Half-time submissions (again)

This is a case where the Court was invited to consider at the close of the Local Authority case whether the Local Authority application should be dismissed without hearing from other witnesses.

It was decided by Mr Recorder Howe QC sitting as a Deputy High Court Judge.

BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20 (03 March 2021) (bailii.org)

Long-time readers may remember that Sir Mark Hedley considered this issue in

AA & 25 Ors (Children) (Rev 2) [2019] EWFC 64 (16 April 2019) (bailii.org)

which as it was pre-covid seems like a hundred years ago, but was actually just two years.

No case to answer in care proceedings | suesspiciousminds

In that case, the Court decided that the Court DOES have power to bring the case to a conclusion at a mid-way point, although declined to do so in that case.

In Re BB, the failures in the investigation process were awful but sadly familiar.

16. I have heard oral evidence from a number of professionals who received and recorded allegations made by the children. Those witnesses have included the 2 interviewing police officers, the supervising investigating officer, the foster carers for the children, 2 fostering agency supervising social workers, 2 local authority social workers and a fostering agency support worker. All of these witnesses, except the fostering agency support worker, have accepted that their meetings with the children, be they formal interviews or not, have breached the terms of the Achieving Best Evidence [ABE] Guidance. All of the witnesses, save the fostering support worker, accepted to a greater or lesser degree that their manner of questioning of the children either did or may have influenced the responses of the children. All of the witnesses accepted that they failed to take adequately detailed notes that included detail of the questions asked of the children. All of the witnesses, save the fostering support worker, accepted that they should, in hindsight, have behaved differently and all, other than the foster support worker, agreed that they would now behave differently.

18.The witnesses accepted that the children were given praise and attention when allegations were made. It has been accepted by all that they had questioned the children and not just listened and recorded the allegations made. All of the witnesses, save one interviewing officer, said that they believed the children’s allegations and as a result of that belief accepted that they had not kept an open mind. Both of the interviewing officers accepted that they conducted the interviews with the aim of having the children repeat the allegations they had made to the foster carers or to the fostering support worker.

19,All of the professionals receiving allegations from the children had received either no training concerning the application of the ABE guidelines, had attended training but many years ago that had not been repeated or had received training but could not adequately recall its content. Where some principles had been recalled from training received, all witnesses accepted that they had not applied those principles consistently, or at all, when interacting with the children.

20.It is these breaches of the ABE guidance that form the basis of the submissions made by the Respondents that no court could properly make findings of sexual abuse on the basis of the evidence this court has received. The Respondents have provided detailed schedules describing the breaches of guidance that they submit are present. These schedules particularise the breaches said to have occurred in the investigation of each allegation made by each child.

21. The Local Authority accepts there were very many breaches of the ABE guidance, although it has not in its response to the interim application engaged in any way with the particulars provided by the Respondents. The Local Authority accepts that the court may reach the conclusion that it cannot make the findings sought but it submits that the court cannot make that determination until it has heard all of the evidence in the case, including the evidence of the Respondents.

I think that every time I have written a blog post about a reported case involving Achieving Best Evidence interviews the judgment has always been critical and outlining the flaws in the process. I honestly cannot recall an example where the ABE interview is held up as being even competent, let alone praised for quality. It is so depressing that the lessons from many many cases just don’t seem to be learned. The guidance in Achieving Best Evidence are there to get the best quality evidence about an allegation – whether true or untrue, to help proper decisions to be made about criminal proceedings and about the welfare of children. Failure to properly conduct them leads to confusion, uncertainty, the parents and child being potentially wrongly separated and vast amounts of money and time being spent picking over a flawed interview to see what, if any, reliance can be placed on it.

PLEASE – if you are involved in the conduct of an Achieving Best Evidence interview or the planning of one, or are aware that one is planned to take place, take some time to ensure that the training is up to date, that the principles of Achieving Best Evidence are understood and that the planning of how the interview is to be conducted takes those principles properly into account. Two hours of planning before the interview can save many more hours of forensic dissection of the flaws that emerge, and it is not just the experience for the witness. Poorly planned ABE interviews LET CHILDREN DOWN.

The Court heard the representations from each of the parties as to whether the case should continue until each party had given evidence or be brought to a conclusion at this mid-way point.

