R (A Child), Re

This is an unusual appeal created by Mr Recorder Fairwood himself when he granted permission to the local authority and to the father in the case before him. He took that course because he had been faced with a very unusual development when he was interrupted in the giving of his judgment by the lunch adjournment.

The case before him involved five children aged between 13 and 6 and the focus was on the second youngest, S, who was eight years of age. The question that he had to determine, the principal question, was whether S had been sexually abused by her father. The parties before the court were the local authority represented by Ms Greenan, the mother represented by Ms Garnham, father represented by Mr Jackson, and the guardian, who today is represented by Ms Warner.

An unusual feature of the case was that the mother had not given oral evidence. That was because she had had an admission to a mental health unit during the interlocutory stages and the judge was persuaded by expert evidence that she should not be required to give evidence against her will.

The case against the father was a relatively strong one given that there was pretty clear reporting from S at different times to different responsible adults and given that it was common ground that, within the family and household, there was a complete absence of any proper sexual boundaries. The responsibility for that parental misconduct was probably shared, but certainly the major portion of the responsibility fell upon the father.

In the course of his extempore judgment before lunch the judge had said in paragraph 22:

He considered Mr Jackson's full and able attack on the corpus of evidence that might lead to positive findings and particularly, between paragraphs 38 and 41, considered S's allegations and found that they rested on a general consensus that she was a very straightforward, matter of fact, cheerful, spontaneous eight-year-old, despite all the disadvantages of her early life experiences. The judge accepted that and was relatively dismissive of a number of the criticisms that had been made of her accounts.

Then, at paragraph 42, he contrasted the evidence of the father, who he described to be "a very disturbing and worrying individual". Then, having made that adverse assessment of the father's oral evidence, he continued:

He then expressed his hesitation in proceeding on the conventional path by saying at paragraph 47:

He then came to his conclusion in paragraph 50:

Now, with all due respect to the Recorder, I find that a bizarre piece of reasoning and a bizarre conclusion.

In these cases the opportunity of the accused parent to cross-examine the eight-year-old informant is effectively zero. So the Recorder has effectively argued that, because the mother did not testify and thus the father had no opportunity to cross-examine her, that amounted to a breach of his Article 6 rights.

It seems to me that, on a proper view, the husband's litigation case was not prejudiced but rather aided by the absence of the mother, whose evidence was discounted but whose evidence, had it been available, might have been a nail in his coffin. So for my part, although it is not the issue before us, I think the judge was wrong to hold himself debarred from proceeding to rule on the local authority's numbered paragraphs of the schedule by the absence of the mother's evidence.

But I must move to the developments over the lunch hour. Counsel for the local authority, who had the mother available, explained to her that the judge had announced that he was not going to make adverse findings because she had not testified. Her reaction was “Very well I will go into the witness box”, and that was the application Miss Greenham advanced to the judge on the return of all at 2.00. Obviously for the Recorder that was a totally unexpected and difficult situation, and it is always these totally unexpected and difficult situations that are the hardest for a Recorder to get right.

The judge decided, having heard argument, that he was not going to take the course that Ms Greenan invited and again he explained himself by reference to the father's asserted rights as advocated by Mr Jackson.

Paragraph 56 is in these terms:

The judge had not, effectively, ruled beyond saying that the fair trial argument precluded him from ruling, and here we see the fair trial argument being deployed equally effectively in the reverse direction. Earlier it was advanced, “Absent mother; can be no fair trial”. Then when mother appears it is said “Well, to admit her evidence would preclude a fair trial.” I think, with great respect, that the judge in the heat of the moment reached the wrong conclusion.

The question of fairness is objective and not subjective to one of the parties. It was all extremely unfortunate. It should not have happened as it did, but once it had happened the judge really had no alternative but to labour further in this rather unpromising field. I think he had already spent ten days and of course it was unattractive to all that time would have to be found maybe for another two days in order to complete the process.

But, as these appeals have demonstrated, there was effectively no other practical choice. There was no other practical solution and accordingly I would allow the appeal and send the case back with a request to the Recorder to resume the trial process, keeping it within the tightest possible bounds, hearing the evidence of the mother and then in the light of submissions deciding what other evidence he was compelled to hear. But Ms Greenan has said that she is confident that the re-opening of the case can be kept within tight bounds and it is important that it should be.

I agree.

I also agree.