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W (Children) [2009] EWCA Civ 644

Application by father for permission to appeal, with appeal to follow, against finding arising in care proceedings that he had raped a step-daughter where he had been acquitted in the criminal courts. Application allowed but appeal refused.

The appellant had been accused of rape arising out of the evidence in care proceedings but was acquitted in the criminal courts. However the trial judge's finding still stood and which the appellant was seeking to overturn. In this judgment Wall LJ concluded that the findings could stand, even though he had misgivings about the procedure, as, among other things, the trial judge had not erred in continuing with the care proceedings and that the lack of legal representation, while deplorable, had not necessarily rendered the process unfair.

Wall LJ also reviews the case law and regulation governing the interface between criminal and care proceedings and comments as a reminder for the profession:

"In my judgment, there can be no excuse for either the profession or the judiciary not knowing about or following what is – or should be - a well established protocol particularly when, as here (and I am conscious that I am repeating myself but the point is of great importance) the Care Centre and the Crown Court sit in the same building and there are many judges who have what have become known in the profession as both care and serious sex crime “tickets”....

.... where there are concurrent care and criminal proceedings, it is essential that each is kept fully informed of the other, and that the judge having the conduct of the care proceedings exercises his or her case management functions not only with a full knowledge of the state of play in the criminal proceedings, but with a view to ensuring that each is heard at an appropriate time."


Neutral Citation Number: [2009] EWCA Civ 644
Case No: B4/2008/2987
AN ORDER MADE BY HHJ MARSTON on 5th November 2008

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/07/2009
Before :

- - - - - - - - - - - - - - - - - - - - -
Between :

SW (1st Appellant) and KSW (2nd Appellant)


Portsmouth City Council (1st Respondent) and ISW, AJW, EDW - The Children (2nd Respondent)
W (Children) 

- - - - - - - - - - - - - - - - - - - - -
The Stepfather represented himself with Mr O’Connell as his McKenzie Friend
1st Appellant
Ms Naznin Islam (instructed by Leonard & Co - Solicitors) for the 2nd Appellant
Mr Colin Morgan (instructed by the Local Authority) for the 1st Respondent
Ms Kelly Ward (instructed by Larcomes - Solicitors) for the 2nd Respondent

Hearing date: 20th May 2009
- - - - - - - - - - - - - - - - - - - - -
Lord Justice Wall:
1. I have found listening to this appeal a dispiriting experience. I will, in a moment, explain why that is. I hasten at the outset, however, to record that my sense of dismay has little to do with the judge at first instance, whose decision is challenged and who, it seems to me on a full reading of the documents, has done more than his competent best to keep an otherwise ill-managed case on the road.

2. At the same time, I do not wish to be unfair, and I am the first to acknowledge that, viewed through the prism of this court, a care case pending in the county court can look quite different to the way in which it presents on the ground.  I propose, accordingly, to use this judgment in part as a means of reminding the profession of matters, which at least at first blush, appear not to have been given the attention in the court below which they deserved.

3. I should, however, make it clear at the outset that, although I would give permission to appeal, I have come to the conclusion that the appeal itself must be dismissed, and that, despite the deficiencies which I shall attempt to identify, the judge in my view was entitled to reach the conclusions which he did, and that his exercise of discretion cannot by any stretch of the imagination be designated plainly wrong.

4. My dissatisfaction arises from the following features of the case: -

(1) the fact that the appellant (as a party to the care proceedings from which the appeal comes) had to face serious allegations of sexual abuse (the rape of his step daughter then aged 14) without legal representation or advice;
(2) the fact that although the appellant’s application for permission to appeal on some grounds was listed by Holman J on 24 March 2009, with the appeal to follow if permission was granted, the appellant did not qualify for legal aid for this appeal, and was represented by a McKenzie friend (who conducted his case well and in relation to whom I have no criticism);
(3) the fact that this court has on numerous occasions given careful guidance on case management where there are concurrent criminal and care proceedings. No substantive notice  appears to have been taken of that guidance in the instant case, despite the fact that the case comes from a court centre which combines serious criminal and care cases in the same building;
(4) the fact that we have in court a mass of documents (which, in an attempt to marshal into some form of coherent order I reduced to some seven arch lever files, and most of which were not referred to in argument) yet we lacked the one transcript which would have shown us how the judge approached perhaps the most critical issue in the appeal. The consequence is that we were unable to determine the case when we heard it on 20 May 2009 and had to adjourn for the transcript in question to be obtained.

The appeal
5. Before addressing the points set out in the preceding paragraph, I must introduce the appeal itself.  As the case is not yet concluded, I would propose the imposition of reporting restrictions, and this judgment will, accordingly be written anonymously.

6. The appellant has three children. They are ISW, a girl born on 29 November 1992 (and thus now 16): AJW, born on 16 November 1999 and thus 9; and EDW, born 14 March 2001, and thus now 8. Both AJW and EDW are boys. The mother of all three children is KW, who comes from the Gambia. She married the father in the Gambia on 11 December 2003. ISW has a different father from AJW and EDW: ISW’s father lives in the United States of America, and has taken no part in the proceedings. The father of the two younger children is believed to live in the Gambia, but his whereabouts are unknown, and he, too, has taken no part in the proceedings.

7. The appellant, prior to his marriage to KW had been married to two different women, both from the Gambia. KW and the three children came to this country from the Gambia shortly after KW’s marriage to the appellant.  Their visas appear to have expired, and their current immigration status is unclear.

8. The three children have been in foster care since September 2007. The local authority first became involved pursuant to what were on any view serious assaults by the mother on ISW and the appellant.  The mother then initially appears to have accused the appellant of sexually abusing all three children, albeit that thereafter she limited her accusations to an improper relationship between the appellant and ISW, whom she claimed to have caught kissing in the kitchen. She now appears to have retracted her allegations that the appellant abused ISW.

9. Although initially denying that the appellant had behaved improperly towards her, ISW herself subsequently asserted that on at least two occasions the appellant had put his penis into her vagina (the actual terms she appears to have used, despite her limited knowledge of the English language). These allegations led to the appellant being charged in the Crown Court on two counts of rape, whilst simultaneously facing identical accusations in the care proceedings. This is therefore a case which raises in clear terms the question of the interface between care and criminal proceedings.

