W (Children) [2008] EWCA Civ 558

Case No B4/2008/0194[2008] EWCA Civ 558
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(HER HONOUR JUDGE PARRY)
LOWER COURT No: SA07C00445
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 22 nd April 2008
Before
LORD JUSTICE THORPELORD JUSTICE WILSONMR JUSTICE CHARLES
IN THE MATTER OF W (CHILDREN)
(DAR Transcript of
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Mr Mark Powell QC and Miss Rhian Kirby (instructed by Messrs Graham John & Partners, Swansea) appeared on behalf of the Applicant“Grandfather”.
Miss Elizabeth Harris (instructed by Neath and Port Talbot County Council) appeared on behalf of the First Respondent, the local authority.
The Second Respondent, the mother, and Third Respondent, the father of the two younger children, did not take part and were not represented.
Mr Michael Keehan QC and Mr Rhys Jone s (instructed by Messrs Cameron Jones Hussell & Howe) appeared on behalf of the Fourth and Fifth Respondents, the children by their Guardian.
Judgment
[1]A grandfather (as it will be convenient to describe him even though in relation to two of the four relevant children he is only a step-grandfather) applies for permission to appeal against certain findings of fact made by Her Honour Judge Parry in the Swansea County Court on 8 January 2008. The findings were made at the end of a fact-finding hearing which had proceeded for six days in December 2007. The hearing took place in the course of care proceedings launched by Neath and Port Talbot County Council (“the local authority”). The judge’s consideration of the threshold to the making of care orders set by s.31 of the Children Act 1989 and her proper disposal of the application in the interests of the two children who are the direct subject of the proceedings both remain for her future consideration. In this proposed appeal the grandfather complains that the judge was not entitled on the evidence to make findings against him of sexual misconduct in relation to those two children.[2]In this proposed appeal the local authority are the first respondent and oppose the grandfather’s application. The mother of all four children is the second respondent and she takes no part in today’s application. The father of the two younger children who are the direct subject of the proceedings is the third respondent and he also takes no part in it. I point out -- without intending any criticism of them or their legal advisers -- that they have not even indicated in writing to the court whether they support or oppose the application. They appear to be entirely neutral about it. The two younger children are of course the fourth and fifth respondents, represented by their Children’s Guardian, and, like the local authority, they oppose today’s application.[3]This hearing arises because, when considering the application on paper, Wall L.J. adjourned it for consideration at a hearing, on notice to the respondents and on the basis that, were permission granted, the substantive appeal would be heard forthwith.[4]The four children are E, a girl, who was born on 31 January 1990 and so was still, just, a child at the time of the hearing but is now aged 18; S, a boy, who was born on 6 April 1993 and so is now aged 15; A, a girl, who was born on 18 November 1996 and so is now aged 11; and C, a girl, who was born on 27 December 1997 and so is now aged ten.[5]The father of E and S is the mother’s former husband, Mr S. The father of A and C is her present husband, Mr W. The local authority’s application is that care orders should be made in relation to A and C; and they have remained in interim foster care since the inception of the proceedings in June 2007. The grandfather is the father of Mr W and thus he is the full grandfather of A and C and the step-grandfather of E and S.[6]It is a relevant part of the background to the enquiry to note that both the mother’s home during her childhood, Mr W’s home during his childhood and the home created by the mother with the children are all homes in which it is clear that there has been, to some extent, a culture of sexual abuse or at least an absence of conventional sexual boundaries. I mention this not because the judge considered, or that I consider, that it in any way adds to the evidence which led the judge to make the findings against the grandfather. Such a culture may as easily enable false allegations of sexual abuse to be bandied about as otherwise. Nevertheless it is on any view an arresting feature that in her statement the mother states her belief that her maternal grandfather was also her father; and that a brother of Mr W, namely R, with whom Mr W grew up, is accepted to have had sexual relations with their mother and, when aged 19, to have been convicted of a Schedule 1 offence.[7]In her written reserved judgment, which proceeds for 69 paragraphs over 34 pages, the judge had to pick her way through a large number of allegations placed before her by the local authority of sexual abuse of the most serious kind made principally against the grandfather but also against Mr W. At first sight, subject of course to the various assaults upon her reasoning made by Mr Powell QC on behalf of the grandfather in this application, the judge appears to have picked her way through it all with meticulous care.[8]The allegations in respect of E were that Mr W had raped her on six occasions and that the grandfather had raped her on one occasion. Curiously the only witness in support of the allegation against the grandfather was S; E herself disavowed it. These allegations had been the subject of criminal charges against Mr W and the grandfather; and in September and November 2007 respectively, in the Swansea Crown Court, the father and grandfather had been acquitted of them. In her enquiry, of course conducted by reference to the different standard of proof, the judge found not that E had fabricated her allegations against Mr W but that they were not proved to the requisite standard.