L-R (Children) [2013] EWCA Civ 1129

Case No B4/2013/1088[2013] EWCA Civ 1129
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE HINDLEY QC)
Venue Royal Courts of JusticeDate Wednesday, 24 July 2013
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE McFARLANE
LADY JUSTICE RAFFERTY
and
LORD JUSTICE KITCHIN
IN THE MATTER OF L-R (CHILDREN)
(DAR Transcript of
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Mr Jeremy Weston QC and Ms Michelle Brown (instructed by Messrs Haslaw) appeared on behalf of the Applicant father.
Mr John Vater QC (instructed by Coventry County Council) appeared on behalf of the First Respondent local authority.
Mr Alistair MacDonald QC and Ms Elizabeth Walker (instructed by Messrs Penmans) appeared on behalf of the Second Respondent Mother
Mr Nicholas Goodwin appeared on behalf of the Third and Fourth Respondents, the children through their guardian.
J U D G M E N T
LORD JUSTICE McFARLANE:
Between
Applicant fatherApplicantRespondent MotherRespondent
[1]In February of this year, HHJ Hindley QC was tasked with undertaking a fact-finding hearing in connection with care proceedings relating to the welfare of two young girls. The girls, to use the initial of their first names, were O, who was born on [a date in] 2005 and therefore now eight years of age, and J, born on [a date in] 2011 and so now fast approaching her second birthday. The case, however, revolved around the appalling circumstances of the life and death of the middle child in this family, all three children being born to the same mother, but each with a different father. He was a boy, D, born on [a date in] 2007.[2]On [a date in] 2012, D was taken to hospital after the mother and her then partner, Mr K, who was the father of the youngest child J, had called an ambulance. D was four years and 8 months of age at that time. Evidence before the judge indicated that by the time he was seen at hospital, D had either been deeply unconscious or in fact dead for some 36 hours. Examination showed that he had a very significant head injury, multiple bruises over his body and that he was severely emaciated. As a child who was over four and a half, he weighed a mere 10 kilograms.[3]As a result of these appalling findings, both the mother and Mr K, who were living together as the parental figures in the family that included all three of the children I have mentioned, have been charged with murder, with the offence of causing or allowing the death of a child, and the offence of cruelty and/or child neglect. They are currently on trial before the Crown Court in Birmingham, that trial having taken place over the recent weeks, and it is understood that it may conclude with the jury retiring to consider their verdict during the course of the next few days. The court has made an order, but I repeat it in the course of this judgment, that nothing that has been said during the course of submissions before this court today or may be said by me in this judgment is to be reported at all until the conclusion of the criminal trial. In any event, nothing that is said in this judgment is to identify either of the two children as being the subject of care proceedings.[4]The care proceedings commenced in relation to O and J effectively upon the discovery of the circumstances I have described. The local authority sought care orders in their case, and relied upon the following matters to satisfy the threshold criteria in section 31 of the Children Act 1989. Firstly, that the two girls had been exposed to significant domestic violence that had been a feature of the life of this mother with her various partners; secondly, exposure to the effects of chronic parental alcohol and drug abuse; thirdly, exposure to the systematic ill-treatment and abuse of young D that had taken place over a period of at least months if not longer; fourthly that the parents had actively covered up their abuse of D; and fifthly that neither parent had protected D or the other children from the effects of that abuse.[5]I anticipate that it goes without saying that the utterly shocking circumstances of D's existence in the period leading up to his death were at the highest end of the scale experienced even by seasoned judges sitting in the Family Court. It is not necessary for me to go into any further detail for the purposes of this judgment, other than to record

Judge Hindley's summary which was in these terms:

