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
		22/07/2015

Mrs Justice Theis DBE:

Introduction

1. This judgment is to give reasons for the refusal of the application for Z, a 17 year old child, to give oral evidence. I gave my decision on 22 July 2015 with reasons to follow.
2. On 6 January 2015 I gave judgment at the end of a fact finding hearing in three related care cases, known as the D, E and F case. Those proceedings concern six children whose ages range between 3 to 15 years. That hearing considered the factual basis upon which the Local Authority alleged the threshold criteria had been established in each of the cases.
3. The findings I made are set out in a schedule of findings dated 6 January 2015.
4. One of the central issues in the case was the allegations of sexual exploitation made by a 16 year old girl Z. As part of the police investigation she was the subject of a series of ABE interviews as well as a number of section 9 statements. Z did not give oral evidence in the family hearing. I had considered a Re W application at an earlier hearing and concluded that she should not give oral evidence due to the harm such a course was likely to cause her. That ruling was not appealed.
5. In the fact finding judgment I did not consider all the findings which relied in whole or part on Z's evidence reached the required standard, although some did for the reasons I gave in that judgment. Those findings are:

In relation to AK

1. That she was more involved with Z than she revealed (466). She was in regular contact with Z (481)

2. That she was involved in the arrangements for Z being sold for sex, knowing that she was under 16 (484)

3. That she was at least complicit in causing or permitting the exposure of Z to inappropriate and abusive sexual activity, knowing that she was under 16 (482, 497)

4. That she kept Z in her home against her (Z's) will (485)

In relation to JE and the E household

1. That her knowledge of Z was significantly more than she revealed and this was due to more direct contact she had with Z than she said (480). She was in regular contact with Z (481).

3. She was probably at the least complicit to some extent in what was happening to Z in terms of her being sold for sex. The precise extent of her involvement/complicity is difficult to say but the Court is only able to make positive findings that she knew Z was being sold for sex and that she knew Z was under 16 years old and she took no action in relation to this (482 and 497).

In relation to JC

1. That her relationship and knowledge of Z was far more than she has said (480) and that she was in regular contact with Z (481).

2. She was probably at the least complicit to some extent in what was happening to Z in terms of her being sold for sex. The precise extent of her involvement/complicity is difficult to say but the Court is only able to make positive findings that she knew Z was being sold for sex and that she knew Z was under 16 years old and she took no action in relation to this (477 - 480, 482 and 497).

In relation to JS

1. That he was supplying drugs to JC from his home address (503(3)).

2. That he introduced JC to drugs (501).

In relation to LF

1. That he knew of the sexual exploitation of Z by individuals, although not specifically of her being exploited by JE (493).

6. Following the conclusion of the fact finding hearing the parallel criminal proceedings started on 12 January. Two of the mothers in the care proceedings, AK and JE, were defendants in those proceedings, together with 5 male defendants facing charges of sexual exploitation concerning Z. Z gave oral evidence in those proceedings over a period of 12 days. In addition prior to giving oral evidence she was able to view her ABE interviews and read her section 9 statements. The memory refreshing procedure was video recorded. The criminal proceedings concluded on 6 March 2015 when HHJ O'Mahony acceded to the application at the end of the prosecution case that there was insufficient evidence for the case to continue on the basis of the inherent unreliability of Z's evidence.
7. Following the conclusion of the criminal proceedings applications were made within these proceedings for this court to re-hear the findings previously made that were based on Z's evidence. On 29 April 2015 I acceded to that application, the reasons are set out in the judgment given on that day. The matter is listed for the re-hearing in September.
8. The issue of whether Z gives oral evidence has had to be looked at again.

