S (Children) [2016] EWCA Civ 83

Case No B4/2015/0191 & 0192[2016] EWCA Civ 83
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
HER HONOUR JUDGE MOIR
UY14C90023
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/02/2016
Before
LADY JUSTICE BLACKLADY JUSTICE GLOSTERLORD JUSTICE VOS
Re S (Children)
Hearing Hearing date: 26 th November 2015
Mr Andrew Bagchi QC & Miss Carly Henley (instructed by Hay & Kilner Solicitors) for the Appellant
Ms Rachel Langdale QC & Mrs Fiona Walker (instructed by North Tyneside Council Legal Services) for the Respondent
Mr Nicholas Stonor QC (instructed by Caris Robson solicitors) for the Children’s Guardian
Judgment
[1]The appellant has two young children who are four and two years old. In April 2014, the local authority commenced care proceedings in relation to them because the appellant’s sister, K, alleged that he had sexually abused her over a prolonged period of time, commencing when she was six years old. On 15 October 2014, HHJ Moir found these allegations proved. The care proceedings were concluded on 8 December 2014 with the making of a supervision order in relation to the children, who were to live with their mother. The order provided that the mother was to make them available to spend time with the appellant “on a reasonable basis”, the court defining a reasonable basis as weekly supervised contact.[2]The appellant appealed against two case management decisions made by HHJ Moir in preparation for the fact finding hearing and against the findings of fact themselves. The case management decisions are(1) Judge Moir’s decision on 16 September 2014 that K would not give oral evidence at the fact finding hearing and(2) a like decision on 29 August 2014 in relation to two friends of K’s (X and Y).[3]Represented before us at the appeal hearing were the appellant, the local authority and the appellant’s children through their guardian. The mother, appropriately, did not participate in the appeal. Whilst there was some continuity of representation for the local authority and the guardian in both the first instance proceedings and the appeal, Mr Bagchi QC and Miss Henley who appeared for the appellant came into the case at the appeal stage only.[4]K was not a party to the care proceedings (or the appeal) and was not represented at the appeal hearing, although at first instance a guardian had been appointed to look after her interests in certain respects and she had representation for some of the hearings before Judge Moir. The explanation for this unusual position will appear as I set out some of the factual background.[5]K was born in December 2000 and is now nearly 15 years old. She is approximately 10 years younger than the appellant. She first said something to an adult about being abused by the appellant on 13 March 2013 when she spoke to an assistant at her school. She explained that she felt the need to speak up because the appellant had had a row with his partner and had come back to stay at home with K and their mother (hereafter “the paternal grandmother”) and she feared that she would suffer further abuse. According to the account that K gave then, the appellant’s activities with her had started when she was about six years old and continued from then on, including an incident which she said occurred a “couple of weeks ago”. An Achieving Best Evidence interview was carried out the following day and a second one on 20 April 2013. Allegations were made in each of these ABE interviews.[6]There was evidence that K had also spoken of abuse to her friends, X and Y. She was said to have told X about it in approximately 2006 and again in approximately 2012. She was said to have spoken to Y in late January 2013 about abuse by the appellant since she was six. X and Y’s accounts of what K said about the appellant’s conduct were recorded in ABE interviews carried out in March and April 2013. Each girl also described what K told them about her worries about the situation.[7]There is no need to go into the detail of K’s account of the appellant’s conduct towards her. She spoke of quite regular sexual activity which hurt. It continued despite her asking the appellant to stop and she said he had threatened to kill her, had brought a knife once, and had tried to strangle her. She described the abuse as having first happened following a shopping trip in town with the appellant and the paternal grandmother when, after their return home, the paternal grandmother went out again. She also described in detail an occasion on the day of a family wedding in 2011. There was a further detailed description of an incident some time in early 2013. On that occasion, K was ill in bed at home and the appellant was there. He came into her room and, on K’s account, denied by the appellant, he woke her and asked her to take her top off. The paternal grandmother’s evidence was that she went upstairs and the appellant was in the bedroom near to K. The grandmother asked whether the appellant had touched K. Questioned during the fact finding hearing as to why she had asked that, she said it was a slip of the tongue and there was nothing sinister about her question.[8]K was medically examined twice after she spoke about her allegations at school, first on 22 April 2013 and secondly on 9 May 2013. Both examinations, which were carried out by Dr Jones, were thought to show signs strongly suggestive of anal penetration. There was no evidence of vaginal penetration, although K had alleged that it had occurred and that she bled. However, Dr Jones’ evidence was that it can occur without leaving any physical signs. K’s routine medical records were also available by the time of the fact finding hearing and Judge Moir drew upon them in a number of respects. They included a number of instances of K being thought to have a urinary tract infection. These included a record of K being presented to the general practitioner in November 2006 (when she would have been nearly six years old) with dysuria, vulval redness/soreness, a discharge in her pants and a slight streak of blood in her urine. Judge Moir dealt with this entirely appropriately, commenting (paragraph 24 of the judgment of October 2014) that there was nothing diagnostic about it, and that whilst it may be supportive of K’s allegation, it may equally be coincidental. Of more possible significance, for reasons I will explain in due course, the general practitioner records contained no record of K being taken to the doctor for constipation.