England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION
Mrs Justice Theis

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/11/2016

Lord Justice McFarlane :

1. Over the course of five weeks in the summer of 2015 Mrs Justice Theis conducted an extensive fact finding hearing into allegations of sexual abuse within three inter-related families who, until the start of the proceedings, mostly lived in very close proximity to each other. The proceedings comprised three separate sets of care proceedings relating to six children in all. By the agreement of the parties, the judge conducted the fact finding process in one rolled-up hearing to which an additional four adults were joined as interveners in order to meet allegations that had been made against them. Subsequently each set of care proceedings was conducted separately in order to determine the best welfare outcome for each of the individual children.
2. At the conclusion of the fact finding hearing Theis J handed down an extensive judgment which covers 90 pages and runs to over 400 paragraphs during the course of which she made many detailed findings of sexual abuse and other forms of abusive parenting against a significant number of the members of this family group. The respective care proceedings then continued through a process of further assessment to a stage when, at different hearings in late 2015 and early 2016, Theis J made final public law orders with respect of each of the children.
3. On lst February 2016 full care orders were made with respect to the two children of Mr and Mrs A (as I will call them) a boy and a girl who were, at the time, aged 15 and 13 years.
4. On 11^th February 2016 the judge made final care orders and, in each case, an order authorising the local authority to place for adoption with respect to the three children of Miss B (as I will call her) who are two girls and a boy who ranged in age from a few months up to three years. Miss B is the daughter of Mrs A from an earlier relationship.
5. Very promptly Mr and Mrs A on 22^nd February and Miss B on 1^st March issued Notices of Appeal against the orders that had been made with respect to their children. Although the three potential appellants were plainly concerned by the final orders that had been made, the primary focus of their appeal was to challenge the findings of fact that had been made against them.

The impact of confidentiality on the appeal process

6. For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
7. The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge's highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
8. I considered the applicants' applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested "Grounds of Appeal" put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19^th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.

19^th May 2016 hearing

9. At the directions hearing held before me on 19^th May a number of different strategies were identified each aimed, either individually or in combination, at assisting the applicants to identify which specific findings of fact they wished to challenge and, in short terms, the basis for each challenge. In summary these interventions were as follows.
10. At the hearing Miss B had the assistance of an intermediary and it was anticipated, as turned out to be the case, that she would continue to enjoy assistance from an intermediary at each subsequent hearing. It was hoped that Mr and Mrs A might also enjoy support from an advocate or other service in the future.
11. Mr and Mrs A had already been in touch with the Bar Pro Bono Unit and Miss B was intending to make contact with them that week. The court also undertook to make direct contact with the Pro Bono Unit (and did so) in the hope of encouraging them to take on this case.
12. Solicitors for Miss B and solicitors for Mrs A had indicated a willingness to provide office facilities so that the applicants might be given access to the full fact finding judgment in supervised circumstances.
13. In view of the assertions made by the applicants to the effect that during the hearing they had not been told of the contents of key evidential material in the court bundle, the former solicitors were directed to prepare statements explaining the process by which their respective clients were taken through the relevant documentation.
14. Directions were made for the applicants to prepare skeleton arguments together with a short document setting out the basis of their complaint about the failure of their legal representatives to disclose key evidential material to them.
15. The case was then adjourned in the hope that the next hearing in early July would be the effective final hearing of the permission application.

28^th July 2016 hearing

16. Unfortunately, the timetable leading to a hearing on 7^th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28^th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
17. It was also apparent that the limited time that had been available to the applicants at their respective solicitors' offices had been insufficient for them to engage with the detail of the judge's judgment so as to be able to identify potential grounds of appeal.
18. In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors' offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.

9^th September 2016 hearing

19. The final hearing of the permission to appeal applications took place before me on 9^th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J's decision.
20. It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority's case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority's case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children's guardian submit that there are no arguable grounds of appeal.
21. At the conclusion of the 9^th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.

