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 around what the mother regarded as P's lies about her whereabouts on certain occasions and her having missed classes at school. She denied assault but told the police that she had pushed P, by the shoulders, into a chair when P was showing signs of wanting to leave the room rather than to hear her mother out. She said she had never seen the Father touch P inappropriately. She gave a similar account to that given by the Father about the cushion fight incident.

  14. On 15 May 2017, the Local Authority issued these proceedings, seeking care/supervision orders in respect of all four children. The case was formally assigned to Judge Wright, although her first dealing with the case was not until 13 October 2017. In the meantime, on 1 June 2017, a District Judge made an interim care order in respect of P, but declined to do so with regard to any of the other three children. A family assessment was directed from the T clinic. Directions were given for the obtaining of statements from P's school and for disclosure of police and Local Authority material.

  15. Interim directions were given by two other judges on 20 June and 4 August 2017. These covered further disclosure, the filing by the Local Authority of a schedule of findings that they would be inviting the court to make at trial, assessments of other relatives as possible alternative carers and for recovery of materials from the Romanian authorities. A hearing to determine whether or not P should give evidence was directed to be adjourned until the various strands of information had been collected. It was further ordered that the resolution of this question should be dealt with on 13 October 2017, together with ``Issues Resolution'' questions.

  16. In her judgment upon the ``fact finding'' hearing, the judge records that on 13 October 2017, she decided that it was appropriate for P to attend to give oral evidence and to answer limited questions to be determined at a further ``Ground Rules'' hearing to be held on 2 November 2017 (the first day of the trial) when a list of questions would be determined by her with the assistance of counsel. The questions would be limited (as the judge records) to ``the issues raised by [the Mother] and [the Father] concerning the findings sought against them''.

  17. The judge decided that P's evidence would be given by video link with the courtroom; P would be accompanied by her solicitor and by the Guardian and she would be given the opportunity to see or read the contents of her ABE interview. It was decided by the judge that the questions would be asked by her and not by counsel. P would be screened from view by the parents while giving her evidence, although their representatives would be able to see P. P's evidence would then be given on the second hearing day, 3 November 2017. The Local Authority asked for permission to appeal against the judge's order directing that P should give oral evidence. That application was refused and has not been pursued in this court, either before the trial or subsequently.

  18. The judge also says in her judgment this, about directions given concerning P's background in Romania and before and after going into foster care:

    ``21. I made further directions including the following:

    a. The findings of fact sought by the LA should be limited to threshold, although [P's] history, her circumstances prior to coming to the UK, and her circumstances both before and after going into foster care might be relevant to issues relating to her welfare, as well as to understanding the context in which she made allegations against both [the Mother] and [the Father].''

  19. At our request, after the hearing of the appeals, we asked for a copy of the full order made on 13 October 2017. What was initially provided following this request seemed to bear little resemblance to what we had been told had been ordered on that occasion. The list of witnesses in the final recital to the order provided did not include P at all. None of the directions about her evidence was recorded in it. We had been told that there was no transcript of the judge's decisions in this respect.

  20. All this said, however, there was no dispute between counsel before us that the judge did indeed make the decisions, which I have sought to summarise, at the 13 October hearing. When I mentioned these deficiencies (and others) in the order provided, in my first draft judgment sent to the parties for comment in the usual way, we were informed (in a document otherwise dealing with minor corrections to the draft) that ``all the advocates who appeared in this appeal wish to clarify that the order which had been agreed and sent to Her Honour Judge Wright as a consent order for approval was thereafter significantly amended by her. Her Honour Judge Wright's email to the parties' advocates and the amended order which she approved will be sent with this document''. The amended order was so sent to us, in the form of a ``tracked changes'' document. However, the draft upon which it was based does not appear to be the one which had previously been sent to us, the origin of which remains unclear. However, the ``tracked changes'' draft does appear to reflect broadly what we had been told the judge had ordered on 13 October.

  21. I asked for a copy of the order as ultimately drawn up by the court. I was told that it had not been drawn up at all. Thus, it seems that a procedural order of the highest importance to the conduct of the final hearing before the judge was never finalised and the only record of it now available appears to be in the ``tracked changes'' draft to which I have referred. This must never be allowed to occur again. Parties to proceedings of this nature and the court before whom they are conducted must ensure that such orders, setting the parameters of trial procedure, are always drawn up by the court in formal terms. It is the responsibility of the parties and of the court to ensure that it is done. Obviously, any such order is a necessary document for the bundle of papers for an appeal; I believe we were both surprised that it had not been included in the bundle in this case as a matter of course. Hence our initial request for a copy of it was made.

