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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> AA & 25 Ors (Children) (Rev 2)  EWFC 64 (16 April 2019)
Cite as:  EWFC 64
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B e f o r e :
|LV17C00867 VBC V AGM, AGF, AM, AF, AA, AB & AC (L)|
|LV17C02751 VBC V BM, BF, BA & BB|
|LV17C002656 VBC V CM, CF & CB|
|LV18C00070 VBC V DM, DF, DA & DB|
|LV18C00273 VBC V EM, EF, FF, EA, EB & EC|
|LV18C02752 VBC V EM, FF, FA, FPG & FPA|
|LV17C03139 XBC V GM, GF, GA & GSM|
|LV17C02519 XBC V IM, IF, IA & IB|
|LV17C02579 XBC V CM, HF, HA & HB|
|LV17C02573 XBC V JM, JF, JA, JB & JPG|
|LV18C02166 XBC V JM, JF, JA, JB & JPG|
|LV18C05644 YMBC V LM, LF, LA & LB|
|LV18C02144 YMBC V MM, MF, JMA & MA|
|MA18C00500 ZMBC V NM & NB|
|MA18C00618 ZMBC V OM, OF & OB|
Elizabeth Isaacs Q.C. and Sophie Smith instructed by FDR Law appeared on behalf of AGM
Taryn Lee Q.C. and Mark Steward Instructed by Watsons Solicitors appeared on behalf of AGF
Peter Birkett Q.C. and Danish Ameed Instructed by Higgins Miller appeared on behalf of AM
Jeremy Weston Q.C. and Samantha Birtles Instructed by KHFS Solicitors appeared on behalf of AF
Lorna Meyer Q.C. and Janet Reaney Instructed by Berkson Globe appeared on behalf of AA, AB and AC
Paul Storey Q.C. and Clare Grundy Instructed by KHF Solicitors appeared on behalf of BM
Stephen Jones Instructed by Susan Howarth & Co appeared on behalf of BF
Jo Delahunty Q.C. and Shaun Spencer Instructed by Hogans Solicitors appeared on behalf of BA, BB, IA and IB
Julia Cheetham Q.C. and Clare Porter-Philips Instructed by Hill & Company Solicitors appeared on behalf of CM
Richard Pratt Q.C. and Jamil Khan Instructed by Fiona Bruce Solicitors appeared on behalf of CF
Bansa Singh-Heyer and Prudence Beaumont Instructed by McAlister Family Law appeared on behalf of CB, HA and HB
Sarah Morgan Q.C. and Carl Gorton Instructed by HCB Group appeared on behalf of DM
Christine Johnson Instructed by Jones Robertson Solicitors appeared on behalf of DF
Simon Povoas Instructed by BDH Solicitors appeared on behalf of DA and DB
Andrew Moore Instructed by Butcher & Barlow Solicitors appeared on behalf of EM
Emma Greenhalgh Instructed by MI Banks Solicitors appeared on behalf of EF
Darren Howe Q.C. and Damian Sanders Instructed by Linder Myers Solicitors appeared on behalf of FF
Simon Povoas Instructed by BDH Solicitors appeared on behalf of EA, EB, EC and FA
Matthew Lord Instructed by Pluck Andrew & Co appeared on behalf of FPG
FPA appeared In Person
Frances Heaton Q.C. and Ginnette Fitzharris Instructed by and for Legal Services of XBC
Jane Sampson Instructed by MSB Solicitors appeared on behalf of GM
Ruth Henke Q.C. and Rachael Banks Instructed by Linder Myers Solicitors appeared on behalf of GF
Kate Burnell Instructed by Morecrofts Solicitors appeared on behalf of GA
Ruth Henke Q.C. and Kate Hughes Instructed by Linder Myers Solicitors appeared on behalf of GSM
Jane Cross Q.C. and Peta Harrison Instructed by Bell, Lamb & Joynson Solicitors appeared on behalf of HF
Frances Judd Q.C. and Lucinda France-Hayhurst Instructed by Butcher & Barlow Solicitors apeare don behalf of IM
Ian Dixon Instructed by Nyland Beattie Solicitors appeared on behalf of IF
Damian Garrido Q.C. and Jayne Acton Instructed by Alfred Newton Solicitors appeared on behalf of JM
Karen Wishart Instructed by Silverman Livermore Solicitors appeared on behalf of JF
Kate Burnell Instructed by BDH Solicitors appeared on behalf of JA and JB
JPG appeared In Person
Mark Senior Instructed by and for Legal Services of YMBC
Liz McGrath Q.C. and Lawrence Messling Instructed by Stephensons Solicitors appeared on behalf of LM
Leonie Caplan Instructed by Otten Penna Solicitors appeared on behalf of LF
Natasha Johnson Instructed by MSB Solicitors appeared on behalf of LA and LB
Sarah Morris Instructed by Borrow & Cook Solicitors appeared on behalf of MM
Fiona Halloran and Kate Brammall Instructed by Stephensons appeared on behalf of MF
JMA appeared In Person
Tammi Bannon Instructed by Paul Crowley Solicitors appeared on behalf of MA
Linda Sweeney Instructed by and for ZMBC
Cyrus Larizadeh Q.C. and Neil Christian Instructed by Poole Alcock Solicitors appeared on behalf of NM
Jo Delahunty Q.C. and Shaun Spencer Instructed by Temperley Taylor Solicitors appeared on behalf of NB and OB
Simon Bickler Q.C. and Joseph Lynch Instructed by Garratts Solicitors appeared on behalf of OM
Nicholas Stoner Q.C and Nazmun Ismail Instructed by Ayres Waters Solicitors appeared on behalf of OF
HTML VERSION OF APPROVED JUDGMENT
Crown Copyright ©
Sir Mark Hedley:
PART I: INTRODUCTION
PART II: PREPARATION FOR TRIAL
PART III: THE MANAGEMENT OF THE TRIAL
PART IV: THE UNCONTENTIOUS BACKGROUND
PART V: THE AA/IB AFFAIR
PART VI: THE OUTSTANDING FACTUAL ISSUES
"In respect of the anogenital examination, which did not reveal any evidence of injury, in no particular order the possibilities are:
"(a) vaginal and anal penetration occurred leaving no injuries;
"(b) vaginal and anal penetration occurred leaving injuries which have healed without trace by the time of the examination; and
"(c) vaginal and anal penetration did not occur."
PART VII: THE LAW
"A court may only make a care order or supervision order if it is satisfied --
"(a) that the child concerned is suffering, or is likely to suffer, significant harm; and.
"(b) that the harm, or likelihood of harm, is attributable to --
"(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or.
"(ii) the child being beyond parental control."
"In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is a task which we are paid to perform to the best of our ability.
"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof."
"There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial 'offence' may have been another example. But care proceedings are not of that nature. They are not there to punish or deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.
"My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
"As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future."
"It is extremely important to underline that in family proceedings the cost of a mistake either way is equally serious. If I make a finding in this case against a parent when I should not have made a finding, not only would that be a gross injustice to the parent, but it would disturb, upset and possibly frustrate the lives of children throughout the whole of their childhood, if not beyond. If, on the other hand, I were to fail to make a finding when I should have made a finding, it would be to expose children immediately returned to that person's care to wholly unacceptable risk of abuse in the future. The cost either way is equally grave, and that is an important factor to bear in mind when one is examining what the purposes of hearings under Part IV actually are."
"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. A fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."
"In these proceedings you are not allowed to refuse to answer questions put to you and you must answer them. It is almost certain that if the police ask for it, they will be allowed to have the evidence that you give to this court. If the police interview you again, they may ask you in that interview about the evidence you have given to this court. Whether any part of the police interview can then be used if there is a trial in the Crown Court will be decided by a Crown Court judge and not by a judge of this court."
"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. Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"This document describes good practice in interviewing victims and witnesses and in preparing them to give their best evidence in court. Whilst it is advisory and does not constitute a legally enforceable code of conduct, practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts."
"The importance of adhering to the guidance has been recognised repeatedly by this court [and then four cases are cited]. These four cases all concerned investigations in which interviews had been conducted in ways that purported to comply with the guidance but which in various respects manifestly failed to do so. The principles underpinning the guidance are, however, relevant to all investigations, which include interviews of alleged victims of abuse, whether or not the interviews purport to have been conducted under the guidance."
PART VIII: THE INVESTIGATION OF THE CASE
PART IX: THE LOCAL AUTHORITIES' WITNESSES
"AA replied that she was not going to say any more about private things and she was jealous of her sisters having private time and telling bad things about her grandad."
PART X: THE A GIRLS
PART X1: WERE THE A GIRLS SEXUALLY ABUSED?
"... demonstrated that the twins, particularly AC, have a very poor understanding of the mechanics of sex."
PART XII: WAS THERE AN ORGANISED PAEDOPHILE RING?
PART XIII: THE ALLEGATIONS AGAINST THE GRANDPARENTS
PART XIV: THE CASE AGAINST THE OTHER RESPONDENTS
PART XV: THE FINDINGS OF THE COURT
PART XVI: EXONERATION
if abuse is not proved against a named person, then it must for all purposes be treated as not having happened. Any such person is not and must not be treated as being left under a cloud of suspicion.
PART XVII: EPILOGUE
"These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved."
"The court must seek to give effect to the overriding objective when it exercises any power given to it by these rules or interprets any rules."
"The parties are required to help the court to further the overriding objective."
