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T (Children) [2011] EWCA Civ 1818

Appeal within care proceedings concerning the question of whether an uncle who was accused of sexual abuse should have been discharged as an intervener.

Appeal from an order which provided  that 'DH'  be discharged as an intervener and that he would not be represented throughout proceedings, save that permission would be granted for him to be represented on the day he was to give live evidence by video link.

Care proceedings concerning five children aged between 3 and 7 years were brought in February 2010. They concerned allegations of physical and emotional neglect, the children exhibiting behavioural difficulties, chaotic home conditions, poor school attendance and a volatile relationship between the parents. After the children were placed in care in February 2010, two of the children made allegations that they had suffered physical abuse by their uncles, one of whom was DH (now aged 18). The main allegation of sexual abuse was in fact against another of the children's uncles ('M') and the allegation against DH, made by one of the children ('B') was only made at a later stage. It subsequently emerged that, DH was said, whilst in foster care himself at the age of 13, to have touched the penis of another child in the same foster home. DH admitted having touched the other child's penis but said that this was due to the other child having done the same to him. The Local Authority sought a finding against the father of the subject children that he had sexually abused DH and that this had resulted in sexualised behaviour towards the other foster child, towards his sister and towards B.

At a pre-hearing review, DH's counsel applied for him to be discharged from the proceedings. This application was allowed by the trial judge, HHJ Jack, sitting as a Deputy High Court Judge. The Local Authority appealed, supported by the father, who challenged DH's evidence.

Ward LJ, giving the lead judgment in the Court of Appeal, held that the legal principles to be applied were those set out by McFarlane J (as he then was)  in A County Council v DP, RS, BS by the children's guardian [2005] where he said:

"The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case."

The trial judge had considered the allegation against DH to have been "peripheral" to the Local Authority's case. The case "remain[ed] a case of severe parental neglect and these allegations of sexual abuse have come dripping in in the course of the investigation" [paragraph 16]. Further, Ward LJ noted that the Local Authority had to concede that it did not "have the firmest of foundations to support a finding of sexual abuse by DH of B" [para.12]. Ward LJ also held that DH should be at the fact-finding hearing as a victim and a witness, rather than as a suspect. It would not be proper to make findings against him. Finally, Ward LJ held that the judge's decision was "a prime example of a case management decision with which we should be very loathe to interfere" [paragraph 28].

Ward LJ therefore held that the appeal should be dismissed. Etherton and Pitchford LLJ agreed.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers  


Case No: B4/2011/2521
Neutral Citation Number: [2011] EWCA Civ 1818
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 13 October 2011


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(DHR Transcript of
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Ms Alison Ball QC (instructed by the Local Authority Legal Services department) appeared on behalf of the Appellant

Ms Rachel Langdale QC appeared on behalf of DH, the Respondent Uncle (third Intervener at first instance)

Ms Judy Rowe QC and Miss Taryn Lee (instructed by John Barkers)appeared on behalf of the Respondent Father.

Ms Jacqui Thomas (instructed by Bates & Mountain) appeared on behalf of the Respondent Children by their Guardian. 

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(As Approved by the Court)

Crown Copyright ©
Lord Justice Ward:  
1. This is an appeal against that part of the order of His Honour Judge Jack, sitting as a judge of the Division, on 26 September this year in the Kingston-upon-Hull Court, whereby he ordered that the third intervener, DH, be discharged as an intervener and will not be legally represented throughout the proceedings save that permission is granted for him to be represented on the day he is due to give oral evidence by video-link.

2. In this case the judge has made reporting restrictions and I repeat them.  There is to be no identification of any of the parties, any of the witnesses or the local authority in this case, anything that might lead to their identification.  This trial is proceeding, as it happens, in the Kingston-upon-Hull Court.  The judge there has already expressed his concern about adverse publicity and I repeat strongly please that the case must not be reported so as to identify any party or any witness.

3. The proceedings are care proceedings brought in February 2010 in respect of five children.  So the five children are B.  He was born on 6 June 2004.  He is seven years old.  D was born on 19 August 2005.  She is six.  C was born on 5 October 2006.  He is five.  And then the twins, A and K, were born on 21 January 2008, so they are three years old.