10. The judge, in an extended fact finding hearing – but without ISW giving oral evidence and being cross-examined - found that ISW’s allegations were established on the balance of probabilities and made the findings of rape sought by the local authority. The appellant then faced a criminal trial on the same issues in the Crown Court, where he was acquitted by a jury following a trial at which both he and ISW gave evidence and were cross-examined.

11. The judge also made a number of findings of violence against the mother, from which there is no appeal, although counsel appeared on the mother’s behalf before us and supported the appellant’s appeal, to the extent of submitting that the judge should have awaited the outcome of the criminal proceedings before deciding the issue before him.

12.  The essence of the appeal, therefore, is that the appellant challenges the judge’s findings of rape. He is supported by the mother, with whom, we were told, he is still living as husband and wife. It would thus appear, as I have already recorded, that she no longer believes that he raped ISW.

13. Challenging findings of fact made by an experienced circuit judge in care proceedings is always a difficult task, however, serious the findings made.  As is trite law, the appellant has either to show that the judge has made an error of law; alternatively that the findings made by the judge were not properly open to him on the evidence. In any case which turns substantially on the credibility of witnesses, it is inevitably difficult for any appellant, let alone one acting in person, to succeed in establishing that the judge was plainly wrong to reach the conclusions he did.

14. The appellant’s notice, which is not altogether easy to follow, contains seven grounds (numbered 1 to 7) on the first page, followed by headings lettered (a) to (q). It then starts again at ground  2 and continues through to ground 9. In the event, we do not have to consider all the grounds because on 24 March 2009, Holman J on an oral application for permission to appeal (that permission having been refused by the judge) directed that an application for permission to appeal on three grounds only (which I take from page 1) should be listed for oral hearing with the appeal to follow if permission was granted. There was no renewed application for permission to appeal on the remaining grounds.  Speaking for myself, I would grant permission to appeal, although I note that we do not have a copy of Holman J’s judgment, which he directed should be transcribed.  No reason has been proffered for the absence of this important document.

15. Although the points raised by the appeal are covered by clear authority, I regard them as important. On the evidence of this case, the profession plainly needs to be reminded of them. It seems to me plain – at least at first sight - that the authorities which govern cases of this nature have in this case been more honoured in the breach than the observance.

16. The grounds which, pursuant to Holman J’s order we have to consider are – albeit not in the order listed) as follows:-

6. The judge was plainly wrong in not permitting cross examination of the child whose words on ABE evidence were sufficient alone in the absence of other corroborative evidence to make serious findings of sexual abuse (sic). Without being able to cross examine the maker of allegations there is a breach of Article 6.1 of the European Convention and natural justice.

2. The judge failed to consider that evidence may come to light in cross examination of (ISW) that is relevant to the findings made and would have affected the form and type of arguments and submissions made to the court.

7 The judge put insufficient weight on the age of the child  and the availability to the court of some form of protective measures to enable the (appellant)  and the court to test the evidence of the allegations. This is made more concerning given that the same child will testify to the same allegations in criminal proceeding to be heard in December 2008.

The judge in any event erred in his decision making process. The judge failed to put sufficient weight on a number of factors in making positive findings of sexual abuse and on allegations 1 to 7.

17. There then follow the list of 17 factors, designated by the letters (a) to (q)  on which it is said the judge failed to place sufficient weight. These are:-

a. The inconsistencies in the child’s evidence of sexual abuse.  The Judge wrongly took inconsistency as evidence of veracity.

b. The breaches of best practice in ABE interviews.

c. The passage of time in making the allegations.

d. The fact that the allegations were made over two months after being in care.

e. The jealous and unfortunate relationship between the mother and daughter.

f. The fact that a child making allegations of abuse, if found in the criminal court would result in financial recompense.

g. The poor relationship at the time between the mother and daughter and the possibility of the child seeking revenge and also greater freedom than her mother wished to permit.

h. The home and cultural background of the mother and children.

i. The fact that the mother’s case was only suspicion of a relationship, jealousy and the child had stated that ‘it was all in her head’.

j. The fact that there was no medical evidence of sexual abuse and the expert who examined the child did not even note she had been circumcised.

k. The Judge made findings based on conflicting hearsay and not on cogent evidence which was non-existent.

l. The Judge had denied relevant witnesses to the allegations in terms of character/previous behaviour and witnesses of fact who in their absence could not be cross-examined.

m. The Judge accepted evidence of social workers when Police evidence contradicted their version yet attendance of the officers was refused.

n. Drawings by the child showing sexual abuse were not consistent with the allegations.

o. A child being raped would not ask if the rapist had done it to other children  whilst being raped.

p. Documents required were not disclosed.

q. Swift notes were not disclosed.

18. The revised schedule of findings sought by the local authority and placed before the judge contains, as items 1 to 7 allegations of physical assault, firstly by the mother on ISW, then by the mother on the appellant. The evidence for these allegations was overwhelming, and resulted largely from observations by various professionals of the injuries to ISW coupled with admissions made by the mother to the police and to the local authority.

19. Items 8 to 11 of the local authority’s revised schedule relate to the alleged sexual relationship between the appellant and ISW. They read as follows:-

8. On the 31.8.09 (the appellant) was discovered kissing (ISW) in the kitchen of the family home by (KW). The discovery led to (an) assault.

9. During the course of 2007, some two months prior to disclosures made by ISW to the police during a disclosure interview on the 9.11.07  the (appellant) had sexual intercourse with ISW.

10. On another occasion during the course of 2007, the (appellant) had sexual intercourse with ISW.  ISW told the (appellant) that it was not nice and it was horrible.

(a) On the 28.6.07 KW alleged that the (appellant) and ISW were having a sexual relationship.

(b) On the 14. 8. 07 KW expressed the view that ISW was advertising herself to the (appellant).

(c) On the 1. 9. 07 KW stated  that  she believed ISW and the (appellant) were in a sexual relationship as she had caught them kissing in the kitchen on two occasions and had seen her husband going into ISW’s room at night.

