North Yorkshire County Council v Swift & Anor [2005] EWCA Civ 316

Case No B4/2004/1558[2005] EWCA Civ 316
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE HOLMAN)
Venue Royal Courts of JusticeDate Thursday, 10 February 2005
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE POTTER
LORD JUSTICE WALL
Between
NORTH YORKSHIRE COUNTY COUNCILAppellant-v-
Between
NEIL SWIFTRespondentSUZANNE SWIFTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MRS SALLY BRADLEY QC AND MRS SUE TAYLOR (instructed by Head of Legal Services, North Yorkshire, DL7 8AD) appeared for AppellantMISS R RANDHAWA (instructed by Messrs Berwins, North Yorkshire HG1 5PA) appeared on of behalf the Respondent
J U D G M E N TMonday, 10 February 2005

LORD JUSTICE THORPE:

[1]The North Yorkshire County Court issued care proceedings in relation to a little girl born on 1 April 2003 to parents who are not represented before us today, save that the father appears by Mrs Randhawa. The Local Authority issued proceedings because in the past there was strong evidence that the father had sexually abused a boy aged between 3 and 5 in the 1980s, and separate evidence that he had sexually abused a 15-year old girl in the mid-1990s. Only those past events founded the Local Authority's application. If they were not established to the judge's satisfaction at the preliminary fact-finding hearing, the inevitable consequence would be the dismissal of the care order application. Thus the preliminary issue at trial was one of fundamental importance to the Local Authority, and of course to the father, who had successfully defended criminal proceedings in relation to one of those episodes.[2]The trial took place before Holman J in York and concluded on 8 July 2004. Mrs Bradley QC and Mrs Taylor appeared for the Local Authority. Mrs Hildyard QC and Mrs Randhawa appeared for the father. The mother and the guardian ad litem were separately represented. The judge delivered a characteristically full and careful judgment running to some 96 paragraphs. He considered first, the allegations in relation the abuse in the 1980s. In his judgment he expressed his favourable assessment of the evidence given, not only in the witness box but also in an earlier video-recorded interview, by the victim. At paragraph 43 he considered favourably the evidence of the child's mother, who he held to be generally sincere and honest as a witness, doing her best to be truthful. Then he considered separately the evidence of the father in relation to this chapter of his life. He said that he had formed the impression that father was a man of good intelligence, somewhat unusually detached and rather precise in manner, but not shown by cross-examination to have been lying or unreliable in any material respect. The judge in the following paragraph posed for himself the resultant dilemma, saying:
"I am thus faced with a clash between the word and evidence of D, repeated now on several occasions, and the word and evidence of [the father]. I have described the demeanour of D in the witness box as giving the impression of being genuine and as having appropriate affect. I have described [the father's] demeanour in a little more detail, but have said, after due consideration, that his denials seemed apparently convincing. There is no evidence independently to support or corroborate D's accounts. Is it sufficiently reliable to satisfy the burden and standard of proof that I have described?"
[3]The judge answered that question by considering in detail four aspects advanced by Mrs Bradley and six aspects advanced by Mrs Hildyard. He then expressed his conclusion to the effect that four of the reasons advanced by Mrs Hildyard in combination cast real doubt on the reliability of D's evidence and accounts. He then said:
"These factors, in combination, have led me to conclude that ... I cannot be and am not judicially satisfied on a balance of probabilities that D's allegations are true or contain a core of truth. The evidence is not sufficiently reliable to outweigh [the fathers'] apparently convincing denials."
[4]The judge then proceeded to consider the allegations in relation to the later chapter in the fathers' life. In much the same way he validated the evidence of the victim's mother (since the victim herself did not give evidence) and again repeated that he found the evidence of the father convincing in its denial. He posed the same question for himself as before and then, relatively briefly in the following paragraphs, explained two reasons why he could not attach to the evidence of accusation sufficient dependability to outweigh the fathers' denials. Accordingly, in conclusion, he said:
"As in the case of D's allegations, these factors in combination have led me to conclude that, taking T's case in isolation, I cannot be and am not judicially satisfied on a balance of probabilities that T's allegations are true or contain a core of truth. Again, the evidence simply is not sufficiently reliable."