Mr and Mrs A: Permission to Appeal

22. The original Grounds of Appeal filed by Mr and Mrs A with the Notice of Appeal were in short and general terms. They asserted that the judgment was based on errors of fact generated by misleading evidence presented by the local authority which, in turn, was based on historic and unreliable information. They denied that their children had been at any risk of harm. They complained that they had not been provided with copies of any of the statements made against them or they had been properly prepared for cross examination on the contents of that material. They also complained that their children had wanted to be separately represented but that this was not permitted.
23. Subsequently, in a skeleton argument dated 16^th July, Mr and Mrs A set out some fifty Grounds of Appeal supported by nearly two hundred pages of exhibited documents. The "Grounds" set out in this skeleton argument are not, in reality, potential Grounds of Appeal. Save for the procedural points which are repeated from the original "Grounds", the document is in the form of a narrative statement which simply gives Mr and Mrs A's account of various matters that have occurred over the years with respect to the family generally, and their children in particular. There is no reference to or engagement with the evidence heard by Theis J or the judge's conclusions. It was because of the unfortunate inadequacies of this document, and the lack of sufficient time for the applicants to be exposed to the judgment, that the hearing on 28^th July had to be adjourned. It was explained to Mr and Mrs A, once again, that what was required by the court was a list of the facts found by the judge which they wished to challenge and the basis for submitting that the judge had been in error in making each of the findings which were to be challenged.
24. In a final document dated 29^th August Mr and Mrs A added a further 119 points or cross references to the judgment upon which they sought to rely in support of their application for permission to appeal. Again the document is in narrative form. It seeks to raise a number of points about the quality of the couple's representation before the lower court and the difficulties that they had in engaging with the court process. Despite the number of points that are made in this document, only four specific findings of fact made by the judge are identified as being challenged. That position has to be measured against the judge's findings against Mrs A, who had been involved in this family throughout and, to a lesser extent, Mr A who has joined it more recently. In particular, Theis J found that Mrs A "has been shown to be a dishonest, manipulative and cynical individual whose default position is to support her own interests while appearing to be supporting someone else." That finding is not challenged. In addition, Theis J's judgment records that Mrs A changed her position during the hearing so that she stated that she was accepting the majority of the findings.
25. In response to Mr and Mrs A's final position, the local authority, rightly, point out that many new issues have now been raised in this final document and they are issues that could not possibly have been considered by the trial judge. The position now asserted by Mr and Mrs A in their skeleton is in contradiction to their position at trial which was, as I have indicated, largely to accept the factual allegations relating to them. The local authority point to the fact that following the fact finding judgment in August 2015, Mr and Mrs A gave no indication of any intention to appeal and Mrs A, in a witness statement, told the court "I accept the judgment" and Mr A said "I accept what the judge has said about me".
26. In terms of Mr and Mrs A's criticism of the way in which the hearing was conducted, the local authority submits that their account is simply not correct. For example the couple now assert that they "only heard a handful of witnesses" whereas records indicate that they were in court for at least part of seventeen or eighteen days of the twenty-seven day hearing.
27. This is a permission to appeal application. Such applications are routinely dealt with on paper with the judge's conclusions expressed in no more than a dozen sentences. I therefore propose to say no more as to the merits of Mr and Mrs A's application for permission to appeal. It is unnecessary to do so and, in order to maintain the confidentiality of the first instance proceedings, it would be wrong to descend to any greater level of detail. The shortness of this judgment, however, does not reflect the substantial amount of detail to which I have been exposed over the course of three hearings and, again, in preparing this judgment. I have considered each of the points that Mr and Mrs A have raised before coming to my conclusion.
28. Having undertaken the process that I have described, I am satisfied that Mr and Mrs A have had a full opportunity to present their application for permission to appeal as effectively as possible. As a result of that process, the reality is that the main thrust of the judge's findings against them is not challenged. Indeed, the findings were very largely accepted during the first instance hearing both before they were made and thereafter. The points about procedure are not substantiated by the other information available to the court and, in any event, because of the couple's stance with regard to the main body of allegations the procedural points go nowhere.
29. To put matters another way, the fair trial points relating to the fact-finding, which are at best peripheral and which are not substantiated by accounts of the proceedings from other sources, have to be viewed in the context of findings which were largely accepted by these applicants before the judge and are, save for two or three, not even challenged in the proposed appeals. On that basis, it is impossible to see that there is any ground for an appeal against the findings of fact. Against that background, despite taking full account of the positives that can be said about Mr and Mrs A, and despite the premium that is to be put upon children being brought up within their own family, the findings of sexual abuse and failure to protect were so significant and all pervasive that it is very hard to contemplate that any judge could have chosen a different outcome for these two children other than the outcome chosen by the judge. At the end of this process I am absolutely clear that the proposed appeal has no prospect of success whatsoever and falls to be dismissed.

Miss B's Application

30. It is impossible to approach any consideration of Miss B's case without a very significant degree of sympathy for her. As one of the older daughters of Mrs A, Miss B was herself a victim, as the judge found, of sexual abuse within this family from a young age and throughout her childhood. At one telling part of her recent Skeleton Argument she says this:

"I was robbed of my childhood and self-esteem. I did not know how to say 'no' or how to assess a situation.

