England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON HULL COUNTY COURT
(HIS HONOUR JUDGE HEPPEL QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th March 2002

Tuesday, 12th March 2002

1. LORD JUSTICE THORPE: In the Hull County Court there were extremely complex care proceedings culminating in a long trial in front of His Honour Judge Heppel QC, who handed down his reserved judgment in December 2001. He had had ten ring binders and he had heard oral evidence over nine days. All this evidence was directed to a highly dysfunctional family consisting of Mrs M; her husband, Mr M; Mr MC, with whom she had had a relationship that both preceded and succeeded her relationship with Mr M; the three youngest children, J, S and D, who were represented by a panel guardian; and their two older brothers, older J and older D, who were separately represented because there were allegations that they had engaged in sexual activity and also had engaged their younger brothers in sexual activity, including buggery.
2. This was an extremely difficult case for the judge. He plainly gave a lot of thought and care to composing a judgment that would settle the outstanding issues of fact and also resolve the future for these children who, as a result of their awful experience in the parental home, had been damaged in a way that was probably irreparable throughout the remainder of their lives.
3. The judge had to consider the family dysfunction under a number of heads. He had to consider the home conditions, which he in the end concluded were perfectly appalling: squalid and unhygienic conditions prevailed. He had to consider medical care for the children. He reached the conclusion that the parents had failed to have proper regard for the health and well-being of the children. They had very poor dental hygiene and they had not been properly registered with general practitioners. He had to consider domestic violence within the family. He came to the clear conclusion that the children had been exposed to domestic violence within the home on many occasions. Graphically, Mr M even accepted that there had been occasions when the two oldest children had to telephone the police because of domestic violence between the parents. He then had to consider whether appropriate behavioural boundaries had been set and whether the children had been appropriately disciplined. He came to the conclusion that Mr M had meted out to the older children, particularly older D and J, chastisement with a degree of violence far greater than would be expected of any reasonable parent. He then finally had to consider the sexual behaviour of the members of the family. In relation to older J and older D, as either victims or perpetrators, he had to consider a lot of evidence, including the statement made by J on 3rd August 2001 to a professional worker, with whom he had formed a relation of confidence, that he had seen his brothers, older J and older D, regularly engage in sexual activity with each other, which he described as one boy putting his willy up the other's bottom. The judge also had to consider the evidence of S who, during the course of a video interview on 16th January 2001, had described some pretty shocking sexual activity within the group of brothers, particularly older D and older J, between themselves, and then older D and older J abusing either him or J. Any reading of that transcript shows the great distress and emotional turmoil that S was undergoing.
4. There was also the fact that the judge accepted the evidence of a neighbour that on one occasion she had heard Mrs M, during the course of a row with her husband, say to him that she would go down to the public house and expose him as having sexually abused some of the children anally.
5. So the judge had to try and make sense of this evidence which was by no means clear and by no means consistent. But he did have the aid of expert evidence from Dr Mabbott, who had examined S and who drew the court's attention to an anal fissure in the 3 o'clock position. Doctor Mabbott was obviously strenuously cross-examined, but the judge recorded her as concluding that sexual abuse was the more likely explanation for the fissure than constipation, which was a line which had been run. Another line run was that diarrhoea might account for the fissure, but Dr Mabbott had dismissed that possibility during the course of her cross-examination.
6. In the end the judge came to his conclusions. They are set out in paragraph 76 of his judgment:

"In my judgment, and I so find, that those involved in this way were not S, D or Mr M, but either [older] J or [older] D. Likewise, there is no evidence to suggest that S was buggered by Mr M or J: that must have been perpetrated by either [older] J or [older] D but I do not find there is cogent evidence as to who precisely was involved. I accept S's account of inappropriate sexual activity as between [older] J and [older] D but it is not possible for me to find that buggery actually took place as opposed to an attempt thereat or an act that simulated buggery."

7. That finding could be said to be moderate, given the extent of the evidence that had been adduced. The judge might obviously have found against Mr M, had he felt that that was a proper conclusion. He could have made much stronger findings against older J. He could have made much stronger findings against older D. In the end he came to a conclusion which he plainly felt proper, balancing on the one hand the strong evidence that had been led by the local authority against on the other hand the need for caution, particularly in evaluating the responsibility of those who were essentially victims and only through their victimisation in due course perpetrators.
8. We have heard applications for permission to appeal advanced by Miss Sally Bradley QC, on behalf of Mrs M. Miss Bradley with her usual eloquence has sought to persuade us that Mrs M should have leave to appeal against two of the orders made by the judge. The first is the judge's approval of care plans in respect of contact arrangements between Mrs M and J, S and D, as advocated by the local authority.
9. When a judge is confronted with a situation in which care orders are inevitable his jurisdiction to impose upon the local authority variations in the care plan advanced is at present limited. But in this one area of contact the judge does have the plain statutory jurisdiction to enlarge the contact arrangements if he feels that the contact set out in the care plan is inadequate. Miss Bradley says that there was a dispute as between the local authority and the guardian as to what was the appropriate level of contact. The judge dealt with this question shortly at paragraph 96. He simply said:

