This is a post-script to a judgment involving 25 children, in I think 15 linked care proceedings which had 49 parties, 4 Local Authorities and 21 silks. For most of the finding of fact hearing there were 100 people present in Court.
I’ll be writing about the full case later in the week, but Hedley J at the conclusion of the Local Authority case after a month of evidence, was invited by 19 of the 21 respondents to dismiss the allegations against them. Effectively an application of ‘no case to answer’ in care proceedings.
The allegations in the case all arose from the allegations of 3 children, two of whom gave evidence, and one who did not.
Re AA and 25 others 2019
- The essence of the applications depends on certain assertions of fact. There is no doubt that all the allegations in this case are based on the evidence given by those three girls. Two of them gave oral evidence and one did not. There is no external corroboration of their evidence and their evidence involves multiple allegations of perverted sexual abuse over many years, often conducted in group activity. There is no doubt that each of these three girls suffered an abusive background in their parental home, have been victims of emotional damage and suffer from educational deficits.
- There has been a prolonged police inquiry over very many months, which has resulted in a decision to take no further action, the Crown Prosecution Service having agreed with the police that the evidence available did not meet the evidential threshold for a criminal prosecution.
- The manner in which the allegations emerged has been the focus of much of the evidence, coming as it did from diaries which all three girls were encouraged to keep, followed up by long conversations with their foster carers and protracted and repeated ABE interviews, which were by far the longest that I have ever encountered in my experience, and one has to recognise that there are substantial arguments upon which a challenge to the reliability of the evidence can be advanced.
- It was against the whole of this background that I thought it right to entertain and consider these applications and submissions. They were spread over three days, including inevitably some preparation and reading time.
The Judge derived three questions to be answered
First, has the court the power at this stage to hear and determine an application to dismiss proceedings of its own motion under case management powers and/or in response to an application by a respondent that there is no case to answer or in some other respect?
Secondly, if the court has such a power, on what principles or basis should it be exercised? It is right to say that this particular question has never been considered because previous decisions made in the context of their own facts have never really fully determined the answer to question one, as the cases have been determined within that context of their own facts.
- The third question is: if the principles are wide enough to cover the circumstances of this case, should the court intervene in some or all of the 15 care cases that are being heard together here?
- Can I?
- If I can, how should I decide whether to?
- In this case, should I?
It is a beautiful judgment, right at the end of a very long judgment about findings of fact.
- I have come to the conclusion that the correct modern approach to this is to be found in the case of Re T G (Care Proceedings: Case Management Expert Evidence)  1 FLR 1250.
- Paragraphs 24 to 28 are expressed in the typically trenchant language employed by the then President, Sir James Munby, and I have in particular in mind paragraph 27 where he says this:
- “In this connection, that is to say dealing with evidence, I venture to repeat what I recently said in Re C (Children Residence Order. Application Being Dismissed at Fact-Finding Stage)  EWCA Civ 1489. These are not ordinary civil proceedings, they are family proceedings where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration. It has long been recognised, and authority need not be quoted for this proposition, that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without any need for oral evidence. He may decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of that evidence.”
- “The judge in such a situation will always be concerned to ask himself: Is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise? If there is or may be a solid advantage for the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence, but if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further.”
- I venture with becoming diffidence to add one further paragraph from that judgment, I having been a member of the constitution, and just refer to some words that appear at paragraph 82:
- “In a highly conflicted case where permanent removal and placement are serious possibilities, and that is increasingly the case with young children, it is only the judge upon whom the responsibility for case management should fairly rest. To leave it to the parties is to impose on them a burden potentially so onerous as to be unfair for especially on behalf of parents, no stone should be left unturned, however small it may seem. Of course, if that responsibility is to be discharged, it is essential both that the judge has had sufficient opportunity to master the case and also that judicial continuity is provided.”
