ON APPEAL FROM HIGH COURT, FAMILY DIVISION
Mrs Justice Pauffley
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
LORD JUSTICE BRIGGS
|Re J (A child)|
Mr Paul Storey QC and Ms Camille Habboo (instructed by Blackfords LLP) for the Second Respondent
Miss Sarah Morgan QC (instructed by Russell-Cooke Solicitors) for the Second Intervenor
The first respondent appeared in person
The First Intervener was represented by Mr Mark Twomey but excused attendance
Hearing date: 28 March 2014
Crown Copyright ©
Lord Justice McFarlane :
• When she was 8 years old, F had had an affair and she had told her aunt (M) who did not believe her.
• As a result, her uncle was punishing her.
• He had taken her clothes off, licked, touched and had sex with her.
• He had also videoed her.
• X said the punishment was until she felt pain.
• It was, she said, a "deal" between her and her uncle because she had done wrong.
• Her uncle and aunt had divorced and he had gone back to Australia. When he came back to England, he collected her from school in a hire car. She hated the smell; he would take her to a quiet location and would have sex with her.
• During the summer between year 7 and year 8, she said she had missed two periods and taken tablets in an attempted overdose because she was concerned she might be pregnant. X said she had done a test which was positive and if it had been right, she had been the "murderer" of a foetus. She had not told "him" as she had been scared.
• X said her uncle did not come back so much. "It's quicker now." "No messing about, he just gets on with it."
• She said he had not been able to find her during the summer of 2009 because she was in (an identified foreign country).
• She said, "Don't really do that much talking, he does the talking."
• When X was reminded that the information she had supplied would have to be passed on, she said, "I deserve to be punished ... Must suffer the consequences."
• She had then said, "None of it was true. I lied." She was not willing to sign anything. A little later she said, "I lied because I was bored."
"She also said she had hurt someone deliberately; she had told her aunt that she had walked in on her uncle who was with another woman when she was 8 years old. Her aunt had been upset. X also said that she was still seeing her uncle, though her parents did not know. He had her mobile phone number and tells her "where and when"."
X's evidence – associated problems
'(i) X has a long history of repeated presentations with medically unexplained symptoms beginning in early childhood.
(ii) There appears to be a close temporal relationship between X's reported experiences of abuse and her presentation with episodes of medically unexplained symptoms.
(iii) Most recently, X has experienced episodes of physical illness which have at times been life-threatening. It is the opinion of a number of medical professionals caring for her that psychological factors are, at the very least, exacerbating her symptoms. X has received medical treatment for her condition which has had a number of damaging side-effects and there has been a significant deterioration in her health.
(iv) There does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from the "legal issues".
(v) X feels that her initial disclosure put in motion a chain of events which has left her feeling distrustful and lacking confidence in processes that should have been protective of her. It is her perception that, despite reassurances about confidentiality, it has at times been breached. She was also led to believe that she would not be required to speak of the allegations again and the present situation has undermined her confidence in the system.
(vi) In answer to the specific questions:
(a) The psychological/psychiatric implications for or effects upon X regarding the disclosure of social services records to the parties:
"It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy."
(b) The psychological/psychiatric implications for or effects upon X of being summoned to court to give oral evidence about the allegations documented in the said records:
"My opinion on this is as above. Being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health."
(c) X's capacity with appropriate support to participate in the court proceedings including making a statement and attending court to give evidence:
"I believe that X has the capacity to participate in court proceedings. However, it should be noted that various professionals at different times have commented on the difficulty of interviewing her in relation to the alleged abuse. My own experience of exploring these issues with her is that many of my questions were met with silence; she was clearly very uncomfortable and distressed and seemed unable to respond. When I asked her about appearing in court she responded 'I can't'."
(d) X's understanding of the measures which might be put in place to protect her as a vulnerable witness:
"When asked about her understanding of these, X told me that she understood that she could provide evidence via video link. However, she said that this would be a traumatic prospect for her as she understood that the alleged abuser would be able to see her face and she could not cope with this. As above, I also think that her perception that processes so far have, to some extent, let her down means that she does not feel confident in any of the reassurances provided."'
"Her presentation is unusually complex and cannot be easily encapsulated into an unequivocal formulation. It is particularly difficult to ascertain the extent to which physical or psychological factors may be responsible; the notes reveal the extent to which that has been difficult for clinicians actually caring for her, despite considerable effort to elucidate precisely this. What is clear is that the frequency and gravity of her presentation with breathing difficulties, in particular, appears disproportionate to any identifiable respiratory pathology. Equally, investigation of her limb weakness revealed both discrepancies between neurological testing and her clinical picture as well as essentially normal relevant investigations. In so far as the physical condition is accounted for by psychological mechanisms it is equally hard to be certain whether or not symptoms have been consciously generated or whether they are truly an unconscious response to intra-psychic conflicts that are impossible to resolve in conscious thought."
