Y & K (children) , Re [2003] EWCA Civ 669

Case No B1/2003/0522[2003] EWCA Civ 669
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE WOOD)
Venue Royal Courts of JusticeDate Monday, 7 April 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE HALE
Y & K (CHILDREN)
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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MR N STONOR (instructed by Goldwaters Solicitors, Newcastle-upon-Tyne NE1 3DE and Newcastle-upon-Tyne City Council, Head of Legal Services, Jesmond) appeared on behalf of the Third and Fourth Respondents and the City Council.
MISS DODSON QC (instructed by David Gray of Newcastle-upon-Tyne, NE1 5XU) appeared on behalf of the First Respondent.
The Second Respondent appeared in person.
J U D G M E N T

LORD JUSTICE THORPE:

This

[1]appeal is all about a little girl named T who was born on 7 April 1998. At that stage her mother, KY, had yet to meet AK, so at their date of meeting in the spring of 1999 KY brought with her her one year old baby. Mr K was previously married and had two children by his marriage, but he had separated from his wife shortly before the parties met. Shortly after their meeting he moved in to live with KY and T. It seems that T suffered from vulva vaginitis for which she was referred to a local paediatrician, Dr Bryce, on 20 June 1999. It seems that she was thoroughly upset during her examination at the hospital but she revealed normal genitalia with intact hymen.[2]The child of the parties, C, was born on 22 May 2000, but she plays no significant role in the succeeding story.[3]The parties moved to Newcastle from Scotland when the father secured employment at Newcastle University. In December 2000 T's maternal aunt, Mrs Russell, reported to health visitors and Social Services Department in Newcastle things which she said she had heard T say which caused her anxiety and led her to believe that T's stepfather had been interfering with her genitalia. That resulted in a paediatric examination at the Royal Victoria Infirmary in Newcastle carried out by Dr San Lazaro and her specialist registrar, Dr Drummond. Essentially Dr Drummond was conducting a medical and forensic examination under the supervision of Dr San Lazaro as the very experienced consultant. The medical examination led those two doctors to the conclusion that T had suffered a traumatic genital injury. Shortly thereafter the parents separated, the mother and the children moving to her father's home in Scotland. Almost immediately there was an incident in which T became upset and told her mother that Mr K had hurt her in the bathroom in the genital area. Proceedings in the criminal field were presaged by a charge of indecent assault on 8 February 2001. However those criminal proceedings were discontinued some six weeks later and, accordingly, immediately thereafter supervised contact between the father and the children resumed and the parents renewed their cohabitation. That state of affairs was considered by a case conference in June 2001, at which it was made plain that if the parents continued to cohabit an emergency protection order would be sought. The parents' response was that they would not separate. Proceedings under the Children Act 1989 were immediately commenced with a large number of interim applications and orders made initially in the family proceedings court, and then, at a later stage after transfer, in the county court in Newcastle. During the development of these proceedings the parents, not unnaturally, wished there to be a further medical appraisal of the investigation and findings carried out by Dr Drummond and Dr San Lazaro. Accordingly, in November 2001 leave was given for the parents to release the papers to Dr Evans for an opinion. On 14 February 2002, however, before her opinion was delivered, a childminder, Mrs Jean Thackray, reported that T had again said words indicating that she had been interfered with by her stepfather. There was a further referral to the Royal Victoria Infirmary and on this occasion Dr San Lazaro supervised the examination of another specialist registrar, Dr Rollison. Again the paediatric opinion was that what was observed at that examination indicated a further traumatic injury since the first examination.[4]The development of the case thereafter was much complicated by the termination of libel proceedings that had been brought against the local authority by claimants who asserted that they were the victims of great injustice that originated in paediatrician investigations and opinions offered by Dr San Lazaro. The case culminated with the judgment of Eady J in Lilley and Reed v Newcastle City Council & Others [2002] EWHC 1600 (QB). Eady J's conclusions were extremely damaging to Dr San Lazaro. He criticised her as a consultant paediatrician and he criticised her as a witness within the proceedings.