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Pre-flight checklist

 

I found quite a lot of Re F (Children) 2016 to be fairly stodgy porridge, eaten in the Scottish style with salt rather than sugar. That is to say, that whilst it would no doubt have been very good for me, I didn’t enjoy it much and spent most of my time with it pushing it around rather than actually consuming it.

It was Hague Convention proceedings, and I can’t actually face discussing the facts or the decision, which I’ll provide a link to if you are keen to read it.

There were two diamonds in it though, and as they were delivered by the President, expect to see him quoting them in future judgments approvingly and building upon them.

The first was in relation to criticisms about what was missing from the judgment of the original trial Judge. One might expect that the President, who after all authored Re B-S and the call to arms for judgments to show their working and be robust and leave no stone unturned, might get vexed by things being missed out of a judgment, but that of course was BEFORE the Court of Appeal got drowned in appeals and sick to the back teeth of appeals where the decision itself seemed okay but the judgment didn’t tick all of the boxes.

So we have a Court of Appeal shift in emphasis (this has been building over the last two years, but this really does put down a marker.  Don’t come to us on the basis of absence of ‘show your working’ unless the sums are also clearly wrong). I mean, it isn’t often that the Court of Appeal (still less the President) leans on a quotation from Mostyn J to demonstrate a point.

 

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”

 

 

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

 

I’m totally in favour of judgments focussing on a robust analysis of the evidence and laying that evidence alongside the law, and setting out how the decision is reached, rather than the current model I see SO often in the Bailii reports of “If I namecheck and quote from every relevant authority, it will be assumed that I had those principles in mind, so I don’t actually need to show how I applied them, I just need to put in 10 pages of boilerplate that will bore the parties to tears, just to be a boilerplate bullet-proof vest against an appeal”

[I only started seeing those AFTER the Re B-S guidance, but correlation is not causation😉 ]

 

And thus on appeals, Piglowska is back in favour, as opposed to the ‘can I find fault with the judgment’ approach that we had for a year or so post Re B-S

 

 

  • The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

 

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, the court must be wary of becoming embroiled in “narrow textual analysis”.

 

 

The next point, touching on the recent case of Re E, where the Court of Appeal flagged up that the Supreme Court’s decision that there was no presumption, rebuttable or otherwise, that a child ought not to give evidence, did not seem to have filtered through to Courts and lawyers on the ground.

 

As the appeal had already been rejected, the President acknowledged that nothing turned on what he was about to say, but the word “Obiter” is not carved into his heart in Times New Roman 12 point font for nothing…

 

Because, as I have said, nothing ultimately turns on any of this, I can take matters fairly shortly, in large part merely identifying the relevant authorities without any elaborate citation.

 

And then

 

 

  • The starting point is, of course, Article 12(2) of the United Nations Convention on the Rights of the Child and Article 11(2) of Council Regulation (EC) No 2201/2003, commonly referred to as BIIA, both of which identify the obligation on the court to ensure that the child is given the opportunity to be “heard”. Next I refer to the well-known passage in the characteristically prescient judgment of Thorpe LJ in Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011, paras 28-29, culminating in his observation that “judges have to be … alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.” Thorpe LJ returned to the same theme in Re G (Abduction: Children’s Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645, para 15, a case where (see paras 20-21) Thorpe and Smith LJJ themselves met the child, a 13-year old girl, and again in Re J (Abduction: Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457, paras 33, 42.
  • Well before then, in In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, paras 57-61, the House of Lords had indicated that merely enabling the child to meet the judge might not be sufficient. Having observed (para 59) that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done”, Baroness Hale of Richmond continued (para 60):

 

“There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face-to-face interview with the judge.”

I add another possibility, the child giving evidence but without being joined as a party: see Cambra v Jones (Contempt Proceedings: Child joined as party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, paras 10, 14.

 

  • The Supreme Court returned to the topic, this time in the context of care proceedings, in In re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 WLR 701, holding that there is no longer a presumption, or even a starting point, against children giving evidence in family proceedings. In In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038, the Supreme Court considered whether a 13-year old girl, T, should be joined as a party to Hague proceedings. Reversing this court, it held that she should.
  • Next, I should refer to In re M and others (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26, [2016] Fam 1, para 155, and, more particularly, to In re D (A Child) (International Recognition) [2016] EWCA Civ 12, paras 41, 44, 47, 48, where the obligation of the court to ensure that the child is given the opportunity to be heard and “the right of the child to participate in the process that is about him or her” were said to be fundamental principles of universal application, “reflected in our legislation, our rules and practice directions and our jurisprudence” and where it was said that “the theme of the case law is an emphasis on the ‘right’ of participation of those ‘affected’ by proceedings.”
  • Finally, I refer to the very recent decision of this court in Re E A Child) [2016] EWCA Civ 473, paras 46-48, 56-63, and, in particular, McFarlane LJ’s acid observation (paras 48, 56) that Baroness Hale’s judgment in In re W “would seem to have gone unheeded in the five or more years since it was given” and that “the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact.”
  • It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change. Moreover, and I wish to emphasise this, the process of change continues apace.
  • In April 2010, “Guidelines for Judges Meeting Children who are Subject to Family Proceedings” were issued by the Family Justice Council with the approval of Sir Nicholas Wall P: [2010] 2 FLR 1872. In December 2011, and following the decision of the Supreme Court in In re W, the Family Justice Council issued Guidelines, endorsed by Sir Nicholas Wall P, on “Children Giving Evidence in Family Proceedings:” [2012] Fam Law 79. More recently, the whole topic, with other related matters, has been considered by the Children and Vulnerable Witnesses Working Group which I established under the Chairmanship of Russell and Hayden JJ in May 2014. Their interim report was published in July 2014 (see [2014] Family Law 1217) and the final report in February 2015 (see [2015] Family Law 443). The Family Procedure Rules Committee is currently considering the extent to which, given limited resources, the recommendations of the Working Group can be fully implemented. Whatever the outcome of that discussion, it is plain that the further changes in our approach to these matters which are now widely acknowledged require to be implemented, and sooner rather than later.
  • One thing is quite clear: that proper adherence to the principles laid down in In re W will see ever increasing numbers of children giving evidence in family proceedings.
  • One of the drivers for this is the point which this court emphasised in In re KP (A Child) (Abduction: Rights of Custody) [2014] EWCA Civ 554, [2014] 1 WLR 4326, paras 53, 56, namely, that a meeting between the child and the judge is “an opportunity: (i) for the judge to hear what the child may wish to say; and (ii) for the child to hear the judge explain the nature of the process;” that the “purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say;” and that if “the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.” The corollary of this is that, quite apart from all the other drivers for change, there are likely for this reason alone to be more cases in future than hitherto where the child either gives evidence, without being joined as a party, or is joined as a party.

