England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
(His Honour Judge Compston)

		Royal Courts of Justice Strand London WC2 Wednesday, 27th March 2002

1. LORD JUSTICE WARD: This is an application being brought by a mother for permission to appeal an order made by His Honour Judge Compston on 4th March 2002, when he refused the mother's application to instruct a consultant child psychiatrist.
2. The issue arises in this way. These are fairly bitterly contested proceedings between mother and father about the residence of their two children. J was born on 15th August 1992, so she is 9 years of age. R was born on 12th January 1997, and so is now five years of age. The parties had met and gone through a customary form of marriage in Zaire, from which they fled to this country where they are, alarmingly, still awaiting adjudication of their asylum appeals.
3. There were clear difficulties in the marriage and a number of separations. Allegations were made by the mother against the father of a number of quite serious matters, not only, it should be noticed, of violence perpetrated by him against her, but also (as Judge Mitchell described in it in her judgment of 27th September 2000):

"There was an allegation made by the mother in May 1995 on which there are no findings that the mother, in fact, was distressed because she alleged the father had sexually abused [J] who was by then two years old."

4. That matter was referred to by Judge Mitchell because it was she who had to deal with the disputed residence application. She made an order giving residence of the children to the father on that date, 27th September 2000, but, because of concerns about the family generally, she wished the matter to be reviewed.
5. Before the matter could be reviewed the father was arrested on 12th June 2001, allegations having been made against him a few weeks earlier that he had indecently assaulted a little girl known as child A in about December 1995, when she was aged about five or six (the ages are not entirely clear to me), and that in the Easter of the following year, April 1996, he had raped this little girl. She had only recently reported those matters to the police, after her aunt/carer had wished to take her, by then a girl of 12 and a half or thereabouts, to a doctor because of her concern that the little girl was sexually active with a 21 year old man. It was then that she made the revelations about the alleged sexual abuse committed upon her by this father. That led to a full investigation by the police, in the course of which they made a video recording of her allegations, and we now have a transcript of that recording.
6. The mother learnt of those allegations and was obviously and properly concerned about them, and there was an obvious need for investigation in the course of the review that was to take place. Consequently, an order was made - and made apparently by consent - on 27th June 2001 that, on the parties receiving from the Commissioner of the Metropolitan Police all evidence (including video, audio and medical reports and witness statements) in connection with the investigation into this allegation of sexual abuse, the parties would have leave to disclose all the papers to Ray Wyre Associates or other appropriate forensic psychologists for the purpose of an assessment of the risk, if any, posed by the father to the safety of J and R.
7. In consequence, the solicitors for both parties jointly instructed Ray Wyre Associates in these terms:

"You are instructed to consider and provide your opinion on the following issue after meeting with the respondent father only. No leave has been granted for you to see the children."

8. The question seems to have been:

"Whether the respondent father poses any risk to [J] and [R]. Generally, you are invited to comment on such other issues as you think fit or as arise in the course of your assessment."

9. At a later stage the Crown Prosecution Service decided to take no action. The matter has been reported to the local authority and directions have been given for them to file the appropriate reports of their investigation.
10. A Mr Smith from Ray Wyre Associates was given the task of conducting the assessment. He has social working qualifications, but he is also the principal of Ray Wyre Associates and as such is involved in the assessment and treatment of alleged abusers and non-abusing partners of abusers. His work requires him to assess and report on individuals for solicitors, courts, Social Services etc as to the risks an individual might pose.
11. He duly conducted that report and submitted it on 29th January 2002. He reached his conclusion after he had fully investigated the police file, had seen the video, had considered the medical evidence (which was inconclusive) and had conducted an in-depth interview and assessment of the father. He concluded, among other matters:

"Given the child's account of two incidents of sexual abuse some months apart, experience tells me that I would have expected to have uncovered further evidence of grooming (moving a social relationship into a sexual relationship) and inappropriate sexual behaviour occurring both before the alleged indecent assault and during the months which elapsed between the alleged indecent assault and the alleged rape. The child's statement makes no mention of such arousal driven behaviour. This is somewhat surprising."

12. He also observed that the alleged rape was impulsive. He expressed the opinion that that type of extreme behaviour would have manifested itself before then. He felt that the child's demeanour, whilst convincing at times, was not always congruent with her account. He expressed the view (in paragraph 36) that the timing of the allegations made by the child in March 2001, when her carer was concerned about the possible sexual relationship between her 12 and a half year old charge and a 21 year old male and was arranging for a medical examination, might be significant and should not be dismissed.
13. But he also conducted a thorough investigation of the father. He did not recognise in him any patterns of behaviour or faulty beliefs or attitudes about child sexuality or paedophilic tendencies which gave him cause for concern. He concluded that the father posed little or no risk to J and R of sexually abusing them and so recommended that they continue to reside with him. He observed finally that the children had displayed no signs of behaviour which would cause him concern that they were being sexually abused. Indeed, they seemed happy and settled and expressed the wish to remain with the father.
14. The mother's application is to consult a child psychiatrist because, it is submitted, there is a serious gap in the evidence now presented to the court. That gap is that Mr Smith, though experienced, is not an expert child psychiatrist and is not therefore properly qualified to give the court the best assistance on the issue whether or not this child A is to be believed in the account she gave on that video. It is submitted that that is the fulcrum of the case against him and that the court needs more help than Mr Smith can give, because Mr Smith cannot properly, given his limited actual qualifications, express a view on the materiality of the time delay in making the complaint, between 1996 and the summer of 2001, and he is not able to deal fully with any possible fabrication by child A of her account.
15. In my judgment the judge was correct in his refusal of the application to adduce that further evidence. I say that for the following reasons. First, Ray Wyre Associates were nominated by the mother to have the relevant expertise to carry out the assessment that was required. It was an assessment that envisaged both a view being formed as to the veracity of the child's allegations as well as the assessment of the father and the potential risk that he would pose. Ray Wyre Associates are pre-eminent in this field and the choice of that group was obviously a good one. It is a little late now to complain when the result of the assessment turns out to be unfavourable and not quite what the mother would have wished it to be. Secondly, I am quite satisfied that in this case Mr Smith has all the experience that is necessary to allow him to build upon his social working qualifications and to give helpful evidence to the court on both aspects he was asked to investigate, namely an assessment of the girl's account as well as an assessment of the father's character. Mr Smith is not in the category of social worker which led to my comments in the case of Re N (Child Abuse: Evidence) [1996] 2 FLR 214, upon which Miss Papazian relies today. This expert is, therefore, well qualified to do the court's task.
16. The judge has the conduct of the management of the hearing. This was a trial management decision in which he was required to exercise a discretion. In my judgment he exercised the discretion properly. It was not appropriate to add to this already difficult case with another layer of expertise. The judge's essential task is to assess whether or not this man poses a risk to his children. There is wholly insufficient evidence to support an allegation that he has abused his own daughters. The only evidence available is the hearsay evidence about child A. Assuming even that he was guilty of the misconduct alleged by child A, the court's task on the review is to assess his abilities to parent his own children. If there are any supplemental questions that need to be asked of Mr Smith, then, within the limits of permitting that cross-examination of the jointly appointed expert, the judge at the hearing is free to admit that further inquiry.
17. I would dismiss this application.
18. LORD JUSTICE KEENE: I agree.
Order: application for permission to appeal dismissed.