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Home > Judgments > 2014 archive

R (A Child) [2014] EWCA Civ 270

Appeal by a father against findings of fact. Observations by the Court of Appeal re. the weight to be attached to flawed ABE interview and the threshold for dislodging findings of fact on appeal.

The father appealed against findings of fact which included a finding that he had inappropriately touched his 6 year old son R. The allegations had initially been made by the mother (his wife) who had reported to a teacher at the son's school that the father had inappropriately touched R's genitals on more than one occasion. The next day R was taken into police protection and was interviewed that day albeit this interview was not audio or video recorded. The next day the mother retracted the allegations.  

An emergency protection order and thereafter an interim care order was granted.  At the fact finding hearing findings were made that the father had twice inappropriately touched the child in the genital area and attempted to do so on one further occasion, that the mother had failed to protect the child from the father's inappropriate behaviour, the father had been physically violent to the child on at least three separate occasions and that the mother had failed to protect the child from that physical violence. Finally, the judge found that both parents had failed to protect the child from exposure to their abusive relationship. 

The father appealed against the findings and relied upon three grounds of appeal. Firstly, it was argued that the interview of the child breached almost all of the guidance relating to achieving best evidence, (ABE), interviews and hence the judge should have placed no reliance on the content of the same.  Second, the mother had a history of making false allegations linked to her mental health which the judge failed adequately to consider; and third, that the judge did not adequately direct himself in law. 

Lord Justice Ryder giving the leading judgment dismissed the appeal. In respect of the first ground, Ryder LJ stated that the adequacy or otherwise of the ABE interview was an insufficient basis upon which to pursue this appeal because the allegations did not emanate solely or even principally from the child; in this regard the central issue was the reliability of the mother. Ryder LJ acknowledged the flaws in the initial interview of R and highlighted the 2007 guidance "Achieving Best Evidence in Criminal Proceedings" but noted that the guidance is not mandatory in the sense that a breach renders the evidence inadmissible or so fatally compromised that it is unreliable and should be given no weight.  Each case is fact sensitive.  In some cases, the flaws will be such that the child's interview has little or no evidential weight: see, for example, TW v A City Council [2011] 1 FLR 159 and in contrast, Re: H (A Child) Number 2 [2014] EWCA Civ 232. 

In respect of the second ground of appeal Ryder LJ accepted that there was evidence which indicated that the mother had made false allegations in the past and questions had also been raised by professionals about her mental health. However, the evidence relied upon particularly in respect of the mother's mental health was contained within documents before the court but their authors were not called to attend the fact finding hearing. Therefore, there was no material that was sufficient to enable the judge to make a finding of fact about the mother's behaviour given her denials and the lack of any direct evidence. Ryder LJ was satisfied that the judge had considered in sufficient detail the history of allegations between the parties and had the precise measure of the parents. Ryder LJ observed that the judge was not required to comment on every document used in cross examination or contained in a bundle or to make findings on every satellite issue raised by a witness in evidence. 

Finally, Ryder LJ could not detect an error in the judge's approach to the law or to the materials put before him.  Ryder LJ reiterated that for a finding of fact to be dislodged by an appellate court, an Appellant needs to establish that the finding is "unsupportable on any objective analysis (otherwise) it will be immune from review."  (See, for example, B (A Child) [2013] UKSC 33 at paragraph 108).  This case highlighted the danger in relying on hearsay materials, the contents of which are never formally admitted or proved.  Parties should be astute to isolate out findings that it is said can be proved on the evidence and the witnesses who need to be made available for cross examination to ensure that a case can be properly put. 

Summary by Alison Easton, barrister, Coram Chambers


______________________


Neutral Citation Number: [2014] EWCA Civ 270
B4/2013/2263

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 18 February 2014
 
B e f o r e:

LORD JUSTICE RICHARDS

LADY JUSTICE BLACK

LORD JUSTICE RYDER
 

IN THE MATTER OF R (A CHILD)

DAR Transcript of the Stenograph Notes of 
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Mr F Feehan, QC and Miss K Dunseath (instructed by Reeds Solicitors) appeared on behalf of the Appellant
Mr D Garrido
(instructed by Oxfordshire County Council) appeared on behalf of the Respondent

J U D G M E N T
(Approved) 
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LORD JUSTICE RYDER:
 1.   This is an appeal against an order made by HHJ Corrie on 16 July 2013.  The proceedings are public law children proceedings commenced by Oxfordshire County Council.  The child concerned is a 6 year old boy.  The Appellant is the boy's father.  His parents are married. 

