Jersey Unreported Judgments

[2006]JCA151

COURT OF APPEAL

 

25^th October 2006

Before     :

The Hon. M. J. Beloff, Q.C., President; Dame Heather Steel, and; P. D. Smith, Esq., Q.C.

 

 

The President

 

This is the Judgment of the Court.

 

Introduction

1.        This matter is an Appeal by S (the mother), (the Appellant) against the Order of the Inferior Number of the Royal Court (Samedi Division) and the decision given in a Judgment by Sir Philip Bailhache, Bailiff on 7^th July 2006 following a hearing on 12^th and 15^th May, 2006 in respect of applications concerning the Respondent's (the father's) contact with his two children H and E (the children) and for a Prohibited Steps Order against the Respondent's brother TC (the uncle) (the Party Convened).

2.        The Appellant was represented by Advocate D. Gilbert at the hearing below and is now represented by Advocate N. Santos-Costa.  The Respondent and the Party Convened appeared below and appear in person.

3.        The Order the subject of this appeal granted, the Respondent's application for contact with the children on the interim terms laid down by the Royal Court on 4^th January 2006 which included an Order that the Respondent should have unsupervised overnight contact with the children.  The Prohibited Steps Order of 31^st October 2005 which had limited contact to supervised contact for two hours once a week was discharged.  The Appellant's application for a Prohibited Steps Order against the Party Convened was refused.  We deal in more detail with the procedural history below.

4.        In her contentions the Appellant invites the Court of Appeal to allow the Appeal and reverse the Order or to remit the matter to the Royal Court for a rehearing.  It was recognised by Advocate Costa at the outset of the appeal that the latter was the only viable option.

5.        In the Judgment of 7^th July, 2006 the Bailiff carefully and fully set out the domestic background, and the procedural history of this fraught matter and we summarise some of his unchallenged findings in these respects before we proceed to consider the grounds of appeal and the basis on which the decisions set out in the Order were reached.

Domestic Background

6.        The Respondent (the father) was a police officer married in 1975.  The marriage lasted twenty-two years.  There were three children, two daughters G and R and a son T.  After the breakdown of the marriage in 1996 the Respondent formed a relationship with the Appellant, then also a serving police officer.  They did not marry but had two children, a boy H who was born in 1998, and a girl E who was born in 2001.  This relationship in its turn broke down in 2003.  Both parties have now formed new relationships.

7.        The Respondent's application for contact with the children H and E was opposed at the hearing by the Appellant on the ground of his inappropriate touching of the child E and of his serious sexual misconduct, the allegations being of sexual assault and rape, against R, the daughter of the marriage who is now aged 26 years.  Since conduct was said to have persisted over a number of years until she reached the age of 16 years, and further allegations were made by R of sexual assault and rape committed by the Party Convened over a number of years.

The Procedural History

8.        After the relationship between the Appellant and the Respondent ended in February 2003 contact between the Respondent and the children continued by agreement.  Despite difficulties contact until August 2005 appears to have been fairly regular.

9.        On 9^th September 2005 the Respondent applied to the Family Registrar for a parental responsibility order, a residence order and a contact order.

10.      On 20^th October 2005 a parental responsibility order in favour of the Respondent was made by consent, the application for a residence order was withdrawn and interim contact was ordered for short periods twice a week.

11.      On 24^th October 2005 the Appellant's legal advisers received a letter from Dr Robin Royston, a Consultant Psychiatrist and Psychotherapist who had been treating R at the Priory Ticehurst House in Sussex since September 2004.  R's medical records show that she has been mentally disturbed since her teenage years and that various earlier referrals were made for her treatment and care.  Dr Royston stated in his report that he believed that R had been sexually abused by the Party Convened and that the child E would be at risk from the Respondent.  Dr Royston would not recommend unsupervised access.  This letter contains a reference to an allegation that the Respondent had behaved in a sexually inappropriate manner towards the child E.

12.      On 25^th October 2005 the Appellant applied for a Prohibited Steps Order prohibiting any contact between the children and the Party Convened and any unsupervised contact between the children and the Respondent. It is to be noted that the application was based on Doctor Royston's report and was not the spontaneous decision of the Appellant, who had not herself generated any allegations against the Respondent.

