B4/2006/2344 & B4/2006/2238
Neutral Citation Number: [2006] EWCA Civ 1875
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
(HIS HONOUR JUDGE RYAN)
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 19 December 2006
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE RIX
LORD JUSTICE NEUBERGER
- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF H (CHILDREN)
- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
 - - - - - - - - - - - - - - - - - - - - -

MR L ARNOT (instructed by Messrs Davis Simmonds & Donaghey) appeared on behalf of the Appellant in the Guardian’s Appeal (B4/2006/2344) and on behalf of the Respondent in the Intervenor’s Appeal (B4/2006/2238).
MR S CHIPPECK (instructed by Messrs Clarke Kiernan) appeared on behalf of the Appellant in the Intervenor’s Appeal (B4/2006/2238) and on behalf of the Respondent in the Guardian’s Appeal (B4/2006/2344).
MISS HABOO (instructed by Legal & Democratic Services, Kent County Council) appeared on behalf of the Local Authority.
MR M CALWAY (instructed by Messrs Berry & Berry) appeared on behalf of the Mother.
MISS V TEGGIN (instructed by Messrs Evans Main) appeared on behalf of the Father.
- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T 
1.	LORD JUSTICE WARD:  These appeals arise out of care proceedings which are pending in the Medway County Court.  On 13 October 2006 HHJ Cryan made a number of orders including:

1.	The application of the intervenor, Mr P, of the child A, the child B and witness C to be available for cross‑examination in the care proceedings is dismissed.

2.	The evidence of child A child B and witness C be admitted in the care proceedings by way of the ABE video interviews and their hearsaid documentary statements of transcripts.

3.	The fact‑finding hearing be adjourned to await the outcome of the criminal proceedings in the Maidstone Crown Court.

I should add in case there is any doubt about it that this is a case where I think the reporting restrictions must be complied with.  

2.	The proceedings relate to two children, S, who is ten, and C, who is four.  S is the youngest of three children born to the mother and her husband, who separated in January 2000.  The elder two children went to live with their father.  S has since been placed with him and continues to live with him.  Following the breakdown of that marriage, the mother began a relationship with Mr P.  He was thought to be the father of C but DNA testing has since revealed that this child’s father was a young man, a Mr S, who at the material time would have been about 17 years old.  

3.	In September 2005 Mr P was arrested for a variety of sex offences.  He now stands to be tried in the Crown Court as that order indicates an indictment containing 20 counts, the first three being of sexual activity with a child in that he indecently touched a child, who is child A.  The fourth count is a count charging him and the mother with engaging in sexual activity, in that they intentionally caused C to be breast‑fed by the mother, that being shown on the web‑cam in circumstances pointing to the activity being plainly sexual.  The other counts against Mr P relate to his making indecent photographs of a child and being in possession of indecent photographs of children.

4.	The care proceedings followed in November 2005.  C was placed with foster parents, where he remains.  In essence the local authority case is that the mother is emotionally needy; that she has neglected her older children; there are concerns about her ability, in the words of the statement of threshold criteria, to prioritise the children’s needs over those of herself and Mr P.  Then there are a number of allegations involving her failure to protect the children from the pornographic activity of Mr P.  That in essence is the nature of the care case.  

5.	Directions were given as the case progressed through the court and HHJ Cryan has case managed this matter.  The position had been reached that ten days had been set aside for this hearing on 9 October to be heard by HHJ Cryan and it was intended that evidence would be given by a number of witnesses, including the witnesses child A and child B, the witness C and another witness, F.  Arrangements were made for that evidence to be given through a video link and all was in place for that trial to take place.  Those arrangements had the blessing of the CPS.  On 15 September the Kent Police objected to the use of video interviews of these witnesses and of the child S.  That caused the matter to be listed for directions before HHJ Cryan and it came before him first on 27 September when he had to grapple with the problems.  He was critical of the late approach of the police given the apparent approval of the CPS, but perhaps not for the first and not for the last time the left hand of the CPS will not know what the right hand, the prosecuting police, are doing.  In any event, the judge had to deal with the problem of the evidence to be given by these witnesses.  

