I apologise to any readers north of the border for that dreadful gag.
Re M 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2082.html
The quick summary on this was “mother applies to discharge care order and in the alternative for more contact” so I wasn’t expecting much out of the case when I opened it up. But then I saw four Silks in the case and I thought “oh hello”
In very brief summary, His Honour Judge Dowse made findings that a father (F1) had sexually abused a child. The mother’s resistance to accepting those findings and her continuance of a relationship with father led to a series of care proceedings, ending up with seven children being permanently placed away from the mother. The oldest C1 is subject to a Freeing Order but has not been adopted, the next oldest C2 is placed with an aunt, C3-C7 have all been adopted.
And then there is child C8, who is presently living with mother and her new husband (F2) in Scotland, under no orders.
This is the Irn-Brouhaha – the Scottish equivalent of care proceedings was brought in Scotland in relation to child C8 and the Court there concluded that there had not been any sexual abuse, and thus no failure to protect.
That was all well and good for the mother and C8, but raised obvious questions of what should happen with child C1 and C2. If a Court rules that there was no abuse and there is no risk, should they come home?
As you may know, I am no admirer of the 350 page limitation, so I had to smile at this particular line from Hayden J
So scrupulously have the documents been pared down for the application before me, in compliance with the President’s Guidance, that it is not possible to track the evolution of these proceedings clearly from the papers filed.
The big argument for the case was therefore – what legal status does the Scottish judgment on C8 and the sexual abuse allegations have on the English Courts dealing with C1 and C2?
- In the course of the proceedings in Scotland the Court was persuaded to re-open the findings of HHJ Dowse. At the conclusion of the Scottish hearing, before Sheriff O’Carroll, the court reached a very different conclusion. In his judgment of the 30th October 2013 the Sheriff found that he was unable, on the evidence before him, to find that the Reporter (whose status is similar to that of the Local Authority in England) had discharged the burden of proving, to the civil standard, that M and F1 had been involved in the sexual abuse of any of their children. The allegations, on this aspect of the case, had been placed before the Scottish Court in this way:
“2. On various occasions between 22 February 1998 and 1 October 2005, at various addresses in the north of England, exact addresses meantime unknown, M and F1 caused C1, C3 and C4 (who were all under the age of thirteen at the relevant times) to participate in sexual activity and caused them to touch, with their hands or their mouths, the genitals, anus and breasts of M and the penis of F1.
3. Statement of fact 2 demonstrates that M committed an act of lewd and libidinous practices and behaviour. This an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.”
- In respect of these allegations the Sheriff stated in his judgment:
“320. […] However, I am unable on the evidence before me to find that the reporter has discharged the burden of proving to the civil standard that statement of fact 2 is proved. It follows that SoF 3 is not proved.”
By contrast Judge Dowse found:
“Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.”
It is always curious to see how wording differs in other countries – the ‘lewd and libidinous’ adds something here, I think.
Non lawyers may not be aware that Scotland has an entirely separate legal system to England and Wales – the statutes are different, the process is different and they have their own case law. The only time that the cases cross over is when the Supreme Court has to decide a case, when the Supreme Court (which is full of English Judges) has to apply Scottish law to the case and reach a decision. This means establishing whether the Scottish judgment has any legal weight is not a simple task.
25. Mr Tyler and Mr Booth have drawn my attention to: Stare Decisis and Scottish Judicial Decisions, J.K. Bentil,  Modern Law Review 537. They adopt the analysis of the legal status of Scottish judgments on the law in England and Wales set out in that paper:
- “Apart from the fact that some Scottish judicial decisions which go on appeal to the House of Lords may create binding precedents for the English Courts, the effect on English courts of certain Scottish judicial decisions in their own right appears to have received little or no attention this side of the border. Theory has it that generally Scottish judicial decisions are not binding on the English courts but have persuasive effect only. But in actual practice, the weight of authority on this side of the border tends to suggest that certain Scottish judicial decisions, notably those concerned with the interpretation of statutes of common application on both sides of the border, are indeed binding on English courts.”