(d) On the 3.10.07 KW told one of the doctors (as related by a social worker) that she had seen the (appellant) and ISW kissing and had seen the (appellant) “fingering” ISW.

(e) Notwithstanding KW’s knowledge of the inappropriate behaviour of (the appellant) towards ISW she has returned to a relationship with the (appellant) stating, on the 21.12.07 that ISW had lied about the rape and that AJW and EDW should return to the joint care of herself and the (appellant).

20. Allegation 12 relates to AJW, was discounted by the judge and does not feature in his appeal.

The fact that the appellant was unrepresented before the judge
21. I am in no doubt at all that most of the unsatisfactory features of this case stem from the fact that the appellant, although properly made a party to the care proceedings, did not have the benefit of either legal advice or representation before the judge. A total of 14 days were spent on the fact finding hearing, spread over July, September and October 2008.  At the close of evidence on 8 October 2008, the judge adjourned for written submissions, with the result that he was not able finally to hand down a reserved judgment until 24 October 2008. The proceedings had commenced on 6 December 2007. Quite apart from the inherently unsatisfactory nature of the fact that the appellant was unrepresented, the delay thereby caused to the resolution of the futures of these three children is highly regrettable.

22. The judge was the first to recognise that this was not satisfactory, and he identified several reasons for the extended hearing, which he set out in paragraphs 9 to 16 of his judgment, which deserve citation in full:-

9. Before setting out the factual background to this case, and considering each of the allegations, some matters need to be dealt with.  First, this case massively over ran.  There are three principal reasons.  In the course of it extra witnesses were called.  This is because some of these witnesses became available, who were not available previously, and also because, having listened to extensive submissions, in particular from (the appellant), I took the view that certain other evidence should be produced by way of witnesses.

10. Secondly, all of the evidence had to be interpreted for (KW) for although she has a knowledge of English, she has had to have it interpreted at all times into her native language of Mandinka which is one of the dialects of her native country, the Gambia.  (KW)  has very limited reading so that in addition to oral evidence any document has to be interpreted for her and of course her cultural heritage in the Gambia is very different from the culture that she has encountered over the last couple of years in Britain.

11. It is pointed out to me by her counsel, Mr Brooks, in his closing argument, that this court needs to be mindful of these matters when considering her participation in the court process.  Let me say at once that I am and I have been all the way through this.  What would have been an ordeal for any mother was compounded for this lady by her having to undertake this ordeal in a foreign language and in conditions in terms of the court and the litigation process which were totally alien to her.

12. The third factor which has led to these proceedings taking a great deal longer than was originally anticipated is the fact that (the appellant) has represented himself throughout these proceedings. (The appellant) was not entitled, as a right, to public funding, not being a person with parental responsibility.

13. On the other hand, his income as a quantity surveyor was not such as to allow him to privately finance representation in a very long care case.  The result of this is that he had to meet the most serious and complex allegations any party could have to meet without the benefit of legal representation. (The appellant) is a very angry man.  He has focussed a great deal of his energy in court in trying to prove that he and his wife are the subjects of conspiracy between Social Services and the Police aimed presumably to remove the children from his and his wife’s care.  At the end of his evidence he said this to me:

 “AL” – who is one of the main social workers in this case – “is trying to save her job and she has drawn all of her little chickens in to support her.  These are bad people.  They are cowardly and awful and have destroyed a good relationship by their attitudes.  The mother has been hyped up.  The foster parents have lied as well about telephone calls.  My wife is at her extreme limit and not well.  I am here because of my step-children and my wife.  I have the right to a fair and proper trial and I have no faith in the system”.

14. Of course, those are positions which he has every right to occupy.  But his burning feeling of injustice, together with his status as a litigant in person, having caused him to attempt to explore a number of issues which are at best tangential to, and at worst, entirely irrelevant to the case that I have to deal with.

15. In addition, (the appellant) has been at times highly agitated in court.  Again, I make no criticism of this.  I understand the sort of pressure he is under.  So even the minimum of co-operation between professional advocates than one would expect in lengthy care proceedings has been absent here.

16. Having said all of that, my first commitment has been to attempt to secure a fair trial for all of the parties here so that the children’s best interests can be served.  In that hackneyed phrase, which is still dear to my ear, “Justice cannot only be done, but can be seen to be done”.

23. I strongly deplore both; (1) the fact that the appellant was required to conduct his own defence before the judge without the benefit of legal advice or representation; and (2) the fact that the judge was required to adjudicate on questions of such importance to the children and the appellant without the latter having the benefit of legal advice and representation.

24. In my judgment, the important aspect of the fact that the appellant was unrepresented before the judge is the appearance of injustice and unfairness which it creates, and the fact that the appellant, who is not of course a lawyer, has been acquitted by the jury and is thus convinced that he had been the subject of a serious injustice.

25. However, what those who control the court’s purse strings simply do not – or will not - understand is that competent legal representation not only saves time (and by the sensible identification and elucidation of issues makes cases easier for the court to resolve) but that it also saves money. I am in no doubt at all that if the appellant had been legally represented before the judge in the care proceedings; (a) the hearing would not have overrun so grossly; (b) the result would have been much more likely to perceived by all to have been fair; and (c) the cost to the public and the parties in terms of both money and stress would have been substantially less.

26. I remind myself, however, that the function of this court is to review the judge’s findings. Was the process in fact unfair? Has the judge reached impermissible conclusions? There are the questions for this court. We have to operate within the system as it is. However, much we may deplore aspects of it, and wish to see them changed.

Split hearings
27. It is, however, I think appropriate to say a word about split hearings. In the instant case, the fact that the appellant was alleged to have raped one of the children whose future the court has to decide is plainly an issue of fact of the utmost importance, which has to be decided by the judge, particularly where, as here, the mother of the children and the appellant are living together as a family, and neither sees any reason why both should not care for all three children.

