ON APPEAL FROM THE HIGH COURT OF JUSTICE
EXETER DISTRICT REGISTRY, FAMILY DIVISION
HHJ Tyzack QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
SIR STANLEY BURNTON
Christopher Sharp QC and Ms Penny Ireland (instructed by Somerset County Council) for the First Respondent
Ms Janet Bazley QC and Ms Bridget McVay (instructed by Butler & Co solicitors) for the Second Respondent
Ms Susan Campbell QC and Ms Jacqueline Ahmed (instructed by Kevin Shearn Family Law Practice Solicitors) for the Third Respondent
Ms Kathryn Skellorn QC (instructed by Neil Griffin & Co) for the Fourth Respondents
Hearing date : 5 June 2014
Crown Copyright ©
Lord Justice McFarlane:
"both children would be likely to suffer significant harm if living with the mother and [maternal grandmother] because of it being likely that they would become caught up in the emotionally destructive atmosphere of [maternal grandmother's] home in which false allegations have been made by the mother against the father and which have been completely and immediately accepted, uncritically and unquestioningly by [maternal grandmother] and reported as fact to the police."
The judge found that this was a potentially toxic atmosphere for these children to live in and that those circumstances therefore met the threshold criteria.
Hearing: 20th March 2013
'Q: Can you assist the judge as to why the CPS came to that view?
A: They were unhappy with the ABE interview which covered the main original offences. They were also unhappy with [mother], due to her behaviour when [father] was arrested for the second time for the breach of bail condition.'
'What the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother's head.'
'Let us have a look at the threshold together. … Then paragraph 4, the harm, they say, is emotional harm in relation to both children, and actual physical in relation to W and risk of physical in relation to R. Well now that must go. Any suggestion of actual physical harm or risk of physical harm, in the light of what the police are now saying, that is knocked out, surely, is it not? Does everyone agree with that?'
The judge then further queries the basis upon which the local authority could establish the allegations emanating from the mother which underpin the proposed threshold criteria:
'Well I think that, for myself, how it can be proved, in relation to a lady who within minutes of getting to a police station withdraws her allegation that she has been kidnapped there by the father, and is observed on the DVD at the police station kissing and cuddling him. That is what I am told by a police officer on oath this afternoon. How then can the local authority bring a lady like this into the witness box and say to a court, "We want you to believe this lady on a balance of probabilities?" At the moment, as I see it, I do not see how it can happen.'
'At the moment, the evidence is incomplete. I entirely understand the court's desire to actively case manage this case, which is clearly a difficult case to manage. However the evidence is incomplete. All of the parties agree that one of the most important aspects which is required is the psychiatric evidence of Mother, and whilst I can understand that the court is concerned at the current state of the case, I would respectfully submit that understanding of the case will improve significantly after that report has been prepared.'
"Indeed, the breach of bail allegation, of course, was not pursued either, in the light of the fact that the mother retracted that fact that she had been abducted by the father in his van and brought to the police station; that turned out to be a pack of lies, it would seem."
"…even a twelve year old person would know what is happening if a child is being sexually abused or not. And even a twelve year old would be able to say in an interview if it had happened, how it had happened and when it had happened. The mother had an ample opportunity in the hours of her ABE interview to make clear, if indeed it had been the case, that W had been sexually abused, and it is that that the police were concerned about in the notes, as everybody will be able to read for themselves in due course."
"Another thing I want to say in my judgment is that I am very concerned indeed to have heard from the police officer about the fact that the mother has made allegations then retracted them, has made allegations of a serious kind about sexual abuse, and then it transpired that they were not really allegations at all. What I am concerned about is that this child is living, or the children are living, it is not really apply to R quite so much, but these children are living in a home in which such allegations are being made and I was particularly concerned to read that it was the grandmother who prompted the mother to make the allegations in relation to the sexual abuse matters. Now, that leads me to be concerned that the mother, who is said to have a mental age of twelve, is living with this boy of ten in which she believes in her mind that serious things have happened. I am therefore directing that the mother must not be alone with either of these children without there being supervision."