 

 

Heavy hint being dropped there that the Court of Appeal are itching to get their hands on an appeal where a Judge has refused to hear from a child, and that there’s a judicial speech already drawn up to deliver on it. Consider yourselves warned.

 

Achieving best evidence – a very critical examination

 

The Court of Appeal in Re E (A Child) 2016  were addressing an appeal from findings of fact that the father had sexually abused all of the children, including making them have sex with a dog, and of having taken them to hotels given them drugs and pills and allowed other men to abuse them or watch them. (I apologise for that graphic opening, I will try to keep the graphic content out of the rest of the post)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/473.html

 

Quick history lesson – ABE, or Achieving Best Evidence, is the guidelines that were drawn up (and occasionally refreshed and honed) as to the police interviewing of children where allegations of abuse are being investigated. They came about as a result of the Cleveland scandal, where many children were removed into care for allegations of sexual abuse and the investigation process was flawed and nearly all of those children had been wrongly removed. When you think of the “Show us on this dolly where daddy touched you?” style of interviewing, that’s what ABE was aimed to stamp out.  The interviews are video-recorded and can be used as evidence in criminal proceedings and care proceedings – with the idea being that if the guidance is followed in spirit and to the letter, the chance of the child’s evidence having been contaminated or influenced by the person asking questions is reduced to a minimum. It’s really important.  I’m glad that the Court of Appeal are looking at this.

 

Let us start with  the delay between the allegations being made and an ABE interview being conducted.

  1. On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers.
  2. All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court.

 

I have scoured the remainder of the judgment, but it does not seem to me that the delay forms part of the Court of Appeal’s criticism – there are MANY many others. It might, as a practitioner, have been helpful for the Court of Appeal to have been firm about the passage of time that ABE’s are taking – this one, in my experience, proceeded at rocket-lightning pace compared to the average ABE.  Sometimes, that passage of time reduces the chances of an accurate and reliable account being obtained – sometimes that account would rightly exonerate a parent and remove restrictions that are impacting on their family life, sometimes it would point strongly that there’s a case to be answered.

 

When should the Judge in the case see the ABE interviews?

 

In this case, the Judge had not watched the ABE interviews prior to the trial beginning. That, the Court of Appeal suggest, made the decisions she made at the start of the trial less solid (whether police officers should be called, whether the children should be called etc)

Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

  1. It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
      1. ‘(f) whether the case depends on the child’s allegations alone;

(g) corroborative evidence;

(h) the quality and reliability of the existing evidence;

(i) the quality and reliability of any ABE interview.’

So the Judge needs to see the ABE interviews before the trial, in order to have a properly informed view as to whether the children should give evidence.

Fast-track interviews

Within this police investigation, the police officers went to see the children AFTER the ABE interviews were made, and conducted interviews with them to obtain more detail / to check their account. Those fast-track interviews were not recorded.

In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”

  1. Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
  2. Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s).

 

(Whilst I haven’t come across “fast-track interviews” taking place AFTER the ABEs, it has become common and in my view sloppy practice, that they happen beforehand, often as a sifting or viability assessment to see if the child will make any disclosures at the ABE.  They are often labelled as Q and A’s. And I think that they are wrong, for all of the reasons above)

  1. However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:

c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.

d) The short summary note of what each child may have said during the fast track process is wholly inadequate.

[We’ll come back to the many other flaws. Again, I wish that the Court of Appeal had condemned the process of police interviewing children either before OR after the ABE process, but one can read between the lines]

Phase one of the interview not being filmed

Phase one is of course a very critical part of the interview – it is where rapport is built, and any observer can see how it established that the child understands things and understands the difference between truth and lies.  I have never heard of this not being filmed before.

Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded. 

The Court of Appeal add that to the list of findings about flaws in the ABE process.

a) The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.

What came across as the purpose of the ABE

  1. Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
    1. ‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’

D is unresponsive to this and similar requests, which then leads the interviewer to add:

‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’

This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.

  1. Mr Tyler took us to TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
      1. ‘As we have already pointed out, the [ABE] Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we are left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.’ [Emphasis in original]

It is a very easy trap to fall into during an ABE interview, which is precisely why there is so much guidance in Achieving Best Evidence, and why it requires specific training to be able to do it properly, and why sloppiness and deviation from the Achieving Best Evidence guidelines is so important. This is classic Cleveland Enquiry stuff.

I am not attacking these individual officers, I think it is a national malaise that Achieving Best Evidence isn’t as integral to the process as it needs to be.  And of course, police officers are fundamentally trained to investigate a crime and get the evidence of it happening. In an ABE, the fact that there may have been no crime and there may be evidence from the children of that, is just as important.

 

The hour-long break in the interview

 

For one of the children, the interview paused in the middle for an hour. When it resumed, the child was substantially more forthcoming. The obvious question is, what EXACTLY happened in the interim?

 

As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”.

 

The Court of Appeal accepted this as a significant flaw

b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.

 

The Judge’s refusal to call the police officer

 

Given the identified flaws, the Court of Appeal felt that the Judge was wrong to have refused the application by the parents to have the police officer attend Court to give evidence. And of course she made that decision not having seen the ABE interviews themselves.

The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).

 

Judicial analysis of the ABE interviews

  1. The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
    1. a) The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.

b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.

c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.

d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.

e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.

  1. Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly.
  2. Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
  1. i) each child gave a different account to that given by his or her siblings;

ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and

iii) B effectively made no allegations of sexual abuse in his ABE interview.

  1. The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
    1. ‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.

