England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HIS HONOUR JUDGE KARSTEN

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th June 2011

Mr Justice Hedley:

1.  This is an appeal against the judgment of HHJ Karsten QC given on 20 December 2010, whereby he held broadly that the children R and G had been sexually abused by their father with the knowledge of their mother.  The question in this appeal, brought by the father with the permission of Wilson LJ, as then he was, is whether those were conclusions to which the learned judge could properly come on the evidence as he had found it to be.  The court is giving a judgment ex tempore because these are ongoing proceedings with a hearing listed for next Monday, which it would be wrong to sabotage by the reserving of a judgment unless the same were entirely essential. 
2.  The case concerns a Sri Lankan Tamil family.  The mother is 38 and the father 29.  The mother had been previously married to a man who is now in his 40s.  They married in 2002 in Singapore but by 2004 the mother had begun an affair with the father, who is the biological father of both children even though R was born during the course of the marriage.  On 28 April 2008 the husband moved out of the matrimonial home and within a month the father had replaced him there, where he remained until 30 January 2009 when he left as a result of allegations made by the mother.  A written agreement was entered into between mother and the local authority a part of which prevented the return of the father to the home.  In fact it is clear that he had moved back into the home and had lived there for several months until his arrest on 26 April 2010 which resulted in the institution of criminal proceedings.  It was thought that the criminal proceedings would by now have been determined, but, as is not unusual in this kind of case, the criminal proceedings have been adjourned and are currently listed for 18 July of this year. 
3.  Two children were born as a result of the relationship between the mother and the father, R on 27 February 2005, so that she is now 6; and G on 2 June 2008, so that she is now 3.  In addition to the questions of sexual abuse the learned judge considered and made findings in respect of domestic violence, and whilst there is no doubt that the history of the case shows a considerable ambivalence on the part of the mother towards the allegations or facts of domestic violence, they certainly resulted in the police exercising their powers under Section 46 of the Children Act 1989 to remove the children after an ABE interview on 6 May of last year, and the local authority obtained emergency protection orders the following day and the children have been in foster care ever since and they have been there subject to a long succession of interim care orders.
4.  The crucial facts that provide context in this case are those found by the learned judge who had correctly, as all accept, directed himself in respect of the burden and standard of proof in accordance with the decision of the House of Lords in Re B (Care Proceedings Standard of Proof) [2008] 2 FLR at Page 141.  There are no challenges to his findings in respect of domestic violence though there is not yet final agreement as to whether the threshold criteria required by Section 31(2) of the Act are made out unless the findings of sexual abuse are upheld.  I would have to express some astonishment that this case took thirteen days before the learned judge.  At least it can be said that no criticism can be made that it was not done thoroughly, though how complicated this case needed to be is perhaps a matter of some dispute.  That it was both difficult to decide and delicate to hear is undoubtedly beyond question.
5.  The learned judge made clear findings in respect of the witnesses who had given evidence to him.  He regarded the mother as thoroughly unreliable and in relation to the father, although he found his evidence superficially plausible, he was, as he put it, left in a state of considerable uncertainty about his veracity.  On the other hand the judge was confident that from the social worker and the family support worker and the foster carer he had received evidence that was truthful and reliable. 
6.  It is perhaps important to see how the allegations of sexual abuse emerged and that can be found from the judgment itself.  The father was arrested on 26 May.  The first independent mention of sexual abuse by the child occurs the following day when the child has a conversation with the social worker.  The note is set out in paragraph 46 of the judge's judgment, and does not need to be repeated here, but it clearly amounts to an assertion of abusive behaviour.
7.  Whilst R was in foster care there was evidence from the foster carer of both sexualised talk and behaviour and reports by the child of dreams that would give grounds for anxiety.  That such things happened is beyond doubt; what weight is to be attached to them is a matter of course of argument but the evidence appeared to suggest that the child had been touching herself and rubbing herself in the vaginal area.  On the other hand, it has to be said that there were medical examinations in respect of both children and both children's genitalia were found to be perfectly normal.
8.  The learned judge then passed to a conversation which took place on 4 June between the child and the social worker which is recorded at paragraph 56 of the judgment and the effect of that is to demonstrate that the child can maintain a particular perspective on a case and not be put off by other people suggesting to her, particularly her mother suggesting to her, that she has made a mistake. 
9.  The learned judge at paragraph 77 of his judgment effectively identifies the heart of the task that confronts him.  He says this:

"In relation to the issue of the sexual abuse of the children, three main sources of evidence are relied upon in respect of the allegation of sexual abuse. They are, first, what the mother has said; second, what R has said; and, thirdly, R's behaviour while in foster care."