I feel that the same local authority that allowed my childhood to be ripped apart and taken away from me, turned on me and removed my children without considering what help could have been offered to me to enable me [to] safeguard my children at the time."

The judge described Miss B as a very damaged young person, who had been the victim of serious sexual assaults from a young age and who had been brought up in a home (Mrs A's home) where her physical and emotional needs were severely neglected. The risk to Miss B's young children arises from the judge's finding that she has had, and maintains, relationships with one or more of the men who have been found to have been sexual abusers of other children. It is a finding of 'failure to protect' as opposed to more direct abuse. In that regard the judge found that Miss B had a well-developed ability to lie and to deceive which was strongly driven by her own very raw emotional needs.

31. Miss B's initial Grounds of Appeal, like those of Mr and Mrs A, were in very general terms. Since then she has plainly worked hard progressively to develop them as, over time, she has been able to have greater access to the documentation. Her final Skeleton Argument dated 29^th August runs to 31 paragraphs and seeks to make detailed observations upon specific parts of the judgment. Much of it is, however, a narrative account of her 'case', as opposed to a direct challenge to findings made by the judge.
32. In addition to these more general matters of commentary she raises the following specific complaints:

a) That the same children's guardian acted for her three children and for the two 'A' children;

b) That she was not given the chance to demonstrate her capacity to care for her children at a residential assessment unit; and

c) That work, which is to be offered to her in the future for her own benefit from the Lucy Faithfull Foundation, was not given to her at a time when it might have improved her ability to care for her children.

33. Before this court, as it did before Theis J, the local authority has accepted that, in the past, it has failed this family and, in particular, Miss B when she was a child.
34. Insofar as the Skeleton Argument sets out narrative accounts of past matters, as with that of Mr and Mrs A, these cannot amount to a 'ground of appeal' against the judge's decisions. Miss B had the chance to set out her account of matters during the hearing and gave extensive oral evidence to the judge. Any challenge now must be focussed on what the judge decided and must be backed up by material which demonstrates that there is a reasonable prospect of demonstrating that the judge was wrong in one or more of the conclusions to which she came.
35. The specific points raised are satisfactorily answered by the local authority as follows:

a) The question of the guardian representing multiple children was raised at the start of the court process by the judge. No party applied for a different or additional guardian to be appointed. At no stage thereafter was any application made by or on behalf of Miss B for a separate guardian to be appointed for her children;

b) No professional recommended a residential assessment and no application was made on behalf of Miss B for a residential placement;

c) The firm evidence from the Lucy Faithful Foundation was that work with Miss B could not take place at this stage, but could be offered to her after the proceedings had concluded.

Miss B was not in a position to disagree with the local authority account on these three points and, in any event, in the light of what the local authority say, it is apparent that there is no prospect of the proposed appeal succeeding on any one of these points.

36. The central point in the case with respect to Miss B and her children was the potential for the children to be at risk because of the contact that Miss B continued to have with men who the judge found, and, more importantly, Miss B knew, were sexual abusers. Before the judge Miss B accepted that she had put her children at risk as a result of her relationship with three named men. The all-important question was whether she could now be trusted to act in an altogether different and safe manner in the future. The judge, without attaching blame, and with a deal of sympathy for Miss B who is a victim of long-term abuse, concluded that her vulnerability to be drawn into such relationships again in the future remained unchecked and her accomplished ability for dishonesty and deception rendered it unsafe for the children to be placed in her care.
37. Despite the sympathy that I, in turn, have for Miss B, none of the various points that she has sought to make comes close to establishing grounds for concern that Theis J may have been wrong in her decision on this central point.
38. The observations that I have made at paragraph 29 apply equally to Miss B's application, notwithstanding that the plan for her children is adoption as opposed to foster care. Draconian though it undoubtedly is for children to be removed permanently from parental care, particularly to adoption, on the facts as found by the judge that outcome was required as a result of the court having to afford paramount consideration to each child's welfare throughout their lives. Although the judge's orders undoubtedly interfered with the family life arrangements of these two family groups, the judge did not act in breach of the parties' rights to respect for family life under ECHR, Art 8 because the orders made were, in the light of the findings of fact, necessary to meet, and proportionate to, the need to protect the children.
39. In all the circumstances, I am clear that Miss B's proposed appeal does not enjoy any prospect of success.

Conclusion

40. For the reasons that I have now explained, I refused permission to appeal in both cases on 9^th September 2016.