England and Wales Family Court Decisions (High Court Judges)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/11/2014

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Mrs Justice Theis DBE:

Introduction

1. These care proceedings concern 6 children from 3 families. I decided all three cases should be heard together, due to the many common factual features that underpin the threshold criteria relied upon by the local authority (LA) in each case. There was no opposition to that decision. The cases have become known as D, E and F. All of the children subject to these proceedings have since May 2014 been placed away from their birth families with foster carers.
2. The fact finding hearing is listed on 24 November with a time estimate of four weeks.
3. There are parallel criminal proceedings following a series of arrests in May. Those arrested included the mothers in each of the care cases. The allegation being that they had been involved in the serious sexual abuse of Z, who it is alleged was subject to sexual assaults, forced drug taking and trafficking for sexual exploitation.
4. In the end two of the mothers (JE in the E case and AK in the D case), together with five men, have been charged with a series of serious sexual offences and are standing trial in January 2015 in the Crown Court, where the hearing is estimated to take nine weeks. JE and AK have been remanded in custody. The criminal hearing was originally fixed in September 2014. In July I fixed the fact finding hearing for November, the intention then was for it to follow the criminal hearing.
5. In early September 2014 the criminal trial was adjourned until January 2015, due to issues concerning late disclosure.
6. The third mother (JC) was not charged with any criminal offence. She is the sister of the mother in the R case and the LA relies on the close relationship between the two families.
7. One of the matters relied upon by the LA are the allegations made by a 16 year old girl, Z, that she was drugged, sexually assaulted and trafficked for sexual exploitation by a number of individuals. Her allegations directly implicate the mother's in the E and D case and there are evidential links with the F case. As part of the parallel police investigation Z has made a number of statements and taken part in 6 ABE interviews. These are relied upon by the LA in the family case. Z's account is challenged by the mothers in the R and D case. They have made an application for Z to give oral evidence in these proceedings so that they may cross examine her.
8. A significant part of the LA's case regarding the threshold criteria relates to the future risk of significant harm as a result of the alleged sexual abuse of Z which was, the LA say, at the very least, known about by the mothers in the D, E and F cases. There is also other evidence relating to domestic abuse, serious neglect and drug taking that the LA rely on.
9. Z is a significant prosecution witness in the criminal proceedings listed to be heard in January 2015. Within those proceedings she has been assessed by an intermediary and a detailed programme of support is set out in the intermediary's two reports to enable her to give evidence in those proceedings. A ground rules hearing has been fixed within the criminal proceedings in mid December. Z has made it clear she wishes to give evidence in the criminal proceedings as she wishes to see justice done. Z is currently in the care of X local authority (XLA).
10. Once it became clear in these proceedings that there was likely to be an application for her to give oral evidence various steps have been taken to assess Z.