And it was to those matters that the learned judge addressed his mind.

10.  The learned judge made it extremely clear that he could place no reliance whatever on the evidence of the mother and, insofar as the mother was relied upon as providing evidence that the father had sexually abused the children, which was certainly something she had said from time to time, the learned judge was extremely cautious indeed about going down that line and indeed said in terms that no findings could be made on the basis of the mother's evidence.
11.  The learned judge then turned, and this effectively brings the court to the heart of the learned judge's judgment, to considering the evidence that emanates from R herself.  The learned judge says this in paragraph 89:

"Apart from the content and conduct of the ABE interview itself (a matter with which I will deal shortly) there are a number of factors which require very considerable caution before making the finding against the father on the basis of the ABE interview in the circumstances of this case."

12.  Then in the next two paragraphs of the judgment he sets out eight separate matters which are indicative of the need for caution.  Nobody seeks to dispute that the judge was correct in so directing himself and in so thinking in the context of this case.  He deals with the ABE interview rather more shortly and at paragraph 91 he says this:

"This was conducted without adequate preparation and, as DC Gill accepted, contrary to the guidelines. The interview did breach the ABE guidelines in several other respects, particularly when asking some closed questions and some leading questions at different points."

13.  The learned judge had therefore assembled in that part of the judgment all the matters which in his view required him to exercise what he described as very considerable caution before a finding could be made, and then he goes on, in paragraph 93 to the key findings, and it is perhaps important that this paragraph is set out in full in this judgment:

"All this has made me extremely cautious in deciding what weight to give to what R says in the ABE interview. When read in typescript it is not easy to make very clear sense of it. Ms Hudson [who was counsel for the guardian] in particular was anxious that I should view the DVD of the interview itself to observe the child's demeanour and gestures and the manner in which she gave her account. I think Ms Hudson was right about that. Yesterday I spent two hours watching, rewinding and reviewing the ABE interview. Viewing the DVD as I did had a powerful effect. R is a delightful girl. I found her to be completely relaxed and natural, answering questions without hesitation, showing no signs of having been coached, giving an essentially consistent account but not afraid to correct her interviewer on particular points of fact."

Following that, the judge went on to make the findings of sexual abuse which we have indicated.

