X (A Child), Re

These care proceedings relate to a little boy X born in March 2010. His mother is the First Respondent, T and his father the Second Respondent, R. I shall refer to them in this judgment as the mother and father respectively. X has been in the care of the extended paternal family since soon after his birth, he has contact with his parents.

The other parties are the applicant Local Authority (LA), the Children’s Guardian, the Official Solicitor and DJ are interveners.

This is my judgment on a preliminary application made prior to a fact finding hearing listed in January. The application is made by DJ (X’s maternal grandmother) for her son PJ (X’s 17 year old uncle) to give oral evidence. In the event I decide that he should give oral evidence, it will be necessary to consider the practicalities as to how that should be achieved and, in particular, who should be permitted to ask questions of him.

The fact finding hearing is listed in January in order to determine the disputed facts that provide the evidential foundation for the threshold criteria being met under section 31 Children Act 1989 (CA 1989) and those facts that are considered necessary to inform the next stage of the proceedings, in particular the assessment of the risk that either of these parents may pose to X.

The core of the LA’s case regarding the threshold criteria relates to the future risk of significant sexual and emotional harm as a result of the alleged sexual abuse and behaviour within the maternal family, involving X’s mother and father, his maternal grandmother DJ, her former partner PV, uncle PJ and aunt SJ. SJ is now 10 years and PJ 17 years. Among the sources of evidence to support the LA’s case are SJ and PJ’s ABE interviews, where they make allegations of inappropriate sexual behaviour with them instigated by the mother, and in relation to PJ involving the father. As a defensive measure the mother had filed a schedule of findings of fact she sought against her mother (DJ), grandfather (PJ), brother (PJ) and sister (SJ). Due to the findings sought against these members of the wider maternal family each of these people had been joined as interveners to the proceedings. Due to their ages PJ and SJ were represented by the Official Solicitor.

PJ is 17, born in 1994; his sister SJ is 10, born in 2001. Both children have been represented by the Official Solicitor through Ms K of Steel and Shamash Solicitors, Miss Rowe Q.C. and Miss Gartland. They were initially joined as interveners as the mother sought findings against them, she had issued an application for them to give oral evidence and there were disclosure issues that concerned them. In October the mother decided not to proceed with her application for PJ and SJ to give evidence, the Official Solicitor remained involved to deal with issues arising from disclosure of documents and to take part in discussions that were then taking place to narrow the issues between the parties. Those discussions bore fruit, on 31^st October 2011 a document was filed that set out a number of concessions made by the parties, in particular the mother. As a result there was a relatively discrete issue for the court to determine, I reduced the time estimate from 15 to 8 days to start on 21^st November (the evidence to start on 23^rd November). In addition, I gave a short judgment on the application for PJ to give evidence, at the invitation of the Children’s Guardian even though no party was pursuing an application. I decided that PJ should not give oral evidence. PJ was informed about that decision. The order made on 31^st October recorded a number of recitals the effect of which was that no party was seeking findings against PJ, SJ, DJ or PJ. As a consequence of those recitals they were discharged as interveners, save the Official Solicitor who remained an intervener for the purpose of any disclosure matters.

On 23^rd November, the first effective day of the fact finding hearing, the landscape of the case changed dramatically. The mother’s legal team (leading and junior counsel and solicitors) had to withdraw from the case. A new legal team was put in place at very short notice, and it became clear that the mother’s position had changed; she withdrew the concessions she had made. That had the consequence of not only increasing the time estimate, but also required the court to consider the re-introduction of two interveners, due to the way the mother was now putting her case.

One of the interveners is DJ, the maternal grandmother of X. She became an intervener again to deal with the mother’s case against her that the allegations made against the mother by PJ and SJ in their ABE interviews are as a result of ‘influence, suggestion and distortion’ by DJ. DJ still has the care of PJ and SJ. The family live in the South of England and receive support from the local authority in that area.

DJ issued an application dated 2^nd December seeking an order for PJ to give oral evidence. She wants him to give evidence in support of her position that he has not been the subject of influence or suggestion from his mother in relation to the allegations he makes. The effect of her application and other matters that arose from the mother’s change in position meant the hearing could not proceed. It was re-fixed to start on 16^th January 2012 with a time estimate of 13 days.

