S (Children, W & T), Re

On applications for permission to appeal from care fact-finding proceedings, the Court of Appeal held that late disclosure, judicial intervention and alleged weaknesses in the evidence did not make the hearing unfair or render the findings unsafe. A judge may intervene to clarify evidence, enforce procedural rules and protect a young witness, although interventions during cross-examination should remain limited. An appellate court should not disturb factual findings merely because the evidence could be assessed differently. Inconsistencies must be evaluated in context, including alcohol, trauma and the evidence as a whole. The court also gave guidance that split fact-finding hearings in care cases should be exceptional, clearly defined and supported by an accurate schedule of the findings actually made.

West Sussex County Council commenced care proceedings concerning W and T after P, aged 14, alleged that her sister M and M’s partner F had sexually assaulted her. Following a fact-finding hearing, HHJ Waddicor found that the allegations were proved, including sexual abuse by F with M’s active encouragement. M and F challenged the findings, alleging late disclosure and transcription of video interviews, excessive judicial intervention and errors in the evaluation of the evidence. Ryder LJ initially refused permission on the papers. On oral renewal, the applications were adjourned for an inter partes hearing. The Court of Appeal heard both applications on their merits without a separate permission stage and considered whether the alleged irregularities or factual errors gave a sufficient basis for permission to appeal.

Disposition. Both applications for permission to appeal were refused. The grounds disclosed neither a sufficient prospect of success nor another compelling reason for permission.

1. Procedural fairness. The late disclosure of DVD interviews and their subsequent transcription did not render the hearing unjust or unfair. The judge arranged for transcription and adjusted the order of witnesses. Once the material was available, no party sought an adjournment, and no material prejudice was demonstrated.
2. Judicial intervention. The principles in Jones v National Coal Board [1957] QB 55 permitted judicial intervention to clarify evidence, enforce procedural rules, exclude irrelevance and ensure that the issues were understood. Interventions should ordinarily be infrequent during cross-examination because excessive interruption may weaken its effectiveness. A family judge dealing with a young witness may properly adopt a somewhat more interventionist approach. The judge did not assume the role of advocate. Lewison LJ noted the modern expectation of active case management, referring to Jemaldeen v A-Z Law Solicitors [2012] EWCA Civ 1431; [2013] CP Rep 8. Re J (A child) [2012] EWCA Civ 1231; [2013] 1 FLR 716 was distinguishable because counsel there had been prevented from pursuing relevant cross-examination.
3. Factual findings. The assessment of conflicting oral evidence was primarily for the trial judge. Consistencies and inconsistencies could be evaluated in the context of alcohol consumption, trauma, early disclosures, persistence of the allegations and the evidence as a whole. The judge’s conclusion was not one which the appellate court was compelled to overturn. The approach was consistent with McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. Evidence of control and an incident of violence could also be considered as relevant context and as part of the res gestae, despite the original limitation of the fact-finding hearing.
4. Practice guidance. The President endorsed Re S, Cambridgeshire County Council v PS and others [2014] EWCA Civ 25: separate fact-finding hearings in care cases should generally be discouraged, save for limited simple cases involving a single issue relevant to the threshold under section 31 of the Children Act 1989, or complex medical causation cases. Where such a hearing is ordered, its ambit must be clear and any alteration promptly reflected in the schedule of findings. The order must be followed by an authentic and definitive record of the findings actually made. The court also criticised the local authority’s failure to participate actively in an appeal after securing the findings, distinguishing its role from that of a guardian. The concern about defective record-keeping was linked to Re W (A Child), Re H (Children) [2013] EWCA Civ 1177.

1. Court of Appeal (Civil Division) — In [2014] EWCA Civ 638, the court refused both applications for permission to appeal after considering the matter on its merits.
2. Court of Appeal — Ryder LJ refused the applications on the papers. On oral renewal, the applications were adjourned for an inter partes hearing.
3. Brighton County Court — HHJ Waddicor conducted care proceedings and a fact-finding hearing, and made findings that the allegations of sexual abuse were proved.