[9]The appellant was arrested, interviewed and charged as a result of K’s allegations. Not long after he was charged, K contacted the police on 8 July 2013 in an attempt to bring a halt to any further action about what she said the appellant had done. This was the first of a number of incidences of her seeking to stop the care/criminal process either by saying she did not want things to proceed further or by retracting her allegations. At this stage she was not retracting the allegations, rather indicating that she did not want to pursue the case as she had had her justice for what had happened and the abuse had now stopped. On 18 July 2013, she made a police witness statement along these lines.[10]The appellant was due to appear at the Crown Court on 17 September 2013. On 16 September 2013, K contacted the police again, unhappy that the criminal case was proceeding. The same day, she and the paternal grandmother attended on the police and K said to DC Menzies that she had made it all up because she was jealous. On 7 October 2013, the paternal grandmother handed DS Fryer, who was working on the case, a handwritten note written by K and addressed to the officer. The note said that K wished not to proceed with the investigation as she felt she had found her justice. In it, she said, “[t]hrough the years I suffered the abuse I hoped it would finally end and now it has. I am his only victim and certainly the last of that I have been assured.” She said she wanted the case dropped and everything back to normal.[11]On 11 October 2013, DS Fryer spoke to K again. The police note made about this is not entirely unequivocal. It seems to be to the effect that K told DS Fryer that she had lied to DC Menzies when she said that she had made up the allegation, because she was so desperate for the case to be discontinued. She remained unsupportive of the prosecution.[12]DS Fryer was then contacted by the paternal grandmother on 16 October 2013 (the officer’s statement of 22 September 2014 says 16 October 2014 but this must be a mistake) with a request that she collect a further letter from K to the officer. In that letter, K said that she needed to confess before the situation got even further out of hand and that everything she had said was a lie. She said that she “didn’t think all of this would happen”, that she was sick of being pestered by police and social services personnel, and that she could not “apologise enough for everything I have done and caused”. On 29 October 2013, the prosecution offered no evidence against the appellant and the criminal case was discontinued.[13]K’s position appears then to have remained for some time that she had made up the allegations. She wrote a letter dated 14 February 2014 saying that the appellant was innocent and that the appellant’s children were at no risk and complaining of social services’ continuing intervention in the children’s family.

The steps taken by Judge Moir to safeguard K’s interests

[14]When she became involved in the care proceedings, Judge Moir was concerned that a care or supervision order may be necessary in respect of K as well as in relation to the appellant’s children. On 16 May 2014, she therefore directed the local authority to undertake a section 37 Children Act 1989 investigation of K’s circumstances. She appointed a guardian for K and provided for her also to have the benefit of representation by a solicitor, but K was not joined as a party to the proceedings.[15]The role of K’s guardian and solicitor was in part related to the section 37 direction and in part to the question of K giving evidence about the sexual abuse allegations. In respect of the latter issue, the remit as defined in the 16 May 2014 order was to ascertain information about K, including about her maturity and her vulnerabilities and as to what her wishes and feelings were about giving evidence and what support she has, and to advise whether she would be likely to suffer harm if she were to be called to give oral evidence. By order of 30 May 2014, the court set out five questions which were to be addressed to K by her guardian and solicitor. In summary, they were designed to find out whether she maintained that what she had told the police in the ABE interviews was true, and if it was not true, in what respects it was false and why she made the false allegations. She was to have the opportunity also to add anything else she wished to say about anything. K’s guardian was directed to supply an analysis of the position and her recommendation in the light of these investigations. It is clear that it was envisaged that this would provide certainty as to whether K now adhered to her allegations as true and relevant material upon which the judge could base her decision as to whether K ought to give evidence.[16]The section 37 report about K was to be separate and, rather than being disclosed generally in the care proceedings, would have to be the subject of an application for disclosure by any party who wished to have sight of it. Ultimately, there was no application for disclosure because the salient parts of the report were covered in a statement from the social worker, Ms Dodds, which was made available to all parties. Ms Dodds’ statement was undated but was thought to date from approximately September 2014. Not for the first time, I stress the importance of statements being dated and of the copy provided for court proceedings being a dated copy. It was not satisfactory that it was necessary to scrabble around during the appeal hearing in an attempt to attribute a date to Ms Dodds’ statement.

K’s position as ascertained by the social worker/K’s guardian

[17]K’s guardian produced two reports, the first dated 17 June 2014 and the second dated 28 August 2014. On 10 June 2014, she put the court’s questions (see above) to K. The guardian thought K was not comfortable answering them. Her response was that she had not told the truth in her ABE interviews and “it didn’t happen”. Asked why she told the police untrue things, she said she did not feel like answering the question. Asked what else she would like to say, she said:
“I don’t feel like my point has been put across and that I have been listened to. I told them I wanted it dropped. My best interests are that I didn’t want this to carry on in the way that it did. Fifteen months is a hell of a long time. There is nothing else I want to say. I am sick of it now. It is never ending.”