PJ has been diagnosed as having Asperger‘s Syndrome. This condition is on the autistic spectrum and is characterised by significant difficulties in social interaction and learning difficulties. I have had the benefit of three psychological reports in relation to PJ prepared by Dr SG (chartered psychologist with experience in carrying out cognitive assessments of individuals with learning disabilities). He was described by Dr SG in the notes of the experts meeting as follows:

Dr SG was asked to report on a number of matters. In relation to capacity to conduct the litigation she concluded that he did have capacity, but it had the important caveat that it had to be balanced against the significant amount of support PJ needed in order to carry out the tasks required of him. In relation to his capacity to consent to disclosure of documents, she said she was confident that PJ has capacity to consent to the disclosure of records, but was not sure he can fully understand that this evidence may not be used to support him. In relation to PJ’s capacity to give oral evidence, she considered he did have capacity to give oral evidence, but with the caveat that he required support to enable him to do so.

Guidelines in relation to these applications were provided by the Supreme Court in the case of Re W [2010] UKSC 12. In addition the Family Justice Council (‘FJC’) has very recently issued guidance entitled ‘Guidelines in relation to children giving evidence in family proceedings’. I am grateful to the FJC for permitting these guidelines to be circulated to counsel in this case, prior to their wider circulation to the judiciary and the profession.

I have also been referred to two criminal cases R v Barker [2010] EWCA Crim 4 and R v Wills [2011] EWCA Crim 1938, general guidance (The Registered Intermediary Procedural Guidance Manual [2011] Ministry of Justice February 2011; Ministry of Justice circular 2011/04), articles (Family Justice Council interdisciplinary conference paper Professor Penny Cooper 30 September 2011; The City University Law school, Intermediaries: a practical guide by David Wurtzel April 2010), research (Measuring Up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings, NSPCC July 2009) and reports (Advocacy Training Council “Raising the Bar: the handling of vulnerable witnesses, victims and defendants in court.”).

The first matter the court has to consider is whether PJ is competent in accordance with the provisions of s 96(2) CA 1989. I must be satisfied that he understands it is his duty to speak the truth and he has sufficient understanding to justify his evidence being heard. There is no real issue about this between the parties. That is the view of Dr SG, providing he has the necessary support in place. I agree. I have had the opportunity of seeing the DVDs and transcripts of both PJ’s ABE interviews and he demonstrated an understanding of the ‘truth and lies’ questions posed by the interviewing police officer. In my judgment PJ is competent to give evidence within the meaning of s 96(2).

It is then necessary to turn to the discretionary exercise and the guidance which is set out by Baroness Hale in the decision of Re W paragraphs 22 – 28. In reaching my decision, it is necessary to balance two considerations; the advantages that the giving of oral evidence by PJ will bring to the determination of the truth and the damage it may do to PJ’s welfare or any other child. I also bear in mind FJC Guidance in reaching my decision, in particular the matters set out in paragraph 9.

I have had to consider this matter afresh, in the light of the change in the mother’s position. I have considered, in particular, the three reports from Dr SG and the reports from an organisation that provides intermediaries. I have had the benefit of full and detailed written and oral submissions on behalf of all the parties, and considered the attendance note of Ms K’s meeting with PJ on 7^th December. Dr SG gave oral evidence by video link on 8^th December.

The advantages that PJ’s evidence will give to the determination of the truth in this case are that it is clearly in X’s best interests that the court determines the facts on the best available evidence. The court is concerned with serious allegations, and its determination of them is important to future welfare decisions regarding X. The court already has the evidence from PJ via the ABE interviews which the court will, as it does in many other cases, assess together with other evidence. The application for PJ to give oral evidence has arisen in the context of the case now put forward by the mother, that the matters described by PJ in his ABE interview are contaminated from a number of sources but, in particular, by reason of influence, suggestion, distortion and/or coaching by DJ. DJ wants the court to hear from PJ on this aspect of the case, which is not covered is his ABE interview. It is acknowledged that the court can proceed to determine the issues without additional evidence from PJ, but, all things being equal, in a case where credibility is in issue the court is likely to be assisted by his evidence.

It is correct that PJ has been consistent in his wish to give oral evidence. He is 17 years of age. As he told Dr SG when he met her in August “It is my chance to have a voice, for people to listen to me and I can tell them the bad things that happened to me. If I don’t speak it will mean that she has got away with it and I will carry on feeling angry about things.” Following his meeting with Ms K on 7^th December, he repeated his wish to give oral evidence, even though he was informed about the mother’s change of position and the likely areas that he would be asked questions about. The attendance note from Ms K indicates that he is aware of the possible outcomes of the court hearing. It also stated that he said wanted to help X and did express some anxiety about the prospect of giving evidence. In their written skeleton argument the Official Solicitor stated ‘It is Ms K’s assessment from her discussions with PJ that he strongly wishes to give evidence, but that he does not appreciate, or certainly he does not fully appreciate, how difficult the exercise of giving evidence is likely to be.’ This assessment accords with Dr SG’s assessment.

