England and Wales Family Court Decisions (other Judges)

                                                                                                                            Case No. UN13C00015

IN THE FAMILY COURT

sitting at Leyland Courthouse

                                                                                                                                                                  

 

                                                                                                                                      3rd October 2014

 

                                                                            Before

 

                                                    HIS HONOUR JUDGE DUGGAN

 

                                                                       __________

 

 

 

STAFFORDSHIRE COUNTY COUNCIL

 

 

 

-v-

 

 

 

M & J

(Findings not reopened)

 

 

__________

 

APPROVED JUDGMENT

__________

 

 

 

                                                                                

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

STAFFORDSHIRE COUNTY COUNCIL -v- M & J (Findings not reopened)

 

                                                                                                                                      3rd October 2014

 

                                                            APPROVED JUDGMENT

See Also: [2013] EWCC B21 (Fam)

            JUDGE DUGGAN: 

1.         The court has been considering a contested application to re-open findings of fact made in old care proceedings.  The application is brought by SF who is the stepfather of T who was fourteen years old at the relevant time.  SF is also the birth father of five younger children, who were also the subject of the proceedings.

2.         In August 2012 T made sexual allegations against her stepfather.  The local authority brought care proceedings and the sexual allegation was heard in a separate fact finding hearing, which was then considered to be the appropriate procedure.  I conducted those proceedings and by order dated 8th April 2013 made findings accepting T’s allegations.  My judgment from April 2013 will be published alongside this judgment.

3.         Within those old proceedings, on 19th March 2013 I had rejected an application by SF, who requested that T be made available for cross-examination at that hearing.  In rejecting the application I applied the test set out by the Supreme Court in the case of Re W [2010] UKSC 12.  I directed that the parties were at liberty to submit written questions for T, a practice suggested by the Supreme Court, but that opportunity was not taken up by SF.

4.         The parents have separated.  The outcome of the old proceedings was that T resides with her grandmother.  The younger children reside with their mother and are subject to supervision orders.  SF has supervised contact to his birth children.

5.         The trigger for the current application was the unsuccessful criminal prosecution of SF.  A not guilty verdict was directed in the Crown Court on 23rd July 2013 after the trial judge had heard T give evidence.  That event, in particular T’s evidence in the Crown Court, forms the basis of this current application. 

6.         The guidance given by the case law is clear and this application should be considered in three stages.  At a case management hearing, today was set for the determination of stage one and this hearing has proceeded by way of submissions from the parties based upon the transcript of the criminal trial from July 2013 and my judgment from April 2013.  The three-stage process originates from two reported Birmingham cases, but the most recent analysis is the President’s case of Re ZZ [2014] EWFC 9.  In that case report the President summarises the relevant cases.

7.         At the first stage, with which I am now concerned, it is necessary for me to apply the words of Hale J in the case of Re B [1997] 1 FLR 285.  At page 295 Her Ladyship indicates:

“The court may wish to be made aware not only of the findings themselves but also of the evidence upon which they were based.”

As the trial judge who conducted the fact finding hearing in 2013 I am fully aware of the evidence. 

Returning to the words of Hale J, the relevant factors include public policy:

“(a) There is a public interest in an end to litigation.  The resources of the courts ... should not be employed in deciding the same matter twice unless there is good reason to do so.”

In the present case the decision of the Supreme Court in Re W was followed, so T did not give oral evidence at the original hearing.  SF chose not to submit written questions for her to answer.  In the criminal proceedings questions were put to T and it is the answer to those questions on which SF now relies.  Following Hale J’s guidance, this public interest in an end to litigation gives way if there is good reason for it to do so.

“(b) Any delay ... is likely to be prejudicial to the welfare of the individual child.”

Uncertainty is of course detrimental to all children.  In the present case the real issue is whether SF’s contact to his birth children should be supervised or not, so perhaps the detriment to the children from delay is at a low level.

“(c) The welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous, and

(d) The court’s discretion ... must be applied so as to work justice and not injustice.

(2) The court may well wish to consider the importance of the previous findings in the context of the current proceedings ...”

In the present case the findings are important in that they determine the issue of whether SF’s contact should be supervised even though it does not determine where the children live.

“(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial ...

(a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way.”

The previous hearing did involve a full hearing, SF played a full part and T took the part indicated to be appropriate by the Supreme Court case of Re W.  Her evidence was not tested in the manner of a criminal trial, but it was tested in the manner contemplated by the Supreme Court in that it was fully analysed against the wider evidential picture.