[18]The guardian reported in her first report that K was adamant that she wanted to give evidence in the family proceedings. However, the guardian thought K did not understand why she was involved in the proceedings or what giving evidence would entail. She was concerned for K’s emotional well-being if she gave evidence without first receiving further information about the proceedings and being fully prepared for the process. More time was therefore allowed for work to take place with K, which was carried out by Ms Dodds.[19]Ms Dodds’ statement describes her dealings with K and how K appeared to her. At no time in her dealings with the social worker did K retract her allegations or say anything to make the social worker doubt or question them. When she was asked by the social worker about her earlier retraction, she said “I did it to see the boys”. The social worker suggested to her that she would take it from her response that she was not denying that the abuse occurred but that she had retracted the allegations so she could see her nephews and asked if that was correct, to which K replied, “Yes”. Themes picked up by the social worker in conversation with K included the upset that the allegations had caused for others and the devastating impact of the involvement of the police and the local authority. K spoke of feeling guilty about the impact of the situation on the children.[20]In her statement, Ms Dodds says that K said to her on a number of occasions that she wished to give evidence so that people would listen to her and her views could not be twisted or taken the wrong way and that she had also said that she wanted contact with her nephews and would “do what I can” to get this. However, Ms Dodds said that “K has still not given any clear indication as to whether she plans to give evidence or not and as my final visit with her was cancelled, I was not able to get a definitive answer to her views”. Unfortunately, Ms Dodds’ statement does not stipulate the dates of most of her visits so it is impossible to know when she had last seen K and how this tied in with the guardian’s visit to K which is described in the guardian’s second report.[21]Ms Dodds voiced significant concerns about the impact on K’s emotional well-being if she gave direct evidence and said that she did not think that K would be able to withstand this. She also felt that K would struggle to manage “in depth questioning”. She did think that K needed to be given an opportunity to have her views heard and that it could cause further emotional difficulties for her if this did not happen and findings were made against the appellant. Ms Dodds suggested that another means could be used to enable her to communicate with the court, such as a letter or the opportunity to answer questions in writing.[22]K’s guardian saw K on 22 August 2014. K told the guardian that she had discussed giving evidence with Ms Dodds and had decided that she did not want to give oral evidence, either in the court room or via a video-link. However, she was very clear that she wanted to “get her point across”. The guardian discussed other possible options for giving evidence. K said she would be “ok” to answer questions in writing.[23]The guardian’s view was that K was “quite a very [sic] vulnerable young girl who does not fully understand her own emotions” and, like Ms Dodds, she did not believe that it was in K’s best interests to give oral evidence to the court. She felt that this would be distressing and traumatic for K and that the court would be unable to obtain any answers to questions as K would break down, bearing in mind that she had shown visible signs of distress even answering the five questions posed by the court through the guardian. The process would, the guardian felt, cause K emotional harm, reinforcing the guilt she already feels for breaking up the appellant’s family. She did feel, however, that it was important for K to “say her point” and that if the hearing progressed without her feeling that she had had her voice heard, it would trouble her emotionally, possibly for the rest of her life. To this end, she supported written questions set by the court being put to K, although she was unsure what K wanted to say except that she thought that she wanted to turn back time so that everything could be as it was.

New evidence since Judge Moir’s orders

[24]The appellant sought to adduce fresh evidence, relating to developments after Judge Moir made her orders, as part of his appeal. There was no opposition to his application and we allowed it. The evidence took the form of a statement from the appellant, exhibiting Facebook communications between himself and K in February and May 2015. According to the appellant, K initiated contact with him at his place of work and said she wanted to put things right. She subsequently wrote to him on Facebook to say that the situation was not fair on him or anyone involved and that she wanted to help him get back home with his children. The appellant, who has denied throughout that he has done anything wrong to K, responded as might have been expected, pointing out the consequences that K’s allegations had had. K said she would go to court herself and asked when the hearing was. After initial resistance, the appellant gave her the date in June and other details. K said she would be there, but did not in fact attend. Judge Moir’s judgments Re K giving evidence: judgment of 16 September 2014[25]Judge Moir observed, rightly, that her decision as to whether K should give evidence was not an easy one. Although K’s views had fluctuated, the judge proceeded on the basis that her present position was that she did not want to give oral evidence, either in court or by video link. The appellant’s then counsel submitted, with the support of the other parties, that matters would not be advanced very much by putting written questions to K with a view to determining her present position; Judge Moir agreed that that was probably correct. No other alternative to oral evidence was proposed by anyone and Judge Moir therefore worked upon the basis that the only realistic option for involving K in the process was by her giving oral evidence.