Later, at paragraph 28, she states:

‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’

Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:

‘The inconsistencies in the children’s ABE interviews are addressed.’

  1. I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.

 

 

The children giving oral evidence – the Judge’s decision

 

  1. The question of whether or not any of the children should be called to give live evidence was considered by the judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79).
  2. The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
    1. “[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier.” (Transcript page 7).

“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”

Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:

“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’.

MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.

JUDGE WATSON: Yes.

MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence.

JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-

MS STEELE: I of course-

JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.

MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.

JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.

MS STEELE: No.

JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.

MS STEELE: My Lady I don’t think there’s very much else that I can add-

JUDGE WATSON: No.

MS STEELE: -with what I’ve already said in there and what I’ve said to you.

JUDGE WATSON: Yes.

MS STEELE: There’s really nothing else I can add.

JUDGE WATSON: No.

MS STEELE: Unless you would like me to attempt to-

JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”

 

I found the underlined exchange quite extraordinary. Of course a great deal of care needs to be taken in asking questions of a young child and of course a “gloves-off” attack on inconsistencies that just muddles and mixes up the child is going to be abusive and not advance the case, but the judicial suggestion here that this would be counsel’s agenda is extraordinary. Just my personal view.

 

The Court of Appeal’s view

  1. Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
    1. a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;

b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;

c) In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.

  1. Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

Note particularly this paragraph of the judgment

 

It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.

 

  1. In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.
  2. It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
  3. The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
    1. i) the possible advantages that the child being called will bring to the determination of truth balanced against;

ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’

  1. Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
  2. It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
  3. Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
  4. The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
  5. Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
  6. It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.

 

 

Child’s article 6 rights

 

In this case, one of the children, A was 15 although with some learning difficulties – he was not capable of instructing a solicitor and was so represented by the Guardian and the child’s solicitor. When the Guardian and solicitor met with him, the allegations were discussed. The Judge directed that a note of those discussions be filed and served.

  1. A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
  2. On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
  3. The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
  4. On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
  5. The statement goes on to state that the solicitor explained to A that only A knew if anything sexual had happened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
    1. “I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.

When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …

G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.

[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.

I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”

 

The Court of Appeal point out that A had legal professional privilege relating to that visit and had not been asked to waive it. His lawyer was present, rather than just the Guardian.

 

  1. The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B [1996] AC 487:
    1. ‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
  2. The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.

 

[This all VERY important for children’s solicitors]  The Court of Appeal actually found that A’s article 6 rights had been breached by this procedure.

 

Obviously with all of these flaws, the findings were overturned, and the case sent back for re-hearing.

  1. In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
  1. i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.

ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).

iii) The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.

iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.

v) A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.

vi) The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

Given that all of the police investigations came up with no corroborative evidence and the case was based almost entirely on the children’s allegations and the ABE interviews, the LA will have an uphill struggle at that re-hearing.

Coal Board and Age Assessments

 

It has been a very long while since we had a piece of case law on age assessment. If you are already saying “I bet it involves Croydon”, then gold star for robot boy, well done!

London Borough of Croydon v Y 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/398.html

Y turned up in this country from Nigeria. He claimed to have been born in 1999, and that he had been trafficked here. If true, that would mean that he was a child and entitled to accommodation via Croydon’s social work department and services and would be able to stay until 18. If not true, he would be an adult, and would probably be liable for deportation. [In this case, he absolutely would have been deported, it was the age argument that was putting that process on hold]

There’s therefore quite a vested interest in people who are not under 18 claiming that they are.

A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.

 

[Collins J in A v London Borough of Croydon [2009] EWHC 939 (Admin), ]

 

In this case, Croydon’s age assessment was based largely on Y’s physical appearance (as it was in a case I once had where the alleged 16 year old had a beard that Captain Birdseye would have been proud of). Y judicially reviewed that decision.

The Court gave some directions

 

5.On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day fact-finding hearing in order to determine Y’s date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.

  1. The trial was fixed to start on 8 February 2016

 

Croydon then made an application to strike out the claim

 

On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment

 

[I’m not QUITE sure why that was an application to the Upper Tribunal Asylum and Immigration Chamber, rather than to the Judge who had given case management directions in the judicial review. It rather seems to me that those were applications for case management directions /orders in the judicial review fact finding, but the Court of Appeal don’t take up that point, so perhaps it is just a bad one on my behalf]

You’ll have seen the reference to Starr v National Coal Board 1977. It is not the same National Coal Board that comes up very infrequently (in judicial bias cases or recusal cases, citing Lord Denning’s remark that the Judge had intervened too much and ‘descended into the arena’)

 

The Starr principles

  1. The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.
  2. At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H:
    1. “I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.”
  3. At p 75H, Geoffrey Lane LJ said:
    1. “…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.”
  4. Cairns LJ said much the same at p 77C.

 

It is a damn clever argument, and ’nuff respeck to whoever at Croydon came up with it. Essentially, relying on these Starr principles to say “If we are having to defend a case, but the person bringing it refuses to cooperate with assessments that we reasonably ask him to participate in, the case should be thrown out”

The Tribunal disagreed, and hence Croydon went to the Court of Appeal.

 

The decision at first instance

 

  1. The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following:
    1. “My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant’s representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

2. I consider that the fact that the applicant’s representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now.”

  1. Further light is shed on the judge’s thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said:
    1. “(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child.

(3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged.

(4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application.”

The grounds of appeal

  1. Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.

 

The Court of Appeal concluded that the Starr principles DID apply  (this was something of a shock to me when I was reading the case, though not an unpleasant shock) and that thus the appeal must succeed

 

Discussion

  1. It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too “draconian” or in modern parlance “disproportionate”. On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim.
  2. On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application.
  3. I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had “considerable sympathy with the application”; he thought that it was “most unfortunate that [Y’s] representatives have come to the conclusion that they will not cooperate”; and he considered that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”.
  4. As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings.
  5. The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.

 

Given what is said here, the door is at least ajar for people arguing that the Starr principles that a person is entitled to insist on another party being assessed by an expert of their choice should apply to private law family cases, where two parents are arguing about who is suitable to look after their child and how much time the child should spend with the other. I think that it is more of a stretch for care proceedings (the Local Authority, who want the parent to undertake an assessment, are the applicant, not the defendant)

This part of the Starr principles though, I can see being deployed

 

The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant.