"…what I need the local authority to tell me at [the next] hearing is what they are pursuing by way of threshold criteria at the moment, because reading the police documents that I read today, it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case. It seems to me unjustified and disproportionate at the moment for there to be 5 days of court time made available in July....because, as I say, at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher than this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps to file further threshold documents."
"I have to say that for two pins I very nearly removed these children today from the grandmother's care, and even if they could not have gone to the father would have invited the local authority to have placed them in foster care. I came very close to that indeed today, and I want everyone to know that, because I am sufficiently concerned about the placement of these children as to what influence they may be receiving from the grandmother and the mother, and these children need to be protected from that."
"…it seems to me that the father can legitimately say in this case that he has had to be on the receiving end of serious allegations when they are not now being pursued, and also in circumstances where he can say that it would appear that for some reason or another he has been manipulated."
Submissions on appeal
|HHJ:||Let me try this issue now. Call the mother.|
|F's counsel:||Well I think, my Lord, that is a problem.|
|LA counsel:||Well the problem with calling the mother is that there is an outstanding issue as to whether or not she is competent to give evidence.|
|HHJ:||Yes, but this man cannot just go on facing allegation after allegation. Where are we on this case?|
The legal context
'The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased.'
- identifying the key issues
- identifying the evidence necessary to enable the court to resolve the key issues
- deciding whether there is a real issue about threshold to be resolved.
'… it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case.'
'… at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher that this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps, to file further threshold documents'.
a) The judge based his analysis upon a police file which only he had read and which was not copied or otherwise disclosed to the parties until after the hearing;
b) Although the judge did read out the note in full of the 11th February 2013 meeting between the mother, grandmother and a police officer, the note was no more than a note. It had not been compiled by the officer who gave oral evidence to the judge. The phrase '[Mother] stated, but prompted by [her] mother that …' is capable of describing a wide range of intervention by the grandmother from mild and neutral encouragement (such as 'just tell the officer what you want to say') to overt direction of the mother (for example 'tell the officer about the time that you were tied up and the men came to assault you and W'). Without the author of the note to explain the word 'prompted' and without affording to the mother and the grandmother the opportunity to submit evidence on the point, it was neither appropriate nor possible for the judge to place any reliance on that word, and certainly not to rely upon it to the degree that he went on to do;
c) In like manner, the closing phrase in the note ('she did not say offences had been committed, though, only that she was worried they had') may have required some explanation from the author, but the need for a fair process certainly required the mother being afforded an opportunity to give her account of what, if anything, she said and what she had meant;
d) The judge proceeded with the hearing without giving those acting for the mother any opportunity to take her instructions on this new material and either to submit her account to an adjourned hearing or, at the very least, to make submissions to the judge at that hearing. The need to allow the mother to meet the point applies to any party in this situation. The fact that the mother lacked litigation capacity at that time, was a vulnerable witness and was represented by the Official Solicitor only goes to add to the weight of this factor in this case.
a) 'what the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother's head.';
b) 'How is it credible? How is any of that credible?' '[I find it] simply incredible' [that the mother had not raised the more serious matters during her ABE interview];
c) Regarding the threshold criteria schedule with respect to physical harm to W – 'Well now that must go. Any suggestion of actual physical harm or risk of physical harm, in the light of what the police are now saying, that is knocked out, surely, is it not? Does everyone agree with that?';
d) Again regarding proof of the threshold: 'How then can the local authority bring a lady like this into the witness box and say to a court, "we want you to believe this lady on a balance of probabilities?" At the moment, as I see it, I do not see how it can happen.'
e) Although it was the case that the mother had indeed retracted her allegation of being abducted and forcibly taken to the police station, the judge's description of her account as 'a pack of lies' at a stage before the mother had been given any opportunity to explain her actions and when the court knew that a psychiatric assessment of the mother was awaited, was in unnecessarily striking terms and surely would, in the context of the legal test, have struck a fair-minded observer as indicating that the judge had formed a strong and clearly adverse view of her on this issue.
Lord Justice Kitchin
Sir Stanley Burnton