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Re R (Children) [2015] EWCA Civ 167

Appeal to consider the refusal to allow a child to give oral evidence in support of her father regarding serous disputed allegations in child care case.

The local authority initiated care proceedings following a child (7 years of age) with autism and learning difficulties making allegations that her father had sexually abused her and her elder sister (14 years of age). The youngest child was ABE interviewed at which she repeated allegations of sexual abuse. The elder child, GR, was not ABE interviewed. GR instructed her own solicitor and was permitted to file a statement in which she denied any incidents of sexual abuse. She sought to give evidence in support of her statement. The local authority and Guardian objected to her application, the mother was neutral on the issue and the father support GR. The judge refused her permission to give oral evidence and GR appealed.

Lady Justice King considered the test to be applied as found in Re W (Children) (Abuse:Oral Evidence) [2010] UKSC 12. The essential test was whether justice could be done without the child being further questioned but this did not result in a presumption that a child should not give oral evidence. She noted that the court must consider two limbs, against the backdrop of a need for a fair trial, namely the advantages that a child giving evidence will bring to the determination of the truth (Limb 1) and the damage giving evidence may do to the welfare of this or any other child (Limb 2). Lady Justice King highlighted the need to consider what steps could be taken to improve the quality of a child's evidence whilst minimising the risk of harm, such as giving evidence by video link.

Lady Justice King found that the judge had only considered the first of the two limbs and accordingly had erred by failing to go on and continue the second limb. She confirmed that the test requires both limbs to be considered as there may be cases where a child's evidence may be minimal in determining the truth but the child's welfare required such evidence to be given. Equally there could be cases where the child's evidence is pivotal but welfare issues are so adverse that a child should not give direct evidence.

The local authority and Guardian sought to persuade the court that when undertaking a correct balancing exercise with all factors under both limbs considered, the right decision was for GR not to give oral evidence.

Lady Justice King considered that when analysing the factors under limb 1, GR's evidence was pivotal to the case as only she could give evidence as to whether the father had abused her. She could also provide vital evidence as to what was occurring in the household and the dynamics within the family. Lady Justice King considered that factors relevant to limb 2 were that GR was mature and had no specific vulnerabilities.

Further, Lady Justice King considered the potential sense of grievance in the event that the judge found the father to have sexually abused GR without having had an opportunity to hear from her. Contrary to the judge's opinion, GR's credibility was relevant, this being a key issue to determine upon GR filing a statement. In the event that GR did not give evidence, her statement would carry less weight and value. Accordingly, no oral evidence from GR would not only undermine the father's case that he did not sexually abuse the children, but would impact on the judge's ability to ascertain the truth especially given there was no ABE interview of GR to assist in assessing her credibility. The father's Article 6 rights also had to be considered if findings were made against him without the judge having heard from GR. It was inevitable that the father would have a sense of unfairness and that justice would not have been done in such circumstances.

Lord Justice Briggs supported the reasoning of Lady Justice King and observed that the importance of questioning GR to a fair trial made the granting of the appeal necessary. He considered that the welfare implications of allowing GR to give oral evidence was evenly balanced on the basis that the risk of harm that the process may cause her was no more substantial than the risk of long term harm at being denied the opportunity to have her evidence properly weighing in the determination by the court.

The Court of Appeal allowed the appeal, concluding that a proper application of Re W led to granting GR permission to give oral evidence subject to her continuing to wish to do so and appropriate measures being put in place to minimise the experience.