6.	The evidence would if correct go to show, as the judge said in paragraph 22 of his judgment, that Mr P is a sexually predatory male who takes advantage of young teenage girls and it would clearly be highly relevant, if correct, for the considerations of both the local authority and this court in any care proceedings.  He in fact adjourned the matter to 5 October and we understand that four days were taken up with the arguments that followed and the judge gave an ex tempore judgment after having a night to think about it.  The confused and confusing set of issues presented to him were essentially these: first, which witnesses should be called in the care proceedings and in what form should their evidence be given?  Secondly, should they attend the cross‑examination?  Thirdly, which should proceed first, the fact‑finding enquiry that was then before him or the criminal trial?  

7.	The judge dealt with those questions in this way: he dealt first with the issue of which witnesses were relevant and found, as I have indicated, that the evidence of these young people was highly relevant to the issues he had to decide.  Child A was born on 22 February 1991 and so is 15 years old.  Child B was born on 25 March 1989 so is 17 years old.  Child C was born on 13 June 1989 and is also 17, a bit older than child B.  Child F is about 20 years old.  

8.	It was the father’s case that their evidence was highly material and he wishes to cross‑examine them in order to establish part of his case that there was -- I confess I understand this imprecisely -- some sort of arrangement between the mother and the uncle of child C.  He wished to establish that the mother had herself had an affair with 17 year-old child, C.  That child A and child C were in some sexual relationship together and his purpose generally was to show that he was not a controlling figure in this household but -- perhaps I overplay this -- one of its victims.  

9.	The police case as presented to the judge was that these four witnesses were each exceptionally vulnerable and their fragility was such that the police had formed the firm view that they would never be able to stand the ordeal of giving evidence twice even if -- and the prospects were not certain -- the police were able to persuade them to give evidence once.  That case was presented to the judge by DC Letham.  He is, we are told -- indeed he is in court so one can form this much of an impression of the grey‑haired detective constable -- an experienced police officer in the child protection team of the Kent Constabulary.  He gave evidence which was summarised by the judge in recording that child A is fearful; worries about matters; her education was suffering; she was genuinely apprehensive about publicly discussing what had happened to her; she would find it particularly stressful to give evidence.  

10.	Child B was also fearful of appearing in court.  She was a very shy individual with few friends, and as at that time she was so fearful of the process of giving evidence that it was altogether unclear whether she was willing to do so at all.  Child C is the unhappy victim of a previous sexual abuse perpetrated upon him.  He had to give evidence of that ordeal and saw it as “torture”.  In fact he could not complete the evidence in that earlier trial.

11.	Although an adult, F was apparently younger than her actual years and she too demonstrated such vulnerability that she had been harming herself in her anxiety about having to give evidence.  So the police case was that each of those witnesses would be so seriously and adversely affected by giving evidence twice that it would be oppressive to call them in the care proceedings, for that would imperil the integrity, as it has been put, of the criminal trial; if they could not withstand giving evidence twice that trial stood at real risk of collapse.  It was important in the public interest to proceed with that trial so that if the allegations especially against Mr P are established, then the public at large and children at large can receive protection from his future activity.  The police therefore asked that the care proceedings be adjourned to follow the criminal proceedings.  In fact the judge went on to deal first in his judgment with the application by Mr P to cross‑examine these witnesses and he submitted that it would be unfair if he did not have that opportunity.  

12.	The judge directed himself in that regard with reference to the case of Regina v B County Council [1991] 1 WLR 221.  That was an application for judicial review of a decision of the magistrate in proceedings under the Children and Young Persons Act.  In the course of the judgment where the issue arose as to whether or not young children should be compelled to give evidence, Butler‑Sloss LJ firstly said that the issue depended upon whether attendance would be oppressive.  She added however at page 228 this observation:

“Research has shown the adverse effects upon some children of the requirement to give evidence in cases of sexual abuse.  In cases of young children, such harm may well be inferred:  see the Report of the Advisory Group on Video Evidence 1989.  The introduction of the Order of 1990 [I interpolate that permits the giving of hearsay evidence] clearly envisages an alternative to oral evidence and cross‑examination and to make it possible for children making allegations of, inter alia, sexual abuse to do so without the additional stress of a court hearing.  The philosophy behind the Children Act 1989 would be thwarted by the ability of the alleged abuser himself being able to require the attendance of the child at court.  A court should be very cautious in requiring the attendance of a child in these cases, reinforced as it must be by considerations as to how to deal with a refusal to give evidence after the issue of the summons.”