The judge stated his overall conclusion in paragraph 92 of his judgment thus:

"In the result, I have concluded that I cannot be, and am not, judicially satisfied on a balance of probabilities that [the father] abused [either child]. Accordingly, I cannot and do not make any of the 'findings sought by the Local Authority' in paragraph 10 of Mrs Bradley's 'case summary'."
That might have been the end of judgment. However,

the judge then added four further paragraphs, the first three of which read as follows:

"93. I wish, however, to say a few words in elaboration of that conclusion. As a matter of law, the onus of proof is on the Local Authority. They have not discharged it. It has to follow as a matter of law that in any future dealings between any of these particular parties (ie this Local Authority, these parents, and subject to precise application of the rules of res judicata, M and her guardian) any court and also the parties themselves, must proceed on the basis that the alleged abuse did not happen. The consequence of something not being proved to have happened and positive proof that it did not happen, has the same legal effect. 94. Nevertheless, in this case I have not stated or held that I am positively satisfied that [the father] did not abuse either D or T. I have not held, or concluded, or stated that DM is lying (although I have held on a balance of probabilities that he is wrong about when he first told his mother). I have not held that T was lying. I hope that that can be explained to DM and to Mrs N. 95. Further, I have no doubt at all that the grounds for suspicion in this case were and are very high. The Local Authority were absolutely right to commence these proceedings and to bring them to full investigation and conclusion. But for the future, they and any court must proceed on the basis of my conclusions, unless, of course, some significant new evidence were to emerge."
[5]The Local Authority were disappointed and perplexed by this outcome, and particularly by the judge's words in elaboration. Accordingly, they sought permission to appeal and, at an oral hearing on 2 December, they failed to persuade the court that they had reasonable prospects of upsetting the judge's primary conclusion that neither charge had been proved to the requisite standard. However, Mrs Bradley took away from the hearing permission to appeal the statements of principle and law contained in paragraphs 93 to 96 of the judgment.[6]In preparation for this hearing, Mrs Bradley has submitted two skeletons. The first in paragraphs 15 and 16 summarises her substantial case. She says that the difficulty which the Local Authority now encounters is that there is nothing within Holman J's judgment which enables them with any confidence to depart from their original view that the father poses a risk to especially vulnerable children. She adds that Holman J had effectively directed the local authority to proceed on the basis that the abuse had not happened, and that such a direction would strike at the heart of their wide-ranging duties and responsibilities to children in need of protection.[7]In her supplemental skeleton, Mrs Bradley identifies with greater particularity the areas where she asserts that her client's position is compromised if they remain obliged to treat the father as not posing a risk to children. She drew attention to the obligations that the Local Authority hold under the Department of Health guidance Working Together to Safeguard Children, originally published in 1999 and since periodically revised. This Guidance has been issued under section 7 of the Local Authorities Social Security Act 1975, a section which requires local authorities in their social service functions to act under the general guidance of the Secretary of State. Accordingly, the Guidance does not have the full force of statute, but must be complied with, unless local circumstances indicate exceptional reasons justifying departure.[8]The requirements of the Guidance include a duty to establish and maintain a register of children at risk or in need of protection. Equally, the Guidance requires the setting up of an Area Child Protection Conference, and it is an obligation of the Conference to determine which children should be entered on the Register. Mrs Bradley has shown us those obligations arising under paragraphs 5.99 to 5.104 and under paragraph 5.64 to 5.68. Additionally, the conference is to produce a protocol governing the working of the Conference in the particular area, and Mrs Bradley has produced for us the protocol which has been adopted by the North Yorkshire Area Child Protection Conference. It is a lengthy document, meticulously recording the functions and duties of the Conference.[9]So, says Mrs Bradley, it is vital that the Local Authority should continue to offer protection to this very young girl who they believe to be at risk. To that end she has been entered on the Child Protection Register since 13 November 2003 and those entries have been regularly renewed on decisions of case conferences called to review her individual case. Those reviews take place regularly and at least once every six months. A decision was taken on 6 December 2004 to maintain her name on the Register and the next conference is fixed to take place on 14 March 2005.[10]The next area highlighted by Mrs Bradley is the obligations on the Local Authority arising under recommendation 16 of Lord Laming's report at the conclusion of the Climbié Inquiry. She shows that that recommendation has resulted in the publication of a Government guide entitled "What to do if you are worried a child is being abused". Mrs Bradley points to page 43 of that guide which deals with information sharing.