2. On 16 July 2013, the judge decided disputed questions of fact arising out of the parent's marriage and their care of their son.  It is these findings of fact that father wishes to appeal.  The appeal is opposed by the local authority.  The children's guardian who represents the young boy concerned takes a neutral position.  His analysis is dependent on the findings which the Court makes.  The child's mother has taken no part in the appeal. 

3. The precipitating incident for the care proceedings was as follows.  On 5 March 2013, the mother went to a parent's evening at the boy's school.  It is said that she used the opportunity to make an allegation that the father had inappropriately touched his son's genitals on more than one occasion.  The teacher to whom she spoke immediately reported the matter to her head teacher.  The local authority children's services department were alerted. 

4. The mother repeated the allegation to a local authority social worker the following day.  The young boy was taken into police protection on 6 March 2013 and interviewed the same day.  That interview was not audio or video recorded, but there is a note of it prepared by a social worker. 

5. On 7 March, the police interviewed the father who denied the allegation.  On the same day, the mother retracted the allegation.  By 12 March, she was alleging that there had been a professional conspiracy against her and, I deduce, against the father.  An emergency protection order was granted in the Family Proceedings Court on 8 March 2013 and the first interim care order was granted on 14 March 2013. 

6. At a further contested interim order hearing on 13 May 2013, a District Judge found as a fact that the mother had made the allegations that she said she had not made to the teacher and to the social worker.  That finding was not appealed.  That did not, of course, deal with the truth of the allegation.  It was sufficient for the Court to decide whether the interim threshold in section 38(2) of the Children Act 1989 was satisfied. 

7. HHJ Corrie heard the disputed evidence both as to what was reported and whether the allegations were true between 10 and 12 July and handed down his judgment on 16 July 2013.  He made findings that I shall summarise in this way.  One, the father had twice inappropriately touched the child in the genital area and attempted to do so on one further occasion.  The judge added that the touching was not undertaken for any sexual purpose; for example, father's gratification.  It appears from the context of the case that it was done to see whether the child was able to have an erection, the judge having found that the father had himself experienced erectile dysfunction.  Two, the mother had failed to protect the child from the father's inappropriate behaviour.  Three, the father had been physically violent to the child on at least three separate occasions.  Four, the mother had failed to protect the child from that physical violence.  Five, both parents had failed to protect the child from exposure to their abusive relationship. 

9. Mr Feehan, QC, who appears with Miss Dunseath for the Appellant father, seeks to establish three grounds of appeal upon which this Court should intervene to set aside the findings complained of.  They are, one, that the interview of the child breached almost all of the guidance relating to achieving best evidence, (ABE), interviews and hence the judge should have placed no reliance on the content of the same.  Two, that the mother has a history of making false allegations linked to her mental health which the judge failed adequately to consider; and Three, that the judge did not adequately direct himself in law. 

10. I shall consider each ground in turn, but by way of introduction it needs to be recorded that it was clearly articulated during the permission hearing that the adequacy or otherwise of the ABE interview was an insufficient basis upon which to pursue this appeal.  That is because the allegations do not emanate solely or even principally from the child.  The judge had the evidence of the mother, including that relating to her retractions, and would have been just as able to make the findings complained of if there had never been an ABE interview.  That said, it is important to consider the interview and the weight that was placed upon it. 

11.   It is now clear that the discussion which took place between the young boy and the professionals on 6 March 2013 was not intended to be an ABE interview.  It was a preliminary discussion.  That is why it was not recorded in the usual way. 

12. This is not a case in which to make extensive comment on good practice relating to interviews of this kind.  In any event, the 2007 guidance "Achieving Best Evidence in Criminal Proceedings" sets out the good practice which is to be followed in the family courts.  The guidance is not mandatory in the sense that a breach renders the evidence inadmissible or so fatally compromised that it is unreliable and should be given no weight.  Each case is fact sensitive.  In some cases, the flaws will be such that the child's interview has little or no evidential weight: see, for example, TW v A City Council [2011] 1 FLR 159 and in contrast, Re: H (A Child) Number 2 [2014] EWCA Civ 232. 

13. The errors relied upon include the fact that there had been no time for planning.  In truth, the discussion was part of the planning stage and should not have been developed into an opportunity for the child to describe what had happened in an unrecorded environment.  Because this was an unplanned discussion, there was only the most superficial examination of truth, lies and the consequences of lies.  The sequence of question and answer, so far as it can be analysed from the note, proceeds on the basis that something has happened because the child is asked to remember what was said by him to his mother.  Many of the subsequent answers are to questions that appear to be very leading and there is little or no free narrative recall. 