[26]From Judge Moir’s judgment, it can be seen that her starting point was that a fair trial needed to take place, that a usual component of a fair trial was for the person against whom allegations had been made to have the opportunity to put questions to or to cross-examine the person making the allegations, and that “to deny any party within a hearing that fundamental right is a very serious step indeed” (paragraph 6 of the judgment of 16 September 2014). She recognised the central importance of K’s allegations in the care proceedings, which essentially turned on what she had said occurred. She had in mind Re W (Children) [2010] UKSC 12 and the Guidelines in relation to children giving evidence in family proceedings produced in December 2011 by the Working Party of the Family Justice Council.[27]Against this background, the judge set herself the task of considering what K giving evidence would bring to the determination of the truth of the allegations that she had made and balancing that against the possible damage to her welfare that would be caused by the process. In so doing, she looked at a considerable number of diverse factors including: i) K’s degree of maturity; ii) The availability of recorded ABE interviews; iii) The time that had elapsed since the events occurred; iv) The degree of support that K would have from her family or otherwise, and in particular the support offered by the paternal grandmother; v) The risk of delay being caused by arranging for K to give evidence; vi) K’s fluctuating views about giving evidence and her feelings generally, including her sense of responsibility for the rift in her family and the situation of the appellant and his children; vii) The appellant’s clear denial of the allegations, from the outset, albeit that the full detail of his case was not yet available; viii) The opportunity that there would be for the ABE evidence to be challenged in submissions; and ix) The lack of opportunity to cross-examine K if she did not give evidence.[28]The judge relied upon the advice of Ms Dodds and K’s guardian that K would not be able to deal emotionally with the impact that the process of giving evidence would have upon her, that she would struggle with in-depth questioning, and that it would be emotionally damaging for her to give evidence. The judge referred to the evidence of Ms Dodds that she had found K to be quite fragile and that on the last occasion on which they met, K had described herself as mentally unstable and said that she would often black out and pull her hair and that pulling her hair made her feel better inside. Judge Moir was satisfied that K was “a vulnerable young girl who does not understand her own emotions” (paragraph 15 ibid). The judge directed herself that an unwilling child should only very rarely be obliged to give evidence although it depended upon the circumstances. In this particular case, she questioned how much benefit it would be for the court to hear evidence now from K, summarising the position at the end of her judgment as follows:
“16. I am not certain how much benefit it will be to the court to hear oral evidence from K or whatever that evidence may be [sic]. Bearing in mind her vulnerability, the possible motives (by which I mean the fact that she is anxious to reunite her family), the fact that she has maintained the truth of the allegations and retracted the allegations at various stages and the fact that she is unwilling must raise concern as to the quality of the evidence which she will give, even if it was by video-link. 17. Overall, I have taken the view that K should not be required to give oral evidence for the reasons that I have outlined. Most particularly, I am not sure that it will assist the court very greatly, whether she maintains the allegations or denies them, but I am sure from the evidence that has been given that it will cause emotional harm to K, who is vulnerable in any event. In those circumstances, I do not take the view it is appropriate to take the exceptional course of requiring an unwilling young person to give oral evidence before the court.”

Re X and Y giving evidence: judgment of 29 August 2014

[29]X and Y, who were 13 and 15 in August 2014, supplied accounts of what K had said to them about being abused by the appellant. To recap, it was said that K first spoke to X about it in 2006 and again in about 2012. She was said to have spoken to Y in January 2013 and it was Y who was with her when she spoke to the teaching assistant in March 2013. X and Y had been the subject of ABE interviews in March 2013 which were video-recorded and were available to the court.[30]The appellant wanted the opportunity for his representative to cross-examine X and Y but the girls did not want to come to court and their parents did not want them to have to do so. There was evidence that they had been adversely affected by the process so far and that they were seeking support by way of counselling. A social worker had been requested to meet the girls and their parents in order to assist in the decision as to whether they should give evidence and recommended that neither should do so as it would not be in their best interests.[31]Judge Moir approached the question in accordance with Re W (supra) and concluded that it would not be proportionate to require oral evidence from them, bearing in mind the stress that this would occasion, and that their evidence would not be direct evidence of the abuse.

The fact finding judgment of 15 October 2014

[32]It is unnecessary to summarise the whole of Judge Moir’s judgment here; I will pick out only those features which are particularly relevant to the appeal. The judgment culminated in a finding in relation to each of the allegations of abuse upon which the local authority relied.[33]Early in the judgment, the judge said that, in her assessment of the evidence, she bore in mind that there had been no opportunity to cross-examine K, X and Y. She did, however, have oral evidence from a number of witnesses including the teaching assistant, the appellant, the paternal grandmother and Dr Jones. She viewed the DVD recordings of the accounts given by the girls to the police and she considered submissions as to the conclusions to be drawn from those interviews.[34]Judge Moir said that she found the evidence contained in the DVDs of each girl to be compelling (paragraph 21) and that she found the accounts that K gave to the police and others of the abuse “detailed and credible” (paragraph 29). However, it is clear from the judgment that she did not approach the accounts in isolation, nor did she accept what K had said uncritically. For example, at paragraph 21 she said:
“The interviews in themselves are not sufficient evidence upon which to base conclusions as to the truth or otherwise in respect of the allegations. Other elements of the evidence must be considered and effectively cross-referenced with the information provided by police interviews.”
