England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
(MR JUSTICE JOHNSON)

		Royal Courts of Justice Strand London WC2 Wednesday, 13th February 2002

Wednesday, 13th February 2001

1. LORD JUSTICE THORPE: This is an oral hearing without notice directed by me, I think having seen the paper application for permission to appeal brought by Mr Peddie QC and Mr Bagchi on behalf of Mr Solanki. Mr Peddie is also instructed in the criminal proceedings.
2. On 6th February following a pointer extracted from one line on one page in documents disclosed to the defence by the prosecution, the Crown Prosecution Service confirms that they held a memorandum interview of the child in question in these Children Act proceedings conducted on 16th April 2001 with a 20-minute duration. Mr Peddie has seen the video. He says that its significance is negative, for during the course of the interview the child had every opportunity to say something about the injuries he had sustained and who was responsible for them, but he said nothing.
3. Mr Peddie has accordingly revised his draft notice of appeal and submitted a revised skeleton which we have only received this morning. What he says in the revised skeleton is predictable. He says that had the judge had knowledge of this memorandum interview it would have had considerable impact on his evaluation of what the child was reported to have said on various occasions, particularly to foster careers. The judge himself on more than one occasion commented on the absence of any formal interview with the child.
4. Manifestly, this fresh evidence founds the submission that Mr Solanki is entitled to a retrial; but we can proceed nowhere today in the absence of the other parties to the Children Act proceedings.
5. Accordingly, I would propose that this application be adjourned to be re-listed on notice to the local authority, the guardian and of course the mother at the earliest date convenient to the court. It is important that this issue be dealt with swiftly because there is already a provisional date for the disposal of the Children Act application. Mr Peddie, of course, has no continuing role in the Children Act proceedings but his understanding is that a date in May has been fixed. Obviously if as a result of this fresh evidence and other points taken by Mr Peddie this application for permission were to succeed and develop into a successful appeal, which in turn resulted in a retrial, then the fixture to determine the future of this little boy would have to be abandoned and this may well be one of those cases where delay would be highly prejudicial to the child.
6. So the next hearing will not only be a hearing to dispose of the application for permission but also of the appeal as well if permission be granted. On the next occasion there will be a three-judge constitution, with a time estimate of one-and-a-half hours, which seem to me to be a reasonable guess of what is required.
7. Mr Peddie's assistance this morning has established that the mother and Mr Solanki called no witnesses at the five-day trial in the Family Division. Mr Peddie, however, emphasises that his client had relied on the evidence of Tania Plant, Hilary Harold and Patrick Simon, whose statements were agreed. His complaint is that the judge nowhere referred to their evidence in his judgment and that accordingly it was given insufficient weight in the analysis. However, I suspect that that is a much less significant foundation for this application than the fresh evidence now relied upon. Obviously the local authority are going to have to explain how it was that this memorandum interview was not disclosed and how the judge was allowed to come to his final conclusion in the belief that the child had never been formally interviewed.
(Application adjourned; costs reserved).