transcripts.txt

start,end,speaker,text
00:00:34.820,00:00:36.320,spk_0,"Hearing the appeal"
00:00:36.330,00:00:37.000,spk_1,"W(Children)."
00:00:37.950,00:00:52.590,spk_2,"Mr Geekie, before you begin three points. First of all, I will make a confidentiality order. Thank you. In the terms that I think you counsel have seen already."
00:00:52.590,00:00:53.970,spk_3,"We've all seen that. Thank you."
00:00:53.980,00:01:14.850,spk_2,"The second point is, we're all very conscious that you've had very little time to prepare for this important appeal. We're grateful for all the evidence that have gone into getting the papers ready. And there is no need for anyone to make any apologies as to the somewhat unconventional presentation of some of the papers."
00:01:15.070,00:01:17.960,spk_3,"Thank you. We've been greatly assisted by this court staff, and we are very"
00:01:17.960,00:01:25.700,spk_2,"grateful. Good. And the third thing and possibly the most important, is we are all very conscious"
00:01:26.080,00:01:26.580,spk_3,"of"
00:01:26.580,00:01:40.380,spk_2,"the significance of the working party being set up by the Family Justice Counsel. And no doubt council will, in their submissions, bear in mind that that's happening and that we have very much in mind that that's happening."
00:01:41.070,00:01:42.000,spk_3,"My Lord. Thank you. Thank"
00:01:42.000,00:01:42.400,spk_1,"you,"
00:01:45.800,00:02:03.800,spk_3,"My Lord. My lady, in this matter, I appear together with Mr Liebrecht with the Appellant's My learned friend, Miss Lucinda Davis appears together with Miss Sarah Earley upon on behalf of the respondent Global authority. The mother is not represented before this court. She has through her Solicitor files and letters"
00:02:03.810,00:02:04.680,spk_2,"we've seen."
00:02:04.690,00:02:12.010,spk_3,"Thank you. Then learned friend Miss Kate Branigan of Queen's Counsel, together with Maggie Jones, represent the child through her guardian."
00:02:12.120,00:02:12.770,spk_0,"Yes,"
00:02:12.910,00:02:19.700,spk_3,"My Lord. This is an appeal from a decision of the Court of Appeal handed down on the 9th of February this year. Permission being granted by this court."
00:02:20.000,00:02:28.150,spk_2,"Sorry you say the child child. Of course, it's all the hildren were concerned, particularly with one. But we're concerned with the interests of all the children."
00:02:28.150,00:04:37.500,spk_3,"I'm most grateful for that correction. And of course, the position of the other children forms a very important part of the considerations which we propose to put before this court. Yes. Permission was granted by this court on the 15th of February. My Lord, this case concerns the proper approach to the decision as to whether a child should give oral evidence in care proceedings. The issue we submit gives rise to the need to balance competing interests. And it is the Appellant's submission that the Court of Appeal Authorities to date have not set the test correctly. My Lord, I do intend to I do propose to address the question of the work to be done by the family justice counsel. But if I may little later in the submissions, I am to make the background facts to this case to set out in the agreed statement of facts and issues, which is filed before the court. And unless this court at this stage wants any further assistance with regards to those background facts, I don't suppose to go to them now. When I come to look at the individual circumstances, this case after the legal arguments, then I'll go into more detail on those matters. May I begin by endeavouring to set these considerations in the appropriate historical context, which means going back a little way. But I hope not too far into history, and it really means looking at the position in 1988, 1989 concerns about children's evidence in family proceedings, were the documents show, on the political agenda at that stage. In the course of our written submissions, we have referred this court to a number of criminal provisions in order to give some counterbalance and some perspective the way in which matters have developed within crime and within family proceedings. The Criminal Justice Act in 1988 by virtue of Section 32 brought in live links for children's evidence given in criminal proceedings. But put over the issue of recorded evidence for the Pigott report, if I may use that shorthand to describe"
00:04:37.500,00:04:37.870,spk_0,"it."