The evidence

11. Z was first informed about these family proceedings in early October by one of the police officers, who she is said to have a good relationship with. The officer explained to Z about these proceedings and the possibility of her giving oral evidence using an explanation that had been agreed by the parties in this case. Her response was to say 'No way I'm not. That means I'd have to go two times and remembering about them makes me sick'. She asked whether the family case concerned her siblings, when she was told it didn't she repeated her refusal to give evidence in more explicit terms. The police officer reports that she discussed with Z the special measures that could be put in place for her to give evidence, but she stated she could not put her mind to it. Z telephoned her mother to ask for her advice and was heard to say that she felt too much was being asked of her.
12. Shortly afterwards Z was assessed by a psychologist. One of the matters the psychologist was asked to assess was whether Z was able to give evidence in the family case and then again in the criminal case. The report describes Z as 'an extremely suspicious person who attempts to gain control of situations' and described her engagement with the assessment as 'negative and variable'. It is clear from the assessment she is deeply distrustful of social services and sees them as the reason why she is separated from her parents against her wishes.
13. The psychologist was not able to complete the psychological tests she wished to undertake, due to Z's refusal to answer the questions. From her assessment she stated 'Psychologically Z presents as a person who has a limited ability to concentrate and attend within situations, especially in situations that she does not find rewarding or does not see the necessity of, and of course, situations that she wishes to avoid psychologically because of distress that the memories potentially cause to her. Z appears to be psychologically a person who does not necessarily comply easily with authority and there is a possibility that she could, in my opinion, present as angry and disinterested in a trial situation if she is faced with the recollection of trauma.....I consider that it is highly likely that when Z is distressed she is more likely to respond in an antagonistic way and it is likely that she would in such a situation withdraw or become aggressive or antagonistic, rather than cope with underlying distress and psychological difficulties. This psychological aspect of her functioning, in my opinion, would affect her ability to give evidence and deal with a Court situation. Furthermore, she does have a history of emotional and behavioural difficulties described within her records and if Z is under a situation of acute pressure or distress her behaviour may become inappropriate and disruptive. Such a situation would clearly be detrimental to Z psychological functioning and detrimental in terms of her ability to deal with the Court case.'
14. In answer to the question about whether Z is able to give evidence initially in the family court and then in the criminal court she states 'This again is difficult to answer given the information that is available to me both from the background papers and from this assessment. However, I am of the opinion tentatively that Z, with support, is strong enough to give evidence in both courts, but close monitoring of her psychological stability will be needed. I am of this opinion because Z presents as extremely determined to see justice done in relation to her alleged abusers. In my opinion she needs to be enabled to keep her focus on the issue of her receiving a degree of justice in order to facilitate her continued co-operation.' It is of note that she did not discuss giving evidence in both cases directly with Z during the assessment.
15. Following receipt of this report further directions were made. These included a further report from the intermediary regarding Z giving evidence in the family proceedings, the parties who wished to cross examine were to file a list of key topics they wished to ask her about and XLA were to file an assessment addressing the Re W considerations and setting out its view as to whether Z may, or should be, required to give evidence in the family proceedings and, if so, what special measure should be put in place.
16. The social worker from XLA filed a statement dated 4 November. She is a senior social worker with experience in this type of case and investigation. In addition to seeing Z she also had discussions with Z's current social worker, team manager and staff members of the unit where she is currently residing. She met with Z on two occasions, 28 October and 3 November. She was informed that Z is the 'most settled' she had been for several months and is making slow progress, particularly in terms of building tentative attachments to members of staff, particularly her key worker.
17. The social worker's intention had been to meet with Z for two periods of 3 hours to assess her, however due to Z's volatile behaviour she only managed to spend 1 hour in her company in total over the two sessions. She said 'Although Z is sixteen years old, and can present as being a mature young lady, this behaviour is short lived and she will quickly display behaviour which is characteristic of a much younger child if she deems she is not getting her own way'. She said the second visit was more 'successful' in that she 'had a full conversation about her role and what was being asked of her, this too quickly deteriorated and she refused to speak to me becoming rude and aggressive. I am not confident she fully understands the court process and what it means for her, nor am I confident that she will be able to withstand the rigours of cross examination.'
18. In her conclusions she states 'Z is currently experiencing a high level of stress. She admits to being very angry and has stated, in no uncertain terms, that she will not give evidence in the family hearing....Z is vehemently opposed to giving evidence in the family case. If Z gives evidence in the family law hearing, prior to the criminal case, it is the view of the local authority with responsibility for Z, that this puts her in grave danger and at risk of significant harm, it is felt that the risk to Z and potentially others is extremely significant and could lead to her being seriously harmed or worse.' She refers to the concerns about risk of Z absconding, particularly if there is some distance to travel to enable her to give evidence. She continues 'Z is an emotionally traumatised young girl. Her level of volatility and challenging behaviour evidences this. She has previously received treatment for psychiatric difficulties and she is especially vulnerable in this area....In my professional opinion Z presents as one of the most severely abused children I have met within the area of Child Sexual Exploitation. The majority of the trauma which she has experienced is currently unknown to professionals and the potential for re-traumatising her by placing her as a witness is significantly high and could have lifelong emotional consequences for her...I am of the view that Z should not give evidence in the family hearing and that to call, her as a witness would place emotional stress upon her which would be significantly detrimental to her mental health and could potentially destabalise the current placement.'
19. The social worker gave oral evidence about two matters. Firstly to deal with a matter raised by the court about the views of those with parental responsibility for Z. XLA was able to arrange at short notice for the allocated social worker to visit the parents with an interpreter. They do not support Z giving evidence in these proceedings or, it appears, in any proceedings. Secondly, the social worker gave further details about how she had explained these proceedings to Z and Z's reaction. She produced a diagram she had drawn to explain to Z the purpose of these family proceedings. She said Z's reaction was to say it was not her job to help social workers, she would not give evidence and could not be made to give evidence, even if the judge said she should. The social worker accepted that Z is very anti social services, who she feels brought her into care by tricking her parents to sign papers. On each occasion when the suggestion of her giving evidence was discussed she said Z became very angry, was shouting and left the room. She was asked further about the risk of absconding, she said Z is only allowed out of her current placement for limited periods and the further away she may have to travel from the unit to give evidence increases the risk of absconding, she said 'I am concerned about her emotional maturity or reserve to give evidence, she is very vulnerable.' No party sought to cross examine the social worker.
20. There are three reports from the intermediary AC, dated 30 July and two dated 5 November. I wish to make it clear it has been deeply unsatisfactory that the police or CPS did not reveal at an earlier stage the existence of the two intermediary reports commissioned by them. The prospect of Z giving evidence in these proceedings has been actively considered for a number of weeks, at hearings where the police and CPS have been present. The July report was only revealed in the list of documents considered by the psychologist in her report dated 20 October. The existence of the 5 November report only became apparent the day before this hearing, when the LA sought further information from the intermediary.
21. The main report in July (in the context of the criminal proceedings) concludes that Z has the communicative ability to give evidence at court, however there is a risk of increased fatigue and possible frustration and a difficulty in Z maintaining attention. She can have difficulty in regulating her emotions and can experience high levels of anxiety and agitation, regular breaks would be needed for her evidence. She recommends the use of special measures which include admission of her videoed evidence as evidence in chief, cross examination via a video link facility and adherence by counsel to communication and questioning guidance provided by the intermediary (for example avoiding lengthy multi part questions). She also outlines the pre-trial support and preparation that is required and the need for a consistent team of professionals to support her.
22. In her report dated 5 November, filed pursuant to the direction made in the family proceedings, she raises a number of matters. These include the emotional impact on Z of having to give evidence twice and the risk that poses to Z's mental health, including feeling that she is being required to repeat information she had already given. She also refers to the demands giving evidence twice will place on Z, she may feel 'overloaded' by a large number of demands being made in a short space of time and the lack of available consistent support being available for Z to support her giving evidence in the family case.

