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A (Children) [2007] EWCA Civ 110

Renewed application by parents for permission to appeal findings of fact that they had neglected and physically abused their children. Application dismissed.

Counsel for the parents argued several points, including that the trial judge had not referred to a favourable report by a psychologist and that a video interview had been used without any expert opinion offered on the credibility of the evidence. Wall LJ rejected these points saying that the report would be only relevant to the disposal stage of the proceedings and that the authority cited by counsel for attacking the use of the video evidence was both outdated and insufficient authority as that case related to sexual not physical abuse.


B4/2006/2515 & B4/2006/2516
Neutral Citation Number: [2007] EWCA Civ 110

Royal Courts of Justice
London, WC2

Wednesday, 31st January 2007

B E F O R E:


(DAR Transcript of
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MR R ADEWALE (instructed by Charles Ete & Co.) appeared on behalf of the First Appellant.



(As Approved by the Court)

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1. LORD JUSTICE WALL: This is a renewed application by the parents of two boys for permission to appeal against orders made by HHJ Cahill on 20 December 2006. As the proceedings are ongoing I propose to refer to the parties and to the children by initials only. The parents are thus Mr and Mrs A. The two boys are RA, born on 10 July 1997, and DA, born on 29 February 2000. The proceedings in question are care proceedings instituted by Leeds and the two children are currently with foster parents under the interim care orders pending a final hearing which has been listed before the judge in the late spring of this year. The judge was hearing what has become known as the first limb of a split hearing in care proceedings, namely a hearing at which she was invited to make findings of fact and to decide whether or not the threshold criteria under section 31 of the Children Act 1989 had been satisfied. Clearly if she had not been so satisfied, the proceedings would have then and there come to an end and the children returned to their parents. In the event she was so satisfied. She made a number of findings of fact. She found the threshold criteria satisfied and she gave directions for the final hearing.

2. The parents' applications for permission to appeal were refused on paper by Wilson LJ on 20 December 2006. The parents had begun the hearing before the judge jointly represented but after a number of days it became apparent to counsel acting for both of them that he could no longer continue. As a result there was then a split in the representation, and I think the father, Mr A, effectively represented himself thereafter and the mother's case was taken over by her solicitor.

3. There are three preliminary points before I come to the merits of the parents' applications, and the first is that we have not been provided with the schedule of findings which were made by the judge and to which she refers at paragraph 52 of her judgment. Mr Adewale, who appears for Mrs A today, cannot explain why that document is not in our papers, particularly as a specific reference is made to them by the judge. It is not, to be fair to him, a document which he himself has seen. Secondly, we do not have the transcript of a video interview which the elder boy RA gave and which formed a plank in the judge's thought process and in her reasons. Various issues arise from that interview and indeed Mr Adewale addressed us in relation to it. But, as I say, neither we nor, I suspect, he has seen it. Thirdly, and perhaps more significantly, there is no written statement from either appellant under paragraph 4.14A of the Practice Directions to part 52 of the Civil Procedure Rules. Paragraph 4.14A(1) reads:

"(1) This paragraph applies where an appellant, who is represented, makes a request for a decision to be reconsidered at an oral hearing.
(2) The appellant's advocate must, at least four days before the hearing, in a brief written statement –
(a) inform the court and the respondent of the points which he proposes to raise at the hearing;
(b) set out his reasons why permission should not be granted notwithstanding the reasons given for the refusal of permission; and
(c) confirm where applicable that the requirements of paragraph 4.17 have been complied with (appellant in receipt of services funded by the Legal Services Commission)."

4. This of course only applies to Mrs A, Mr A being in person. Paragraph 4.17 reads:

"Where the appellant is in receipt of services funded by the Legal Services Commission (or legally aided) and permission to appeal has been refused by the appeal court without a hearing, the appellant must send a copy of the reasons the appeal court gave for refusing permission to the relevant office of the Legal Services Commission as soon as it has been received from the court. The court will then require confirmation that this has been done if a hearing is requested to re-consider the question of permission."

5. We understand from Mr Adewale that the reason for all three of these omissions may derive from the fact that he himself was only instructed at a very late stage and is not in a position to enlighten us about them. What, however, in my judgment is quite inexcusable is that he has not been shown the reasons given by Wilson LJ for refusing permission to appeal. This morning after the case had been called on, we had to adjourn for a short period to allow him time to read them. The grounds of appeal in this case in the skeleton argument which was received by the Court of Appeal office on 26 January 2007 were settled by Mrs A's solicitor. However, permission to appeal was refused by Wilson LJ on 20 December 2006 and the skeleton argument from Mrs A's solicitors makes no reference to Wilson LJ's reasons. There is accordingly in my judgment no excuse for any of the three omissions to which I have referred and in these circumstances the court requires to be satisfied that Mrs A's solicitors have indeed fulfilled their obligation under paragraph 4.17 of the Practice Direction which I have read.

