Public Law
January 2024

Overview:

The court of appeal dismissed two appeals brought against findings of sexual abuse by Father and failure to protect by the mother in care proceedings concerning three girls.

The Court of Appeal considered the application of directions and principles applied in the criminal jurisdiction to family cases, and when counsel should seek clarifications of a judgment.

Before considering the grounds of appeal, the court made three general points of observation.

1. A judgment in family proceedings, like any other civil judgment, does not have to cover every aspect of the evidence nor every point raised in submissions.

At the conclusion of the hearing, the judge delivered a clear and comprehensive judgment in which she made nuanced findings on the local authority's allegations. She emphasised, that she was not rehearse all the evidence and submissions but rather highlight the matters relevant to her assessment of the allegations. This approach was entirely appropriate and in keeping with accepted practice.

1. The Court has been critical of inappropriate and excessive requests for clarification which seems to be a widespread practice in care proceedings of seeking clarification of a judge's reasons.

Parties will almost invariably be able to point to parts of the evidence on which they relied and submissions which they made which are not expressly referred to in the judgment. This is particularly so in complex care proceedings. The wider the canvas, the greater the likelihood that parts of the evidential picture or argument will be omitted from the judgment. If counsel think that the Judge has got it wrong, then they must appeal that decision with grounds of appeal.

The court considered that in this case, the facility granted to the parties to seek clarification was largely used as an opportunity to make, or reiterate, submissions and invite the judge to review her findings. That went beyond what is permitted. “Judges should not be burdened after delivering judgment by requests from advocates asking whether they have taken into account a particular piece of evidence and, if not, whether they would do so and review their findings.”

1. The application of directions and principles applied in the criminal jurisdiction to family cases.

Criminal law concepts, such as elements required to establish an offence or a defence have no relevance within a process of fact-finding in the Family Court. This approach applies equally to rules of evidence and procedure such as the directions given to juries about delay and a defendant's good character.

The court noted that in Re R (Children) (Import of Criminal Principles in Family Proceedings [2018] EWCA Civ 198, the Court of Appeal considered an appeal against findings made in care proceedings following an incident in which the mother had sustained fatal injuries from a knife in the course of an altercation with the father. At first instance, the father presented his case by direct reference to the criminal law relating to self-defence.

At paragraph 82 of his judgment, McFarlane LJ summarised the distinction between family and criminal procedures in these terms:

"(a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court

(b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child's future with the court's eyes open to such risks as the factual determination may have established

(c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court

(d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts …."

Background

The three girls who were the subject of these proceedings were J, 15, P, 8, and Q, 2. They have an older sister, Y, aged 17, who was the subject of separate care proceedings. In 2008, another girl, hereafter referred to as B, then aged 7, who was the daughter of father’s former partner, made allegations of serious sexual abuse against the father. The Father was acquitted of the rape of B.

In 2020, Y was placed in foster care following allegations of physical abuse against her mother. In December 2021, J also made allegations of physical abuse against the mother and went to stay with her grandfather. J also told a friend over social media that she had been sexually abused by Father for the previous three years. She then repeated the allegations to police and social services. The Father was arrested and charged with rape and sexual abuse of J. Mother told the police J was lying. Y was interviewed and told police she was unaware of any sexual abuse of J but said that Father had insisted on shaving her and her sister in the shower. In 2022 J, P and Q were made subject of care proceedings.

Criminal proceedings against the father were dropped by the CPS on the basis that J had made allegations of sexual assault against an unknown man. CCTV footage subsequently revealed that her allegations were in some respects untrue and that the acts that had taken place on the bus were consensual. J accepted that she had lied about aspects of her account.

Meanwhile, the local authority had discovered about the earlier allegations made by B, they contacted B, who agreed to give evidence in the care proceedings.

At the fact-finding hearing, the court was therefore required to determine (1) B's allegations of sexual abuse against the father from 2008; (2) J's allegations of sexual abuse against F; (3) whether the mother failed to protect J from such abuse; (4) whether J, P or Q were at risk of sexual abuse from F; and (5) J's allegations of emotional and physical abuse levelled against her mother.

The fact find hearing lasted 10 days and the judge heard oral evidence from nine witnesses.

The Judge’s approach to B’s allegations became central to the issues the Court of Appeal had to consider as part of the appeal. The court noted;

(i) The video of B’s ABE was no longer available;

(ii) The transcript of B’s oral evidence at the criminal trial in 2008 was unavailable;

(iii) B said that whilst she could remember some things that had occurred and comments that had been made before and after the alleged incidents, she could not remember the acts themselves.

Following submissions, judgment was reserved and delivered on 11 April 2023. The judge started by summarising the background, the issues to be determined, and the sources of evidence put before her, which included a core bundle of over 1,800 pages.

The court’s findings are summarised below;

1. Father sexually abused B in the way B described;
2. Father did not sexually abuse J as alleged by J;
3. There was sexual motive to Father saving J and Y;
4. the mother's desire to support and assist Father took priority over the needs and welfare of J, with little regard or insight into the impact on her daughter.

On 20 April Father submitted a request for review of the judgment. On same date Mother filed an application for permission to appeal. On 23 April Father also filed an application for permission to appeal.

