L (A Child), Re [2013] EWCA Civ 1778

[2013] EWCA Civ 1778Case No B4/2013/2585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
(HIS HONOUR JUDGE HOOPER QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 17 December 2013
B E F O R E:
LORD JUSTICE TOMLINSON
LADY JUSTICE GLOSTER
LORD JUSTICE RYDER
IN THE MATTER OF: L (A CHILD)
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Mr Kambiz Moradifar (instructed by Mortimers Solicitors) appeared on behalf of the Applicant
Ms Luna French (instructed by Herefordshire Council) appeared on behalf of the Respondent
J U D G M E N T
[1]This is an appeal against case management directions given by His Honour Judge Hooper QC on 29 August 2013, as supplemented by his further reasoning given on 10 September 2013. The proceedings are public law children proceedings concerning a 17-month-old girl, who I shall call "L", which had been commenced by Herefordshire District Council and to which the parents and the child by her children's guardian are parties.[2]The proceedings have been subjected to what I can only describe as unacceptable delay which has altered the balance of procedural justice which might otherwise have underscored any orders which the court could have made. In the first place, there was a delay of two months caused by a transfer of the proceedings from the Family Proceedings Court to the County Court. There is no explanation for that delay on the papers. I note that it is intended that the pilot scheme Practice Direction 12A, which is the annex to Practice Direction 36C, in particular the President's guidance relating to gatekeeping and allocation and the concepts of the timetable for the child and for the proceedings will go some way to eliminate this mischief in future.[3]The second delay is with regard to a determination by this court. Regrettably, one of the parties should have asked for a direction for expedition and alerted the court to the fact that this was a case management appeal. Ideally, such an appeal should be dealt with in such a way as to avoid the adjournment of any substantive hearing already listed in the court below and in accordance with the timetables I have referred to. Sadly, that did not happen. The consequence for the child here is regrettable. In future, it would be advisable for the Court of Appeal office to be alerted by any party who becomes aware of the possibility of delay, and, in default of any other party, the children's guardian has an independent duty to keep the court informed.[4]As Judge Hooper noted in one of his two short judgments, this is a case involving serious allegations of sexual abuse made by mother's 13-year-old brother, who I shall call "A". He is, of course, the subject child's uncle. He does not live and has not lived with the parents and L. There are other potentially serious allegations relating to the parents' care of L, including risks relating to protection from sexual offenders; domestic violence, both by mother against father and father's violence and aggression, including in the presence of L; and neglect caused by lack of housing and financial difficulties. The local authority's case is set out in an amended threshold document of 23 August 2013. The application for a care order was made on 6 June 2013, and on 6 August 2013 a magistrates' bench of unidentified Justices of the Peace transferred the proceedings to the County Court, together with the making of interim care orders, because of the then apparent evidential conflicts.[5]Any case involving questions of fact that are not agreed involves evidential conflicts, and accordingly the magistrates' reasoning and the time delay that was occasioned by this transfer is not understood. I equally do not understand how it can be proper for a judicial tribunal to be anonymous. We have not been addressed about this practice, but I make it clear that I have very significant reservations about it.[6]The matter then came before a district judge in the County Court for a first case management hearing. He very properly identified the key issues and allocated the proceedings to Judge Hooper. I acknowledge that a case in which there were parallel criminal proceedings in the Crown Court, before which mother has been indicted and will stand trial in February 2014, and a real issue about whether the 13-year-old complainant should give evidence in the family court, justified allocation of the proceedings to a circuit judge. What I do not understand is how the court and/or the parties identified the case as being one suitable for a split hearing. No one does so before this court today. This was and is not a single or determinative issue case. The findings about the sexual boundaries and protections or lack thereof in this family ought to be determined in the context of the social care assessments and information that are available. These proceedings will carry on regardless of whether the local authority is able to prove the allegations of sexual abuse made by A against his sister, the mother of L. Split hearings usually cause delay. Their use should be explained on the face of a record if they are directed.[7]Coming to the central issues in this application, when the parties came before Judge Hooper on 29 August 2013, it was for the purpose of a further case management hearing at which the question whether A would give oral evidence was to be decided. The transcript makes it very plain that Judge Hooper was fully listed to undertake what appears to have been a complex civil trial over more than one day. He clearly did not have the time, nor had he the preparation time, to assimilate the materials in this case. He said so. He was unable to view the ABE interview of A because the technology was not available in the court. This court has considerable sympathy with the predicament in which he found himself.[8]Everyone agrees that in the absence of a transcript of that interview, a viewing of the DVD was essential. The judge could not do justice to the interests of the child L and have regard to the interests of A in accordance with section 44 of the Children and Young Persons Act 1933 without viewing the DVD. Furthermore, without a consideration of that material, the judge could not apply the guidance given in Re W [2010] UKSC 12, which is helpfully expanded by the Family Justice Council in the "Guidelines in relation to children giving evidence in family proceedings" (December 2011).[9]The only consideration that the judge relied upon to decide that A should not give oral evidence or be cross-examined was a social work report on the child that said he was distressed. Given the obvious failings of that document, both in relation to the unquestioning stance taken by its author relating to A's evidence and the fact that many if not all of the questions to be addressed on such an application could not be so from that report, I would venture to suggest that the report was almost useless.[10]The children's guardian has very helpfully, if I may say so, identified all relevant issues that needed to be considered on the facts of this case and it remains clear that a court making that decision must have regard to the evidence itself - that is the DVD and its transcript - in the context of the other evidence filed and to be filed. We very much hope that that is an exercise which can be undertaken before Judge Rundell either this Friday when an issues resolution hearing is listed or at a subsequent adjourned date in his discretion.[11]The appeal in relation to the judge's determination that A should not give evidence is not opposed, and on the basis that there was a clear procedural irregularity I would give permission for this appeal, allow it and set aside that order.[12]Judge Hooper suggested that the Family Justice Council's guidelines did not face up to the reality of the case management of family proceedings in a busy court. With regret, while I sympathise with his call for a system that provides for collective proportionality (that is a mechanism for effective access to justice for all in order that individual proportionality, that is access to justice in the individual case, can be effective) I do not agree with his conclusion. The case needed robust case management in accordance with Practice Direction 12A and the overriding objective. It required time to make appropriate case management directions, and the judge needed time to consider the key issues and the evidence. If that time was not made available by the administrative authorities in the court, then an appropriate request could and should have been made to the Designated Family Judge or the Family Division Liaison Judge to obtain the same.[13]The second element of the application before us is the judge's refusal to give directions relating to the disclosure of a limited number of source documents, the recording of the detail of the allegations made by A against his sister. They are an email from a teacher to her Vice Principal; the notes of interview of A on 6 March 2013 by the teacher and the Vice Principal; the police referral record as a consequence of that interview; and social work records relating to what was referred to a social worker that led to A's ABE interview on 8 March 2013.[14]There could have been no basis for these essential source documents not being disclosed. They were necessary to any fair process of cross-examination, both in the family court and in the criminal court and/or the consideration of the weight to be attached to A's allegations. Their disclosure entailed neither any significant cost nor delay; their disclosure should have been directed. Disclosure is effectively agreed before this court and the local authority have already gone some way to providing it voluntarily through a social work statement.[15]On this basis, I would give permission, allow the appeal, set aside the order refusing disclosure and direct disclosure of the documents to be used in both the family and the criminal proceedings so that there need be no further delay in their proper consideration by the advocates, both for this coming Friday and in the criminal trial.[16]Given that the proceedings are before the Designated Family Judge on Friday for some three hours, I would remit the question whether A should be available to give oral evidence and be cross-examined to be decided by him. I note that the mother's criminal trial on the same issues is due to be heard in the Crown Court on 4 February 2014 for some five days and that she has pleaded not guilty. Given the fact that there has now been such a delay as to cause that trial to be almost back-to-back with the intended family fact finding hearing, I would also remit the question of whether there should be a fact-finding hearing at all or whether fact finding and welfare should be heard together on a date after the criminal trial.[17]Having regard to the observations that this court has made, it may be appropriate for there to be an expedited transcript of this judgment to be made available to Judge Rundell on Friday. The parties may need to consider applying for a direction that this judgment should not be reported until the conclusion of the criminal trial, whether that be in February or later.[18]For my part, therefore, I would grant permission, allow the appeal in respect of both sets of orders, set the orders aside and remit the proceedings to the Designated Family Judge for case number on Friday 20 December 2013.