  22. Fortunately, in this case, the appeal was conducted on the basis of what we were told the judge had directed and, as it seems to me, nothing needs to be changed either in the decision that we made on the appeal or in my own reasons for it, as set out in my initial draft. All that was needed to be done, when the position was clarified, was for this judgment to reflect what the judge had actually ordered in 13 October 2017 and the misunderstanding that had arisen because of the incorrect information that had been provided following our request for sight of the relevant order.

  23. Moving on to the other points arising on the appeal, we were told that the parents also applied for a direction that a Mr Errol Blake, one of the local authority social workers, who had dealt with P between June 2017 and October 2017, should be called to give evidence. His notes had revealed a number of occasions on which he had challenged P as to inconsistencies in her various accounts and recorded some doubts as to the veracity of P's reports. We were told that, in the period before the trial, Mr Blake had been absent from work following injury sustained in an assault and that he had been shortly to leave the authority's employment by the time of the hearing. Therefore, the authority proposed to rely only upon the evidence of another social worker who had only had brief involvement with the family since Mr Blake's enforced absence. However, we were told that the judge declined to direct the attendance of Mr Blake to give evidence. (Mr Blake's name appeared in the list of witnesses referred to in the recital to the draft order of 13 October 2017 with which we were initially provided.) We were told that the application for Mr Blake to be called to give evidence was renewed at the beginning of the trial, but was again refused by the judge in a short judgment delivered on 3 November 2017. We have not seen any transcript of that judgment. However, in final judgment, the judge justified her decision in a passage in paragraph 23 as follows:

    ``23. ...Mr Blake had not filed any evidence in the proceedings, although I had directed any notes or evidence taken by him or indeed anyone else working with Paloma or the family which might undermine the reliability of Paloma's allegations should be disclosed by the LA. It was for the LA to prove its case, and call whatever evidence is sought to rely on in support. The LA had not filed any witness statement from Mr Blake, but had disclosed all relevant notes to the parties. The reliability of Paloma in relation to her allegations and threshold was a matter for me to determine taking into account all of the relevant evidence. To that end it was important for the Court to have all the relevant evidence, Mr Blake's own view about Paloma's reliability would not assist but the basis on which he had formed his view could be taken into account within the evidence contained in the bundle. The LA assured me that Mr Blake had not taken a different view in relation to the Care Plan filed by the LA concerning Paloma's permanent placement. I was satisfied CC was able to put forward her case, as she had done throughout the proceedings, that Paloma's reliability should be considered very carefully, given the LA's reliance on Paloma's evidence in support of the findings sought.''

  24. In advance of the hearing on 2 November 2017, Counsel for the parents submitted a list of proposed questions to be put to P when she gave evidence, importantly from their point of view including questions going to the events that occurred during the argument on 20 April 2017 between P and the Mother and directed to challenging the hotly disputed allegations that the Father had touched and or kissed P inappropriately. When it came to the ``Ground Rules'' hearing on the first day, the judge excluded virtually all the questions going to alleged violence on 20 April and those going to the alleged sexual touching by the Father. The questions that the judge agreed should be put dealt much more generally with arrangements at the family home and at P's school, but with really nothing going to the grist of the most serious allegations made and the parents' denials of them.

  25. P duly gave evidence confined to the reduced and very selective list of questions which the judge was prepared to have put to her.

  26. The parents had produced witness statements in the usual way and were cross-examined upon them by counsel for the local authority. We have not seen transcripts of that evidence, but, so far as the Father is concerned, we were told by Ms Ferris that his oral evidence lasted some 2 ½ hours.

  27. The trial occupied the court for six days up to 9 November 2017 and the judge produced her judgment in draft on 19 November. She recorded that she had hoped to have produced the judgment somewhat earlier, but it seems to me that, whatever, criticisms that are made of the judgment in other respects, it was produced admirably quickly and after the application of great industry. Again, as we have decided that a new fact finding hearing is required, I will give only the broadest summary of the judge's conclusions on the facts of the case.

  28. The judgment recited the general background of this family and the events which led up to the Local Authority and police becoming involved with them for the very first time in April 2017. The judge began her ``Assessment and Findings'' section of the judgment with the following general assessment:

    ``40. ...I was particularly concerned to ascertain the context of [P's] background, her circumstances prior to coming to the UK, and [the Mother's] knowledge of this. I bear in mind the conclusion of the [T] Clinic assessment in relation to [P] as follows:

    [P] reported a range of difficult and distressing experiences both in the UK and when she was living in Romania. She reported (in August 2017) low self-esteem, high levels of anxiety and some symptoms of low mood. She reported some disturbing dreams that in part related to issues relating to her stepfather. [P] felt rejected by her family. She presented with high levels of anxiety about the future, somewhat low mood and very low self-esteem. She had in the past thought of harming herself. [P] was vulnerable to sexual exploitation given her feelings of loneliness and rejection by her family. It was possible her experiences in Romania made her more vulnerable to sexual exploitation. [P] would greatly benefit from a therapeutic space to help boost her self-esteem and self-confidence and to address her symptoms of anxiety, depression and trauma.