"The question of contact between parents and siblings and as between the siblings themselves has been reconsidered by the parties and is now, as I understand it, the subject of agreement in the event of my making orders and approving care plans which do not lead to reunification."

10. Obviously if there had been an agreement between the professionals contact provisions in the event that Mrs M's primary case was rejected it was quite unnecessary for the judge to reason in any way those arrangements in relation to welfare. All he had to do was to say "It is agreed" and "I approve what is agreed". That is precisely what he said in the remainder of paragraph 96.
11. Miss Bradley's main point is that the judge was simply wrong. There was not an agreement, and his understanding was misplaced.
12. Given that she is right about that, the proper recourse is to the trial judge. It is easy enough to approach the judge and say, "Your conclusion as to agreement tentatively expressed in paragraph 96 is in fact unfounded. There is a dispute and it is for you to decide it". That has not been done. It seems to me that it was the right course and it seems to me that it is the course still open to those representing Mrs M. It simply is not business for this court.
13. Miss Bradley's second point is that the judge fell into error in approving the local authority's care plan in respect of the youngest child, D. He should not, says Mr Bradley, have sided with the local authority when the guardian was very firmly of the opinion that long-term fostering was the better solution, given the strength of D's tie to his biological family.
14. Nobody could have advanced this difficult submission more persuasively than Miss Bradley, but it is devoid of any merit in my opinion. This was all a matter for the judge to assess. He made his assessment, which he carefully explained over the course of paragraphs 101 to 105 inclusive of his judgment. It was perfectly open to him to differ from the guardian as long as he explained himself, which he fully did. In any event he was not approving a care plan for adoption come what may, he was approving a modification advanced by the local authority in reaction to the guardian's opinion. The modification was that if an adoptive placement could not be identified within six months then a long-term fostering placement must be identified. Furthermore, the judge recognised that the issue of long-term fostering or adoption could not be definitively decided judicially in the absence of any application before him for a freeing order. The judge specifically recognised (in paragraph 101) that a freeing application would inevitably have to follow if the local authority managed to find an adoptive placement and that that application would be heavily contested. So I see nothing in Miss Bradley's challenge to the two orders that her notice of application identifies.
15. Miss Bradley also supports to the hilt the application for permission advanced by Mr Collier QC, on behalf of older J and older D. Miss Bradley's identification of the findings of fact made by the judge, which she says are unwarranted, are (1) the finding that S had been buggered by older J or older D; (2) that there was inappropriate sexual activity involving older J or older D with J; (3) that older J and older D had been involved in sex with each other; (4) that older J poses a risk of harm to others; and (5) that older D poses a high risk of harm to others.
16. Mr Collier advances the same attack on factual findings. In view of the fact that there is more at stake for his young clients than perhaps for Mrs M, he made the running on this aspect of the application and Miss Bradley supported and adopted his submissions, adding one or two of her own. In relation to the finding that S had been buggered by either older J or older D, Mr Collier particularly criticises the judge's reliance on the video interview of 16th January. He says that the boy's descriptions of what he had undergone were simply incredible and in other respects inconsistent. He particularly stresses the fact that there was reliable independent evidence that S was an untruthful historian.
17. Mr Collier also attacks the evidence of Dr Mabbott. He says that she was strongly criticised both in relation to inconsistent opinions given on two succeeding days in January 2001 and that she was also strongly cross-examined by reference to the Royal College's guidelines. Neither of those factors were specifically referred to by the judge.
18. These would be and no doubt were forceful points for the trial judge's evaluation. But it is perfectly plain that they received that evaluation. The judge said this (paragraph 76) in relation to the evidence of S:

"I bear in mind the inconsistencies in his video evidence as demonstrated and the fact that he has not been cross-examined."

