England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(MRS JUSTICE BLACK)

		Royal Courts of Justice The Strand London Monday 29 April 2002

Monday 29 April 2002

1. LORD JUSTICE THORPE: On 28 November 2001, Black J handed down a judgment in Newcastle on a case brought by the North Tyneside Council in relation to the children of three families to whom I shall refer as the "Bs", the "Ss" and the "Ws". The Bs and the Ss were very closely related since the fathers in both families were brothers and the mothers in both families were sisters. The relationship between the Ws and these two families was by no means so close. PW was a close friend of the Bs, but not apparently of the Ss.
2. The judge's task was formidable. She had had to hear evidence over the course of many days as to appalling risks and dangers to which these children had been exposed. She had to consider not only gross sexual abuse, but irresponsible parenting of the most extreme kind. No doubt she was assisted in that by the fact that of the parties before the court five were represented by leading counsel, Miss Bradley, Miss Scriven, Mr Robson, Mr Cohen and Mr Wood, and another four parties were represented by very experienced juniors. Mr Cobb appeared for the local authority, as he appears before us today.
3. The judge had to piece together innumerable fragments to compose the picture that would establish the record and the factual history in regard to all these children (two in one family, three in another and two in the third) for the purposes of a split hearing which would lead in due course to disposal hearings for the children of each family. There must have been a question as to whether to take each of the families separately for the purposes of the preliminary factual investigation or whether to take them altogether because of the interweaving of the stories. The principal source of information, certainly as to sexual abuse, was the middle child in the B family, S, who was 10 years of age. Her story involved all these children, and indeed the parents as perpetrators.
4. The underlying reality was not in doubt. Of the seven children, six had been medically examined. The clear diagnosis from the expert was that five of them were the victims of sexual abuse, either anal or vaginal or both, and the sixth child, although not showing diagnostic evidence of abuse, certainly showed physical irregularities that were consistent with the possibility of abuse.
5. The judge's judgment extends to 101 pages broken down into 343 paragraphs. It is a most careful judgment which must have been the product of very great effort on the part of the judge. However, as soon as it was delivered, Mr Cohen, who at that stage was representing only JB, the father in the S family, made application for permission to appeal. He sought to challenge only one factual finding, namely that his client had been guilty of sexual abuse of S and R on Christmas Day 2000. Mr Cohen explained to the judge why he sought to challenge her finding. The judge was not impressed. She said that she had made that finding of sexual abuse on that specific day by a process of elimination. She was absolutely clear that there had been a real day when SB had described a meal at the S house. Inevitably the date advanced by SB could not be reliable because on the date advanced the children were in care, but the judge was satisfied that this real event must as a matter of probability and by a process of elimination have occurred on Christmas Day. Mr Cohen's application for permission was mirrored by an application advanced by Miss Hudson who represented ShS, and that was likewise refused. The judge subsequently completed a form giving reasons for refusing permission. She said:

"The application for leave was based on a very specific ground revolving around my finding that the parents had lied about whether the children were with them on Christmas Day. This was a finding that I considered appropriate on the evidence. Criticism was levelled at my reliance upon a passage in the statement of another of the adult parties, [SB]. This was not by any means the only material upon which I relied in making my findings with regard to Christmas Day and to the sexual abuse."

6. She said that the judgment demonstrated that material, as did the discussion between counsel when the application was urged orally.
7. Mr Cohen exercised his right to seek the permission of this court by a Notice of Application which was mirrored by a notice filed on behalf of ShS. I provisionally refused these applications on paper on 28 January. Mr Cohen then exercised his right to oral renewal, and on 19 February appeared in the President's court representing both applicants. He had some measure of success on that day in that the court directed that the application be further listed to enable the local authority to file a response. That has now been done, and we have the advantage of a most thorough skeleton argument prepared by Mr Cobb. In that skeleton he not only sets out the local authority's response on the facts and the evidence, but he helpfully reviews all the authorities, particularly as to the function of the appellate court when a judge's finding of specific fact is challenged.
8. Mr Cohen has very realistically reduced his target in the application which he brings. He now says that he cannot realistically challenge the judge's conclusion on the evidence before her at the trial. Instead, he says that the possibility of sexual abuse by his clients on Christmas Day was not really advanced or foreseen until Mr Cobb's written final submissions which by paragraph 48 asserted thus:

"It is submitted that [SB] was describing a real day, but the date is wrong. It was either Christmas Day or possibly 27 December 2000."