The Law

23. There is no real dispute regarding the applicable legal principles. Guidelines in relation to these applications were provided by the Supreme Court in the case of Re W [2010] UKSC 12.
24. I have also been referred to a number of other cases, notably Re A [2012] UKSC 60, Re (A child) [2013] EWHC 1694 (Fam), Re J (A Child: disclosure) [2012] EWCA Civ 1204, Re G and E [2011] EWHC 4063 and Re J [2014] EWCA Civ 875. The LA has provided a very helpful analysis of the relevant features of each of these cases and how they relate to the issues in this case.
25. In addition the Family Justice Council ('FJC') issued guidance entitled 'Guidelines in relation to children giving evidence in family proceedings' in particular the matters listed at paragraph 9. I am conscious that the issue of vulnerable witnesses is being considered by a working group set up by the President, who produced their interim report in July. I have also considered the toolkits for vulnerable witnesses produced by the Advocacy Training Council (in particular toolkits 1 a) - c), 2 a) – b) and 6).
26. The first matter the court has to consider is whether Z is competent in accordance with the provisions of s 96(2) CA 1989. There is no issue about this between the parties. Having viewed most of the DVDs of the ABE interviews I am satisfied that Z is competent to give evidence within the meaning of s 96(2).
27. The discretionary exercise the court has to undertake is in accordance with the guidance which is set out by Baroness Hale in the decision of Re W paragraphs 22 – 28. In reaching my decision, it is necessary to balance two considerations; the advantages that the giving of oral evidence by Z will bring to the determination of the truth and the damage it may do to Z's welfare or any other child. At paragraph 24 Lady Hale stated

'When the court is considering whether a particular child should be called as a witness the court will have to weigh two considerations: the advantages that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues that have to be decided...'