[35]In the following paragraphs, the judge looked closely at K’s allegations about specific occasions on which abuse occurred and at what the appellant and the paternal grandmother had to say about them and at the other evidence. Certain matters she classed as neutral, notably the record of the visit to the general practitioner in November 2006 and the findings of the medical examinations of K which were carried out following K’s allegations. Other matters she found of relevance to her determination.[36]In this latter category were two matters which related to the paternal grandmother. One was the grandmother’s evidence that when she asked whether the appellant had touched K, this was a slip of the tongue (see above), which Judge Moir rejected. She was satisfied that the grandmother asked that because she suspected that something had occurred. Secondly, there was the grandmother’s attempt to establish that K had a history of constipation. Such a history would have been of potential significance in relation to the cause of Dr Jones’ findings. The grandmother told the social worker shortly before the hearing that K did suffer from constipation. However, relying on the absence of any record of general practitioner consultations about constipation and of any mention to Dr Jones of such a problem when she sought information about K’s bowel habits, the judge found that that was not so and that the grandmother had lied in her evidence in order to assist the appellant.[37]The judgment charts the history of retraction by K. The judge remarked upon the clarity with which, on 18 July 2013, K was saying that the offences had occurred, although she wanted the prosecution to stop, and commented that she did not know what pressures K had been put under but that it was clear that she felt responsible for the terrible stresses in the family. She noted specifically the retraction in October 2013 when K said she had been lying, and the letter of 16 February 2014 in which she said the appellant was innocent. She also noted K’s comment to her guardian in August 2014 that she just wanted everything back as it was so that the appellant could live with the boys and she could see them. Judge Moir’s conclusion, having assessed the material available, was that the allegations were true and the retractions had arisen partly because of pressure from the family but largely because of K’s own feeling of responsibility for breaking up the family and her own strong desire to see her nephews. For a number of reasons, she rejected the notion that, as the appellant and the paternal grandmother asserted, K had made up the allegations because she was jealous of the attention that A was getting or for some other reason. The grandmother and other witnesses had said that K was usually a truthful person and did not cause trouble whereas, the judge noted, if her allegations were mere attention seeking, they would have required exceptional forethought and planning assuming X and Y were to be believed. Furthermore, there was evidence that K had been frightened that no one would believe her; why, the judge asked, make up allegations that you think no one would believe?

The appeal

[38]It is convenient to start considering the appellant’s appeal with Judge Moir’s decision that K would not give evidence. The appellant challenged this on the basis that the judge failed to conduct the appropriate balancing exercise and to give sufficient weight to the fact that this was a single issue case which hinged on the credibility of K’s evidence. It was said that she was wrong to conclude that K was too vulnerable to give live evidence and, in any event, gave too much weight to K’s welfare. It was further submitted that the judge was wrong to treat K as an unwilling witness when she had changed her mind about giving evidence and had not been asked about it sufficiently proximately to the judge’s decision. The consequence of the appellant’s inability to challenge K was, it was asserted, that he did not have a fair trial and there were violations of Article 6 and Article 8 ECHR.[39]Judge Moir was right to turn to Re W (supra) for guidance in making her decision as to whether K (and the other girls) should give evidence. This court has had occasion to consider and apply Re W a number of times in recent years, including in Re B (a child) [2014] EWCA Civ 843, Re B (Child Evidence) [2014] EWCA Civ 1015, Re R (Children) [2015] EWCA Civ 167, Re D (Children) [2015] EWCA Civ 409, and nothing that I say here is intended to alter the existing jurisprudence in any way, nor indeed to substitute for a full reading of Re W itself.[40]The impact of Re W is to sweep away what Baroness Hale described as “a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child” (paragraph 22 of Re W). Following Re W, in order to decide whether a child should give evidence, the court is required to carry out an evaluation of the particular case before it. As Baroness Hale said in paragraph 22:
“Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002, BAILII: [2002] ECHR 551. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.”
[41]When considering whether a particular child should be called as a witness, the court has to weigh two considerations, namely the advantages that calling the child will bring to the determination of the truth and the damage it may do to the welfare of this or any other child (paragraph 24 of Re W). On both sides of the equation, the court must take account of what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child (paragraph 27 ibid).[42]All sorts of factors will enter into the court’s deliberation, as can be seen from paragraph 25 and 26 of Re W, the precise mix depending on the facts of the individual case. In the context of this case, it might be worth noting specifically that in paragraph 26 Baroness Hale said, “We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence.” I would also note that she went on to say later in that paragraph that in taking the risk of harm into account, as it must always do, the court does not need expert evidence.[43]In the passage which I have quoted above from paragraph 22, Baroness Hale forecast that the result of striking the balance may well be that the child should not be called to give evidence in the great majority of cases. In paragraph 30, having observed that the “essential test is whether justice can be done to all the parties without further questioning of the child”, she predicted that the consequence of the balancing exercise that has to be done by the court “will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child”. And in paragraph 31, she stressed that although the issue of the child giving evidence should be addressed, that was not “an invitation to elaborate consideration of what will usually be a non-issue”. It was perhaps with these observations as to the comparative “rarity” (a word used in paragraph 30) of children giving evidence in mind, that at paragraph 23, Baroness Hale observed that the court “cannot ignore relevant evidence just because other evidence might have been better” but “will have to do the best it can on what it has.”[44]Since Re W was decided, further contributions have been made on the subject of children’s evidence, initially by the Family Justice Council and latterly by the President’s Vulnerable Witnesses and Children Working Group which produced a final report in March 2015. In addition to relying on passages from the March 2015 report, Mr Bagchi QC invited our attention to the developments in criminal cases, including the use of intermediaries, and to the “Vulnerable Witnesses and Parties in the Family Court Toolkit” produced by The Advocates’ Gateway in November 2014.