Summary by Laura McMullan, barrister, Coram Chambers
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Neutral Citation Number: [2015] EWCA Civ 167
Case No: B4/2015/0222

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Family Court sitting at Swansea
His Honour Judge Sharpe
SA14C00547


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/03/2015

Before:

LORD JUSTICE SULLIVAN
LORD JUSTICE BRIGGS

and
LADY JUSTICE KING
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Between:

Re R (children) 
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Mr David Blake (instructed by T. Llewellyn Jones Solicitors) for the Appellant
Mr Paul Hopkins QC
(instructed by Neath Port Talbot County Borough Council) for the Respondent
Mr Jeremy Weston QC
(instructed by Messrs Hutchinson Thomas) for the Respondent Father
Mr Graham Jones Solicitor Advocate
of  Smith Llewelyn Solicitors for the Guardian

Hearing date: Wednesday 11th February 2015
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Judgment
Lady Justice King :
1. This is an appeal by GR, a girl of 14 years 6 months, (born 26 August 2000), against an order made in the family court at Swansea by His Honour Judge Sharpe, whereby he refused permission for her to give oral evidence in care proceedings relating to herself and her younger sister RR, (born 24 August 2007). The case turns on an allegation that DR, (the father), sexually abused each of the two children and that CR, (the mother), failed to protect the children from exposure to sexual abuse and inappropriate sexualised behaviour within the household.

2. GR instructs her own solicitor and counsel pursuant to Family Proceedings Rules 2010 r16.29; she has filed a witness statement in the proceedings, signed by her together with a statement of truth. GR now wishes to give oral evidence in support of her statement in which she says that her father has at no time behaved improperly towards her and neither, so far as she is aware, has he behaved in a sexually inappropriate way towards her sister. The children's guardian and local authority objected to GR giving oral evidence, the mother was neutral and the father supported her in her wishes whatever they may be. Accordingly a hearing was listed specifically to enable the judge to determine this single important issue.

3. The judge having heard argument refused permission for GR to give evidence. An appellant's notice was filed on her behalf on 22 January 2015 and I granted permission to appeal on 28 January 2015 with an order that the matter should be expedited in order to ensure that the trial date was not put in jeopardy.

Background
4. GR and RR are the natural children of the mother and father. RR has a diagnosis of severe autism and learning disabilities and attends a special school. GR in contrast is a bright, articulate teenager. The local authority became involved with the family in 2011, having concerns about the home conditions and domestic violence between the parents. In November 2012 the father's sister TR, made serious allegations of sexual abuse against the father. In response to that allegation, the local authority asked the mother to supervise the father's contact with the children within the home so as to ensure they were safeguarded from sexual abuse. The children's names were placed on the child protection register, initially under the category of neglect, although the category was subsequently changed to risk of sexual abuse on the 19 July 2013. The child protection registration came to an end in December 2013 as it was, (wrongly), believed that the mother was implementing the child protection policy.

5. In January 2014, RR began to behave in a manner not previously observed by the teachers or the social workers involved in her care, in particular she was showing inappropriate sexual knowledge, the details of which do not require particularisation for the purposes of this judgment. It was not until March 2014 that the mother admitted to the social worker that she sometimes went to the shops leaving the father at home alone with the children. As of February 2014, the father was required to sleep away from the house each night; notwithstanding that requirement, on the 27 May 2014, the father was found caring for the children alone.

6. Matters came to a head on the 6 June 2014 when RR whilst at school, said and did things that suggested to the staff that there had been sexual activity between her father and herself and also with GR, social services were informed and care proceedings were issued on the 12 June 2014.

7. On the 13 June, both children were accommodated under s20 Children Act 1989. RR remains with her foster carer, but on the 12 August 2014, GR returned home to live with her mother under an interim care order where she has remained ever since.

8. A considerable amount of work has been done with RR through an organisation called Triangle who work with young people to enable them to give their best evidence in legal proceedings. In the resulting ABE (Achieving Best Evidence) videoed interviews of RR she makes allegations of serious sexual abuse making reference not only to herself but also to GR. In addition to the allegations made by RR in the ABE interviews, it is said that RR has been seen to exhibit grossly sexualised behaviour since she went into foster care.

9. GR has not been formally interviewed by way of an ABE interview and has never made any allegations against her father.