00:04:40.770,00:06:20.630,spk_3,"In a parallel process going on, at the same time, chronologically cases leading to the Children Act 1989 made clear that hearsay was not admissible in cases concerning children other than in wardship. And in the written documentation in the Bundles, we've produced the case of Re(H), Re(K), which was the decision of the Court of Appeal in relation to, statutory proceedings, private law proceedings as the children. And that judgment made clear that, as I say chronologically in the lead up to the Children Act 1989 the courts decided that hearsay was not admissible in children proceedings. A parallel and similar decision was made in the Bradford case, in relation to proceedings in the juvenile court, the venue for care proceedings prior to implementation of the Children Act. And My Lord, I don't at this stage proposed necessary to go to those two cases. There's nothing that I seek to derived from them in particular, other than just setting us in the historical context of, here say not being admissible other than in wardship As we move towards the Act of 1989. What is of interest we submit is that those two cases H and K in particular led directly to a late amendment to the Children's Bill, adding Section 96 as we now see it, and it might give assistance. If I do take the court at this stage to Section 96 it's in the"
00:06:24.510,00:06:25.070,spk_4,"second"
00:06:25.070,00:07:45.020,spk_3,"of the two Authorities Bundles, which was File 4 of the Court Bundles at the tab 25. Section 96 provides, Subsection 1, Where a child is called as a witness in any civil proceedings does not. In the opinion, the court understand the nature of the Subsection 2 applies the children's evidence. The child's evidence may be heard by the court if, in its opinion, he understands that his duty to speak the truth and he has sufficient understanding to justify his evidence being heard. That reversed the position prior to that section, whereby unsworn evidence of the child could not be received as a small as it were side marker. We would venture to suggest that the legislature, by passing that's Subsection, had in mind that the evidence of young children might be received by courts. I don't press that as a point of any particular strength, but it would seem that would have been in the Legislature's mind."
00:07:45.660,00:07:50.850,spk_0,"Yes I do remember the motion revision was discussed."
00:07:51.450,00:07:57.940,spk_3,"I had anticipated the ladyship might have other background information about this series of events. We've done what we"
00:07:57.940,00:08:01.580,spk_0,"can... [inaudible] justify that."
00:08:02.820,00:08:48.360,spk_3,"Yes, well, it when one is looking at the evidence being received on swarm within criminal proceedings, 10 to 12 has been thought generally to be the cut off point. And so it would seem that that's the direction in which this Subsection was going. Subsection three, the general empowering provision for Statutory Instrument to be made, which I'll come to in due course, led to the children order that there were three hearsay orders, but they're in in terms of effect much the same. And it's 1993 Order, which now presides. Subsection 4 can be directed at different proceedings. It's Subsection 5, to which I draw particular attention."
00:08:49.510,00:08:49.770,spk_0,"An"
00:08:49.770,00:11:26.830,spk_3,"order under Subsection 3 may in particular provide for the admissibility of statements which are made orally or in the prescribed form, or which records recorded by a prescribed method of recording, (b) may make different provision for different purposes in relation to different descriptions of court and see is less directly relevant to these submissions. On the face of the Subsection, it was specifically envisaged that recorded material might be deployed in family proceedings, and it's possible to demonstrate that that provision was made specifically with the Pigott report in mind. And I'll come to demonstrate that in just a moment, if I may. But just pausing there, at that point in history, we have before the Legislature issues in relation to children's evidence being considered both in relation to criminal proceedings and family proceedings. And it's the backdrop to these submissions that one can see moving on through the last 25 years or so, the enormous thought energy and care has been applied to child witnesses in criminal proceedings. But that we submit has not been mirrored in family proceedings. Well, may I take a moment just to look in a little more detail at the Pigott report, which is in the Authorities Bundle, which is open before the court at tab 43. Again just just coming at this from the historical perspective, the use of video links at live links not recorded evidence the use of live links was brought in for the first time. As I've said by section 32 of the Criminal Justice Act 1988 we produced the implementation order. I don't need to go to it, but it's relevant to note that that came into effect in January of 1989. So from January of 1989 the criminal courts first began to receive evidence from children by way of a live video link, children under 14 at that stage. Before that his own judge, Pigott in June of 1988 was asked to look into the prospect of using recorded evidence and, as we see from the face of the Pigott report immediately behind tab 43 the committee reported in December of 1989. So the relevance of course of that"
00:11:26.830,00:11:28.530,spk_1,"chronology is"
00:11:28.530,00:11:46.270,spk_3,"that the advisory group and the courts had virtually no experience of the impact of live links when they produced this report. The preliminary view of the Pigott reports are to be found at Paragraphs 2.13."