[45]Drawing on this material, much was made during the appellant’s oral submissions of other ways in which the court might have investigated K’s allegations with her. Amongst the possible methods were said to be using an intermediary or other special measures, pre-recording cross-examination in which questions were put which had been approved in advance by the court, or arranging for K to have a meeting with the judge (possibly not at court but in the presence of the advocates) at which the judge put questions covering pre-planned topics. Mr Bagchi QC went so far as to submit, relying on paragraph 17 of Re R, that K’s welfare required her to be given the opportunity to have her say by some means.[46]None of the alternatives which were highlighted during submissions to us was advanced to Judge Moir as a real possibility. However, recognising the seriousness of the findings made against the appellant and their consequences for the family, and recognising also that judges may have their own role to play in considering the means by which a problem such as the one that arose here over K’s evidence can be overcome, we did not curtail Mr Bagchi’s argument on the subject. Similarly, although some of the more recent material on the subject of children giving evidence was not available to Judge Moir, I have nonetheless paid attention to it as part of my consideration of this appeal. However, in this particular case, it seems to me that considerable weight has to be given to the fact that those who had the best chance to evaluate the evidence - the professional witnesses, the experienced legal representatives for the parties and a judge with enormous expertise in family law gained over many years – do not appear to have thought there to be any intermediate option which would enable K’s evidence to be effectively pursued further with her. It is important to recognise the very considerable efforts which had been made over a period of some months preceding the September 2014 hearing to explore K’s position through her meetings with Ms Dodds and by the appointment of a guardian for her. These resulted in Judge Moir having a significant amount of evidence about K, her allegations, and how she was reacting to the court proceedings and to her situation generally, and also professional advice about K’s welfare.[47]It is important also that appellate judges remind themselves that they are not making the decision in question themselves but reviewing it, often from a less advantageous position than that of the first instance judge. It has been said many times that the Court of Appeal will rarely interfere with case management decisions (which is what this decision of Judge Moir’s was, albeit a case management decision of central importance), see for example Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5 [2013] 1 FLR 1250. Such a decision can only be overturned if the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge (paragraph 35 ibid).[48]Judge Moir based her decision about K on a number of elements. The options available for obtaining further involvement of K, and K’s wishes about giving evidence, were an important part of the picture, but only part of it. The judge approached her decision on the basis that K was unwilling to give evidence, recognising however that she did want to “get her point across” (see for example paragraph 11 of the September 2014 judgment). I would not criticise her for this approach, which was realistic given that K’s wishes were undoubtedly fluid and, at the point she was last seen by a professional, were that she did not want to give evidence. K’s guardian and Ms Dodds were looking after her interests and, had it been thought necessary and/or desirable and/or potentially useful for someone to ask K again, just before the September 2014 hearing, whether her stance had changed, I have no doubt that that would have been pursued. As it happens, the fresh evidence is useful in that it shows that in fact K’s ambivalence appears to have continued, in that she asked for and was told details of a later court hearing which she intended to attend but then did not do so.[49]Judge Moir directed herself properly as to the law which was relevant to K’s participation in the hearing. She certainly did not presume that K would not give evidence. Her judgment leaves no doubt that she gave appropriate weight to the need for a fair trial and the importance of enabling the person against whom allegations have been made to pursue those allegations with the person making them. Similarly, the careful process which was adopted over several months in an attempt to ensure that a properly informed decision was taken about K giving evidence shows the importance that was attached to the issue.[50]I have set out above the diverse factors to which Judge Moir had regard. It is understandable that she questioned the value to the court of oral evidence from K, given the matters to which she made reference in paragraph 16 of her judgment (quoted supra) and given what she had been told about K’s ability to handle questioning. She was obliged to take into account, as she did, the advice she had received about K’s vulnerability and the potential effect on her of taking part in the proceedings. In my judgment, she cannot be faulted for the balancing exercise that she carried out, in which she considered the relevant factors and arrived at a decision which I do not think can be described as wrong. Some judges would have taken a different decision but that is simply a reflection of the delicate and difficult nature of the decision that had to be made and of the fact that there was no obviously right answer. I would not therefore allow the appeal against the judge’s decision that K should not give evidence.[51]Before I leave this part of the appeal, there is one other matter that might usefully be mentioned. During the appeal hearing, the question arose as to whether the judge could have compelled K to give evidence if she remained unwilling to do so. I am grateful to counsel for efficiently providing an agreed note of the legal position immediately following the hearing. As that note recognised, the question of whether a court can/should use its powers to issue a witness summons in relation to a reluctant child in family proceedings has not been considered by the Court of Appeal or the Supreme Court since the Supreme Court’s decision in Re W (supra). The present case was not one in which we needed to hear oral argument on the subject and I would not wish to be thought to be expressing any view about it. However, it may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.[52]Judge Moir’s decision about X and Y giving evidence is criticised on procedural and substantive grounds. It was argued that it should not have been taken when it was because trial counsel was unexpectedly unavailable that day because of ill health and counsel who attended was not able fully to advance the appellant’s case. It was submitted that the decision was wrong in substance because the evidence of these witnesses should have been approached in the same way as it would have been in a criminal trial, that is they would have given evidence. The judge is also criticised for failing to consider whether the girls might have given evidence with the assistance of special measures.