6. My understanding is that Mrs A is publicly funded for this application and in such cases it is normal to make an order that her costs in relation to it be assessed. Subject to my Lady's views, I would be minded to make such an order, but at the same time to make it subject to the cost judge and the Legal Services Commission being satisfied that paragraph 4.17 of the Practice Direction has indeed been complied with.

7. Mr A invited us to adjourn the application to enable the schedule of findings and the transcripts of RA's interviews to be obtained. We refused that application for three principal reasons. In the first place, the responsibility for ensuring that these documents were before the court lies fair and squarely with Mr and Mrs A and the latter's advisers. We see no reason why they should have an adjournment in order to rectify their own error. Secondly, we have the judge's clear findings about both matters. Provided there was material upon which the judge could properly make her findings, these applications stand no prospect of success and accordingly there is no point in adjourning them.

8. Thirdly, we must recall that this is a renewed application for permission not only where permission has been refused in clear terms by the single Lord Justice on paper, but which relate not to a final hearing and final care orders but to findings of fact and the satisfaction of the threshold criteria under section 31 of the Act. The critical issue of the children's welfare and their ultimate housing, and with whom they live, all remain to be decided at the final hearing for which the judge has made provision. An adjournment might well put that final hearing in jeopardy. The present application as I see it is an attempt by the parents to appeal against findings of fact and as I have already said, if there is a basis upon which the judge could legitimately make such findings any challenge to them at this stage is doomed to failure. As I have already said, the judge was undertaking the limited fact-finding function at the hearing before her which nonetheless we understood took some 12 days of court's time.

9. The local authority's case was that the two children, the younger of whom has the misfortune to suffer from Down's Syndrome, have suffered significant harm in their parents' care and were likely to do so in the future on a number of factual bases. The judge's findings are set out in paragraphs 44 to 51 of her judgment. They repay study. In essence, however, they all turn on the credibility of RA and of Mr and Mrs A, judged in the context of the evidence which the court heard from, in all, some 12 witnesses apart from a cousin of the father, a Mr SD, and the guardian. The judge thus had an abundance of evidence upon which to make her findings. RA had, as I said, been interviewed on video in what the judge appropriately described, albeit from a different jurisdiction as a "memorandum" interview. It is this interview which provides the basis for Mr Adewale's first ground of attack. In her judgment the judge described RA in these terms:

"He is 8 years old, but he is a bright and intelligent boy who clearly loves his parents and who I accept would like if at all possible to return to them. There is no reason that has been advanced to me that would support the proposition that he would either lie about his parents or make things up about them. There are parts of the interview that are unclear but in my judgment there was a core of allegations made by RA that individually are reliable and credible."

10. The judge then goes on in paragraph 45 to make the following findings about RA:

"Apart from [RA]'s interview he has made a number of spontaneous remarks to carers, teachers and Social Worker all of which are consistent with the main core of his allegations. These in turn in my view are supported by the evidence of others. [RA] has said he and [DA] were left alone. The Health Visitor, the gas man, the Social Worker and the police all corroborate this, having themselves found the boys alone. There is a consistency between the allegation and the supportive evidence that cannot be ignored. He has further said that he was locked in rooms in the house. The parents deny there were locks, but these were seen by several witnesses and I am satisfied they were there. I reject the parent's evidence that the Social Workers and [a named Leeds Housing Association officer] were lying when they say they saw locks, and lying about who visited the property. I accept that [the lady in question] hand delivered a letter to the father referring to these locks."

11. She goes on in paragraph 46 of her judgment to say this. It is a lengthy paragraph but worth quoting because it was picked up as I will show in a moment by Wilson LJ:

"The evidence I have heard from the mother, the father and [the cousin] was inconsistent and at times incredible. Where each of their evidence differs from that of the other witnesses I completely reject it. In particular I reject the submission that the professionals have entered into a conspiracy to remove these children from their parents and in so doing have lied to and misled the Court. I am satisfied that each of the witnesses … [and she names a number of them] … have come to this court with the intention of telling the truth and have done so. I do not accept that they have made up their evidence to support the Local Authority's case. On the other hand the parents and … [the cousin] were deeply unimpressive. Their memory recall was selective. Whenever uncertain about a point they told me it was difficult to answer despite being matters which should have been known to them. They were evasive and contradictory of themselves, changing their accounts to fit the particular point they were addressing. I found myself completely understanding the difficulty described by the Local Authority witnesses that it was impossible to obtain a reliable account. It is impossible to be clear from the evidence I have heard from the parents and … [the cousin] about even something as basic as where the father lives and has lived over the last three years. If they can mislead me about such a basic point it is easy to see how they have misled Social Workers. If as the father now asserts he has effectively lived in London for most of the period since August 2003, why has he lied to the Social Workers and the Court in his statements about this? He gave information about living in London at a point in his evidence when he was seeking to exculpate himself from blame from missed appointments and was perhaps not thinking of the wider implications. I am satisfied that he has spent large amounts of time in London leaving his wife to care for the children and without money so that she had to work and in a household where … [the cousin] was a visitor. The reason why the father hid that information from Social Services is obvious."

