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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2002] EWCA Civ 1508 (11 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1508.html Cite as: [2002] EWCA Civ 1508

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOLVERHAMPTON COUNTY COURT
(HIS HONOUR JUDGE CAVELL)

		Royal Courts of Justice Strand London, WC2 Friday, 11 October 2002

1. MR JUSTICE BODEY: This is an application by a father for permission to appeal an order by Judge Cavell, dated 21 September 2001, sitting at the County Court in Wolverhampton. The application concerns his youngest son, C, born on 6 October 1993, who was therefore aged seven at the time and is now aged nine. There are two other children of the family, a girl who is now aged 13 and a boy who is now aged 10.
2. The father is out of time with this application and therefore requires the court's indulgence by the extension of time to make this application.
3. The order concerned directed that the child C should live with the mother and it set out some supervised contact, of a fairly limited nature, to the father. There was then a review listed to take place in February 2002 on the question of contact and the father was ordered to pay the costs of the application, subject to the usual protections by reason that he was a publicly-funded litigant. That is the order in very short summary.
4. Through most of these childrens' lives since the parties separated in May 2000 (although in C's case not for all his life, because the grandparents have played a rôle for a short period of time) these children have lived with the mother. However, the father has for some considerable time been very worried and concerned as to the mother's behaviour with C. He says that she has sexually abused him.
5. Taking it very shortly and omitting a huge amount of the history, in February 2001, during contact, C said things to the father which strengthened the father's belief that the mother had been sexually abusing C. The father, unable to get the authorities concerned, himself videoed an interview with the child. He sent a copy of that video to the authorities and failed to return the child to the mother when the mother was expecting him back after contact.
6. Court proceedings became necessary to sort out what was to happen, and temporary arrangements were made for C's residence which involved the help of the grandparents and an uncle and aunt. Subsequently to the father's video of himself interviewing C, the police and social services decided to carry out what is called a "Memorandum Interview", in which C made allegations of sexual abuse of himself by the mother. Those allegations were investigated by the relevant authorities and no steps were taken, it not being felt that sufficient reliance could be placed upon them.
7. Amongst the many other issues and cross-allegations in this matter, these allegations of sexual abuse are the ones which, as I think, have caused the father's greatest concern and which largely led to the hearing on 21 September 2001 in respect of which this attempted challenge is mounted.
8. There are essentially two grounds of appeal, which are augmented by the father's Skeleton Argument. If I may say so, the father has also made very clear, coherent, restrained and helpful submissions to me this afternoon, further enforcing his application.
9. The first ground is that there was no expert evidence available to the judge as to the veracity and circumstances of C's allegations of sexual behaviour against the mother. The second ground is that the judge was unaware of or overlooked that the Memorandum Interview had taken place at all, and therefore gave his Judgment in ignorance of it.
10. As to the first ground, in fact a psychologist had been ordered to prepare a report during the course of the preparatory stages of the run-up to the final hearing. He was a Dr Hugh Koch, a chartered clinical psychologist. In his CV he refers to specialising in personal injury, post-traumatic stress disorder and related disorders and chronic pain. He has practised as a psychologist since 1976. He saw C and subsequently prepared a report dated 14 May 2001.
11. It was a report written in general terms and was not specific to the issues of C's allegations of sexual abuse against the mother. The father felt that that was no good and further applied to the court for a more specialist psychologist to become involved, but on 28 June 2001 a district judge dismissed that application.
12. The father suggests that one reason for the judge overlooking the "Memorandum" allegations made by the child against his mother was this very fact, namely that there had been no expert to consider the veracity and circumstances of the Memorandum Interview.
13. In my judgment, in this respect the Court of Appeal would say that the instructions to Dr Koch were joint instructions (as his report shows) so that the ambit of Dr Koch's work was open to choice and agreement by those who gave him his instructions. He could perfectly well have been asked to give a view on matters such as the child's demeanour on the "Memorandum" video tape and whether the things the child was saying had a resonance of likelihood for a child of that age. But that was not done.
14. The Court of Appeal, in my judgment, would also say that it was a matter for the father to ensure at the appropriate time that the appropriate evidence he felt relevant and necessary was before the court: thus if he did not like the district judge's decision not to give permission for a second expert, then he should have appealed that decision to the circuit judge and asked the circuit judge to take a different view (although I have to say there was no great prospect in this respect, since the court tries to protect children from expert over-involvement and interviewing). However, in the event, the hearing went ahead in September 2001 with just the evidence of Dr Koch, because that is what the court in its case management function had felt was the appropriate evidence to be available at the final hearing. So as regards that ground, I am unpersuaded that there is any merit.
15. As to the second ground, it is quite true to say that there is no specific reference in the Judgment to the Memorandum Interview performed by the police and the social services. However, there was before the judge a very full report under section 7 of the Children Act 1989 prepared by the Wolverhampton Social Services. It was written by a Denise Distant, who gave evidence before the judge, and it was dated 24 May 2001. In that report she said this:

"On 08 February 2001 Social Services received information from WPC Barrett, that [the father] was concerned that his wife was sexually assaulting their son, C. [The father] informed that C was now ready to disclose information in respect of the abuse. [The father] was advised that the police would make contact with Social Services so that the matter could be jointly investigated.

