C v C

In civil committal proceedings, hearsay evidence is admissible under the Civil Evidence Act 1995, subject to the statutory safeguard concerning the competence of its maker. The court has a discretion whether to require a child declarant to give live evidence. It may properly refuse where this would place the child between parents, provided the evidence can fairly be assessed.

When activating a suspended custodial sentence, the court must consider totality, available alternatives and the shortest appropriate sentence. Deliberate false allegations about a former partner’s sexual conduct may amount to molestation where they are calculated to cause alarm and distress. A power of arrest may not be attached without the statutory basis of violence or threatened violence.

The father appealed from an order of Her Honour Judge Deeley in Coventry County Court. The judge found that he had breached a non-molestation order by telling the parties’ daughter that her mother was a prostitute. She imposed 14 days’ imprisonment and activated a previous suspended sentence of six weeks, producing a total of eight weeks.

The father challenged the admission and sufficiency of hearsay evidence of the child’s statement. He also sought a reduction in sentence and, at the appeal hearing, variation of the non-molestation order. The central issues were whether the child should have been required to give live evidence, whether the breach finding was safe, whether the activated sentence was proportionate, and whether the order and its power of arrest were lawful.

Appeal allowed in part. Lady Justice Hale gave the leading judgment, with Mr Justice David Steel agreeing. The finding that the father had breached the non-molestation order was upheld. The total sentence was reduced from eight weeks to 28 days, and the power of arrest was deleted.

1. These were civil proceedings. Hearsay was therefore admissible under section 1 of the Civil Evidence Act 1995. Under section 5(1), the burden was on the father to show that the child was not competent to make the statement. He had not done so, and there was no factual basis for such a conclusion.

2. Section 3 of the 1995 Act gave the court a discretion whether to require the child to give evidence and be cross-examined. The judge properly declined to do so. Live evidence would have placed a ten-year-old child in the very difficult position of supporting one parent against the other.

3. The judge had directed herself correctly on proof beyond reasonable doubt, caution in assessing the child’s statement and the statutory considerations relevant to hearsay. Her credibility findings were open to her. The Court of Appeal could not interfere with her conclusion that the child had repeated what the father said and had not invented it.

4. In activating the suspended sentence, the judge should have considered totality and whether the original suspended term exceeded the custodial term then appropriate. The remark to the child was serious, but full activation of six weeks was disproportionate. Fourteen days of the suspended term was activated consecutively to the new 14-day sentence. The court also noted the need for particular care before imprisoning a child’s primary carer, in light of Article 8 of the European Convention on Human Rights.

5. The prohibition on allegations about the mother’s sexual activities was retained. Applying the approach in C v C (Non-molestation order: Jurisdiction) [1998] 1 FLR 554 and Horner v Horner [1983] 4 FLR 50, the conduct was capable of being molestation because it was calculated to cause alarm and distress and involved the children. However, section 47(2) of the Family Law Act 1996 did not permit a power of arrest without evidence of violence or a threat of violence. The power of arrest was therefore deleted.

• Court of Appeal (Civil Division) — in [2001] EWCA Civ 1625, allowed the appeal in part. It upheld the breach finding, reduced the total custodial term to 28 days, retained the substantive non-molestation prohibition, and deleted the power of arrest.
• Coventry County Court — Her Honour Judge Deeley found a breach of the non-molestation order on 8 October 2001. She imposed 14 days’ imprisonment and activated a six-week suspended sentence consecutively.
• Coventry County Court — on 30 May 2001, His Honour Judge Eccles imposed a six-week sentence suspended on compliance with the order made on 2 May 2001.