Difficulties with F's representation
The position of the parties at first instance
The judge's conclusions
"69. At the end of this lengthy hearing, I find myself in no doubt as to the outcome. I have no hesitation in deciding that X's claims against F are fundamentally true; that however he began his despicable behaviour he did indeed inflict the most serious kind of sexual, emotional and psychological abuse upon her over a period of about 10 years; and that, even now, he continues to exert some form of sinister controlling influence so that X cannot freely speak about what has happened. Indeed, one of the most perturbing elements of all centres upon the extent to which X's free will would appear to have been overborne insofar as relating the narrative of what F has done. In similar vein, I am particularly troubled by X's view which is that she bears at least some responsibility for what was done to her.
70. I turn now to consider the various critical considerations which have impelled me to find as I have and to reject the F's vehement denials, entirely accepting as I do that no one feature here, on its own, is diagnostic of sexual abuse. The exercise for me is, as it would always be, a matter of weighing a whole range of factors. Some may assist more than others in arriving at an overall conclusion and it is to those that I now turn."
a) The initial revelations - the hearsay evidence
b) X's affect - as reported by others in relation to complaints made in 2009 and 2010
c) X's presentation at this hearing
d) The extraordinary nature, in part, of what is alleged
e) X's evidence – voluntarily given – constancy – devoid of ambiguity
f) X's character
g) Motivation – the potential for a false allegation – why name F?
h) The emotional costs to X of participating
i) Detail surrounding the allegations – parts corroborated by F?
j) Inconsistencies – the "trigger event"
m) X's troubled childhood
n) F's denials – presentation as a witness.
"I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme."
"X's emotional arousal when confronting questions about child sexual abuse is a substantial factor which tends to validate her allegations. There was no hint or indication that her reactions were anything other than genuine. Indeed, it appeared to me she had no real ability to control them still less manufacture a performance. What I witnessed, I am quite sure, was utterly authentic."
"Though wrestling with so many of the questions asked of her, she never wavered. As she confirmed early on, she did tell her teachers what she was recorded as having said on 1st October 2009 and 'yes, it was true.'"
"In evidence, X said she could not be '100% sure' if she had told her teachers her uncle had had an affair. She went on, 'I did not say that directly to them. No, I did not tell them I'd told my aunt about the affair. It was about what would happen if I did tell my aunt, not that I did. I told them what I was told would happen."
"One of Mr Storey's pointers against the making of findings is that the allegations of abuse are vague. He suggests there is a lack of sensory or contextual detail, an absence of specificity around timing, location and as to what actually happened in terms of abuse. In relation to those assertions, I remind myself of the enormous problems encountered by X in saying as much as she did and her evidence as to the prohibitions to which she is subject in giving small pieces of information lest they might be put together. Those matters described in detail within the psychiatric reports, added to by X in evidence, seem to me to provide a complete answer as to why, generally, there is a lack of detail."
"I asked her if she was having trouble in answering because of 'the promise' as mentioned by her to Dr B. X replied, 'Yes, that was the reason… you weren't allowed to talk about something …. Lots of little things, put them together, then that's just as bad as if I said it in the first place. Can't go any further.'"
"116. I turn then to consider what has been described by Mr Storey as the 'trigger event'. It is the rationale provided by X at the outset as to why her uncle began to abuse her. Her accounts included information which directly impinged upon M, in that X maintained she'd told her about the affair. Mr Storey points out that this aspect of what X had alleged to her teachers, the police and social services cannot be true. M's position statements and evidence do not support X's accounts either in relation to being told of any infidelity or that F would regularly 'babysit' X and her sister.
117. M confirmed in evidence that X had never told her about any affair. Asked by F to confirm that he had never supervised the three children, M said she could recall an occasion shortly after A's birth when she and her sister had gone shopping to Tesco's leaving the children with him. At that point, F became emotionally aroused, saying to M, "You're a liar and you're stitching me up… You're stitching me up!"
118. In evidence, X said she could not be "100% sure" if she had told her teachers her uncle had had an affair. She went on, "I did not say that directly to them. No, I did not tell them I'd told my aunt about the affair. It was about what would happen if I did tell my aunt, not that I did. I told them what I was told would happen." Asked whether she had lied about her sister and her being 'babysat' by F, X said she was not sure she would have used that term but "No, (she) wasn't lying about it. 'Supervised' would be a better word than 'babysat.'"