00:11:49.850,00:11:50.490,spk_1,"Well,"
00:11:50.490,00:11:54.740,spk_3,"The section begins with the child's welfare page 15, Paragraph"
00:11:54.740,00:11:55.240,spk_1,"2.10"
00:11:55.320,00:14:12.440,spk_3,"But if I may, I'll just, go at this stage just a view of the preliminary reports of the Pigott committee at Paragraph 2 (13) at page 16. We acknowledge that report respects the possibility of giving evidence by live television link from outside the court in trials of violence and sexual offences, which has been available to the children under the age of 14, by section 32 of the 88 Act has improved matters, direct confrontation with the accused can be avoided, and the pressures of speaking in public about embarrassing matters reduced. Its too early to make a thorough assessment of this innovation, which has been carefully monitored and evaluated, and in my position, one has to bear in mind when one evaluates the balance of the advice of that committee that that was the state of knowledge in relation to what was clearly an innovation within criminal proceedings that had just got underway. My Lords, the part of the Pigott report, which has found expression mostly in the family cases, is that Paragraph 2 (12) on page 15 and that's the part that's quoted in the Paragraph is quoted in full by Lords Justices Warren Wilson in the Court of Appeal decision in this case, the present case before this court. And it's the one from which, if there's any resonance through the Court of Appeal Authorities, as to the impact on children of giving given evidence, it's the source of that sound effect. Paragraph 2.12 were satisfied that the majority of children are adversely affected by giving evidence Trials for serious offences under existing circumstances and laws if I made the expression under existing circumstances is crucial because, in effect, existing circumstances was the naked presentation of children in the witness box before a judge or jury, without any measures to prepare them, protect them or to the system after giving evidence that those were the existing circumstances being considered and then they go on the rest of Paragraph 2 (12) to summarise the expert evidence being received as to the potential stress and adverse effects on children are being presented to a court in that circumstance."
00:14:12.470,00:14:17.540,spk_0,"Do we know? what the source of that evidence was?"
00:14:17.550,00:14:30.690,spk_3,"Yes, the appendix. The appendix which sets out the contributors. It's not an appendix. It's certainly at the back."
00:14:31.520,00:14:32.140,spk_1,""
00:14:32.970,00:14:34.570,spk_4,"74"
00:14:34.570,00:16:46.480,spk_3,"Page 74 of the report. Thank you. Yes the summary there are those who gave evidence that it's within that collection of people. Yeah, but I would respectfully submit that when one examines in a little more detail what was said within the section I'm at in the Pigott report, more was being said than just that. A bold statement that children giving evidence will cause them harm. Can I go on to Paragraph 2 (15) And the background 2 (15) really began with the criminal case of Woolwork, which was the case where the Lord Chief Justice said that children the evidence of a child aged five could not be received, and the concern that was that the evidence of young children wasn't being received either because of legal practise or because parents or guardians were not content to their children to go before a court without any form of protection. So if I can just read six lines or so into Paragraph 2 (15). We also received evidence and police officers and social workers that many hundreds of cases cannot be pursued successfully each year because children seem unlikely to make effective or legally competent witnesses under under present circumstances. As a result, some child victims are left with feelings of anger, resentment, frustration and even guilt, which many experts believe could be to some extent dispelled by legal procedures which enable them to speak fully and freely and when judged against the progression of Court of Appeal cases in family law as to the effect on children giving evidence, that we respect, that suggested the most interesting comments because it shows that under appropriate circumstances, there is the possibility of good effect arising from children being given a voice in proceedings clearly criminal proceedings in this context. But it's a comment which could be more widely applied and at 2 (18) just over the"
00:16:46.480,00:16:47.270,spk_2,"page"
00:16:48.070,00:18:31.760,spk_3,"five lines up the bottom of page, we also think that the quality of evidence that children give on cross examination will improve where this takes place in informal surroundings as soon as can practically be arranged. So that's the early recording of the child's evidence, which was then to be used in chief. But again, looking to the fact that despite the inauspicious position has presented in 88, 89 the appropriate use of technology and care and consideration could give rise to considerable amelioration for children in giving evidence in proceedings. And again, it's slightly to the side of this case. But just a note that a Paragraph 2 (22) at the foot of page 19 the committee recorded that, In terms of criminal proceedings, of course, they say, we agree that cross examination is essential. And again at 2 (24) at the head of the page, making a similar point. We would be seriously concerned about this matter if it were proposed and tied to excuse the child from cross examination. Some of them just standing where we were at that stage. There was clearly expressed concern about children giving evidence, as was the practise at that time in criminal proceedings, but very much of you that that was something which could be ameliorated. Now we produced at a tab in the other Authorities Bundle in the Lord's. We've also just take a profile."
00:18:35.760,00:18:36.100,spk_1,"Well,"
00:18:36.100,00:18:45.810,spk_3,"I hope the court has, in addition to the four Bundles, originally filed a fifth which has been we're beginning to collect some additional materials which came at the end of last"
00:18:45.810,00:18:46.790,spk_1,"week. It"
00:18:46.790,00:18:51.330,spk_3,"was produced by us for this court on Friday with the heading index supplementary material file 5."