13.      On 31^st October 2005 at the hearing of the Appellant's application, the Party Convened applied to be joined as a party in relation to the Appellant's application and was given leave to be heard and represented.  On the same day the Family Registrar gave directions and referred the application for contact and for a prohibited steps order to the Inferior Number of the Royal Court.  Having considered the evidence of a senior child care officer and the psychiatric report of Dr Royston the Family Registrar made an interim prohibited steps order limiting the Respondent to supervised contact with the children for two hours a week every Sunday at Milli's Contact Centre.  He received an undertaking from the Respondent that he would not until further order allow any contact between the children and the Party Convened.  He ordered that a Welfare Report be prepared by an officer approved by the Probation Service, a Risk Assessment report be prepared by an officer appointed by the Children's Service and that Dr R. W. Blackwood, psychiatrist, be requested to interview the parties and report as required by the Court.

14.      On 15^th November, 2005 the Respondent appealed against the interim order and further directions were given by the Family Registrar on 23^rd November 2005 that Dr Chris Brewin or such other psychologist or psychiatrist as Dr Blackwood may recommend to the Court should be instructed and that such person would have no obligation to interview the parties but might do so if he or she wishes.  The Respondent and the Party Convened were permitted to consult Dr Janet Boakes.  A copy of Dr Royston's report was to be disclosed to the psychiatrists or psychologists appointed in accordance with the order and that psychiatrists or psychologists would be requested to report in writing on the diagnostic and treatment methods used by Dr Royston in his treatment of R and might be called as witnesses on the final hearing.

15.      On 30^th December 2005 the Risk Assessment Report was completed by Mrs Mary Havens, Social Worker in the Children's Service and approved by Mrs Carol Rowe a senior practitioner in the Children's service and Mrs Haven's supervisor.

16.      On 4^th January, 2006 the Respondent's appeal against the interim prohibited steps order was allowed by the Bailiff on the basis of the Risk Assessment Report and unsupervised overnight contact was conferred on alternative weekends pending a full hearing.  The restriction in relation to the Party Convened was preserved in accordance with the undertaking.  The Children's Service was ordered to procure a report from an appropriately qualified psychologist.

17.      The Order was reported the same day by letter from the Appellant's legal advisers to Dr Royston.  The letter reported that the Appellant intended to fight the application for unsupervised contact but that she had been advised that her position was quite weak "until R can in some way provide more explicit detail of the allegations against both men and in particular her father".

18.      By letter dated 10^th January 2006 Dr Royston provided that explicit detail.  The allegations made by R against the Party Convened became a history of sexual abuse by the Party Convened and the Respondent including digital penetration of her vagina from the age of 3, rape at the age of 7 or 8 and a forced sexual relationship until R reached the age of 16 years.  Allegations of serious physical violence were also made against the Respondent.

19.      On the basis of that letter a further application was made by the Appellant for unsupervised contact to be suspended pending trial.

20.      On 26^th January 2006 the application was dismissed.

21.      On 27^th February 2006 the Bailiff gave further directions in relation to the trial which was fixed for Friday 12^th May and Monday 15^th May to accommodate the commitments of the expert witnesses.

22.      On 27^th March 2006 the Bailiff directed, on the application of the Appellant, that the parties should prepare, file and serve upon each other the copies of the statements of any witnesses upon whom they sought to rely, including experts, by 5 p.m. on 2^nd May.

23.      On 12^th April 2006a lengthy report from psychologist Mr Anthony Bainbridge became available to the parties.  His report was commissioned by the Children's Service at the request of the Court to carry out a psychological assessment of both parties and the party convened with a view to assessing the potential risks to the children posed by the Respondent and the Party Convened.  His conclusion supported that of Dr Royston.

24.      On the basis of that report the Appellant made a further application to the Court seeking the removal of the unsupervised contact order pending the hearing on 12^th May 2006.

25.      On 21^st April 2006 the Court refused that application and the Deputy Bailiff ordered the Children's Service to make every effort to secure the attendance of Mrs Havens on 12^th May 2006.  The Children's Service had indicated that it disagreed with the contents of her report and was unaware of her whereabouts.

The Hearing

26.      On 12^th May the Court heard evidence for the Appellant, Dr Royston and Mr Bainbridge.  The Co-author of the Report produced by Mr Anthony Bainbridge, Ms Barbara McKay, specialist social worker, who was not billeted as a witness was, as a result of a ruling of the Bailiff, not called to give evidence.