14.  The parties accept that up to the point at which the learned judge made his finding his approach had been one that was undoubtedly open to him and raised matters which are accepted on all sides.  What is said is in essence that the judge, having identified all matters requiring considerable caution, was not entitled to go beyond that and make findings.  We have been addressed by Mr Charles Geekie QC on behalf of the father and he has helpfully analysed the case so as to identify two broad issues of attack on the findings made by the learned judge.  The first is an attack on the value of the child's disclosures having regard both to the influences on her and the deficiencies in the ABE interview itself, and secondly an issue of what at this stage can simply be described as procedural fairness.
15.  As Mr Geekie developed his arguments in relation to the value of the child's disclosures, he drew attention to the influences that must have been operating on this child who, be it remembered, was some five years old at the time.  He points to aspects in which the mother was seeking to persuade the child to say things that were not necessarily in relation to the specific allegations that she made, but generally seeking to persuade the child to say or retract things and frequently doing so in the Tamil language so that it could not be understood by others around.
16.  There is no doubt that the evidence discloses that on occasion the child received specific encouragement from the family in Sri Lanka to make the sort of allegations that she did and the child from time to time during the course of discussions and in particular in the ABE interview interpolates into her account, words like "Mummy says I must tell the truth".
17.  In ordinary circumstances of course an interviewer might be comforted to hear those words but, in the context of this case and the judge's findings about the mother, it is a matter of serious concern.  Says Mr Geekie, when you draw those matters together, and he illustrates them from various aspects of the transcript, that demonstrates that there were significant influences likely to be operating on this child so as to undermine the independent value of what she says.  Then, secondly, he concentrates on the question of the ABE interview.  It is accepted to be deficient; it is accepted that for that reason alone it is not necessarily to be treated as valueless, but the deficiencies should excite specific caution in anyone seeking to use those ABE interviews which have further to be seen in the context of the difficulties that arise from the influences operating on the child at the time; and thus drawing those matters together, says Mr Geekie, the learned judge was simply not entitled to go beyond the elucidation of those difficulties and reach a finding based on his impression of the child in the ABE interview. 
18.  That was the first matter that he developed before us and, although it has been expressed extremely shortly, I hope that it at least conveys the flavour and force of the submissions that he was making.
19.  The second matter that he dealt with I have described as the issue of procedural fairness.  What it comes to really is this.  Undoubtedly the learned judge had during the course of the hearing expressed considerable scepticism about the ABE interview because of the inherent deficiencies in it, and it is certainly possible on several occasions throughout the trial to identify the judge making comments to the effect that the ABE interview would be of limited value.  Moreover, says Mr Geekie, the consequence of those views was that the learned judge discouraged cross-examination of the police officer who conducted the interview and the learned judge discouraged the making of further submissions on 13 December after receipt, as had been agreed between the parties, of written submissions from everyone.  Says Mr Geekie, it is clear from the way in which the judge expresses himself in paragraph 93 of his judgment, which I have already recited in full, that notwithstanding his original scepticism it was the ABE interview that, if one may use the expression, finally clinched the matter for him and, says Mr Geekie, fairness requires that he should have disclosed that fact and invited further submissions in the light of what had gone before.
20.  In my view it is important that judges should be entitled to think aloud during the course of a trial.  It is helpful to counsel to know what a judge is provisionally thinking but it is also very important to notice that the judge had never expressed a concluded view on this subject.  Counsel both for the local authority and the guardian had regularly urged on the judge the importance of this ABE interview, notwithstanding its deficiencies, and the validity and reliability of the contents of that interview remained a live issue throughout the trial.   Notwithstanding the helpful and cogent submissions of Mr Geekie, I am not persuaded that cross-examination of the police officer would have resulted in anything that would have caused further impact on what were already accepted to be the deficiencies in the ABE interview, nor am I persuaded that the submissions of the parties were other than full and directed to what everyone recognized remained a live issue, notwithstanding the sceptical views expressed from time to time by the judge.
21.  It is also important, as my Lord, Mummery LJ drew attention in the course of argument, to have in mind the limited role of the Court of Appeal in relation to issues of procedural fairness.  CPR 52.11(3) says that:

"The Court of Appeal will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court."