00:18:51.330,00:18:52.670,spk_2,"Yes, I think we've got Thank"
00:18:52.670,00:19:09.440,spk_3,"you. The second tab there is a short extract from Hansard which we don't produce as an aid to construction. Just as part of the historical development. The it might have gone in another tab. One tab to"
00:19:09.450,00:19:11.540,spk_1,"we've gotta transfer tab."
00:19:11.660,00:19:25.050,spk_3,"Thank you, head with the bold heading evidence given by all with respect to children and immediately underneath that one sees it from the House of Commons debates on the 24th October 1989. Just turning to the second page of"
00:19:25.060,00:19:26.510,spk_4,"that 10.30pm"
00:19:26.510,00:19:28.690,spk_3,"I just..."
00:19:29.300,00:19:29.740,spk_1,"Sign of the"
00:19:29.740,00:19:51.170,spk_3,"times. The Solicitor General introducing a a new provision the 3rd, 1st, 3rd full Paragraph in the middle of the page. However, the effect of the recent Court of Appeal decisions in Re H and Re K and the effect is summarised, that a direct response to that case, which have taken place earlier that"
00:19:51.180,00:19:52.270,spk_4,"year,"
00:19:52.550,00:20:42.020,spk_3,"and then the proposal to remedy the situation. The following Paragraph with the 96 (3) and in the following Paragraph. The last few lines deal with Subsections 5 and 6 will provide the necessary flexibility. The Lord Chancellor's Power will thus be expert sizeable to provide for the admissibility of statements made orally in writing any form prescribed by the order or by any means of any form of recording, for example, audio or videotape. And so that throws the consideration little wider than is apparent from the section, which simply talks about any form of recording and demonstrates that video recording was plainly in consideration. And then just on the opposite page. When Mr Simms responds to attorney general, in the second Paragraph of his response, he asks the question, What progress is the Pigott committee making?"
00:20:42.880,00:20:42.940,spk_1,"The"
00:20:42.950,00:21:41.960,spk_3,"relevance of that being that it directly ties the development of criminal and family procedures together has been considered by the Legislature at the same time. So, what was happening within Pigott was very much before the Legislature, when dealing with Section 96 I would suggest that it's legitimate, supposed that, given the chronology, which is that this all happened very late in the progress of the Children Bill. We're now in October 1989 received royal assent in November 1989 the the legislative work considering globally as it were, the question of how children's evidence might be presented within proceedings, whether criminal, family. And it's legitimate, I suggest to suppose that they were, as it were, putting over the question of more detailed provisions for children until period reported, but foreshadowing it by way of Section 96 5."
00:21:46.790,00:21:47.250,spk_4,"There's"
00:21:47.250,00:22:15.480,spk_0,"an alternative point of view, of course, which is that until Re H, Re K. Nobody thought it was a problem in civil proceedings, and it was only then that it became clear that it was a problem, and so it was necessary to put something into the Children Bill to cater for that. And although Pigott was going on, it was going on in another part of the forest to do with criminal proceedings. Where there's always been known to be a"
00:22:15.480,00:22:59.660,spk_3,"problem, we'll see. Perhaps what I suggest is that what we see from Re H, K. It's certainly right that it had been going on before receiving hearsay evidence, but a bit, if I may put it this way, a bit of a mishmash. It wasn't quite clear whether it was by consent from the individual parties or by lawful authority. So it certainly needed clarification. And I would venture to suggest that it goes a little further because we, the Section 95 (6) goes at the 65 goes a little further because we can see that it was specifically directed towards in the statute recording, look at the Solicitor General video recording, and by the response to pick up being there so accepted a degree speculative. But if one is trying to unscramble"
00:23:00.160,00:23:01.820,spk_0,"which angle ones coming from."
00:23:01.820,00:23:02.960,spk_3,"You're"
00:23:02.960,00:23:28.850,spk_0,"coming from a situation in which, for whatever reason, it had been taken for granted that was admissible in family proceedings and then there was a decision of the Court of Appeal holding that it wasn't and so one had to do something to make sure that it was, on the other hand, got the very clear situation that it was not admissible. Even live link was"
00:23:28.860,00:23:30.490,spk_4,"a"
00:23:30.500,00:23:42.650,spk_0,"suspect and certainly recordings were not admissible in criminal proceedings. And so the two coming from opposite ends of the spectrum, that's all. Pigott was, of course, important in both respect."