[9]The allegations of abuse in respect of the three younger children were made only against the grandfather.[10]The allegations in respect of S were first that in 1999/2000 the grandfather had anally raped him on various occasions, albeit that during his oral evidence to the judge S reduced the allegation to one occasion. In the criminal proceedings the grandfather had been acquitted of all such charges. Equally the judge in the present proceedings found the reduced allegation untrue. Indeed she found that S had fabricated it.[11]But there were other allegations against the grandfather in respect of S. Mr Powell tells us that these other allegations were that on numerous occasions in 1999/2000 the grandfather pulled S’s trousers down, played with S’s penis and encouraged S to suck his penis. I have used the words “Mr Powell tells us” because in her judgment the judge did not expressly address these other allegations referable to S. She did, however, address an allegation that on one occasion during that period the grandfather indecently touched S by putting his hands down S’s trousers. This allegation she found proved. Indeed, in her formal order dated 7 January 2008, she recorded her finding that the grandfather “touched indecently” S between 1999 and 2000. I regard it as clear from the content of her judgment, as is also the understanding of Mr Powell, that she was finding established one incident during that time when the grandfather had put his hands down inside S’s trousers. Part of the proposed appeal is against this finding: it is Mr Powell’s submission that on the evidence the judge was not entitled to reach it.[12]The allegations in respect of A related to two consecutive days in late August 2006. They were to the effect that, on the first, the grandfather had pulled down her shorts, which were combined with a skirt and which are therefore apparently called skorts, and looked at her knickers and that, on the second, he had not done anything to her but had stated something indecent to her, namely that he wished to give her a proper kiss and to look at her underwear. These allegations had been contained within the criminal charges brought against the grandfather, of which he had been acquitted. But they were found by the judge to be established; and the other part of the proposed appeal is a challenge to the judge’s entitlement, on the evidence, to find them to be established.[13]The allegations in respect of C were that on two occasions in late August 2006 the grandfather had attempted to pull down her trousers. These allegations had also been part of the criminal charges brought against the grandfather, of which he had been acquitted. Furthermore in the present proceedings the judge found them not proved.[14]In my view it is not without relevance that the judge conducted an intricate sifting of the evidence referable to all the various allegations and, as I have indicated, found that the most serious allegations made against Mr W and the grandfather were not proved. Mr Powell is unable to mount -- and he does not seek to mount -- a suggestion that the judge brought other than a careful and critical eye to all the allegations placed before her by the local authority; in no way can she be said to have despatched them either lightly or quickly or compendiously. Nor is it is said that her analysis of the requisite standard of proof, illumined in particular by the classic passage in the speech of Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563 at 596, which she quoted, was other then exemplary.[15]From what sources came the main elements which the judge had to weigh? The oral evidence came in particular from the mother, Mr W, the grandfather, Mr S and three other adults. In relation to evidence from the children themselves, the fact was that, although the police and the local authority had been concerned about the relevant families for some time, the investigations in both courts had in effect been precipitated by a visit by S to the police on 2 September 2006, following which, on that day, both S and E had been the subject of videotaped interviews. The judge in the present proceedings had transcripts of those two interviews and she viewed the recordings of them. On 3 September, i.e. the following day, the police had conducted videotaped interviews with A and C; and, again, the judge had transcripts of those interviews and viewed the recordings of them, from which she could study how in every dimension of reality the interviews had proceeded. Furthermore, in the criminal proceedings against Mr W and the grandfather, all four children had given live evidence to the jury by video-link. The judge in the present proceedings had a transcript of their oral evidence, thus including their answers to cross-examination delivered to them on behalf of Mr W and the grandfather respectively. Furthermore, in the proceedings before her, E and S again gave evidence by video-link and so were subject to cross-examination delivered by Mr Powell; so the judge had the benefit of studying them by video as they gave evidence while she listened to their answers.[16]A and C, by contrast, did not give oral evidence, even by video-link, to the judge. On 28 November 2007, namely five days prior to the start of the fact-finding hearing, Mr Powell had applied on notice to the judge for a direction that A and C should give evidence by video-link. The judge refused the application and there was no appeal against it. We have a transcript of the judge’s interlocutory judgment given on that day. By reference, in particular, to the decision of this court in LM v. Medway Council[2007] 1 FLR 1698, the judge directed herself that it was unusual for the court in care proceedings to receive evidence directly from children; she reminded herself that A and C had very recently given evidence to the criminal court, in which they had been cross-examined, with the result that she had the benefit of a transcript of the testing of their evidence which had then been conducted by counsel for the grandfather; but she accepted that in her substantive judgment she would have to remind herself that the hearsay evidence of the children given in the police interviews had not been the subject of further testing in the manner which Mr Powell might have favoured; and that, as a result, it might be that their evidence should carry less weight than if that facility had been afforded to him.