27.      On 15^th May the Court was told by Counsel for the Appellant that there had been an unexpected development and that R was in Court and an application was made for her to give evidence.  Counsel stated that R was in a fragile state and initially suggested that she should not be cross-examined by the Respondent or the Party Convened.  After further instructions Counsel indicated that she could not oppose any direction that R be cross-examined as a condition of her giving evidence.  Counsel also conceded that her application did not comply with the Order of 27^th March as to provision of witness statements.  Neither the Respondent nor the Party Convened opposed the application that R should be called.

28.      The Court deferred a decision on this matter until the evidence of Dr Boakes, a consultant psychiatrist instructed by the Party Convened, who submitted two reports on behalf of the Respondent and the Party Convened, was given.

29.      Having heard the evidence of Dr Boakes and considered the application on 18^th May the Court refused the application that the evidence of R should be heard.

30.      In the Judgment of the 7^th July at paragraph 14 the Bailiff set out the three reasons for the Royal Court's decision and we quote these in full:-

(i)            The Bailiff had ordered all parties to service upon each other the statements of any witness whom it was proposed to call.  The purpose of the direction was to prevent any party being taken by surprise.  R had made no statement and had furthermore indicated through her mother's counsel that she did not intend to make any complaint to the police about the alleged rapes and sexual assaults.  It would in our judgment have been quite unfair to allow the father and the uncle to be ambushed in this way.  Without any time to prepare himself, the father would have been placed in the unenviable position of having to cross-examine a daughter whom he professes still to love dearly on the most serious allegations of sexual perversity

(We call this "the ambush reason").

(ii)           We were concerned, notwithstanding R's apparent willingness to do so, about the effect which the giving of evidence might have upon her mental state.  Counsel for the mother said that R was in a "fragile state".  The latest report of Dr Royston completed only two weeks before on 27^th Aril stated:  "She is a very honest straight-forward young woman who has been severely traumatised throughout her childhood.  Indeed in my 20 years experience of treating adults who have suffered from child abuse, she is the most terrified and terrorised patient I have seen in an inpatient setting. Her presentation is entirely consistent with the unfolding narrative and she remains at risk, as the treatment programme is still unfinished.  Any increase in threat to her from outside at this time could have disastrous consequences".

Counsel for the mother in answering questions from the Court, stated that Dr Royston could not be categoric and state that there was no risk to R from giving evidence.  It was however, important to her, according to Dr Royston to protect the child E.  Dr Royston considered that it was a positive move for R even if there might subsequently be a relapse.  He was supportive of what she was doing.  The Court was left with an uncomfortable feeling that R was being used as a means of bolstering the credibility of Dr Royston's evidence

(We call this "the welfare of the witness reason").

(iii)          The Court had decided that in relation to the evidence of the experts if preferred the evidence of Dr Boakes.  We shall deal with that more fully below, but in essence Dr Boakes' view was that R's allegations were recovered memories arising from her medical condition, supplemented by a suggestive form of therapy, and unsubstantiated by any evidence.  She was in the grip of a false memory syndrome.  It followed that the evidence of R would have been unlikely to help the Court to determine the issue before it

(We call this "the credibility of the witness reason").

31.      On the 1^st May the Court also heard and considered the evidence of Mrs Mary Havens, one whom we do not identify by a full name so as to preserve the privacy of the parties, and Jane Ferguson, Welfare Officer, the Respondent and the Party Convened.

32.      Judgment was given on 7^th July 2006 in the terms set out in the Order of 17^th July 2006.

The Approval

33.      Thirteen grounds were raised by the Appellant in her contentions, eleven of which were urged upon us at the hearing of the Appeal itself.  The one which engaged the bulk of the submissions on all sides was the first insofar as it related to "a failure to allow the evidence of R to be heard".  (In fact as we have noted at paragraph 29 above, this was a refusal rather than the failure).

34.      Allegations of child abuse raise not only issues of the greatest possible sensitivity but are often exceptionally difficult to resolve.  It is notorious that, on occasion, allegations have been accepted by those involved professionally in child protection with serious consequences for the victims of such allegations, which were subsequently, upon full inquiry, exposed as being without substance, but that, on occasion, allegations which were true have been initially discounted with serious consequences for the victims of such abuse.  Some complainants of sexual abuse fantasise, but others recollect.  In determining whether the Royal Court was correct in its exclusion of R's evidence, (thereby inevitably and deliberately depriving itself of part of the material upon which a judgment could prima facie be formed), it is necessary to resort to first principles.

