Judge says recent case shows how exceptional circumstances must be if court is to use its power to dismiss care proceedings without having heard all the evidence

A Family Court judge has refused applications to dismiss care proceedings at a half-way stage made by a number of people accused of sexual offences against children.

In BB (Care Proceedings)(Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20 Judge Darren Howe QC, sitting as a Deputy High Court judge, said he did not criticise the respondents for pursuing the applications.

He said: “I understand, from the detailed schedules and written submissions received, why it has been submitted 'if not on the facts of this case, when?' My refusal to accede to the application provides a further example, if one was needed, of how exceptional the circumstances must be for the court to use its power to dismiss care proceedings without having heard all the evidence.”

The proceedings concern six children aged from six to 17 years old.

Five of the children are the subjects of care orders made in June 2018. Following the making of final care orders, the children made allegations of sexual abuse against their parents, two older brothers, an uncle and aunt, a cousin, the stepson of another uncle, their maternal grandmother and her deceased husband. They also alleged sexual activity as between themselves.

As a result of the allegations made the unnamed local authority applied for permission to terminate contact between the children and their parents. It also issued separate applications for care orders with regard to the cousin and her sister.

Judge Howe said he had to determine whether allegations made by the local authority met the criteria pursuant to Section 31(2) Children Act 1989 and/or justified the termination of contact.

After the local authority presented its case, all respondents applied to the court either to dismiss the council’s applications or use its case management powers to limit the allegations considered for the remainder of the trial.

The local authority then abandoned a number of the findings pleaded in its schedule, including one that resulted in the stepson having the case against him withdrawn.

Judge Howe said: “It is the submission on behalf of the respondents that the court should proceed on the basis that the abandoned matters are untrue and can, therefore, be relied on by the respondents as examples of fantasy/dishonesty by the children.”

He said he would give judgment part-way through the case because an urgent decision was needed to determine if, and how, it was to proceed.

The respondents all stated that there was no 'smoking gun' buried in the case papers, the judge said, and “there is nothing that can be put to any of the lay parties that will heal the local authority's fatally wounded case”.

It was submitted that there was no aspect of the local authority's evidence that was uncontaminated by breaches of the Achieving Best Evidence guidance and “professionals have done nothing right and everything wrong”. (All of a number of witnesses, except the fostering agency support worker, had accepted that their meetings with the children, be they formal interviews or not, had breached the terms of the ABE Guidance)

The judge noted that Bryan Cox QC, acting for one respondent, “submits that the process is so corrupted that it has removed from the court the tools it relies on to assess the evidence.

“Mr Cox submits that the product of the investigation has so little evidential value, and the local authority case is so damaged, that nothing said under cross-examination by any respondent can repair that damage.”

Another barrister appearing, Taryn Lee QC, said this was “a unique case in which the evidence of all 10 professional witnesses heard have been completely undermined by cross examination,” and had suggested the judge should consider “what is the point in carrying on’ when it would be oppressive for the family members to be forced to answer distressing questions in circumstances where the case has not come up to proof”.

Judge Howe said he had reached the clear conclusion 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. “In my judgment, there is an evidential purpose to hearing the evidence of the Respondents and I am unable to conclude that no court could properly make the findings sought by the Local Authority.”

Among the various reasons given by the judge for this decision was that the local authority, represented by Queen’s Counsel, had told the court it had legitimate and forensically necessary questions to put to the respondents. Judge Howe said “the court should be very slow indeed to deny the local authority the opportunity it seeks”, although he added that the local authority’s questions “need to be more than a fishing expedition and be addressed to issues that the court must determine”.

He added: “In my judgment, the investigation of inconsistency and dishonesty by the cross-examination of family members is an essential part of the process in public law care proceedings.

“Much of what the court has to examine takes place behind closed doors. The court is most often in the dark about what actually took place and has to piece together a picture of what is most likely to have occurred from the jigsaw pieces of evidence, pieces that come from many different sources available and from the different perspectives of each participant in the events being considered.

“In my judgment, 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.”

Judge Howe continued: “In my experience, where there are blanket denials of allegations of sexual abuse, the hearing of the evidence from those facing allegations can be a surprisingly quick exercise. If it is said that these events did not happen and are a product of a child's imagination, the answers to questions are often a simple 'it did not happen'.

“However, I have reached the conclusion for the reasons given above that there is a clear forensic purpose to hearing that evidence. The Respondents were present in both homes at times when it is said that these events were taking place. It is, in my judgment, essential that the court hears from them in response to the allegations that are made.”

Judge Howe said it may well be that in reaching his final conclusions, having heard all the evidence, that he will agree with the submissions made by the respondents. “I may not. As I said during the hearing of the evidence, I accept that Family Court judges are expressing views about the reliability of the evidence they hear on a daily basis, both at the case management stage of proceedings and during the hearing of the evidence in trial. A 'judicial steer' to the Local Authority is an integral part of the Family Justice system that helps to ensure the appropriate use of the court's resources.”

The judge said that in the circumstances of this case, he had required the local authority to keep its case under review but Judge Howe took the view that any further 'steer' was unnecessary as counsel for the local authority was aware of the difficulties now present in the case he advanced on behalf of the local authority. “I have reached the clear conclusion that it would be inappropriate for me to express any view concerning the consequences of the breaches of guidance on the ability of the Local Authority to prove its case. My conclusions can only be reached after a careful examination of all the evidence and for the reasons given above, I will not make any determinations until after the Local Authority has had an opportunity to ask questions of the Respondents.”

Mark Smulian