[17]In this proposed appeal Mr Powell has put his written arguments under five headings; and in oral argument today in effect he adds a sixth.[18]First, Mr Powell argues that, indeed, his inability to cross-examine A so weakened her hearsay evidence that it should have precluded the judge from finding that the grandfather had on that first day in August 2006 pulled down A’s skorts and on the second day made the indecent statement to which I have referred. But the judge reminded herself in clear terms of the handicap under which, by her interlocutory judgment, she had placed the grandfather and of the potential weakening of the value of A’s evidence. I have to say that in my view, as in that of the judge, Mr Powell’s complaint in that regard is much lessened by the fact that different counsel appearing for the grandfather in the criminal proceedings a month earlier had had the facility to cross-examine A; and that, at any rate on paper, the judge in the present proceedings had had the advantage of weighing the upshot of it. I do not follow why, as Mr Powell contends, the line of his cross-examination of A would have been very different from that adopted by his colleague in the Crown Court; and, when in oral argument today I pressed Mr Powell to explain that point, I have to say, with great respect to him, that I found his response entirely unconvincing. Mr Powell also alights upon the comment of the judge in the present proceedings that some of the cross-examination of A in the criminal trial had had the “potential to confuse” A; and Mr Powell submits that, had he had the facility to question A, he might have been able to unravel any such confusion, in particular, so he says, with the effect of exposing the falsity of her evidence.[19]Second, Mr Powell complains that the judge attached far too little significance to the fact that A delayed in complaining to her mother about the grandfather’s alleged conduct towards her; that instead A initially complained to C, who told their mother about it; and that, when A later spoke to her mother about it, she articulated her allegation about the grandfather’s indecent statement without combining it with any allegation about his pulling down her skorts. These are fair points but the judge not only had them well in mind but expressly referred to them in judgment.[20]Third and fourth, Mr Powell complains that, prior to the crucial interview of A by the police on 3 September 2006, it is clear that there was extensive discussion between A, C and, in particular, S about their respective allegations against the grandfather, with the result that the risk of cross-contamination of their respective accounts, when given to the police, was so substantial as to render their evidence too shaky for serious findings of indecency to be made against the grandfather, even though, obviously, they are of less seriousness than almost all of the other allegations made against him and found not proved. Mr Powell’s complaint in this area is linked to the judge’s observation that A’s complaints against the grandfather, though of course serious, were at the modest end of that scale and that, if for example S had wished to prime A to make allegations against the grandfather, it is likely that the product would have been more dramatic allegations than those which she made. In my view the judge was entitled, in passing, to make that observation. She did, however, recognise and (so she said) allow for the substantial risk of contamination of A’s evidence. Indeed it is, as my Lord, Thorpe L.J., observed in argument, a striking feature of today’s application that almost all the points so clearly and forcefully put on behalf of the grandfather by Mr Powell were put, in effect with equal clarity and force, by the judge herself in judgment.[21]Before I address Mr Powell’s fifth written argument, which relates only to the finding of indecent touching of S, it is convenient to turn to his sixth argument, added orally today. It is one that, at any rate initially, has given to me and, as I am aware, to my Lords particular pause for thought. The argument is that the judgment is unbalanced in its detailed and prolonged concentration on the evidence of the children (for present purposes S and A) on the one hand and in its apparently perfunctory treatment of the evidence of the grandfather on the other. The judge’s treatment of his evidence is contained only in one paragraph as follows:
“[The grandfather] gave evidence and in his submissions Mr Powell QC makes appropriate comments on it… He denies the allegations. There remain a number of unanswered issues concerning the relationship between his wife and son [R] and his apparent lack of knowledge of events between them. He does not accept that [R]’s conviction was a proper one. He has made some admissions about the extent of his babysitting after [S]’s first allegations which will be significant in future assessments of risk for the parents. He may well have problems with his memory which are genuine and therefore I do not think he was being evasive in saying that he would admit it if he could remember doing anything. His evidence forms part of the material from which I have to draw my conclusions and I take into account the absence of any previous convictions and of any real evidence about the 1980 matters referred to in the case conference.”