[5]However, Dr Evans' report had been delivered on 8 May and her report, no doubt to the disappointment of the parents, broadly corroborated the opinions formed by Dr San Lazaro and her specialist registrar, and indeed in a number of instances were more strongly expressed.[6]The local authority obviously had to consider the impact of Eady J's findings on the further progress of this and perhaps other cases, and accordingly at a directions hearing before Judge Moir in August they signalled their intention not to rely upon the evidence of Dr San Lazaro at the imminent preliminary fact-finding hearing. In the following month the same judge gave leave to the instruction of Dr Sunderland as a second source of expert opinion. Understandably the parents were not happy with Dr Evans' contribution and urged the instruction of a second expert. It was agreed between the parties that as a matter of mechanics Dr Sunderland would be instructed by the guardian ad litem. There was an expert's meeting between Dr Sunderland and Dr Evans in November, but it proved abortive since they were not supplied with identical material. Equally, there were a number of adjournments of the fixture for the causation hearing and it was possible for Dr Sunderland and Dr Evans to conduct a telephone discussion in January 2003 as a result of which they were in general agreement before the first day of the hearing before His Honour Judge Wood on 21 January. As a matter of record the judge heard evidence over the course some five days, at the end of which he invited the parents to submit that the local authority had not presented a case that required any answer. Submissions in support and opposition were made on the following day and judgment was given on 21 February.[7]Notices of application for permission to appeal the judge's conclusion that the local authority had failed to establish any sort of case were received in the instance of the guardian ad litem on 11 March and in the case of the local authority on 13 March. A paper order was made granting permission on both applications on 26 March for hearing today, 7 April. The challenge in itself called for expedition and it was intended that the parties should have at least a clear week in which to prepare their cases. Unfortunately there was some delay on the part of the Civil Appeals Office in notifying the parties and there is no doubt that both the respondents, and to some extent the appellants, have been put under pressure to be ready for today's hearing. Fortunately Mr Stonor was able to be here to advocate his case and by agreement he also represents the guardian ad litem. Fortunately the mother's solicitor, Mrs Routeledge, who appeared for her in the court below, was able to get public funding for this hearing and was able to secure the services of Miss Dodson QC, who has argued the mother's case fully and persuasively. Mr K has not been so fortunate. His application for public funding, although succeeding on the merits, failed on a means test and accordingly he has had to represent himself today. As I endeavoured to point out I do not regard this as necessarily prejudicial. Essentially both appellants share the same ground, as do both respondents. In such a situation it is usually sufficient if one advocate represents each side of the appeal, and just as Mr Stonor has put the case for both the appellants, so essentially has Miss Dodson put the case for both respondents.[8]I turn then to Mr Stonor's submissions. He essentially presents them in three distinct compartments. First, he criticises the judge generally for, as he would characterise it, treating the split hearing inquiry as something akin to a criminal process in which the prosecution were held to have failed to make a prima facie case. His second and more specific criticism of the judge is in his assessment and rejection of the expert medical evidence. His third criticism is of the judge's rejection of the evidence as to T's several complaints.[9]I take those three in turn. Both counsel have referred us to Re B [1994] 2 FLR 1, and particularly to the judgment of Butler-Sloss LJ in which she gave guidance as to the procedure to be adopted in Children Act proceedings. There is no doubt at all that the guidance that she there offered applies to split trials as well as to any other sort of hearing. But it is equally clear that Butler-Sloss LJ did not have split trials in mind when she offered her broad guide. All that Re B establishes is the breadth of the spectrum of permissible procedures and the generous extent of the judge's discretion in deciding how to proceed in individual cases.