9. He says that that submission was embraced by the judge and led to her reasoned conclusion, a reasoned conclusion which is vulnerable since the judge did not have before her the evidence of two other family members, namely NP, a cousin of ShS, who could have said that she had spent Christmas evening with the Ss from about four until about nine or ten. Equally, Mr Cohen says that the judge might have had the evidence of ShS's mother, CG, who would have been able to give a very full account of Christmas Day that absolutely precluded J and Sh from having had any meeting with S and R on that day. He says all he seeks is the opportunity to go back to the judge with this fresh evidence and to invite her to admit it and, having heard it tested, to arrive at the conclusion that her initial finding is unreliable and to be abandoned. He says all this is of great importance because the disposal in relation to the S children has not yet occurred. Dr Fundudis has been instructed to carry out an assessment, and rehabilitation remains a live option. If the only finding against his clients as perpetrators were removed, then clearly the prospects of rehabilitation would be enhanced. He attaches importance to a letter dated 1 March 2002 from the guardian ad litem to the court in which the guardian herself states that the finding is of fundamental importance to her appraisal of the future.
10. In order to test whether Mr Cohen is entitled to the considerable indulgence of a return to the trial judge in order to place before the court two witnesses who could perfectly well have been called at the first trial, it is necessary to review his attack on the judge's finding.
11. She deals with this Christmas Day in her judgment from paragraph 286 onwards. She recites in that paragraph S's account of sexual abuse on Christmas Day by ShS and JB. She notes that within the child's description there are obvious points of elision, muddling what may have happened on Christmas Day with what may have happened two days later. The judge then comes on to the parents' defence, namely that the two girls, S and R, had spent the day in the exclusive company of their father and brother. She noted that there was in the location of the two houses, and in the weather conditions, some sort of circumstantial support, but went on to dismiss that by saying:

"I do not for one minute think it was out of the question for [S] and the children to go to Sh's or vice versa that day."

12. She then goes on to consider other matters pointing towards the accuracy of S's statement. First, she refers to the normal family pattern, namely that both families would be together on Christmas Day. She goes on furthermore to note that there was clear evidence that that was precisely what had been planned within the family for Christmas 2000. That is to be found in paragraph 288. In paragraph 289 she notes that the state of SB's home was extremely inhospitable. He had only cold water and limited heating. On that basis the judge found it fundamentally unlikely that he and his three children would have been confined in such a cheerless place.
13. She also explained why she set no store by the fact that in the foster carer's diary there was an entry that seemed to corroborate J's and Sh's case. She made the point of obvious force that if the children had been subjected to abuse on that day, then they would have been pressurised to conceal the opportunity. Having referred in paragraph 290 to the fact that SB had conceded that girls had had wine to drink on Christmas Day and that his story as to the origins of that wine was incredible, she came in paragraph 291 to consider his statement as to the dinner that the families had had with the children, as he said, on 3 July 2001. The judge explained why in her view, by a process of elimination, this real event could only have taken place on Christmas Day.
14. Mr Cobb, in his excellent skeleton argument, has dealt in detail with the foundation for the judge's finding, and he has dealt comprehensively with the grounds of appeal advanced by Mr Cohen. He concludes by submitting that the judge's finding as to sexual abuse by J and Sh on Christmas day was based upon (a) the judge's evaluation on the material as a whole; (b) reasonable and unassailable inferences drawn from the facts as found; (c) her specific consideration of the parents' case; and (d) her rejection of the applicants as reliable, credible witnesses.
15. I find that final submission from Mr Cobb completely persuasive. The fact is that the judge took a clear view of the unreliability of the evidence of the adults in this case, most of whom she dismissed as being untruthful. I do not see that anything would possibly be gained by muddying the disposal hearing fixed for June next with a re-opening of a single finding, albeit a crucial finding, arrived at last November. I do not consider furthermore that Mr Cohen's criticisms of the judge's process of analysis and elimination reveals the smallest error. I do not consider that this is a case that begins to justify a process of retrial, albeit a limited process for the single purpose of bringing in yet other family members, who might have testified first time round but who did not do so. I think this application for permission should be refused.
16. LORD JUSTICE BUXTON: I entirety agree with everything that has fallen from my Lord. The judge, in a conspicuously meticulous judgment, which was founded on the very great benefit she had had of seeing the parties give evidence and be cross-examined, looked with care into the question of what occurred on Christmas Day, as she looked with care at every other aspect of the case. As my Lord has indicated, there were very substantial reasons pointing the judge in the direction of the conclusion that she reached, quite apart from what she deduced from the matter of Mr SB's Children Act statement and the incorrect date that he gave. She pointed out in particular that the adults had a clear motive to lie about and conceal the fact that SB had taken his children (if he did take them) to JB's and ShS's house, because he was forbidden to do that by reason of the terms of his contact. The judge found quite clearly that that inhibition was broken on 27 December and that all those concerned in that breach lied about it in order to conceal it. Against that background she was right to view with total scepticism, as she did, the claim on the part of Mr SB that he had spent the whole of Christmas Day alone with children whom, it is accepted, he found the greatest difficulty in controlling, in premises as unwelcoming at Christmas time as were his own home. Further, the judge was absolutely justified, having heard the witnesses, in placing no weight at all upon what the children themselves were reported to have said in explanation to their foster parents when they returned to their care. There is no reason for saying that the judge's findings should be undermined and no reason for permitting further evidence to be given.
17. I would also, if I may respectfully do so, entirely associate myself with what my Lord has said about the future disposal of this matter and about the inappropriateness in that context of seeking further to argue about this particular point as to what occurred on Christmas Day. Like him, I would refuse this application.
18. MR JUSTICE JACKSON: I agree and wish only to add my admiration for the painstaking and thorough judgment of Black J.
ORDER: Application refused; community funding assessment of applicant's costs.