The Judge decided:-

59.I have reached the clear conclusion that I cannot, until I have heard all of the available evidence including the evidence of the Respondents, determine the factual allegations pleaded by the Local Authority. In my judgment, there is an evidential purpose to hearing the evidence of the Respondents and I am unable to conclude that no court could properly make the findings sought by the Local Authority. I have reached these conclusions for the following reasons:

(a) I accept the Local Authority’s submission that, in family case, there is an expectation that the parents, and others who have voluntarily intervened, will give oral evidence to answer the allegations raised against them. In Re I-A (Children) [2012] EWCA Civ 582, Etherington LJ said there is a “need for a particularly conscientious and detailed examination of all the evidence” in cases involving allegations of sexual abuse, including the evidence of those accused and any evidence of previous dishonesty by the children making the allegations. At paragraph 22, Etherington LJ said “In my judgment, it would have been right and proper, in a case of this kind where there was a requirement for a detailed and conscientious assessment of all the evidence in relation to each specific allegation, for each specific allegation to be put to the witness so that there was a possibility of refuting it in whole or in part or at any event providing more details”. In my judgment, the need for conscientious examination of all the evidence does not just apply to those aspects of the evidence that might support those facing allegations. It also, in my judgment, applies to the consideration of the Local Authority’s case and the allegations made by the children.
(b) At the ‘half-time’ stage of a case, the Court has heard only part of the evidence. In my experience, the case of a Respondent can often be described as being at its height at the end of the Local Authority case as skilled cross-examination of the Local Authority’s witnesses can often appear to have undermined the reliability of the Local Authority’s evidence. However, save in exceptional circumstances, it is in my judgment the responsibility of the court to provide the Local Authority, and the children represented by the Guardian, with the same fair opportunity to cross-examine the Respondents as the Respondents have had to challenge the Local Authority’s evidence. This ensures the court is able to reach its conclusions on the basis of the best evidence. In my judgment the court should not readily reach a conclusion that cross-examination of a witness would serve no purpose. As described by Munby P in Re S-W [2015] EWCA Civ 27, at paragraphs 55 to 59:

“58. … I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to ‘testing the evidence’ or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.

59. Quite apart from the fundamentally important points of principle which are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing cross-examination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:
    “Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel.”
    In my judgment, these same principles must also apply to the Local Authority as they do to the Respondents. If the court is informed by the Local Authority, in this case an authority represented by Queen’s Counsel, that it has legitimate and forensically necessary questions to put to the Respondents, the Court should be very slow indeed to deny the Local Authority the opportunity it seeks. Of course, the Local Authority’s questions need to be more than a fishing expedition and be addressed to issues that the court must determine. As with any cross-examination, the matters upon which the questions refer must have some basis in the evidence before the Court. If there is no evidence, the witnesses can simply deny the suggestion and the matter goes no further.
    (c) In my judgment, the investigation of inconsistency and dishonesty by the cross-examination of family members is an essential part of the process in public law care proceedings. Much of what the court has to examine takes place behind closed doors. The Court is most often in the dark about what actually took place and has to piece together a picture of what is most likely to have occurred from the jigsaw pieces of evidence, pieces that come from many different sources available and from the different perspectives of each participant in the events being considered. In my judgment, the court should only deprive itself of this otherwise essential source of evidence where it can be satisfied that there is nothing that can be said by the witnesses that will inform its conclusions.

(d) I accept the submission made by the Local Authority that the court will be assisted by hearing evidence from the Respondents, particularly from the parents concerning the sexual knowledge demonstrated by the children in the allegations that they have made. Asking the parents questions on these issues is not reversing the burden of proof. It is a legitimate enquiry to enable the court to understand what might be the sources of this knowledge. The parents may simply not know but, equally, the answers to such questions might provide the court with some insight into how this knowledge developed. The answers to this legitimate and necessary area of enquiry are as likely to assist the parents as the Local Authority.

(e) Similarly, I agree with Mr Thomas that an exploration of the views of one mother as expressed in her police interviews may provide evidence of particular relevance. Why this mother seemingly accepted that her husband had sexually abused the children and, during her interview, threated to kill him as a result of that belief has obvious relevance to the court’s determinations.