SIR MARK HEDLEY:
• (For continuation of proceedings: please see separate transcript)
Thursday, 21 February 2019
SIR MARK HEDLEY:
"At the conclusion of the defendant's evidence, the plaintiff's counsel submitted that there was no case to answer upon the two issues which at that stage had alone been presented to the court, that is to say the issues of no consideration and of illegality. Where an action is being heard by a jury it is, of course, quite usual and often very convenient at the end of the case of the plaintiff or of the party having the onus of proof, as the defendant had here, for the opposing party to ask for the ruling of the judge whether there is any case to go to the jury, who are the only judges of fact. But it seemed to be not unusual in the King's Bench division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient for the judge in such cases is also the judge of fact and we cannot think it right that the judge of fact should be asked to express any opinion on the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of a plaintiff's case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not the jury is the judge that has to determine the facts. In such cases, we venture to think that the responsibility for not calling rebutting evidence should be upon the other party's counsel and upon no one else."
"Social workers in these situations are in a very difficult place. If they take no action and something goes wrong, inevitable and heavy criticism will follow. If they take action which ultimately turns out to be unnecessary, they have caused distress to an already distressed parent. On the other hand, they are also invested with or have access to very draconian powers and it is vital if child protection is to command public respect and agreement such powers must be exercised lawfully and proportionately and that the exercise of such powers should be the subject of public scrutiny. This litigation demonstrates that child protection only comes at a cost: to an innocent parent who is subject to it based on an emergency assessment of risk and to public authorities who are held to account in a judicial setting for the exercise of their power. It is, however, a cost that has inevitably to be exacted if the most vulnerable members of our society, dependent children, are to be protected by the state."
"So if I were formulating a general test, I would be inclined to say that trial judges in preliminary fact-finding hearings involving serious allegations of domestic violence should never terminate the case without hearing all available evidence. It may be dangerous to say never, but I can only conceive of a termination that rested on a concession from the applicant that that was inevitable or appropriate at the conclusion of the evidence. So long as the applicant sails on into the gunfire, I think the judge has the obligation to hear the case out. His obligation derives from his responsibilities to the child. There are many obvious instances in which what may seem to be a frail case at the conclusion of the applicant's evidence nonetheless at the conclusion of all the evidence can be seen to be one that is not without substance and foundation."
"We have now, of course, today heard full argument. However, having heard argument and read the various authorities submitted to us, I have to say that I entirely agree with my Lord in finding it impossible to envisage circumstances in which a judge, hearing what I will in shorthand describe as Re L V M H fact-finding hearings within private law proceedings involving domestic violence should entertain an application that there is no case to answer."
"In agreement with my Lords, it seems to me that it is inappropriate in all circumstances but conceivably the rarest, such as Lord Justice Wall referred to, for a submission of no case to answer to be entertained. The child is in reality the subject of these proceedings and it is inconsistent with the status of a child and the need to make a decision which is in the interests of a child for a decision to be made on partial evidence."
"The Grand Chamber, like the Chamber will first recall the guiding principle whereby a care order should in principle be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see in particular the above-mentioned Olsen v Sweden number 1 judgment). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child."
"In this connection, that is to say dealing with evidence, I venture to repeat what I recently said in Re C (Children Residence Order. Application Being Dismissed at Fact-Finding Stage)  EWCA Civ 1489. These are not ordinary civil proceedings, they are family proceedings where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration. It has long been recognised, and authority need not be quoted for this proposition, that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without any need for oral evidence. He may decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of that evidence."
"In a highly conflicted case where permanent removal and placement are serious possibilities, and that is increasingly the case with young children, it is only the judge upon whom the responsibility for case management should fairly rest. To leave it to the parties is to impose on them a burden potentially so onerous as to be unfair for especially on behalf of parents, no stone should be left unturned, however small it may seem. Of course, if that responsibility is to be discharged, it is essential both that the judge has had sufficient opportunity to master the case and also that judicial continuity is provided."
"The court may control the evidence by giving directions as to the matters which the court is to take into account (iii), the court may permit a party to adduce evidence or seek to rely on a document in respect of which that party has failed to comply with a requirement of this Part."
"The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved (a) at the final hearing by their oral evidence and (b) at any other hearing by their evidence in writing."
"If a party (a) has served a witness statement and (b) wishes to rely at the final hearing on the evidence of the witness who made the statement, that party must call the witness to give oral evidence unless the court directs otherwise or the party puts the statement in as hearsay evidence."
"In any proceedings in which a court is hearing an application for an order under Part IV or V, no person should be excused from (a) giving evidence in any matter or (b) answering any questions put to him in the course of his giving evidence on the ground that doing so might incriminate him or his spouse or civil partner in an offence."
"The protection of children in public law proceedings is primarily in the hands of other agencies, but when the case is brought into the judicial arena, the judge is an important partner in the process of child protection. Accordingly it is incumbent on any judge to dig deep, as deep as is reasonably practicable, before arriving at the conclusion that there is no danger to the child and that the child's account of abusive experience is incredible, not to be believed. It is not a case in which the judge can say that the child is mistaken. A rejection of the local authority's case inevitably carries the conclusion that the child had made a false allegation against her stepfather. That outcome should not be reached without the judge having the best available evidence."