Case No: B4/2007/1260
Neutral Citation Number: [2007] EWCA Civ 1150
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HER HONOUR JUDGE CAHILL QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 25th October 2007

Before:

LORD JUSTICE WALL
and
LORD JUSTICE HOLMAN
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IN THE MATTER OF M (Children)

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Mr Adenekan and Ms Hughes (instructed by Equitable Solicitors) appeared on behalf of the Appellant.

Mr Shiels (for the Local Authority) (instructed by City of Bradford Metropolitan District Council) appeared on behalf of the Respondent.
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Judgment
Lord Justice Wall:

1.	On 13 April 2006 HHJ Cahill QC, sitting as a deputy High Court Judge, gave a lengthy judgment in care proceedings instituted by a local authority relating to four children, twins A and M born on 14 July 1994, a boy C born on 26 August 1996, and another boy E born on 4 April 2000.  Of the four children, only M is a girl.  The judgment, which is obviously one over which the judge took a great deal of care, has only recently been showed to this court, but it is apparent from it that the judge made clear findings that the children’s father in particular had been responsible for serious assaults on two of the boys, that is, A and C.  As a result,  the position now is that both parents are facing serious criminal charges relating to both assault and cruelty, and again this morning we were shown for the first time the indictment, which contains altogether 15 counts.  

2.	Prior to the trial, and as a result of the criminal prosecution, the parents made an application to HHJ Cahill for disclosure of a number of documents and for orders relating to the children, designed to assist the parents in the conduct of their defence.  

3.	It has to be said at the outset that in my judgment at least, the judge was not given the assistance which she plainly required and deserved in dealing with that application. In particular, she was not referred to a critically important decision: that of Hale J, as she then was, in Re M (Care: Leave to Interview Child) [1995] 1 FLR 825.  Indeed, it was not entirely clear what jurisdiction she was exercising at the time.  

4.	It was, however, generally assumed before Judge Cahill that she did have jurisdiction to make orders in relation to the children, and the two particular issues which are before us today are applications by the parents for permission; (1)  for the children -- the boys in particular -- to be interviewed by experts, with a view to those experts advising in relation to the criminal proceedings (although the matter is still far from clear in terms of specifics as to what is being sought);  and (2)  that the solicitor acting for the parents in the criminal proceedings  should be entitled to interview M with a view to taking a statement from her, which may or may not be of use in those proceedings.

5.	It is right to record that M does not appear to have suffered any particular injury herself, although there is an allegation in the papers that she witnessed injuries being inflicted on the boys, and there is some indication from the boys that she herself was injured.  But these are all matters which at the moment, although canvassed in the care proceedings, were not the subject of detailed findings by the judge.  

6.	As I have already indicated,  when the matter came recently before the judge, she was not given the  assistance she needed.  I deal in this judgment simply with the two aspects relating to the children which are before us.  The matter comes before us as a matter of urgency (the judge’s judgment having been given on 24 May 2007) because the criminal trial (we understand) is due to commence on 5 November, and there plainly has been substantial delay in the matter reaching this court.  This led last week to an application before Wilson LJ, who expedited the hearing of this appeal, gave permission for it, and put it into our list for today.  

7.	We have, if I may say so, today been greatly assisted by Mr Shiels of counsel in relation to the local authority’s position, although it is most unfortunate that much of the material he has put before us was not before the judge.

8.	I deal first then with the application to adduce expert evidence.  During the course of the care proceedings, the children were examined by a number of experts, of whom the parents appear to be highly critical.  When they appeared before HHJ Cahill in May 2007, the application which they made to her was put in very broad terms, and although it seems to me that the application was hopeless (and I have already read out the relevant passage from her judgment  in argument)  I will read it into  the judgment, for it seems to me important:

“7.  Today I have asked counsel on behalf of the defence who the experts are that they seek to instruct.  Despite the fact that the application was made some weeks ago, they are unable to tell me.  They seek a blanket disclosure to any expert of their choosing.  They cannot give me the names of anybody who might have more expertise than those who have already been chosen and already reported.”

9.	I should perhaps interpolate that the judge had given disclosure of the documentation, including, of course, the reports written by the experts in the care proceedings.  In the light of what the judge said in the paragraph which I have just read out, it is in my view totally unsurprising that she  refused the application.  In my judgment, she was plainly right to do so.  Apart from the total lack of specificity, there can in any event be no question of these children, a week before the criminal trial, being interviewed by any psychologist or psychiatrist on behalf of the defence.  

10.	The only aspect which seems to me relevant would be if it were the case that certain of the scars which the children received (and which were observed in the care proceedings);  (a) can still be observed;  and  (b) are in way of use to an expert in deciding (or assisting a jury in deciding) whether or not the injuries in question were deliberate or accidentally inflicted.  It may be that an expert who knows about scars, particularly in relation to African children, would be in a position to assist a jury in that respect.  I simply do not know.

11.	Therefore, what I propose on this aspect of the case is that whilst taking the view that the judge was entirely right, on the material available before her, to dismiss the application both to adduce expert evidence and for the children to be examined by experts, nonetheless if the parents can for good reason and with an identified expert return to the judge with a well‑presented and coherent case explaining why they require a particular expert to examine the children -  and for a particular and specified  purpose, then I (speaking for myself) would not shut them out from taking that course prior to the criminal trial.  

12.	However,  the blanket application for experts without either identifying the expertise and purpose, or naming individuals, was in my view absolutely hopeless and rightfully refused by the judge.  I would therefore dismiss the appeal in relation to that application, but as I say, make it clear that if the parents for good reason and with an identified expert are able to re‑approach the court and renew their application, or make a fresh application on detailed and coherent grounds, then that is something which it is open to them to do.

