Case No: B4/2010/1507
Neutral Citation Number: [2011] EWCA Civ 741
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE COATES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 11th May 2011

Before:

LORD JUSTICE THORPE
LORD JUSTICE MOORE-BICK
and
LORD JUSTICE SULLIVAN

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IN THE MATTER OF H (a Child)

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Mr Graham Campbell (instructed by Messrs Boots Stake Goacher) appeared on behalf of the Appellant.

Mr Francis Cassiay (instructed by Leona Daniel Solicitors) appeared on behalf of the Respondent.

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Judgment

Lord Justice Thorpe:

1.	There had been proceedings in the Brighton County Court concerning a family of Pakistani origin.  There are five children ranging in ages from 25 to 14; there are two girls and three boys.  There is a good deal of background which it is unnecessary to record for purposes of concluding the present appeal.  It is enough to say that there was a preliminary hearing to determine whether or not the youngest boy, named H, 14 years of age, was hit with a spoon in the home on 10 June 2009.  Depressingly, no less than ten days of the judge’s time was devoted to that exercise, the preliminary issue trial commencing on 4 January 2010 and concluding with a judgment given on 1 March.  The judge concluded that H had been struck with a spoon.

2.	However, the significance of that is questionable given that H had for some time prior to that preliminary issue trial been back home with his parents in the family.  So I find it difficult to see really how it was thought necessary to investigate this seemingly inconsequential issue so profoundly.  But Mr Campbell, who has represented the appellant most ably, informs us that at various times the local authority sought to withdraw either the preliminary issue application or the proceedings overall but were prevented from so doing by one or other of the judges of the court.

3.	Be that as it may, the father was aggrieved by the judge’s positive conclusion and applied by an Appellant’s Notice on 18 June for permission to appeal.  So we see a significant delay of three months between the finding and the application to this court.  We then see what appears to be a delay of a further five months before the papers are put before Sir Mark Potter, who on 19 November granted permission but directed expedition “as soon as possible.  Progress of case awaits outcome of appeal”.  What regard the office paid to that direction I know not, but I only know that we are sitting some six months later and Mr Campbell informs us that the second stage of the process, which is sometimes referred to as the disposal hearing, has taken place, the application for a care order has been dismissed and that is an end to the story.

4.	I think Sir Mark Potter was quite right to flag up the need for expedition because obviously if this court is to review a preliminary fact-finding it must do so before the trial court embarks on stage two and concludes the proceedings.  It seems to me extremely questionable whether Mr Hussain’s right of appeal survives his successful defeat of the local authority’s application for a care order.  As my Lord, Lord Justice Moore-Bick, put to Mr Campbell in argument, if a family member succeeds in care proceedings by achieving their dismissal, he surely has no right of appeal against findings of fact which are somewhere discernable within the judgment.

5.	There are other difficulties which Mr Campbell has faced with skill and persuasion.  The first is that the application for H to give oral evidence at the trial, which is the core of the appellate case following the judge’s refusal, was advanced by his parents on the ground that they did not seek to cross-examine him but only to hear within the context of the courtroom his latest account of what had happened on 10 June 2009.  As my Lord put to Mr Campbell, in litigation, as a matter of ordinary principle, an application to call a witness is an application to challenge, for what is not challenged is taken to be admitted.  

6.	A further difficulty for Mr Campbell is that H was represented by a guardian who firmly opposed the application, and her application rested on the report of an expert, Dr Blincow, who had made an assessment not only of H’s future but also of the issue whether or not he should testify; and it is quite plain that Dr Blincow had looked at this issue in a very sensible way.  His report shows that he had commenced by recognising that there was a strong argument that H should give evidence, as he holds information “of considerable and direct relevance to the issues before the court”.  But Dr Blincow went on to express his concerns that the consequence would be to expose H to considerable increase in the emotional pressures upon him.

7.	So given those two circumstances in combination, it is hardly surprising that the application for H to testify was refused by HHJ Coates in a brief judgment which impeccably balances the various considerations that had to be weighed.  She concluded: 

“I take the view that to require or allow H to come into the witness box would not be beneficial to his welfare.  This is not a case that is sufficiently unusual or extraordinary for that to happen.  I have of course borne in mind the fact that he is 14, but I have also borne in mind all the other observations made in the two reports supplied by Dr Blincoe.  I do not, in those circumstances, think it would be appropriate for that course to be taken.”