- I cite that paragraph for two reasons. One, because it indicates that judicial case management is an art form rather than an application of scientific principles, and also because it seems to me that the court intended all its observations to apply right across family proceedings, even if the illustration in the language used by the President was actually taken from a private law case.
- As I say, I have concluded that that properly represents the modern approach to case management and, accordingly, I am satisfied that the court does have jurisdiction to bring proceedings to an end at any time before the conclusion of the final hearing. I am satisfied that the combination of statute and rules give the widest powers of control of case and trial management to the individual judge.
So yes, the Court CAN
(Honourable mention to the case of Re R 2009 ‘So long as the applicant sails on into the gunfire, I think the judge has the obligation to hear the case out. ‘ just for being a lovely metaphor)
Now we know the Court can, what are the general principles of whether they SHOULD?
What the thrust of this part relates to is that generally if the LA case has collapsed under them they will normally clock that and seek to withdraw or change tack OR the Judge will make eyebrows at them and suggest a short break to consider whether ‘any application might be made’, but the position up until now has been that if they ‘sail on into the gunfire’ the case continues.
The problem has always been that (a) parents are compellable witnesses and can’t simply refuse to give evidence as they would in crime and (b) the burden of proof is on the LA to prove threshold is crossed. If they haven’t done that by the end of their case, are they allowed to simply proceed and hope that poor evidence from the parents does the job for them?
- if the court has a power, on what principles or basis should it be exercised?
- Mr Richard Pratt QC in his submissions suggested that its application would be exceptional and sparing, and given that such application has never succeeded, he is likely to be right on that, but the question is whether the court can be more specific in identifying the principles upon which any such power would be exercised. In order to do that, the court, in my judgment, needs to take a substantial step back from the current application and look at the very much wider canvas of judicial enquiry in proceedings under Part IV of the Children Act 1989.
- The authorities use a variety of language to describe that process. Some say it is sui generis in civil proceedings, some say it is quasi inquisitorial, and no doubt there are other expressions that can be garnered from the authorities.
- In order, I think, properly to understand what lies behind all this, and perilous though the expression so often has proved to be, it seems to me necessary to go back to basics and to ask: what is the purpose of proceedings under Part IV of the Act? It is, is it not, to determine whether any child or children are suffering or are likely to suffer significant harm, and, to paraphrase, that that harm accrues from a deficit in parenting, and, if so, then to protect and promote the welfare of those children using the principles set out in section 1 of the Act.
- It is extremely important to underline that in family proceedings the cost of a mistake either way is equally serious. If I make a finding in this case against a parent when I should not have made a finding, not only would that be a gross injustice to the parent, but it would disturb, upset and possibly frustrate the lives of children throughout the whole of their childhood, if not beyond. If, on the other hand, I were to fail to make a finding when I should have made a finding, it would be to expose children immediately returned to that person’s care to wholly unacceptable risk of abuse in the future. The cost either way is equally grave and that is an important factor to bear in mind when one is examining what the purposes of hearings under Part IV actually are.
- Moreover, although a determination under section 31(2) to consider whether the threshold criteria are satisfied does not have at its heart the paramountcy of the welfare of a child, these proceedings, like any other proceedings regarding children, always have the welfare of the child as a relevant consideration, and that, of course, must involve the welfare of every child who is subject to these proceedings, all 21 of them. I must consider and reflect on the promotion of that welfare even where the needs of the children are not only radically different the one from the other, but may actually conflict with one another, and that calls for very careful balances, of which this case may well provide a fairly vivid illustration.
- I return to the authorities and in particular to the case of Re S- A-K (children)  EWCA Civ 1834, and, again, to some words of Lord Justice Thorpe, which are to be found in paragraph 7 of that judgment, and he says this:
- “The protection of children in public law proceedings is primarily in the hands of other agencies, but when the case is brought into the judicial arena, the judge is an important partner in the process of child protection. Accordingly it is incumbent on any judge to dig deep, as deep as is reasonably practicable, before arriving at the conclusion that there is no danger to the child and that the child’s account of abusive experience is incredible, not to be believed. It is not a case in which the judge can say that the child is mistaken. A rejection of the local authority’s case inevitably carries the conclusion that the child had made a false allegation against her stepfather. That outcome should not be reached without the judge having the best available evidence.”
