M-Y (Children), Re, Court of Appeal - Civil Division, June 07, 2018, [2018] EWCA Civ 1306

Resolution Date:June 07, 2018
Issuing Organization:Civil Division
Actores:M-Y (Children), Re
 
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Case No: B4/2017/3368 and B4/2018/0336

Neutral Citation Number: [2018] EWCA Civ 1306

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL FAMILY COURT

Her Honour Judge Wright

ZC17C00312

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 7 June 2018

Before :

LORD JUSTICE McCOMBE

and

LADY JUSTICE KING

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IN RE M-Y (CHILDREN)

Between:

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Alev Giz (instructed by David Tagg & Co Solicitors) for the First Appellant,

Caitlin Ferris (instructed by FMW Law) for the Second Appellant

Susan George for the Local Authority,

Sandra Fisher (instructed by Duncan Lewis) for the Children, by their Guardian

Hearing date: 17 April 2018

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JudgmentLord Justice McCombe:

  1. These are appeals by C (``the Mother'') and S (``the Father'') from findings of fact, a final care order in respect of a 15 year old girl (P), and interim supervision orders in respect of younger children (V, U and A), made by HH Judge Wright sitting in the Central Family Court, on 20 November 2017. Permission to appeal was granted separately to the Mother and to the Father by orders of Moylan LJ sealed on 15 and 22 February 2018 respectively.

  2. We heard the appeals on 17 April 2018 and at the conclusion of the hearing we informed the parties of our decision that the appeals would be allowed and that the case was to be remitted to the Family Court for a further fact finding hearing, with an interim care order in respect of P (in substitution for the final order made by the judge) and with the interim supervision orders (in respect of the other children) continuing. We gave ancillary directions and said that we would give our reasons for our decision later. This judgment provides my own reasons for the decision that we made. The judgment was ready for delivery in court on 16 May 2018, but the listing had to be vacated in the light of new information from the parties concerning the judge's order of 13 October 2017 referred to below.

  3. The proceedings relate to four children P (a girl) born on 23 March 2003 (now aged 15), V (a boy) born on 16 October 2005 (now 12), U (a girl) born on 10 October 2015 (now 2) and A (a girl) born on 7 May 2017 (now 1). The Mother is the mother of all four children; S is now the Mother's husband; he is the father of U and A. The Mother is a Romanian national and the Father is a citizen of Pakistan. The father of P and of V is also Romanian (called in the proceedings ``NM''); P and V have not seen NM since 2010 when his relationship with the mother ended. He has played no part in the proceedings. NM has an extensive criminal record for not merely trivial offending. His role in the family life in Romania was a matter of some dispute before the judge.

  4. In 2016 the Mother obtained an order of the Romanian courts providing for P and V to live with her and giving her permission to re-locate with them to the United Kingdom. In 2013, the Mother had already come to the UK, in the hope of improving her, and her children's, financial circumstances. At that time she left P and V in Romania in the care of her parents. She obtained employment here but made regular visits to the children in Romania and sent money to her parents to assist with their care of the children. She met the Father in 2014 in the UK and they married in February 2017. U and A are their children. It seems that the Father has the relevant immigration leave to live and to work in this country, following an application made by him to the Home Office after the marriage in March 2017.

  5. In June 2016, when the relationship between the Father and the Mother had been in existence for some little time, and after the birth of U, P and V travelled to the UK to live as part of the new family that had formed under the two parents. The family had not come to the attention of the Local Authority until 21 April 2017.

  6. In view of our decision to remit the case to the Family Court for a new ``fact finding'' hearing, it is not desirable, or necessary, to set out in any great detail the circumstances underlying the institution of care proceedings. I will merely recount a little of the background to explain my own reasons for deciding as we did. Nothing I say is intended to tie the hands of the judge dealing with the further proceedings in the Family Court.

  7. On 21 April 2017, while at school, P was observed to be distressed and, when questioned by school staff, she made allegations in some little detail about a serious argument between her and the Mother on the previous evening, involving (she said) the mother calling her names and hitting her several times about various parts of her body. She said that such physical abuse had happened frequently before that evening. She said also that she had been hit that morning when she had asked her mother for money, which had been refused. She alleged that the Mother did not care about her and said that, while in Romania, she had not attended school for some two years. She said that her grandmother had wanted her to get married in accordance with family culture, while she was still only 14 years old. She also told school staff, in these first accounts, that she had been sexually abused by S, who had touched her upon her legs and breast, including on one occasion at night when she was in her bedroom. She said she did not like her life and did not want to go home.

  8. The school contacted the Local Authority Children's Services department. On the same day, P repeated the same or similar allegations to social workers and to the police. I will not seek to recite precisely what she told the authorities, because one of the complaints made by the parents on the appeals was as to inconsistencies in P's accounts on various occasions and the sufficiency or otherwise of the judge's approach to these in her judgment.

  9. The police and social services spoke to the parents on the same day and told them of the allegations made by P. These were firmly denied by the Mother and by the Father. The Mother told the questioners that P had been habitually lying about her movements; she suspected P of having a boyfriend which P was denying, saying that she had been going to school for early lessons on the occasions in question. The Mother agreed that there had been an argument on the previous evening, but the Mother denied any assault. P was placed, under police protection, in foster care, and on 24 April 2017, the Mother entered into an agreement with the Local Authority (under section 20 of the Children Act 1989) for P to remain in temporary foster care, pending completion of a child protection investigation. The three other children remained living with the parents.

  10. Also on 24 April 2017, P was interviewed by the police in a recorded session, under ``Achieving Best Evidence'' (``ABE'') procedures. On the appeal and below, the appellants both criticised the manner in which this interview was conducted, in terms of procedural formalities, because of what they said was sketchy compliance with proper ABE practice and because of the use of leading questions. In the ABE interview, in broad terms, P repeated the allegations made in her earlier reports. She gave more detail of the events of 20 April that she had recounted briefly before and she gave a fuller account of the inappropriate touching that she was alleging against S, including of the bedroom incident previously reported. She alleged that the Mother had seen S touching her backside.

  11. On 25 April 2017, P underwent a medical examination at a hospital. She gave a further account of her complaints to the examining doctor. The doctor found certain bruising to a shoulder and leg which she reported as consistent with P's allegation of being punched and kicked.

  12. On 27 April 2017, both parents were interviewed under caution by the police. The Father denied all the allegations of sexual impropriety, although he admitted an innocent touching P's behind in the course of a cushion/pillow fight some three months previously. He gave an account of the argument on 20 April which was consistent with a type of dispute that any parent might have with a difficult teenage child.

  13. The Mother's account was of a similar nature. There was acknowledgement of the argument of 20 April, which was said to have centred...

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