On 12 February 2001 WPC Barrett contacted Social Services and advised that C had contact with his father at the week-end and he [the father] refused to return C to mother as C made further allegations of abuse, which father recorded on video and passed to the police. [The mother] had reported C missing to the police as [the father] was currently in hiding with C. A Pre-Investigative Planning Meeting was held later that day. The father attended the latter part of the meeting and agreed to bring C with him so that Social Services could see that C was safe and well.

In the [Pre-Investigative Planning Meeting] [the father] outlined that C first disclosed that he was being abused again, by his mother on 10 January 2001, and then on each visit since [the father] admitted that he questioned C during week-end contact to establish if the inappropriate touching had stopped.

[The father] outlined on Sunday 11 February 2001 C talked about he and his father running away together, and asked if they could make the video, give it to the police and then run away. [The father] outlined that he then made the tape of C making the disclosure alleging his mother has sexually abused him.

The [Pre-Investigative Planning Meeting] recommended that C be Memorandum Interviewed. The interview took place at [a] Police Station at 5.30 pm later that day. C alleged that his mother touches his tinkler and kisses his tummy. He outlined she usually touches his tinkler when he is in the bath or when he sleeps in her bed, when no-one else is around .... "

16. As regards C's wishes and feelings, the section 7 report referred to C having previously expressed a wish or a preference to live with his father and having consistently expressed this wish:

" . . .  C outlined that he would prefer to live with his father because he brought him Pokemon cards and allowed him to drink Pepsi and his mother did not allow this. C did not raise any Child Protection concerns as a reason why he did not wish to live with his mother.

Paul Samuels' observations were that C interacted well with both parents. However he acknowledged that [he] was noticeably more affectionate with his mother and was the instigator of more of the affectionate behaviour between him and his mother."

17. As regards the relationship between the siblings, the section 7 report said that this had constantly been positive:

" . . .  The siblings present as a close knit unit with well formed and appropriate relationships interactions and play. Social Services share the view expressed by Albert Watson in his Court Welfare Report dated 14 September 2000 which outlined that separating a child from their siblings serves to promote the risk of sibling rivalry and can also be divisive."

The section 7 report said that social services' observations of C whilst in the care of the mother had "highlighted no cause for concern: their interactions were appropriate and positive".

18. In the conclusion and recommendations of that report, Denise Distant said:

"Despite investigation there is no evidence or information at this time to substantiate the concerns raised. Social Services do not share [the father's] views that C is at risk from his mother [and] would support the recommendation  . . .  that C should remain in his mother's care. This recommendation would mean that C could enjoy the benefits of being reared with his siblings, and return him to familiar and longstanding patterns of routine and care."

19. The order of 21 September 2001 under challenge today shows that both parties had counsel at that hearing. As I have said, Denise Distant gave evidence and was therefore either cross-examined or available for cross-examination. Given that (although I share the father's surprise to an extent that there is no reference in the judgment in terms to the Memorandum Interview) I regard it as most unlikely that the Court of Appeal would conclude that Judge Cavell was completely unaware of or completely overlooked the Memorandum Interview, even though he omitted express reference to it from his judgment. He may well have considered, given that the social services had not been persuaded by C's allegations against the mother, and given that C was caught up in the relationship between his parents, that the Memorandum Interview did not and would not affect his thinking in any very significant way.
20. Any professional who deals with this sort of work involving allegations of sexual abuse is well aware of the "Cleveland Guidelines" and much other advice given on speaking with young children about allegations. Bitter experience shows that once a child's allegations have been made and questioned about in a less than satisfactory interview or environment, then the waters are very often muddied to the extent that the court is often unable to determine where the truth lies. (Hence the need for specialist interviewers.) That may well have operated in the learned judge's mind here.
21. But at the end of the day, the judge believed the evidence of the mother when he held that he was "totally satisfied that this mother has in no way treated [this child] to any sort of sexual abuse or in any inappropriate way." That was a judgment for the judge to make, who saw and heard the witnesses, and it would be open to him even though C was saying things about the mother in a Memorandum Interview. He referred to the "strong bond" between C and his siblings as reported by Denise Distant (whose evidence he accepted) and in the round, he made the orders for residence and contact which I have outlined.
22. I have reflected carefully, having heard the father this afternoon, on the absence of a specific reference in the judge's Judgment in to the Memorandum Interview of February 2001. If it is any consolation to the father, I follow his thinking about it completely. If this had been brought up promptly it is possible that permission might have been given to go to the Court of Appeal but, unfortunately for the father, it was not and life has now moved on by 13 months. I am frankly not satisfied by the father's explanations for the delay in seeking permission to appeal. There has to be some finality in cases such as this so far as it can be achieved (although obviously all orders relating to children in the last analysis are reviewable).
23. So at the end of the day, I have not been persuaded to extend time for Mr Barry to apply for permission to appeal, and at this distance, even if I had extended time, I would have refused permission to appeal.
ORDER: Applications refused