But in so concluding, the judge was directing himself by reference to the case of LM v Medway [2007] EWCA Civ 9, and that is Mr Campbell’s foundation argument.  The judgment given in LM v Medway was rejected by the House of Lords in the later case of Re W [2010] UKSC 12, and accordingly, says Mr Campbell, a plain misdirection has been demonstrated.  The judge embarked upon the exercise of a discretion, stating the presumption that child victims do not give direct evidence in care proceedings and, says Mr Campbell, this presumption not only influenced but effectively drove the conclusion.  He submits that had the judge had the guidance in the later case, there is at a minimum a real possibility that she would have reached the opposite conclusion.  Mr Campbell has very helpfully withdrawn other grounds, having had his attention drawn to the decision of this court in Re L, R, MH and C, a case as yet unreported but the subject of judgment of 10 May.  

8.	Mr Campbell has done everything that he possibly could in pursuit of this appeal; he has said everything that could possibly be said on behalf of his client.  But in my judgment this is a hopeless appeal.  The guidance that the Supreme Court gives in Re W does not turn the world on its head; it still requires a measured balance between the demands of justice and the needs of child welfare, and it is plain that that is precisely the balance that HHJ Coates struck.  The suggestion that she would have come to a different conclusion had she had the guidance in W available to her is without any force, given the particular factors that bore in the present case and the cumulative weight of all those factors that said “no” against the single factor that suggested “yes”.  

9.	So I am in no doubt at all that this appeal should be dismissed.

Lord Justice Moore-Bick:

10.	I agree.  In paragraph 7 of her judgment, the judge directed herself in the following way: 

“I have to assess whether or not in the circumstances of the overall case, and given the vacillations in the view expressed by H in the differing circumstances that he has found himself, whether in those circumstances having him in the witness box is (A) going to be of any use and (B) whether it is going to be conducive to his welfare.”

It is accepted that in putting the matter in that way the judge directed herself correctly. In doing so she expressed herself in terms which, although not formulated in quite the same language as that used by Baroness Hale in paragraph 24 of her speech in W (Children) [2010] UKSC 12, are in substance the same.  In that paragraph of her speech Lady Hale said that: 

“When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child.”
  
As I have said, the test the judge adopted was in substance exactly that.  

11.	The only criticism made of the judge is that, being aware of the presumption, as it is was then thought to be, against the allowing or requiring a child to give evidence, as set out in the case of LM v Medway to which she referred, she allowed her assessment of the various factors involved to be adversely affected by giving too much weight to those that suggested that it might be abusive to the child to allow him to give evidence and too little to those that suggested that his evidence might help her reach the truth.  However, when one sees how the judge actually weighed up the competing factors in paragraph 9 of her judgment, one can see that she did so in neutral terms.  Moreover, she did so in a way which makes it clear that if she had approached the question explicitly in accordance with the principles set out in W (Children), and without applying any presumption one way or the other, she would inevitably have come to the same conclusion.

12.	For those reasons and also for the reasons given by my Lord, Lord Justice Thorpe, I agree that the appeal must be dismissed.

Lord Justice Sullivan:

13.	I also agree that the appeal should be dismissed.  While there may well be some cases where the wrongful application of a presumption might make a real difference, because for example it is said that strong reasons in favour of a child giving evidence do not outweigh the presumption, this is not such a case.  Here there was no cogent reason why H should have given evidence given the appellant’s avowed intention not to subject his evidence to cross-examination and given the judge’s awareness of his vacillating approach and her conclusion that that approach had been accurately presented to the court.  

14.	By way of contrast there were cogent reasons why H should not have given evidence, that is to say, the judge’s conclusion that in the circumstances of this case it would be an abusive process, and more importantly that giving evidence would not be beneficial to his welfare.  Thus I am satisfied that the judge’s application of the presumption, on the facts of this case, did not flaw the exercise of her discretion.  In reality there was no real prospect that she would have exercised the discretion differently had she not commenced her consideration of the matter with the presumption of LM v Medway. 

Order:  Appeal dismissed.