A and L (Children), Re [2011] EWCA Civ 1205

[2011] EWCA Civ 1205Case No B4/2011/1594
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
HIS HONOUR JUDGE COMPSTON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 October 2011
Before
LORD JUSTICE PATTENLORD JUSTICE MUNBYLORD JUSTICE TOMLINSON
In the Matter of A and L (Children)
Hearing Hearing date : 18 October 2011
Ms Alison Ball QC and Mr Rohan Ramdas-Harsia (instructed by Cook Taylor) for the appellant (mother)
Mr Stephen Bellamy QC and Miss Helen Soffa (instructed by local authority) for the local authority
Mr Anthony Hayden QC and Mr Tim Hussein (instructed by H E Thomas) for the father
Mr Bernard Huber (of Edwards Duthie) for the children’s guardian
Judgment
[1]This is an appeal, pursuant to permission granted by Black LJ on 10 October 2011, from a judgment of His Honour Judge Compston in the Principal Registry of the Family Division on Friday 27 May 2011. The judge was conducting a fact-finding hearing in the course of ongoing care proceedings relating to two children, A, a girl, born in May 2003, and her brother, L, born in October 2006.[2]So far as material for present purposes the judge found that both A, in particular, and to a lesser extent L had been sexually abused by one or more of three adults (X, Y and Z) who were friends of their mother. He exonerated the children’s father so far as the sexual abuse was concerned, and likewise exonerated the children’s two grandmothers. But he found that their mother “went along with it and cooperated with it”. “I find that the mother was involved.” “Undoubtedly, A was seriously abused by the mother’s friends … and sadly the mother, not quite as badly as her friends, was involved in the sexual abuse of her daughter.”[3]The mother now appeals, represented by Ms Alison Ball QC and Mr Rohan Ramdas-Harsia, who had appeared for her before Judge Compston. The appeal is resisted both by the local authority, represented by Mr Stephen Bellamy QC (who did not appear before the judge) and Miss Helen Soffa (who did), and by the father, represented before us, as before the judge, by Mr Anthony Hayden QC and Mr Tim Hussein. The guardian, here, as below, is represented by Mr Bernard Huber. In relation to the appeal the guardian’s stance is “neutral”.[4]The hearing before Judge Compston had lasted for some eight days, during which he heard from eight witnesses, viewed two ABE video interviews of A, and considered extensive written material. This part of the hearing concluded on Thursday 26 May 2011. The judge invited written submissions from all parties, including the guardian. They were lodged before the hearing resumed the following morning and ran in total to some 30 pages. In addition to these materials there was a very detailed 27 page analysis by Ms Ball of the evolution of the allegations of sexual abuse.[5]The oral submissions finished at about 12.30 and at 2.30 Judge Compston began to deliver an extempore judgment. It runs to 15½ pages of double-spaced transcript. At the end of his judgment the judge invited counsel to raise “any particular point which any of you think I have got wrong or you think I should cover”. Mr Hayden, Miss Soffa and Mr Huber each did so. Ms Ball did not.[6]The same day the judge made an order fixing the final hearing before him on 31 October 2011.[7]Mr Ramdas-Harsia subsequently applied to Judge Compston on 10 June 2011 for permission to appeal. The application was supported by a written note dated 9 June 2011 which Ms Ball had prepared, foreshadowing what now appears in the mother’s grounds of appeal.[8]The note identified the mother’s central complaint as being that the judgment, so far as it related to the finding that she was directly involved in the sexual abuse of her children, was wholly deficient in its reasoning and analysis, provided no sufficient explanation for the basis of the findings, made no findings as to the mother’s credibility and failed to address or examine the reliability of A’s allegations in terms of a number of factors that were then set out. The note concluded with the assertion that what were said to be the deficiencies in the judgment are “too extensive” to be corrected in accordance with English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, and Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035.[9]The judge refused permission to appeal in a short judgment of which we have a note but no transcript. No reference appears to have been made to the Re B point, either during the hearing or in the judgment.[10]The notice of appeal is dated 14 June 2011. The progress of the appeal was thereafter delayed while the transcript of Judge Compston’s original judgment was obtained. It did not arrive until 4 August 2011.[11]On 10 October 2011 Black LJ gave the mother permission to appeal on the papers. She said “The judge’s task was a complex one”. She explained why. She continued:
“There appears to be some strength in the argument that the trial judge needed to deal with issues such as this in some depth in order to explain why he was persuaded of the truth of the allegations he found proved in relation to the mother … It is arguable that his analysis of such issues was too superficial.”
