[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D (Children), Re [2002] EWCA Civ 526 (10 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/526.html Cite as: [2002] EWCA Civ 526

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT COUNTY COURT
(Her Honour Judge Case)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 10th April 2002

Wednesday, 10th April 2002

1. LORD JUSTICE THORPE: These are applications for permission to appeal an order made by Her Honour Judge Case on 21st December 2001, sitting in the Newport County Court. The applications were directed for an oral hearing on notice, and we have had the advantage of, and are grateful for, very full submissions made in support of the applications by both Mrs Crowley QC on behalf of the mother and Mr Jenkins QC on behalf of the father.
2. As the judge defined at the outset of her judgment, she was concerned to find whether the section 31 threshold had been met in the local authority's application for a care order in respect of two children, B1, 12 years of age, and B2, now just about one year of age. The mother of both children was TD, who in 1991 had married LD, a man who was some 10 or more years her elder. He was, however, not the father of either of the children in the case for reasons which it is unnecessary to define. The judge had to consider the local authority's case that the father was a grave risk to children, having sexually abused a number of children in his neighbourhood, including B1. She also had to consider the local authority's case that the mother had flagrantly failed to protect the children from her husband's abuse, and also that the mother had herself been directly involved in some act of sexual abuse, acting as the accomplice of her husband.
3. The Children Act proceedings had been initiated in May at a time when the father was serving a sentence of imprisonment. The sentence was the culmination of criminal proceedings in which four children had been alleged to have suffered sexual abuse at his hands. The proceedings had culminated in mixed verdicts, with acquittals on every charge save one, where the jury, by a majority, found the father guilty of having sexually abused his niece, S. That conviction was subsequently quashed in the Court of Appeal, when the Court of Appeal admitted fresh evidence from one child who had originally made a complaint against the father but who had subsequently retracted. So those who were engaged in the Children Act proceedings, particularly the parents, came to the experience having been through protracted proceedings in the criminal justice system and, no doubt, with expectations that were influenced by that experience.
4. The judge had held directions hearings in October and November 2001 in which she had given rulings on applications as to which of those children making allegations should be made available for cross-examination. She had decided against an application that B1 should be made available for cross-examination, but provision was made for three of the children to testify, namely S, whose evidence had been accepted by the majority of the jury, and two children who had raised complaints after the completion of the criminal proceedings, namely the G twins. I would emphasise that this preliminary hearing in the family justice system is extremely unusual in that three of the alleged victims of adult abuse were made available for cross-examination.
5. The judge at the outset of her judgment stressed the importance that she attached to the experience she had had of listening to the witnesses as well as observing their demeanour in the witness box. She explained that her initial expectation was that the issue could be satisfactorily decided more or less on the documents and on the video interviews. But she explained that, in the event, the process of extensive oral evidence, including the oral evidence of the alleged victims, had enabled her to make a far more complete finding of fact in relation to the issues than she would otherwise have been able to do.
6. The findings she summarised early in her judgment. They were that the father was a serious danger to young children and that he had sexually abused children as young as five. She found that he has a strong influence over the mother and that he had groomed her to defend his abusive actions, and that it was under his influence that the mother had to some extent participated directly in abuse of children by rubbing cream into their genital areas. So she concluded the summary by saying:

"... I am satisfied on the evidence before me that both LD and TD pose a danger and a risk to children, although LD is by far the greater danger."