13.	In relation to M, the position is, I think, somewhat different.  The judge dealt with this shortly in her judgment, and what she said is this:

“2.  Within the care proceedings there was no allegation at all that [M] had in any way been harmed by her parents.  There was equally no suggestion that [M] had witnessed most of the harm that came to these boys.  

3.  [M], I am told and accept, bearing in mind all I know about her in the care proceedings, is also, like her brothers, struggling to cope with the enormous changes in her life and being in foster care.  

4.  It seems to me that [M] has nothing to contribute to the case that is before the courts now and indeed, were she to be interviewed by the parents or by their solicitors, all that would happen is that M would have renewed in her mind the pain she went through when she was separated from her family some 18 months ago.  It seems to me that she has nothing to add to this case and I shall not give leave for her to be interviewed by the solicitors.”

14.	In his skeleton argument produced for this hearing, Mr Shiels, on behalf of the local authority, frankly acknowledges that it is not clear from the extract which I have just cited what the judge’s reasons why exactly it was  that “[M] has nothing to contribute to the case that is before the courts now”.  It is accepted on the local authority’s behalf that the defence’s position is  accurate to the extent that M was alleged by A to be witness to his being locked by his father in a dark cellar, and that C alleged both that she was witness to some of his abuse and that he had seen things happen to her.  Equally in the appellant’s notice there is a reference to matters of a similar nature.  
15.	In my judgment, therefore, it would seem that M may well have something to contribute if she is interviewed and if she is thought to be reliable.  In any event, it seems to me that that is a matter which it is proper for the parents, in the context of their defence of the criminal charges, to seek to do.  That is what happened in the case of Re M.  The child in that case was in care.  There was a prospect of a prosecution, although it had not been actually confirmed, and Hale J, as she then was, confirmed in terms that the court had jurisdiction in those circumstances to allow the child, who was the subject of care proceedings and indeed the subject of a care order, to be interviewed by the parents’ solicitors in the context of criminal prosecutions being launched against them.

16.	In these circumstances, therefore, it seems to me (with great respect to the judge) that she exercised her discretion on a faulty premise.  M may have something to contribute. We simply do not know.  But that is not a reason for her not being interviewed.  

17.	For the local authority, Mr Shiels has put forward a number of natural and (if I may say so) entirely proper anxieties about M’s psychological state.  She is, in the local authority’s perception, a damaged child.  She is in care.  She is having considerable difficulty in coming to terms with what has happened to her, and there is a genuine anxiety on the local authority’s part, which we fully understand, that the effect of being interviewed,  let alone of giving evidence will be something which will have a considerable impact on M.  Nonetheless, in my judgment, it seems to me (balancing those factors as I do) that it is entirely proper for the parents’ solicitors to wish to interview M in relation to matters specifically related to the prosecution against them.  Whether or not M gives evidence is an entirely different question, and would of course be a matter for the judge hearing the criminal trial.  

18.	In these circumstances, therefore, I would (speaking for myself) set aside the judge’s refusal of permission for M to be interviewed.  It is however right, I think, that there should be certain conditions imposed on the interview, and they are not, as I understand it,  contentious.  Mr Shields, if we were against him on his primary submission, I think would accept what I am about to say, namely, that the interview should be on a date at a time and at a place to be chosen by the local authority, and thus at the local authority’s discretion; that M’s social worker, Mr Fraser, should be present when the interview takes place and that the interview should be conducted by the named and  qualified solicitor having the conduct of the parents’ defence in the criminal proceedings.

19.	Plainly, the interview should only relate to matters directly relating to the criminal trial, but it does not seem to me appropriate for this court to seek to determine in any particular way precisely what questions are or are not asked.  Mr Fraser will be there.  He will be there as M’s social worker and in a position, we anticipate, to protect her.  A question may well arise as to the privilege of the document which subsequently emerges.  That is not before us, but plainly, if there were any child protection issues which arose as a result of the interview, Mr Fraser’s presence would ensure that they were appropriately dealt with in a confidential basis in the care proceedings.  

20.	In those circumstances, therefore, whilst dismissing the appeal in relation to the application for the boys to be medically or psychologically examined, I (speaking for myself) would set aside the judge’s decision in relation to M and give the directions for her to be interviewed in the manner that I have indicated.  

21.	I would simply add that there is outstanding a question of the parents’ contact with the children.  That is not before us this afternoon.  Wilson LJ made it entirely clear that it would not be, and plainly any application in relation to contact it seems to me (at the very least) will have to abide the outcome of the criminal trial.  I therefore restrict myself in this judgment to the two issues which have been placed before us, and the order I would propose is that which I have just indicated.

Mr. Justice Holman:  

22.	I agree.  It seems to me that at the hearing before the judge, she did not receive the help to which, frankly, she was entitled.  Right up to today, there seems to have been some uncertainty as to the nature of the jurisdiction that she was exercising and indeed whether she had any jurisdiction at all.  However, the existence of an inherent jurisdiction to determine matters of this kind is very clearly established by the authority of Re: M and the decision of Hale J to which my lord has referred.  The same authority, and also an authority of this court in Re: R (a minor) (Wardship: Criminal Proceedings) [1991] FLR  56, give valuable guidance as to the approach that the court should adopt, and the balance that needs to be formed between, on the one hand, welfare considerations, and on the other hand, the strong need for justice to be done in any criminal trial.  If there is a renewed application to HHJ Cahill QC in relation to physical medical examination of the boys, I hope that each of those authorities will be very clearly drawn to her attention.

Order: Appeal allowed.