[12]Black LJ was under the impression that the final hearing remained fixed for 31 October 2011. Steps were therefore taken to expedite the hearing of the appeal. Only on the morning of the hearing, 18 October 2011, did we discover that as early as 8 September 2011 the parties had been discussing between themselves the need for an adjournment of the final hearing. They raised the matter with the Principal Registry on 13 September 2011, although it was only the day before the hearing of the appeal, on 17 October 2011, that the final hearing before Judge Compston was actually vacated. It is, to say the least of it, most unfortunate that this court was not kept abreast of these developments by the parties. For my part I would wish to emphasise that it is the collective responsibility of all the parties’ legal representatives to ensure that this court is notified promptly of any developments which may have a bearing on how quickly or otherwise an application or appeal needs to be dealt with.[13]The practice to be adopted in cases where there is concern about the adequacy of the trial judge’s reasoning is set out in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [25]-[26], and Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531, para [41].[14]As this court has frequently pointed out, and I repeat, this practice applies as much in family cases as in ordinary civil appeals: see, for example, in addition to Re T and Re B, Re A (Child Abuse) [2007] EWCA Civ 1058, [2008] 1 FLR 1423, Re M (Fact-finding Hearing: Burden of Proof) [2008] EWCA Civ 1261, [2009] 1 FLR 1177, and Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, [2010] 2 FLR 46. I draw attention in particular to the robust observations of Wall LJ (as he then was) in Re M, paras [36]-[39], in the course of a judgment with which Sir Mark Potter P, his predecessor as President, agreed.[15]For present purposes there are two points I should like to emphasise.[16]First, it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process.[17]Second, and whether or not the advocates have raised the point with the judge, where permission is sought from the trial judge to appeal on the ground of lack of reasons, the judge should consider whether his judgment is defective for lack of reasons and, if he concludes that it is, he should set out to remedy the defect by the provision of additional reasons.[18]If, nonetheless, as in the present case, neither of these things happens, what is this court to do? It can, of course, proceed, as in Re A, to decide the application for permission to appeal, or the appeal itself, on the basis of the judgment as it stands. But in an appropriate case – and for this purpose it makes no difference whether the court is considering an appeal or only an application for permission to appeal – this court can, either on it own initiative or on the application of the parties, remit the case to the trial judge (if need be adjourning the hearing in the meantime) with an invitation to him to provide, as the case may be, additional reasons for his decision or clarification of an ambiguity. An example of the first is Re B, of the second Re M. Sometimes, as in Re M-W, the court will decide that this is simply not possible and that the defects in the judgment under appeal are so egregious that it has no choice but to allow the appeal and remit the entire case for a re-hearing before a different judge.[19]Where this court does decide to remit the matter to the trial judge, whether for clarification or amplification, it will usually be appropriate for the court itself to define those distinct areas on which his assistance is being invited: see Re B, para [15], and Re M, para [34]. How the trial judge decides to proceed must, in the first instance, be a matter for him. Normally, however, I would not anticipate that the judge will require further submissions let alone any further evidence: see Re M, para [34].[20]There is one other point. In Re T, para [41], Arden LJ pointed out that:
“It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order.”
