H (A Child), Re

There had been proceedings in the Brighton County Court concerning a family of Pakistani origin. There are five children ranging in ages from 25 to 14; there are two girls and three boys. There is a good deal of background which it is unnecessary to record for purposes of concluding the present appeal. It is enough to say that there was a preliminary hearing to determine whether or not the youngest boy, named H, 14 years of age, was hit with a spoon in the home on 10 June 2009. Depressingly, no less than ten days of the judge’s time was devoted to that exercise, the preliminary issue trial commencing on 4 January 2010 and concluding with a judgment given on 1 March. The judge concluded that H had been struck with a spoon.

However, the significance of that is questionable given that H had for some time prior to that preliminary issue trial been back home with his parents in the family. So I find it difficult to see really how it was thought necessary to investigate this seemingly inconsequential issue so profoundly. But Mr Campbell, who has represented the appellant most ably, informs us that at various times the local authority sought to withdraw either the preliminary issue application or the proceedings overall but were prevented from so doing by one or other of the judges of the court.

Be that as it may, the father was aggrieved by the judge’s positive conclusion and applied by an Appellant’s Notice on 18 June for permission to appeal. So we see a significant delay of three months between the finding and the application to this court. We then see what appears to be a delay of a further five months before the papers are put before Sir Mark Potter, who on 19 November granted permission but directed expedition “as soon as possible. Progress of case awaits outcome of appeal”. What regard the office paid to that direction I know not, but I only know that we are sitting some six months later and Mr Campbell informs us that the second stage of the process, which is sometimes referred to as the disposal hearing, has taken place, the application for a care order has been dismissed and that is an end to the story.

I think Sir Mark Potter was quite right to flag up the need for expedition because obviously if this court is to review a preliminary fact-finding it must do so before the trial court embarks on stage two and concludes the proceedings. It seems to me extremely questionable whether Mr Hussain’s right of appeal survives his successful defeat of the local authority’s application for a care order. As my Lord, Lord Justice Moore-Bick, put to Mr Campbell in argument, if a family member succeeds in care proceedings by achieving their dismissal, he surely has no right of appeal against findings of fact which are somewhere discernable within the judgment.

There are other difficulties which Mr Campbell has faced with skill and persuasion. The first is that the application for H to give oral evidence at the trial, which is the core of the appellate case following the judge’s refusal, was advanced by his parents on the ground that they did not seek to cross-examine him but only to hear within the context of the courtroom his latest account of what had happened on 10 June 2009. As my Lord put to Mr Campbell, in litigation, as a matter of ordinary principle, an application to call a witness is an application to challenge, for what is not challenged is taken to be admitted.

A further difficulty for Mr Campbell is that H was represented by a guardian who firmly opposed the application, and her application rested on the report of an expert, Dr Blincow, who had made an assessment not only of H’s future but also of the issue whether or not he should testify; and it is quite plain that Dr Blincow had looked at this issue in a very sensible way. His report shows that he had commenced by recognising that there was a strong argument that H should give evidence, as he holds information “of considerable and direct relevance to the issues before the court”. But Dr Blincow went on to express his concerns that the consequence would be to expose H to considerable increase in the emotional pressures upon him.

So given those two circumstances in combination, it is hardly surprising that the application for H to testify was refused by HHJ Coates in a brief judgment which impeccably balances the various considerations that had to be weighed. She concluded:

Mr Campbell has done everything that he possibly could in pursuit of this appeal; he has said everything that could possibly be said on behalf of his client. But in my judgment this is a hopeless appeal. The guidance that the Supreme Court gives in Re W does not turn the world on its head; it still requires a measured balance between the demands of justice and the needs of child welfare, and it is plain that that is precisely the balance that HHJ Coates struck. The suggestion that she would have come to a different conclusion had she had the guidance in W available to her is without any force, given the particular factors that bore in the present case and the cumulative weight of all those factors that said “no” against the single factor that suggested “yes”.

So I am in no doubt at all that this appeal should be dismissed.

I agree. In paragraph 7 of her judgment, the judge directed herself in the following way:

The only criticism made of the judge is that, being aware of the presumption, as it is was then thought to be, against the allowing or requiring a child to give evidence, as set out in the case of LM v Medway to which she referred, she allowed her assessment of the various factors involved to be adversely affected by giving too much weight to those that suggested that it might be abusive to the child to allow him to give evidence and too little to those that suggested that his evidence might help her reach the truth. However, when one sees how the judge actually weighed up the competing factors in paragraph 9 of her judgment, one can see that she did so in neutral terms. Moreover, she did so in a way which makes it clear that if she had approached the question explicitly in accordance with the principles set out in W (Children), and without applying any presumption one way or the other, she would inevitably have come to the same conclusion.

For those reasons and also for the reasons given by my Lord, Lord Justice Thorpe, I agree that the appeal must be dismissed.

I also agree that the appeal should be dismissed. While there may well be some cases where the wrongful application of a presumption might make a real difference, because for example it is said that strong reasons in favour of a child giving evidence do not outweigh the presumption, this is not such a case. Here there was no cogent reason why H should have given evidence given the appellant’s avowed intention not to subject his evidence to cross-examination and given the judge’s awareness of his vacillating approach and her conclusion that that approach had been accurately presented to the court.

By way of contrast there were cogent reasons why H should not have given evidence, that is to say, the judge’s conclusion that in the circumstances of this case it would be an abusive process, and more importantly that giving evidence would not be beneficial to his welfare. Thus I am satisfied that the judge’s application of the presumption, on the facts of this case, did not flaw the exercise of her discretion. In reality there was no real prospect that she would have exercised the discretion differently had she not commenced her consideration of the matter with the presumption of LM v Medway.