28. Plainly, a finding that the appellant has raped his 14 year old step-daughter is sufficient to satisfy the significant harm threshold under section 31(2) of the 1989 Act in relation to ISW, and no criticism can possibly be made of a judge who finds the threshold met in relation to all three children on the basis of significant harm to ISW and the likelihood of significant harm to the non-sexually abused children. So a “split hearing” at which the judge is invited to make findings of fact relating to the allegations of rape seems to me not only sensible, but almost inevitable.

29. I confess, however, to greater doubt in relation to the allegations made against the mother. These cause me some disquiet, as does the judge’s assessment of her credibility, to which I will return. On any view of the facts, the mother’s conduct towards ISW has been unacceptable (including the fact that she has been genitally mutilated), and given the numerous admissions she has made, I do query the need for a finding of fact hearing to determine items 1 to 7 of the local authority’s schedule, all of which related to the mother’s violence to ISW and the appellant.

30. Nobody in this court doubts both the pressure of limited time-frames  and the inadequate resources under which both the circuit bench and the High Court Bench are constrained to operate. It is, moreover, my view that the Public Law Outline - and its predecessor the Public Law Protocol - represented the clear commitment of the professions and the judiciary to efficient and cost-effective case management.

31. The most recent (and recently updated) Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [2008] 2 FLR 103 (the Practice Direction) is seen by some as imposing a still further burden on an already overstretched system. I understand that point of view. However, the importance of the Practice Direction, and the evil it is designed to combat  cannot be overstated.  Domestic violence and other forms of child abuse must be properly addressed by the courts. They are, in essence, issues of fact which must be brought to the attention of the court, and resolved by the court. Nobody else can do it. and no decision relating to a child’s welfare can properly be made when such issues remain outstanding.

32. At the same time, the intellectual rigour which needs to be brought to all proceedings relating to children needs to be applied with particular diligence when it comes to the Practice Direction. We all know that findings of fact hearings are time-consuming and can cause delay. The judge who directs one, and the advocates who seek it, both owe a duty to the children in the case and to the system itself to ensure that such a hearing is strictly necessary, and that in the terms of the overriding objective such a hearing, where required, addresses appropriate issues and is given an appropriate share of the court’s resources.

33. It follows that all those engaged in care proceedings (albeit in this instance that I have particularly in mind the advocates and the case managing judge) must apply their minds rigorously to the question of the need for a separate fact-finding hearing in any proceedings relating to children.  I therefore ask myself in the instant case: was it necessary to have a separate finding of fact hearing in relation to the allegations of the mother’s violence? Could not the assessments to be prepared for the final hearing have been approached on the basis that whilst the allegations had not been the subject of judicial findings, ISW had plainly suffered a number of injuries, and the mother had made a number of admissions. Advice as to outcome could, in my judgment, have been tendered to the judge on the basis that disputed admission had been made.

34. I would not want it to be thought that I am necessarily being critical at this point of the judicial case management of the proceedings which are the subject matter of this appeal. Case management is pre-eminently a matter for the tribunal dealing with the case on the ground. But if the Practice Direction is to work – and it must – a rigorous approach has to be taken to finding of fact hearings.  Any hearing must, of course, be fair, but the judge may need to make robust changes to schedules of findings prepared by local authorities, and local authorities in particular need to examine their practices carefully to ensure that a finding of fact hearing is strictly necessary for the proper and expeditious resolution of the proceedings.

35. Speaking for myself, I do not propose to determine the outcome of this appeal on the basis that there should not have been a discrete hearing in relation to the allegation that the appellant raped ISW, I comment on the finding of fact hearing in relation to the mother’s violence because I am aware of the difficulties which have been encountered with the Practice Direction on the ground, and in the hope that my comments may assist those charged with the difficult task of managing  cases involving alleged abuse to children.

The interface between care and criminal proceedings relating to the same subject matter
36. In paragraph six of his judgment under appeal, which I have not set out, the judge notes that the appellant faced criminal proceedings in the local Crown Court (which, as I understand it, sits in the same building). The judge professes not to be aware of what the counts were in the indictment. He “understand(s)” that “there could well be two counts of rape against (the appellant) and perhaps some other sexual allegations. The case, he says.  “may”  be dealt with in December 2008”.

37. I do not understand why the judge was unaware of the counts in the indictment. He should not have been unaware of them. The indictment, which we asked to see, is dated 19 September 2008. It does indeed contain two counts of rape.  ISW was said to be 14 at the time. The appellant was accused of “touching” ISW on two occasions between 1 September 2006 and 3 September 2007; in each case, “the touching being sexual and involving the penetration of her vagina with his penis”. It was also alleged that the appellant did not reasonably believe that ISW was aged 16 or over.

38. The judge should have known about the indictment for at least four reasons. The first is its date. The indictment plainly precedes the conclusion of the final hearing. The second is because he had earlier himself given directions for disclosure into the care proceedings of relevant police and criminal documents. The third is that we have a transcript of a part of the hearing on 24 October when the judge inquired of the appellant “are you going back into the criminal court this afternoon?” to which the appellant replied: “No, The IPO matter will continue without me and my representative because it is an in conference, in camera matter.  Therefore I am not required.” The criminal proceedings, were, of course, taking place in the same building.

39. The fourth reason is, however, perhaps the most important. There is an almost embarrassing volume of authority on the interrelationship between criminal and care proceedings. But what is clear beyond peradventure is that it is for the family court (1) to be aware at all stages of what is happening in the criminal proceedings; and (2) to be the proactive coordinator of the proceedings, to  ensure that each is heard timeously and with as little prejudice as possible to the competing interests involved.

40. I confess to a strong sense of déjà vu when I read my first instance decision in Re A and B (Minors) (No 2) [1995] 1 FLR 351, one of the authorities cited to us by counsel. The use of the word “minors” betrays its antiquity. It was a private law case in which a father sought contact but was also the subject of a botched child sexual abuse allegation which grossly delayed the contact proceedings and acted to the detriment of the children. This I analysed, no doubt at tedious length, in Re A and B (minors) (No. 1) (Investigation of alleged abuse) only reported at  [1995] 3 FCR 389. Having investigated the allegations of abuse, I made a contact order. I then examined what had gone wrong. I see that I said that the proper agency to co-ordinate the civil and criminal strands of a case was the court, and I added: - [1995] 1 FLR 351 at 354:-

A principal message of this judgment is that in private law cases where sexual abuse is alleged and a local authority are involved in a concurrent but independent investigation of the allegations it is essential:

(1) that there is co-ordination of the private law litigation and the local authority's investigation; and

(2) that the principal co-ordinating agency for the proper disposal of the issues in the case is the court.

