A discussion of the very tricky problem in Re R (A Child) 2012. It never ceases to amaze me how many appeals are not so much about difficult points of law so much as truly peculiar things happening in a Court room and a Judge trying and failing to get an impossible situation right. This is one of those.
This Court of Appeal decision relates to a very difficult position a Recorder found themselves in, towards the end of a finding of fact hearing in care proceedings.
You can find the case here:-
The father was facing very grave allegations of sexual abuse, and the two primary witnesses would be the child victim, who was 8, and it was ruled not appropriate for her to give evidence, and the mother, who had refused to give evidence and about whom there was expert evidence to the effect that it would be wrong to make her give evidence against her will.
The Recorder delivered judgment, and uttered this phrase, which must have made alternating hearts on the bench sink or soar, depending on the briefs they held
“One would normally expect me now to go on to say what my conclusions are in relation to the sexual abuse allegations. However I must deal with the issue of fair trial.”
I like to imagine at that point, that the pen belonging to the father’s advocate wobbled hopefully on the page, if only just slightly. The words “Oh, hello!” may have passed, albeit silently, over their lips.
8. He then expressed his hesitation in proceeding on the conventional path by saying at paragraph 47:
“What causes me considerable difficulty is what is submitted in paragraphs 169 to 175 by Mr Jackson. The father has an absolute and fundamental right to a fair trial on the issue of sexual abuse. The allegations against him and the findings sought against him are extremely serious. They depend solely on the assertions of an 8-year old child, who I rule cannot be cross-examined and, as I have been at pains to point out earlier in the judgment, the court is entitled to make findings based on such evidence but must exercise a great deal of care.”
9. He then came to his conclusion in paragraph 50:
“The fact is father has been hit with ‘a double whammy’. Not one but two of the most important witnesses in this case are unavailable to him for cross-examination. In my judgment, that is unfair or at least creates the perception of unfairness in father’s eyes and probably in the eyes of an officious bystander. Whatever the findings I have made of father’s presentations of witness, he is entitled nevertheless to a fair hearing. In the circumstances I am persuaded that the father’s right to a fair trial on the issue of sexual abuse has been prejudiced and that it would be unfair to make the sexual abuse findings sought by the Local Authority. “
Paragraphs 1, 2A, 3 and 5 of the schedule, insofar as they relate to father, were accordingly to be deleted.
The Court of Appeal were not terribly flattering about this:-
10. Now, with all due respect to the Recorder, I find that a bizarre piece of reasoning and a bizarre conclusion.
11. In these cases the opportunity of the accused parent to cross-examine the eight-year-old informant is effectively zero. So the Recorder has effectively argued that, because the mother did not testify and thus the father had no opportunity to cross-examine her, that amounted to a breach of his Article 6 rights.
12. It seems to me that, on a proper view, the husband’s litigation case was not prejudiced but rather aided by the absence of the mother, whose evidence was discounted but whose evidence, had it been available, might have been a nail in his coffin. So for my part, although it is not the issue before us, I think the judge was wrong to hold himself debarred from proceeding to rule on the local authority’s numbered paragraphs of the schedule by the absence of the mother’s evidence.
But this wasn’t actually the point of the Appeal, we move on
13. But I must move to the developments over the lunch hour. Counsel for the local authority, who had the mother available, explained to her that the judge had announced that he was not going to make adverse findings because she had not testified. Her reaction was “Very well I will go into the witness box“, and that was the application Miss Greenham advanced to the judge on the return of all at 2.00. Obviously for the Recorder that was a totally unexpected and difficult situation, and it is always these totally unexpected and difficult situations that are the hardest for a Recorder to get right.
14. The judge decided, having heard argument, that he was not going to take the course that Ms Greenan invited and again he explained himself by reference to the father’s asserted rights as advocated by Mr Jackson.
15. Paragraph 56 is in these terms:
“Mr Jackson submits that if I reopen the evidence now, and hear from the mother on the issue of preoccupation and false memory and on all the other matters he wants to cross-examine her about and here evidence about [S], that I will not be coming to it with an open mind. I can say until I am blue in the face that I will come to it with an open mind and I would like to think that I would come to it with an open mind but justice not only has to be done but has to be seen to be done and I well understand that Mr R [the father] would have no confidence in any decision I made after hearing fresh evidence because he would always be of the view that I made my views fairly clear and prejudged those issues. This would, in effect, compound his complaint that he has not been given a fair trial and it is for that reason that I agree with Mr Jackson that it would not be fair to father to re-open the issues upon which I have already ruled.”
16. The judge had not, effectively, ruled beyond saying that the fair trial argument precluded him from ruling, and here we see the fair trial argument being deployed equally effectively in the reverse direction. Earlier it was advanced, “Absent mother; can be no fair trial“. Then when mother appears it is said “Well, to admit her evidence would preclude a fair trial.”
I’m sure that you can read between the lines on this and see where the Court of Appeal are about to go…
I think, with great respect, that the judge in the heat of the moment reached the wrong conclusion.
17. The question of fairness is objective and not subjective to one of the parties. It was all extremely unfortunate. It should not have happened as it did, but once it had happened the judge really had no alternative but to labour further in this rather unpromising field. I think he had already spent ten days and of course it was unattractive to all that time would have to be found maybe for another two days in order to complete the process.
18. But, as these appeals have demonstrated, there was effectively no other practical choice. There was no other practical solution and accordingly I would allow the appeal and send the case back with a request to the Recorder to resume the trial process, keeping it within the tightest possible bounds, hearing the evidence of the mother and then in the light of submissions deciding what other evidence he was compelled to hear. But Ms Greenan has said that she is confident that the re-opening of the case can be kept within tight bounds and it is important that it should be.
I have to say that I feel for the Recorder here, having delivered a judgment, a key witness then decides that not being content with the outcome, they would wish to give evidence. It does seem to me that the Recorder may well have been positioned somewhere between K2 and one of those boozers visited by Ross Kemp in “Britain’s most violent pubs” – or between a rock and a hard place, if you prefer.
Don’t hear the evidence of the mother and you get appealed by the LA / the mother.
Hear the evidence – after having concluded the trial and given a judgment that finds that the facts against father can’t be safely made out, and the father is going to appeal you if you alter your findings. If you don’t alter your findings, the LA and mother are probably going to say that you couldn’t have approached mother’s evidence with an open mind given that you’d already given a judgment which didn’t make the findings against father.
If I had been faced with that dilemma, I think I would have taken the same way out as Basil Fawlty does in “Gourmet Night” faced with the grisly task of having to introduce a Mr and Mrs Twitchen, to two other dinner guests, one of whom has a facial twitch. He attempts with “Colonel and Mrs Hall, may I introduce you to Mr and Mrs… phahbarma…” and when that doesn’t work, fakes an fainting episode.
“So sorry, I fainted”
[I had hoped to put the clip here, but can’t find it online. Anyway, from the same episode, Basil losing it with his car “I’ve laid it on the line to you time and time again…. I’m going to give you a damn good thrashing”]