The updated evidence regarding Z

9. Since about May 2014 Z has been in the care of XLA following her parents agreeing to her being accommodated under section 20 Children Act 1989.
10. There are two statements from XLA Team Managers, dated 20.5.15 and 8.7.15.
11. Following the conclusion of the criminal proceedings Z's behaviour and engagement with XLA deteriorated significantly. She was missing for periods of time, although remained in contact with her mother who it is said did not keep XLA informed as to Z's whereabouts. XLA became increasingly concerned about her welfare.
12. On 7 May Z's mother withdrew her consent to Z being accommodated under section 20. Z informed XLA she was moving to Skegness with an unknown male, she was located and returned by the police. She then informed them she was moving to City E to resume a relationship with a male who was described as a known perpetrator of child sexual exploitation.
13. The level of concern regarding Z's welfare and safety regarding child sexual exploitation were such that on 15 May she was placed in police protection and subsequently made a ward of court and placed in secure accommodation pursuant to orders made on that day.
14. Z's mother and younger siblings returned to Slovakia over the weekend 16/17 May without informing LA.
15. The statement from XLA on 20.5.15 stated that due to the level of Z's distress and trauma it had not been possible to undertake any form of assessment in relation to her capacity to be part of any further proceedings. They considered that Z would need 'a significant amount and prolonged period of stability and support prior to any assessment being undertaken'. That statement concluded 'It is my opinion that [Z] is not able to give evidence at this time or for the foreseeable future'. During the time Z was in secure accommodation she consistently asserted that she would not engage in any work with XLA. Her views were clear and consistent; she did not want to reside in secure accommodation and objected the fact that she had been made a ward of court.
16. The proceedings concerning Z returned to court on 9 and 11 June. At the hearing on 11 June XLA state the court determined that Z no longer met the criteria for remaining in secure accommodation. XLA was clear that if Z remained in the UK without the benefit of an order they were not able to keep her safe, as they considered she would continue to put herself at risk. Z wished to return to her family in Slovakia and her mother had indicated that she wished to have her home. A plan was formulated that allowed Z to return to Slovakia. Z returned there on 13 June.
17. XLA have given the LA in these proceedings the information it has as to Z's whereabouts in Slovakia. At the time of this hearing the LA have been unable to get any updated information as to Z's whereabouts.

The Law

18. There is no issue regarding the relevant legal framework.
19. The discretionary exercise the court has to undertake is in accordance with the guidance which is set out by Baroness Hales in the decision of Re W [2010] UKSC 12 paragraphs 22 – 28. In coming to my conclusion 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 Baroness 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

20. An order is sought on behalf of AK and JE requiring Z to give oral evidence, although the difficulties that are presented to the court are acknowledged. They seek an order, in principle, that Z should be required to give oral evidence. They recognise there may be difficulties in effectively enforcing any order as Z is out of the jurisdiction. They submit the court should make that decision requiring her to give oral evidence for the following reasons:

(1) Z should not be permitted to pick and chose which proceedings she participates in. This is particularly so when considering the observations of HHJ O'Mahony regarding the false allegations she has made before and during the criminal proceedings.

(2) By not requiring Z to give evidence this court is depriving itself of the advantage the judge had in the criminal proceedings of being able to observe her oral evidence over a number of days.

(3) There are relevant issues that they seek to explore with Z that were not fully dealt with in the criminal proceedings.

(4) It is acknowledged Z would suffer emotional harm if she was required to give evidence, although the information available to the court is out of date, due to Z's failure to co-operate with any Re W assessment. It is submitted that Z was able to give evidence over a number of days within the criminal proceedings, and there is no reason why she should not be able to do so if carefully and sensitively handled within these proceedings. It is submitted there is no evidence of grave harm suffered during the criminal process.

21. The LA does not support the Re W application. They submit

(1) There is no evidence that would indicate a change in Z's vulnerability and ability to engage with the court to give evidence.

(2) The evidence the court has from Z LA sets out Z's extreme stress during the criminal proceedings, exacerbated by her frequent attendance and the conclusion of the trial; her extreme stress regarding her previous experiences and her family leaving the country without her; her anger at being placed in secure accommodation and her reluctance to provide any evidence in relation to any more proceedings; her intention to kill herself if she was not allowed to join her family in Slovakia.