[53]I am not persuaded that Judge Moir’s decision on this score can be faulted either. Notwithstanding the discomfiture of counsel who had to pick up the appellant’s case on that day at short notice, the judge took into account the relevant matters and arrived at a decision which was open to her. She was entitled to take into account that a significant part of the girls’ contribution would be hearsay. She was also entitled to consider the adverse effect that the proceedings had had on them so far and the stress that would be involved in giving evidence. I would therefore dismiss the appeal against Judge Moir’s decision in relation to X and Y as well.[54]That brings me to the judge’s findings of fact. I should say immediately that the appeal must, in my view, be allowed to the limited extent that the judge’s findings of anal abuse should be discharged. There was no complaint of anal abuse by K and the medical evidence was insufficient to found a finding of it. Miss Langdale QC for the local authority conceded that in the circumstances it was difficult to sustain the finding. Mr Stonor QC for the guardian did not seek to support the anal findings either.[55]It was submitted that the judge was wrong to make the balance of the findings on the basis of the untested evidence which she had. The appellant submitted that she had not given sufficient weight to the fact that the father had no opportunity for cross-examination, for example when evaluating the cogency of the ABE interviews which she found to be compelling. The mention that the judge made of the lack of opportunity for cross-examination at the end of paragraph 5 of her judgment was criticised as insufficient. I do not accept that. What the judge said in that paragraph was a clear statement at the outset of her judgment of her intention to assess the evidence bearing in mind that the appellant had not had an opportunity to cross-examine K, X and Y, with the necessary implication that she would be cautious about it for this reason. The rest of her judgment gives no reason to suppose that she failed to do as she intended. There was no need for her to repeat her awareness of the point or to go into more detail about the ways in which it obviously hampered the appellant’s presentation of his case.[56]I set out above how Judge Moir did not simply accept what the girls had said as sufficient to found findings, stating explicitly that it was not sufficient to look at their interviews alone. Accordingly, she sought confirmation elsewhere of the information that had emerged from them. I will not repeat here the details of the other elements of the evidence upon which she relied but note in particular her justified reliance upon the telling comment by the grandmother, which the grandmother had attempted to explain away as a slip of the tongue but which was capable of suggesting suspicion on the grandmother’s part about the appellant’s actions. The judge was well aware of K’s retractions of her allegations and properly considered the implications of these and what may have been behind them. The judge considered the explanations offered for K making up false allegations but was entitled to reject them for the reasons she gave.[57]I would therefore dismiss the appeal against Judge Moir’s findings of fact, with the exception of the particular findings to which I referred at paragraph 54 above.[58]It is with considerable diffidence that I disagree with views expressed by such experienced family judges as Lady Justice Black and HHJ Moir. This court is rightly very cautious about interfering with case management decisions and second-guessing findings of fact made at first instance by careful family judges. However this case has left me with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment dated 15 October 2014 (the order in relation to which is inappropriately described as a “case management order”) in which she held that the Appellant had indeed sexually abused his sister, K. That concern is aggravated by the fact that, as my Lady, Lady Justice Black, has held (and as I agree) there was no basis for HHJ Moir’s finding that the Appellant had anally abused K.[59]The critical features of this case may, in my judgment, be summarised as follows: i) The single issue was whether the Appellant had abused K. ii) The case against the Appellant depended entirely on the veracity of K’s allegations. iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred. iv) There was no medical evidence of vaginal penetration, despite K’s repeated allegations that she had had full penetrative sex and that she was “no longer a virgin”. In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that “penetration through the hymen can occur without leaving any physical signs”; see paragraph 30 of the judgment. v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions. vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a “mature young person who had the capacity and competence to give instructions.” The social worker who assessed described her as a “determined and strong willed individual who speaks her mind”, and also observed K as being “quite fragile in her presentation and lacking in self-esteem.” vii) In deciding whether K should give evidence, the judge relied upon the opinion of K’s guardian and the social worker to the effect that: “I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling. …. I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]”. viii) On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge. ix) As a result of the judge’s ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called “vulnerability, a fragile presentation and her lack of self-esteem”, the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K’s case. x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights (“the ECHR”) to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.[60]In my judgment HHJ Moir’s case management decision dated 15 October 2014, in which she decided that K should not be called as a witness, failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12 namely: the advantages that a child giving evidence will bring to the determination of the truth; and the damage which it might do to the welfare of the child witness. In my judgment, there was no adequate medical, or indeed other, evidence, apart from the vague and dubious views of K’s guardian and the social worker, to support the conclusion that it would be so harmful for K to give evidence that she should not be asked to do so. Nor was there any adequate analysis by the judge as to why those concerns trumped the entitlement of the Appellant to question why she had retracted, or, at the least, to some extent resiled from, her previous allegations.[61]As to the first consideration, K was at the time of the fact-finding hearing 13 years and 10 months old and had no cognitive impairment. There was no reason on age and maturity grounds why she should not have been called as a witness. She had displayed as a person who was at least to some extent prepared to exert pressure on the authorities to force the outcome of the criminal proceedings. She clearly had differing attitudes at different times as to whether she wanted, or was prepared, to give evidence. She was a mature young person who had been described as a “determined and strong willed individual who speaks her mind”; see above. Her allegations were extremely serious. There was, in my judgment, no adequate consideration by the judge as to whether K should be required - and indeed whether it would be in K’s interests for her to be required - to give evidence, which either stood by her previous allegations, or which explained the circumstances in which she had resiled from them. Whilst, whether her allegations were true or false, it might well have been distressing or demanding for her to have given evidence, there was no psychiatric or psychological evidence to support the idea that it would have been mentally damaging for her to have given evidence. There was no consideration by the judge as to the advantages to K personally of facing up to the consequences of the allegations which she had made, whether they were true or false, or as to the disadvantages to her of being allowed to avoid responsibility for the consequences of her allegations by not being required to attend trial.