Accordingly, she held that the decision of the magistrate not to compel the witness was not reviewable.  

13.	Nicholls LJ found it a much more difficult case pointing out at page 231, in a passage I need not read, that ordinarily the trial process demands the giving of evidence with cross‑examination under the strict control of the judge, but he did not dissent from the result.  Lord Donaldson of Lymington MR again applied the test of whether attendance would be oppressive, pointing out that the nature of the evidence which the child or young person is likely to give in the context in which it is to be given is obviously material.  Some find it more stressful than others and each decision must take account of the total effects of the case.   There is no real dispute before us but that the proper test to apply in considering whether or not to direct these young witnesses to attend cross‑examination is whether or not it would be oppressive.  The judge’s finding on that was that, as he expressed it in paragraph 25 of his judgment, the children are extremely vulnerable, as demonstrated by the evidence of the detective constable, and he found in paragraph 63 of his judgment that he was satisfied by that evidence that there was “an exceptional degree of vulnerability”.  Consequently he held in paragraph 64 that, notwithstanding the impact of the right to a fair trial protected by article 6 of the Convention, the fact is that each of these potentially vulnerable children are at risk of significant harm arising from the experience of re‑living through their evidence what they say happened to them.  In the context of the repetition of that experience being imposed upon them that would be tantamount to a further abuse heaped upon them.  So he concluded  in paragraph 64:

“I have come to the conclusion that it would be oppressive to require them to give oral evidence now in these care proceedings particularly where they are likely within a few months to have to go through the ordeal all over again.”

14.	He was however prepared to require F to attend if so required, broadly it seems because she was an adult, and consequently he refused to direct the cross‑examination which Mr P had sought.  In answering the question which trial should come first the judge reminded himself of the case of Re TB (Care Proceedings: Criminal Trial) [1995] FLR 801.  I need not cite at great length from that case.  He did so in his judgment drawing particularly upon the observations of Butler‑Sloss LJ at page 804:

“Each case has to be seen on its own facts and considered on its own merits, and the welfare of the child has to take priority over the detriment to the family coming up for trial.  The detriment to the family of having to face criminal proceedings and care proceedings and to have a trial run, as they might see it, in the care court, is not in itself a reason for delaying care proceedings.  There will be cases where it is right, in the interests of the children, that the care proceedings are delayed for the outcome of the criminal proceedings.  It is a relevant but not determining factor in considering the welfare of children that they should have parents whose case is properly tried and who would not have been put at risk in the criminal trial for some particular reason that may come out in the care proceedings.  But the issue of delay is all important.”

The general rule was stated by my lady to be this at page 805:

“One starts with the fact that the criminal proceedings of themselves are not a reason to adjourn the care proceedings.  There must be some detriment to the children in the broadest terms for not bringing on the care proceedings because delay is detrimental generally to the children.”

She added that:

“I think we do have to hold the line that in the majority of cases, unless there are circumstances which warrant taking a different course, that the care proceedings should come on, even if they are to be heard before the criminal proceedings.”

15.	That general approach has been consistently applied as the judge pointed out more recently in the case of R v L [2006] EWCA 1902 (Crim), [2006] 1 WLR 3092, where in the Criminal Division of this court the President of the Queen’s Bench Division, Sir Igor Judge, sitting unusually with the President of the Family Division, endorsed the general rule that ordinarily care proceedings should come first.  HHJ Cryan did not follow that general rule.  He asked what detriment there was to the children.  He found they had an interest in justice being done to their mother and Mr P, be they innocent or guilty.  He referred to the need for the evidence of the witnesses to be given twice.  He referred to the problems of F being available at all to give evidence once if not twice.  His focus was squarely on the position of the children and the conduct of the care proceedings but he concluded that at paragraph 71:

“Although not determinative it seems to me that the children have a strong interest in the best evidence being available at the final hearing of the care proceedings.  This must be weighed in deciding whether to proceed now.  On the one hand it may be child F who might not be available at the second hearing.  However it is the case that if the care case were to follow the criminal trial either there would be evidence of the conviction or there would be evidence in transcript form.  Additionally there would be evidence of cross‑examination of the children A, B and witness C and S in transcript which would be likely to illuminate their evidence further and allow contested care proceedings to be resolved in the fuller evidence which would be to the children’s benefit.”