 

Not perhaps so much with whether there should be an expert assessment at all, since that is rather covered by the Children and Families Act 2014 which sets out the ‘necessary to resolve the proceedings justly’ test, and Starr as case law can’t override later statute. But in a case where a Local Authority want the father to be assessed by Dr Leighton Buzzard, and the father would prefer Dr Ashby De-la-Zouch, then Starr (and this case) might be usefully deployed. The strong suggestion is that the witness should be of the defendant’s own choosing.

 

[I can also immediately sense that Ian from Forced Adoption will be wanting to deploy Starr and this case to say that a parent should be entitled to call evidence at a final hearing from whatever witnesses they choose – usually character witnesses, and it will be interesting to see how the Courts deal with that sort of argument]

Many of you who are familiar with age assessment cases are pondering the use of dental X-rays, which are pretty controversial in age assessment determination (in terms of reliability, efficacy and ethics of undertaking an X-ray when there is nothing medically wrong with a person for purely forensic purposes many dentists are unhappy about it). The Court of Appeal acknowledged those issues, but concluded that it wasn’t a reason for refusing to undertake the assessment.

it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental x-rays will be investigated at the hearing.

 

 

The unspeakable in pursuit of the inaudible

A quirky appeal this. The Magistrates Court heard evidence at a final hearing and were so impressed by the mother’s evidence that they declined to make Care Orders and Placement Orders and made instead Supervision Orders which would have kept the children with her.

The Local Authority and Guardian appealed.

At the appeal hearing, before HH Judge Parker, the Court sought a transcript of the evidence from the Magistrates Court hearing but whilst everything else came out clearly, most of the mother’s evidence (surely critical) came back as “inaudible”

HH Judge Parker decided to hear evidence from the mother, so that he could hear for himself the evidence that had persuaded the Magistrates. He was not so persuaded. He allowed the appeal and set it down for re-hearing, before himself.

This decision was then appealed to the Court of Appeal by the mother, on the basis that rather than determining an appeal, HH Judge Parker had embarked on a course of action that was half-way between an appeal and a re-hearing, and that having made those findings after hearing evidence from the mother, he wasn’t the right person to deal with the re-hearing

 

Re C (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/356.html

 

Judge Parker was himself engaged upon an appeal against orders made by lay justices sitting in the Family Court in care proceedings. The local authority had sought care orders in relation to E and K, as recommended by the social worker, the guardian, and a psychologist who had assessed the children’s mother. However, having heard the mother giving evidence for over three hours, the justices concluded that she had made material changes in her life and acknowledged past problems, and they differed from the recommendation of the professional witnesses. Accordingly, on 29 October 2015, they made supervision orders which, absent the local authority’s appeal to Judge Parker, would have resulted in the children returning to the care of the mother. The local authority, however, appealed contending that there had been serious procedural irregularities and that the decision of the justices was wrong for a number of reasons.

 

  1. At the outset of the case on 11 January 2016, the judge made a further case management direction, namely that the mother would give oral evidence at the appeal hearing. This was an unusual course and the judge gave a short judgment on 11 January explaining why he had adopted it.
  2. In preparation for the appeal hearing, a transcript of the evidence of several of the witnesses at the care hearing had been sought, including that of the mother. The judge considered the transcript of the mother’s evidence “woefully inadequate”. There were many references to her evidence being inaudible and, in the judge’s view, this rendered the transcript “incoherent”. He thought it was “of insufficient quality for the court to perform a proper assessment of the mother’s evidence”. This concerned him because he thought it would disable him from carrying out what he saw as a necessary part of his function on the appeal. The judge’s concern and his reasoning for the solution he adopted appear from the following passages in his case management judgment:
    1. “5. ….. This court, the appellate court, is …. being asked to express its judgment on whether the magistrates were wrong based upon an inadequate transcript of the mother’s evidence, setting that against the findings of the magistrates and also, of course, the written evidence and transcripts presently held of the psychologist and also the written evidence of the social worker and, I anticipate, the written evidence and transcript of evidence of the children’s guardian.

6. My real concern about approaching the case in that way is that the mother is prejudiced. How can it be in the mother’s best interests, when that part of the evidence that was the basis for reliance within the judgment of the magistrates, namely the mother’s evidence before them – the single most important piece in the jigsaw for the magistrates, looking at their written reasons – that the appeal proceeds without a coherent account of what the mother said, that appears to have been so persuasive for the magistrates that they felt able to reject the evidence of the three experts? Of course, in my judgment, the answer to that is that it cannot be in the mother’s best interests. She has to have the option of restating her case in a coherent way before the appellate court such that her case can be put as well and as strongly as it can be put. If the opposite view was taken by this court then the court would be left considering an incoherent account of the mother’s evidence set against coherent accounts of all those witnesses who gave evidence that was the antithesis of the mother’s case. Fairness, in my judgment, demands in this case that the mother has the opportunity to put that evidence again before me.”

  1. In so deciding, the judge recognised that ordinarily appeals are dealt with by way of review but he seems to have seen the process that he instigated as a re-hearing, within the provisions of Rule 30.12 of the Family Procedure Rules 2010.
  2. The appeal hearing and the order of 14 January 2016
  3. The mother duly gave evidence orally to Judge Parker and he set out what she said, and his impressions of her, starting at §36 of his judgment of 14 January 2016. At §60, he came to ask himself whether, “based on the available evidence …. the magistrates were right to find that the mother was in a different place to February 2015” when the children had come into foster care. He accepted that she had resolved some of her problems, but concluded that there was insufficient evidence of material change and that there was a high risk of a relapse, which could not be managed by a supervision order. He determined that, for a number of reasons which he set out, the justices had been wrong to reach the conclusion that they did. He concluded his judgment in this way:
    1. “In those circumstances, the appeal is allowed and the matter will now be listed for re-hearing on 8 February.”

