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Cumbria County Council v T (Discharge of Intervenors) [2020] EWFC 58

Brief Facts
The court was concerned with Cumbria County Council's application for a care order, dated 8 July 2019, in relation to T (age 6). Prior to this there were private law proceedings, now stayed, issued by father following a cessation of contact with T after mother's assertions that T had made allegations against his father, indicative of sexual abuse having taken place. The allegations were said to encompass T's elder half-sibling, NN, and T is also said to have made allegations concerning graphic violence and allegedly gave accounts of being exposed to bizarre actions of a sexual nature when in his father's care.

The local authority seeks findings that the allegations said by the mother to have been made by T in relation to the father engaging in, and facilitating acts of sexual abuse are untrue and that they are the result of either (i) the mother having developed an unreasonable and false belief that T was sexually abused by the father, or (ii) the mother deliberately fabricating false allegations of sexual abuse and inducing T to make false allegations of sexual abuse against the father. No findings of sexual abuse are sought by the local authority in the alternative, either against the father or the intervenors.

In opposition to the case against her, the mother seeks findings, set out in a schedule, that T has been sexually abused by the father and by the intervenors in the manner she states T has alleged to her and in the limited statements made by T to the social worker and to the police in his second ABE interview.

Father denies the allegations. At the time of this case management hearing there were seven intervenors, one having already been discharged, three of whom had sought legal advice, and two of whom were represented and denied the allegations against them.

Parties' Positions
The local authority submitted that (i) each of the intervenors should now be discharged, it being neither necessary nor proportionate for the court to determine the allegations of sexual abuse that the mother makes against them; (ii) an objective analysis of the available evidence leads inevitably to the result that the court could not make findings of sexual abuse against the intervenors to the requisite standard of proof; and (iii) the evidential deficiencies are numerous and include the repeated failure to adhere to the ABE guidelines.

Father and the Guardian's position mirrored that of the local authority.

The mother sought for the intervenors not to be discharged. She (i) conceded that save in respect of NN, she is the only person to whom J has made allegations in relation to the persons who are now intervenors in this case;  (ii) conceded there is no other evidence corroborating the allegations said to have been made against any of those intervenors; and (iii) did not seek to gain say the criticisms made of the ABE interviews by the local authority. Should the persons be discharged as intervenors by the court the mother made clear she seeks to put certain matters to them in support of her case as witnesses.

In respect of the mother's second point, the local authority submitted that (i) it will be actively advancing a case pursuant to its schedule of findings and therefore its case is, in effect, identical to that of the intervenors; (ii) it will challenge any assertions made by the mother regarding the intervenor's denials by way of testing the evidence through cross examination and by way of submissions; and, (iii) given the paucity of evidence against the intervenors, the rights of each of the intervenors can be sufficiently protected without them maintaining intervener status.

The Issues
The issues:

(1) Whether or not it is necessary and proportionate for the court to determine the findings of fact sought by the mother against the current intervenors and, accordingly, whether or not it is appropriate for each of the intervenors to be discharged as intervenors.

(2) In circumstances where the mother requires the intervenors to attend to challenge their evidence, whether this justifies continuing intervenor status.

Legal Framework
In his judgment MacDonald J sets out the relevant law, including:

• Re W (Care Proceedings: Functions of Court and Local Authority) [2014] 2 FLR 431

• The approach set out by McFarlane J (as he then was) in the seminal decision of A County Council v DP, RS, BS (By the Children's Guardian) [2005] 2 FLR 1031.

• Re F-H (Dispensing With Fact-Finding Hearing) [2008] EWCA Civ 1249, [2009] 1 FLR 349 in which the Court of Appeal endorsed this approach as being the correct analytical framework where the court is deciding whether to determine a disputed finding or findings of fact.

In relation to the additional matter raised by mother (or, alternatively, part of the examination of the justice of the case within the framework provided by A County Council v DP), MacDonald J sets out the following relevant legal principles:

• It has been long established that it may be appropriate to give a person leave to intervene in proceedings for a specific purpose (see Re S (Care: Residence: Intervener) [1997] 1 FLR 497 CA).