22.  The emphasis, of course, is on the word "serious".  The notes indicate that the ground is onerous and that the hurdle is high.  In our view, the matters advanced here come nowhere near the establishing of the grounds that would be required for the Court of Appeal to intervene in this case.  Whilst there may be room for more than one view about the judge indicating his provisional views or the manner in which he did it, in our judgment these matters do not, however expressed, bring about the activation of CPR 53.11(3)(b).  The fact of the matter is that everyone over a period of 13 days had an opportunity to put before the court what they wanted to put before the court, and this is a case, as no doubt in many others, where the judge has finally made up his mind after reserving judgment and has changed it from a provisional view which was always challenged by some of the parties in the case.  In my view that is a wholly legitimate aspect of the trial process and one which cannot be characterised as in any way procedurally unfair.  But of course the heart of the challenge to the judge's findings is in the value of the child's statements themselves and Mr Geekie, with his customary frankness and helpfulness, effectively acknowledged that he had to argue that the judge should have stopped at the point when he had identified all the issues requiring caution and concluded that such was the weight of them that it was impossible to proceed further and that no finding could properly be made.
23.  As I listened to Mr Geekie developing his submissions, he clearly had a series of powerful reasons as to why the DVD interview should not be relied upon; they were reasons which may have persuaded many; but the issue for us is not whether we are persuaded by those matters but whether the judge was entitled, having taken account of those matters, nevertheless to go on and make the findings that he did.  That is of course an entirely different question.
24.  The local authority and the guardian in their combined opposition to this appeal rely inevitably upon the series of cases exemplified by G v G [1985] FLR 894 and of course draw attention to the limited powers of the appellate court to intervene in relation to findings of fact.  They point out that this court will not have had the advantage of the judge of seeing and hearing the witnesses and the development of the case over 13 days.  We have not seen, nor should we have seen, nor were we asked to see, the DVD of the ABE.  To do so would effectively have amounted to retrying the case without the benefit of the context in which the learned judge was able to consider it.
25.  The local authority and the guardian draw attention to the fact that the ABE does not of course stand alone.  There is the complaint to the social worker on 5 May to which I have referred; the conversation with the social worker on 4 June in which the child demonstrated a capacity to resist the mother's blandishments that the child had made a mistake; the fact that the child understood the difference between truth and lies in that she acknowledged that she had lied about the foster carer hitting her; and of course there was the foster carer's evidence of the child's sexualised behaviour.  It is important of course to set all that in the context that we are dealing with a child of five who may understand the difference between truth and lies but may not understand the moral implications of truth and lies and their significance, and one simply has to recognize that.  This was undoubtedly a finely balanced and difficult decision but, as the Court of Appeal have often said, that of itself can make an appeal even harder because it makes the final decision that much more difficult to attack.
26.  I have reflected with great care on Mr Geekie's submissions, which merited such care being taken, but in the end have reached the clear conclusion that the judge was entitled to make the findings that he did and that there is simply no basis on which this court can legitimately interfere with those findings.  My principal reasons for reaching that conclusion would be these.  First, the judge has clearly set out paragraphs 89 to 91 of his judgment and has clearly kept in mind all the issues which required the exercise of very considerable caution.  Secondly, none of those issues, including the deficiencies in the ABE, are of themselves sufficient to prevent reliance on the statements of the child in the ABE.  It is apparent that the learned judge had all those matters in mind when he reached the decisive moment of balancing the reasons for caution against the compelling effect that the ABE had had on him at a time when he was viewing it not for the first time but for the second, it having been viewed in court on the first occasion with all parties present.
27.  In my view the learned judge was not required to reason his conclusions further than he did; he had set out all the issues that he had taken into account and had simply announced what it was that had finally convinced him.  Moreover, although there are supporting issues identified as I have referred to, they were not formally corroborative, nor indeed individually pointed to the truth of the ABE, but they did have the effect of providing some context of consistency to support the critical impact that the ABE had made on the judge, and for those reasons I am clearly of the view that this court should not interfere with those findings which it remained open to the judge to make.
28.  It has to be said that this case came close to getting out of hand.  Thirteen days for whatever reason was manifestly excessive and is unsustainable as a means of the general conduct of care proceedings in the county court.  This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court.  The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse.  That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.
29.  The court agreed to allow Mr Adler to present his respondent's notice on behalf of the mother and we are grateful to him for his brief submissions and his full skeleton argument.  The key issue in relation to the mother is dealt with by the judge at paragraph 102 of his judgment, where he finds that she knew what was going on and that the reason that she did nothing about it was what he calls:

"[her] complete emotional dependence on the father. She needed him, she wanted him and she was prepared to put up with almost anything in order to keep him."

30.  It needs no more than to say that that fact-finding is incapable of being challenged both for the reasons given by the learned judge in finding that the mother was entirely unreliable from start to finish and for the reasons which have led us to dismiss the father's appeal.  In those circumstances, without rehearsing any of those reasons, it is sufficient to say that this appeal would also fail. 
31.  It follows that in my view this appeal should be dismissed.  I add only this, because it has occasioned considerable anxiety to the court.  These children were taken into care in May of last year; they have therefore been in care for thirteen months.  There is no immediately obvious end to these proceedings.  They are, as we have indicated, listed next Monday.  The strong probability seems to be that they will not go ahead then because of the need to deal with kinship assessments, and it may be November before the matters can be resolved, by which time a very large part of these children's lives, percentage-wise much higher for the younger than the older, will have been spent in the care of people who cannot on any basis provide their long-term care, namely the present foster carers.  That cannot be good for anyone and cannot be good for a childcare system. 
32.  This case has encountered difficulties.  It appears that it was not allocated to any specific judge, although, by the practice of the Principal Registry and indeed required everywhere, it should have been.  It was treated as a matter of urgency and put before a visiting judge who was available, namely HHJ Karsten QC, and that judge is essentially a judge of the Blackfriars Crown Court and accordingly it has proved impossible to relist the hearing (were it to take place next week) before him, but has been assigned to a Recorder who will not yet have seen the case.  That is not only unsatisfactory but is directly contrary to the requirements of the House of Lords that fact-finding hearings and disposal hearings should effectively be treated as a part-heard case.  On the other hand, one has profound sympathy with the need to get the case listed because of the delays and the impacts to which I have already referred, and it is a matter of considerable anxiety both in relation to this case and generally that the court all too often finds itself having to balance issues of delay against issues of judicial continuity where one is dealing with judges who sit in more than one jurisdiction.
33.  This matter has come to the attention of the Designated Family Judge for Greater London, HHJ Altman, and no doubt the matter will be considered carefully, particularly if the case goes off on Monday, but we feel it right to record as part of this judgment our anxiety about what has happened in this case and what is proposed in this case, with a view to reminding in particular the Principal Registry of the need to allocate cases and the need to maintain continuity between the fact-finding and disposal hearing which are required to be treated as part heard, but, those matters said, I would be in favour of dismissing this appeal for the reasons given.

Lord Justice Munby:

34.  I agree entirely with everything my Lord has said.  I add some brief observations on three different topics; first in relation to Mr Geekie's complaint of procedural unfairness.  He took us with great care and skill through the passages in the transcript and elsewhere which he relied upon as showing that there had been, at the end of the day, inappropriateness and indeed of unfairness in the procedure which had been adopted by the judge. 
35.  I am entirely satisfied, despite everything impressed so attractively upon us by Mr Geekie, that that ground of appeal fails.  I ask myself: is there any basis for saying that the decision of the lower court, or that the process adopted by the learned court, was unjust?  My unequivocal answer to that is "no".  Posing the same question slightly differently, I ask myself the fundamental question: did this father, did these children, did the parties have a fair trial to which they were all entitled?  Again, I have no hesitation whatever in answering that question with a resounding "yes". 
36.  I pass to the second topic.  My Lord has referred as indeed did the counsel in their submissions to the well-known case of G v G.  To that I would merely, if I may, add reference to the equally familiar judgment of Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360.  I need not rehears the passages; they are well known and have been frequently reiterated in this court in relation to appeals of this nature.
37.  For all the reasons explained by my Lord, it is simply not open to us to interfere with the judge's conclusion.  To do so would be to do the very thing which both G v G and Piglowska v Piglowski had made clear would lie outside the proper scope of our function.  Was the judge, in the light of the other findings he had made as to the evidence and its impact, entitled to conclude as he did?  To that question there can, in my judgment, be only one answer.  For the reasons my Lord has given, HHJ Karsten was indeed entitled to decide as he did and for the reasons he gave; and, not least bearing in mind the observations of Lord Hoffman on the point, I would agree entirely with my Lord's observations as to the adequacy of the reasons given by HHJ Karsten in explanation and justification for his decision.
38.  As Lord Hoffman points out, even if a judge has all the time in the world to the craft with meticulous care and the skill a reserved judgment, there is always the ability of putting matters more clearly and better.  But in any event one has to have, as he pointed out, regard to the exigencies of the judicial life. HHJ Karsten's reasons, in my assessment, were more than adequate to justify and explain the decision to which he had come. 
39.  The third topic concerns the very concerning – indeed, on one view, the deplorable – state of affairs which is revealed by the history of this case and the state in which it comes to stand.  I agree with everything my Lord has said.  I merely identify the three key failures of the system which, as it seems to me, might appropriately be investigated by the designated family judge for London with a view to trying to achieve a situation where there is no recurrence in future.  First, there is the distressing fact, as my Lords pointed out, that these proceedings have been on foot for some 13 months, during the whole of which time these comparatively young children have been in foster care, and moreover in circumstances where there is every indication that it may not be for another further six months that a final conclusion is reached. 
40.  Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks.  That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion.  That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored.  The issue, of course, is one of time.  Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
41.  The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity.  Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated.  The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003.  That has now been superseded but in this respect without any change in substance by the more recent public law outline.  I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court.  I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases.  The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing. 
42.  It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight.  Something must be done.

Lord Justice Mummery:

43.  I agree with both judgments.

Order:  Appeal dismissed