At paragraph 26 she stated

'We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence.'

Submissions

28. The hearing on 7 November was listed to determine a number of case management issues, the most important of which was the issue of whether Z should give oral evidence at the forthcoming trial. The recital in the order dated 23 October included the provision that the representatives for the mothers in the D and R case apply to the court for permission to cross examine the witness Z.
29. More recently both the mothers in the D and E case have been equivocal about whether they were pursuing their applications for Z to give oral evidence.
30. The skeleton argument by the D mother dated 6 November concludes with the following paragraph 'It is agreed by all parties within the family proceedings that this hearing must proceed without any delay. In the light of all the matters raised above and in particular the LA Z evidence on the likely impact on Z should she give even limited evidence, it is submitted the most appropriate (and European Convention compliant) approach in resolving this issue is that Z should not be called to give evidence and all parties have the opportunity to challenge or support the accounts given on the other available evidence'. In the body of the skeleton argument it is acknowledged Z not giving oral evidence as 'an increasingly attractive option'.
31. The skeleton argument on behalf of the mother in the E case set out that they wished to cross examine Z and their submissions on the balance the court has to undertake. In that skeleton argument there was an acknowledgment of the evidence as to harm to Z if she was required to give oral evidence.
32. I sought clarification of the position at the hearing on 7 November. Initially counsel on behalf of the mothers in the E and D cases stated they did not pursue their applications for Z to be called to give oral evidence, as they recognised the harm to Z such a course would result in. When the court and the LA queried this, they re-considered their positions and stated that on reflection they did wish to make such an application. Some of the other parties, whilst not making Re W applications themselves, stated they were anxious the court has the best possible information on which to make a determination regarding the various factual matters in dispute.
33. In their written and oral submissions the mothers on behalf of E and D make the following submissions:

(i) There is evidence before the court that Z doesn't want to give evidence in the family proceedings and if she was required to do so may result in her suffering grave harm. This has implications for her rights under Articles 3 and 8.

(ii) Distinguishing features of this case from other similar cases is that the majority of the evidence is from Z herself, rather than reports to third parties, and it is not a single incident case that could be managed by more circumscribed questioning.

(iii) There is no middle ground option between Z giving oral evidence or not due to the circumstances of this case, the nature of the allegations, and the background history. Whilst it is accepted that the court retains control over how such questioning takes place (for example, by not using multi-layered questions) it is submitted all of the topics listed will need to be explored otherwise there is a risk of the matters outlined by Gloster LJ at paragraph 108 (C) and 109 in Re J (ibid).

(iv) A relevant consideration is that Z is going to give evidence in the forthcoming criminal proceedings, something which she is, at present, willing to do with the appropriate support.

(v) It is acknowledged that if Z does not give oral evidence there is evidence for the court to be able to consider and each party will have the opportunity to draw the courts attention to matters that support or undermine Z's account. In addition the court will be able to direct itself in advance of making appropriate factual conclusions.

34. With the agreement of all parties the police, CPS and XLA have been given permission to attend this hearing and make representations on this issue.
35. The police and CPS object to Z giving oral evidence prior to the criminal trial. Their submissions can be summarised as follows. They rely on the evidence about Z's wishes and the risks to her welfare if she is required to give evidence against her express wishes with the result that she gives evidence twice. The 'tentative' view expressed by the psychologist of Z's ability to give evidence in both sets of proceedings was without the evidence from the police officer and social worker as to her views. They submit there is a real risk that if she is required to give evidence in these proceedings and her mental state deteriorates, as seems likely, she may be deprived of giving evidence in the criminal proceedings which is something she has consistently stated she wishes to do. That is likely to have the consequence that the criminal proceedings would be unable to continue, which has wider public interest considerations.
36. XLA object to Z being required to give oral evidence in these proceedings. They submit she is unwilling to give such evidence, and should not be required to do so in those circumstances. To make her do so in the circumstances of her extreme vulnerability, emotional immaturity and where her current placement is so fragile risks causing her serious emotional and psychological harm which would be directly contrary to her welfare. Although they have not seen all the evidence in these proceedings they submit there is other evidence available to the court to weigh up and assess.
37. The LA has remained neutral on this issue. They have made it clear they rely on the evidence from Z, in particular that contained in the ABE interviews, her statements and the evidence of the drive round to various addresses. They acknowledge the Article 6 rights of the respondents to have an effective opportunity to challenge that evidence. They make the following points:

(i) The duty of this court is to consider the 6 children who are the subject of these proceedings. Although there is the public interest in the effectiveness of the criminal proceedings that has to be balanced with the reality that there is a risk they may not proceed for a variety of different reasons.

