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J-L (Children) [2012] EWCA Civ 1832

Appeal against findings of fact made within care proceedings

At the conclusion of a fact-finding hearing within care proceedings the judge had been unable to make findings in respect of allegations against the mother that she had involved herself in sexual conduct with the children.  Instead, the judge went away from the schedule of allegations sought by the local authority and made findings that the children were exposed to, and witnessed, sexual conduct and the mother had failed to protect them.

The mother was given permission to appeal and the appeal before Longmore LJ and McFarlane LJ was allowed on the basis that the judge had gone further than the strength of the evidence would permit.

The appeal was not opposed by the local authority and the Court of Appeal was concerned as to why the appeal went ahead when there was no effective opposition.  The court was informed that the principal hurdle was that the father's legal team had failed to engage in the steps to arrive at a formula of wording that was acceptable to the parties (and avoid the appeal) or indicate their total opposition to the appeal.

The Court of Appeal stated that it was unfortunate that nobody had communicated with the court at an earlier stage to identify the fact that the appeal was not contested and that the court could have directed compliance from the other parties of drawing up an agreed order.

Appeal allowed.

Summary by Richard Tambling, barrister, 1 Garden Court


Case No: B4/2012/2217
Neutral Citation Number: [2012] EWCA Civ 1832


Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 29th November 2012

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Mr B Singh (instructed by Messrs Russell & Russell) appeared on behalf of the Appellant mother.
Mrs J Clark (instructed by Blackburn & Darwen Borough Council) appeared on behalf of the First Respondent, the local authority.
The Second, Third, Fourth and Fifth Respondents did not appear and were not represented.

As Approved by the Court
Crown copyright©

Lord Justice McFarlane:
1. This is an appeal brought with the leave of Munby LJ against a finding of fact made by HHJ Rawkins on 24 July 2012 in the course of ongoing care proceedings relating to three children.  The children are girls, three of them: C, born on 22 January 2002, now aged 10; H, 21 October 2003, now aged nine; and D, born on 12 December 2004, and therefore very soon to be aged eight.  The focus of the appeal is upon a period of time in the early part of 2008 when the parents of the girls had separated and the girls were living in the home of their mother.  At that time the three girls would have been aged six, five and three.  It is a striking feature of this case that both the mother and the father indulged in excessive and uncontrolled abuse of alcohol and drugs for a significant period, and the evidence before the judge was that in the period between March and May 2008 the mother had the sole care of the children but she continued to abuse drugs and alcohol in the way I have described.  It was also a feature of life in her home at that time that she encouraged and entertained the attendance on an almost daily basis of a squad of teenagers or slightly older individuals, who would come to her home to "party".  The children were living with her in the household at that time.

2. Matters moved on.  As a result of one such party, the children were removed from the mother's home in May 2008 and eventually went to live with the father, who had moved to Scotland.  Some contact did take place with the mother but it was on a limited basis.  The matters that came before the judge as part of the fact-finding process arose some years later when on 10 March 2011 one of the children spoke to a teacher at school indicating that the mother may have had some form of direct sexual involvement with that child.  The other children said matters which raised similar concerns.  The local authority and the police investigated.  The two older children were interviewed on 23 March 2011 under the ABE process and the middle child, H, was further interviewed three months later in June.  The case before the judge was to invite the court to make findings of fact against the mother that she had involved herself in sexual conduct with the children, and there was a schedule of findings that the judge was invited to make. 

3. The judge conducted a seven-day hearing and the judgment that resulted, which is the focus of the appeal on 24 July, goes into a great deal of detail describing his analysis of that material.  For the purposes of this appeal it needs me to say very little, because the judge's conclusion on the schedule of allegations directly against the mother was that they were not proved.  The only materials upon which he could have relied were the original disclosures by the children to the staff at the school and the subsequent ABE interviews.  For clear reasons which he spelled out in his judgment, he did not consider that those sources of evidence, either taken individually or together, were anywhere near sufficient to make direct findings against the mother.  He was, however, understandably concerned that the children had come to say the things that they had said, and in the course of doing so describe adult sexual activity.  He was also concerned at the admitted circumstances in the family home, the parties and the mother's lifestyle in that period in 2008 that I have described. 

4. So it was that the judge, towards the conclusion of his judgment, went away from the schedule of findings of fact put before him by the local authority and came to state conclusions on the balance of probabilities in the following terms:

"That upon proper scrutiny of the available evidence the court should make the following alternative findings:-

(i)  that whilst in the mother's care during the period 24th March 2008 and 10th May 2008 the children and each of them were exposed to and witnessed inappropriate conduct including explicit sexual conduct involving the commission of sexual acts between young persons and/or adults

(ii)  that the mother failed to protect the children from witnessing such conduct whereby they have suffered emotional harm"

5. It is against the core part of that finding, insofar as it relates to sexual matters, that the mother through her counsel, Mr Singh, now appeals.  He seeks a decision of this court striking out the words "including explicit sexual conduct involving the commission of sexual acts between young persons and/or adults".  The local authority, represented before us as they were before the judge by Mrs Clark, accepts that the appeal should be allowed.  It is accepted that in coming to that conclusion, based upon material that he had found to be unsatisfactory in the main part of the hearing, the judge went further than the strength of that evidence would permit.  In particular, all parties and the judge had in mind that whatever the children said, they did not describe activity that the judge found, and whatever they said, they said nothing about any activity in the house for three years after they had been removed from it in 2008.  The position of the other parties before this court is that they either take a neutral stance or have simply not communicated with the court at all.  That latter comment is particularly aimed at the children's father, Mr L.  He has not filed any documents with the court.  We are told by counsel that he does not oppose the appeal but he is neither here nor represented today. 

6. The outcome of that is that there is effectively no opposition to the appeal and I, having read the judgment and the documents that have been filed, readily accede to that position.  It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother's care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property. 

7. Why is it, I would ask rhetorically, that the court has had to sit this morning and counsel and those who attend them for the mother and the local authority have come from the north of England to London for a hearing which has taken a very short time and which is effectively not contested?  We were told that attempts were made to find an alternative form of words that all parties would accept in place of the words that this order from this court will now strike out.  That has not been possible and we were told by Mrs Clark for the local authority that the principal hurdle preventing that being accomplished was that the father's legal team had failed to engage in the process in a way that either indicated total opposition or came up with a formula that they would have agreed to.  I understand what is said.  It is regrettable that nobody communicated with this court at an earlier stage to identify the fact that the appeal was not contested.  This court could have directed compliance if necessary from the other parties in a process of drawing up an agreed order.

8. That said, it seems to me that if any words are now to be put back into the gap that has opened up through the excision of the quoted words we are going to delete today, that is a matter for the parties and the lower court and not for the Court of Appeal, in the absence of any agreement.  The case will now return and continue before HHJ Rawkins in the Blackburn County Court.  Irrespective of the excision from the findings of the words that I have referred to, Mr Singh here expressly accepts that the section 31 threshold criteria are nevertheless met in this case.  It would be hard for the mother to suggest anything else.  He also readily accepts that the right judge to continue hearing this case is HHJ Rawkins. 

9. The only order, therefore, I would make is to allow the appeal and strike out the words from "including explicit sexual conduct" to "and/or adults" in the finding that the judge made.

Lord Justice Longmore:
10. I agree.

Order:  Appeal allowed.