3rd Jul 2020

The soaring arches and the beautiful stained glass of the Royal Courts of Justice on the Strand in London were not on the agenda for three of our senior members in April 2020. Due to government restrictions arising out of the National Health Emergency, this appeal was heard remotely with the court convening in people’s studies, kitchens, bedrooms and in one participant’s case, what appeared to be the very tasteful dining room of a beamed cottage.

Re B and Y [2020] EWCA Civ 767
An Appeal

The appeal arose from a judgment of HHJ Allweis earlier in the year, where findings were made against a father in care proceedings of inappropriate sexual touching of his 11 year old child. Allegations had also been made against the Mother of physical over-chastisement.

The allegations against the Mother were subsequently retracted by the child in an ABE interview which followed and it was clear that this child was missing Mum and normal home life, having moved initially to local authority foster care and then to family members with a younger sibling. The child later retracted the allegations against the Father but this was done piecemeal to a number of professionals.

A psychological assessment of the child suggested that they may be on the autistic spectrum and had higher than average academic ability.

The Father made a Re W application for the child to give evidence before the court. This was refused by HHJ Allweis and not subject to appeal.

A composite hearing took place focusing on the fact finding element of the allegations over a period of 7 days with evidence from a raft of witnesses who had spoken to the child at the time of her initial allegations. The judgment given by HHJ Allweis took a day to deliver and focused on the quality of the initial “disclosures” to the head teacher, social worker and police officer which he concluded were compelling. The significant factor in the Judge’s conclusion was the account given by the child in her ABE interview conducted some 7 days after the initial allegation was raised.

Findings were made against the Father of inappropriate sexual touching and the court rejected the Father’s submission that there was nothing in his behaviour which would suggest that the touching was not sexual in nature. The allegations against the Mother, the court found, did not amount to her unreasonably chastising her eldest child, and on a balance of probabilities the Mother was not aware of the Father’s behaviour.

The appeal was initially brought on 7 grounds, but these were reduced to 4 when King LJ granted permission to appeal.

The Father argued that (a) the judge had failed to address the inconsistencies in the evidence of the child by making findings against the Father and not the Mother; (b) the allegations made did not amount to sexual abuse; (c) the Judge failed to consider all aspects of the evidence and placed inappropriate weight on the allegations made by the child in her ABE interview, and (d) the Judge had failed to give sufficient weight to the breaches of the ABE guidelines.

Despite persuasive argument by the Father’s team, including our Miss Fiona Holloran, the court dismissed the appeal.

The Appeal Court did not consider there was any inconsistency in the approach of the court by making the findings against the Father and, to a lesser extent, the Mother, taking on board, as Ms Yvonne Healing for the Local Authority reminded them, that all of the findings were consistent with what had been said in the ABE interview. It did not follow that exaggeration by the child of the initial allegations against the Mother meant that the allegations against the Father were also exaggerated.

The Appeal Court explored the argument that there were significant breaches of the ABE guidance in relation to how the initial interviews of the child and the ABE interviews had been conducted. The Appeal Court reminded itself that there are many examples in the reported case law of interviews conducted so poorly that no forensic weight can be attached to anything that the child has said, but in this case there was no such difficulty. Although there were a number of errors, they were not sufficient to call into question the reliability of the process.

The trial Judge had heard from both the Mother and the Father in evidence and he had undertaken an assessment of that evidence and the Appeal Court concluded that the Judge had carefully considered the explanations given by the parents to the allegations and, after reminding himself of the burden of proof, had rightly concluded that none of the parents explanations could explain the allegations of the child.

Miss Holloran had submitted, both in her closing written submissions and again at the Appeal, that the description given by the child of the touching did not possess any sexual element. This was rejected by the Appeal Court on the basis of the totality of the evidence.

The appeal was dismissed.

What do we learn from this experience?
We learn that our higher courts are very quick to adapt to changing circumstances that hearings held remotely can be conducted efficiently and effectively, with all the normal respect and dignity as if in person, despite the disparate venues of the participants and the occasional failing of the software.

We learn that it always worth exploring the option of the appeal process. It sometimes seems daunting and does require diligence, an acute eye for detail as well as an excellent understanding of rules, guidance and protocols around accumulation of evidence. It may not always (as in this case) be successful but do not let that put you off.

We are reassured that our judicial system works generally very well, even in difficult times, to provide justice for children when they need it.

We learn that we would all benefit from reacquainting ourselves with “Achieving Best Evidence in Criminal Proceedings” guidance which is just as important to us as family lawyers as it is to our criminal counterparts. This guidance provides good practice for all safeguarding professionals and is just as relevant to safeguarding teachers or social worker as it is to a police officer.

Failure to understand these guidelines leave these professionals exposed to critical analysis by courts and advocates and may undermine the ability to conduct the fact finding exercise appropriately.

And finally we learn that our longest serving circuit judge was still able to make good and sound decisions just on the cusp of his retirement.

If you have any queries about this or any other related subject, or have any questions about the Family Department at 18 St John Street, please feel free to contact us on our usual contact details and we will be delighted to assist you.