[22]Accordingly Mr Powell’s additional argument is that, before serious findings of sexual indecency towards children are made against a person, his account of matters should be set out in much greater detail; that it should be compared and contrasted with all the evidence inconsistent with his which has been given against him; and that, if it is to be rejected, reasons must be given why it is to be rejected. Mr Powell, also, in particular stresses the judge’s reference to the grandfather’s memory problems and her apparent rejection of any suggestion of deliberate evasion on his part. Mr Powell accepts that, in relation to the alleged incident with S in 1999/2000, the grandfather had referred to memory problems; but (says Mr Powell, although Miss Harris on behalf of the local authority does not entirely agree with his recollection) the grandfather’s stance in relation to the alleged incidents of indecency with A in August 2006, i.e. only 20 months prior to the hearing, had not been that he could not remember them but that they had not occurred. So, runs Mr Powell’s argument, in that respect the judge must surely have rejected his evidence as deliberately false and, if so, she should certainly have explained why she did so.[23]Mr Keehan QC, who now leads Mr Jones on behalf of A and C, concedes that it would have been preferable for the judge to have sought to address the grandfather’s case more extensively. But in my view, on analysis, it is hard for Mr Powell in this court to make much of this point. For the proper treatment of the grandfather’s case depends on what the grandfather’s case was: on the extent of it, on the detail of it and on the specificity of it. Mr Powell nowhere complains that within the grandfather’s evidence was some specific material of which in closing submissions he had reminded the judge and which, in any fair analysis of all the evidence, pro and con, should have found a place. In this court, unlike the judge, we lack virtually all knowledge of how the grandfather addressed the case against him. We lack the transcript of his police interview. We lack the transcript of his evidence in the Crown Court. We lack the transcript of his witness statement in the present proceedings. Nor have we heard the cross-examination delivered to him over about half a day in these proceedings before the judge. We do know that in the Crown Court he denied the two allegations of indecency towards A; and we do now have a transcript of his counsel’s cross-examination of A in relation to them, which, after counsel had arrived at the crucial part of her testimony, was in effect limited to the following exchange. “Q. Are you sure that Grandpa first of all said these things to you and then, on the second occasion, pulled the waistband of your skirt? A. Yes. Q. All right.” Mr Powell submits that counsel’s question shows proper sensitivity to a witness aged not quite 11; but it may well also betoken the lack of any energetic or detailed traverse of her allegations by the grandfather, indeed of any material provided by the grandfather capable of being put to A as a way of testing her account. It seems that Mr Keehan is right to say that in both courts the grandfather accepted the truth of the surrounding details of both incidents, as given by A, and did no more than to proffer a bare denial of his alleged pull of her waistband and downwards glance and of the alleged indecent statement. If so, there was little for the judge to recount in her consideration of the grandfather’s evidence. Q. All right.”[24]My conclusion in respect of the findings of indecency made against the grandfather referable to A is that Mr Powell has no proper complaint about them in this court. The judge not only had the benefit of reading the transcript of A’s oral evidence in the criminal proceedings but, in particular, the benefit of viewing the video recording of the police interview with her on 3 September 2006. We have, of course, the transcript of that interview in the papers filed for our use. I have read it carefully. The interview was particularly well conducted by DC House. A’s allegation was of incidents which had allegedly occurred only days prior to the interview. The judge’s finding that A’s account to the officer contained good descriptive detail and was given carefully without exaggeration is in my view amply justified by study of the transcript. A’s account to the constable is clear, specific, substantially consistent, volunteered, indeed fairly readily given; and, having read it, I could not subscribe to a conclusion that it had not been open to the judge to accept the basic truth of what A there said.