Philip’s needs and abilities are dealt with in detail in Dr SG’s reports. She described him as an extremely vulnerable young man. He is very clear that he does not want to be prevented from giving evidence because of his Asperger’s and does not want this to be a reason to prevent him giving evidence. However, Dr SG observed ‘My concern about PJ’s efforts to present himself as someone who has mastery over his Asperger’s Syndrome is that it will lead others into expecting more of him than he is able to achieve.’ It is certainly not a reason why he should not give oral evidence but it is a relevant factor that has to be taken into account. As has been referred to in Dr SG’s reports and was clearly demonstrated during his discussions with Ms K he requires time to process information, otherwise there is a real risk that he will become overwhelmed. Whilst the risk of that could be managed by appropriate support and measures being put in place it is a factor that has to be weighed in the balance.

Whilst the primary source of the allegations is the ABE interviews there is other evidence as well that the court will need to assess when considering the reliability of what PJ said in his interview. The court has had the opportunity to view the ABE interview. PJ has not retracted the allegations he has made. The mother’s case in relation to the ABE interviews is ‘that the quality of the work undertaken by those conducting the interview is not likely to be substantially in issue…..this is not the same, at all, as accepting the reliability of the assertions in the interviews.’

The challenge made to the interview will focus on the build up to the interview taking place, the family background and dynamics and PJ’s reported behaviour. This is likely to require quite detailed consideration of matters going back over a number of years. It is a nuanced challenge that will involve the court considering a wide canvas of evidence, from a number of sources. This wide canvas will importantly include evidence from DJ, who is the focus of the mother’s challenge to PJ’s account of events in his ABE interview.

PJ’s maturity, vulnerability and understanding are dealt with extensively in Dr SG’s reports. She draws attention to his difficulties which include his immediate recall, the time needed to process each question or information, the consequences if he becomes emotionally upset, dealing with abstract concepts and his understandable attempts to play down the impact of his diagnosis of Asperger’s. In her first report, whilst she states that he has the capacity to give oral evidence she said it is given with the caveat ‘that concerns the amount of support PJ will need in order to give best evidence’. She recognised in that report that some of the suggested supports (for example visual aids) PJ would need to process and code may not be easy to use in the circumstances of this case. Without appropriate support PJ would have increased anxiety and distress which may cause him to resort to, as Dr SG described, a ‘fight or flight’ response.

The events in question took place between 3 – 4 years ago, the police investigation into the complaints were over 2 years ago. PJ has an anxiety that he may have forgotten things. The challenge to his evidence is likely to involve matters that were not covered in his interview and are likely to go back over a considerable period of time.

Dr SG in her written reports and her oral evidence identified the three strands of support that would be needed; emotional support, support from an intermediary (as outlined in the final report from the organisation that provides such support) and he would also need to be taken in some detail through each of the areas that he likely to be asked about in advance of him giving any oral account, whether it be by way of pre-recorded interview or by way of oral evidence via a video link. It is of significance that even with those supports in place her oral evidence was that on balance the risk of harm to PJ tipped in favour of her not recommending that he should give any further evidence, whether by way of pre-recorded or oral evidence by video link.

The risk of delay includes the risks of the inherent difficulties in facilitating the evidence that PJ could give, which could delay the hearing, now fixed for 16th January. This has to be looked at in the context of X having effectively been out of his parents’ day to day care since he was a month old; he is now 21 months old.

In her written submissions Miss Cheetham, on behalf of DJ, submitted ‘PJ is a competent witness who could be assisted in relation to his particular communication difficulties to give evidence. He has expressed the wish previously to give evidence. The change in the mother’s case is capable of being explained in a way which he can understand. It is submitted that an assessment of PJ’s live evidence by the court is now critical given the way which the mother’s case is now put.’ In her oral submissions, following Dr SG’s oral evidence, she submitted that DJ was concerned about the adverse impact on PJ of giving live evidence (by video link), she submitted the main thing for PJ was that he had the opportunity to participate. She submitted the balance was struck by arrangements being put in place for PJ to take part in a pre-recorded interview, as outlined by paragraph 12 of the FJC Guidance. She submitted this could be conducted by an intermediary who would put questions that had been formulated by the parties, and approved by the court.

