By David Burrows

 

Clarification of a court judgment

Re P (A Child) [2018] EWCA Civ 720 (11 April 2018) saw the Court of Appeal dealing with a very disturbed 16 year old “T” who, with her sister “X” had been adopted by a couple. In 2014 she had said she had been sexually abused by her step-father (SF). He denied it, and his wife (SM) stood by him. After nearly two years she was made the subject of care proceedings (the local authority are not named).

As if all this was not bad enough for her and for her adoptive parents, the judge failed to find the time to write a judgment; and when she did deliver a judgment – over two months after hearing the case in November 2016 – she did so in a way which raised a variety of questions as to her reasons. When she was asked for reasons for her decisions or findings (English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409) she failed to reply; or her response (in September 2017) was lost in the court IT system (perhaps).

A result is that an already unsatisfactory state of affairs following a hearing in November 2016, took nearly 18 months to get to the Court of Appeal, by which time T was over 17, her order on ‘significant harm’ was discharged and no further care order could be made for her (Children Act 1989, s 31(3)). She suffers from complex mental health difficulties and is beyond parental control.

European Convention on Human Rights 1950, Art 6

The main thrust of the Court of Appeal judgment was to deal with the consequences of the judge’s failure to respond to the parent’s reasonable requests for clarification of the judge’s reasons for her decision. However, there were a number of comments made by the court almost in passing which made me wonder how the trial had been dealt with in the terms of European Convention 1950, Art 6 (as scheduled to the Human Rights Act 1998) which, as relevant, states:

“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….

“3 Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or 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;…”

Local authority case: pleadings and evidence

The local authority’s pleaded threshold case was:

“[13] … That it sought within the care proceedings. These were limited to the allegations made by T on 27 August and in the ABE interview on 9 September. They were limited in time to the period between the end of May and 25 August 2014 and set out five short specific descriptions of the type of abusive behaviour alleged. It was pleaded that the father had behaved in this way ‘twice a week most weeks’ throughout the 12-week period….”

The Court of Appeal summarised T’s evidence and, in effect the case against SF, as:

“[7] … The reason for [T’s] her removal [in August 2014] was that on that day T made allegations that ‘my dad sexually abuses me’ to a mental health practitioner from the local CAMHS team who had been her key worker for some time. In the course of her discussion with the CAMHS worker on that day T gave more detail of her allegations both orally and in short written notes.

“[8] As a result, T was removed from the family home. She underwent an Achieving Best Evidence (‘ABE’) interview on 9 September 2014. The interview was of significance in the sense that T again made allegations of sexual abuse against her father both orally and by writing notes on paper provided for her during the interview.

“[9] Some months later, in March 2015, T made further allegations which were, after referral to the police, repeated to a police officer. She declined, however, to undergo a second ABE interview. On the next day, in conversation with her then social worker, T purported to retract, initially fully and then partially, her sexual abuse allegations.

“[10] … These encounters had been limited to lifting of clothing and inappropriate touching, she asserted that on at least one occasion the father had attempted to penetrate her vagina with his penis.”

Of this, McFarlane LJ summarised the judge’s findings (so far as they were findings at all: reasons for what the judge did find are not given) as:

“[27] Unfortunately, the Judge’s decision [is not recorded] on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated ‘I also find that the description T gives of her father attempting to penetrate her is wholly believable’.”

There were 16 witnesses heard by the judge; but the main witness must have been T, who – by all accounts – was not called. Inevitably, given the main concerns of the Court of Appeal, we are not told much of what she had said; or much of other evidence. In many ways this case can only be used as a template or illustration; but it is offered on that basis notwithstanding.

Article 6 and “charged with a criminal offence”

It is necessary to go back to Art 6. A first question is: “this is civil proceedings, so why the reference to Art 6.3?” It is a question fudged by children lawyers who assert that children proceedings are “inquisitorial”. So they may be when the best interests (welfare) of a child is in issue; but when you are a parent in the position of SF the hearing to decide whether the threshold has been achieved must seem like a criminal trial. Certainly you are on trial for what looks like a criminal charge (as, looking from the other end of the telescope, the Court of Appeal accepted in Re R (Children) [2018] EWCA Civ 198; [2018] WLR(D) 97); and often on facts, which if proved, could amount to a crime.

In Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, the European Court of Human Rights considered the difference between criminal charges and disciplinary proceedings; and looked at the position when one set of facts could be treated either way. This may not assist a great deal in the context of SF; but first, consider the terms of the section under which the proceedings are undertaken

“(2) 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;…”

SF is being told that the court is to be asked to find that he has harmed – sexually abused – his adopted daughter and in accordance with the case pleaded against him. He has no protection from self-incrimination privilege (Children Act 1989, s 98(2); Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, [1997] 2 WLR 322, CA). To say that this is merely part of an inquisitorial process designed to find out her best interests (see eg Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731) strains credulity; and it is likely that subsequent Supreme Court jurisprudence has, de facto, undermined the opinions in Re L.

Harm: seriousness of allegations

Supposing the level of seriousness of the allegations to him is the issue, how inappropriate would the protection of Art 6.3 be for SF? Of committal proceedings for contempt Sedley LJ observed in Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] EWCA Civ 2;  [2000] 1 WLR 2559 at [26]:

“[26] … An alleged contemnor is still entitled to an adequate statement of what it is that he or she is alleged to have done in contravention of the law. The entitlement set out in Article 6(3)(a) of the Convention ‘to be informed promptly, in a language which he understands and in detail, of the true nature and cause of the accusation against him’ is one of the rights known longest to the law of England – since, at least, the moment 350 years ago when John Lilburne demanded and finally obtained a sight of the indictment on which he was to be tried (Stephen, History of Criminal Law, I.367)….”

Most judges today would expect a pleaded case of the threshold in any care proceedings. Art 6.3(a) is in operation in practice – a matter of common law, it might be said – whatever the House of Lords may have said in Re L.

There is a distinction drawn by House of Lords and Supreme Court decisions in this – between Lord Nicholls in In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18,  [2004] 1 AC 523; [2003] 1 FLR 1169 and Lady Hale in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35 [2009] 1 AC 11,  [2008] 2 FLR 141 – as to whether issues are split. Again, from the point of view of the parent said to have caused “harm” this debate might be seen as children lawyers debating the questions around a forensic needle. The local authority allegations – one by one – must in care proceedings be proved against the parents (albeit not to a criminal standard of proof: which does nothing for the case of Art 6.3 opponents, in my opinion).

Legal aid is fully available. Art 6.3(c) is in operation. Does this suggest that Lord McKay LC who introduced this very liberal provision, accepted that to that extent at least, that the principles in Art 6.3 should apply to care proceedings?

Examination of witnesses against a parent

That leaves only Art 6.3(d) of the paragraphs referred to above. This is an Achilles heel for family proceedings. For example, in Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83, [2017] 1 FLR 1476 the Court of Appeal looked at whether a fifteen year old child, K, who had alleged serious sexual abuse by her brother, B, since she was six, should give oral evidence. Her evidence was relevant in care proceedings relating to B’s two children (now aged four and two). K was considered to be competent to give evidence; but she varied as to whether she was willing, or not, to come to court. The issue was whether she could be asked questions on behalf of B, or not. Already her evidence had been treated as insufficiently reliable, that the police had decided to abandon their prosecution of B. But should she be required to give evidence?

Think back to Art 6.3(d); for it seems the same question may have arisen in Re P (see paras [7] to [10]); and it certainly did when the court of appeal found the case against X’s alleged abuser could not proceed in In re A (A child) (Disclosure) [2012] EWCA Civ 1204, [2013] 1 FLR 919 (after the outing of that case had earlier had in the Supreme Court: Re A (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2013] 2 AC 66).

The judge decided that the evidence of what K had said to a social worker and the guardian was sufficient as her evidence in chief; and that that ‘evidence’ could not be challenged by any form of questioning of K by or on behalf of B. It would not therefore be open in any way for the father (her brother B) directly to challenge her evidence. The Court of Appeal (Black and Voss LJJ, over a strong dissent from Gloster LJ) agreed. Had Art 6.3(d) applied the hearing would not have been Human Rights Act 1998 compliant.

Gloster LJ: dissent

Gloster LJ does not cite Art 6.3(d) specifically; though she refers to Art 6 in the following terms ([59]):

“(x) The case was one of huge importance for the future life of the [father] and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Art 6 of the European Convention to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Art 8 to a family life.”

She further brackets her concerns in terms which would be consistent with that set of rights in a criminal trial (para [59]) including:

“(v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety….  So those interviews contained no evidence about the reasons for her retractions.

“(vi) K frequently changed her mind as to whether she was prepared to give evidence….

“(viii)On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge.”

No opportunity to cross-examine

Black LJ (with whom Voss LJ agreed) dealt with the lack of an opportunity to cross-examine, so critical to Art 6.3(d), as follows:

“[55] It was submitted that the judge was wrong to make [her] findings on the basis of the untested evidence which she had. The appellant submitted that she had not given sufficient weight to the fact that the father had no opportunity for cross-examination, for example when evaluating the cogency of the ABE interviews which she found to be compelling. The mention that the judge made of the lack of opportunity for cross-examination at the end of paragraph 5 of her judgment was criticised as insufficient. I do not accept that.”