35.      It is axiomatic that only relevant evidence is admissible in civil (or indeed criminal) proceedings.  The issue in this appeal is the extent, if any, of the power of the Court to exclude relevant evidence in the exercise of a discretion.  The general rule is that such a power does not exist in the absence of express provision in statute or rule: this is a position in Scotland and Australia (Cross and Tapper on Evidence ("Cross") 9^th ed p.230 fn. 323) and in the majority of Commonwealth Courts, Queensland and Canada apart (Rosemary Pattenden; IJEP [1997] p.361 ("Pattenden") at p.363).  This was also the common law position in England and Wales (Bradford MDC v K: [1989] 2 Fam LR 507, at p.519-520), although now modified by the Civil Procedure Rules [32 (1) (2)].

36.      It does not, however, follow that relevant evidence must always be admitted.  Rules of law, such as those relating to legal professional privilege may lead to its exclusion.  It will also be excluded if its admission would be an abuse of process of the Court: (Vernon v Bosley [1994] PIER, 332 at p.345 (Farquarson LJ) or contrary to the public interest (Dougherty -v- Chairman and Governors of Arundel View School [2006] All ER (d) 112 [where private deliberations were secretly recorded] or if the Court, having imposed time limits for the production of statements, holds that to allow evidence contained in such statements to be admitted where there has been disobedience to those orders, would defeat the ends of justice, bearing in mind the Courts' obligations to litigants as a group and not merely to litigants of a particular case before them.  Jones v University of Coventry [2003] 3 All ER 760 at p.767.  Vernon v Bosley at p.330 ff.  Furthermore the Court may consider the evidence of insufficient relevance to justify its admission when the consequent impact on the conduct of the case should be disproportionate.  Vernon v Bosley [1994] PIER 377 per Hoffmann LJ at p.340.  Phipson Evidence 16^th Ed ("Phipson") para 2/07, otherwise, it appears to be accepted that there is no common law discretion to exclude it (Pattenden, Passim).  There is nothing in the common law of Jersey to contrary effect.

37.      In the present case there can be no dispute as to the relevance of R's evidence (if it were credible).  It bears directly on the risk to the children of the family.  If credible, it met the test for standard of proof propounded by Lord Nicholls In Re H [1996] AC 563 at p586-587.  In its absence the only evidence of risk was contained in Dr Royston's testimony which was hearsay (admissible under the Civil Evidence (Jersey) Law 2003 Article 3 and 4) but obviously of less weight than direct evidence; and the reported comment of E to the Appellant that at bath time the Respondent had touched her genitals by hand and not with a flannel, which we (in company with the Royal Court) were unable to identify, in isolation, as the basis for concluding that there was any risk to E at all from the Respondent.

38.      That being so there needed to be a principled reason for its exclusion.  After careful consideration and with every sympathy for the judgment that the Royal Court had to make, we cannot find that any of the reasons relied on (apparently cumulatively) justified its decision.

39.      As to the ambush reason, it seems to us that the Court gave greater weight to the need to adhere to its previously set timetable than to the interests of justice.  Desirable though it might have been to bring closure to this deeply troubling case, it was more important to be certain that a just outcome was reached.  The status quo allowed the Respondent unsupervised access: it was the Appellant who would, by any adjournment, have forfeited the chance of a prompt reversal of the relevant order.  Moreover, not only did neither the Respondent or the party convened object to the evidence being adduced by R, but the party convened had actually at the outset of the hearing invited the Court to make an order that she should be called.  Both parties were clearly ambitious to expose her allegations as, in their perception and assertion, a tissue of fabrication.  In our view, the Royal Court should have, if necessary, adjourned the hearing to allow time for what would (subject to the credibility reason) be entertaining the evidence of a key witness.  We do not, of course, say that a court can never in the exercise of good case management exclude the evidence which while relevant, is belated and whose adducing would require waiving of a court order as to time limits, but only that, not least where the interest of children are by statute paramount, (Children's (Jersey) Law 2002 Article 2(1)(b)) such a step should be taken only exceptionally.