7. The judge then went on to review the evidence witness by witness, making clear findings as to the value of each. By and large she accepted the evidence of the witnesses called on behalf of the local authority, attaching particular weight to the evidence of C, the mother of the G twins. She was equally clear in rejecting the evidence of both the mother and the father. She specifically found that the mother was prepared to do anything to get her children back. She found that that extended to deliberate attempts to mislead the court. She further found that the father had told the guardian that he had only seemingly separated from the mother in order to strengthen her application to care for her youngest child.
8. The attack on the judgment, which has been very ardently urged by both leaders in their skeleton arguments and in their oral submissions, is that the judge has completely failed to deliver a sufficient intellectual analysis of the detailed evidence to justify these very clear conclusions. As Mr Jenkins has submitted, she has accepted the local authority's case lock, stock and barrel, without qualification, without rejection of any part of it and without any seeming hesitation. He says - and there is much common ground between his submissions and those of Mrs Crowley for the mother - that there were inconsistencies and conflicts, particularly within the evidence of the children, both internally and between the evidence of each, which simply had to be dealt with by the judge, and that her failure to face these evidential difficulties is such a fundamental failing that the case justifies the consideration of the full court.
9. The detail of these asserted inconsistencies and conflicts has been very clearly spelt out, particularly by Mr Jenkins. It would be possible to record these criticisms and complaints in this judgment, but I do not think it necessary to do so. I think it is necessary only to emphasise the nature of the task that the judge was performing. Her ultimate responsibility was to decide an application for care orders. Underlying that would be her responsibility to decide what should be the future for B1 and B2. It is worth recording that, whilst the children had been removed from the mother's care at the outset of the proceedings, they had been returned approximately five weeks later and at a time when her husband was again at liberty. The local authority had considerable misgivings as to the asserted separation between the couple and were clearly not impressed by the divorce proceedings which had been taken through to decree nisi stage at the date of the trial of the preliminary issue. So this was a case in which the judge's determination of the future of these two children would proceed against that background.
10. The hearing set for December 2001 was only a preliminary hearing to establish whether or not the section 31 threshold had been crossed. It was not in any sense a process of trial for either the mother or the father. Of course, Mrs Crowley is right to emphasise that specific findings made during the course of a split trial are influential and may be devastating for a parent who aspires to rehabilitation. But this was not such a case. The mother was at the date of the hearing, and had been for the preceding months, entrusted with the daily care of the children, albeit under the control of interim care orders.
11. So it does seem to me important to appreciate that the judge's primary task was to decide the plain issue: were the children at risk of harm or were they suffering harm at the date of the commencement of proceedings? The specific findings were essentially ancillary to that.
12. Of course, it is plain that findings of fact that are ancillary to the essential order are open to challenge in this court, but it does seem to me that there are two propositions that can be clearly stated. The first is that it is not incumbent upon a judge to analyse acutely every submission ingeniously advanced by counsel. Nor is it necessary for a judge to analyse each and every asserted or possible inconsistency or conflict in the course of six days of oral evidence, particularly where three of the primary witnesses have been young children inevitably disturbed by their childhood experiences. This is a case which has the usual history of assertion and then retraction. This is a case which has the usual pattern of inconsistency between what a child has said on one occasion and what a child has said on another occasion and the usual pattern of inconsistency between what one child has said and what another child has said. But the essential judicial task is to get to the heart of the matter and to make clear findings as to the realities. In making those clear findings, one of the most essential judicial assessments is as to the credibility and veracity of the adults in the case, usually the parents. That task has been clearly performed by this judge.
13. The second proposition seems to me to be this. This court will not entertain appeals in a case of complexity in which it is said that the judge has made some error of fact or has arrived at some misunderstanding of some part of the evidence, when the overall conclusion is abundantly supported by the primary findings of credibility and reliability. This judge has lived with this case over the course of six days of oral evidence. She has had to hear a lot of very distressing evidence, particularly the evidence of the young children themselves. If at the end of that experience she has expressed herself in terms that are strong, it is not surprising to me. It is her responsibility to make clear findings, not to the discredit, the unnecessary discredit, of the adults, but to give the local authority the clear foundation that they require to future management, not only in respect of the children of this family, but also to other children who may be living in close proximity to these adults.
14. So, although the submissions that have been advanced today are perfectly justified in isolation and would have, no doubt, force if they were being advanced in, say, the Criminal Division of this court, in the context of Children Act proceedings they seem to me to be of no substance or weight. The judge has expressed herself with a clarity and with a strength which, in my opinion, withstands all these criticisms, and I would simply say that this is not a case that should go further than this court.
15. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord. In my judgement the argument for the applicants demanded far too high a standard of detailed analysis on the part of the judge.
16. In a case where a judge has not been able to form a view of the protagonists by hearing evidence from them, then a process of inference from secondary material may be necessary and may require some elaboration, albeit even then not in the detail that was contended for in this case. But this application does not involve that sort of case at all. It was extremely unusual in the length that it took in front of the judge. She heard evidence from both of the applicants in considerable detail and at considerable length. She heard some of the children, and she heard Mrs G, the mother of the twins, whom she found to be an extremely impressive and dispassionate witness.
17. After that exercise, which, as my Lord has pointed out, continued over a period of six days, the judge expressed herself as follows:

"I find that both L and T are themselves damaged individuals who are inadequate and without conscience or remorse. In my judgment LD is a menace to children and a serious sexual abuser. I find TD to be a danger in that she allows herself to be drawn in by a man like LD who has such a strong hold over her."

18. Those findings were wholly open to the judge on the material before her; and in the passages of her judgment before she made those findings, she made it clear why she came to those conclusions: in particular on the basis of her direct and extensive observation of the two principal applicants.
19. Particularly bearing in mind the nature of these proceedings, in my judgement the judge wholly properly and adequately discharged her function. She reached conclusions that were entirely open to her; they were clearly expressed; and, in my view, no criticism can be made of her.
20. Like my Lord, I consider there is no prospect of this court entertaining an appeal on the basis that has been placed before us, and I would also refuse this application.
21. MR JUSTICE MOSES: I agree.
Order: Application refused. No order for costs save the usual assessments.