16.	He directed himself that he had to be cautious.  He bore in mind there was a degree of speculation about the impact of the criminal proceedings but in the particular circumstances of the case he concluded there were “clear and tangible benefits for the children” in the criminal trial proceeding first:  

“The importance to the children of having an effective outcome of the criminal proceedings is very high.  The impact of the additional delay is not such as to outweigh the need for the proper outcome of criminal proceedings to these children’s benefit.  I am unattracted by the idea that the impact on the criminal trial might merely be on some counts and not on others and this court should carry on in any event.  A proper outcome is what these children need.”

17.	So he made the order that the care proceedings follow the criminal proceedings.  I said earlier in my judgment that this was a confused and confusing hearing.  That has been repeated to some extent before us today.   For my part, expressing that sympathy for the judge, it seems to me that he should have asked himself: which question am I going to decide first?  In my judgment he should have grappled with the issue of whether or not to adjourn the care proceedings which were then there ready to be heard.  If he had done that and concluded as he did that the care proceedings should be adjourned, then there would have been no need for him to have ruled there and then on the application by Mr P for cross‑examination.  When Mr P’s counsel sought permission to appeal, the judge observed that the application could always be renewed to him saying:

“It would be open to him to repeat the application at a later stage in the care proceedings if circumstances were such that there had been a material change upon which he would seek to rely.”

18.	It seems to me that there was bound to be some change because the criminal proceedings would have been resolved and in my judgment the judge ought to have taken that view in the event of his deciding to allow criminal proceedings to take precedence.  As for his decision appealed by the guardian to allow the precedence to the criminal proceedings, I might not have come to the same conclusion that the learned judge did, bearing in mind both the fact that the court was seized of the matter, that ten days had been set aside and that care proceedings ordinarily hold sway over the criminal proceedings, but as has been pointed out to us this was essentially a case management decision and the judge has to be given that degree of deference in managing the conduct of the trials before him.  HHJ Cryan clearly took enormous care in grappling with this problem.  He is an experienced judge and it seems to me, upon reflection, that I cannot be certain that he was so plainly wrong in the view he took of the need for the criminal proceedings to go first.  He was presented with a difficult problem in the fragility of these witnesses and there is, at the end of it, force in his view that if these young people were to give evidence only once, it was better to have that evidence in the criminal court because a) there would be a transcript of their evidence and indeed b) we are now told arrangements can and will be made for that evidence to be given by a video link and recorded so as to be available in the care proceedings.

19.	It seems to me, therefore, that there is enough force in his view that gives enough protection to Mr P that at least he will have had the opportunity to test that evidence on one occasion.  I bear in mind Mr Chippeck’s concise submission that there are other issues in the care proceedings than those which will arise solely in the criminal proceedings, but the balance had to be struck by the judge and I, for my part, am not prepared to interfere with that decision.  

20.	Moreover, as I pointed out when the argument commenced this morning, that appeal has become academic.  The trial has been vacated.  The criminal trial is set down for the beginning of May.  There is no realistic prospect whatever of the Medway County Court being able to find another ten days for a fact‑finding enquiry until June or July.  That is the result of the enquiry I made with the court this morning.  So to uphold that decision does no more than to acknowledge the reality.  

21.	As for his decision to refuse cross‑examination of those witnesses, I have already indicated that it was premature to take that decision when the matter could be looked at in the light of the developments at the criminal trial when it will be known what evidence has been given; whether the children can withstand the ordeal for a second time, and it seems to me those orders should be discharged so that the judge, whose grip on the case is exemplary, should have the opportunity of a further appointment for directions when those matters can be canvassed shortly before the trial of the fact‑finding hearing is listed.  Probably co‑operation would be useful to give the children enough time to recover, enough time to decide whether they are going to go through with it again, but to leave it as long as possible I would have thought before the hearing to take their final decision.  

22.	So I would, not without some hesitation, dismiss the appeal of the guardian but allow the appeal of Mr P in order to set aside paragraphs 1 and 2 of the judge’s order of 13 October.

23.	LORD JUSTICE RIX:  I agree.

24.	LORD JUSTICE NEUBERGER:  I also agree.

Order: Appeal in B6/2006/2344 dismissed.  Appeal in B4/2006/2238 allowed.