Father’s appeal

Five grounds of appeal were advanced to this Court on behalf of father.

Summarised

1. The judge failed to give any or any adequate consideration to the disadvantage at which F was placed as a result of the delay of 15 years between the incidents alleged by B and the fact-finding hearing.

1. The judge failed to consider the effect of the missing evidence – the video recording of B's ABE interview and the transcript of her evidence at the criminal trial in 2008.

1. The judge erred in her assessment of B's evidence.

1. When assessing F's evidence, the judge was wrong to effectively disregard the probative effect of his good character and the positive evidence of that good character adduced from several witnesses. She erred in finding that this evidence of good character represents a "criminal concept which is misconceived in family proceedings."

1. The finding that F's conduct in shaving J and Y was sexually motivated demonstrates a confusion and/or error on the judge's part.

Mother’s appeal

The grounds of appeal put forward on the mother's behalf can be summarised in these terms. It is said that the judge erred in

1. finding that the mother failed to consider the possibility that J's or Y's allegations may be true and failed to take precautions to address any risks posed by F.
2. her assessment of the mother's evidence about F's shaving of J and Y.
3. finding that the mother is unable to contemplate even hypothetically the risk posed by F.
4. concluding that the mother deliberately obstructed contact and her assessment of the mother's treatment of J after the allegations were made against F.
5. It is argued that the judge carried out an unfair assessment of the mother's credibility which was not supported by probative evidence.

The court considered each of the grounds of appeal submitted by the father and mother at Para 70-85 before dismissing both appeals.

Overview:

The Court of Appeal provided a reminder of the wide and flexible powers of the Family Court. Where proceedings have been properly issued, the judge or magistrates to whom the case has been allocated may make incidental and supplemental orders of a kind that could be made under the inherent powers of the High Court where the purpose of such orders is to give effect to their substantive decision. Judges of the family court should not be deterred from making incidental and supplemental orders that are beneficial and fair.

Background

The issue of the court’s powers arose in care proceedings concerning two brothers, B (15) and A (12) which began as private law proceedings.

A fact-finding hearing was held in August 2021. The court made findings against the father which included alienation and controlling and coercive behaviour. Following the fact-finding hearing, the local authority was directed to complete a report under section 37 Children Act 1989.

In February 2022, the children were removed from their father's care under interim care orders and moved to a maternal family placement. Ahead of the final hearing, the mother made a formal application for an injunction against the father to provide the Local Authority the details of his Apple ID and password. The application arose from a “long-running issue” about the parental controls to the children's iPhones.

The judge determined the injunction application at the end of her extempore judgment at the final hearing. She declined to grant it on the basis that, as a Circuit Judge, she did not have the power to do so. Her reasons can be found at paragraph 6 of this judgment.

The Guardian appealed the judgment on the following grounds:

The judge was wrong to conclude that she did not have jurisdiction to make the injunction sought under s31E(1)(a) MFPA 1984:

1. It was wrong to interpret s31E(1)(a) as requiring such power to be exercised by a Judge of the Family Court sitting as a Deputy (or full) High Court Judge.
2. The case law referred to was wrongly distinguished to determine that the power did not extend to a Judge (or magistrates) of the Family Court.
3. It was wrong to conclude that the injunction sought involved Apple in any relevant way and/or that any such involvement would be relevant to the question of jurisdiction.

It was therefore submitted to the Court of Appeal that the family court had the power to make the order sought by the mother.

In addressing the appeal, the court summarised their position;

1. The family court is a single, unified court within which almost all family proceedings are conducted.
2. The legislation shows that Parliament intended the family court to have full and flexible powers to achieve its aims, and for family business to be conducted by the court unless there are specific reasons for the High Court to be engaged.
3. Family business is distributed within the family court to the levels of judge ordained by the Rules, the 2014 Guidance and the 2018 Guidance.

1. Once a family case has been allocated, there is parity among judges and magistrates of the family court in relation to the orders that can be made, subject only to the limits on remedies that appear in the Schedule 2 to the Rules.

1. Family proceedings that cannot or should not be commenced in the family court, but must instead be commenced in the High Court, are most conveniently listed in the Schedule to the 2018 Guidance.

1. When family proceedings have been properly issued in the family court, it is open to the court to make incidental and supplemental orders to give effect to its decisions.

Practical Consequence

The practical consequence is that where judges in the family court are considering whether they have the power to make a particular order, they should consider;

1. Whether proceedings have been properly issues,
2. whether the order sought is incidental or supplemental to the substantive orders that are sought in the proceedings;
3. whether the remedy sought is reserved to a higher level of judge by the Schedule to the Rules or by the 2014 Guidance;
4. Whether the application is reserved to the High Court by the Rules or by the 2018 Guidance.

If the answer to the first two questions is 'yes' and to the other questions 'no', the power to make the order exists. Whether an order should be made will depend upon an assessment of welfare and fairness, and insofar as the Convention rights of others are affected, considerations of necessity and proportionality.

The court should approach the matter on the basis that they have the power to make such orders unless it is shown by reference to the Rules and Guidance that they do not. Allowing delay, expense, and duplication of effort to be minimised.

The court noted that it appeared likely that the judge would have made the order if she had appreciated the extent of her powers. The mother’s application was remitted to the judge to make the appropriate order.