4. They are the children of CT who is a man of 33 and VO who is soon to be 27.  This couple met in about July or August of 2001 and began to live together in about January 2002.  The details are all very sketchy.  They separated sometime I think last year, but the date is not at the moment known to me. Since their separation, mother has had another son, E, who was born on 11 April this year, whose father is unknown.  He is now also the subject of an interim care order and his case is, as I understand it, being heard alongside and following this one.

5. The father also has a child born of a new relationship he has established, a girl born on 15 July 2011, but no care proceedings have been commenced in respect of that child.  Father also has two children by an earlier relationship of his: CH, who is nearly 14, and H who is 12.  They too have not been the subject of local authority concern.

6. The mother's family are, however, well-known to the social services department.  Her siblings are M, 22; P, 20; DH, born on 31 March 1993, so 18 years old; MI is 15; and KE, born coincidentally and extraordinarily also on 31 March 1997, if the dates are correct, so she is exactly four years younger than D.  These children were placed in care some time in 2002.  M and KE may indeed have been separately placed    again, I am not sure of the detail    and I believe are still in care, but again I will be corrected if I am wrong.  They have had little or no contact with their siblings for a good number of years.

7. These proceedings with which we are concerned commence because of long-standing anxieties about their physical and emotional neglect.  They were exhibiting emotional and behavioral difficulties.  Their home conditions were chaotic.  Their attendance at school was erratic.  There were concerns about a lack of proper healthcare.  The parents themselves were in a volatile and tempestuous relationship.  There was a lack of cooperation with the social services department, who were striving to help the family.

8. After they had been placed in care in February of 2010, B and D made allegations of physical and sexual abuse that they alleged they suffered at the hands of their uncles M, P and DH.  Far and away the most serious allegation was made by D that M had subjected her to oral intercourse.  This was disclosed in July 2010 and confirmed in a video interview conducted by the police.  It has led to M's prosecution and his conviction on 15 September 2011.  He awaits sentence, but is said to be appealing.

9. More pertinent for the purposes of the issues before us, B alleged that M, P and DH, his uncles, had hit him or smacked him.  Ms Alison Ball QC, who appears for the local authority, is unable to give us any clear picture of exactly what DH was said to have done, when he did it, how often he did it and so forth.  We are told that B repeated his complaint of physical violence in the police interview, but again we were given no detail of it and I am not even sure from the look of Ms Langdale, who appears for him, that he did disclose it, so I leave that uncertain.

10. What B also complained about was having been sexually abused by M, no-one else.  Yet he failed to repeat that complaint in the police interview.  It was, therefore, not until 22 March 2011, over a year after he had been taken into care, that B complained to members of the staff at his school that two boys at the school had touched his private parts.  On his way back to his foster home, he told his foster mother that (and I quote from the social work record placed before us):

"Picked [B] up from 419.  Met by [N] (staff).  Told [B] had been touched on his private parts and asked on a number of occasions to take out his willy by two boys.  When I returned home, phoned social worker immediately to inform who visited [B] to speak to him.  Also, he told me on the way home [P], [M] and [DH] had touched him down there inside his trousers and [M] used to punch and kick him down there and it hurt a lot.  He repeated this to [J]..."

11. J may be the social worker.  And a document has been placed before us reporting her conversation with this little boy and, when asked if he could tell her what happened at school, he replied:

"'It was the same as what uncle [M], [P] and [DH] did to me.' I asked what he meant by this and he said 'Uncle [M], [P] and [DH] put their hands down my pants and played with my willy.'  I asked [B] where this happened.  He said it was in his mother's home over the shopping centre.  What I asked if anyone else was in the home when this was happening to him, [B] replied that his mother was in the home but in another room."

He was angry by the end of that interview and -- it may or may not be an important fact -- despite that anger, this was the first disclosure of that sexual abuse.

12.  In those circumstances, Ms Ball has realistically to acknowledge that she does not have the firmest of foundations to support a finding of sexual abuse by DH of B.  Nonetheless, he was joined as a third intervener in these proceedings, the first and second interveners being his elder brothers M and P.  The Local Authority seek a finding against DH in Finding 12 on the schedule placed before us that:

"B has been sexually abused by DH, who has put his hands down B's pants and played with his penis."