[10]But the purpose of a preliminary hearing is to determine what has happened historically and to provide a firm foundation to all parties to prepare their cases for the disposal hearing, the purpose of which is to determine the child's future. The local authority have to base their plans for the future on the crucial judicial findings of fact and equally upon the judge's assessment of adult credibility and reliability. Often there will be hot disputes of fact between the adults in the case. Often there will be hot denials from an adult who is charged with abuse. Local authorities are not in a position to make an assessment of where the truth lies. It is up to judges to perform that task. Here it is said the judge's task is half done. For example, we know what he thought of the mother's sister as a witness of fact, and we know also what he made of her motivation; but we have no assessment of the father's evidence or of his responsibility.[11]The root question in this appeal is: was the judge's decision to terminate the proceedings at the half-way stage a balanced decision and one that fell within the generous ambit of his discretion? In order to decide that question it is necessary to have regard to the manner in which the local authority presented their case to the court. As Mr Stonor said below, the local authority had three strands to the case that they were making. The first strand was the medical evidence, the second strand was the evidence as to what the child said at various times and the third strand lay in the statements of the parents made to different people at different times, within which were proffered statements and explanations which the local authority sought to characterise as either inconsistent or contradictory.[12]What of the medical evidence? A difficulty in the case for the judge was that Dr Sunderland advanced at a comparatively late stage an explanation for signs that had been differently interpreted at the first and second examinations, respectively December 2000 and February 2002. His explanation was that T's hymen could be characterised as a sleeve-type hymen. This hypothesis explained the difficulties of interpretation that other doctors had found and was certainly accepted by Dr Evans as convincing and helpful. It emerged at the end of Dr Evans' evidence on 22 January and led to a final discussion between experts. As a result Dr Evans returned to the witness box to state her final position, having adopted Dr Sunderland's hypothesis. So there can be no doubt as to what these two experts were ultimately telling the judge. As far as Dr Evans was concerned she said of the symptoms of the December 2000 examination and of Dr Sunderland's hypothesis:
"Well it takes matters further, first of all because it medically... I think it is a good explanation of what we are seeing. It was not something which had occurred to me as a way of looking at it, but now it clarifies for me and it suggests that there have been at least two separate episodes of trauma, which cause the depression on each side but at separate times, so we would be looking at one prior to 2000 and then one some time between 2000 and 2002."
Equally, in relation to the second examination, she said:
"... there is a clear difference between the two examinations and the two photographs and I think that the weight of explanation is that there has been further trauma to the hymen."
Dr Sunderland had this advice for the judge:
"... I am looking at trauma, and to give you an indication, it is something the size of an adult finger, I could not tell you it was a finger or a stick, or a... No, I cannot think of anything other than trauma to cause those appearances."
Then towards the end of his evidence he said:
"So we have got normal appearance, the penny dropped when you think you have got a sleeve hymen, now you can understand why it looks normal. It was abnormal and at the end of my evidence I am going to repeatedly stress to you, these photographs do not show a normal hymen. These two sets of photographs are not normal. Whatever explanations we dig around and look about, and I try to be very fair, wracking back through my brain, thinking of all the clinical incidents, anything I have read that would explain this. I come back to you the common thread that runs through this is that this has been trauma but that is a speculation. The evidence is that no time have you got a photograph of a normal hymen."
[13]How did the judge deal with these seemingly clear opinions? First, he plainly relied heavily on the extent to which he regarded Dr San Lazaro as having been diminished by the judgment in the libel case. This emerges at a very early stage of the hearing in his court. The first day was given to the evidence of the social worker, and on the morning of the second day Mr Stonor introduced his first expert witness, Dr Evans. The judge said that he had been spending time re-reading the judgment in the libel case. He made his position more than clear when he said to Mr Stonor:
"I think probably we ought to get on with Dr Evans' evidence but I think in so far as it may help you, Mr Stonor, it seems to me that you have a very uphill task in this case. MR STONOR: Your Honour, so be it. JUDGE WOOD: So if you want to get on with your uphill task well you had better do so."