"His treatment overall ... was at the extreme end of cruelty to a child."
[6]The case before this court today does not focus upon the outcome of the care proceedings or the detailed findings that the judge was able to make, the focus is upon the fact that the judge found Mr K to be in contempt of court because of his conduct during those proceedings and, at the conclusion of the process, on 19 February 2013, the judge sentenced him to a period of 18 months' imprisonment in consequence of that contempt.[7]The contempt arose in the following manner. Standard and uncontroversial directions were given for Mr K to file witness statements, and to file his response to the schedule of threshold findings that had been issued by the local authority. Although this court has not seen the orders themselves, we understand that directions in that regard were given on 30 November 2012, and more particularly at a directions hearing which was a joint hearing for the criminal proceedings and the family proceedings conducted by Macur J on 20 December. That judge on that occasion took the decision that the care proceedings could not wait for the criminal trial to take place, and that the judge in the family case should proceed to undertake a fact-finding process which would stop short of determining the cause of D's actual demise, but the parties should co-operate with that process and be required to file evidence in the family proceedings, notwithstanding that both the mother and the father were facing the trial in the Crown Court which was, as it has done, to take place some six months or so later.[8]We are told, and I accept, that the parents, and in particular Mr K, were given a clear warning on that occasion by Macur J as to the need to comply with the directions that I have described.[9]In January, shortly before the fact-finding hearing was due to take place, Mr K parted company with the legal team that he was at that stage instructing. The current solicitors and counsel were brought in only effectively one week before the fact-finding hearing commenced. That hearing started on 4 February, and Mr K's express position to the judge was in these terms:(a) that he would not seek rehabilitation of either of the girls to his own care;(b) he would not challenge the expert evidence or seek for any of the experts in the family case to be called to give oral evidence;(c) he did not wish to give evidence at the fact-finding hearing;(d) but he did wish to be fully involved in any welfare hearing at any later stage.[10]The fact-finding hearing commenced. On the first day of the hearing, HHJ Hindley required the father to comply with the previous directions and made it plain that she would, at the appropriate stage of the trial, require him to give oral evidence from the witness box. She warned him of the consequences of his failure to comply with those directions, which might include a finding of contempt, with the court's punitive powers then being available to her.[11]On the second day of the hearing, the father and his counsel sought what turned out to be a fairly substantial adjournment to consider his position. After that process, he again, through counsel, indicated that he was not intending to give evidence. Once again, we are told, and I accept, the judge repeated her warning.[12]Stepping back from that account of the trial process, it is necessary to understand the legal context in which this judge, sitting in the Family Court, was operating. The principal statutory provision that was in play was section 98 of the Children Act 1989, which reads as follows:
"98 Self-incrimination (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 or civil partner of an offence. (2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury."
[13]The judge will also have had in mind the accepted position, as it is in family proceedings, that the exception described by section 98 of the Children Act applies to all witnesses, and further that parents in proceedings of this sought are compellable witnesses. Authority, if authority is needed, is to be found in obiter observations of Hale LJ in the case of Y and K (Children) [2003] EWCA Civ 669, but also in the judgment of Holman J in the case of Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] 2 FLR 690, where that judge made it plain that the father's failure in those proceedings to give evidence amounted to contempt of court.[14]Notwithstanding the protection provided by the terms of section 98(2), which limits the use to which any material arising in the family proceedings from evidence given can be used, the case of Re EC [1996] 2 FLR 625 has established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process. A more recent development is the enactment of section 119 of the Criminal Justice Act 2003, which provides for the deployment of inconsistent previous statements made by a party to criminal proceedings, and it is plain that that provision may apply in certain cases to material that has been disclosed from the Family Court.[15]We are told by Mr Frances Judd QC, who acts for the children in these proceedings, and by others, and I from my experience readily accept, that the disclosure out of family proceedings and into the criminal proceedings is now a regular occurrence, and that the resulting tension arising from the separate impact and policy imperatives of the family justice system on one hand and the criminal justice system on the other hand are a cause of significant personal and professional difficulty for parties and their advisers in some cases.