[11]Mrs Bradley then drew our attention to a protocol which is for use in relation to individuals who have not committed an offence and who are therefore not covered by the multi-agency public protection arrangements. The protocol is for agencies with criminal justice public protection and child protection responsibilities and required them to hold meetings and share information. Mrs Bradley points out that her client's obligations under the protocol must extend to the respondent father.[12]Finally, she points to statutory duties arising under sections 43 and 47 of the Children Act 1989.[13]Section 43 enables a Local Authority to apply to the court for an assessment order if:
"it is satisfied that - (a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm."
I do not myself find that a particularly relevant reference, given that the ambits of the Local Authority's responsibility is only to take a decision whether or not to apply under that section. The determination of any such application would remain with the court and, as my Lord, Wall LJ, has pointed out, this is one of the few unvisited provisions of the statute.[14]Much more relevant, in my opinion, is Mrs Bradley citation of section 47, which does impose on a Local Authority a duty to investigate:
"47.(1) Where a local authority — (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare."
[15]As to authority, Mrs Bradley relies upon the decision in Re S (Sexual Abuse Allegations: Local Authority Response [2001] 2 FLR 776. That is a case of some relevance in that Scott Baker J had to consider the ambit of a Local Authority's duties in the aftermath of a failed criminal trial.[16]The skeleton argument from Mrs Randhawa in response filed some ten days ago challenged the Local Authority's rights and responsibilities under section 47. She asserted that the failure by the Local Authority to establish the threshold criteria to the required standard of proof has the consequence of preventing the Local Authority proceeding in the future on the basis that the father poses a risk of sexual harm to this young child. Mrs Randhawa relied upon passages from the judgment of Butler-Sloss LJ in Re M and R(Child abuse: Evidence) [1996] 2 FLR 195, and from the speech of Lord Nicholls in Re H and R (Child sexual abuse: Standard of Proof) [1996] 1 FLR 80.[17]However, having heard Mrs Bradley's submissions - and perhaps this is a position that Mrs Randhawa had reached some time prior to hearing Mrs Bradley - she readily conceded that the Local Authority were lawfully maintaining the child's entry on the Child Protection Register. She equally conceded that the Local Authority had a continuing obligation under section 47(1)(b) to make inquiries for the continuing protection of the child in the exercise of their discretion.[18]In reality, it seems to me that each of the parties to this appeal has a fundamental dissatisfaction with the judgment of Holman J which they seek to resolve. Mrs Bradley says, on instructions, that, despite the outcome on 8 July 2004, the Local Authority would wish to intervene to limit or prevent contact between the father and his child. That, manifestly, is something that they cannot possibly achieve lawfully. Equally, Mrs Randhawa says that her client would wish to see dispelled at once and for all time the cloud of suspicion that continues to hang over him at the conclusion of the hearing before Holman J. That again is an unachievable aim. It seems to me that the correct position is relatively simply stated. In my judgment, the rule of law stated by Holman J in paragraph 93 of his judgment is unsustainable. Of course the authorities which Mrs Randhawa has cited establish beyond doubt that a threshold application will not succeed if founded only on suspicion. Therefore the Local Authority cannot cross the section 31 threshold in this case by reliance on the historic episodes unless, as Holman J himself recognised, some significant fresh evidence were to materialise.[19]However none of that impacts upon the Local Authority's powers, duties and responsibilities in relation to child protection beyond the bounds of applications for care or supervision orders that cannot advance without first clearing the section 31 hurdle. So manifestly the Local Authority has a continuing responsibility and continuing powers to protect this child in whatever way seems to them necessary and which is within their lawful remit. That, of course, as is conceded by Mrs Randhawa, includes the use of the Area Child Protection Conference and Register, and includes the section 47(1)(b) duty.[20]The just disposal of the present appeal is, in my opinion, achieved simply by striking from the judgment below the paragraph that contains the unsustainable statement of law, namely, paragraph 93. In fairness to Holman J, I suspect that if the arguments that have been addressed to us had been laid before him in York he would have made it plain that the boundary that he drew was the res judicata boundary in relation to possible future legal proceedings and did not extend to the Local Authority's other responsibilities and duties for the protection of the child.[21]I only add by way of footnote, that the existing Area Child Protection Conferences are shortly to be replaced by Local Safeguarding of Children Boards which will have a statutory foundation.

