This judgment is being handed down in private on 9th December 2011. It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates and their solicitor may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
LIVERPOOL DISTRICT REGISTRY
B e f o r e :
|- and -
|X By His Children's Guardian
|PJ & SJ
||3rd & 4th Interveners
Ms Janet Bazley Q.C. & Ms Prudence Beever (instructed by Roebuck's Solicitors) for the 1st Respondent
Ms Sarah Singleton Q.C. & Ms Alexandra Newton (instructed by Haworth & Nuttall) for the 2nd Respondent
Ms Gillian Irving Q.C. & Mr Paul Hart (instructed by Steele Smith LLP) for the 3rd Respondent
Ms Julia Cheetham (instructed by Quality Solicitors D'Angibau) for the 1st Intervener
Ms Judith Rowe Q.C. & Ms Dorothea Gartland (instructed by Steel & Shamash on behalf of the Official Solicitor) for the 3rd & 4th Interveners
Hearing dates: 8th & 9th December 2011
Crown Copyright ©
Mrs Justice Theis DBE:
'PJ initially presents as much more able that he actually is. He has severe Asperger's syndrome with a significant delay in both cognitive processing time and emotional response time. He benefits from careful pacing and the opportunity to 'go back a step' to a previous issue or question. PJ is better able to understand his feelings and process ideas using visual strategies. He can take up to 20 minutes to fully process a question and provide a measured response. He works well if examples are used to explain matters.'
The evidence and discussion
"The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has."
(1) PJ is nearly an adult, with specific difficulties which per se do not prevent him giving evidence, with suitable support and facilitation. I have considered the development of the autonomy of the older child is a concept increasingly recognised by the courts Mabon v Mabon  EWCA Civ 634 and the welfare advantage to PJ in giving evidence Re J  EWHC 962 (Fam). Whilst I place considerable weight on his age and wish to give evidence for the reasons he has outlined to Dr SG and Ms K there is, in my judgment, real doubt as to whether he has fully understood the consequences to him of giving evidence.
(2) Dr SG's oral evidence, which I accept, is that the adverse risks to his welfare bring the balance down on her recommending he should not give evidence. She is someone who has spent a considerable amount of time with PJ discussing these issues. She was concerned about the impact on him of feeling the blame if he gave evidence and it did not go the way he thought. It was due to him not being able, even with preparation and support, to understand the impact on him of giving evidence. This could, she said, adversely effect the effectiveness of the emotional support he would be able to receive (both short and long term), which would be contrary to his welfare.
(3) My decision is not reached because of PJ's Asperger's but on the facts and circumstances of this case, the areas that would need to be covered in his evidence, the issues I have to determine and the other evidence I have available to me.
(4) However PJ's evidence could be given, even with all the support mechanisms in place, the preparation that would be required to facilitate him giving evidence that would assist the court in the determination of the truth, means that it would in all likelihood be of limited, if any, evidential value. This would apply in varying degrees to all the various combinations that were canvassed in oral evidence and submissions. That is because the areas that would need to be covered would require PJ to be given considerable preparation, and possibly repeated preparation, to enable him to process the questions being asked about. The need for that was more than amply demonstrated by the recent attendance note from Ms K. I have considered each of the suggested combinations carefully but none of them, in my judgment, avoid this outcome.
(5) The areas PJ would need to be asked about would need to cover an extensive period of time, both prior to his ABE interview in 2009 and afterwards and would involve abstract concepts of time which, however appropriately and sensitively put, PJ has real difficulties with.
(6) I have had to carefully weigh the Article 6 and 8 rights that are engaged by the parties. Neither the LA, the parents nor the Children's Guardian require PJ to give evidence, whether orally or otherwise. DJ wants PJ to give evidence by way of a written statement and pre-recorded interview, but acknowledges that there is other evidence available to the court to determine the issues. The Official Solicitor is guided by PJ's age and wishes and for PJ to 'have a voice', but recognises that there is other material available to the court to determine the issues.
(7) This is not a case where PJ's evidence on these issues is critical to its determination. The court has material available to it from many other sources, in particular the evidence from DJ.
(8) I accept the submissions on behalf of the Children's Guardian that allowing the application for PJ to give oral evidence, because of its inherent difficulties, would result in a real risk of the hearing in January being de-railed, which is directly contrary to X's welfare. Evidence in any other form (written and pre-recorded) is likely to be of limited, if any, evidential value for the reasons she gave and is very unlikely to provide assistance to the court in the determination of the truth or evidential clarity as to the issues between the parties.
(9) I fully acknowledge the likely distress and frustration that will be felt by PJ by my decision, but that is not a reason alone to grant the application. The way this issue has had to be raised with PJ again is very regrettable but could not be avoided if the court was going to exercise its discretion on an informed basis. When PJ is informed of my decision I would want it emphasised to him that the court already has his evidence in the form of his ABE interviews, which the court has seen and will pay very careful attention to. Through those interviews he is having a voice and has done what he can for X. It may be appropriate to inform and re-assure him, in an appropriate way, that X has his own Guardian and legal representatives.
Cost of intermediaries or other support required to enable children to give evidence
'With the greatest respect for the Judge and the Court, I am unable to see whether the cost of a 'witness intermediary' to assist a client in giving evidence to the court can properly be attributable to that client's public funding certificate.
This is not 'representation' of the client (which is, of course, properly being afforded by your goodself and Leading/Junior counsel under the auspices of the public funding certificates for your clients), but is a proposed mechanism to enable the client to communicate effectively with the Court.
It appears to me to be analogous to translation and should therefore be funded by the Court.'
'Getting assistance from an intermediary in a family court is not as straightforward as getting assistance from a Registered Intermediary in a criminal case. Registered Intermediaries have been available in all 43 police forces and CPS areas in England and Wales since 2008. the police fund the use of Registered Intermediaries at the investigation stage and the CPS fund their use at the trial stage. However there is no provision beyond the YJCEA for using Registered Intermediaries. Where the judiciary has used its inherent powers to grant the use of an intermediary (for example for a defendant) the MoJ says that 'the appointment of a Registered Intermediary has only been made when doing so has not impacted upon their provision for those for whom the legislation was intended.' The MoJ position with regard to family cases is that 'it will agree to assist in the provision of a Registered Intermediary only when there is a direct linking to a criminal case in which the witness is involved and where one has already been provided through the Witness Intermediary Scheme.' (Email from Jason Connolly, MoJ, 30 August 2011)…'
Note 1 Article entitled, ‘ABE Interviews, Children’s testimony and hearing the voice of the child in family cases; Are we barking up the right tree?’ published within the collected papers of the Conference-- Dear David: A Memo to the Norgrove Committee from the Dartington Conference 2011.
Family Law, December 2011
Editors The Rt Hon Lord Justice Thorpe and William Tyzack , Barrister, Queen Elizabeth Building Temple, London. [Back]
Note 1 Article entitled, ‘ABE Interviews, Children’s testimony and hearing the voice of the child in family cases; Are we barking up the right tree?’ published within the collected papers of the Conference-- Dear David: A Memo to the Norgrove Committee from the Dartington Conference 2011. Family Law, December 2011 Editors The Rt Hon Lord Justice Thorpe and William Tyzack , Barrister, Queen Elizabeth Building Temple, London. [Back]