00:23:43.490,00:24:27.310,spk_3,"Accepting that proposition, even if that's how things stood in 88, 89, one still then, of course, goes on to look at what had or hadn't happened within each jurisdiction thereafter. And the point remains that whatever might have been intended the detail of the receipt of children's evidences we would submit rather left languishing. The order, which was passed as we put in the written submission, was a bare order. It gave the permission, but no further standards guidance at all. And so it's the Court of Appeal that has developed the test that is to be applied, that order having been passed. Where"
00:24:27.310,00:24:28.340,spk_0,"do we find the order?"
00:24:28.510,00:24:35.490,spk_3,"The order is in the second Authorities Bundle 4."
00:24:38.800,00:24:39.390,spk_1,"At"
00:24:43.110,00:24:50.720,spk_3,"tab 28. I'm taking that's that's the 93 order in the preceding ones in the preceding tabs."
00:24:51.520,00:24:51.930,spk_4,"Thank"
00:24:51.930,00:24:52.380,spk_1,"you."
00:24:57.500,00:25:01.210,spk_0,"Do we have the relevant section of the Cleveland"
00:25:01.210,00:25:01.750,spk_1,"Report?"
00:25:02.660,00:25:09.110,spk_0,"Because, you see, that was what was going on at the same time, as far as care proceedings were"
00:25:09.110,00:25:09.740,spk_3,"concerned"
00:25:10.500,00:25:52.340,spk_0,"Pigott was going on as far as criminal proceedings were concerned. But as far as care proceedings were concerned, the question of how you proved cases in care proceedings was given a huge amount of investigation in the Cleveland report. That was the other part of the background, which is, you know, your suggestion that the order was leaving things up in the air. Further legislative work to be done, has to be seen against the background of all the other work that was being done and had been done in the. in the Cleveland Report, which talks about evidence that considerable length sold chapter on it."
00:25:52.880,00:27:06.890,spk_3,"My lady. I accept that context, of course. And I can only apologise that we haven't put those Paragraphs of Cleveland before before the court and I do accept there, of course, an important part of the historical development, but the it's not that I seek to, as it were make too much of legislative activity or not after the original order was made, but it it is the position remains that it is, as I express it, just a bare order, giving an empowering provision with no more said about how the court is to consider the receipt of children's Evidence. And rising from that has been the need for the Court of Appeal to develop the test. Some of those turning if I made to the test as it is now, it doesn't seem to me there's any great degree of dispute between these parties before this court as to what the standard the test is at the moment. And perhaps I can just go to Ms Branigan's Statement of Case before this court to see how she puts it, because I don't think there's any great difference between"
00:27:06.890,00:27:08.660,spk_1,"us. It's"
00:27:08.660,00:27:10.480,spk_3,"File 1 tab 6."
00:27:14.310,00:27:14.510,spk_0,"Yeah,"
00:27:18.200,00:27:24.150,spk_3,"the towards the end of Paragraph 47 page 18."
00:27:24.360,00:27:24.630,spk_4,"Sorry which"
00:27:24.630,00:27:42.590,spk_3,"Paragraph? 12 (1) tab 6 page 18, Paragraph 47. My Lord,"
00:27:42.600,00:27:45.650,spk_0,"You think this is an accurate summary of the current state of the law?"
00:27:45.970,00:27:48.370,spk_3,"It pretty much mirrors what we've said in our"
00:27:48.370,00:27:49.770,spk_0,"document. If"
00:27:49.770,00:28:09.520,spk_3,"I'm able to grieve this, Miss Branigan better than taking you to mind, falling falling lines of principle can be derived from the four principal Authorities. Managing the child's judicial discretion, the starting point is its undesirable. The child to give evidence particular justification will be required, although there are some cases where it's right. I'm"
00:28:09.520,00:28:09.890,spk_2,"sorry."
00:28:10.590,00:29:05.860,spk_3,"I'm so sorry. Paragraph 47, page 18 of Miss Branigan. Thank you. The first three bullet points judicial discretion starting point and particular justification over the page. Although there will be some cases where right child give or 11th, such cases will be rare. The attendance of a reluctant child should not be required by virtue of a witness summons if it will be oppressive social order. We would add the rider, perhaps, that the attendance of any child should not be required if it's oppressive and the welfare of the child is irrelevant but not paramount consideration. And because one is trying to pick up what the test is from a number of authorities, one could express it slightly differently. But we accept that encapsulates the key elements of the test as they had been as it has been developed by the Court of Appeal."