 

A tricky situation – clearly the mother’s evidence formed a pivotal part of the reasoning of the Magistrates in deciding that the mother had made sufficient changes and showed sufficient insight to merit the children being in her care, and if the tape and transcript was inaudible, it would be difficult to conduct the appeal. However, is it fair to have one witness give evidence again (when she had already done so to the Court’s satisfaction, and it was not her fault that her evidence was inaudible when heard on tape) ?

 

[The remark at para 42 that the usual principle that an appeal Court should be reluctant to interfere with the findings of fact and assessment of witnesses made by the Court at first instance “applies all the more strongly to an appeal where the decision is about the future of a child” is interesting. Expect to see that come up in skeletons and judgments again]

Discussion

  1. In setting out my conclusions about the appeal, I propose to say as little as possible about the facts of the case and the conclusions of the justices because, by our order at the end of the appeal hearing before us, we remitted the local authority’s appeal to the Family Court for re-hearing. I would not like anything I say to influence or undermine that process. This is particularly so as we did not hear argument about the substance of the local authority’s appeal, the concentration being rather upon the process adopted by Judge Parker. Fortunately, it is not necessary to go into the details in order to explain why I formed the view that I did of matters.
  2. The provisions of Rule 30.12 of the Family Procedure Rules 2010 which governed the appeal to Judge Parker in this case are almost identical to the provisions of Rule 52.11 of the Civil Procedure Rules 1998 which govern a large number of other types of appeal, including those to the Court of Appeal. Both rules provide that “[e]very appeal will be limited to a review of the decision of the lower court” unless different provision is made elsewhere for a particular category of appeal or (the provision upon which Judge Parker relied) “the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing”. As for oral evidence, the default provision, set out in Rule 30.12(2) and Rule 52.11(2), is that it will not be received and, although the power to permit it does exist, in practice it is very rare indeed for there to be oral evidence on appeals.
  3. In the vast majority of cases, no question of an appeal taking the form of a re-hearing even arises, the general rule that appeals are limited to a review of the decision of the lower court simply being observed as a matter of course. Counsel for the appellant mother cited a passage from In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 which underlined how rare it is for an appeal to be dealt with by way of a re-hearing and identified the attributes of the exceptional cases in which this occurs. Although, in this passage, Lord Neuberger was focussing particularly on the role of the appeal court when considering the proportionality of an order made by the first instance court, I see no reason why his comments should be confined to that situation:
    1. “86. …..There is, in my view, no reason why the Court of Appeal in a case such as this should not have followed the normal, almost invariable, approach of an appellate court in the United Kingdom on a first appeal, namely that of reviewing the trial judge’s conclusion on the issue, rather than that of reconsidering the issue afresh for itself.

87.  That this is the normal function of the Court of Appeal is made clear by CPR 52.11, which states that, save in exceptional cases, every appeal is limited to a review rather than a re-hearing and the appeal will be allowed only where the decision of the lower court was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. The ‘exceptional cases’ are, as a matter of principle and experience, almost always limited to those where the Court of Appeal (i) decides that the judge has gone wrong in some way so that his decision cannot stand, and (ii) feels able to reconsider, or ‘rehear’, the issue for itself rather than incurring the parties in the cost and delay of a fresh hearing at first instance.”

  1. If the question does arise as to whether it would be in the interests of justice to hold a re-hearing, the court will look to see whether there are any special features which support a departure from what is overwhelmingly the normal course. In so doing, it seems to me that the court has to keep firmly in mind the limits of its proper role as an appeal court. The authorities are peppered with reminders that an appeal court should be reluctant to interfere with the assessment of credibility and the findings of fact made by a trial judge who has seen the parties and the other witnesses. For present purposes, I alight upon what Lord Wilson had to say on the subject in In re B (A Child) (supra), where he dealt also with the approach that should be taken by an appellate court to a decision of a family judge about a child’s future:
    1. “41. Into its review of a trial judge’s determination of a child case an appellate court needs to factor the advantages which the judge had over it in appraising the case. In Piglowska v Piglowski [1999] 1 WLR 1360 , 1372 Lord Hoffmann said:

“The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1, 45: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based on much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made on him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.'”

42. Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask “are the local authority’s concerns about the future parenting of the child by this witness justified?” The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child.”

