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CARE PROCEEDINGS: Re W (Care Order: Sexual Abuse) [2009] EWCA Civ 644

Date:9 JUL 2009

(Court of Appeal; Thorpe, Wall and Elias LJJ; 1 July 2009)

The three children were taken into foster care following serious assaults by the mother on the eldest child, aged 16, and the step-father, whom the mother alleged had been seen kissing each other. Although the eldest child initially denied the mother's allegation, she subsequently accused the stepfather of sexually abusing her. As a result, the stepfather was charged with rape in criminal proceedings, which went ahead simultaneously with the care proceedings. The fact-finding hearing in the care proceedings, in which the stepfather was not legally represented although he had been made a party to the proceedings, took 14 days, spread over three months. The judge first required the eldest child to file a statement, but rescinded that order when she did not comply; the judge refused to allow cross-examination of the eldest child. The judge went on to find that the stepfather had raped the child. The mother had admitted the assaults, and findings were made in respect of these as well. In the criminal proceedings the child was cross-examined, and the stepfather was acquitted. The stepfather appealed against the findings in the care proceedings, supported by the mother.

It was plain that in this case the authorities governing cases of this nature had been more honoured in the breach than in the observance. Most of the unsatisfactory aspects of the case stemmed from the fact that the stepfather, although a party to the case, had not had the benefit of either legal advice or representation; this had led to delay, among other problems. What those who controlled the court's purse strings simply did not, or would not, understand, was that competent legal representation not only saved time (and by the sensible identification and elucidation of issues made cases easier for the court to resolve) but also saved money. Had the step-father been represented before the judge in the care proceedings, the hearing would not have overrun so grossly, the result would have been much more likely to have been perceived by all to have been fair, and the cost to the public and the parties would have been substantially less. All involved in care proceedings must apply their minds rigorously to the question whether a separate fact-finding hearing was necessary; the judge who directed such a hearing, and the advocates who sought it, both owed a duty to the children in the case and to the system itself to ensure that such a hearing was strictly necessary, and that in the terms of the overriding objective such a hearing, where required, addressed appropriate issues and was given an appropriate share of the court's resources. A judge might need to make robust changes to schedules of findings prepared by local authorities and local authorities must examine their practices carefully to ensure that a fact-finding hearing was strictly necessary for proper and expeditious resolution of the proceedings. In this case a split hearing at which the judge would be invited to make findings of fact relating to the rape allegations had been almost inevitable, but the allegations against the mother might not have needed to be considered separately at such a hearing, as the mother's conduct towards the child had clearly been unacceptable, and numerous admissions had been made. It was deeply dispiriting that no notice appeared to have been taken in the case of the decision in R v SL [2006] EWCA Crim 1902. Where there were concurrent care and criminal proceedings it was essential that each be kept fully informed of the other. The judge should have been aware of the counts in the indictment in the related criminal proceedings because the family court was to be aware at all stages of what was happening in criminal proceedings, and was to be the proactive coordinator of the proceedings, to ensure that each was heard timeously and with as little prejudice as possible to the competing interests involved. However, it was not the case that the judge should have required the child to attend to give evidence in the care proceedings; it was a rare family case in which a child would be compelled to attend and give oral evidence to the judge. The process of ordering the child to file a statement and then rescinding the order when she did not comply had been misconceived. There should not have been an order for a statement; the child had already given two ABE interviews. The court was very concerned about the medical evidence, which had been equivocal; it had been remarkable that the paediatrician had made no comment that the child had been genitally mutilated. Ultimately, however, the judge had been entitled to make the finding he made.