The ultimate conclusion reached is as set out in paragraph 20 of their Skeleton Argument:
“Although we cannot assert the Sheriff’s judgment to have a formal (in the sense of automatically enforceable) status, it is clear that it has some status, or perhaps better worded, a ‘real significance’.”
I always dread to type the words Brussels II in a blog post, but I have to. (It always makes me think of Stephen Hawking’s publisher telling him that every equation in “A Brief History of Time” would cut sales in half. He only actually used one, in the final version)
Very briefly, if the Scottish judgment here had been in Lithuania, or France, or Portugal, the English Court would have to take it into account, and of course, mother could argue that under article 15 the case ought to be dealt with entirely by Scotland. but Brussels II specifically does not apply to cases between England and Scotland.
In Re PC, YC & KM (Brussels II R: Jurisdiction Within the United Kingdom)  1 FLR 605 Baker J observed at para 16:
“It is widely recognised that the provisions governing conflicts of jurisdiction in children’s cases within the UK are, in the words of Thorpe LJ in Re W-B, supra, at paragraph 29, “difficult and complicated.” He was referring in particular to the provisions of the Family Law Act 1986, but as Miss Green has demonstrated, there is similar difficulty and uncertainty as to the applicability of BIIR to the allocation of jurisdiction within the UK.”
Nonetheless he went on to conclude at para 18:
“Given the clear view expressed emphatically by the Court of Appeal very recently in Re W-B, I reject Miss Green’s submissions and adopt the orthodox view that BIIR does not apply to jurisdictional disputes or issues arising between the different jurisdictions of the United Kingdom. Article 15 could not, therefore, be used to transfer these proceedings from England to Scotland.”
So the nutshell answer, after four QCs have sweated over it and a High Court Judge have looked at it is, “the Court don’t HAVE to consider it, but probably best not to just ignore it”
We then get into the law on re-opening cases.
Hayden J sets out all of that law very beautifully, but I think that I will cut to the chase, which is Lady Hale’s line In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening)  UKHL 35,  1 AC 11.” about situations in which a party wants to challenge findings that had been made by an earlier Court.
“In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”
- “(a) that there is a public interest in an end to litigation – the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so;  1 FLR Hale J Re B (CA Proceedings) (Issue Estoppel) (FD) 295”
- (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but
- (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and
- (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)  1 AC 853, 947, ‘must be applied so as to work justice and not injustice’.
- In a further passage that I find has particular resonance to the issues in this case Hale J observes:
“(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone.”
It is ultimately a matter of Court discretion to decide whether to re-open previous findings, but a Court is allowed to consider that there’s limited value in re-running the case unless there’s a decent chance of arriving at a different outcome.
Of course here, we have two judgments, in different countries, which reach diametrically opposite conclusions. That led to some of the barristers having to argue that the Scottish judgment was an exemplar model of the way these things should be done and that HH J Dowse’s judgment was so flawed it ought to have been appealed anyway (so the Scottish judgment is so superior it establishes a reason for re-hearing) and others having to argue that they were merely Judges reaching different conclusions.
I myself rather liked Mr Howe QC’s approach for the Guardian (but the Judge did not)
- Mr Howe QC, on behalf of the children, engages with these factors in a rather different way and comes to the following conclusion:
“The Guardian has taken into account the impact on C1 of the court concluding that the allegations were not proved but on balance, and for the reasons given, it is submitted that the balance falls in favour of the court permitting some reconsideration of the findings made by HHJ Dowse on 17th October 2007.”
- Mr Howe also submits:
“the weight to be attached to the Scottish judgment does not arise from any assessment of its merit as an expression of the forensic exercise undertaken. The weight of the Scottish judgment is in its effect. Looking at these circumstances from C1’s perspective, it would be incomprehensible to her that the English court did not ‘think again’ and reconsider, not necessarily overturn, but at least take another look at the allegations given what was found in the Scottish court and how the findings there have enabled a relationship between C8 and M and F2 that, on the evidence before this court, appears to be entirely appropriate and beneficial for him.”