(ii) The court needs to carefully consider the context in which Z's views have been expressed, particularly most recently to the social worker with XLA. Z's attitude to social services is one of mistrust. The only psychological evidence before the court is that Z could withstand giving oral evidence in both sets of proceedings.

(iii) In their oral submissions they submitted there could be a staged process. Z has not had the opportunity to hear directly from the court as to the importance of her giving evidence in these proceedings. This would be from someone who is not a social worker. The court should factor in when considering her wishes that often when faced with a decision requiring a young person to give evidence they can benefit from it, even if they initially were resistant to the prospect.

(iv) If the court grants the application for Z to give evidence they gave an outline of what they consider would be required to give her support, although they acknowledged there was an element of uncertainty as they were still seeking details as to the availability of the intermediary. Arrangements would need to be put in place for a ground rules hearing, for Z to view the ABE interviews and for someone to be present with the intermediary when she supports Z.

38. The other parties in their written submissions do not cover any significant aspect that is not dealt with above.

Discussion and Decision

39. I have found this decision particularly difficult as there are powerful considerations on both sides.
40. The factors in favour of Z giving oral evidence are that the court would have the best opportunity of assessing the evidence given by Z. In these circumstances the opportunity to hear and observe Z giving evidence is often regarded as the 'gold standard' and fully protects the Article 6 rights of all parties, in particular those who adverse findings are sought against. The Article 8 rights of all parties are engaged as the determination of the court, put at its most stark, may result in either the re-unification or permanent separation of children from their birth family.
41. No one has suggested any alternative method to Z giving oral evidence, such as further questions being put to her. I agree with that assessment, in the circumstances of this case where she has been subject to a number of ABE interviews and it not being a single issue case there does not seem to be any alternative short of her giving evidence.
42. The factors that weigh against her being required to give oral evidence are her expressed wishes not to do so and the risks to her physical, mental and psychological health if she was directed to against her wishes.
43. In considering how I should exercise my discretion it is important that I remind myself that it is being considered against the backdrop of the court's objective to achieve a fair trial of the issues in dispute between the parties as to the threshold criteria (see Lady Hale Re W (Children) UKSC 12 paragraph 23:

"The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has."

44. Having undertaken the balancing exercise that I am required to do in accordance with the guidance laid down in Re W, I have reached the conclusion that Z should not be required to give oral evidence in these proceedings, as I consider it more likely than not the harm that such a course is likely to cause her outweighs the advantages of her giving oral evidence.
45. I have reached that conclusion for the following reasons:

(1) There is considerable evidence about Z's vulnerability; emotionally, physically and psychologically. She has been receipt of psychiatric care in the past and has displayed severe emotional vulnerability about her current situation. She is considered to be at risk of absconding and that risk is said to increase if she was required to leave where she currently resides to join a link for video evidence against her wishes. Whilst it is likely the risk of absconding could be managed, the adverse risk to her emotional and psychological health is more likely than not to be considerable by requiring her on two occasions to recall the details of what she has said took place.

(2) I have evidence from a number of sources about her wishes about giving evidence in the family proceedings. Z has made it clear she does not want to give evidence in these proceedings, and it is more likely than not that she would refuse to co-operate with directions to do so by the court. I have carefully considered the context in which she has expressed her wishes; namely to the officer in the case and the social worker. She is reported to have a trusting relationship with the officer, but in their discussions was unable to countenance the prospect of giving oral evidence twice and an important feature from her perspective is that these proceedings did not concern her siblings. As regards the views she expressed to the social worker I have borne in mind her negative views about social services, but the social worker who went to see her was not her allocated social worker, she is an experienced social worker and she saw her on two occasions so was able to assess her views and reactions over a period of time. Her written and oral evidence was clear; Z is unwilling to give evidence in these proceedings. I have carefully considered whether when faced with a direction by this court to give evidence she would, in fact, actually comply. Whilst that is a possibility it is more likely that she would not and, in fact, such a direction is likely to cause her more distress and increase her level of anxiety.