“(b) whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time and why therefore there was no appeal at the time.” 

It is not now suggested that there was any such ground.

“(c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

This is the key element to which I turn next.  I also have the assistance of the President’s words   in the case of Re ZZ at paragraph 33 where he adds:

“One does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting.  Mere speculation and hope are not enough.  There must be solid grounds for challenge.”

8.         The heart of my original finding was my conclusion that T’s recorded interview was compelling.  In reaching this conclusion I took into account evidence that T had been inconsistent and evidence that T was capable of untruthfulness.  I took these into account alongside all the other evidence which was available to me.  At the criminal trial another judge has heard T under cross-examination and has concluded that he should direct a not guilty verdict.  The judge’s decision does not help my task today.  He was a different judge who was entitled to reach a different conclusion.  More importantly, he had a task different to mine in that he was applying a different standard of proof and he heard different evidence.  He only heard evidence from T whereas I had a full picture, including evidence from SF.  What I do need to consider on the authorities is whether there emerged at the criminal trial new evidence or information casting doubt upon my original findings.  I remind myself that I need to look for solid grounds for challenge.

9.         At the criminal trial much of the evidence was the same as the evidence that I had:-

(i): T’s evidence-in-chief comprised the same recording which I watched many times. 

(ii): the issue about the precise days and times of alleged abuse was fully ventilated before me and I decided on the evidence that the opportunity for abuse was indeed established. 

(iii): the same Facebook entries, which are manifestly untruthful, were in evidence before me. 

It is said that there is a new element in that during her evidence T said that her Facebook account had been hacked and these entries falsely posted.  This seems unlikely to be true.  However, in my judgment this is a modest development.  It was always known that T was responsible for untruthful comments on matters peripheral to the issue before the court.  The only additional element is that in evidence T added untruthful comments as to how that came about. 

(iv): the second area of new evidence is a little more complicated.  At the end of the recorded interview T made allegations for the first time that SF had touched her breasts over her clothing.  This allegation was strongly contested and the point was validly made that this allegation followed repeated denials by T that she had been touched, denials which occurred both in interview and previously.  After making the allegation the recorded interview goes on to ask T why she had not told anyone previously and she explained that she had been scared.  At the trial the judge asked T why, when she was initially asked by the police, she denied that she had been touched.  She responded that she had wanted to go home and was scared.  She then thought she should tell everything so that it was over and done with.

10.       In my original judgment at paragraph 34 I explained that on my close study, the recorded account given by T was so very compelling that the inconsistency did not undermine it so as to make it improbable.  It is of course difficult in a judgment to convey every nuance of the impression formed of evidence, but I did my best to reflect the impact on me of the wide-ranging evidence in the case as a whole, including this recorded interview.  I did speculate that T’s recorded account involved a dawning realisation of the relevance of the touching.  In T’s oral evidence in the Crown Court she did not give that explanation.  My crucial finding is to be found in the next sentence of my judgment where I explain that I did not find the inconsistencies represented by T’s prior denial undermined the allegation so as to make it improbable.

11.       In my judgment, the new element is very limited.  The picture is still dominated by T’s prior denial that she was touched, but we now have the explanation which she gave to the Crown Court, which is of course a commonplace explanation in these circumstances.  It is not the explanation that I speculated about, but the recorded account remains compelling.  The view I reached as to the compelling nature of the complaint was reached with knowledge of T’s earlier denial.

12.       My task is to look for solid grounds for challenge, new evidence casting doubt on the findings creating a real reason to believe that the earlier findings need to be revisited.  I find that element to be absent.  For me the new material is very modest, comprising T’s new contention that her Facebook account was hacked and her new explanation that her initial denial was because she was scared and wanted to go home.  My original judgment accepted the allegations on the basis of a whole range of evidence from numerous sources.  I studied the recorded interview and found it compelling.  I knew that T had been untruthful in her Facebook entries.  I knew that she had previously denied that she had been touched by SF.  The allegations remain compelling.  I have the advantage that I was the judge who heard the original case.  It is clear to me that the new elements lack solidity or substance.  They are not enough to justify revisiting the earlier findings, so this application must fail. My order today will recite that fact together with the other provisions agreed by the parties during argument. 

                                                                                

 

Approved 16/11/14

RD