does
not have
detailed
updated information regarding her psychological state it is
clear
![]()
from
![]()
what
is available that her
current
![]()
functioning
![]()
would
inevitably affect her ability to give evidence and
deal
![]()
with
the
court
situation.
Forcing
her to give oral evidence, even if that
was
possible,
would
undoubtedly be
contrary
to her
welfare.
![]()
(4) In
conducting
the re-hearing the
court
![]()
does
have significant additional material to re-evaluate Z's accounts by
way
of the video recorded memory refreshing exercise, together
with
the notes taken and
full
transcripts of her oral evidence
within
the
criminal
proceedings.