Miss Grocott Q.C., on behalf of the LA, confirmed that the LA’s position is that ‘We don’t need [the court] to hear from PJ, we rely on the 2009 interview.’ They did not support PJ giving live evidence. However, she went on to submit that the contents of the recent attendance note with Ms K tipped the balance in favour of PJ being allowed to participate in a controlled way. She favoured a written statement being taken from PJ which would be a ‘long and lengthy process’ and more information would need to be given to PJ to enable that to be done. She still advocated a pre-recorded interview which, she submitted, would be unlikely to require preparation of PJ due to the preparation of the statement. She did not support PJ giving live evidence as the LA regard it as ‘counter intuitive of nuanced cross examination of PJ’. She submitted the process of PJ giving evidence is unlikely to give clarity.

Miss Singleton Q.C., on behalf of the mother, made it clear that the document that was prepared by her, and Miss Irving Q.C. on behalf of the father, outlined the areas that were expected to be covered in cross examination of PJ. It was circulated between the parties and sent to Ms K who, as was agreed, was given complete discretion as to how she should deal with it with PJ. She submitted the evidence from Dr SG was not that PJ could not cover difficult questions, but the topics likely to be covered impacted on PJ and the support that would be required. In her written submissions she stated ‘The questions and challenge to the accounts offered by PJ in support of the Local Authority allegations can be advanced to other witnesses and by way of submissions just as they can by more conventional challenge. The caveat to this submissions is as to whether any suggested ground rules would so inhibit proper forensic challenge as to render it sterile and ineffective so as to import all the disadvantages of oral evidence to PJ and questioning without any of the advantages of proper testing.’ In her oral submissions she submitted that the likely support/ground rules that would be required (as outlined by Dr SG in her written and oral evidence) would result in a process that was very likely to result in unfairness, due to the high risk of further ‘contamination’ of the evidence. The raft of measures that are proposed would carry too many risks that would seriously, if not fatally, undermine the evidential value of the resulting material to such an extent that the court should not embark on that process. The case is all about context, there would need to be questions about that; they would include details about the intimate details of PJ’s life which could be very difficult for him.

Miss Irving Q.C., on behalf of the father, supported the submissions made on behalf of the mother. In cases of this nature issues surrounding contamination of evidence and the context in which allegations are made are important areas of forensic investigation.

In her written submissions Miss Bazley Q.C., on behalf of the Children’s Guardian, stated that the Guardian’s preliminary conclusion was that the question whether PJ should give evidence ‘is finely balanced’, but wanted to await sight of the other skeleton arguments and listen to the oral evidence of Dr SG. In her oral submissions, following Dr SG’s evidence, she submitted there were two important considerations from X’s welfare; fair trial and delay. In considering what advantages PJ’s evidence will bring to the determination of the truth the court will need to consider PJ as he is. A vulnerable anxious young man, with significant processing difficulties who knows the case is ongoing with the inevitability that, even with support in place, his anxiety levels will increase. For there to be a fair trial the court has to consider the weight that is likely to be attached to further evidence from PJ, in the light of the way that it would need to be given. The fairness to the parents would involve questions being put to PJ which would cover many matters which would include the circumstances in the family home and his feelings towards the mother. Many of these questions, even with ground rules, would involve abstract concepts which would be difficult for PJ to process, even with support. She submits the best way, balancing the evidence, would be by way of pre-recorded interview. If that happened he would need to be prepared for that, the parents would not be able to ask questions directly and PJ would need to be the subject of extensive preparation, going through the material to be challenged in some detail in advance of that pre-recorded interview. She submits the weight the court is likely to be able to attach to such evidence is unlikely to assist the court in the determination of the truth. She accepts the evidence of Dr SG that there is more adverse risk to PJ’s welfare if he gave evidence (with all the safeguards in place) than not giving evidence. She submits that his distress if the court decided that he should not give evidence can be managed by emphasising to him that the court already has his evidence, through his ABE interview, and he has done what he can for X. If the court did decide that PJ should give oral evidence, she submits the risks of adjournment of the January hearing would be very high, which is not in X’s best interests. She submits there is evidence from many other sources on the issues the court now has to determine, in particular from the mother and DJ. If the evidence from PJ, due to the inherent difficulties in enabling it to be put before the court, is unlikely to add much to the determination of the truth and there is no significant disadvantage to DJ the court should exercise its discretion and refuse the application. She submitted the balance now came down clearly on the side of the court refusing the application.

