COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTER COUNTY COURT
His Honour Judge Barnett
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE ELIAS
| D (A Child)
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss L. Meyer QC and Miss C. Grundy (instructed by Poole Alcock LLP) for the respondent
Mrs D. Gosling (instructed by Forshaws Davies Ridgway LLP) for the Guardian
Hearing date: 10th May 2011
Crown Copyright ©
Lord Justice Ward:
"I could see that [the Father] was unstrapping L from his buggy. L was still screaming. [The Father] told me that he had to pull L's arm as it was stuck between the fabric and the metal side of the buggy. [The Father] lifted L out of the pushchair and I took L off [the Father]. L was still screaming."
She added that the Father was "a good father willing to do anything for L" and she repeated:
"I have not witnessed anyone hurting L. I know that I have not caused any injury to L. If [the Father] has caused any injury to L then I have not witnessed that and he has not told me that he has injured L."
"I … found that, to my horror, L's arm was trapped in the stroller in between the fabric and the metal frame. The rest of L's body was struggling and thrashing around and his face was red with temper and distress. I carefully removed L's arm and gave him a cuddle. L stopped crying approximately 2-3 minutes later. [The Mother] fed him, and he fed well."
"10. I heard L screaming. I … ran into the dining room and I saw [the Father] repeatedly yanking L's arm. The pushchair was by the back wall in the dining room ... [The Father] was at the bottom left of the pushchair. He had hold of L's left wrist in his right hand and he was pulling L's arm out sideways. He did this more than one time. L was screaming. It was a painful scream. I ran in and saw this and [the Father] shouted, "Shut up, stop crying, shut the fuck up now". …
16. I just cuddled L and I was crying. I ran a bath for L and I and I undressed L. His left arm was red and he had finger marks on his left wrist. …
17. [The Father] was knocking on the door and I told him to "fuck off". Then he said, "It's not my fault, he caught his arm and I was just pulling it out." …"
"I am afraid to say that that has been a very long and a very difficult process for me. I have been asked many times by the Police, by Social Workers and by my solicitor Mr Tony Dimelow how my son came by the injuries that the Court has set out before them, in particular, how he came by his fractured arm. It is fair to say that before now I have not told them everything I know.
3. Before the hearing on 21st January 2011 I had met my solicitor, Mr Dimelow a number of times and I had begun to trust him, and he is someone who I am able to talk to. On 21st January 2011 that was the first time I had an opportunity to meet my barrister, Miss Lorraine Cavanagh. Both she and Mr Dimelow spent some time talking to me and explaining that the consequences of the findings of this Court might make in respect of L's injuries. Indeed, Miss Cavanagh spent some time making it plain to me that unless the Court was able to get to the bottom of what actually did happen to L (she indicated that that would have to be the absolute truth), then the consequences might be that I would lose L, that L might be placed with a family for adoption. My solicitor and my barrister explained to me that I would have to effectively make a choice, that choice would have L on the one side and on the other myself, being loyal to another person. I have to choose L and ever since that hearing I cannot stop thinking about what they said and how serious it was.
4. My solicitor arranged for me to meet with my barrister and with him again after the hearing and he arranged at first one consultation at his offices. I could not bring myself to go. The problem was that [the Father] had said he does not want me to go to any conferences because he was far too worried about what I might say to my solicitors and my lawyers and he would not let me go to the conference. I therefore cancelled the conference. … The solicitor kindly arranged another conference with the barrister and I was very very scared about what I might say at the conference and whether I would tell them what I knew, in addition to that [the Father] didn't want me to go and so therefore I cancelled that conference with my solicitor and barrister also. In all that time, I had not stopped thinking about what the barrister had said, that I might lose L to adoption and that somebody had to choose L or he might be lost. I have been very frightened about the consequences of telling everything to the Court, in particular the consequences to me of having told the Police, the Social Worker and my solicitor other things in the past that were not necessarily accurate or true.
5. My solicitor arranged a conference for me on 9th February 2011 whereby the barrister would come to his office in Crewe, and he indicated to me that was going to become my last opportunity as he could not keep arranging conferences for them to be cancelled. In the week before the conference I found out that [the Father] had ordered goods through a catalogue to the value of about £1,000 in the name of a friend of mine, and a number of our friends had fallen out with him about this. I had split up from [the Father] and we had separated. [The Father] however was still living at my mother's home and I had moved out and was staying with friends. Part of the reason for us splitting up was I could not stop thinking about the importance of getting to the bottom of what happened to L. In the time since L had been injured I had been asking [the Father] if there was anything that I did not know about what he had done to L (even if it was done accidentally) and he would always have a go at me for asking him that question. But [the Father] has never actually asked me if I have ever done anything to L.