(f) In my judgment, the Court can only reach a conclusion that no court could safely make findings after having heard all the available evidence. The Respondents rely on the decision of the Court of Appeal in JB (A Child)(Sexual Abuse Allegations)[2021] EWCA Civ 46, and the decision by Baker LJ not to remit the case for a rehearing on the basis that the breaches of the ABE guidance were ‘on a scale that no court could properly make the findings of abuse’. The decision of Keehan J in Re EF, GH, IJ (Care Proceedings) [2019] EWFC 75 was also relied upon. At paragraph 286, Keehan J said “I am satisfied that the conduct of the police investigation by DC Andrews was so woeful and her conduct with the ABE interviews so seriously and serially breached the ABE Guidance that I can attach little or no weight to the allegations made by the boys and in those police interviews”. Both judgments are said to be illustrative of the likely outcome in this case, it being said that the breaches of guidance here are as bad, if not worse, than those in the aforementioned cases.

However, the conclusions in JB (A Child)(Sexual Abuse Allegations) were reached on an appeal following a first instance trial hearing during which all the evidence had been heard. In his judgment in Re EF, Keehan J describes in detail his impression of the family witnesses and how hearing that evidence supported his ultimate decision that the allegations of the children were unreliable.

There are other reported Court of Appeal decisions that do not order a retrial after a successful appeal (Re W, Re F [2015] EWCA Civ 1300 being just 1 example) on the basis that no court could reasonably have found the allegations proved on the basis of the evidence before the court but no party has drawn my attention to a reported case where such a serious, and determinative, conclusion has been reached without having heard from those accused of perpetrating abuse.

I remind myself that I am considering the evidence in this case and it is not my function to reach a conclusion that ‘no court’ could make the findings sought. My function is to examine the evidence in this case and decide if I find the Local Authority’s allegations proved to the required standard.

(g) I accept that a judicial evaluation of the evidence is required for the 2 examples given by Sir Mark Hedley in AA v 25 Others. However, in my judgment the evaluation of the evidence that is required in this case is much more detailed than is appropriate to undertake at this stage of the case. An expert witness informing the court that an image on an X ray is not, as was previously thought, a fracture may remove from consideration all evidence of an inflicted injury having occurred. There is very little judicial evaluation required. That is a very different situation to the court having to consider each of the breaches of guidance alleged to have taken place and then trace through the chronology to assess how that breach has affected the reliability of the evidence that has come later. In my judgment the number of breaches highlighted by the Respondents does not reduce or remove the need for the court to undertake a detailed evaluation of all the evidence. The number of breaches in this case is closely matched by the number of allegations. What connection one has with the other, if any, is a matter requiring close examination that should, in my judgment, occur only once all the evidence has been received.

60.In my experience, where there are blanket denials of allegations of sexual abuse, the hearing of the evidence from those facing allegations can be a surprisingly quick exercise. If it is said that these events did not happen and are a product of a child’s imagination, the answers to questions are often a simple ‘it did not happen’. However, I have reached the conclusion for the reasons given above that there is a clear forensic purpose to hearing that evidence. The Respondents were present in both homes at times when it is said that these events were taking place. It is, in my judgment, essential that the court hears from them in response to the allegations that are made.

It may well be that in reaching my final conclusions, having heard all the evidence, that I will agree with the submissions now made by the Respondents. I may not. As I said during the hearing of the evidence, I accept that Family Court judges are expressing views about the reliability of the evidence they hear on a daily basis, both at the case management stage of proceedings and during the hearing of the evidence in trial. A ‘judicial steer’ to the Local Authority is an integral part of the Family Justice system that helps to ensure the appropriate use of the court’s resources. In the circumstances of this case, I have required the Local Authority to keep its case under review but I take the view that any further ‘steer’ is unnecessary as Mr Thomas is aware of the difficulties now present in the case he advances on behalf of the Local Authority. I have reached the clear conclusion that it would be inappropriate for me to express any view concerning the consequences of the breaches of guidance on the ability of the Local Authority to prove its case. My conclusions can only be reached after a careful examination of all the evidence and for the reasons given above, I will not make any determinations until after the Local Authority has had an opportunity to ask questions of the Respondents.