England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANCASTER COUNTY COURT
(MR JUSTICE JACKSON)

		B4/2013/1061 B4/2013/3257 Royal Courts of Justice Strand London, WC2A 2LL
		17 February 2014

1. LORD JUSTICE RYDER: This is an application for permission to appeal the findings of fact made by Peter Jackson J on 1 March 2013 against a young man, who I shall call A. The findings have been summarised in a schedule to an order of the same date. That schedule is taken directly from paragraph 64 of the judge's judgment. The local authority resisted the appeal and invites this court to refuse permission.
2. The consequence of the order made on 1 March 2013 is that the judge approved a care plan for adoption presented by the local authority and made a placement order in respect of a baby, who I shall call B. The essence of the proceedings was that B's mother was unable to care for the child, but the maternal grandmother wished to do so. After some initial disagreement between them, the maternal family put a joint position to the court that they wanted to care for B with grandmother taking the lead role.
3. The problem identified in relation to that position was the fact that in the maternal grandmother's household lives a young man, A, against whom allegations had been made in 2010 of sexually inappropriate behaviour with three brothers who were his cousins by marriage. I need not set out of the detailed circumstances of the two families. They were dealt with in the judgment below and they do not give rise to any decisive point in this appeal.
4. The only realistic options before the judge were an adoptive placement for B, that is care and placement orders, or a return into the care of the maternal grandmother with mother and A living in the household.
5. The local authority's position that was that if A had been involved in sexually inappropriate behaviour with his cousins, then it was not safe for B to live there. They also held to the professional opinion that, in any event, the maternal grandmother's home was not a placement that would be in B's best interests.
6. An independent social worker came to the opinion that if it was not proved that A had been involved in sexually inappropriate behaviour, then with some considerable support the maternal grandmother could provide a home for B. The importance of the truth or otherwise of the allegations made against A was, therefore, central to the hearing in March 2013 which took place over eight days.
7. During the hearing, 13 witnesses gave evidence, including A. The three younger cousins did not give evidence and were not cross-examined because of an earlier case management decision made by the judge, which looked very carefully at the reasons for and against such a course. In the event, the judge decided against it and he was not appealed. That issue is not, therefore, before this court.
8. There is also an issue as to jurisdiction relating to whether an intervenor, A, can appeal findings of fact. That issue was adjourned out by a different constitution of this court on 11 October 2013 because it became clear that if the maternal grandmother obtained legal aid she could pursue the appeal on behalf of A, having an identity of interest with him. This court has not been called on decide the jurisdiction issue identified by Elias LJ at Re: H (A Child) [2013] EWCA Civ 1311.
9. Turning then to the submissions of the parties. We are indebted to Mr Feehan, QC for his detailed and, if I may say so, well crafted oral submissions on behalf of the maternal grandmother and A and to Miss Cross, QC and both teams of junior counsel for their excellent written materials.
10. Mr Feehan has pursued two themes before the Court; a) that the judge was plainly wrong to rely on the ABE interviews of the three cousins when that was the only evidence of the allegations against A and, b) that although this is a case that precedes the recent jurisprudence of this court in Re: B-S, and Re: W and Re: H, the essence of a proportionality evaluation of the options is missing. In fairness, Mr Feehan has conceded that the second theme falls if the first is not found in his favour.
11. I shall, therefore, concentrate on the first theme. That theme which necessarily dominates this application was that the one option before the judge was for adoption of B with the maternal grandmother. There was no question that A could or should move out of that household. In attractive submissions, Mr Feehan took the Court through the transcripts of the DVD records of the ABE interviews of each of the three cousins and highlighted the flaws in those records which he submitted are sufficient to render the content unreliable. If he is right, then the judge was wrong to place reliance on any part of the same and the findings of fact would then be unsafe.
12. To understand the context of that submission, one has to be conversant with the 2007 guidance "Achieving Best Evidence in Criminal Proceedings", which is the multi agency best practice guidance that makes strong recommendations to those presenting the evidence of children to courts, both family and criminal alike.
13. There is then a series of decisions of this court that highlight how a failure to follow that guidance can lead to fatal contamination of the children's evidence. Mr Feehan took this court in particular to TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children's materials that no reliance could be placed on the same. Mr Feehan highlighted the significant similarities between this appeal and Re: TW and invited this court to come to the same conclusion.
14. In addition, he highlighted a line of authority on the demeanour of witnesses which caution the Court in deciding credibility issues in its reliance on demeanour alone. The point is obvious. What is the circumstantial material and does it tend to suggest credibility and reliability, or not, as the case may be?
15. In deconstructing each of the interviews of the three cousins, Mr Feehan has identified varying significant failures. I can summarise them in headline form, but it is important to understand that he took the Court to the detail in the interviews themselves to substantiate his submissions.

a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.

b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys' family circumstances, including the house in which it was said the abuse occurred.

c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:

(i) no understanding of the difference between truth and lies and/or the effect of telling lies on the part of each of the cousins.