12. The judge then goes on to make a number of critical findings. The first is that despite parental denial, the mother was a victim of domestic violence. There was a particular incident on a particular day in January 2005 which left her in no doubt on the point and she deals with it in some detail. Domestic violence, she found, was not limited to physical acts and the judge recorded repeated assertions the mother had made that she was the victim of domestic violence. She also accepted RA's account of the fights between his parents such that he ran away, and in the judge's view they all gave credence to the view that even if there was no more than one physical incident, this was an emotionally violent household. She also accepted evidence that RA had said he had been left by his mother on his own "lots of times" and she found that corroborated by the health visitor and indeed others. She disbelieved the parents' assertion that they had made arrangements for the children to be looked after and cared for in their absence. She was left, she said, with no doubt as to what happened: that the two boys on one particular day had been left to look after themselves. She also accepted that the children were not only locked in the house but had been locked in different rooms in the house. She accepted evidence that locks had been seen and rejected the parents' evidence in relation to the same subject matter. She also found that on occasions the mother had struck the children with her arm. In paragraph 51 of her judgment she concluded her findings with these words:

"There is evidence which I accept that the children have exhibited difficult behaviour at school from 2004. [RA] was on the special needs register for challenging emotional behaviour in January 2006. [DA] was also exhibiting such behaviour in January 2006. I reject the parents' contention that the difficult behaviour started only after they went into care although I fully accept that there has been such behaviour whilst in care. Poor parenting may undoubtedly have contributed to this behaviour however I do not consider that I can safely conclude it was the cause. There may have been many other contributory factors. I am however satisfied that poor parenting and neglect have caused these boys emotional harm and is likely to cause them emotional harm in the future if repeated."

13. Those were the findings of the judge against a background where she had directed herself very carefully as to the law by reference to the burden of the standard of proof and the decision of the House of Lords in the well-known case re H and R (Child Sexual Abuse: Standard of Proof (1996) 1 FLR from which she cited at page 80. She also dealt carefully with the question of significant harm in paragraph 9 of her judgment and rejected the submission to which I will return in just a moment that she should have had expert evidence to assist her in her assessment of the video interview. So I can find no error in the judge's analysis of the law and the argument therefore has to be that her assessment of the facts was in some way perverse.

14. Wilson LJ in refusing permission to appeal dealt first with the argument that there needed an expert to be instructed to assist the judge in the assessment of video interview. I propose to read the reasons which my Lord gave, for reasons which will become apparent:

1) The judge, properly reminding himself of his age, was entitled to survey the video of RA's interview without expert evidence. Re N (Child Abuse: Evidence) (1996) 2 FLR -- I interpolate an authority cited by the judge to which I shall return -- is not authority that such evidence is always required. Indeed, it is seldom required. Anyway, the suggestion that it be obtained was made far too late. The father's reference to the absence of "an independent person" at interview is a totally different point. The complaint that the judge was wrong to apply guidance referable to criminal proceedings is a complaint which he took too strict, not too lenient, an approach to the evidential value of the video.
2) The judge was well aware that the threshold relates to "significant" harm and in the light of the findings that the boys were locked in their room, left alone at home, exposed to some violence was well open to her to infer such harm without expert evidence.
3) The allegations that the boys have not thriven in foster care and Mr Anderson's evidence (a psychologist to whom I will return) are relevant only at the forthcoming disposal stage.
4) The parents' mistreatment of the boys at home has found to amount to an abuse of them whatever the family's cultural norms and the apparently correct interlocutory decision to refuse expert evidence in that regard was never the subject of an attempt at appeal and could not now be appealed.
5) In paragraph 46 (that is of course the paragraph I have read) there are devastating findings after apparently a 12 day hearing about the credibility of the parents and the cousin which make it in effect impossible this court to rewrite the judge's conclusions about specific incidents.
6) The judge had before her a report from a psychologist, Mr Larry Anderson. Mr Anderson had been instructed on the guardian's behalf or by the guardian on behalf of the children to make an assessment amongst other things of the children's relationship with their parents and the effect of the parents' parenting on DA's Down's Syndrome.