00:29:05.890,00:29:09.760,spk_4,"Are they Absolute? I mean,"
00:29:10.530,00:29:11.350,spk_3,"is"
00:29:11.360,00:29:43.630,spk_4,"the penultimate one, an absolute. What happens if that's an absolute what the proceedings can't go ahead or they go ahead automatically on the basis of Hearsay evidence. However much hearsay would otherwise, for special reasons, be desirable, cross-examination with special reasons are desirable?"
00:29:44.960,00:30:14.210,spk_3,"I don't know that I could suggest that it is absolute. But if one traces the word oppressive through these Authorities, it is a very strong consideration described by Lord Justice Wilson as the yardstick of oppression. So you described as the yardstick by which the case will be decided. And if if the child judge's conclusion is that it would be oppressive, then the child will not be called to give evidence. And the case will proceed by way of hearsay without cross examination."
00:30:15.030,00:30:47.720,spk_4,"Yes, but in deciding whether it's oppressive, you simply look at the effect on the child. I ask that because the third factor suggests that can be a particular justification for requiring the child to give all evidence, and so does the last one. The welfare of the child is irrelevant but not paramount consideration. In other words, if ultimately there's a discretionary exercise, it must involve some balance between these factors."
00:30:49.160,00:30:49.570,spk_1,"Yeah,"
00:30:50.950,00:31:10.110,spk_3,"it certainly is expressed as requiring a balance, and it may be most sensible if if I take the call to the key passages of the key Authorities, which set this out because all this is trying to digest points which are made in different ways in different cases, and so one only really gets the full sense of it by looking at those particular passages."
00:31:11.070,00:31:38.290,spk_4,"I think the gist of your case is that the balance is really struck and by the second and the fourth factors mainly in principle, is undesirable, and in principle it's very it's rare and that's so to speak. The balance is tilted heavily in that direction from the outset."
00:31:38.300,00:32:58.320,spk_3,"Yes, we would say that if you if you have a test which says that the outcome will be rare and then the very test itself is predicting the degree, the outcome and cannot therefore be a fair test, it should be. It should be neutral. The test itself should be neutral as to outcome. So it is wrong in principle to have a test which express rarity as part of the very formulation. And we made criticism of the second bullet point. There's a starting point that is well, it was characterised by Lord Justice Reimer in the Court of Appeals in this case as a presumption, and we certainly submit it has that flavour and that character that that is a starting point. If it's a starting point, it's a presumption. And if there were any doubt about that, when we move on to a particular justification, we submit that one can probably ask. Well, who is to do the justifying? And the answer must be. It's for the respondent father to show a particular justification is why, despite the starting point, despite the expression of rarity, the child should have to give evidence, oral evidence. And so that, again is an indication that there's a presumption which has got to be rebutted by the father. Why"
00:32:58.320,00:33:16.430,spk_4,"shouldn't there be a presumption? I mean, as long as it's capable of being rebutted, and as long as the factors which lead to it being rebutted are clearly identified, I'm not sure they are expressly identified in these six bullet points."
00:33:19.210,00:34:29.850,spk_3,"We know two complaints about that. Firstly, that even if this court would conclude that the test itself is not flawed it's, by putting Principal, it doesn't have sufficient articulation of the particular counterbalancing counterbalancing factors to be born in mind. And so that is a serious default of itself. And the what is entirely absent from the Authorities is any specific expression of needing to weigh the competing convention rights of article and the child herself will have Article 6 and Article 8 rights. Similarly, the parents and on the facts of this case and in many, many other cases, the Article 6 and 8 rights of siblings. And I was going to move a little later, so a bit more about siblings. But those are all key competing considerations, and at the very least, they need direct expression with any appropriately formulated test."
00:34:30.700,00:34:42.050,spk_0,"Is there something else? A. As I understand you, Mr Geekie, you're saying, you you object to a starting point if it's elevated to a presumption at least,"
00:34:42.060,00:34:43.200,spk_4,""
00:34:43.210,00:34:59.510,spk_0,"and you object to what may or may not be a result being stated as a principle, i.e rarity could be a result of the application of the right factors, although you wouldn't necessarily accept that. But it's a result. Not"
00:34:59.510,00:35:00.740,spk_3,"a"
00:35:00.750,00:35:02.780,spk_0,"not a principal."
00:35:03.350,00:35:04.250,spk_3,"Empirically, it may turn out."
00:35:04.260,00:35:17.440,spk_0,"Yes, exactly. And your further criticism is that what this doesn't do is set out what the relevant factors are being weighed in the balance. So you've got 3 criticisms. Yes,"
00:35:19.050,00:35:20.570,spk_3,"but then going to go into the..."