However, if the court is to be the co-ordinating agency, it is vital that proper procedures are in place to ensure that the case is heard expeditiously. Above all, however, as I said in Re G (Children's Cases: Instruction of Experts) (above), the court needs to take a proactive role in procedural issues.

In this case the father's application for contact was issued on 15 May 1992. He was unable to obtain even an interim hearing until 14 December 1992 following an appeal to the Judge from the refusal of a district judge to list his application for interim contact. It was shocking that the father should have been reduced to appealing out of time so as to obtain a result which could and should have been achieved very much earlier. Further, the matter was not finally heard and decided until 12 April 1994. Such a delay was wholly unacceptable. Directions appointments must be regarded as of critical importance. Although traditionally dealt with by district judges they should be dealt with by a Judge and preferably by the Judge who was to try the case. The lack of planning in this case had resulted in directions as to essential expert evidence not being given for nearly 10 months after the father had commenced his application for contact. Further, where, as in this case, there were private law proceedings and sexual abuse was alleged and a local authority was involved in a concurrent but independent investigation it was essential that the court acted as the principal co-ordinating agency. There should be tightly drawn orders for directions, an effective use of s 7 of the 1989 Act (welfare reports and reports from the local authority), and efficient use of the court structure to ensure both the appropriate level and earliest possible hearing date for the trial.

41. I was not, of course, saying anything new in Re A and B (No 2). Indeed, two of the leading  cases on the interface between care and criminal proceedings pre-date the 1989 Act: - see R v. Exeter Juvenile Court ex parte H and H: R v Waltham Forest Juvenile Court ex parte B [1988] 2 FLR 214 and R v B County Council ex parte P [1991] 1 FLR 470. If that were not clear enough, the judgment of Butler-Sloss LJ (as she then was) giving the leading judgment in this court in Re TB (Care Proceedings: Criminal Trial) [ 1995] 2 FLR 801 makes it clear beyond peradventure that  the starting point is that the existence of criminal proceedings is not a reason to adjourn the care proceedings.

42. Matters have, however, moved on since 1995, and speaking for myself, I find it deeply dispiriting that some 17 years after the implementation of the Children Act 1989, no notice appears to have been taken in this case of  the more recent decision of the criminal division of this court in R v SL [2006] EWCA Crim 1902 (R v SL) in which the then President of the Queen’s Bench Division, Sir Igor Judge (now, of course, the Lord Chief Justice) chaired a constitution which included the President of the Family Division, and which heard an appeal from a criminal conviction for (inter alia) the manslaughter of a child following the hearing of care proceedings in which Hedley J had held that he could not determine which of the child’s two parents had inflicted on him the injuries which caused his death. Dealing with the question of practice, Sir Igor said:-

72. Until relatively recently, the problems addressed in this case were most unlikely to have arisen. It was once thought that where the facts of an individual case might give rise to a criminal prosecution, the prosecution should be concluded before any care or equivalent proceedings took place. This no doubt reflected a former rule of law that civil proceedings could not be pursued until the conclusion of criminal proceedings. However, since the advent of the Children Act 1989, with its emphasis on the paramountcy of the welfare of any child the subject of care proceedings, and the consequent need for expedition in the disposal of such proceedings, the position has changed. The current practice is summarised in the judgment of Butler-Sloss LJ, in re TB (Care Proceedings; Criminal Trial) [1995] 2 FLR 801.

One starts with the fact that the criminal proceedings of themselves are not a reason to adjourn the care proceedings. There must be some detriment to the children in the broadest terms for not bringing on the care proceedings because delay is detrimental generally to the children. I think that we do have to hold the line that in the majority of cases, unless there are circumstances which warrant taking a different course, that the care proceedings should come on, even if they are to be heard before the criminal proceedings. That is in line with the President's ruling and it is a ruling which this court ought respectfully to follow.

Nothing in this judgment should be taken to suggest or imply that any alteration in the practice of the Family Division is called for.

73. We emphasise however, that because procedural and evidential difficulties can arise when there are in existence parallel care proceedings in respect of a child and criminal proceedings against a person connected with that child in respect of a serious offence against the child (or any person connected with the child), it is essential that there should be close liaison between the local Social Services Authority conducting the care proceedings and the Crown Prosecution Service. Wherever possible, linked criminal and care directions hearings should take place as the cases progress. Since November 1993 there has been in operation in the Greater London area a Practice Statement issued by the Presiding Judges and the Family Division Liaison Judge for London with the approval of the Senior Presiding Judge, which sets out a scheme for the purposes of identifying cases where difficulties are likely to arise and provides for linked direction hearings to take place in the Crown Court to which the criminal case has been committed before one of a number of judges nominated for the purposes of the scheme.

74. The main object of the scheme is to timetable both the criminal and the care proceedings, to decide which should be heard first, and to ensure that each is heard without avoidable delay. This includes determining whether the care proceedings should be heard in the High Court or the County Court. It provides for close liaison between the judge and the listing officers in the Crown Court, and the Principal Registry at the Royal Courts of Justice. The further object is to determine so far as possible the procedural and evidential issues in one case which impinge upon the other. These include disclosure of evidence as between the two sets of proceedings; requests for third-party disclosure in the criminal proceedings and any issues of public interest immunity arising there from; and any requests for leave to interview children in care for the purpose of the criminal proceedings. The statement also provides that, where directions in linked care and criminal proceedings are not complied with, the case must immediately be restored for hearing before the directions judge. A similar scheme is at present being developed for the use in the Manchester area.

