R (A Child), Re [2012] EWCA Civ 1783

Case No B4/2012/2223[2012] EWCA Civ 1783
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS FAMILY PROCEEDINGS COURT
(MR RECORDER FAIRWOOD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 27 th November 2012
Before
LORD JUSTICE THORPELORD JUSTICE PATTENLORD JUSTICE RICHARDS
Between
Respondent MotherRespondent
In the matter of R (a child)
(DAR Transcript of
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Mr John Jackson (instructed by Grahame Stowe Bateson) appeared on behalf of the Appellant Child by his Guardian.
Ms Clare Garnham (instructed by Ison Harrison) appeared on behalf of the Respondent Mother
Venue Ms Sarah Greenan (instructed by Leeds City Council) appeared on behalf of the Respondent Local Authority
Ms Pam Warner (instructed by Chadwick Lawrence) appeared on behalf of the Respondent Father
Judgment
[1]This is an unusual appeal created by Mr Recorder Fairwood himself when he granted permission to the local authority and to the father in the case before him. He took that course because he had been faced with a very unusual development when he was interrupted in the giving of his judgment by the lunch adjournment.[2]The case before him involved five children aged between 13 and 6 and the focus was on the second youngest, S, who was eight years of age. The question that he had to determine, the principal question, was whether S had been sexually abused by her father. The parties before the court were the local authority represented by Ms Greenan, the mother represented by Ms Garnham, father represented by Mr Jackson, and the guardian, who today is represented by Ms Warner.[3]An unusual feature of the case was that the mother had not given oral evidence. That was because she had had an admission to a mental health unit during the interlocutory stages and the judge was persuaded by expert evidence that she should not be required to give evidence against her will.[4]The case against the father was a relatively strong one given that there was pretty clear reporting from S at different times to different responsible adults and given that it was common ground that, within the family and household, there was a complete absence of any proper sexual boundaries. The responsibility for that parental misconduct was probably shared, but certainly the major portion of the responsibility fell upon the father.[5]In the course of his extempore judgment before lunch

the judge had said in paragraph 22:

"I turn to the highly contentious part in this sad case, namely, on the balance of probabilities, did ...Mr R, sexually abuse [S]... as alleged in paragraphs 1 to 3 of the Local Authority's composite schedule of findings? ... The real issue is why is [S] making the allegations and are some or all of them true."
[6]He considered Mr Jackson's full and able attack on the corpus of evidence that might lead to positive findings and particularly, between paragraphs 38 and 41, considered S's allegations and found that they rested on a general consensus that she was a very straightforward, matter of fact, cheerful, spontaneous eight-year-old, despite all the disadvantages of her early life experiences. The judge accepted that and was relatively dismissive of a number of the criticisms that had been made of her accounts.[7]Then, at paragraph 42, he contrasted the evidence of the father, who he described to be "a very disturbing and worrying individual". Then, having made that adverse assessment of the father's oral evidence, he continued:
"One would normally expect me now to go on to say what my conclusions are in relation to the sexual abuse allegations. However I must deal with the issue of fair trial."
[8]He then expressed his hesitation in proceeding on the conventional path by saying at paragraph 47:
"What causes me considerable difficulty is what is submitted in paragraphs 169 to 175 by Mr Jackson. The father has an absolute and fundamental right to a fair trial on the issue of sexual abuse. The allegations against him and the findings sought against him are extremely serious. They depend solely on the assertions of an 8-year old child, who I rule cannot be cross-examined and, as I have been at pains to point out earlier in the judgment, the court is entitled to make findings based on such evidence but must exercise a great deal of care."
[9]He then came to his conclusion in paragraph 50:
"The fact is father has been hit with ‘a double whammy’. Not one but two of the most important witnesses in this case are unavailable to him for cross-examination. In my judgment, that is unfair or at least creates the perception of unfairness in father's eyes and probably in the eyes of an officious bystander. Whatever the findings I have made of father's presentations of witness, he is entitled nevertheless to a fair hearing. In the circumstances I am persuaded that the father's right to a fair trial on the issue of sexual abuse has been prejudiced and that it would be unfair to make the sexual abuse findings sought by the Local Authority. "
Paragraphs 1, 2A, 3 and 5 of the schedule, insofar as they relate to father, were accordingly to be deleted.[10]Now, with all due respect to the Recorder, I find that a bizarre piece of reasoning and a bizarre conclusion.[11]In these cases the opportunity of the accused parent to cross-examine the eight-year-old informant is effectively zero. So the Recorder has effectively argued that, because the mother did not testify and thus the father had no opportunity to cross-examine her, that amounted to a breach of his Article 6 rights.[12]It seems to me that, on a proper view, the husband's litigation case was not prejudiced but rather aided by the absence of the mother, whose evidence was discounted but whose evidence, had it been available, might have been a nail in his coffin. So for my part, although it is not the issue before us, I think the judge was wrong to hold himself debarred from proceeding to rule on the local authority's numbered paragraphs of the schedule by the absence of the mother's evidence.[13]But I must move to the developments over the lunch hour. Counsel for the local authority, who had the mother available, explained to her that the judge had announced that he was not going to make adverse findings because she had not testified. Her reaction was “Very well I will go into the witness box”, and that was the application Miss Greenham advanced to the judge on the return of all at 2.00. Obviously for the Recorder that was a totally unexpected and difficult situation, and it is always these totally unexpected and difficult situations that are the hardest for a Recorder to get right.[14]The judge decided, having heard argument, that he was not going to take the course that Ms Greenan invited and again he explained himself by reference to the father's asserted rights as advocated by Mr Jackson.[15]Paragraph 56 is in these terms:
"Mr Jackson submits that if I reopen the evidence now, and hear from the mother on the issue of preoccupation and false memory and on all the other matters he wants to cross-examine her about and here evidence about [S], that I will not be coming to it with an open mind. I can say until I am blue in the face that I will come to it with an open mind and I would like to think that I would come to it with an open mind but justice not only has to be done but has to be seen to be done and I well understand that Mr R [the father] would have no confidence in any decision I made after hearing fresh evidence because he would always be of the view that I made my views fairly clear and prejudged those issues. This would, in effect, compound his complaint that he has not been given a fair trial and it is for that reason that I agree with Mr Jackson that it would not be fair to father to re-open the issues upon which I have already ruled."
[16]The judge had not, effectively, ruled beyond saying that the fair trial argument precluded him from ruling, and here we see the fair trial argument being deployed equally effectively in the reverse direction. Earlier it was advanced, “Absent mother; can be no fair trial”. Then when mother appears it is said “Well, to admit her evidence would preclude a fair trial.” I think, with great respect, that the judge in the heat of the moment reached the wrong conclusion.[17]The question of fairness is objective and not subjective to one of the parties. It was all extremely unfortunate. It should not have happened as it did, but once it had happened the judge really had no alternative but to labour further in this rather unpromising field. I think he had already spent ten days and of course it was unattractive to all that time would have to be found maybe for another two days in order to complete the process.[18]But, as these appeals have demonstrated, there was effectively no other practical choice. There was no other practical solution and accordingly I would allow the appeal and send the case back with a request to the Recorder to resume the trial process, keeping it within the tightest possible bounds, hearing the evidence of the mother and then in the light of submissions deciding what other evidence he was compelled to hear. But Ms Greenan has said that she is confident that the re-opening of the case can be kept within tight bounds and it is important that it should be.[19]I agree.[20]I also agree.

Order

Appeal allowed; case remitted to Recorder