00:35:20.580,00:37:15.830,spk_0,"Sorry, Sorry. I've got another question. Before you get into the factors, you you point to the Article 6 and Article 8 rights,  of all the people involved in the proceedings, the complaining child, the other children, the mother, the father and so on. Is there also sitting in there a public interest in the sense of or a general interest in the sense of not only these children, not only these families, but other children? Because if one has a state of the law, which makes it very difficult for children to complain about what they have suffered generally Well, then that would have implications not only for these children in this family, but for children generally. Were it to be the case, for example, that the expectation was that any child who complained that a parent or somebody close to them had abused them in some way, could be summoned to give evidence, and therefore they had to be warned almost straight away. Well, if you're going to tell me this, I shall have to take it further. And you might be called to give evidence if one had that situation. Well, Then one could easily speculate that it would be a serious deterrent for children making complaints along with all the other deterrents that there are, that that would be relevant to the balance in any particular case, is there a general interest as well as particular ones? It's taken me a long time to ask you that question, but that's what I'm trying"
00:37:15.840,00:39:35.260,spk_3,"I believe we have a firm answer to that, so I hope it's a satisfactory one. The position your ladyship postulates, applies already in relation to a child and criminal proceedings that that if the child is asking all the investigator feels obliged to explain, then the child would have to be told you'll probably have to give oral evidence at a criminal trial. If this gives rise to an allegation of crime, you're likely to have to give evidence. And indeed, the very ABE interview in this case starts off as early on in it, a discussion with a child about the fact that you may have to give evidence in a court. So insofar as there is that concern as to the impact upon children, generally, it's within the system, and it's difficult to see why an investigator or social worker would be able to put on the child's behalf, filter out what you might have to do with in criminal proceedings of what you might have to do with in family proceedings. But secondly, perhaps more importantly, we resist very firmly any suggestion that the anyway behind our underlying disappear. All these submissions is a suggestion that children should have to give evidence in criminal proceedings more often. And the local authority directly say in their case, Statement of Case, that if this appeal is correct, then it will lead to a presumption that a child should have to give evidence. And we with great respect say absolutely not. All we are saying, is that when considering this issue, all competing interests should be evaluated from a level starting point because the competing interests are separately so important that it's wrong to rank them prior to consideration. And it's not convention compliant, We will say anyway will develop in a moment, and so you start from a level basis, and that does not lead to conclusion that there'll be a presumption that a child should give evidence what a court will do, what the individual judge will do in the individual"
00:39:35.260,00:39:36.390,spk_0,"case"
00:39:36.400,00:39:52.810,spk_3,"is look at the circumstances of that child in the context of that case, and I don't want to be tedious about it. But we do stress the importance of looking at the child in the case because that's certainly what didn't happen in this case."
00:39:53.870,00:40:28.550,spk_1,"Have we got the (?) case? Somebody mentions it, But I rather think the point my lady raised it comes in there. And I think it is a consideration in the case what the overall impact on the cooperative on, whether the children will be cooperative and the extent to which they are liable to have to give evidence. In that case, it was a special measures case in a criminal content, but I think we did. We did recognise that there were these wider there is this wider, more general interest in children. Generally, I think we actually said, I have"
00:40:28.580,00:40:43.040,spk_3,"got cases here I can't readily brings to mind the passage your Lordship was talking about, But we'll try and identify that I'll deal with the course. I simply can't recall that passage to mind. My Lord, I don't"
00:40:44.550,00:40:44.730,spk_0,"I"
00:40:44.730,00:41:06.040,spk_3,"don't think I'm resisting the notion that any decision made could have wider implications or that that would be that needs to be taken into account. I don't think I'm seeking to resist that proposal. But as I understand it, what I'm being asked addressed is that we're the message that might come out from any decision made..."
00:41:07.220,00:41:29.000,spk_0,"I was trying to put to you. Not as well as My Lord has put it the point that there are general considerations in play here as well as individual ones, not, not just the considerations. In the individual case, the public interest may go wider than that. That's the only point that"
00:41:29.110,00:41:35.120,spk_3,"I think I could possibly resist that proposal that one has to look at..."
00:41:35.540,00:41:38.930,spk_1,"So the party already sold, in part because there are going to be criminal proceedings."
00:41:39.960,00:41:41.250,spk_3,"In this, in"
00:41:41.250,00:41:41.810,spk_1,"this case? Yup."