13. In August of last year, in circumstances not disclosed to us, KE in care revealed to her foster carer that a long time ago    and the date is totally unclear, but it seems likely to have been after he came to care with DH in January 2002, but at a time when she was five or six years old and DH was therefore nine or ten years old    he abused her by engaging and requiring her to engage in oral intercourse, one of the other, and other activity it seems of that kind.  Again, I am assuming this was one occasion only, but I repeat I do not know the detail.  KE is said to be extremely angered by this disclosure and though this again may be the first time she has revealed it, she feels that she is duty bound to make that disclosure in order to protect her nephews and nieces.  It is unclear whether she ever reported her concerns to her big sister, the mother of the children for whom she now expresses concern.

14. Quite how the investigations proceeded I do not know, but at some stage the local authority looking into    and this is my assumption    what happened to KE and DH in care searched the local authority records and discovered that in about 2006 when DH was therefore 13, he was alleged to have touched the penis of a boy, N, who was in the same foster home as he was.  This was investigated at the time.  He is said to have admitted that he had committed that act, but exculpated himself by explaining that he did it because CT, the father of the children with whom we are concerned, had done the same thing to him.  And that has led to the local authority seeking a finding of fact against the father by way of Additional Finding No 1, namely that:

"[Mr T] sexually abused [DH] on more than one occasion around 2000 at the flat of [Mr T] and [Ms O], near the sports hall... [Mr T] put his hands down [DH's] trousers touching his penis and pulled his pants rubbing his penis on [DH's] bottom.  [Mr T] told [DH] not to tell anyone and he hit [DH] to keep him quiet.  Some seven years later [DH] is afraid of going to sleep in case someone comes into his bedroom to get him and he is afraid of [Mr T].  As a result of being a victim of sexual abuse [DH] has behaved in a sexualised manner towards another male foster child, towards a female friend of his carer's child, and towards his sister and towards [B]."

15. So although no specific finding of fact as such is apparently sought against DH of abuse of N, or of his sister, it being accepted that the case against the carer's child cannot be substantiated, nonetheless the local authority seek to prove those facts.  And they seek to prove them, I assume, in the first instance by relying on the hearsay reports of DH made at the time in 2006 and confirmed in a video recording made to the police.  I do not know whether, though I doubt, that interview had anything to do with KE because nothing was known about her until last year.

16. So that is the way the local authority intend to present their case.  But, of course, it is not the whole case.  The case began and remains a case of severe parental neglect and these allegations of sexual abuse have come dripping in in the course of the investigation.  The result now is that the case is part-heard in the High Court before His Honour Judge Jack, set for 20 days, with the most formidable barrage of legal luminaries involved in the case.  There are, I think, five silks and six if Ms Rachel Langdale QC remains acting for DH and the guardian starkly assuming the burden of responsibility by counsel who seems competent enough to me, Ms Jacqui Thomas.  But it is a mammoth exercise and it is a hugely costly exercise and one's initial reaction is to wonder at it.

17. Perhaps, therefore, it is no surprise that at the brief trial conference that was held on 26 September, Ms Langdale urged the judge to discharge her client, DH, from the proceedings.  She referred him to the decision of McFarlane J (as he then was) in the case of A County Council v DP, RS, BS by the children's guardian [2005] EWHC 1593; [2005] 2 FLR 1031, where his Lordship, a master of these proceedings, suggested that the relevant principles derived from the authorities can be stated as follows:

"The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case."

For my part, I cannot improve upon that.

18. His Honour Judge Jack has the conduct of this trial and I expect, in accordance with the proper practice, will go on to deal with the second stage of these proceedings, its disposal, when the welfare of the child or the children will assume paramount importance.  He, the judge in charge, accepted the documents that had been advanced on DH's behalf.  He rejected the arguments of counsel for father that, if he is making allegations against CT, then on the basis of fairness all the allegations against DH should be heard.

19. These are peripheral issues.  DH should be here as a victim and a witness rather than a suspect.  It is not proper to make specific findings against him.  I do not propose to make specific findings against him.  It is right that he should be here represented as a witness.  It is unduly stressful for him.  It is disproportionate and not justified to have him here throughout and represented.  There are substantial cost implications and I must have some regard to them.  There will need to be a video link in the building for him, rather than remotely due to the cost of the remote  link when he is giving his evidence.