(3) The 'tentative' view expressed by the psychologist of Z's ability to give evidence in the family and the criminal case was done without the information this court has as to Z's wishes about giving evidence in the family proceedings. In addition this was not an issue that was not discussed directly with Z by the psychologist. Therefore, whilst I take it into account I do not give it the same weight as the direct evidence I have about her wishes not to give evidence in these proceedings and her emotional vulnerability if required to do so.

(4) It goes without saying that providing her welfare needs could be properly safeguarded the Convention rights of all the parties in these family proceedings would be protected if Z could give oral evidence. In principle special measures could be put in place to ensure her evidence is given in a way to protect her welfare. However, that is only one aspect of the discretion the court has to exercise, albeit it is an important one.

(5) I have carefully considered whether any more steps can, or should, be taken to explain to Z the purpose of these proceedings and the need for her to give oral evidence. The LA in their oral submissions suggested that I could undertake that task. Whilst superficially attractive I cannot ignore the points made by the intermediary, who has probably had the most consistent involvement with Z. In her reports she is very clear of the need for there to be consistent support for Z. In the light of the experience of others (in particular the psychologist who could not be seen to be connected to social services) it seems very unlikely that Z will easily be able to comprehend the alternative view of something she is so vehemently against in just one meeting. It is only likely to be considered by her, if at all, if explained by someone with whom she has an established trusting relationship with over a period of time. That is likely to take some time and may not succeed. As the intermediary observed there is a real risk of overloading Z with demands if she is required to give evidence in these proceedings in the context of the situation she is in, namely in the build up to preparing to give evidence in the criminal proceedings. In my judgment the same applies, in the context of her situation now, to any further assessment of her understanding of the purpose of these family proceedings with a view to seeking her agreement to give evidence in these proceedings too.

(6) I have also factored into my considerations the fact that this is not a single issue case. There is a complex background, which even with sensitive oversight by the court would need to be explored in oral evidence.

(7) An important consideration is that it is accepted there is other material the court can consider, both to support and undermine what Z has said. The court will be able to observe the DVDs of Z and all parties will have the opportunity to challenge or support the accounts give by her on the other available evidence. The court will be able to direct itself in advance of making the appropriate factual conclusions. It is acknowledged in the skeleton argument on behalf of the mother in the D case that 'this may be an increasingly attractive option in the light of the recent evidence filed by XLA.'

46. Although no party has advocated an adjournment of this case it is something I have carefully considered. The family court, as is often the case, is caught between a rock and a hard place. The children who are the subject matter of these proceedings have been in interim care for six months already, any further delay is likely to be detrimental to their welfare. However, there may be an argument that even if the family proceedings conclude this year it may be difficult, if it is directed, to undertake any active assessment of the birth family until the outcome of the criminal proceedings is known. If that is the case it could be said an adjournment may have some advantages in that the court would possibly have the transcripts of the evidence of Z within the criminal proceedings and the prospect of a willingness of Z to give oral evidence in these proceedings. Patently there are inherent risks with that course, which include the criminal proceedings being adjourned or for some other reason not being effective. In my judgment, on the information currently available, that course would only result in further unacceptable delays for the children in these proceedings.

General observation

47. The issue of vulnerable witnesses is the subject of a working group set up by the President. Their interim report was published in July and the final report is due in the New Year. Where there are parallel criminal and family proceedings it would, all things being equal, be of great assistance if there was a high level of co-operation and liaison between the relevant agencies (by that I mean the police, CPS and the LA) to ensure there is, as far as possible, joint work undertaken from the early stages to support a vulnerable witness giving evidence in either proceedings. It was of great concern to this court that on two occasions important evidence from an intermediary that had been commissioned by the police and/or CPS was not automatically made available to the LA, or at least them being notified of its existence.