- Finally, Mr Howe comments:
“It is submitted that C2 has to be granted the possibility of some relationship with her sibling and mother by the court agreeing to reconsider the previous findings.”
I know that not everyone is fluent in Elegant, so to translate “It is really important for these children to get to the truth, whatever that might be, and whichever of these judgments is right the fact that they directly contradict each other means that at the moment there is doubt, which can only be eradicated by a re-hearing”
[I agree with Mr Howe QC here. But as I told you, the Judge did not. And he was not shy about saying so]
- It is self-evident that the interests of neither child is served by an erroneous determination of fact. Such a statement is platitudinous out of context. More than that it can be a dangerous, siren call unless it is considered carefully alongside the other features identified by Hale J in Re B. It is important to recognise that the factors she there identifies are inevitably interrelated. Thus: the insidious dangers of delay have to be considered alongside the more obvious damage caused by erroneous findings of fact. These tensions are notoriously difficult to reconcile and are ever present in family law.
- As the President identifies in ZZ (supra), the court’s discretion has to be applied so as to work ‘justice and not injustice’ and so the starting point is, again as he identifies, whether there is ‘some real reason to believe that the earlier findings require revisiting’. That seems, to my mind, to resonate closely with the observations of Hale J: ‘whether there is any new evidence or information casting doubt on the original findings’ (Re B supra). With respect to the Guardian, her views as to the value to C2 of ‘having another look’ lose focus on these important principles and fail to give sufficient weight to the real impact on these children of once again re-opening litigation, which itself may fail to resolve the present situation.
- Moreover, I am not prepared to draw the inference, suggested by Mr Howe, that because C1 instigated a further interview, following the Scottish Judgment, she therefore should be taken as signaling a willingness to participate in further litigation. She does not know, for example, what the reach of further litigation might be, nor does she yet have the maturity to understand what its impact on her could be. Before concluding that an issue should be reheard there must really be a substantial reason to believe that further litigation will achieve some clarity. In the light of my view of the validity of each of the respective judgments and finding myself un-persuaded that there are any other solid grounds for believing that a rehearing will result in any clarification of the present position , I can see no basis upon which to grant the application for a rehearing of the English proceedings.
[There is a lot in the judgment about a factual comparison between the judgments, and the basis on which the Scottish courts reached a different conclusion. I’m afraid that you would need to read that to fully grasp why on the facts the Judge felt that a re-hearing of the allegations was unlikely to reach a different result. In very brief terms there were two major issues – that the Scottish Courts had relied on an expert doing something like a ‘veracity’ assessment which is out of favour here and the issues that came up in it were things that HH Judge Dowse had taken into account anyway, and that reliance had been placed on the children saying different things in an ABE interview done years later and the Court felt that this was not unexpected. I wouldn’t say that I end up wholly agreeing with the conclusions, but because the decision here is largely fact-specific, you do need to read those sections to form your own conclusion about whether the Judge here was right. ]
And finally – wider interest
- Finally, I very much regret the delay involved in delivering this judgment. The case provides a powerful reminder of the consequences that ensue when the advocates fail to allow sufficient time in their estimates of hearing for a judge to write and deliver a judgment. The provision of one day to write this judgment is, I hope, self evidently inadequate. All counsel must regard it as a professional obligation to factor time for the judge to write and deliver a judgment into their time estimates. This is a professional duty which should be seen as a facet of the requirement to avoid delay in proceedings concerning the welfare of a child. I take the opportunity here to highlight a pervasive problem which requires to be addressed more widely.
It must certainly be the case that a judgment which requires a Judge to look at the intersection of Scottish and English law, Brussels II and all the law on issue estoppel was foreseeably going to take more than a day to write. I wonder how in a more normal case, counsel are to arrive at a time estimate for a Judge to write the judgment, presumably at IRH so that time can be allocated within the Court listing for the final hearing (Those advocates who feel the case is a slam-dunk are likely to be estimating 2-3 hours, those who are hoping to persuade the Court that the case is finely balanced before tipping in their favour are likely to be estimating 2 days so that the Court can see that this is a really tricky case which will need very long thought)