75. When this case came before Hedley J, it had not been the subject of such co-ordination or directions and we are told that it was not until a very late stage that the Crown Prosecution Service were aware of the state of the care proceedings and the evidence available within them. That is a most undesirable state of affairs, which we hope will be avoided in future as schemes, such as the London scheme to which we have referred and which we endorse and encourage, are instituted nationwide. (emphasis supplied)

43. None of this appears to have happened in the instant case. In my judgment, there can be no excuse for either the profession or the judiciary not knowing about or following what is – or should be - a well established protocol particularly when, as here (and I am conscious that I am repeating myself but the point is of great importance) the Care Centre and the Crown Court sit in the same building and there are many judges who have what have become known in the profession as both care and serious sex crime “tickets” – that is to say that they are authorised by the Lord Chancellor and the President of the Family Division to hear both criminal trials involving rape and public law care proceedings.

44. I thought I would undertake some elementary research to see how easy or difficult is was to gain access the material which I have identified.  I looked first in the index to Rayden & Jackson on Divorce and Family Matters, 18th edition under the heading “criminal proceedings” and found two paragraphs (36.41 and 42) as well as the whole of the scheme for linked criminal and care directions, which is printed at paragraph 55.57. A similar exercise in Hershman & McFarlane on Children Law and Practice produced a host of references, including an immediate reference to R v SL.

45. In my judgment, where there are concurrent care and criminal proceedings, it is essential that each is kept fully informed of the other, and that the judge having the conduct of the care proceedings exercises his or her case management functions not only with a full knowledge of the state of play in the criminal proceedings, but with a view to ensuring that each is heard at an appropriate time.

46. Lawyers, of course, are very familiar with what happened in the instant case, namely that a judge applying the civil burden of proof makes findings of abuse whilst a jury, applying the criminal standard, acquits the defendant. In such circumstances judges, in my view, have a particular duty to ensure that the process is seen to be fair, and this means, as a minimum, having a detailed knowledge of the criminal proceedings, and when they are likely to be heard.

47. The London scheme referred to by this court in R v SL should by now have been instituted nationwide. It plainly has not been instituted in Portsmouth.

48. We have no idea, for example, when the appellant was charged. We have a transcript of his interview with the police on 17 December 2007, and we know that he was acquitted after a criminal trial in December 2008.  We also know that ISW made an allegation of sexual abuse by the appellant on 8 November 2007 and was ABE interviewed for the first time the following day.

49. There was an order made by the judge at the first case management conference on 4 January 2008 at which the outcome of the police investigation was identified as one of the “key issues” upon which the welfare of the children would be decided, and on the same day the judge made an order for disclosure against the police relating to “all evidence held by them in relation to the complaint of rape made by (ISW) against (the appellant)”.  That disclosure was to take place on or before 28 January 2008. It did not.

50. At the second case conference on 4 February 2008, paragraph 13 of the records of the case conference states that:-

The police papers are still awaited – typed order late in being sent and new protocol for disclosure. Police have backlog of disclosure of 1 month, No objection in principle to disclosure but would request more time for compliance.

51. Paragraph 1 of the court order extends the time for the disclosure of the police evidence to 25 February and a further case conference is listed for 17 March 2008 to consider the police evidence. On 31 March 2008 it is recorded that “police disclosure has now been received”. At the same time, there is a letter from a detective sergeant dated 6 December 2007 addressed “To whom it may concern” stating that the appellant had not been approached, and that “until this has happened, I’m reluctant to inform the court of the specific details of (ISW’s) disclosure”. The same letter offers to “speak freely with the residing judge if this would assist the proceedings”. Whilst I have no doubt that this offer was genuinely made, it is self-evidently inappropriate.

52. I regret to say that the impression with which I am left is one of muddle and confusion.  We do know that the father issued an application for the papers in the care proceedings to be disclosed to his criminal solicitors. This, self-evidently, is another reason why everyone – and in particular the judge - in the case proceedings should have known in detail what was going on in the criminal prosecution.

Should the judge have required ISW to attend court to give evidence?
53. The two principal limbs of the appellant’s appeal to this court are (1) that the judge should have required the ISW to attend to give evidence in the care proceedings’ alternatively; (2) that given the imminence of the criminal trial, he should have adjourned the care proceedings to abide its outcome, so that he could properly have informed himself of the evidence given by ISW to the jury, and the information which emerged from the criminal trial generally. For these, and other reasons, the appellant argued that the process had been unfair, and that judge’s conclusion that ISW’s allegations of rape were true should be set aside.  I will take these points in turn.

54. I  have not found the first question altogether easy to answer.  As posed, however, should the judge have required ISW to attend to give evidence in the care proceedings?  the question, I think, has to be answered “no”.  At the same time, I have  to say that I regard the law generally as being in an unsatisfactory state.

55. Like Wilson LJ in LM v Medway Council [2007] EWCA Civ 9, (Re LM) in my eleven years as a judge of the Family Division, I never had an application to compel the attendance of a child for cross-examination on allegations of abuse made by that child, or allegedly committed on that child, and no child was ever called to give such evidence in my court.  At the same time, and during the same period, I attended numerous conferences at which every child and adolescent psychiatrists to whom I spoke, or whom I heard speak, condemned as abusive the process in criminal law whereby a child was required to attend court to be cross-examined, often many months and sometimes years after the event in order to have his or her credibility impugned over abuse allegations.

56. Speaking entirely for myself, and whilst being the first to acknowledge that I am not a criminal lawyer, I have never been persuaded by the argument that it was not practical to implement the Piggott proposals in full. Under these, it will be recalled, the child was interviewed shortly after the event on video. The video was then disclosed to the defence, and  shortly after that the child was cross-examined by counsel for the defendant – again on video and in the absence of the defendant but with counsel able to take instructions from his or her client through an ear piece. The child’s evidence was thus completed at an early stage, and the child was then free both to get on with his or her life, and, if necessary, to receive therapeutic treatment without imperilling the integrity of the criminal trial.