[16]In this appeal we have been invited to give guidance on the approach to be taken in this regard where there are concurrent criminal proceedings and family proceedings. For my part I do not see that the issue arises in any form on the facts of the present case where, as I will in due course relate, Mr K effectively provided no material information to the Family Court that might fall for disclosure into the criminal process.[17]Going further, and looking at the matter more generally, the position as a matter of law and practice in the Family Court has been well settled since Re EC. If problems are to arise, they are much more likely to surface in front of the criminal judge in the Crown Court and relate to how any disclosed material is to be deployed in the criminal process.[18]As such it seems to me that this civil court, both on the facts of this case where the issue simply does not arise and more generally, should resist the encouragement to give general guidance on this topic. I therefore return to the conduct of the trial before Judge Hindley.[19]There is no issue raised in this appeal on the finding of the judge that Mr K was in contempt. In the closing submission made by leading counsel to the judge on his behalf, it was accepted firstly that he failed to file a statement dealing with his response to the evidence of the mother, his evidence about the events leading to the death of D, and how he says D died. Secondly he failed to file a response to the local authority threshold criteria document. Further, it was expressly accepted that he failed to give instructions to his lawyers more generally in relation to D's life, and the issue of collusion or failure to protect the children.[20]He was required to give oral evidence. He came to the witness box, but apart from answering a number of short questions, he declined to answer most of the questions that counsel wished to put to him.[21]Judge Hindley in the course of the main judgment that she gave summarised the lack of co-operation that Mr K had demonstrated, and in summary, she said this at internal page 7 of the transcript:
"Overall, I conclude that he has refused to state his case and give evidence in the proceedings until further evidence is available in the criminal case in the knowledge he is not protected in these proceedings by the rule against self-incrimination. Whatever legal advice he may have received in the criminal proceedings, the decision whether to give evidence in these proceedings remains his and his alone having been warned of the consequences. In my judgment, the father is only interested in preserving his position in the interest of minimising his culpability in the criminal Court."
[22]Following handing down of the fact-finding judgment the judge turned to the issue of contempt, and, as I have indicated, it was admitted on his behalf that he was in contempt of court, and counsel then mitigated as to the sentence that the judge was to pass. The judge gave a short judgment, which is at page 62 onwards of the transcript. She described the breaches which I have already listed, and she described the importance of the court process upon which she had been embarked, which was to determine the factual background against which decisions for O and J's future welfare could be made. She described Mr K's evidence or potential evidence as "important and necessary for the court to make appropriate findings about O and J's safety and parenting experiences in the light of what happened to their brother D". And then the judge concluded in these terms:
"This court needed to establish who was the perpetrator or perpetrators of the harm to [D] and whether both you and the mother were implicated. The lack of your evidence proved to be an enormous hindrance to the fact finding exercise. In defying the orders of the court, you are in contempt of court. I am satisfied beyond reasonable doubt that there is no reasonable excuse for your conduct. I have considered the following factors as I have to do under Sentencing Guidelines, in setting the inevitable sentence which I pass in this case. First of all the gravity of the case, it relates to the ill-treatment and alleged murder of your stepson. Next, I have to consider the effect on the proceedings, as I have said it was serious, because it seriously hindered the court’s task in carrying out its lawful functions. I have to consider your reasons for not giving evidence. I have been... it has been submitted in your behalf that these were complex proceedings, not easy for a litigant to understand. That because of the concurrent proceedings, there was an added complexity because you were also giving instructions for your criminal defence. That you received conflicting advice concerning the, what was the, what was the right thing for you to do in both of these jurisdictions; and also the fact that you, English is not your first language and you always have to work through interpreters. I appreciate that you have faced difficulties, but nonetheless you have had the best representation, both in the criminal proceedings and in these proceedings and you were told very clearly what the law was. I also have to consider whether there is any necessity for a deterrent. Parents have to understand that the Family Court, in order to carry out its tasks needs honesty and openness. If that is denied, then the court cannot carry out its function in making appropriate orders for children. It seems to me that this case falls into the higher level of sentencing, for the reasons that I have described. The maximum sentence is one of two years. I shall sentence you to a period of 18 months. You will serve one half of that sentence. I have been urged that a sentence of imprisonment may well not have any particular effect, I do not agree. Hitherto you have been on remand, but now you are a convicted prisoner and the privileges of your remand status will now be immediately withdrawn and you will be placed on the basic prison regime. Thank you."