LADY JUSTICE GLOSTER: I agree.

LORD JUSTICE TOMLINSON: I also agree. I would only add this: at paragraph 5 of his judgment given on 10 September, the judge reverted to the decision which he had been required to make, in the unsatisfactory circumstances to which my Lord has already referred, on 29 August. At paragraph 5 he said this:

"First, I had to hear argument and reach my decision in too little allowed time in an already full list. This is as usual in the intolerably overburdened circumstances of judges and legal and social work professionals in family work cases in this court. Second, the guardian was not available and did not attend. Third, I had not been able to view the ABE interview because the DVD will not play on the laptop with which I am provided, and in any event I had far too much overnight and morning reading in this and the rest of the list to view the DVD on courtroom or home equipment, and no proper system should require a judge to take this sort of material home and it may actually be unlawful to do so. Further, as to each of these three matters, this was not a case where for any of these reasons I could adjourn the hearing on 29 August to a later time or date. The lists were already full ... Moreover, the lists are full into the foreseeable future. To adjourn decision as to [A] giving evidence would have been by itself to defeat the fact-finding fixture."
[21]I fully understand the pressures under which these constraints placed the judge, and I have every sympathy for him in the predicament in which he found himself. That notwithstanding, it is plain, for the reasons given by my Lord, Ryder LJ, that the circumstances demanded that, however difficult it might have been, the judge simply had to find a way to overcome the constraints which were placed upon him by the overburdened system. I appreciate that that may have meant that something else had to be delayed or removed from the list.[22]I agree, therefore, that this matter must be dealt with in the manner which my Lord has proposed.