  1. In the present case, it was the justices who had the advantages of the trial judge, and Judge Parker, as the appeal court, was bound to approach their decision with the respect described by Lord Wilson. When deciding what to do about the inadequacies in the transcript, he should have asked himself what part the transcript could legitimately play in the appeal process, bearing this in mind. As his role was not to attempt to reassess the mother’s evidence himself at second hand, on the basis of the transcript, with a view to determining whether the justices’ reliance upon her had been misplaced, did he actually need a complete transcript of her evidence?
  2. In order to answer this question, Judge Parker needed to consider how the local authority proposed to put its case before him. There can be appeals where a detailed study of what a witness said is required. However, nothing in the argument that this local authority sought to advance to the judge by way of appeal turned on any particular passages in the transcript of the mother’s evidence. It was not their case that the justices had mistaken or failed to give weight to particular things that the mother said in the course of her evidence and, if I recollect correctly what was said to us in submissions, the local authority had not in fact sought a transcript of any of the evidence themselves; the idea came from the judge. The thrust of their appeal was that the justices had failed to evaluate the mother’s evidence having proper regard to the history of the case and the other evidence, including that of the guardian, the social worker and the psychologist, and that their conclusion that her evidence established that there had been real change in the situation which had caused problems for the children in the past was untenable. An appeal on grounds such as this would normally be advanced by means of submissions drawing attention to aspects of the evidence which demonstrated the flaws in the justices’ conclusions and to deficiencies in their written reasoning. It is by no means always necessary to have a transcript of the evidence in the court below for this purpose and especially where the argument does not turn on precise words used by the witnesses in the course of oral evidence. However, if the judge thought that he needed better information about what the mother said than emerged from the imperfect transcript here, he should have explored alternatives methods of obtaining it, rather than simply embarking upon re-hearing her evidence. The transcript provided a good framework, even if deficient in some details, and notes of evidence taken by counsel who appeared before the justices might well have filled in the gaps sufficiently, for example.
  3. This was not, in my view, one of those exceptional appeal cases in which a re-hearing was required in the interests of justice. Indeed, as things turned out, the process disadvantaged the mother. By directing at the outset of the appeal that she would give evidence again in front of him, it seems to me that, albeit for the very best of reasons, Judge Parker inadvertently deprived her of the opportunity to attempt to persuade him that the favourable determination of the justices should be respected, recognising their advantages as the tribunal which had heard all the evidence, and reached conclusions in the light of it. Given the nature of the local authority’s appeal arguments, there was no need for him to have proceeded in this way and it was inappropriate for him to have done so.
  4. It was submitted to us that the process before the judge was confused, having elements of both a re-hearing and an appeal. I agree with that submission. The confusion is demonstrated not only in the hearing itself but in the directions that the judge gave afterwards which provided for a further re-hearing in front of him, with his adverse findings about the mother carried forward to that re-hearing. The whole process undermined the mother’s position, despite the judge’s intention that it should assist her. The favourable findings of the justices, reached following a hearing at which oral evidence was given by all of the key witnesses, were dislodged in favour of adverse findings made by the judge, who had heard only from the mother. In fairness to the judge, it should be recognised that the mother’s counsel did not seek to put questions to the other witnesses. He explained to us that, having unsuccessfully resisted the judge’s proposed course of hearing oral evidence from the mother, he understandably did not consider that it would be appropriate to appear in this way to be agreeing to the process that the judge had imposed, and nor did he consider that cross-examination would assist. However it came about though, it was not fair to the mother for the adverse findings made at a partial re-hearing of this kind to be carried forward into the next re-hearing.
  5. So, for the reasons I have set out, I concluded that the process adopted by Judge Parker on the local authority’s appeal to him was not appropriate or fair to the mother, even though he embarked upon it with the best of intentions. The proper course was therefore to set aside all the orders that he had made in connection with the local authority’s appeal and to return the matter to the Family Court for that appeal to be determined afresh. Although, at the hearing before us, it was contemplated that directions would be given by the Family Division Liaison Judge for the Northern Circuit with a view to the local authority’s appeal being listed, it was subsequently arranged that Judge de Haas would take charge of the directions instead. It is not necessary, or desirable, to say more on the question of the mother’s application for a further report on the situation to be commissioned from an independent social worker. This is more properly the province of the judge dealing with the continuing proceedings at first instance.

A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

 

I always love a diplomatic immunity case.

This is the Court of Appeal’s decision in Al-Juffari v Estrada 2016

https://www.judiciary.gov.uk/wp-content/uploads/2016/03/approved_judgment_rhd_estrada_v_juffali.pdf

 

and is the one that sent our much-beloved (Subs, check this please) Foreign Secretary off crying to the Guardian and other places because we can’t have our naughty English Courts inconveniencing Saudi billionaires or where will it end?

http://www.theguardian.com/law/2016/mar/22/hammond-criticises-judge-for-stripping-diplomatic-immunity-from-saudi-billionaire

Anyway, this relates to the claim by the Wife for a divorce in this country, and for a financial settlement. As the one detail that leapt out at me was the value of the former matrimonial home being about £100 million, one can see why.

Mr Al-Juffari claimed that the Court had no jurisdiction, because he was appointed by Saudi Arabia as the Permanent Representative of St Lucia.

At first instance, Hayden J made two decisions – first that in looking at this diplomatic immunity, the facts were that Mr Al-Juffari had not actually ever carried out any functions AT ALL in this role and this it was an

 

“artificial construct” designed to defeat the jurisdiction of the court;

This seems on the facts, quite reasonable to me. If you’re relying on a job to be your get out of jail card, at least have the decency to actually be doing that job. Otherwise it’s like playing Monopoly with someone who has at their immediate beck and call a printing firm to produce facsimile Get out of Jail cards as and when required.

[As a little tip, just don’t play Monopoly with Saudi billionaires – they are in a position to buy up Waddingtons*, and demand an immediate rule change in their favour be hand-delivered to every owner of a Monopoly set if they are losing.   * Now Hasbro. Grrr. On the plus side, the Dubai version of Monopoly has some truly amazing hotels. ]

 

Having referred to a number of cases in which the compatibility of the grant of immunity from jurisdiction with Article 6 of the European Convention of Human Rights (“the ECHR”) has been considered, the judge concluded at para 34:

“The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the ‘functionality’ or ‘effectiveness’ of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If ‘functionality’ is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ’s terms, the diplomat is not ‘en poste’, there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W’s right of access to a court.”

21.

The reference to Diplock LJ was to Empson v Smith [1966] 1 QB 426 at p 429C. At para 35(vi) of his judgment, the judge found that since his appointment, “H has not undertaken any duties of any kind in the pursuit of functions of office”. He said that W had provided persuasive evidence that H’s health was such that he was not in a position at present to fulfil any ambassadorial duties. At para 36, he said:

“H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.”

22.

At para 40, he said that he was “not prepared to accede to H’s request to strike out W’s Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.”

 

However, the Court of Appeal had to disagree  (not that it was an artificial construct, but that the English Court had jurisdiction to inspect what was going on, rather than just taking the word of the Foreign Office that a person has diplomatic immunity)

 

Section 8 of the 1968 Act provides that, if a question arises in any proceedings before the English courts as to whether a person is entitled to any privilege or immunity, a certificate issued under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. I have set out at para 18 above the facts the truth of which is conclusively proved by the certificate in the present case. If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by H. That is not surprising. The policy reasons justifying the conclusiveness of FCO certificates has been discussed most frequently in the context of issues relating to State immunity. For example, in The Arantzazu Mendi [1939] AC 256, Lord Atkin said:

“Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.”

 

 

As the FCP had provided a certificate saying that Mr Al-Juffari had immunity, that was the end of it.