(ii) no rapport or ordinary conversation so as to allow the boys to settle and gain appropriate professional trust in the interviewers.

(iii)no free recall or an opportunity for spontaneous recall of what it is that the boys reflected upon.

(iv) seriously leading questions, both open leading questions and closed leading questions, in both cases tending to suggest either that an answer must be known to them or indeed, what the answer should be.

(v) a confusion between asking the boys to recall what has happened and what they had previously told their mother had happened.

(vi) inaccurate rehearsal or summarising of what the boys had said in interview.

16. Mr. Feehan was also able to point to the fact that these boys had never repeated the allegations in any other environment or since interview, despite one of them being engaged in some significant therapeutic work. Finally in the context of the proceedings, A was described favourably by the judge, despite some of his evidence being found to be unreliable.
17. The failings in the ABE interview process are very troubling, but no doubt with the same clarity with which Mr Feehan has addressed this Court they were put to Peter Jackson J who analysed those failings with some care. The judge likewise considered the position of the pre-interview discussions with the relatives. It should be remembered in that regard that the judge heard all of the adults who were also made available for cross-examination.
18. Given the failings which were apparent, the judge entered into the task of highlighting the most worrying elements of the allegations made by the boys in their interviews. He did so at paragraph 49 of his judgment. The passages relied on include the graphic use of language by one particular boy who was the youngest about his experience of what happened. The judge found that material to be cogent despite the serious failings of the interview process. In essence, the judge was able to be satisfied that there was a core of truth in what had been described in the interviews.
19. That is a position to which a judge is entitled to come unless the whole of the interview process is so flawed that there is nothing reliable that emerges at the end of the same. Having regard to the way the judge set out at paragraph 49 what he relied upon, his impression of that boy's evidence is something that it would be very difficult, if not impossible, for this court to undermine. Furthermore, there was nothing in the conduct of the adult relatives which led the judge to conclude that the boys had been coached or contaminated in their discussions with them.
20. Mr Feehan criticised the judge for not working through the difference between the circumstances in the house where the abuse was said to have occurred and the general effect of the lack of supervision on these boys. That is a potentially good point in the sense that if the boys are well supervised in a house which is very small, how could these events have occurred? However, the relative impressions of the evidence of the boys in interview and the adults was a matter for the trial judge. He was entitled to come to his own impression from the evidence he heard as a whole. In that regard, he has a significant advantage over this court and the point at its highest is a good cross examination point..
21. At paragraph 63 of the judgment, the judge carefully discusses the evidence from the family about their circumstances, the effect of the flawed interviews and that part of the interview process that led him to identify the cogent material upon which he relied. Finally, he considers the position of the boys and the adults and reminds himself that it was not for A to prove anything in the proceedings before him.
22. Insofar as there is a submission that a judge hearing evidence from a witness is entitled to disagree with the content of the same and might thereby come to a conclusion which is not otherwise proved by the local authority, I do not consider that to be a reversal of a burden of proof, as submitted by Mr Feehan. It is a part of binary fact finding in a quasi inquisitorial process where the judge has considered what findings he can or cannot come to. At paragraph 63, the judge puts his finding into context and describes and explains why it is he found the younger cousins to be reliable enough. At paragraph 64 of his judgment, he sets out the findings that he makes. In my judgment, the judge was not wrong in the exercise that he undertook.
23. If I take issue with anything at all, it is in respect of one part of one sentence at paragraph 64 of his judgment where the judge summarises what has gone before and says:

"He attempted to perform anal sex upon K, though it is not clear whether there was any significant penetration."

24. The clause: "it is not clear whether there was any significant penetration" must, as a matter of law, read "I make no finding on the evidence that there was penetration" and accordingly there was no finding on that issue at all. That phrase should not have found its way into the schedule of findings that presently appears in the order, and to that extent the order should be corrected.

For these reasons, I would refuse permission and dismiss the appeal.

25. SIR STANLEY BURNTON: I agree.
26. LORD JUSTICE LEWISON: I also agree. Mr Feehan's skillfully developed submissions, which had I been the fact finding tribunal, I might have found fairly persuasive. But this Court is not the fact finding tribunal.
27. It is only in an exceptional case that an appeal court can interfere with the findings of fact of the trial judge. Whereas here the case depends not on documentary evidence but on a judge's evaluation of oral testimony, those exceptional circumstances are most unlikely to arise.
28. The judge was well aware of the deficiencies in the ABE interviews. He addressed all the criticisms which Mr Feehan cogently put before him and again repeated before us. Balancing the different factors is quintessentially a matter for the trial judge, particularly where, as here, the trial judge heard evidence from a number of witnesses.
29. I have not been persuaded that the judge's conclusion was so far outside the permissible range for a fact finder that this court can or should interfere. Accordingly, permission to appeal will be refused.