6. By 9th February 2011 I was therefore not living in my mother's house with [the Father] and I had the support of my friends. I felt a bit more confident about speaking to my legal team about some of the issues and things that I was worried about. When I went to the conference I wasn't planning on telling my solicitor and barrister everything that I knew because I was too scared to do so and I have set out in this Statement the reasons why I was so terrified. But as I started to tell them things it all just came out and they were asking questions that made it easier to tell them what had happened and I demonstrated what I saw on a doll. I became so distressed and upset that I couldn't really carry on telling them very much. I could not speak any more because I was sobbing and we had to stop the conference and have another meeting a few days later to see if I could give them any clearer or better explanations about what happened. My solicitor Mr Dimelow met with me a couple of days later and I told him more detail about what I had seen and he asked me lots of questions, to clarify the order of events. Unfortunately, on that day I was so distressed by something awful that had happened the night before, which I detail in this Statement a bit further, that I could not think properly and I could not go through all the paperwork with Mr Dimelow that we had to on that day (in particular the phone records and some of the interviews). Because I was so upset about the fact that my mum was sticking by [the Father] and would not believe me and that my friends might have trouble brought to their door if I carried on saying what had happened, I was very frightened about making a decision to let Mr Dimelow tell the other parties in the Statement about what had happened. I genuinely fear that [the Father] will kill me if I tell anybody about what I saw and what has happened in our relationship, and what may have happened to L, and that feeling of being terrified I cannot get over. Mr Dimelow suggested that we bring the meeting to an end and have another conference with counsel to see if we can make a decision together as to how to deal with the information that I have given them. Miss Cavanagh came to Mr Dimelow's offices again on 21st February 2011. I have been struggling to cope with the disclosure I have made to my solicitor and to my barrister and by the time of that meeting I was regretting ever having said anything to anybody. But with the support of my legal team and their assurances that there are things that can be done to protect me, I agree that I should do my best for L and tell the Court everything that I know to make sure that he has the best chance of growing up knowing who hurt him and that his mummy did not."
Later she said:
"42. When I attended the conference with my barrister and my solicitor on 9th February, my barrister asked me about sexual violence. I was too upset to respond. My barrister asked me if I could write it down and I nodded. I was given a pen and paper and my solicitor and barrister left the room and I wrote the note that is attached to this Statement marked 'NLD1' and when I had finished it I indicated that my solicitor and barrister could come back into the room."
In that written note she sets out acts of physical and sexual violence she alleges she has suffered at the hands of the Father and how scared of him she is.
"44. I attended at my solicitor's office again on 16th February 2011. I was extremely upset and I said that I was scared and I wasn't going to Court. I was so upset I couldn't say what I wanted to say to my solicitor. He therefore asked me if I could write it down and he left the room and gave me some time to write out what I wanted to say. The exhibit hereto marked 'NLD2' is a copy of the note that I wrote and I can confirm that the contents of the note are true to the best of my knowledge and belief. I was petrified that [the Father] will try and kill me as soon as he knows that I am telling the truth about what he did to L. I remain petrified and I am struggling to cope at the moment …"
The judgment under appeal
"She need not have mentioned anything beyond the fact that conferences were held on particular dates. However, not only has the mother taken the other parties and the Court to the doors of the conference room, she has taken the reader of her statement into that room. And the journey has been undertaken more than once."
"whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material."
(1) in care proceedings the client will often be in a far more disadvantaged position in the litigation than parties in civil litigation more generally (educationally, socially, financially, frequently intellectually and often, as here, in terms of their age and experience of life);
(2) the client will never have access to private, non-disclosable expert evidence upon which to take strategically based litigation decisions, litigation privilege, being in effect non-existent in care proceedings: see Re: L (A Minor) (Police Investigation: privilege)  A.C. 16.
(3) the client's litigation position in any event will be probed by and rendered vulnerable to an opposing party, the Local Authority, in a Core Assessment undertaken prior to the commencement of the proceedings before any expert evidence is solicited;
(4) in the proceedings themselves, a wide range of hearsay evidence is regularly admitted;
(5) when judging litigation-based concepts of fairness, it is important to remember that privacy is frequently invaded by the need to disclose medical records and to be subjected to wide-ranging assessments.
Lord Justice Rimer:
Lord Justice Elias: