Mid-trial dismissal and withdrawal of allegations

Fran Massarella reports on a case which concerned an interim application to dismiss public law proceedings involving six children where there were numerous allegations of sexual abuse.

The proceedings in BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20 (Mr Darren Howe QC sitting as a Deputy High Court Judge) concerned six children, the eldest seventh child having been discharged following them turning 17. Of the six subject children, five were the subjects of care orders made in June 2018. Over a 14-month period following the making of final care orders, the children made allegations of sexual abuse against a number of adults and young people including: their parents; two older brothers; a maternal uncle and aunt; a cousin and a stepson; the maternal grandmother; deceased maternal grandfather, and another uncle. The children also alleged that a maternal cousin was a victim alongside them. The local authority issued applications for permission to terminate contact between the children and their parents and sought care orders for the cousin and her sister. As part of their substantive applications, the local authority sought findings as to the alleged sexual abuse.

The matter was listed for a 10-week finding of fact hearing to determine the truth of the allegations. This allowed six weeks for the hearing of the evidence called by the local authority. That evidence was concluded within 4 weeks.

At the conclusion of the local authority’s case, the Respondents and Intervenors (hereafter ‘the Respondents’) each applied for dismissal of the local authority’s applications or otherwise for the Court to exercise case management powers to limit the allegations to be considered for the remainder of the trial. The local authority subsequently sought permission to withdraw a number of pleaded findings, including the entirety of its case against the stepson consisting of one allegation alone.

The Respondents submitted that the Court should proceed on the basis that the abandoned matters were untrue and could therefore be relied upon as evidence of the children’s dishonesty. The local authority submitted that once an allegation has been abandoned, the Court should put the evidence of those allegations to one side as having no evidential advantage or disadvantage for any party by those allegations not being determined. Furthermore, the local authority submitted that, if the Court considers it necessary, the local authority can be compelled to pursue with the allegations it seeks to withdraw.

In relation to the application to dismiss proceedings, Mr Darren Howe QC set out the relevant legal principles, particularly those set out within AA v 25 others (Children) (Rev 2) [2019] EWFC 64. In this case, the Court concluded it did have jurisdiction to dismiss a local authority’s case beyond that found in part 12 Family Procedure Rules 2010, with the qualification that this power is only to be used in the most exceptional circumstances. Two examples were given of when such exceptional circumstances might arise; where medical evidence in an injury case changed substantially during the trial, or where pursuit of care proceedings as a vendetta against a parent amounts to an abuse of the process of the Court.

At [35] Mr Howe QC held that the examples ‘were not intended to be exhaustive.’ The Court must consider whether it is possible to say that the evidence of the Respondents would not assist in its determination of the facts. At [39] he surmised that the application for dismissal should only be granted if he can conclude that ‘having heard only the evidence called by the local authority…there is [was] no forensic purpose to be served by hearing further evidence.’  Furthermore, he held that ‘such a conclusion would be a further example of the application of the jurisdiction for reasons comparable to the example of an injury case collapsing.’

The local authority resisted the applications and submitted to the Court that the case cannot be over until the Court has heard oral evidence from the Respondents. To this end, the local authority acknowledged that the evidence relevant for the Court to consider may come within evidence of the Respondents rather than solely evidence presented by the local authority. The local authority relied upon the general principle, or rule as it was termed, that all parties to family proceedings will give oral evidence prior to any substantive decision being made.

On behalf of the Respondents, it was submitted that due to established and accepted breaches of ABE guidance, the evidence obtained by the local authority has almost no evidential value and therefore the local authority case has been damaged beyond repair. Furthermore, the Respondents urged the Court to consider the position of the police. The police had already conceded that there was nothing in the material downloaded from the devices of alleged perpetrators that supported the allegations of sexual abuse and therefore the Court ought to have considered whether it would be oppressive for family members to be forced to answer distressing questions where the case brought against them was weak. Additionally, it was argued that the withdrawal of some allegations but not of others (as the local authority sought) made by the same child at the same time and in the same manner was illogical.

The local authority’s submissions were adopted on behalf of the children. It was argued that the best interests of the children require all the evidence to be heard prior to any determinations being made.

At [59] Mr Howe QC held that he could not, until he had ‘heard all of the available evidence including the evidence of the Respondents, determine the factual allegations pleaded by the local authority.’ Significantly, Mr Howe QC noted at this stage he was unable to conclude that no Court could properly make the findings as sought by the local authority. The reasons for his decision were as follows:

a. ‘The need for conscientious examination of all the evidence does not just apply to those aspects of the evidence that might support those facing allegations. It also… applies to the consideration of the local authority’s case and the allegations made by the children’;

b. In order for the Court to be able to reach its conclusions on the basis of best evidence, the local authority and the children need the same fair opportunity to cross-examine the Respondents;

c. ‘The Court should only deprive itself of this otherwise essential source of evidence where it can be satisfied that there is nothing that can be said by the witnesses that will inform its conclusions’;

d. ‘The Court will be assisted by hearing evidence from the Respondents, particularly from the parents concerning the sexual knowledge demonstrated by the children in the allegations they have made’;

e. ‘An exploration of the views of one mother as expressed in her police interviews may provide evidence of particular relevance’ pertaining to why she readily accepted that her husband had sexually abused the children;

f. ‘The Court can only reach a conclusion that no Court could safely make findings after having heard all of the available evidence’; and

g. ‘The number of breaches highlighted by the Respondents does not reduce or remove the need for the Court to undertake a detailed evaluation of all the evidence. The number of breaches in this case is closely matched by the number of allegations. What connection one has with the other, if any, is a matter requiring close examination that should, in my judgement, occur only once all the evidence has been received.’

In relation to the application to exclude certain allegations from further consideration, at [88] Mr Howe QC set out the law from Re B (Children) [2008] UKHL 35 where Lord Hoffman held that the Family Court operated on a binary system meaning that the only findings the Court can make are either that it happened or it did not happen, not that it might have done. At [93] he concluded that ‘if the local authority does not concede the allegations to be false… the most appropriate course of action is to continue to hear the evidence on all the sexual allegations to ensure that the Court is able to consider all matters of relevance and within that exercise assess the credibility of all the sexual allegations alongside each other.’

The Respondent’s applications were therefore dismissed. However, Mr Howe QC highlighted at [99] that he did not criticise the Respondents for pursuing the applications and that his refusal to accede to the application is just a further example of how exceptional circumstances must be for proceedings to be dismissed mid-way through a trial.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.