[14]A further indication of the judge's approach is to be found later in the transcript of the medical evidence, which is the only evidence that has been transcribed for us. When he cross-examined - and that I think is not an unfair description - Dr Drummond as to her evidence that T had presented as a very upset child at the December examination, again the culmination of a passage which takes a page of transcript comes with these two exchanges. The judge:
"Well I am not suggesting you should not note it, of course you should note it, but whether a child is completely silent throughout an examination or weeping throughout an examination does not really tell you anything about child abuse, does it?"
Dr Drummond:
"Well I think experienced paediatricians would disagree and would say that it did. Paediatricians who have worked a lot in child protection issues. I think the presentation of a child does tell you quite a lot."

The judge:

"Well I am sorry to hear you say that. Anyway, those are the only matters I wanted to ask about."
[15]The judge also was seemingly much influenced by two research papers which were put before him. He refers to them in paragraph 14 of his judgment. He summarises their effect as being that legal experts should focus on the child's history as the primary evidence of abuse. Since the judge thought not much of the child's history, he seemingly regarded himself as fortified in rejecting the doctor's interpretation of their findings. But as Mr Stonor has quite rightly pointed out, these research papers had been made available to the experts in advance and had been fully reflected in their opinions.[16]Lastly, the judge seems to have thought that there had been some unfairness in the manner in which the medical evidence had been presented. He said this (paragraph 16):
"The medical evidence in this case is highly unusual. Drs San Lazaro, Drummond Rollison were all called by the local authority Applicant. Dr Evans was, as I understand it, instructed by the Respondents but in the end called by the Local Authority. Dr Sunderland was instructed, again as I understand it, by the Guardian but also called by the local authority. In effect, there was no Defence medical evidence."
[17]That, to my mind, suggests an over-adversarial interpretation. The reality is that by sensible agreement between all the advocates the local authority undertook the task of calling all medical witnesses so that the local authority would be confined to an examination in chief. As a matter of record the judge was wrong to say that Dr San Lazaro had been called by the local authority. The local authority had placed no reliance on her testimony at any time after August 2002. But he seems not to have perceived that it was to the advantage of the respondents that Dr Evans should be called by the Local Authority, since it gave them the opportunity of cross-examining their own expert. Equally it was their proposal that Dr Sunderland should be instructed. Again the arrangement for him to be instructed by the guardian was certainly not in any way to their disadvantage.[18]Finally the judge sought to reject the local authority's case on the ground that these experts were not opining in the way that the experts had been opining in another case of Re B [2002] 2 FLR. The judge said:
"It is undoubtedly a rare event for a Court to fail to accept the positive findings of highly experienced experts such as them, and I am certainly mindful of the observations, again in the case of Re B in 2002. However, the facts of this case are wholly different from Re B because in that case there was no question of anybody challenging, as it were, the raw materials. B's medical condition and his symptoms were clear and agreed by all the medical experts. All that was in dispute was the question of interpretation."
[19]That reasoning is in my view rightly attacked by Mr Stonor in his skeleton argument. He says that whatever deficiencies there may have been in the raw materials all those deficiencies had been considered by the experts, not only in their written reports and in their meetings, but also in their oral evidence. Despite whatever shortcomings there may have been in primary material, both experts were in complete agreement as to what interpretation could finally be drawn from it. It was a matter for medical analysis and interpretation.[20]I find that submission completely persuasive. I also note that when the judge sought to question Dr Sunderland at the end of his evidence the judge sought to press him with the deficiencies in the working materials in the case. Dr Sunderland would have none of it. He said that the photographs were quite consistent with the sort of photographs he got from other places and that his own unit produced. He recognised that the sleeve hymen hypothesis was late in emerging and he accepted full responsibility for that, which he characterised as his own mistake. But he made it quite clear that although the clinical diagrams had to be taken with caution, there was a consistent thread all through. So I am in no doubt at all that the judge was wrong to reject the agreed opinion of Dr Evans and Dr Sunderland. It simply was not open to him to reject expert medical evidence which was cogent and which necessarily reviewed some extremely difficult areas of paediatric medicine, upon which a measure of disagreement and speculation is not uncommon.[21]I now come to Mr Stonor's third criticism, which is the judge's dismissal of what is loosely described as the disclosure evidence. The judge was extremely critical of Mrs Russel, and Mr Stonor has not for a moment challenged that assessment, but he has pointed out that the judge was plainly in error in his dismissal of the contribution of the childminder, Mrs Thackray. He seems to have fallen into error in linking Mrs Thackray with another reporter, a Mrs Rowntree. He simply said:
"As for the final alleged disclosures by Jean Thackray or Maureen Rowntree, I found those frankly to be bordering upon the absurd."