10. It was against this background that the judge came to consider the application of GR to give evidence.

The Test
11. It is common ground that the test to be applied is found in Re W (Children)(Abuse:Oral Evidence) [2010] UKSC 12 and can be summarised as follows:

i) The fair balance between Article 6 rights and the Article 8 rights of the perceived victim may mean that in care proceedings a child should not be called to give evidence but that outcome, (ie that a child should not give evidence), is a result of the balancing exercise and not a presumption or even a starting point.[22]

ii) The essential test is whether justice can be done without further questioning of the child [30]

iii) The court weighs two considerations:

a) The advantages that the child giving evidence will bring to the determination of the truth (Limb 1).

b) The damage giving evidence may do to the welfare of this or any other child (Limb 2).

12. Baroness Hale in the lead judgment went on to identify a number of factors which, whilst not exhaustive, will assist in the balancing exercise in respect of each of the two limbs:

i) Limb 1:  The fair and accurate determination of the truth [25]

a) The issues it is necessary for the court to decide

b) The quality of the evidence already available, including whether there is enough evidence to make the findings without the child being cross examined

c) Whether there is anything useful to be gained by oral evidence in circumstances where the child has not made concrete allegations

d) The quality of any ABE interview and the nature of the challenge; the court will not be helped by generalised accusations of lying or a fishing expedition. Focused questions putting forward an alternative explanation for certain events may help the court to do justice

e) Age and maturity of the child  and the length of time since the events

ii) Limb 2: Risk of harm to the child [26]

a) Age and maturity of the child and the length of time since the events.

b) The child's wishes and feelings about giving evidence. An unwilling child should rarely if ever be obliged to give evidence and, where there are parallel criminal proceedings, the child having to give evidence twice may increase the risk of harm.

c) The level of support the child has and the views of the Guardian and those with parental responsibility.

d) The fact that the family court has to give less weight to the evidence of a child who is not called may be damaging to the child.

e) The court is entitled to have regard to the general understanding of the harm that giving evidence may do to a child as well as features peculiar to the child and case under consideration. The risk, and therefore weight, will vary from case to case.

13. On both sides of the equation the court must also consider what steps can be taken to improve the quality of the child's evidence whilst minimising the risk of harm to the child whether by special measures or other means. In the present case there appears to be a consensus that in the event that GR gives evidence it will be done by video link.

14. The 'essential test' as identified by Baroness Hale,  and therefore the yardstick against which both limbs must be considered, is that justice must be done to all the parties when deciding whether permission should be given for a child or young person to give evidence. It is therefore axiomatic that consideration of each of the limbs of the test is carried out against the backdrop of a fair trial; it is only through the prism of a fair trial that justice can be done and be seen to be done to one or all of the parties.

15. Following Re W Lord Justice Thorpe set up a working party which led to the Family Justice Council issuing Guidelines in Relation to Children Giving Evidence in Family Proceedings in December 2011. Those guidelines largely incorporate the  test in Re W and  set out the matters to which the court should have regard when conducting the balancing exercise which factors also largely replicate those found in  Re W.  Further consideration is currently being given to the role children should play in care proceedings by the Children and Vulnerable Witness Working Group set up by The President of the Family Division and chaired jointly by Hayden J and Russell J. An interim report was published on 31 July 2014 which identifies a need for a greater focus on the participation and engagement of children in the family court process.

The Judgment

16. In his judgment the judge considered only those factors which relate to Limb 1, that is to say the court's ability to determine the truth. Having considered the first limb he concluded that GR did not need to give evidence in order for there to be a proper determination of the issues and said 'I do not think it is necessary for me to form a view as to G's credibility in order to determine the principal issues'.

17. Having formed that view, the judge regarded the issue as having been settled and did not thereafter move on to consider the second limb of the test. It is accepted by all the parties that the learned judge erred. The test requires both limbs to be considered; that is because the test is not a simple evaluation of the marginal forensic value of oral evidence of a child witness. There may be cases where the contribution to the determination of the truth may be modest or even minimal but the child's welfare overwhelmingly requires her to be given the opportunity to be heard or, alternatively, the evidence may be pivotal but the welfare indicators so adverse that there can be no possibility of subjecting the child to the trauma of giving direct evidence.

18.  The local authority and children's guardian have each filed Respondent's notices and seek to persuade the court that notwithstanding the judge's error, when a proper balancing exercise is conducted the outcome is the same, namely that the balance comes down in favour of GR not being permitted to give evidence.

19. Mr Hopkins QC on behalf of the local authority and Mr Jones on behalf of the Guardian have each sought to persuade the court that the welfare considerations in relation to GR outweigh any enhanced value to the court in ascertaining the truth. In summary each submits that any benefit to be gained in relation to the determination of the truth (Limb 1) is only marginal. As GR presents a blanket denial in relation to the allegation of sexual abuse it follows they submit, that cross examination would therefore be limited and of limited value. In relation to welfare (Limb 2), neither is able to point to any specific evidence which can be added to the welfare scales and which would point against GR giving evidence, over and above the unequivocal acceptance by all that giving evidence is difficult and stressful for any child. (Re W paragraph 17)

Discussion
20. With respect to both the local authority and the guardian their submissions are in my judgment too generalised. They both seem to be falling into the trap of not only approaching the test from a presumption that GR is not telling the truth when she denies the allegations against her father, but also of giving only lip service to Baroness Hale's injunction that there is no starting point that a child should not give evidence; as a consequence, the local authority and Guardian, whilst undoubtedly having GR's interests at heart, have failed adequately to scrutinise the specific circumstances of this case before carrying out the balancing exercise.

21.   Taking the guidance as a whole it seems to me that the key features which should inform the application of the test in this case are as follows: GR is a mature, intelligent 14 ½ year old girl who, over and above the strain resulting from the situation in which she finds herself, has no additional specific vulnerabilities. She wishes to give evidence and feels sufficiently strongly about it to pursue this appeal. Unusually, far from making allegations as a victim against her father, her evidence is that the allegations made by RR are untrue. She may or may not be telling the truth.

22. In any consideration of Limb 1, the evidence GR wishes to give is in my judgment, far from being marginal and goes to the heart of the case; she alone can give primary evidence as to whether or not her father abused her; the only other direct evidence, (which is vigorously challenged by the father), comes in the form of assisted interviews with her severely autistic seven year old sister.  Even carefully controlled and regulated cross examination may go far further than the eliciting of only a simple blanket denial of the central allegations; much valuable evidence may be given by GR in relation to the background and the dynamics of the household and the relationships within it.

23. An issue that goes to both limbs and which the judge did not appear to have considered, (but which is addressed by Mr Locke on behalf of  GR  in his written submissions) is the sense of grievance (on the part of GR) and injustice (on the part of the father), if a judge made a finding of sexual abuse contrary to GR's written statement, having denied her the opportunity to give evidence and so to answer the local authority's case that she is lying in order to keep the family together. With respect to the judge I cannot agree that it is unnecessary to form a view as to her credibility. Once GR made a statement, her credibility became key to the issues he has to decide.

24.    In that context it is useful to stand back and consider the evidential position of a witness statement under the Family Proceedings Rules 2010 (FPR). In doing so however it must always be borne in mind that the  rules have been designed to complement the Overriding Objective found at FPR 2010 r1.1 which says that:

These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues.

25. Whilst the judge has wide case management powers the general rule is that any fact which needs to be proved by the evidence of a witness is to be proved (FPR r22.2(1))–

(a) at the final hearing, by their oral evidence

Further if a party-

(a) has served a witness statement; and

(b) wishes to rely at the final hearing on the evidence of the witness who made the statement

that party must call the witness to give evidence unless the court directs    otherwise or the party puts the statement in as hearsay evidence.                (FPR 22.6 (1))

26. An obvious case where a court may direct that a witness is not to give oral evidence is in a care case involving a child witness following the proper application of the Re W test. Such a direction will often be made where there is a potential child witness, as Baroness Hale said in  Re W