57. The criminal law has not, however, chosen to implement the Piggot proposals in full with  the consequence that children are still subjected to the process of cross-examination in the circumstances set out above. No doubt the argument is that where the defendant’s liberty is at stake, he must have the right to test the evidence by cross-examination, irrespective of the harm that may be caused thereby to the child. And with some children of 15 who are making allegations of rape, I can see the argument. At the same time, the question does not seem to me a matter for the judiciary to resolve. If the law is to be changed, and if children are either to be compelled to give oral evidence in court, or to be excused from doing so, it must be for Parliament to make the change. For as long as the discretion to compel or not to compel children to give evidence in family proceedings remains, it is a discretion which falls to be judicially  exercised on the facts of the particular case. In refusing to allow ISW to be cross-examined, the judge was plainly exercising his discretion, and doing so following authority that was binding on him, notably, of course, Re LM.

58. It is also my experience that judges are better at assessing the credibility of adults than of children, and that judges – certainly in family proceedings – are used to the assessment of hearsay evidence. If a judge is in doubt about the evidence of a child on video, the judge always has the power to require  assistance by way of evidence from a expert in child development: such evidence is always admissible. In the instant case, we have a transcript of what ISW said to the jury, and I have to say that I have not found it particularly helpful one way or the other.

59. These factors all militate strongly against the exercise of the discretion to compel, and I respectfully agree with Butler-Sloss LJ, as she then was, in R v B County Court ex parte P [1991] 1 FLR 470 that it will be a rare family case in which a child will be compelled to attend and give oral evidence to the judge.

60. It is also the case, and plainly reported by the guardian, that ISW was unwilling to give evidence in the care proceedings.  That, to my mind, whilst a factor which the judge was entitled to weigh, is by no means conclusive. She was compellable in the criminal proceedings, and she was compellable in the care proceedings.

61. I also have to say that I find it curious that the judge should have ordered ISW to file a statement, She had, after all, been ABE interviewed.  Having failed to file a statement, and despite being given an extension in which to do so, she still did not comply. On 14 May 2008 Judge Shawcross appears to have coupled her failure with a costs sanction if she did not comply. That, I frankly do not understand.  Some eight days later judge Marston  discharged the order for the filing of a statement.

62. In my judgment, the whole process of ordering ISW to file a statement and then rescinding the order when she did not comply was misconceived. There should not have been an order for a statement. It was unnecessary because she had already given two ABE interviews. At best it would have been self-serving, and at worst it would have given the appellant a further basis upon which to argue that she should attend for cross-examination.

63. It is plain that the appellant made a number of applications for ISW to attend court to give evidence, each of which the judge refused. However, on 22 May 2008, Judge Marston set up a hearing for 4 July in order to decide whether or not ISW should be required to give oral evidence. It was the absence of the transcript of the judgment on this crucial occasion which required us to adjourn on 20 May 2009 without deciding the appeal.

64. I confess that the transcript of the hearing on 4 July 2008, when received, came as a  disappointment. Instead of the carefully reasoned judgment on the point which we had been led to expect, we were presented with the running transcript of a hearing at which the judge decided a number of issues, and in which he does not express himself with the clarity and thoughtfulness he demonstrates elsewhere.

65. The transcript does, however, demonstrate that as at 4 July 2008, the appellant had not seen the ABE interviews with ISW, and that the judge had to ask the appellant about the state of play in the criminal proceedings. Counsel for the local authority was a stand-in, and counsel for the mother has only just been instructed.

66. The judge makes it clear in exchanges with counsel for the mother, prior to hearing the appellant, who is, of course, in person, that she is opposed to ISW giving evidence. He makes references to what are plainly the decision of  this court in Re LM  and to the decision of Coleridge J in B v Torbay City Council [2007] 1 FLR 203, although he does not refer to either case by name.

67. After giving the appellant the opportunity to read the draft of the order which had  been circulating between counsel (without, apparently, having been shown to the appellant) the judge hears the appellant who is plainly critical of the judge for making and then rescinding the order that ISW make a statement.  The appellant then says there is no evidence against him, and the following exchange occurs:-

Judge Well, of course, that is a matter for me to decide at the end of the hearing.  But what you are saying, you want.

App. So I’ve not got the opportunity to cross-examine?

Judge Yes,  but the point is you can point that out to me, very forcibly when I have to consider the evidence that there is in this case. And your case very simply is that “You judge cannot make a finding against me on such a serious matter without ISW giving me direct evidence”.

App And for be (sic) being able to cross examine

Judge And so that is of course, the absence of that witness is something that I will have to weigh very heavily in consideration where I am trying to decide whether their burden of proof has been discharged or not. So that there are two situations, first of all the witness comes and you cross examine them. I take that into consideration, I take the replies into consideration. But the second situation is that the witness has not even come to court, I therefore take into consideration when looking at whether the case is proved or not the fact that that witness has not given direct evidence and the fact that you have not been able to cross-examine her, do you understand?

App There is no evidence.

Judge Well, that is something you can make your submission.

App So, you know, from the point of view of that item, you know, it’s not fair or such.

Judge Alright, yes, I understand.

68. When the judge comes shortly thereafter to give judgment on the point, this is what he says:-

Well the first thing I have got to say in this case is that, (the appellant) who faces very, very serious charges against him both in the crown court and allegations here primarily made by ISW of serious sexual offences, the most serious sexual offices, is in a very difficult position and I understand that.  He is without representation and facing, as I have said, possibly the most serious things that a step father could have ever said against him.  So that there are times when he finds it very difficult to deal with the case in the way that a detached lawyer would and I give him full benefit of understanding how difficult that situation is.  Anybody who cannot empathise with that part of his difficulty, has no business being a judge.  But what I have to say is this, on the main burden of his submissions which is that ISW should be here and should be giving evidence, I am against him.  The local authority are not calling ISW who as I remind everybody was born on 29th November 1992 so is not yet 16 years of age.  They are relying on the DVDs and on other matters so that the “Defendant” here will not have a chance to cross-examine that witness.  He sees that as grossly unfair; the reality is it is the position which appertains in 99 out of 100 of these sorts of cases.  It is only in a very unusual case that a complainant, if I can use that word, from criminal law will give evidence; a child would give evidence.  But of course, it is a door that swings both ways.  He says “I am disadvantaged” and of course those seeking to rely on (the evidence are equally disadvantaged because they are relying on hearsay evidence.  They are relying on untested evidence; they are relying on recorded interviews which as the person against whom the allegations can point out, are untested by way of cross examination.  I have to find that there is cogent evidence to discharge the burden of proof in a case like this, even on the civil burden.  And so the fact that the local authority do not have the key player here to be cross examined is something that I have to take very carefully into consideration when deciding whether they have proved their case or not.  As I said, it is a door which swings both ways in a case like this.  So the fact that the local authority have decided not to rely upon or to call this witness a) is entirely understandable, b) in some ways makes Mr W’s task easer, and c) is certainly not something that I would interfere with given the state of the Court of Appeal decisions on this matter.