    No party has disputed the accuracy of that assessment; although [the Mother] disputes [P] suffered significant harm in her care between 2016-April 2017.''

    Counsel for the parents told us, without dissent from counsel for the local Authority or the guardian, that the final sentence misstates the extent of the absence of dispute: they say that their clients agreed that P had told the T clinic what is there reported, but that they did not agree that what P said was correct.

  29. The judge then records a dispute between the evidence of the mother and reports made by P to professionals about events before she came to the UK. The judge accepted the reported comments of P about this phase of her life, as being in accord with court documents and information from the grandparents; she rejected the Mother's account of this part of the history. No questions on this subject had been permitted to be asked of P herself in her evidence at the trial.

  30. The judge dealt with P's reports and the Mother's statements and her evidence concerning family life after P and V had come to this country. She found that the Mother ``showed little insight into [P's] vulnerabilities, her emotional needs, and focussed instead on her new family''.

  31. The judge referred to the incident during the cushion fight, which I have already mentioned. All agreed that such an incident occurred and I have summarised the accounts given by P and the parents respectively about this. The judge concluded that that this was ``...a clear example, confirmed by [P] of [the Mother] having seen inappropriate behaviour but dismissing it as nothing''.

  32. A feature of the dispute before the judge was about whether P had been truthful in her assertions that she had frequently left home early in the mornings and had managed to get into her school before the official opening time. The Mother's case was that P had been telling lies about this and indeed about her whereabouts on other occasions. The Mother suspected that she was seeing a boyfriend, which would have offended cultural norms in their family circumstances. There was some support for the Mother's case in the records from P's mobile phone showing contact with a friend bearing a female name, but with a clearly male photograph in the profile. In her evidence, P accepted that the friend was indeed a boy.

  33. After some dispute about whether oral evidence should be given on the subject, witnesses were called from the school staff, on the parents' application, who spoke of the prohibition against pupils entering the school before normal hours. However, there was some evidence from these witnesses that early access to the school premises was possible and that P had been found on two occasions infringing the school rule about this.

  34. The judge accepted P's account and said that, while there were ``many examples'' of P having told lies about her whereabouts and her contacts, that did not undermine P's evidence about the details of the core allegations made against the Mother and the Father.

  35. The judge then stated that she accepted the account given by P of the incident between her and the Mother on 20 April 2017. She also accepted P's account of inappropriate touching of her by the Father. As for the latter, the judge said that she did ``not consider small discrepancies in time, detail and individual accounts undermine[d] the reliability of basis of the allegations made''. While the judge recorded the Father's consistent denials of these allegations, Ms Ferris complained on his behalf that the judgment contained no reference to any of the specifics of his evidence to the court which, as we were told, lasted for some 2 ½ hours and no explanation of why that evidence was found to be untruthful.

  36. On this aspect of the case, P's evidence in court, apart from the ABE interview (the recording of which was played) was confined to the incident concerning the cushion fight and allegations of the Father touching her at mealtimes at the dining table. Other aspects of this part of the case were not put to her, including the alleged touching over and under her clothes and the disputed kissing. The judge found nonetheless that the ``touching'' began about a month after she had arrived in the UK and occurred regularly thereafter. She was not challenged on the issue of whether, as she had said, the Father had told her not to report the ``touching'' in ``Pakistani'', she having no knowledge of any of the languages of Pakistan. The judge found proved the further touching allegations and the allegation that the Father had kissed her on the lips, promising her money in return

  37. The judge mentioned the ``small discrepancies'' in the accounts given by P as to the incidents of alleged touching by the Father. However, counsel for both parents argued before us that the discrepancies arising were far from small and we were referred to a number of points specifically addressed to the judge on this in the written closing submissions of both counsel at trial. Counsel submitted that these points, which (they argued) were a significant part of the parents' cases before the judge, did not receive adequate analysis by her and that accordingly the judge did not adequately explain to them why, in the light of what they submitted were forceful points, they had nonetheless lost the case.