Having considered the evidence of Dr SG the Official Solicitor, through Miss Rowe Q.C., urged the court to permit PJ to give live evidence through video link. In her written submissions she said ‘Whilst it is vital that the impact of PJ’s Syndrome on his ability to give evidence is recognised and properly addressed, the Official Solicitor does not submit that PJ should be prevented from giving evidence by reason of that disability. Further, PJ will face disappointment and distress if he does not give evidence; he will feel that his wishes have been disregarded, and he will feel that his evidence has been given less weight because of his disability.” In her oral submissions she said, in effect, that the court should embark on the process of PJ giving evidence, irrespective of the weight that the court may be able to attach to it at the end of the day. She accepted that securing evidence from him would ‘not be an easy exercise but the court should try’. She rejected the suggestion that the process of obtaining the evidence, through preparation, would contaminate or undermine the value of the evidence. She submitted ‘PJ’s contribution to these proceedings has not been completed; there should be an opportunity to have his voice heard’. She submitted the combination of his age and consistent strength of his wish to give evidence, which were supported by logical and powerful reasons (e.g. to help X, why should the court hear from the mother and not him), and the support that could be put in place would enable that evidence to be available to the court, the court could then decide what weight to attach to it. The preferred suggestion was for PJ to provide a statement (although there was limited evidence as to how that could be undertaken and effectively processed by PJ) with supported live evidence by video link. She submitted the Official Solicitor would not dissuade the court from a pre-recorded interview but acknowledged it would have ‘less impact and PJ had not been asked’.

In considering how I should exercise my discretion it is important that I remind myself that it is being considered against the backdrop of the court’s objective to achieve a fair trial of the issues in dispute between the parties as to the threshold criteria (see Baroness Hale Re W (Children) UKSC 12 paragraph 23:

“The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.”

Having undertaken the balancing exercise that I am required to do in accordance with the guidance laid down in Re W, I have reached the conclusion that PJ should not give evidence, whether orally, through a written statement and/or pre-recorded interview. I have reached that conclusion for the following reasons:

For the reasons set out above I refuse the application.

I am anxious that PJ is given the required support, to not only be appropriately informed about my decision but also to receive the emotional support flowing from that. I will hear submissions about this when I hand down this judgment.

This is clearly an important and developing area, in particular following the decision in Re W where Baroness Hale expressly considered the option of using an intermediary (see paragraph 28 Re W). I have been referred to the guidance that has been issued in this area, in particular the informative guidance just formulated and to be issued in January by the FJC. One matter that does cause me very great concern is the funding of the support that may be required to enable children to give evidence. This case brought that issue into sharp focus, although it does not affect the decision I reached in this case.

In October the Official Solicitor made enquiries with the Legal Services Commission as to whether the cost of an intermediary, should one be required, to enable them to call PJ to give evidence would be a disbursement on their public funding certificate, following a request by me to make such enquiries. They received the following response:

That enquiry was made in response to the application then being made by the mother for PJ and SJ to give evidence. That application was not proceeded with.

The enquiries that I have been able to make about the court funding such support, has not produced any clarity.

Miss Grocott Q.C., on a pragmatic one-off basis to avoid delay, indicated that the LA would have been able to part fund the support that was required, but not the full cost.

In the criminal context the Youth Justice and Criminal Evidence Act 1999 gave the Ministry of Justice statutory responsibility for vulnerable witnesses and the special measures scheme. The Witness Intermediary Scheme was implemented as a result. Unfortunately, outside the scheme of this Act, no provision has been implemented for the use of Registered Intermediaries. Accordingly, the only option is the use of one of the few specialist private intermediary services, of which an organisation called Triangle is one. However, this involves a fee.

It follows, that as far as I have been able to establish, although the use of intermediaries has been considered at the highest level no scheme has yet been made available for family cases (unless there is a direct linking to a criminal case in which the witness is involved) and there are real obstacles to the funding of such support.

I was referred to an article by Professor Penny Cooper, which is based on a paper she gave at the Family Justice Council Interdisciplinary Conference in September 2011 (Footnote: ¹). In that article she states as follows:

This is a situation that requires urgent attention, otherwise the court is being asked to undertake a balancing exercise, without the ability to put in place what it may determine is the required support to minimise the harm to a child in giving evidence. This potentially has Article 6 and 8 implications, if the court is unable to consider relevant evidence to enable it to fairly determine the issues before it.