- Now, what does that mean in working practice in a trial under Part IV of the Children Act? In my judgment, it means that ordinarily any judge should hear all the available evidence, and that should include the evidence of all those with care of the children who are subject to the application.
- There is a very good reason for that, as is readily apparent from guardians’ reports in this case; they are the people who know the children best, they are the people who have the first responsibility for protecting the welfare of those children, and again, venturing my own experience in these matters, I have often found the evidence-in-chief of parents to be the most illuminating evidence in many a trial for good or ill, it has to be said.
- If this is so, that is to say that the judge should hear all the available evidence including that which I have described, it will be wholly unsurprising that applications of the sort made here are not usually made and do not succeed, and why it is said that they have no part in Part IV proceedings. But whilst that may be the case, it begs two questions, which it seems to me the court in good conscience should confront.
- First: are there any circumstances in practice then where the court will intervene or is this simply a power which is devoid of practical expression? Secondly: how does all that fit with the concept of the local authority having the burden of proof in relation to the establishment of the threshold established under section 31(2) of the Act?
Looking at this further
- …human rights and common justice require that the court should have this power for use as and when it may be necessary. Speculation about when and how it might actually be used is probably as unwise as it is potentially fascinating, and so one confronts the question about what are the implications of all this upon the obligation of the local authority to prove its case.
- The position in the criminal law is fairly straightforward. That is to say, except in those rare cases where the burden of proof is reversed, as occasionally it is, there has to be a sufficient case based entirely on the evidence adduced by the Crown. In civil proceedings, the problem does not arise in practice because any person seeking in civil proceedings to make a submission of no case to answer will normally be put to their election to call no evidence and, accordingly, the problems that were raised by Alexander v Rayson do not arise in practice.
- In family proceedings, that simply cannot be done. No person can be put to their election because they remain a compellable witness and one with an obligation to go into the witness box. Accordingly, since that cannot be done in family proceedings, in my judgment the proper time for the court to apply the burden and standard of proof is not at the conclusion of the local authority case but at the conclusion of all the evidence which the parties want to give and the court considers that it should hear, and therefore that time in this case has not yet arrived. That approach is wholly coherent with the essential and unique nature of family proceedings, whether described as sui generis, quasi-inquisitorial or whatever.
- Now, I should stress that none of this must be read as inhibiting in any way the duty of a judge to control proceedings and to give such indications as he or she might think right as to how a trial should develop. I am considering the specific circumstances of where there is a formal application formally resisted by other parties to the proceedings.
- If it be right then that the broad approach is that these powers will only be used where there is something that impinges on the integrity of the trial process or otherwise is seen as to amount to an abuse of the process of the court, the necessary scope in relation to the third question will be very limited.
So the Court can decide that there is no case to answer and can hear such an application but it is an application that is highly unusual, and the circumstances in which it would succeed would be narrow. The Judge also felt that it should be considered at the conclusion of the evidence (or at least the conclusion of the evidence that the parties want to give and that the Court considers that it should hear)
I think what might come about are applications that the LA haven’t established that threshold is crossed, my client would prefer not to give evidence unless the Court considers that it SHOULD hear from the parent, and if not, then we would move onto submissions. The question of whether a Local Authority who are not over threshold, but not necessarily a mile away from it can get there with the parents evidence as the parents are compellable witnesses and adverse inferences may be drawn if they refuse to be compelled is a question for later litigation. At the moment, we don’t know (but it is PROBABLY yes unless or until the Court of Appeal say not)
It is not a surprise that the answer to the third question – should I do that in this case, was no.