[23]The appeal as it now has been clarified before us is therefore a plain and simple appeal against sentence. To support the appeal, Mr Weston QC essentially makes two submissions: firstly, that a sentence of 18 months was neither necessary nor proportionate; and secondly, that the sentence has had and will have absolutely no impact on the circumstances of Mr K and therefore should not have been imposed.[24]Dealing with the first of those global criticisms, namely that 18 months was neither necessary nor proportionate, Mr Weston identifies that any sentence for contempt will have a number of elements within the judge's consideration. Primarily, it will be looking to provide a punitive element, secondly a coercive element, and thirdly a deterrent element. Mr Weston takes our attention to two fairly recent authorities. The first is Re W (Abduction: Committal) [2012] 2 FLR 133. In that case, a father had abducted his two-year-old child whilst he was meant to be simply enjoying a period of contact with her. He had taken her to Pakistan and had told the mother that she would never see her child again. The father had then returned to England. Proceedings had been issued and he had been ordered immediately to disclose the exact location of the child and to cause her to be returned to England. The father had steadfastly refused to comply with those orders and he had previously been sentenced to the maximum term of two years' imprisonment. Shortly before his discharge from that sentence, he was afresh required to comply with orders in similar terms. He refused, and the judge, Baker J, had imposed a further term of 12 months' imprisonment upon him, and it was against that 12-month term that he sought to appeal. The Court of Appeal, for reasons that were specific to that case, endorsed the legality of the process that had been applied and indicated that, whilst the coercive element of any such sentences might be extinguished in the future over time, that was not the case at present. So the judge's decision was not interfered with. My reading of that case is that it is a long way away from the facts of the present case, and whilst establishing the correctness of the jurisdiction in contempt for those who fail to give evidence and give information to the Family Court, the length of the sentence is in no way informative as to the appropriateness, one way or the other, of Judge Hindley's sentence in the present case. The same applies to the second case to which we were taken, which is a more recent decision of Moor J, in the case of Young v Young. Moor J's decision in that case has been widely reported in the popular press, but the official reference is [2013] EWHC 34 (FAM). In that case a husband in hotly contested financial proceedings failed in the judge's view to give disclosure of his financial circumstances and refused to obey orders for disclosure. Moor J imposed a sentence of 6 months upon him.[25]Mr Weston submits that plainly there is a substantial coercive element in those cases, and he is right. He also submits here that there is nothing to be gained by any coercive element in sentencing Mr K, and that therefore the sentence in his case must necessarily be shorter than would be justified if coercion was a live issue.[26]I will return to that submission in a moment, but before doing so, I record the other element in this first limb of the appeal.[27]It is Mr Weston's submission that, contrary to the judge's conclusion, Mr K's refusal to abide by the court orders did not have a significant impact on the effectiveness of the fact-finding hearing. Mr Weston submits to us that the focus of the fact-finding hearing was to determine whether the threshold criteria in section 31 were established, although Mr Weston did go on to accept that part of the judge's real role would be to establish a factual context in which to decide the subsequent welfare issues for the two girls. Counsel submits that the judge, despite the absence of co-operation from Mr K, was indeed able to make significant adverse findings and that she was able to conclude the family case by making final orders for care and for placement for adoption.[28]Looking at this limb of the appeal, I am afraid I do not consider that there is any merit in the submissions that have been made. Whilst it may be correct that there is little in terms of coercion that was to be achieved by the time this sentence was passed, its coercive effect arose from the threat of its use, and was implicit, or indeed explicit, in the warnings that were given to Mr K by Macur J and more particularly by the trial judge, HHJ Hindley. Such warnings would have no coercive effect at the time that they are given in this or other cases if the court did not, when it was right to do so and in the face of flagrant contempt, deliver the outcome about which the clear warning had been given. It is part of a process that has to be looked at as a whole and not simply by focusing on the end result.[29]In any event, each case will be different, and every sentence will have a varying degree of coercive, punitive and deterrent elements. Here the judge was entitled to regard this contempt as being serious and meet for significant punishment. The elements of punitive and deterrence were high in this regard, even if the coercive element was not the most prominent in the sentencing exercise.[30]There was also a strong policy driver in support of the deterrent element and the message being sent out that sentences of this length might be visited upon those in family proceedings who brazenly and persistently disobey court orders requiring them to give evidence and to engage with the process.