Once again I am going to break my ‘rule’ that I don’t usually comment upon child care cases. The reason, in this instance, is that this particular case caught my eye as it involved the relatively rare occurrence of a dissenting judgment in the Court of Appeal. In any event, as we shall see, the judgment did not directly relate to the care proceedings, but rather to a side issue: should a child who has made a serious accusation against a person be required to give evidence to the court?
The case is S (Children). It concerned care proceedings relating to two young boys who are four and two years old. The proceedings were instigated in April 2014 because the sister of the father of the boys, ‘K’, had made allegations that he had sexually abused her over a prolonged period of time, beginning when she was six years old. K was born in December 2000, and is some ten years younger than the boys’ father.
K originally made her allegations in March 2013, when she spoke to an assistant at her school. She was then interviewed by the police, and repeated her allegations. The father was subsequently arrested and charged as a result of the allegations, but before his trial K retracted the allegations and the criminal proceedings were therefore discontinued. However, K later maintained that she had only retracted her allegations because she wanted to see her nephews.
The allegations by K were the single issue in the care proceedings, which went before Her Honour Judge Moir. The truth of the allegations had to be decided at a fact-finding hearing. Judge Moir decided that K would not give oral evidence at the fact-finding hearing and then went on to find the allegations proved, at a hearing in October 2014. The care proceedings were concluded in December 2014 with the making of a supervision order in relation to the boys, who were to live with their mother. The order provided that the father was to have weekly supervised contact with the boys.
The father appealed, both against the decision that K should not give evidence and against the finding that her allegations were proved. He argued, in particular, that by K not giving evidence and by him therefore being denied the opportunity to cross-examine her, he had been denied the right to a fair trial, under Article 6 of the European Convention on Human Rights.
Lady Justice Black gave the first judgment of the Court of Appeal. She found that Judge Moir had correctly conducted balancing exercise between the advantages that a child giving evidence would bring to the determination of the truth, and the damage which it might do to the welfare of the child witness. She therefore held that the father’s appeal against the decision that K should not give evidence should be dismissed. She further found that the judge was entitled to find that most of the allegations against the father were proved. Accordingly, she held that the father’s appeal in relation to those findings should also be dismissed.
Lady Justice Gloster, however, took a different view. As to the decision that K should not give evidence, she did not consider that the balancing exercise referred to above had been properly carried out. In particular, there was no adequate evidence to support the view that K would suffer harm as a result of giving evidence. Further, there was no adequate consideration by the judge of the impact on the father’s case of the inability of his counsel to cross-examine K. As she said:
“The consequences for the [father], and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the [police] interviews conducted before K sought to retract, or sought not to proceed with, her allegations.”
Accordingly, she held that the father’s appeal should be allowed.
However, giving the third judgment Lord Justice Vos agreed with Lady Justice Black. He concluded:
“I would not wish it to be thought that I am in any way depreciating the importance of allowing a party to cross-examine his accuser, particularly when the allegations are so grave, the consequences so life-changing, and when there has been such inconsistency. But that does not mean that the … balancing exercise can start with a presumption that the child will be called. Rather, the balance between the advantages that the evidence will bring to the determination of the truth and the damage that the evidence may do to the welfare of the child must be undertaken from a neutral starting point. I think the judge undertook the exercise that was required appropriately and reached an entirely sustainable conclusion. In these circumstances, this court should not interfere. I should say, however, that, had I been undertaking that exercise, I would have reached the same conclusion.”
Accordingly, the father’s appeal was dismissed.
A truly difficult decision, that leaves me with a sense of unease. But then, perhaps I would have been equally uneasy if it had gone the other way. Certainly, though, I agree with Lady Justice Gloster that perhaps there should have been more evidence regarding the critical issue of the effect upon K of her giving evidence. As she said, it may even have been in K’s interest to give evidence. There was also the question, again raised by Lady Justice Gloster, of whether Judge Moir should have explored other ways in which K could have given evidence, for example being questioned by the judge in the absence of the parties. Surely, all reasonable evidence should be obtained and all avenues should be explored before the right to a fair trial is impinged?
The full report of S (Children) can be read here.