(3) In the updated statement dated 8.7.15 XLA state that since their previous statement on 22.5.15 Z has continued to experience high levels of stress in relation to her experiences of having to provide evidence in the previous proceedings and her family returning to Slovakia.

(4) The most recent statement from XLA details Z's views were sought on three separate occasions in respect of giving evidence in the family proceedings. On each occasion she has been clear she did not want to participate in the proceedings or give evidence.

(5) Although Z has not engaged in an up to date assessment XLA report that in any event the psychological aspect of Z's functioning would affect her ability to give evidence and deal with a court situation.

(6) The court has significant additional material to consider in its evaluation of Z's accounts; video recording and notes from the memory refreshing exercise and transcripts of all of her evidence in the criminal proceedings.

Discussion and Decision

22. The inherent difficulties in dealing with family proceedings that involve vulnerable witnesses have, once again, come into sharp focus in this case. At each stage this court has had to conduct the difficult balancing exercise of seeking to ensure the court has the best evidence available, so that any decision reached is on a secure foundation, against the welfare considerations of the individual witness.
23. In November last year, faced with a similar application, I determined that the welfare considerations of the witness outweighed the other considerations, and Z should not be required to give oral evidence.
24. This court is reconsidering this issue in the light of the fact that Z was able to give oral evidence over a number of days in the criminal proceedings, the adverse conclusions reached regarding her credibility by HHJ O'Mahony and that this court has listed a re-hearing of the findings made previously, that were in large part founded on Z's evidence.
25. Having now considered this issue again, in the light of the recent events and evidence, I have reached the conclusion on the information available to the court that Z should not be required to give oral evidence, as on analysis of that information such a course would be contrary to her welfare and this outweighs the benefits of her giving oral evidence. I have reached that decision for the following reasons:

(1) If Z were able to give oral evidence undoubtedly this court would have the best opportunity of assessing her evidence. It has rightly been referred to as the 'gold standard' and it fully protects the Article 6 and 8 rights of the parties, which include the adults and the children. Reliance is placed on what took place within the criminal proceedings where the reliability of Z's evidence was tested through the forensic process.

(2) However this court cannot ignore the evidence it has concerning Z's welfare. In November I concluded that a combination of her express wishes and the evidence the court had about her psychological vulnerability resulted in the court determining she should not be required to give oral evidence. Since Z concluded her oral evidence in the criminal proceedings her psychological position has deteriorated to the extent that XLA sought and obtained orders to place her in secure accommodation to protect her. In the two statements the court has from Z LA it is clear Z was suffering extreme stress through a combination of events. Her expressed wishes have not changed; on each occasion she was asked about giving evidence in these proceedings it was clear she did not want to participate in them.

(3) Whilst this court does not have detailed updated information regarding her psychological state it is clear from what is available that her current functioning would inevitably affect her ability to give evidence and deal with the court situation. Forcing her to give oral evidence, even if that was possible, would undoubtedly be contrary to her welfare.

(4) In conducting the re-hearing the court does have significant additional material to re-evaluate Z's accounts by way of the video recorded memory refreshing exercise, together with the notes taken and full transcripts of her oral evidence within the criminal proceedings.

26. I have reached this conclusion on the information available to the court now.
27. Some criticism has been made of the fact that XLA took steps to facilitate Z leaving the jurisdiction without notifying this court or the LA of the steps they were taking. The effect of the Z leaving the jurisdiction has curtailed this court's ability to take any further steps to assess Z's ability to give oral evidence. XLA state that they were not formally aware of Z's position until the morning of 9 June, the next hearing was two days later. It was a fast moving situation which they state did not give them sufficient opportunity to inform this court or the LA of the developing position. Whilst it is regrettable this court and the LA were not kept updated about the developing position regarding Z's status here, the reality is there would have been limited, if any, steps this court could have taken to prevent Z leaving the jurisdiction.
28. I have directed the LA to continue its efforts through the Central Authority to get updated information about Z's whereabouts and her current circumstances.