119. So what is to be made of this aspect of the case? Because some parts of what X is recorded as having said cannot be verified as true, would it be safe to reject the entirety of her account? I do not believe it would and for these reasons – it's by no means uncommon for aspects of what a complainant has alleged to be demonstrated as inaccurate or just plain wrong. It is rare for every last detail to be verifiable in all respects. More important than the minutiae of what has been described is the overall impression created by the extant material taken together with an assessment of the oral evidence. The memory of the complainant may be faulty when relating events which occurred many years previously. X at 17 ˝ was giving a description of the situation as it had unfolded almost 10 years previously. It may have been troublesome for her to differentiate between what F had told her about the consequences of telling her aunt and what she herself did."
Appeal: the submissions of parties
a) An unjustified degree of weight was given to X's evidence;
b) There was no process of balancing the factors either for or against the making of a finding;
c) There was no proper analysis of the core allegations.
i) an ABE interview;
ii) a narrative statement of evidence;
iii) an effective process of cross-examination.
a) In a case where there is no direct physical evidence or other clear "diagnostic" proof of sexual abuse, the process of judicial evaluation requires great subtlety;
b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;
c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;
d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;
e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.
(a) The approach on appeal
'First the appellant court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc  RPC 1:
"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
The second point follows from the first. The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed.'
(b) The particular approach to this appeal
(c) The absence of an ABE interview and/or narrative account
' …. Painful past experience has taught that the greatest care needs to be taken if the risk of obtaining unreliable evidence is to be minimised. Children are often poor historians. They are likely to view interviewers as authority figures. Many are suggestible. Many more wish to please. They do not express themselves clearly or in adult terms, so that what they say can easily be misinterpreted if the listeners are not scrupulous to avoid jumping to conclusions. They may not have understood what was said or done to them or in their presence.
 For these and many other reasons it is of the first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say, and equally it is vital that a careful note is taken of what they say and also of any questions which are asked. All this and many other similar propositions, most of them of simple common sense, are set out in nationally agreed guidelines entitled Achieving Best Evidence in Criminal Proceedings …'
Later, having described the evidence in the particular case, which fell well short of being ABE compliant, Hughes LJ continued:
' There is no question of this evidence being inadmissible for failure to comply with the ABE guidelines, and that has not been suggested in argument for either parent. In a family case evidence of this kind falls to be assessed, however unsatisfactory its origin. To hold otherwise would be to invest the guidelines with the status of the law of evidence and it would invite the question: which failures have the consequence of inadmissibility? Clearly some failures to follow the guidelines will reduce, but by no means eliminate, the value of the evidence. Others may reduce the value almost to vanishing point.
 … The purpose of the ABE guidelines is not disciplinary; it is to present the court and for that matter the parents with the most reliable evidence which can be obtained. In every case the judge cannot avoid the task of weighing up the evidence, warts and all, and deciding whether or not it has any value or none. Everything will depend on the facts of the case. …'
(d) X's emotional presentation
(f) Placing the emotional presentation within the overall evidential jigsaw
(g) The 'trigger event'
'The memory of the complainant may be faulty when relating events which occurred many years previously. X at 17˝ was giving a description of the situation as it had unfolded almost 10 years previously. It may have been troublesome for her to differentiate between what F had told her about the consequences of telling her aunt and what she herself did.'
Such observations may have some validity, but they are not the only explanations for the state of the evidence on this point and they fail to take account of the fact that, not only did X report to her teachers and, later, to the social worker that she had made this report to M, she also, when speaking to the social worker, stated that she had hurt someone deliberately and that her aunt had been upset.
(h) Vulnerable Witness: difficulties within the forensic process
' It does not follow, however, that X will have to give evidence in person in these proceedings. … there would be a number of options available to resolve matters. If any party wishes to call X to give oral evidence, up-to-date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations, perhaps supplemented by written questions put to her in circumstances approved by Dr W. On the other hand, oral questioning could be arranged in ways which did not involve face-to-face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court's only concern in family proceedings is to get to the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.'
a) The only evidence of sexual abuse came from X's accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X's allegation of sexual abuse. The evidence around the 'trigger event' established that, in at least one central respect, X's accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X's testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.
b) X's emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.
c) Once it was established that the 'trigger event' of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X's account.
d) The judge's conclusion that the 'prohibitions' went so far as to provide a 'complete answer' to the lack in X's account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the 'prohibitions' themselves were shadowy and only partially understood.
e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X's physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X's account provided a reliable foundation for the finding of fact.
f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.
g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X's oral evidence.
Lady Justice Gloster
a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.
b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.
c) Third, whilst one can readily understand the reasons why the judge terminated X's cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.
d) Finally, F's exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X's evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X's evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F's conduct in "craning his neck" to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.
Lord Justice Briggs