  38. During the course of argument, counsel for the appellants accepted the difficult task they had in seeking to persuade us to allow an appeal against a judge's finding of primary fact and accepted (correctly) that, absent an error of law or some other material error of process (e.g. making a critical finding which had no basis in the evidence), such findings could only be disturbed if the decision were plainly wrong: see e.g. Henderson v Foxworth Investments Ltd. [2014] 1 WLR 2600 at [58] and following, per Lord Reed.

  39. Without elaborating unduly on the succinct and helpful submissions of Ms. George (supported by Ms. Fisher) in resistance to the appeal, she made the fair and important point that the judge had the distinct benefit of seeing and hearing the witnesses, including importantly, the Mother, the Father and P. She submitted correctly that the role of the trial judge is not to re-state the facts or the arguments but to explain to the ``losing'' parties why they have lost. She put to us fairly that some of the inadequacies in the ABE interview, for example, were complemented by P's body language, her gestures and demonstrations of ``touching'' which she gave on the video recording, which could not be re-produced in a mere transcript. She argued that the appellants were now over-emphasising the discrepancies in P's evidence which the judge was well-placed to assess. In short, this court should not interfere with the judge's conclusions based upon the district advantage derived by her of having seen the witnesses and having assessed them.

  40. I have considered these matters very carefully in the context of this case. There clearly was evidence before the court from P, in her ABE interview, and in other reports made at school and to others, which were capable of sustaining the findings which the judge made. The findings, therefore, did have a basis in the evidence. However, for my part, there were a number of features of the case, both at trial and in the case management directions, which satisfied me that the foundations of the findings might not be sound and that the appeal should, therefore, be allowed.

  41. Permission to appeal was granted by Moylan LJ primarily on the basis that the judge might have failed ``sufficiently to engage with and consider the impact of what are said to be ``significant discrepancies, inconsistencies and contradictions in the various accounts given by P''. In view of that comment, not surprisingly Ms Giz for the Mother concentrated on that aspect of the case. In my judgment, there was force in that contention. There were significant ``discrepancies'' etc. in P's accounts and it does not seem to me that the judgment really engaged at all with the points that were being made by the parents about them and how they might affect P's credibility. That is not to say that the accounts given by P were, for that reason, not truthful, but the judgment did not give sufficient attention, in my view, to explaining the findings in the light of these features.

  42. A related criticism of the judge's approach to the management of the case was made by counsel for the parents. They both argued that the judge should have permitted/required Mr Blake, the social worker, to be called. It was pointed out that, in this case in which the credibility of P was of the essence of the factual assessment to be made, Mr Blake had found a number of inconsistencies in P's accounts and had recorded them in his notes. The judge rightly observed that the assessment of P's credibility was a matter for her and, as Moylan LJ observed in his permission decision, this complaint seems to have ``less weight'' than others. However, the refusal to allow him to be called was, in my view, unfortunate.

  43. As the argument developed, however, it appeared to me that there were other features of the management of the case which undermined the ability of the parents to challenge the case being made against them by the Local Authority. Two of these can be mentioned relatively shortly. First, there were the findings of the T clinic upon which the judge placed considerable reliance, possibly on the understanding that the findings were not in dispute. Secondly, the judge placed reliance upon what happened to P while she was still in Romania, for the purpose of assessing the dynamics within the family after P's move to this country. The judge had directed that this material might be of relevance to the welfare issue, but she appears to have limited exploration of these matters when it came to her threshold finding. No real probing of P herself, on this aspect of the case, appears to have been permitted. However, in the end, it played an important part in the judge's assessment of the Mother's attitude towards her daughter, P, and of the credibility of mother and daughter respectively, supporting the conclusions that she reached on the ``threshold'' issues.

  44. There can be no doubt that the credibility of P's account, both as to the allegations against the Mother and as to the alleged sexual impropriety of the Father, was central to the case. Her credibility on each issue affected her credibility overall. The two central disputes were, as counsel for the parents submitted, ``enmeshed'' with each other.

  45. On this important aspect, I found force in the submissions of Ms Ferris that the manner in which the evidence was assembled, under the judge's directions, undermined the ability of the Father to challenge the very serious allegations, including what the judge in the end accepted was an element of ``grooming'', that were being made against him. These allegations, it will be recalled, had only surfaced suddenly in the aftermath of P's argument with the Mother on 20 April 2017.

  46. I have already set out the judge's directions as to how the oral evidence of P should be adduced. While there was opposition by the Local Authority and by the Guardian to P being called as a witness at all, those objections were not persisted on in this appeal and it was not suggested that the decision that P should be called to give oral evidence was wrong.