14. The judge's assessment of this discussion fails to consider the purpose of the good practice guidance, although it is clear from the authorities he cites that he had the points well in mind.  If this was a case dependent on the professional discussion with the boy, the judge's acceptance of the appropriateness of relying on the child's recollection of what he told his mother as distinct from what he remembered happening to him would arguably be fatal in the context of such a poor interview.  Likewise, the judge's view that the interview or discussion was properly conducted would be open to attack.  

15. As I said in my introductory remarks, however, that is not this case.  Although the judge relied upon the core of what the young boy said in that discussion, he compared that with what the mother had herself reported before she retracted her allegations.  This case is all about the reliability of the mother.  That was how Mr Feehan put it at the permission hearing and his second and dominant submission today depends upon that. 

16. It is certainly the case that the police have on more than one occasion expressed concerns about the mother's mental health and the reliability of her complaints to them.  So have two paediatricians and a children's social worker.  A stark example of that is at H11 of the bundle which is a police incident report from 27 June 2010 which records mother as alleging that the child was at risk of abduction by father who was coming back to the United Kingdom from India.  There were also assertions that the father intended to cancel her access to the family's finances through her credit card.  The police officer concluded that the father had made no threats.  He recorded that he had seen an e mail that mother had produced to him to substantiate her assertion of a threat which was no more than an expression by the father that he missed his child.  The e mail, which this Court has not seen, apparently asked how the child was.  

17. The judge did not deal with this example of an alleged false report, but the judge did deal with a significant number of similar issues arising out of mother's repeated complaints, in particular of domestic violence from 2010 to 2013.  I will return to the these in due course because the underlying question in this ground is whether the judge had sufficient regard to the alleged propensity of the mother to make false allegations. 

18. The second example of false reporting alleged against mother by Mr Feehan arises out of discussions between the Children's Services Department of the local authority and the mother on 29 November 2010 and over the two weeks that followed.  There is a contact record dated 13 December 2010 at F6 to 11 of the bundle.  The judge deals with the mother's allegations of domestic violence made at this time in his judgment.  He relies upon some of the complaints made by mother about father's conduct towards the child.  The question is whether he should have dealt with other allegations made at the same time which might tend to suggest that the mother fantasizes and is not reliable.  In this regard, those allegations are that, one, the father tried to drug the mother; two, the father tried to kill the mother in that she was beaten so badly she was hospitalised; and three, the father went to India to propose to another woman.  There is also a record that at this time the mother is alleging violence against the father where he was overseas in India.  Mr Feehan accepts that that part of the record is itself an error as the father was in the United Kingdom at the time, so that particular alleged falsehood is not pursued before this Court. 

19. Neither this Court nor the Court below has had access to evidence about whether these allegations are false.  We do not know whether there is any substance in the allegation, for example, that the mother was hospitalised or that the father intended to propose to another woman or that he intended to drug his wife.  It is not surprising, therefore, that there are no findings on these issues. 

20. Mr Feehan also puts his case in an alternative but important way; namely, that the judge was taken to a sequence of materials which were used in the cross examination of the mother by Miss Dunseath which, he submits, demonstrate an issue to which the judge ought to have regard but which he did not.  He submits that if regard had been had to these materials, the judge would not have been able to conclude, as he did at paragraph 62 to 67 inclusive and 69 of the judgment that the mother's alleged account of the father beating the child was plausible, credible and, therefore, true despite the mother's subsequent retraction.  He submits that the judge's reasoning for the mother's retraction, namely that "for cultural reasons she wanted to keep the marriage going" was also wrong.  Instead, he submits, the judge should have come to the conclusion that the allegations were false and that the falsehoods together with the supposed retractions were symptomatic of mental health behaviours on the part of the mother short of a formal mental health diagnosis.