[31]The guidance that may be gained from the two cases to which we have been referred in the hope that we might be able to identify an appropriate tariff is, in my view, very limited. Each is different on its own facts and does not assist the process of divining the appropriate sentence in this case.[32]The second limb, which I have summarised, which was the submission that Judge Hindley was in fact not prevented from concluding a satisfactory fact-finding exercise in this case, again, in my view, is not made out. The finding that the threshold was crossed in this case cannot have been in doubt given the awfulness of the circumstances. There was however a need for the Family Court to understand as fully as possible what the circumstances were in the family on a day-to-day basis, and the only two witnesses who could tell the court that were the mother and Mr K. The mother did give evidence and she does not fall for criticism in that regard. Because of the emotional pressure on her, she was not able to complete her testimony. That is in stark contrast to the position adopted by Mr K, which was to flagrantly and deliberately disobey repeated orders from the court. That prevented further more sophisticated and subtle detail to be learned by the court and to be used by the court and the caring professionals in planning for these children. To know in full detail what these two girls may have experienced as they watched their brother being abused in the way that he apparently was is important. Those who have to care for these two girls in the future will need to have as good an understanding as can possibly be gained as to what they went through and what now needs to be the subject of any therapy or counselling that they may need as the months and years go by. It is therefore artificial to say that the focus of the hearing was simply to achieve the threshold and to allow the judge to make the orders which, in my view, she inevitably would have been making at the conclusion of the process.[33]Further, I do not have to try and divine whether the absence of Mr K's co-operation hindered the process. The judge who was sitting in the court room and undertaking the process tells us that that indeed was the case. She states in terms in the course of her sentencing remarks that his lack of co-operation was "an enormous hindrance to the fact finding exercise”.[34]The second limb of appeal is that the sentence passed by the judge in fact has no impact on Mr K and therefore should not have been imposed on this occasion. Mr Weston makes two points. First of all it is plain from the judgment that the judge anticipates that the imposition of a sentence for contempt would alter Mr K's status in the prison system. Hitherto he had been a prisoner on remand, but the judge anticipated that he would, as a result of her sentence, change that status to that of a convicted prisoner. We have been taken to the Prison Rules, and in particular rule 7, which shows that those convicted of contempt and sentenced are treated in a way which is outside that which applies for those in the criminal process, and that effectively the prison authorities would have continued to treat Mr K as he had been, as a prisoner on remand, pending any change in his status as a result of conviction in the criminal court. To that degree, the judge was in error in coming to her conclusion.[35]That circumstance feeds in to Mr Weston's more widely drawn point. He referred to a decision of Holman J in the case of Re U, to which I have made reference. In that case, Holman J concluded that as the father was also serving a life sentence for murder, any sentence for contempt that he (the judge in the family proceedings) might impose would have absolutely no impact upon him and as a result Holman J did not seek to impose a sentence for contempt. In my view, the circumstances in this case are materially different. Mr K was not serving a life sentence at the time. He may never have to serve a sentence imposed by a criminal court. All of those matters are currently at large and before the judge sitting in Birmingham Crown Court, notwithstanding the indication that we have been given, but Judge Hindley I do not think was, that there would be acceptance at least of guilt of the lesser offences. Anything may have happened in the criminal process to alter his status as a prisoner, and it was the duty, in my view, of the family judge to consider what sentence was appropriate for the contempt in her court, and if she felt it was otherwise right to do so, to impose that sentence. The impact of it upon him was a matter for the prison authorities. The impact of it upon any subsequent criminal sentencing process was a matter for the criminal judge sitting in the Crown Court. All Judge Hindley was required to do was to determine the appropriate sentence for the contempt before her and to impose it. The argument that in fact it has had no adverse effect on Mr K one way or the other, in my view, does not take the case any further. It does show, however, that this appeal is of absolutely no importance to Mr K's circumstances, and as Mr Weston confirms, whether the appeal is won or lost, it will not alter Mr K's current position in the prison system one iota.[36]We would only, on the authority of Slade v Slade [2010] 1 FLR 160, interfere with a sentence for contempt if we concluded it was manifestly excessive or plainly wrong. In my view this sentence does not fall into that category at all, and for the reasons I have given, I would dismiss this appeal.

LADY JUSTICE RAFFERTY:

[37]I agree.

LORD JUSTICE KITCHIN:

[38]I agree.

Order

Appeal dismissed