LORD JUSTICE POTTER: I agree. The judge's judgment in relation to the issues canvassed before him, namely, whether or not the Local Authority had proved the two incidents of abuse alleged to have occurred years before, was painstaking, careful, and decided by reference to the burden of proof applicable in such cases as stated by Lord Nicholls in Re H.

[23]The judge concluded that, despite what he called the "very high grounds of suspicion" which existed, the burden had not been satisfied. Unfortunately, he went on to make the observations set out in paragraph 93 and already quoted by Thorpe LJ. Not surprisingly, this gave rise to concern on the part of the Local Authority, and indeed on the part of this court when granting leave to appeal in respect of such remarks, in three respects. First, it appeared to be effectively propounding a doctrine of res judicata of the type encountered in inter partes civil litigation as applicable in any future proceedings which might arise between the Local Authority and the parents in relation to the question whether or not allegations of abuse by the father had been made out. That does not follow. If at some time in the future matters arose by way of additional evidence or something of that kind, it would plainly be right for the Local Authority to revisit the matter. Second, it appeared to indicate that, should the Local Authority in the future seek to take further proceedings under the Children Act in any case where they are entitled to proceed on the basis of reasonable suspicion, they would be bound by the judge's earlier findings. Third, it appeared to raise questions as to the propriety of the Local Authority's retaining the father's name on the Child Safety Register.[24]None of these conclusions would properly have followed as a result of the decision of the judge on the narrow questions before him. First, as the judge appeared to recognise at paragraph 95 of his judgment, should it emerge in the course of the Local Authority's continuing statutory duties in respect of children that there was good reason to revisit the question of abuse in the light of new evidence coming to light, no doctrine of estoppel, or its equivalent, would be appropriate to preclude all the necessary further inquiries and any proceedings thought appropriate.[25]Second, this was a case where under the provisions of the Children Act, the Local Authority was required or permitted to act on the basis of reasonable belief or cause for suspicion, which standard, as the judge expressly recognised, had been satisfied at the outset of these proceedings although on consideration of all the evidence the threshold could not be established. If further events renew cause for suspicion of past abuse on the part of the father, the Local Authority would again be obliged to act, to reconsider the findings of the court in the light of the new evidence and, if necessary, to invite a future court itself to reconsider them.[26]Third, as conceded by counsel for the respondent, and as made clear by Thorpe LJ, the criteria on which the Local Authority acts in respect of maintaining names on the Child Protection Register are governed by a self-contained code set out in the guidance "Working Together to Save Children" issued under the authority of section 7 of the Local Authority Social Services Act 1970.[27]For those additional reasons, as well as the reasons set out in the judgment of Thorpe LJ, I agree with his conclusions.

LORD JUSTICE WALL: I also agree. The question raised by this appeal is: what is the effect of a judge's inability to make findings in care proceedings sufficient to satisfy the threshold criteria under section 31 of the Children Act on the Local Authority's future child protection responsibilities in relation to the child in question? The Local Authority remains concerned about the child's welfare, but finds itself in a dilemma as a consequence of the judge's remarks in paragraph 93 of the judgment which my Lord has identified.

[29]Mrs Bradley invites us to give guidance to this Local Authority, and others, as to the extent to which they can justify on-going familial intervention without a finding which crosses the section 31 threshold. Attractively as that argument was presented, it is not an invitation which I feel able to accept. It is I think sufficient for Mrs Bradley's purposes for this court to observe that in the instant case the judge:(1) thought the Local Authority was "absolutely right" to commence the proceedings and bring them to full investigation and conclusion;(2) recognised that the grounds of suspicion "were and are" very high; and(3) that whilst he did not find the allegations established, he had not held that either complainant was lying.[30]Against that background, it seems to me entirely open for the Local Authority to continue to exercise its duties under section 47(1)(b) of the Children Act which my Lord has already read and which I will not repeat. Section 47 is about child protection, and the threshold which triggers the duties of a local authority to investigate are, for obvious reasons, lower than those which entitle a court to place a child in care. The Local Authority accordingly is entitled on the facts of this case to have "reasonable cause to suspect" that the child is likely to suffer significant harm and to take appropriate steps both to investigate further into her circumstances and to monitor her well-being. This, in my view, includes her name remaining on the Child Protection Register.[31]The actual steps which a Local Authority takes are of course a matter for the professional judgment of that Local Authority within the regulations, Acts and guidelines which govern local authorities duties and responsibilities in this area of the law. If these Acts, regulations and guidelines do not give local authorities sufficient powers to protect children in these positions that, it seems to me, is a matter for Parliament and not for the courts.[32]For these reasons, therefore, which are in form very similar to those of my Lords, I also agree that this appeal should be disposed of by paragraph 93 of the judge's judgment being excised from it. (Appeal allowed to the limited extent of removing from the judgment paragraph 93; no order for costs).