21. So the reasoning goes, if the judge had come to these conclusions on the materials available, he could not have relied upon the mother's evidence in relation to any allegation and specifically in relation to the inappropriate genital touching.  The materials identified by Mr Feehan in support of this submission are as follows: 

a) The police incident report from 27 and 28 June 2010 concerning the non existent threats from father to which I have already referred. 

b) A letter dated 23 November 2010 relied upon by the judge from a consultant psychiatrist who concludes that the mother's presentation was consistent with a difficult marital predicament.  That part of the letter relied upon by Mr Feehan is a record of the circumstances in which the mother was detained by the police on the grounds she was "imminently suicidal" while driving her car in the early morning on 6 November 2010 without lights.

c) A memorandum of 3 December 2010 from the Detective Constable in a domestic abuse unit to Children's Services relating to the same incident in which the author records that the police officers believed that the mother suffered from some mental health problems and gave them very confused and conflicting accounts.  That document is supported by a police incident report of the previous day in the same terms.

d) The contact record of Children's Services made on 13 December 2010 which records the author's concern about the mother's mental health.

e)  Two letters from paediatricians dated 11 April 2013 and 30 May 2013 in which they say the mother presented to them as volatile and with "pressure of speech".  They express concern about her mental health and the consultant opined that some of the mother's "proposals verged on paranoia".  

22. At best, this collection of documents identify three periods, two in 2010 and one in 2013, when the mother's presentation had given professionals cause for concern.  We are told that mother has subsequently been assessed and does not satisfy the criteria for a mental health diagnosis.

23. The witnesses who recorded the opinions put to the mother in cross examination did not attend court to give evidence.  The mother denied anything of significance arising out of the materials, going so far as to reassert her conspiracy theory that the professionals were making up their allegations about what she had said.  The judge was presented with no material that was sufficient to enable him to make a finding of fact about the mother's behaviour given her denials and the lack of any direct evidence.  In any event, he was not asked to do so. 

24. In my judgment the judge was right to address the issues that had been identified for the Court to determine through the prism of why the mother had retracted her allegations and whether there was sufficient reliability in what she said.  The judge had the advantage of the mother and the father giving evidence before him.  What the mother had said to various professionals is not the subject of the appeal before this Court.  We can take it that she alleged everything that the judge relied upon. 

25. The judge dealt with the family history of allegation and counter allegation in some detail.  He sets out in particular a referral to the consultant psychiatrist attended by the mother and father in 2010 between the incident reports that I have described.  In that referral, the issues to which the incident reports refer are canvassed; intimidation, threats to kill, mental health problems, domestic violence and the alleged control by the father over the finances and the mother herself.  The judge was very well aware of these issues. 

26. The judge also analyses other records, including a core assessment undertaken by the local authority in March 2011.  He considered in detail the father's denials about the allegations and the father's own medical circumstances.  The allegations made by the mother in November and December 2010 are dealt with by the judge in detail so far as they relate to the key issues in the case. 

27. A judge is not required to comment on every document used in cross examination or contained in a bundle or to make findings on every satellite issue raised by a witness in evidence.  That said, I have to answer the question whether in dealing with the identified alleged falsehoods or failing to deal with others it would have made any difference to this judge's perceptions of the mother? 

28. I have come to the clear conclusion that this judge had the precise measure of both the parents.  Dealing with the additional alleged falsehoods would only have reinforced his conclusions which were, in any event, well grounded in the evidence he had heard.  There is nothing sufficient in the additional material to which this Court has been taken to undermine the judge's conclusions. 

29. If the judge was right in fact, what does the third ground add?  That is about the judge's legal directions to himself.  In those directions, he clearly highlighted the burden and standard of proof and included a Lucas direction following the practice of the criminal courts in the R v Lucas [1981] 1 QB 720.  I cannot detect any error at all in the judge's approach to the law or to the materials put before him. 

30. None of the three elements of this appeal taken separately or together are sufficient to undermine the findings made.  For a finding of fact to be dislodged by an appellate court, an Appellant needs to establish that the finding is "unsupportable on any objective analysis (otherwise) it will be immune from review."  (See, for example, B (A Child) [2013] UKSC 33 at paragraph 108).  This case highlights the danger in relying on hearsay materials, the contents of which are never formally admitted or proved.  Parties should be astute to isolate out findings that it is said can be proved on the evidence and the witnesses who need to be made available for cross examination to ensure that a case can be properly put. 

31. I accept that the case identified by Mr Feehan was put to the mother, but that is where it rested.  Nothing was or could be proved by the informal use of the materials to which this Court has been taken.  It is accordingly impossible to place any sufficient reliance on those materials to say that the judge should have made findings about their content which could have made any difference. 

32. For these reasons, I would dismiss this appeal

33. LADY JUSTICE BLACK:  I agree.

34. LORD JUSTICE RICHARDS:  I also agree.