40.      As to the welfare of the witness reason, we know of no authority which would allow this factor to prevent a willing witness from giving evidence (different considerations might apply where the witness was not a volunteer - we say nothing as to that).  The giving of evidence in a Court of law is often stressful.  The only case in which this kind of issue was addressed was Vernon v Bosley whose thrust is inconsistent with the Royal Court ruling (see p.340-344-5 and 355 where the decision of the judge at first instance not to allow cross-examination of a witness to whom distress might be caused was overruled).

41.      As to the credibility reason the case law suggests that there is no settled rule as to when and to what effect evidence of psychiatrists or other professionals as to the credibility of the witness may be adduced.  See Phipson para 32-14 and for children's cases Re M v R (Child Abuse) [1996] 2 FLR 195 210H-211A.  It appears that in appropriate cases psychiatrists' evidence can be used to impugn a witness's veracity: but ultimately a question of whether or not a witness is to be believed is a question for the Tribunal of fact.  However, we know of no case in which a party has been refused permission to call a particular witness because an expert has pronounced on his (or her) incapacity to tell the truth.  The Court, in such circumstances, deprived of the opportunity to form its own view of the witness, which may impact upon the choice it has to make between rival experts' views as to whether the alleged victim of abuse was indeed such a victim or whether she was only a sufferer from false memory syndrome.  Notably in this particular case the expert on whose evidence the Royal Court in this matter relied on, Dr Boakes, expressly declared herself disadvantaged by not having had contact with the alleged victim.  In our view, the Royal Court should at least, have allowed the evidence of R to be given, and the experts given the opportunity to provide their testimony in the light of it.

42.      A compelling issue of principle is engaged. As Hoffmann LJ said in Vernon v Bosley at p.339:-

"It is an important aspect of an adversary system of justice that a party should so far as possible be allowed to decide how to present his case.  If he or his Counsel think that an item of evidence is relevant the Court, is again, very reluctant to shut it out.  He should not be left with a feeling that he might have won if only he had been allowed to adduce evidence which the judge refused to hear."

43.      Advocate Santos Costa raised a number of other grounds with his usual sense of moderation.  However, since neither singly nor collectively did we consider them well founded, and since we are in any event allowing the appeal we do not think it necessary to pronounce further on them (none raising issues of general public importance).

44.      We should, however, draw attention to Ground 12 which suggested that the Royal Court, to put it colloquially, cut corners in order to reach a conclusion of the hearing within the two days set aside.  It is, of course, important for any court in such a sensitive area as that dealing with the welfare of children, to take especial care to prevent the impression that undue haste has been exhibited in a desire to finish the hearing within prefixed limits. The ground was not, in the event, pursued as an independent ground and therefore we make (and need to make) no any finding that the Royal Court erred in this regard on this occasion.

45.      It will be clear from this judgment that we have said nothing on the merits of the substantive matter.  Whether justice was done by the Royal Court on the first hearing will fall to be determined by the same court at any further hearing.  But justice has to be seen to be done and the fact that a potential key witness was not heard means that this precept was, although from the best of motives, not respected.

46.      We have, accordingly, determined there must be a retrial.  We reach this conclusion without relish because we are acutely aware of the pressures that all parties involved are subject to, and the desirability of bringing finality to this matter one way or the other as soon as possible.  Such considerations have led us to formulate the Order in the particular form we have endorsed.

Authorities

Cross and Tapper on Evidence ("Cross") 9^th Ed p.230 fn. 323.

Rosemary Pattenden; IJEP [1997] p.361 at p.363). 

Bradford MDC v K: [1989] 2 Fam LR 507, at p.519-520.

Civil Procedure Rules v.32 (1) (2)].

Vernon v Bosley [1994] PIER, 332 at p.330 ff and p345.

Dougherty -v- Chairman and Governors of Arundel View School [2006] All ER (d) 112.

Jones v University of Coventry [2003] 3 All ER 760 at p.767.

Vernon v Bosley [1994] PIER 377 per Hoffmann LJ at p.340.

Phipson Evidence 16^th Ed ("Phipson") para 2/07.

In Re H [1996] AC 563 at p586-587.

Civil Evidence (Jersey) Law 2003 Rule 3 and 4. 

The Children Jersey Law 2002 2(1)(b).

Re M v R (Child Abuse) [1996] 2 FLR 195 210H-211A.