69. Given that this is an extempore judgment given on a directions appointment, I do not think that the judge’s exercise of discretion can be sensibly impugned, despite the obvious slip in the judge saying that the local authority was not relying on the evidence of ISW.

70. Moreover, when the judge comes to give his final judgment on the fact finding exercise, he refers back to the earlier occasions on which he had considered whether or not ISW should be called to give evidence.  On this occasion he refers in terms to the two leading cases and makes it clear that

"a lack of facility for the parties to ask questions of the child is something that I must take into account when assessing the weight to be attached to the evidence about what the child has said”.

71. In all the circumstances, therefore, it does seem to me on analysis that the judge did direct himself properly in relation to this issue, and that it cannot be said that he exercised his discretion inappropriately when refusing to direct ISW to attend to give evidence in the care proceedings and to be cross-examined.

Should the judge have adjourned the care proceedings to abide the outcome of the criminal trial?
72. I have found this an easier question to answer. Whilst, once again, I am unhappy about aspects of this case, not least the judge’s apparent ignorance of the state of the criminal proceedings and the lack of liaison between the criminal prosecution and the care proceedings, it seems to me that in October 2008, the judge was entitled to hand down his judgment and get on with the case. The delays had already been unacceptable, and there is plain authority for the course taken by the judge.

73. Equally, difficult as it may be for the appellant to understand, there is no contradiction in terms between a finding on the balance of probabilities in the care proceedings that the appellant twice raped his step-daughter, and his acquittal by the jury. Not only is there the different standard of proof and differences in the rules of evidence, as lawyers know only too well, criminal and care proceedings serve different purposes. In my judgment, in all the circumstances of this case, the judge was entitled to proceed on 24 October, and the exercise of his discretion to do so cannot be criticised.

74. It follows that on the two points left open by Holman J, I would give permission, but dismiss the appeal.

75.  Although it is not part of this appeal, there are aspects of the judge’s final judgment which are of concern and derive from the fact that the appellant was in person. My principal concern centres around the judge’s treatment of the mother’s credibility. The allegations of impropriety between the appellant and ISW originate from the mother in circumstances in which she is facing prosecution for assaults on the appellant and, possibly ISW. The judge found her evidence unbelievable. She had retracted most of the admissions she had made. She had plainly been violent to the father and to ISW.

76. The judge attributes the mother’s violence to her sexual jealousy about her belief that there was an improper relationship between the appellant and ISW. In my judgment, this is a flimsy basis for so serious an accusation, and, as the judge properly reminds himself, the fact that the mother may have believed something was happening does not mean that it was. This is also a mother, it should be remembered who is the subject of an order under section 34(4) of the 1989 Act permitting the local authority to terminate contact between herself and the three children.

77. Furthermore, the appellant and his McKenzie friend have unearthed from the criminal proceedings and the local authority records in particular a mass of material which, no doubt, would have provided a rich mine for the cross-examination of ISW by a lawyer.  I remind myself that the appellant (a fact not recorded by the judge) tells us that he offered to pay for an advocate solely to conduct the cross-examination of ISW. I would not want the appellant or his McKenzie friend to think that I have overlooked either this or any of the 17 points set out at paragraph 17 above. The appellant must, however, appreciate that anything ISW is alleged to have said or done after the allegations of abuse had been made are double-edged: one view, likely to have been that taken by the judge, is that her conduct derives from the fact of the abuse.

78. In the event, however, it seems to me that the judge founds his conclusions on his assessment of what ISW said, and his adverse credibility findings in relation to the appellant.  Given the basis upon which he refused the appellant permission to require ISW to attend for cross-examination it is, I think, a pity, that there is no real examination of the fact that the judge is, in effect, relying on hearsay and no real explanation of why he finds ISW credible in the absence of cross-examination.

79. I am also concerned about the medical evidence, albeit that it plays only a passing role in this appeal. Dr V, the community paediatrician who examined ISW describes a “crescentic hymenal opening” which I take to mean crescent shaped. That, in my experience is not consistent with rape or full penetrative intercourse. No written questions were put to the doctor, and an application for her to be called for cross-examination by the appellant was refused. The judge accepted that her written evidence was equivocal and did not help him one way or the other. It is indeed remarkable, as the judge notes, that Dr V makes no comment that ISW has been genitally mutilated. This may be culturally acceptable in the Gambia, but is a serious criminal offence in the United Kingdom, and will, no doubt feature more fully in the welfare limb of the investigation.

80. I have, of course, read the judge’s judgment several times. It was not extempore: he gave himself time to reflect. On balance, I have come to the view that it was open to the judge to make the findings he did, and that they were properly open to him on the evidence. The judge was entitled to believe ISW – notwithstanding the inconsistencies in her evidence – and to form an adverse view of the appellant’s credibility. Whilst I am unhappy in particular about his treatment of the mother’s evidence, I cannot say that the result reached by the judge was outside the ambit of reasonable disagreement and thus plainly wrong.

81. Furthermore, it seems to me that I should remind myself of the wise words of Cumming-Bruce LJ in  Clarke-Hunt v Newcombe (1982) 4 FLR 482, at 486, which are  cited with approval by Lord Fraser  G v G  [1985] 1 WLR 647: -
Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word “Plainly”. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.

82. For all these reasons, the judge’s decision, in my judgment, on the facts cannot be said to be “plainly wrong”, and accordingly, I repeat that, despite the misgivings I have expressed, I would, having given permission, dismiss this appeal.

Lord Justice Elias
83. I agree.

Lord Justice Thorpe
84. I also agree.