Gloster LJ said, “this case has left me with a deep sense of unease” ([58]). She regarded the views of the guardian and social worker as “dubious” in terms of establishing that it would be harmful for K to give evidence.  K was “a mature young person” who had made serious allegations; and there was “no psychiatric or psychological evidence to support the idea” that it would be damaging to her to give evidence ([62]).

 Finally, Gloster LJ went on to examine options for the judge in terms of measures available to the court. She places the duty on the judge to explore options: that is to say, she held that it was not for the parties only to propose measures. As a matter of case management law this is likely to be correct (see eg Family Procedure Rules 2010 rr 1.4(2) ad 22.1(1)(c)); and it will be recalled that Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) s 19(1)(b), in criminal proceedings, gives the power to the judge, of his/her own initiative, to initiate measures to protect witnesses). In a passage which may have been written with YJCEA 1999 in mind, Gloster LJ said:

“[63] In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others… This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.”

Youth Justice and Criminal Evidence Act 1999: echoes for family proceedings

Had YJCEA 1999 Part 2 formally applied to family proceedings, whether the answer, in terms of K giving evidence in Re S, would have been the same; and, in particular, the court would have regarded as the same its priorities in terms of the rights of B. (It must also be recalled that the children in the case, the subject of the proceedings, and their mother had Art 8, and perhaps Art 6, rights.) If – as the comments of Lady Hale in Re W (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701, [2010] 1 FLR 1485 suggest – the special measures summarised in YJCEA 1999 apply by analogy in family proceedings, the family courts may have a duty to consider what measures it may adopt to ensure a fair outcome, for child, witness and parent. The balance in Re W (Abuse: Oral Evidence) can be struck with the comments of Gloster LJ, and perhaps European Convention 1950 Art 6(3)(d), in mind.

Where this gets the father in Re P is impressionistic. The judge reached her conclusion that there had been some sexual interference seems to have been derived from, Achieving Best Evidence in Criminal Proceedings Guidance (ABE) interviews taken in September 2014 (more than two years before the final hearing) when T was removed from her home (see citation of paras [8] and [9] above). As far as can be deduced, T was not challenged on her evidence by SF’s advocate (see eg Art 6.3; and eg R v Lubemba  [2014] EWCA (Crim) 2064, [2015] 1 WLR 1579). A criminal conviction would have required this, guaranteed – as need be – by use of special measures (akin to YJCEA 1999 ss 20-28 and under Art 6.3(d)).

Delay

And then there is the delay in disposal of these proceedings. It was over two years before this case came on for hearing; and then it was three and a half years after that before the case on for the appeal.

Delay is an issue which is rarely tested in civil cases, save than abuse of process applications. It will be overridden by any statute barring; but there are no relevant statute-barring provisions in family proceedings. So, other than abuse of process (FPR 2010 r 4.4(1)(b): not a well-ploughed field in family litigation) the scope for explaining delay under Art 6.1 is limited. Most of the cases relate to delays in prosecution; or, in the case of R (Lloyd) v Bow Street Magistrates’ Court [2003] EWHC 2294 (Admin), Div Ct (Dyson LJ and Jackson J), delays in courts and prosecution in dealing with a confiscation order. The Divisional Court saw that theoretically unlimited delay – even where there is no statutory time limit – might hinder a fair trial: “… even though there is no statutory time limit for prosecutions and no obligation to prosecute individual alleged criminals, the law will protect defendants from facing prosecutions after undue delay has occurred” (para [22]).

So said the Divisional Court, it is the fact that a person has done what the court is trying that gives the defendant the right to a trial in a “reasonable time”; and this must apply on a similar basis to a parent in SF’s position (see my italics below):

“[23] … The conduct of the defendant can have no bearing on the question whether he has a right to have proceedings against him in respect of that conduct instituted and determined within a reasonable time. It is common ground that a defendant is entitled to have a substantive criminal charge against him determined within a reasonable time. That right is predicated on the basis that the defendant is alleged to have broken the law by committing a crime. The fact that a defendant is alleged to have committed a crime is plainly not a reason for denying him the right to have the criminal charge determined within a reasonable time. Indeed, the existence of the criminal charge is the very reason why he has the right….”

If local authorities and courts were aware of the reasonable time provisions in Art 6.3 perhaps more care cases would be commenced in time, at least; and if judge’s had to comply, perhaps such time would not be expended as in Re P to secure an authorised version of the final judgment.