19. In relation to Dr Mabbott the judge assessed her evidence in paragraph 28 and although he does not specifically refer to the two points advanced by Mr Collier it is quite plain that the judge had her cross-examination well in mind. He refers to it at more than one point. It was for him to assess the value of Dr Mabbott's contribution. He accepted her contribution as amounting to expert medical opinion that sexual abuse was the more likely explanation for the anal fissure.
20. In my judgment there are no realistic prospects of disturbing the first finding of fact; nor do I think that there is any better prospect of disturbing the second finding. J gave an account to a person in whom he had come to trust when he had had an opportunity to establish some confidence in the security of his surroundings following his removal from this highly damaging environment. The judge considered carefully the video interview of him taken on the same 16th January and the judge came to the clear conclusion that it was essentially corroborative in its negativity, for the judge said:

"In my judgment, J evinced all the signs of an unhappy boy who was hiding something important."

21. It is said that the judge should have had in mind that during a period when he was in care he had been exposed to some sort of sexual play in a children's home. It is said that that might well have tainted the value of what he said on 16th August. I certainly cannot believe that that point was not in the judge's mind, albeit it is not expressly referred to. Judges are not to be criticised for not covering every single point, every single submission advanced in a case of this complexity which has taken as long to try as this took. Equally, I think that the prospects of Mr Collier disturbing the third finding of fact are as remote. There was abundant evidence upon which the judge could have arrived at that conclusion. Indeed, he might have arrived at much stronger conclusions in that area.
22. The two findings upon which Mr Collier makes most ground are 4 and 5. Mr Collier makes the almost irrefutable submission that if the judge had not been able to determine whether it was older J or older D who had perpetrated the abuse, then he simply could not, as a matter of reason, proceed to find against older J as he did in paragraph 85 that he posed a risk of sexual harm to others. Nor could he have proceeded to an even stronger finding in relation to older D that he posed a high risk to his younger brothers and to others outside the home.
23. The reality is that the local authority managing the future for these two now 15 and 14 year olds faced a very difficult task. The judge's findings have left them to plan for a future which is not as clear as it might have been. In an either/or situation the local authority have to assume that there is the possibility of risk to others from either and manifestly that possibility has to be to the fore if the local authority are not to meet possible future charges of irresponsibility. But the error in judgment can be defined as only an error expressed in the choice of tense. If the judge had said in paragraph 85 that J is himself at risk of sexual harm and may pose a risk in that regard to others the sentence would not be open to any criticism. Equally, if he had in relation to older D said no more than that he may pose a risk to his younger brothers and to others, that would be only fair expression of what the judge had found in paragraph 76 above.
24. Is it necessary to grant permission to appeal simply to arrive at a correction of a choice of tense in a judgment, even a reserved judgment? In my opinion the expense of so doing would be totally disproportionate to the objective. If the case is to be mentioned to the judge again to point out to him that there is an issue for him to resolve over the question of contact between parents and siblings, at precisely the same time the error of tense in paragraphs 85 and 88 can be pointed out to him and he can be invited to make the necessary corrections. I am sure it is no more than a slip and that seems to me to be the appropriate way of correcting it. To admit the whole case to the full appellate process with representation of parties beyond those who are here this morning would be, in my view, disproportionate.
25. For those reasons I would dismiss these applications.
26. MR JUSTICE NEUBERGER: I agree. So far as the approval of the care plan generally is concerned, it seems to me that the prospect of successfully appealing the judge's decision are not real. So far as the statement about contact is concerned (assuming that there was a mistake) I think it plain that that was a matter, and is still a matter, which should be referred to the judge. Where a judgment contains what appears to be a mistake on the part of the judge, especially where it is as to what the parties had agreed, it seems to me that, save in the most unusual circumstances, the proper course is to refer the matter back to the judge rather than to incur the costs and delay of an appeal.
27. So far as the other findings are concerned, it appears to me that, insofar as there can be an appeal against the findings as opposed to an order (which I doubt) I have nothing to add to what my Lord has said. There does seem to have been a mistake in the tense in relation to the risk of sexual harm posed by J and older D. That again appears to me to be a classic case of a matter to be taken up with the judge. It may be that he meant what he said, in which case, no doubt, he will explain why he said it. It may be there was a mistake as to the tense, in which case, no doubt, he will correct it.
28. While it can always be said, in a difficult and long case of this sort, that there were certain facts which were not mentioned by the judge, and therefore must have been overlooked, this court should not easily be persuaded of such a contention. Otherwise judges will be looking over their shoulders rather than concentrating on their decision, and will be making their judgments intolerably long. Woods and trees come to mind. In this case, looking at the evidence as a whole, including the findings made by the judge and the points made before us, I think that the judge reached conclusions of fact (apart from the two I have mentioned) which he was entitled to reach. In these circumstances I respectfully agree with the order proposed.
(Appeal dismissed; transcript to be provided at public expense; costs to be assessed in accordance with the Community Legal Service (Costs) Regulations 2000).