[62]Moreover, it was extremely unclear whether K was an unwilling witness or not. She changed her mind frequently about wishing to give evidence in the months leading up to the judge’s ruling and had not been asked in the weeks prior to the ruling whether she would, in fact be prepared to give evidence (whether with or without special measures). Indeed it is significant that the final order dated 8 December 2014 recites the fact that K “would like to meet with the judge”, although the judge ruled that this could not take place until the proceedings were over.[63]In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others. The fact that counsel for the Appellant did not raise the possibility of the judge questioning K in the presence of counsel, but in the absence of the parties, by reference to questions agreed in advance, does not seem to me to be a reason why the judge should not have given consideration to such an option or other alternative options. This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.[64]As to the second consideration, in my judgment there was no adequate consideration by the judge of the impact on the Appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the Appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the ABE interviews conducted before K sought to retract, or sought not to proceed with, her allegations.[65]For the above reasons, I would have allowed the appeal against the judge’s case management decision dated 16 September 2014. In my judgment the judge failed to appreciate that the critical issue was whether or not the Appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way. In my judgment the judge failed properly to apply the guidelines set down in Re W, which reflect the paramount consideration that a party should have a fair trial.[66]I should say that, so far as the evidence of the K’s two friends are concerned, such evidence was clearly hearsay and should have been afforded very little evidential weight, since, in all the circumstances, it could have provided very little corroborative support for K’s own evidence.[67]Likewise, for the above reasons, it seems to me that the judge’s conclusions in her fact-finding judgment dated 15 October 2014 are clearly open to serious doubt. I do not see how, in the absence of up-to-date evidence directly from K herself, as to the retraction and/or reluctance to proceed with her allegations, the judge was able to conclude that she could rely so heavily on the ABE interviews, or come to the conclusion, as set out in paragraphs 38-39 of the judgment, that K’s allegations were true and that her retraction had arisen partly because of pressure from her family, but largely because of her own feeling of responsibility for breaking up her family and her own strong desire to see her nephews. The inferences which the judge drew from the documentary evidence in my judgment cannot be supported in the absence of up-to-date direct evidence from K herself.[68]I also regard the judge’s analysis of the evidence of the Appellant as inadequate. There is no, or no adequate, explanation by the judge as to why she felt able to reject his evidence that the alleged abuse never took place.[69]In my judgment the judge failed to give proper consideration to the fact that the burden of proof lay on the Local Authority. She had no basis for concluding on the balance of probabilities that K’s serious allegations against the Appellant had been proved. In the absence of any opportunity afforded to the Appellant to challenge K’s evidence that was not a conclusion which I consider she was entitled to reach. In my judgment, the Appellant did not have a fair trial in accordance with his rights under Article 6 of the ECHR and, as a result, his Article 8 rights and those of his infant sons, have been seriously infringed.[70]I would allow the appeal and set aside the findings of HHJ Moir. I would rule that no findings adverse to the Appellant in relation to the allegations of sexual abuse could properly be made on the evidence available to the judge. But since Black and Vos LJJ consider that the appeal should be dismissed, that will be the order of this court.[71]This has been a sad and difficult case, but I have been left in no doubt as to the outcome. I agree with the reasoning and conclusions reached by Lady Justice Black and would, save in the single respect she mentions, dismiss the father’s appeal.[72]On the central question of whether the judge was right to decide that K should not give evidence, it seems to me that the balancing exercise envisaged by Baroness Hale in Re Wsupra was properly, albeit briefly, undertaken. In particular, I do not accept Lady Justice Gloster’s suggestion that there was no adequate consideration of the impact on the father’s case of the inability to cross-examine K as to her allegations and retractions. The judge started by reminding herself in paragraphs 6 and 7 of her 16th September 2014 judgment that the primary objective had to be achieving a fair trial (for the father). She then said, correctly, I think, that she had to look at the advantages and circumstances that K giving evidence would bring to the proceedings and the determination of the truth of the allegations she made, and balance that against any damage to her welfare. That is the exercise the judge undertook, relying on the evidence of the professional witnesses as to the likely damage to the welfare of K. When the judge considered how K’s evidence would assist in determining the issues, she questioned, correctly I think, how much value the court would be able to place on K’s oral evidence. The judge must have had firmly in mind the detail of the retractions that were before the court that seemed to have been expressly motivated by family pressures and her desire to see her nephews. She might legitimately have wondered, as I did during the course of the appeal hearing, how the decision-making process would have been advanced however firmly her retractions were adhered to in the witness box. The judge would still have been faced with the difficult task of evaluating the large volume of earlier contradictory evidence as to what had really occurred.[73]I would not wish it to be thought that I am in any way depreciating the importance of allowing a party to cross-examine his accuser, particularly when the allegations are so grave, the consequences so life-changing, and when there has been such inconsistency. But that does not mean that the Re W balancing exercise can start with a presumption that the child will be called. Rather, the balance between the advantages that the evidence will bring to the determination of the truth and the damage that the evidence may do to the welfare of the child must be undertaken from a neutral starting point. I think the judge undertook the exercise that was required appropriately and reached an entirely sustainable conclusion. In these circumstances, this court should not interfere. I should say, however, that, had I been undertaking that exercise, I would have reached the same conclusion.

Cited in 1 later judgment