He then explained what he meant by reference only to the evidence of Maureen Rowntree. So it is quite impossible to see any valid ground upon which the judge could have characterised Mrs Thackray's evidence as bordering on the absurd. His conclusion in this area seems to me to be open to obvious criticism. He said:
"Looking at these alleged disclosures as a whole, I have to remember that they emanate entirely from a two or three year old child, apparently one with poor verbal skills according to Dr San Lazaro. There are no memorandum interviews of the child. There are no videos, and two different Police Forces have declined to take any further action, even with the benefit of the medical evidence as well. These are serious allegations; they may well have resulted in a custodial sentence, and therefore... the Applicants must produce strong and cogent evidence. Cogent means compelling or convincing. I have no hesitation in concluding that I do not find these alleged disclosures either compelling or convincing. They are, in my judgment, manifestly unreliable."
[22]That seems to me to be a questionable analysis of the evidence. Of course due allowance must be made for the age of the child and the circumstances in which the words are recorded and the possibility of prejudgment in the case of the listeners. But these sort of statements have to be taken in their totality, and looked at in their totality, the individual statements indicate a pattern which simply cannot be dismissed as giving rise to no sort of concerns. They constitute an area of concern independent of the concern created by the medical observations and interpretations and it plainly called for proper investigation and assessment.[23]Mr Stonor's third strand at trial, namely the various statements of the parents at different times, was never reached, but there were areas here that equally demanded careful assessment. The mother had filed a position statement in preparation for the case, in which she had said:
"... T suffered a penetrative injury to her hymen which was evident when T was examined on 15th December 2000. The extent of that penetrative injury is unclear from the medical evidence currently available."
In relation to the later examination, the position statement having been filed before the meeting of the two experts, the mother's position was reserved first respondent's position.[24]As Miss Dodson has pointed out, by the time final written submissions were presented to the judge on 21 February the concession in relation to the findings on 15 December 2000 had been withdrawn. Those were areas that required investigation. Equally, the father's responsibility and his various statements of self-exoneration did require judicial assessment. I do not take much comfort from what was seemingly the basis of the judge's confidence when he concluded his judgment by saying:
"I also would like to say that my conclusions in this case are also supported by the fact that in spite of all that has occurred between this mother and father they are still together, still supporting each other and still wish to bring up these two children in the future. They are supported in that at least by the father's parents, who have stood by them both resolutely throughout."
That, I am afraid, might be said in many of the cases involving possible abuse of children that come for investigation.[25]In the end my only conclusion is that the essential task of the judge at a causation trial has not been sufficiently or properly conducted. My only concern is when this case comes from retrial, as it must, some advantage will be taken of the six days that have already been invested and it will be possible for the parties to agree an approach that will allow the retrial to be conducted economically, and hopefully in less time than the court devoted to the uncompleted task.[26]For all those reasons I would allow this appeal.[27]Before concluding judgment, I would like to express my gratitude to my Lady who has pointed out that an ill-considered remark of mine in a judgment in yet another case of Re B [2002] 2 FLR 1133 led Mr Stonor in the court below to concede that he was not entitled to insist on either parent giving evidence. The point was not directly raised in Re B and was certainly not argued, and the observation on my part, to the effect that parents at split hearings were perfectly free to give evidence or not as they saw fit, was unguarded. My Lady has during, the course of argument, demonstrated the falsity of that proposition and I would only say in advance that I entirely agree with all her criticisms and with the conclusion that she is to reach on that point.