• In the context of a case that involved allegations of sexual abuse, the Court of Appeal in Re H (Care Proceedings: Sexual Abuse) [2000] 2 FLR 499 held that where specific allegations of sexual abuse are made in care proceedings against a non-party and brought before the court by the local authority for trial as a preliminary issue, it is vital that that person's evidence is before the court at that stage, even if he or she is unlikely to have party status at the substantive hearing.

• With respect to non-parties against whom specific allegations of sexual abuse are made, in Re H (Care Proceedings: Intervener) [2000] 1 FLR 775, the Court of Appeal made clear that there is no right for non-parties against whom allegations are being made by a local authority in public law proceedings to intervene. Each case has to be looked at on its own merits and the court has to identify the particular reason why it is necessary for a person to intervene.

• The provisions of the overriding objective in FPR 2010 r 1.1.

• Paragraph 46 of the President's Guidance entitled 'The Family Court and COVID 19 – The Road Ahead', which makes clear as follows: "[46] Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court."

Two further considerations arose, as set out in the judgment:

(1) Where the allegations concern conduct that is criminal, the question of self-incrimination.

(2) The answers of an opponent's witness on matters of credit or other collateral matters.

Decision
Having considered carefully the submissions made by the parties on the case management decision before the court, MacDonald J was satisfied that it is not necessary or proportionate for the court to determine the findings of fact sought by the mother against the intervenors in this case. The court was further satisfied that it is appropriate to discharge each of the current intervenors for the following reasons:

• There is no suggestion in this case that it is not possible to have a fair trial on each of the disputed findings sought by the mother against the intervenors.

• It is plainly in T's best interests for decisions regarding his future welfare to rest on a clear and reliable factual foundation.

• It is not necessary to determine the mother's allegations in addition to the central issue of fact before the court in order to come to a properly considered view on the question of threshold and, if met, the question of T's future welfare, particularly given that none of the intervenors seek the care of, or contact with T.

• Paragraph 46 of 'The Family Court and COVID 19 – The Road Ahead' makes clear that parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions and that an oral hearing will encompass only that which is necessary to determine the application before the court.

• The court cannot avoid the forensic difficulties when looking, as it must, at the likely evidential result of proceeding in the manner mother proposed. MacDonald J concluded that it 'is very difficult to see how the evidential result of determining the findings of sexual abuse made by the mother against the intervenors could be anything other than that those findings cannot be proved to the requisite standard of proof.'

• MacDonald J also considered (i) the inevitable lengthening of the time estimate for the fact finding hearing in the context of the current public health emergency; (ii) the 'inordinate delay' that these proceedings have already suffered as a result; and (iii) the 'not inconsiderable' cost to the public purse of seven intervenors participating in a finding of fact.

As to whether, in light of mother's case and wish to cross-examine the intervenors, the justice of the case requires their intervener status to be maintained notwithstanding the matters above, the Court concluded that it did not. In summary the reasons for this decision are as follows:

• No findings are sought against the intervenors by the local authority which brings the proceedings.

• The court has determined that it is neither necessary nor proportionate to determine the findings sought by the mother against the current intervenors.

• The rights of each of the intervenors can be sufficiently protected in this case without them having to be maintained as intervenors putting forward individual cases, even in circumstances where the mother seeks to put allegations to them in the witness box.

• Having regard to the factors set out in FPR 2010 r 1.1, the current intervenors can be dealt with fairly as witnesses without the need to maintain their intervenor status.

Conclusion
MacDonald J concludes his judgment by reiterating that when determining whether or not it is necessary and proportionate to determine a given finding or findings, the court applies the analytical framework set out by McFarlane J (as he then was) in A Local Authority v DP, and when considering whether to accord a person intervener status on a specific issue within proceedings, each case has to be looked at on its own merits and the court has to identify the particular reason why it is necessary for a person to intervene or to remain an intervenor.

All intervenors were discharged. Directions were given for specified findings to be the subject of determination by the court at the fact finding hearing.

Summary by Emily Ward, Barrister & Deputy Head of Family atBroadway House Chambers

Read the full judgment of Cumbria County Council v T (Discharge of Intervenors) [2020] EWFC 58 on BAILII