 

The second question that Hayden J had to decide was whether Mr Al-Juffari was permanently resident in England. Why is that important? Well, because the  Specialised Agencies Convention and the Headquarters Agreement which governs what rights, privileges and immunities a person who is a Permanent Representative has says this:-

 

“(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].

and

(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

but

(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. “

So if Mr Al-Juffari was permanently resident in the United Kingdom, he would only be immune for actions undertaken as part of his official functions (and as we’ve already established, he hasn’t done any. He certainly didn’t marry his wife as part of those functions)

On the facts, it seemed to me rather dubious that he was permanently resident in the United Kingdom

H was born in the Lebanon in 1955. He is a Saudi national and domiciled in Saudi Arabia. He is a member of a large Saudi family of immeasurable wealth. The family has, throughout his life, had a close connection with the UK. In particular, a substantial property, Bishopsgate House, near Windsor Great Park was bought many years ago by H’s father as a family estate for use in summer holidays. The family also had a flat in London. For a time H attended Oxford University before going on to university in the US.

71.

For many years H has had a visa which enables him to spend 180 days in the UK each year without compromising his non-resident tax status. In common with men of his wealth and background, he crosses and re-crosses the world, largely by private jet, staying in properties in various countries owned by, or on his behalf, through elaborate financial structures. The figures produced by Mr Alammari show the division of H’s time over recent years to have been largely spent between Saudi Arabia, Switzerland and the UK; the majority of his time over the period being spent in Switzerland closely followed by Saudi Arabia.

Can one really be permanently resident in a country where the visa only allows you to spend 180 days there? Note also the lack of time in St Lucia…

However,

H has been married three times. His first marriage in 1980, was to Basma Sulaiman, a Saudi national. There were three children by that marriage, M, D & H; each of whom (in common with all H’s children) were born at the Portland Hospital in London. It is common ground that at least the eldest of those children has a British passport.

73. Critical to his ultimate finding that H was permanently resident in the UK, the judge found in relation to this marriage (as with each of his marriages) that ‘the family home was based in the UK’ and that the children were educated in England and speak English.

 

In his overall analysis, Hayden J reached this conclusion that the choice of Mr Al-Juffari as to where to raise his children was a magnetic factor, and thus he concluded that Mr Al-Juffari was permanently resident in England.  (I think he’s about as permanently resident in England as Sean Connery is permanently resident in Scotland, but the Court of Appeal say otherwise)

 

“65. In my survey of the background of H’s life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer’s team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.

66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is ‘unlimited in period’, to adopt Langton J’s phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H’s intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H’s appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the ‘but for’ test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.

And thus, Mr Al-Jaffari does not get to hide behind diplomatic immunity to defeat his wife’s divorce claim. He won on the first point (where I think the facts were completely behind Hayden J but the law wasn’t) but lost on the second point (where I think the facts were pretty iffy but the law backed Hayden J up)

For the reasons that I have given, I consider that the judge was wrong to hold that H is not entitled in principle to immunity from W’s claim. But the judge was entitled to conclude on the facts that H is not entitled to immunity because he is permanently resident in the UK and the claim does not relate to any official acts performed by H in the exercise of his functions. I would dismiss the appeal. It is, therefore, unnecessary to consider the issues raised by the Respondent’s Notice.

 

The right outcome, although by a peculiar route. Having said that, I’m SURE Mr Al-Jaffari will appeal to the Supreme Court. The legal costs are miniscule compared to the sums that are being litigated here.

 

 

 

 

 

 

Appeal about the transparency in the Poppi Worthington case

 

At first glance, this looked a bit  “Let me just fix this stable door, it is SO much easier without the horse being in here getting in the way and standing on my foot“, but the appeal was actually heard in November  BEFORE the re-hearing of the fact finding, and it is just that we’ve only today had the judgment itself.

I know that some people were curious about how much material was allowed to be reported (for example Poppi’s name, and the name of the father) and some were curious about the ‘live’-tweeting aspects and the Press being present during the hearing itself.

Re W Children 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/113.html

Mr Justice Peter Jackson had given a decision about his plans as to what could or could not be published, in advance of that re-hearing and what role the Press could play.  The Guardian appealed that decision, supported in part by the father. The mother and Local Authority were neutral.

The Court of Appeal were asked specifically to consider what role the welfare of the children had to play in a decision about reporting and press attendance. They bravely duck that question  (to be fair, I think it ends up being a conflict between some  authorities one of which is a House of Lords case, so it has to be resolved ultimately by the Supreme Court). Given that the Guardian’s case was largely based on the degree of openness and transparency here being inimical to the welfare of the other children, that decision was pretty fatal to the appeal.

  1. During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23rd November 2015 and that decision was based upon the children’s welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable, must fall for determination by this court on another occasion.
  2. The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146.
  3. Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child’s welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.

 

Counsel for the Press association (the always excellent Caoilfhionn Gallagher) set out the case for openness and transparency in this case very well  – and it really explains why so much was allowed to be reported in this case.

a) In the unusual circumstances of this case, the judge’s decision on publicity and reporting is entirely justified for the reasons that he gave after giving careful thought to the submissions of each party;

b) In general, there is a strong principle in favour of open justice which has long been regarded as integral to protecting the rights of those involved in court proceedings, and as essential to maintaining public confidence in the administration of justice;

c) The President of the Family Division has drawn attention to the importance of transparency in the context of family justice in Practice Guidance Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733 and in a 2014 consultation document Transparency – Next Steps;

d) The Practice Guidance identifies two classes of judgment, (i) those that the judge must ordinarily allow to be published and (ii) those that may be published; the present case falls into category (i) and there is therefore a strong presumption that the final judgment should be published in due course;

e) There is already an extremely strong public interest in transparency being applied to this case at this time;

f) The Appellant’s acceptance that paragraph [1] to [100] of the July 2014 judgment should be published, which contains a summary of the medical evidence, renders illogical her opposition to the publication of the remaining paragraphs (albeit in a redacted form);

g) There is already substantial publicly available information regarding the injuries that Poppi sustained prior to her death and the fact that her father had been arrested with respect to an allegation of sexually abusing Poppi. Reference is made to the clip of media reports provided to the court;

h) Daily news reporting is justified against the backdrop summarised in (g) above and is justified in this ‘highly unusual’ case. In any event the judge will retain some measure of control over reporting through the ability to impose a retrospective embargo if some particularly sensitive material is disclosed in court;

i) The challenge relating to the judge giving judgment in public is misconceived as the judge did not make any such direction. His proposal to sit in private, with the media in attendance, prior to publishing the judgment was entirely proportionate in the circumstances.