[25]I return to Mr Powell’s fifth written argument, which relates to the judge’s findings against the grandfather referable to S. Mr Powell relies, as one would expect, upon the judge’s wholesale rejection of S’s even more serious allegations. To my mind on the contrary, it may be said to render her decision to collect out of his evidence, as being true, in effect the most minor of his allegations against the grandfather all the more convincing. Of course, unlike A, S was, in this regard, speaking in September 2006 of an incident which had occurred not days earlier, but six or seven years earlier, when he had been aged only six or seven. It was, however, common ground that in 1999/2000, in the presence of the grandfather, S, in apparent distress, had made the same allegation to the mother, at which point the grandfather had denied it; and also common ground that later on the same day, when Mr W and S’s father, who were then working together, returned to the house, the mother had reported S’s allegation to them. Indeed, notwithstanding his denial, the grandfather accepted that on that day he had been told that he would never again be allowed to baby-sit for any or all of the four children other than in the presence of his wife or his other son, namely R; and indeed he averred that, until his wife’s death in July 2006 and/or until he was invited by the mother and Mr W to do so, he never again baby-sat for any of them on his own. The mother also gave evidence, which the judge appears to have accepted, that on that day in 1999/2000 she had wished to report the matter to the police but had been dissuaded by Mr W and by S’s father from so doing. The natural inference from her wish to report the matter to the police would be that, having heard S’s allegation, young though he was, and the grandfather’s denial, the mother believed that the allegation had substance.[26]At all events the judge was in my view entitled to make those limited findings referable to S by reference in particular to all the evidence to which I have referred, and, also, as evidence of the grandfather’s propensity inappropriately to cross sexual boundaries, to the evidence of A against him which in her judgment she was also finding to be true. The argument put before us by Mr Powell to the effect that S’s complaint to the mother in 1999/2000 had occurred just after she had reprimanded him for something, possibly a perceived act of sexual impropriety with E, and thus that S might have thereby had reason both to have been distressed and falsely to have turned the allegation of impropriety against the grandfather, is a point properly brought before the judge but not by any means one of sufficient cogency to justify our interference with the judge’s decision.[27]My conclusion is that this proposed appeal would fail; indeed on balance I would describe it as having no arguable foundation. So I would refuse permission to the grandfather to bring it before us.[28]I agree that permission to appeal should be refused. As my Lord has indicated, the point that has troubled me is the lack of analysis and reasoning in the judgment of the grandfather’s evidence relating to A’s allegations and thus the other side of the street to the stark credibility issue that existed between A and her grandfather. As my Lord has also indicated, this was not a point that was put in the Grounds of Appeal or detailed skeleton argument and it can essentially be described as an attack on the basis that there was deficient reasoning. In my view the lack of a “reasons challenge” in both the Notice of Appeal and the skeleton argument provides strong support for the conclusion I have reached that a fair reading of the judgment must be that it should be read as including a finding that the judge, who heard the grandfather give his evidence, concluded that his denial of A’s allegations was an unconvincing one. This is because the absence of such a challenge in those documents is a clear indication that those advising the appellant so read the judgment.[29]I add that, to my mind, this is not surprising when, first, the point made on behalf of the Guardian is taken into account, namely that the context of the stark credibility issue between A and her grandfather was that there was no dispute as to the surrounding details given by A and, secondly, it is remembered that the judge made an express cross-reference to the skeleton argument put in on behalf of the grandfather relating to his evidence when she dealt with that evidence.[30]I agree that this application should be dismissed for the reasons given by my Lords.

Order

Application refused