B (Children)

The local authority in Medway commenced care proceedings in relation to the B family in the autumn of the year 2006, in the midst of private law proceedings and as a direct consequence of a Section 37 direction that had been given in those proceedings.

The first major stage in the care proceedings was a fact finding hearing conducted by Charles J over 30 days of court sitting in the months of June and July 2007. It seems that 25 of the days were given to oral evidence and 5 to submissions. The judge heard the oral evidence of approximately 20 witnesses. The judge reserved his decision on the last day of the Trinity Term and handed down his reserved judgment on 19 October. He found the Section 31 threshold crossed in a number of respects, but one issue that had been critically fought during the 25 days of trial was whether the 15-year-old stepdaughter and adopted daughter of Mr B had been sexually abused. As to that, the judge concluded:

“i)

I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges or substantially as she alleges, and thus that she is telling the truth,

ii)

I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was not sexually abused by Mr B, and thus that Mr B is telling the truth…”

Later the judge stated his position thus:

“iv)

On an approach founded on evidence and reasoning, and not on suspicion and/or concern, I am unable to conclude that there is no real prospect that Mr B sexually abused R as she asserts or substantially as she asserts and I have therefore concluded that there is a real possibility that he did.”

These conclusions resulted from the judge’s assessment of most if not all family members as being unreliable witnesses, and his difficulties were compounded by a family tradition of raising allegations and counter-allegations that had no firm foundation in fact. So, what was to be done with the essential preparations for a welfare hearing? The judge was very troubled by the position in which he found himself, given the impact of a trilogy of cases in the House of Lords: Re H and R [1996] 1 FLR 80; Lancashire County Council v B [2000] 1 FLR 589; and Re O and N, Re B [2003] 1 FLR 1169.

Accordingly he invited high level assistance from the Bar, and at that stage the guardian, who had been represented by Mr Fuller, brought in Mr Stephen Cobb QC to lead, and I think Miss Pamela Scriven QC came in to lead for R. The judge set aside five days to hear submissions from leading counsel on the authorities and how they compelled the judge’s further directions for the preparation of the welfare hearing. That process commenced on 12 November, and after three days of argument some directions emerged in the second half of November but the judge reserved his conclusions to another judgment, handed down 11 December.

In paragraph 41 of that judgment, the judge concluded that the letter of instruction to the two experts, who it was agreed should be instructed, should be in terms which he set out extensively:

“you will have seen from the summary set out in the paragraphs above that one of the central issues in the case was whether [R] has been sexually abused by [Mr B].

You will also have seen that Mr Justice Charles was not able to find to the required standard of proof (more likely than not) that [R] was so sexually abused, or that she was not.

Although the judge concluded that there was a real possibility that [R] was so abused, your assessment must proceed (in line with guidance from the case-law) on the basis that [R] was not sexually abused by [Mr B], and therefore (and in any event and in respect of all aspects of your assessment) there is no risk that either:

i)

a child in the care of [Mr B] will be sexually abused by him, or

ii)

[Mrs B] will do nothing effective to prevent a child in her care who she knows is being sexually abused, or who she ought to appreciate is being sexually abused, from suffering that abuse.

You are not therefore being asked to assess whether such risks exist and must proceed on the basis that they do not.

However, part of the background, and relevant as such, is the fact that [R] has made her allegations of sexual abuse and they have not been proved, or found to be false, to the requited standard (more likely than not).

If the court had been able to determine that issue to that standard you would have been asked and required to carry out your investigation on the basis that finding was a definite fact which determined which of [R] and [Mr B] was telling the truth.

The inability of the court to make one of those mirror findings to that standard has the limited effect that when you are considering the impact of [R’s] allegations of sexual abuse against [Mr B] as unproved allegations, and no more than that, you can take into account that it has not been established which of them is more likely than not to be telling the truth about those allegations. This means that in this limited context the existing case law does not require you to proceed on the basis that it is either [Mr B] or [R] who is necessarily telling the truth or lying about those allegations. Rather you should recognise in this limited context that it could be either of them who is telling the truth about those allegations.

For the avoidance of doubt it is stressed that:

(i)

You should not make any attempt to determine whether it is more likely that it is [R] or [Mr B] who is telling the truth about those allegations.

(ii)

You must not consider, assess, reach or seek to reach views on, that credibility issue and thus on whether or not such sexual abuse took place.

(iii)

Your assessment must proceed on the basis as set out above namely that [R] was not sexually abused by [Mr B] and therefore (and in any event and in all aspects of your assessment) there is no risk that a child in the care of [Mr B] will be sexually abused by him, or that [Mrs B] will do nothing effective to prevent a child in her care who she knows is being sexually abused, or who she ought to appreciate is being sexually abused, from suffering that abuse.”

The judge was very unhappy with the obvious complexity and internal contradiction within the letter of instruction, and he considered whether difficulties experienced by him and by other judges of the division did not justify a reconsideration of the basic principles established in H and R in the light of subsequent development in O and N; despite the fact that the House in O and N had, in an obiter passage, approved a decision in this court -- the decision in M and R -- which constitutes an additional impediment, to the course that the judge instinctively would have preferred to take. So there was a decision as to whether this might not be an appropriate case for a leapfrog appeal to the House of Lords. All parties favoured that course except Mr B, whose objections were lucidly advanced by Miss Hildyard QC.

In paragraphs 47 to 50 of his judgment, the judge considered that a likely development would be the concession in this court that an appeal was doomed to fail, since this court is obviously bound by the trilogy as well as by the decision in M and R, and that the application for permission to appeal to the House of Lords would be effectively advanced here. The judge made it plain that his anxiety as to the current state of law was shared by Ryder J, who had recently delivered a paper in which he had expressed concerns similar to those expressed by Charles J. However, he did allow for a possibility that, rather than conceding the appeal in this court, Mr Cobb might seek to advance submissions that, despite the apparent impediment of the four cases, might allow this court to give some guidance, at least as to the issues raised in paragraphs 3 and 41 of his judgment.

I consider that Mr Cobb, in preparing for today’s hearing, has wisely nailed his colours to the mast, not at an early stage, because he had to consider the position of the local authority and also the position of R. We have received from Miss Rowe QC, who represents the mother, from Miss Scriven QC, for R, and for the local authority, representations explaining that they are now fully supportive of Mr Cobb and are sensibly avoiding the expense of appearance before us today.

In the end, today’s hearing has taken a short course. Mr Cobb has nailed his colours. He has conceded that his appeal should be dismissed. He has, however, advanced his application for permission. There was really not much need for him to add to his full and persuasive skeleton argument. Miss Hildyard has, however, in similar reliance upon her extensive and, persuasive skeleton, urged that the law is clear, the law is settled, and there is simply no legitimate opening for a review by the House. She has of course strongly pressed a respondent’s familiar submission on a permission application in this court: leave it to their Lordships.

I am perfectly satisfied that there are very difficult and important issues raised on even a superficial reading of these two skeletons. Effectively they could constitute the written submissions to the House, and I am perfectly satisfied that this is a case in which, most unusually, it would be proper for this court to grant permission for the appeal to the House.

I agree.

I agree.