In the context of a fact finding hearing such as we are concerned with here, it must be borne in mind that there may not be any immediate order at all; indeed, it is well established that the absence of an order is no bar to an appeal: see Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334.[21]But there is a wider and more fundamental point. As Baroness Hale of Richmond explained in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11, para [76], a split hearing “is merely part of the whole process of trying the case. It is not a separate exercise. And once it is done the case is part heard. The trial should not resume before a different judge”. Consistently with this, the findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, paras [14], [24]. Thus in such a case the judge is entitled at any time, including at the final hearing, to reconsider his earlier findings. Arden LJ’s statement in Re T needs to be read with this point in mind. The relevant order for this purpose is the final order made at the end of the care proceedings.[22]In the present case, in my judgment, the interests of justice, fairness to all the parties and, indeed, fairness to Judge Compston, all require that we remit the case to him, with an invitation to provide such further reasons on the matters I refer to below as he may think appropriate by way of elucidation, clarification, elaboration or otherwise of his judgment of 27 May 2011. I propose that, in the meantime, the appeal be adjourned part heard, to be resumed before the same constitution once Judge Compston’s response is to hand. When we canvassed this possibility with counsel they all agreed, having taken instructions from their respective clients.[23]I would define the matters on which Judge Compston’s assistance is being invited as follows (I adopt with only minor adjustments an agreed draft put before us by counsel): i) The central question which we invite Judge Compston to revisit is what evidence he identified as supportive of his conclusion that the mother had both been aware of and a participant in the sexual abuse of A and L. ii) In addressing this question we invite Judge Compston to address in particular the following issues in so far as they relate to what I have called the central question: a) A’s inconsistent accounts and the evidence of her propensity to fantasise. What weight, if any, needs to be given to any evidence which suggests that A may be an unreliable chronicler of events? b) The absence of any sexual allegations in A’s first ABE interview. What significance, if any, did Judge Compston afford to the absence of any such allegations in the first ABE interview? c) The disparity between A’s sexual allegations in the second ABE interview and the more detailed allegations made to the foster carers. d) The emotional climate within the foster carer’s home and the children’s lack of contact to their parents; e) The forensic or other significance of the allegations made against the paternal grandmother in the supervised contact; f) The basis upon which Judge Compston exculpated the father and the grandmothers and why such factors did not apply to the mother; g) What corroborative or supportive evidence Judge Compston identified to support the conclusions in his judgment of 27 May 2011; h) Whether he is able to provide further analysis of his findings at paragraph 102 in respect of L.[24]I emphasise that in formulating these issues, and remitting the matter to Judge Compston, I am not to be taken as expressing any view, one way or the other, on the merits or otherwise of the mother’s grounds of appeal or of her complaints about his judgment. Nor is the course I am proposing to be understood as reflecting a view that his findings as set out in the judgment are unsustainable.[25]I also emphasise that Judge Compston should not feel himself constrained to stand by his earlier findings in relation to the mother if on revisiting his evaluation of the evidence he comes to different conclusions.[26]In the first instance I would invite Judge Compston to consider these matters on the basis of the evidence he has already read or heard and without further submissions from the parties. I agree with counsel that it may be of assistance to him if he is provided with a transcript of the mother’s oral evidence.[27]The parties should accordingly arrange for Judge Compston to be provided with the following (and nothing else unless he requests it): i) The trial bundles as they were before him on 27 May 2011. ii) The written submissions (including Ms Ball’s analysis) which were before him on 27 May 2011. iii) Ms Ball’s note dated 9 June 2011 and the note of the judgment he gave on 10 June 2011. iv) The transcript of the mother’s evidence. v) The judgment and order of this court. Judge Compston will, of course, also have available to him his notebook and his judgment of 27 May 2011.[28]The parties have agreed that certain additional matters (set out in the agreed draft put before us by counsel) should also be placed before Judge Compston: see the Appendix.[29]I agree.[30]I also agree. Appendix “(1). It is also recorded that the findings in relation to neglect, contact and domestic violence are not challenged. (2). It is recorded that the mother made important acknowledgment in her evidence: (i). A’s account of being locked in a cupboard was rooted in fact; (ii). She (the mother) had devolved an important aspect of parenting X (ie disciplining A by locking her in a cupboard) and recognised from the ABE interview that A had plainly found that experience to be frightening and it had played on her daughter’s mind; (iii). A had plainly gained a knowledge of sexual matters entirely beyond what would be expected of a girl of her age. A had never displayed such knowledge in the past and had never exhibited sexualised behaviour; (iv). During the time her parents were together, A’s school, which she attended regularly, had never expressed any concerns of a sexual nature; (v). She (the mother) considered that A’s sexual knowledge had arisen post separation and must therefore have been gained either in the period when she (the mother) was solely responsible for her care or during her time in foster care. (3). It is recorded that A’s allegations in the second ABE interview set out an escalating picture of abuse which, though well known to professionals in this field, would have been entirely outwith the knowledge of a 6 year old: (i). A gradual invasion of privacy (X staring at A’s private parts in the bath); (ii). Inappropriate touching between A’s legs (initially whilst clothed); (iii). Rewards (sweeties), punishments and an assertion of power (A locked in cupboard); (iv). Keeping secrets (asserted against X); (v). More serious sexual assault (oral sex with both male and female).”

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