  47. The judge would clearly have had in mind the seminal decision of the Supreme Court in Re W (Children) [2010] UKSC 12 and she obviously endeavoured to produce a structure for the taking of evidence from P in accordance with guidance given in the judgment of the court, as delivered by Baroness Hale of Richmond. It is not necessary to set out in full the material paragraphs of the judgment in the W case which will be well-known to practitioners and, in particular, to counsel to be involved in the future presentation of this case.

  48. In spite of what McFarlane LJ said two years ago, to the effect that Baroness Hale's judgment in that case ``would seem to have gone unheeded in the five or six years since it was given'' and that ``the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining largely intact'' (Re EA (A child) [2016] EWCA Civ 473, [46]- [48] and [56] - [63]), Munby P observed that there had been a ``sea-change in attitudes over the last decade'' towards these matters: Re F (Children) [2016] EWCA Civ 546 at [41].

  49. Clearly, as the judgments in these recent cases show, there needs to be a ``tailor-made'' approach to the directions that are given with regard to a child's evidence in proceedings such as these. In this case, as it seemed to me, there was force in Ms Ferris's submission that the questions to P, which were permitted by the judge, did not sufficiently allow the Father to challenge the account of P with regard to the serious allegations being made against him. This had a knock-on effect on the assessment of P's credibility in other areas of the case

  50. To reach this conclusion is not to encourage what Lady Hale described as ````Old Bailey style'' cross examination'', but rather to say that the questions actually put in this case did not permit the Father in particular, and to a lesser degree the Mother, to put ``...focussed questions which put forward a different explanation for certain events'' (per Lady Hale at [25] in Re W) and to invite explanation in the various accounts which P had given in the ABE interview and elsewhere. ``The quality of any ABE interview... [is] an important factor, as will be the nature of any challenge which a party may wish to make'' (ibid.).

  51. In this case, there were (as it seems to me) legitimate criticisms to be made of the ABE process. Lady Hale said that, ``The important thing is that questions which challenge the child's account are fairly put to the child so that she can answer them...'' (ibid. at [28]). Ms. George acknowledged in argument that the parents' case would ordinarily be put more fully to the child than happened in this case. In my view, this last feature was lost to the factual assessment that the judge had to make.

  52. It was also said in the W case that questions may be put to the child otherwise than by counsel for the parties, perhaps (contrary to the experience of all counsel before us) by the judge. However, as I have said, the questions permitted here, by whomsoever they were to be put, did not really enable any meaningful challenge to be made to the crux of the allegations made against the Father. On the other side of the case, the judge did not address the Father's evidence at all. Some summary of that evidence and some explanation of why the judge rejected it seems to me to have been essential.

  53. One final observation must be made. The judge made a finding that the Mother had failed adequately to protect P from the sexual abuse, which the judge had found, by the Father. After circulation of a draft judgment, the parents' Counsel asked the judge to provide further reasons for this finding. The judge did so in a judgment delivered in writing on 20 November 2017 on the occasion when she made her orders. The reasoning so provided was also the subject of criticism from Counsel on the appeal. For my part, I found that the supplementary judgment added very little to the exiguous reasons on this issue given in the main judgment. If the allegation is persisted in by the authority in the further proceedings, the new judge will have to give careful attention to the evidence on this point, as (of course) I am sure he or she will do on all the disputed issues.

  54. For these reasons, I reached the conclusion that the factual assessments made by the judge as a whole could not stand and would have to be set aside. Therefore, like my Lady, King LJ, I decided that the appeal had to be allowed and that a direction for a new fact finding hearing had to be made.

    Lady Justice King:

  55. I agree.

  56. I would only wish to join with McCombe LJ in expressing my concern in relation to the confusion surrounding the order of 13 October. This order was crucial, not only because it provided for the procedure (including appropriate special measures) to be put in place in order for this young girl to give evidence, but it was also of critical importance to this court in order for it to have a full understanding of the judge's approach and thinking in relation to P giving evidence.

  57. So called narrative orders have become routine in care proceedings. If they are to do the job they are intended, that is to say provide a clear picture at each stage of the proceedings as to the parties' respective positions together with detailed case management provisions, they must be accurate and drawn up as soon as practicable.

  58. In the present case, the draft put before us identified Mr Blake as a witness. It was a ground of appeal that he had not been called to give evidence at the trial. On the face of it therefore, it looked as if the parents had had a reasonable expectation that Mr Blake would be called. In the event, the judge's track changed draft order did not identify Mr Blake as a witness, the judge having refused an application that he be called. He did not therefore attend court. This one example shows how serious misunderstandings can arise when unagreed draft orders are relied upon. Such misunderstandings are unfair to the parties, contrary to the interests of the children the subject of the proceedings and potentially undermine the Court of Appeal's ability fairly to dispose of an appeal in respect of which permission to appeal has been given.

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