LADY JUSTICE HALE: An application for a care or supervision order under section 31 of the Children Act 1989 is a single application encompassing first, the finding of the necessary facts; second, applying judgment as to whether the court is satisfied that the threshold criteria in section 31(2) of the Act are made out, and third, the exercise of discretion as to what will be in the best interests of the child.

[29]The issues can be taken in stages. The advantages of doing so are that it can nip unwarranted intervention in the bud, or, on the other hand, that further assessments can be conducted on firm a foundation of fact: see Re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773. But split hearings do have their disadvantages. The main one amply demonstrated in this case is delay. There can also be problems in ensuring that the same judge hears all parts of what is a part-heard case.[30]Another more subtle disadvantage is that it can produce an impression that the fact-finding exercise is akin to that of a criminal trial. In a criminal trial, of course, the defendant is a competent witness in his own defence, but he is not compellable. Care proceedings, however, are civil proceedings in every respect; and indeed they are designed to be an objective inquiry into the condition and future of the child: see for example, Re L (A Minor) (Police Investigation:Privilege) [1997] AC 16, HL.[31]Even in civil proceedings it used to be (a very long time ago) that the parties were not competent witnesses. But that was abrogated in civil proceedings by section 2 of the Evidence Act 1851. The general principle is that all competent witnesses are also compellable witnesses. This is set out in Phipson on Evidence (15th Ed) 2000 at paragraph 8-15:
"All witnesses competent to give evidence are in general compellable to do so. Refusal to be sworn when compellable, or, after being sworn refusal to answer an admissible question, is a contempt of court."
There are some exceptions, but none of those listed in Phipson apply, although there remains a residual discretion in the court to refuse to compel a compellable witness if to do so would be a fishing exercise, speculation or oppression. This will rarely be the case in care proceedings where the parents' explanations of what has happened to their child are usually an important factor in understanding the case.[32]What reason then is there to think anything to the contrary? Generally, of course, a witness in civil proceedings may refuse to answer a particular question on the ground that the answer may incriminate him. But this privilege against self-incrimination is expressly dealt with by the Children Act 1989, section 98(1):
"In any proceedings in which a court is hearing an application for an order under Part IV or V, 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."
[33]The counter-balance to this abrogation of the privilege against self-incrimination is that the answers cannot be used in criminal proceedings: see section 98(2). This caters for the problem encountered Saunders v United Kingdom (1996) 23 EHRR. The only other indication to the contrary were the dicta of my Lord in Re B (Non-Accidental Injury) [2002] EWCH Civ 752, 2 FLR 1133 and 3 FCR 58 at paragraph 7. But it is clear, as he has confirmed today, that that was a "by-the-way" remark, not addressed to any issue in that particular case, for it was not argued before the court and there was no reference to section 98 which would of course have clarified matters.[34]I note that the Law Commission in the recent informal Consultation Paper of the Criminal Law Team on Successfully Prosecuting Cases of Non-accidental Death or Serious Injury of Children, published 19 December 2002, stated in paragraph 3.19:
"In addition it seems likely that a judge hearing civil proceedings can compel a person to explain the circumstances in which a child has been injured."
Then, after a reference to Re B in paragraph 3.20, they go on in paragraph 3.21 to quote the contrary decision of Miss Elizabeth Lawson QC in Re M (Disclosure: PoliceInvestigation) [2002] 1 FCR 655, in which she had in fact compelled a mother to give evidence in the case.[35]We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.[36]Having said all this, it is of course a completely separate question from whether it is appropriate to halt the inquiry before it has been completed. For all the reasons given by my Lord, I agree that this was a completely inappropriate case in which to do that and I am glad to record that had the case proceeded further it was the intention of both parents to give evidence before the court, and it has not been sought to be argued on their behalf today that they could not have been compelled to do so.[37]For those reasons I agree this appeal must be allowed. (Appeal granted; remitted for trial by a section 9 judge or a circuit judge nominated by the liaison judge; no order for costs).

Cited in 9 later judgments