20. The Local Authority have appealed against that order, with permission granted by McFarlane LJ (as he has become).

21. Ms Ball's principal complaint about the judgment is, as she put it to McFarlane LJ, that it is impossible to use his behaviour in respect of the other children if no findings are made against him.  It is true this is a highly unusual state of affairs.  Starting with the main allegation against DH of his abusing B, one has to start with a recommendation, fairly made by the Local Authority, that it is not the strongest case of sexual abuse.  The accusations, made 13 months after coming into care, are not tested by any subsequent video recording.  Absent any proper record of how the questions were asked that does give rise to difficulties facing the local authority.  That is not to say that there is no case at all, but a judge is entitled, in my view, to have regard to the prospects of its success.  That is the main case against DH.

22. Matters relating to KE and N come in by the side wind.  They arise, as it were, by way of exculpation of his, DH's, behaviour towards N and so the father wishes to cross-examine this 18 year old boy about his bad character and put his credibility in issue.  If he remains a party, the local authority seek to prove those matters against him by calling KE and relying on the social services records.  And they would invite findings about that.  If he is dismissed from the proceedings, as the judge has ordered, then the most that counsel for the father can do is challenge his credibility and put to him that he is, in effect, making this up.  But credibility challenges have the serious limitation that one is bound by the answers the witness gives and if, therefore, DH denies matters, it is not possible for the father or for the Local Authority to call KE or to put in evidence the social services records to prove the fact that DH has committed this earlier abuse.  That, submits Ms Judith Rowe QC on his behalf, is unfair to the father.  It is unfair because it is a serious matter alleged against him.  He has been required to leave the home and his new baby pending these investigations.  It is a charge that will be held against him and will seriously affect his future.  It may affect what has otherwise been good contact to the children of his first relationship, there being no suggestion of his behaving inappropriately with them in which he is going to be supported, as I understand it, by his former partner and his current partner.

23. There are serious other challenges to DH's credibility.  He concocted some entries on Facebook and he has a number of questions that can properly be asked of him.  It is not possible for us to judge further the strength of the case against father, but again it may not be the strongest.  Those are matters that the judge will have to decide.

24. The problem, therefore, is essentially one of case management.  Was the judge entitled to regard this as peripheral?  In my judgment, yes.  The main complaint is of emotional abuse.  The main complaint of sexual abuse lies at the door of M, not of P or DH.  The sexual allegations against them towards children of the family are not strong.  The sexual allegations relating to KE when he was nine or ten and she was five or six are buried in the dim depths of history. It is, it seems to me, quite unfair to charge a boy now 18, damaged as he may be by life's experiences at his home and in care, with inappropriate sexual shenanigans between those young children.  And it may not be the best pointer towards his disposition or sexual tendencies as he grows up.  I think he has a girlfriend.  I know not.  The allegations against N are again the allegations made against a boy of 13.  And the extent, therefore, to which the local authority can rely upon findings of that kind to portray that this boy in his present condition is a danger to children is a matter upon which I for my part, though it will be a matter for the judge eventually, am rather sceptical.

25. So I agree this is a peripheral issue in the case and in the context of the case the judge is also entitled to think it is disproportionate to extend this already extended trial by raising three separate allegations or two other allegations, namely N and KE, as a complication to an already complicated case.

26. I said it was a matter of case management and it is.  As things stand at the moment, it would be for the judge to judge the credibility of this boy.  He may be able to say "I am not satisfied by him, therefore I cannot be satisfied that the complaint against the father is made out."  That is the end of it.  He can, of course, come to a conclusion that, having heard DH, he is quite satisfied that DH has in fact abused KE and N and, although he said he is not intending to make findings, he may be driven not to make findings in the care proceedings as such, but to explain his judgment by expressing his conviction in that way.

27. In any event, he, the judge, will deal with this on the disposal.  He will have seen four weeks of this case.  He will know full well how much weight to place upon the various factors and how important it is in the life of these five children whether or not this boy has done what is alleged against him.  Ms Ball seeks to uphold the findings because of the care proceedings in relation to the sixth child whom mother wishes to keep.  She apparently does not require the return of the other five to her.  I do not know what father's attitude about that is, but he is already the father of one baby and two teenagers and I don't know if he is volunteering himself as a home for these five.  The likelihood is, therefore, that they are going to be placed in long term care and possibly for adoption.

28. The judge is best placed to deal with those matters.  It seems to me it is a prime example of a case management decision with which we should be very loathe to interfere.  I am not satisfied that the judge erred.  I would, therefore, dismiss the appeal.

Lord Justice Etherton:  
29. I agree.

Lord Justice Pitchford:  
30. I also agree.

Order: Appeal dismissed