"Our prediction is that, if the court is called upon to do it, the consequences of the balancing exercise will usually be that the additional benefits to the court's task in calling a child do not outweigh the additional harm that it will do to the child….But rarity should be the consequence of the exercise rather than a threshold test"

27. Routinely at case management hearings, a court will 'direct' (although not necessarily make a specific order), that a witness is not required to give oral evidence where a particular witness statement is not challenged and the witness is not therefore required for cross examination. It follows that the other side of the FPR 22.6 (1) coin is that, (as in civil cases), where a witness statement with a statement of truth has been filed and served in proceedings, that statement will stand as the truth of its contents if none of the parties have required the maker of the statement to attend for cross examination.

28. If a court, having conducted the  Re W  exercise, decides (as it often will), to admit as evidence such a statement in the absence of oral evidence, that statement whilst probative  will inevitably (and properly),  carry less weight than it would if supported by oral testimony; in the present case this would have the following consequences:

i) The absence of oral evidence would impact upon the judge's ability to ascertain the truth, deprived as he would be of the best evidence. Further the judge does not even have the benefit of an ABE video interview to assist him in assessing GR's credibility in the absence of oral evidence from her.

ii)  Potentially to undermine the strength of the father's case (Limb 1) as GR's statement exonerating him will carry only limited weight.

29. The fact that GR is denying the allegations does not in any way undermine the test in Re W, rather it serves to emphasise that which scarcely needs emphasising , namely that each case turns on its facts. It seems to me that a significant feature of the Limb 2 welfare evaluation, on the facts of this case, must be the justifiable sense of grievance that GR would have if, having filed her statement and expressed her willingness to speak to it, a judge having refused her permission to give evidence, nevertheless went on to disbelieve her and make findings of sexual abuse against her father.

30. Further, in the context of the 'essential test' of ensuring that there is justice for all the parties, the question must be asked as to how have the father's Article 6 rights been protected?  The father's sense of unfairness and that justice would not have been done if a finding were made against him in circumstances where GR, contrary to her wishes, had not been allowed to give evidence would be both inevitable and understandable.

Conclusion

31. Having considered all the circumstances, I have concluded that on the facts of this case, a proper application of the Re W test leads unequivocally to granting GR permission to give oral evidence subject to her continued desire to do so, and with agreement between the parties as to appropriate special measures being put in place, in order to minimise the inevitable toll such an experience will take upon GR. 

32. Accordingly I would allow the appeal. The court has been asked to substitute its own order in the event that the appeal is allowed and I would therefore give permission for GR to give evidence if, when the time comes, she continues to wish to do so.

Lord Justice Briggs :
33. I agree that this appeal should be allowed, and with my Lady's reasons for doing so. The brief observations which follow should in no way be regarded as departing from the need to conduct a full balancing exercise in the way she describes.

34. In civil litigation the general rule is that where a party witness provides an appropriately verified written statement of her evidence, and is willing to attend for cross-examination, the court cannot be invited by other parties to disbelieve that evidence on a matter within her personal knowledge, unless it has been tested in cross-examination. This is a basic and deep-rooted aspect of the fair conduct of a trial, and reflects the central role which cross-examination plays in the ascertainment of the truth.

35. It is therefore very unusual to find, as in the present case, a situation where the parties who do wish to challenge verified statement evidence from a party witness with the closest personal knowledge of the relevant events, seek to persuade the judge not to allow that witness to attend for the necessary cross-examination, where the witness herself positively desires to do so. Of course the motivation for this persuasion is of the very highest, namely an understandable concern for the young witness's welfare. But for that concern, one would expect it to be common ground that there was a need for the witness to attend for cross-examination, since she denies in her evidence the very thing which the Local Authority seek to prove, namely that both she and her sister have been sexually abused by their father.

36. To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge's judgment or even in the respondents' submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

Lord Justice Sullivan :
37. I also agree.