15. The judge does not appear in the current hearing to have taken oral evidence from Mr Anderson and she makes no reference to his report in her judgment. In my view, the explanation for this is clear and derives from the instructions which Mr Anderson had received from the guardian. As I indicated a moment ago they were firstly to consider and provide his opinion on:

"… the level and nature of the attachment between the children and between the children and their parents".

16. Secondly, he was asked to provide an assessment of DA's Down's Syndrome, in particular respects which were then identified; and thirdly, he was asked for his opinion on RA's challenging behaviour and whether and to what extent that was as a result of parenting which he had received prior to coming into care. Finally, he was asked to consider:

"What would be the effect on the children should they ultimately be separated from their parents?"

17. Against this background, it seems to me plain that Mr Anderson's evidence will be highly relevant at the second welfare or what we crudely call disposal stage but it was not relevant at the first hearing. That was the view of Wilson LJ in the passage from his reasons which I have read, and I respectfully agree with him.

18. Against this background therefore the judge's failure to make any reference to Mr Anderson's report is perfectly understandable and does not to my mind anyway vitiate any of the findings of fact which she made. Credibility is not a matter for an expert. Credibility is a matter for the judge. The judge relies on the expert to report within the ambit of his expertise on the expert's opinions and no doubt Mr Anderson's opinion on the relationship between the two boys and their parents will be of importance when it comes to consider disposal. But in my judgment it was irrelevant when it came to consider the underlying facts. Indeed, Mr Anderson would not have the picture which the judge undoubtedly had from hearing all the evidence.

19. However, that was the second point taken by Mr Adewale. His first point was to repeat the argument that the judge was wrong to place reliance on the video interview without the assistance of expert evidence to assist her in the task of assessing RA's credibility. He relied on the decision of this court in the case of Re N Child Abuse Evidence [1996] 2 FLR page 214, a decision of Neill and Ward LLJ. The case, if I may say so, is somewhat outdated because it predates the decision of this court that experts were indeed if necessary entitled to comment on what was described as the ultimate issue and indeed on credibility. But in my judgment more importantly it is a case of sexual abuse, where it may well be said that a judge in difficult factual circumstances may well require assistance on the issue of credibility.

20. In my judgment this case is not about sexual abuse: it is about physical abuse and about neglect, all of which are in my view straightforward issues of fact. In any event Re N is not authority for the proposition on which Mr Adewale relies and indeed, as Wilson LJ pointed out, it is not authority -- nor does Mr Adewale seek to argue that it is -- for the proposition that expert evidence is invariably required when child credibility is in issue. As I have already made clear, the task of the judge in this case was to assess whether in core respects RA was telling the truth when he said what he did in the video interview and in my judgment the way the judge approached that issue cannot be faulted. She tested RA's allegation against the other evidence in the case including what RA had said to others. She was in my view plainly entitled to come to the conclusion that there was what she described as "a main core of truth" in his allegation. She did not in my judgment need an expert to assist her in reaching that conclusion.

21. Furthermore the submission is rendered all the more difficult for Mr Adewale because no application had been made to the judge that she should permit the instruction of an expert to assist her in this regard, and the only point which seems to have been taken is that it might have been appropriate for an appropriate adult to be with RA during the course of the interview. As Wilson LJ pointed out, that is an entirely separate issue. In my judgment it was not incumbent on the judge of her own motion to take the view that she needed an expert. She was perfectly entitled to proceed without and accordingly there is nothing in Mr Adewale's first point.

22. As to the second point, I have already to an extent dealt with this by explaining the nature of Mr Anderson's instructions. Nevertheless, it is right to say that Mr Adewale took us to paragraphs in the report which appear on their face to be strongly supportive of the proposition that the children had a powerfully strong relationship with their parents. In paragraphs leading up to 24.24 and 24.25 Mr Anderson had observed a contact period and there was a painful separation at the end of it. Mr Anderson in paragraph 24.24 records:

"I was left with two very vivid images:

One of [RA] being driven away, forlornly waving to his parents, who, although they had hugged and kissed him goodbye, were understandably taken up with trying to help [DA];

The other was of [DA], a vulnerable little boy, quite beside himself with the trauma and grief of maternal separation.

I also felt that I had been party to an act of institutional abuse."

23. In paragraph 25.2 Mr Anderson says:

"I have no serious doubts that these children have what, in the language of classic attachment theory, is called a 'secure base'. They are confident and competent in the skills and habits of care-seeking."