 

The Court of Appeal concluced that this was unusual, but that Poppi was  ahighly unusual case, given that so much was already within the public domain. They largely upheld Mr Justice Peter Jackson’s decision, albeit limiting the amount of medical information that was to be published from the original finding of fact judgment (you may recall at the time that the judgment published initially had such huge chunks redacted from it that one couldn’t see what father was alleged to have done and it was left to astute reading to see that taking a sample swab from father’s penis suggested something very dark. )  They also said that tweeting from Court would have to wait until the end of the day, when the Judge could consider anything unusual arising from the evidence and give directions about it.

 

  1. Ms Gallagher accepts that daily reporting of a child protection case was unusual, but she submits that this has now become a highly unusual case in terms of there being a second fact finding hearing in circumstances where a good deal about the case is now in the public domain.
  2. During the hearing the court asked for more detail of the arrangements that the judge had put in place to maintain some control on the material that could be reported by press representatives who were attending court. The judge’s proposal was that if, for example, a witness were to give unexpected evidence, the disclosure of which might unnecessarily breach the Article 8 rights of the children, or more generally cause them unnecessary harm, the court could embargo that part of the evidence from that which could otherwise be reported. The wording of the judge’s order on this point was that ‘such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing’.
  3. In considering the appeal on this point, the starting point must be that the introduction of a facility for daily reporting of an ongoing fact finding hearing in a child protection case is indeed highly unusual. It is not profitable to debate whether this is or is not the ‘first’ such case. For my part, in a slightly different context, I recall that there was widespread national media reporting day by day of the sad case of Re RB [2009] EWHC 3269 (Fam); [2010] 1 FLR 946; other judges will no doubt be aware of other cases. Be that as it may, no party submits that Jackson J was acting outside his powers by permitting daily media reporting. For the reasons that I have given at paragraph 37, such a course was plainly within his discretion.
  4. In circumstances where, as the Appellants have accepted, the final judgment will be published in due course, the issue of daily reporting relates to the quantity and timing of reporting rather than to reporting the facts of this case as such in principle. It is a matter that calls for a proportionate approach, over which a trial judge is entitled to exercise a wide margin of discretion; as I have stressed, in the present case that is particularly so with respect to this trial judge at this stage in this trial process.
  5. Although I must confess to having a feeling of substantial unease at this degree of openness at the start of an unpredictable fact finding exercise, I am clear that it is simply not possible to hold that Jackson J is wrong in his analysis of the issue and his decision to grant media access to this degree. I am, however, sufficiently concerned about the laxity of the terms of the order dealing with daily reporting as it is currently drawn to stipulate that a further sub-paragraph be added to that part of the order in the following terms:

    ‘such reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, in order to ensure that the court has had an opportunity to consider whether any such additional directions are required.’

    The purpose of this new provision is, hopefully, self-explanatory in that it allows for stock to be taken at the close of the court day so as to identify any aspect(s) of the evidence which should be subject of embargo before any reporting, of any nature, can take place.

  6. The grounds of appeal relating to whether or not the judge should sit in public to deliver his judgment were not pursued and therefore fall away.
  7. For the reasons that I have given, I would therefore allow the appeal to the very limited extent of (a) requiring the removal of reference to any of the medical evidence from the edited 2014 judgment, and (b) inserting a tighter requirement in the court order relating to the control of daily reporting.

 

 

 

It’s time… for Pig to say sorry to Hartley

 

In my youth, there was a TV show called Pipkins, in which Hartley, a moth-bitten hare with a personality disorder lived in a house with a Brummie pig, a monkey called Topov, a creepy tortoise who slept in a shop till and a Zsa-Zsa Gabor type ostrich. There would always be a section in the show where the human presenter would tell one of the characters to say sorry to another – with the “It’s time…. for Pig to say sorry to Hartley”

(There would be a montage of clocks and the noise of clocks striking during the “Time” bit)

 

This looks like the stuff of some sort of fevered Shock-Headed Peter nightmare, not a children's entertainment.  (I am not even showing you the evil tortoise)

This looks like the stuff of some sort of fevered Shock-Headed Peter nightmare, not a children’s entertainment. (I am not even showing you the evil tortoise)

 

That pig looks as though he’s going to lunge at me and eat me from the soles of the feet up.

Besides being largely responsible for my life-long aversion to tortoises (seriously, I have to leave the room or look away if I see one on television, they give me the Fear), that expression always stayed with me.

In the case of Re K (children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/99.html

The Court of Appeal were considering the father’s appeal against a decision that he have no contact with his children, there having been domestic violence between the father and mother and the children having been exposed to some of this. The Court of Appeal granted the appeal, ruling that the Judge had not gone far enough in the duty to exhaust the reasonable avenues of getting contact re-established.

The interesting feature of the case is that both the Judge and the Guardian had become quite fixed on the idea that the father needed to apologise to the mother for his behaviour.

Vos LJ firmly rejected this and it may have a bearing on other cases.

 

I agree, and would only add a few words on one aspect of this case that I found somewhat disturbing. As Lady Justice King has recorded, the recorder seems to have taken the view that the father’s failure to make a genuine and heartfelt apology to the mother precluded him from seeing his children. I cannot accept such a starting point. It may well be that a repentant father would offer a reduced risk of harm to the children, but it is that risk and the welfare of the children generally that are important in contact cases, not any moral judgment of either parent. As has been often pointed out, parents are of all kinds and demonstrate all levels of moral virtue. It is not the court’s job to judge a wrongdoing parent for the sake of doing so, because it will, in all but the most exceptional circumstances, be in the children’s best interests to see their parents. If the failure to apologise posed a risk to the children, that might have been a different matter, but that does not seem to have been the case here. The recorder was wrong to impose a pre-condition of repentance and apology. Those matters were relevant, but only insofar as they had a bearing on the welfare of the children.

 

 

And if you want some more nightmare fuel, there were Pipkins episodes where Hartley (to my mind a cross between a really annoyed Kenneth Williams and Al Pacino at the end of Scarface) had his own puppet, which was even more malevolent.

 

Will I ever sleep again?

Will I ever sleep again?