24. So far I would have no quarrel with that as an opinion expressed by an expert but Mr Anderson goes on to say, "and their parents are fluent in the processes of care giving". That may well have been Mr Anderson's observation but it is nothing to the point as to the findings of fact made by the judge. Mr Anderson observed one contact period. The judge had the benefit of the evidence overall and taken as a whole. In paragraph 26.6, to which we were also referred by Mr Adewale, Mr Anderson poses the question:

"Whether, and to what extent, [DA]'s behaviour is as a result of Down's Syndrome or the parenting he has received prior to entering foster care?"

25. He then under that heading comments:

"The careful assessment by [a particular official] leaves me in no doubt that the deterioration in DA's behaviour is a result of his being placed into local-authority care, or rather, a result of traumatic separation from his parents.

"The manner in which this anguish has been expressed is, of course, related to his special needs."

26. He goes on slightly below that to say RA's class teacher makes it clear that in her opinion there has been a significant deterioration in RA's behaviour since he entered local authority care. In my judgment, none of this goes to the essential task being undertaken by the judge at this hearing. Whilst other judges might have made a reference to Mr Anderson's report and indeed whilst it might have been preferable had the judge made at least a passing reference to it, if only to explain why she was not placing any weight on it, she did not do so and in my judgment it was not incumbent on her to do so.

27. As I have already made clear, I respectfully agree with Wilson LJ that the value of Mr Anderson's report, if his observations are accurate, lies in the ultimate outcome of this case. The local authority's position appears to have been that it would wish to reunite these two children with their parents but takes the view that every child has a right not to be abused or suffer significant harm at the hands of his or her parents and therefore is anxious to ensure that it is safe for the children to return before they actually do. In my judgment, the parents will be wise to take that message on board and address it as indeed the judge has invited them to do.

28. Wilson LJ returned to similar themes when he dealt with the separate application made by Mr A in person for permission. I should perhaps say that there were other grounds in the appellant's notice filed on behalf of Mrs A but in my judgment they were, wisely, not stressed by Mr Adewale in his submissions this morning and in my judgment they do not take the matter any further.

29. In particular I find it quite impossible even to contemplate the argument that the parents did not have a fair trial at the hands of the judge. As I have already indicated, the case lasted 12 days. They were fully heard by the judge. The judge had abundant opportunity to assess them and their credibility and any suggestion that they were disadvantaged by the absence of expert evidence simply does not bear examination. In refusing permission to Mr A to appeal, Wilson LJ referred first of all to the reasons he had already given in the case of Mrs A and he goes on to say this:

"Unfortunately for you the judge has given detailed reasons for concluding that you and your wife were wholly unreliable witnesses even on matters as basic as where you have been living. You and she would not be able to persuade this court to prefer your evidence about for example whether the boys were locked in their rooms and whether they were left alone at home on 21 February 2006.

"b) You have misunderstood the nature of the judge's enquiry which was into the boys' circumstances prior to their reception into care on or about 8 March 2006. The evidence from Mr Anderson about the future course best taken in their interests and your complaints about contact, the abuse allegedly suffered by RA in care, and your assertions about his wishes are relevant only at the next stage of the hearing."

30. Mr A took us to various documents in the bundle of documents he had prepared which he argued showed the judge had made errors about where he and his cousin were living; documents emanating from RA showing that he was unhappy in foster care and in particular that he did not enjoy working on the foster carer's allotment and seeking to persuade us from the documents that the harm which the two boys had suffered post-dated their reception into care.

31. In my judgment, none of these matters affects the central essential issue or even addresses it. The judge was being asked to make findings of fact. She did so. In order to do so, she had to form a view about the credibility of the witnesses she heard. Provided there was material upon which she could properly reach her conclusions, that is the end of the matter so far as this court is concerned. This court does not find facts. It is the judge who is given the task to find the facts. In my judgment, as I think I have already made clear, there was plainly abundant material from which the judge could properly make the findings which she sets out in paragraphs 44 to 51 of her judgment. As a consequence, an appeal would not only be likely to have the consequence of interfering with the vital final hearing but would plainly in my judgment stand no prospect of success.

32. As I have already made clear, but for the benefit of Mr A I repeat, whether or not all this means that the children are returned to their parents' care in due course is quite a different issue, which the judge will have to address at the final hearing.

33. For all these reasons therefore I would refuse both applications for permission to appeal.

34. LADY JUSTICE HALLETT: For the reasons given by my Lord, Lord Justice Wall, I too agree that the renewed application for permission to appeal must be refused, and I too agree that any assessment of the first appellant's costs must be subject to compliance with the Rules in the Practice Directions.

Order: Application refused.