00:41:42.320,00:41:57.330,spk_3,"My Lord, certainly in this case. But if one just stands back and posits a a future complaint, we're really in this regard. We're probably talking about the older child. Six year old may not be thinking where"
00:41:57.330,00:42:35.180,spk_0,"you see this is Well, whatever happens in this case is going to send messages much, much wider than an intelligent, articulate 14 year old, and that was part of the point that I was putting to you. A lot of these cases involved very much younger children, very different circumstances in which usually the prospect of the prosecution isn't there, but the need to protect not only that child but other children in the"
00:42:35.180,00:42:35.780,spk_1,"family"
00:42:36.300,00:42:37.310,spk_0,"is very strong."
00:42:38.290,00:43:08.730,spk_3,"Well, it's one posits the future case. I accept the proposition that younger children, and even if they're older, chronologically with learning disabilities, Acceptor all that has to be encompassed. But and the child has something to say And the proposed fear with which I am grappling is that a responsible investigator, whether the police or social worker responsible, has to say something to the child which might inhibit something being"
00:43:08.730,00:43:09.920,spk_1,"said when"
00:43:09.920,00:43:28.780,spk_3,"one is at that stage, whether or not the criminal proceedings must be an unknown in my submission until you've got the account, you can't know whether there can be criminal proceedings in light of the Crown and Barker. What age limits there might be on children being witnesses, with respect, for some, it is a very open question. So one doesn't..."
00:43:28.790,00:43:40.830,spk_0,"But that's changed since the, whichever Act it was that completely changed the admissibility requirements for children's evidence in criminal cases."
00:43:40.840,00:43:41.740,spk_3,"Yes, well,"
00:43:41.740,00:43:43.450,spk_0,"anybody's evidence in criminal cases,"
00:43:44.040,00:44:35.430,spk_3,"But I don't have to two shots on it. As an aside, in the light of that case, the prospect of younger children in criminal proceedings would seem to be more open than it might have been before the Crown and Barker. Is anything going to the positive future investigation, the challenge, which I'm seeking to meet is the question. It is the position which I'm advancing before this court to create a situation where a responsible investigator might say something which inhibits the flow of information. If it were to, of course, that would be a male effect. But I submit that when when the investigator, social worker, police or whatever is first with the child, one can't know whether or not it's going to lead to criminal proceedings. And"
00:44:35.430,00:44:36.810,spk_0,"therefore,"
00:44:36.820,00:46:32.160,spk_3,"the possibility of having to give evidence in the future is there, come what may. And I would suggest that what we're proposing in this appeal need not and should not lead to a situation where an investigator needs say anything different or more threatening to the child about the possibility of having to give evidence. All that being said here is that when coming to make a decision, a family judge, we'll have to look at all relevant considerations. And I do reiterate it's no part of these submissions to say that the welfare of the child will not form a very important part of that consideration. So there will be every opportunity for welfare decisions to be taken into account. And it may turn out looking back two or three years hence that empirically, the outcome is that it's still a rarity for children to give evidence. If individual judges make decisions such that they consider that the balance is struck in favour of Hearsay evidence, then then in sense, in terms of how we present this appeal, so be it. We're not. We're not driving at outcomes. My submission related to this individual cases like this. That's another point we're not. It's not driving as an outcome whereby more children have to give evidence. So I respectfully suggest, except my lady's suggestion, the court must have a wider look. But I would submit that the outcome in terms of how matters are presented in due course need be no different for children than they are presently given The arrangements within criminal proceedings."
00:46:33.460,00:46:47.860,spk_1,"Did Paragraph 39 of My Lady's Speech used to be in Camberwell in Paragraph 70 of mine. There may well be other passages. I'm not says you look at it now, but they're they're what it's worth there."
00:46:48.210,00:46:48.950,spk_3,"Lord yes, thank"
00:46:48.950,00:46:51.900,spk_1,"you."
00:46:58.080,00:47:25.780,spk_3,"I'm just pausing to consider the degree to which I ought to take the court to the individual expressions of this test in the Authorities as they are. Perhaps I'll just unless, of course, specifically invites me. So to do now, just hold fire on that and just move on. And it's really been the topic of the exchanges that you're just taking place as to why we say the president test is not convention compliance and therefore must"
00:47:25.790,00:47:27.150,spk_1,"be attended"
00:47:27.160,00:47:27.580,spk_3,"to"
00:47:28.570,00:47:30.990,spk_1,"by"
00:47:30.990,00:47:39.560,spk_3,"this case, My Lord, the issue in this regard then, is the,"
00:47:40.470,00:47:41.850,spk_4,""
00:47:41.860,00:48:09.400,spk_3,"proper approach to dealing with conflicting interests. And our submission is that the proper approach is, by the way, by way of the process of parallel analysis and the authority to which we turn to make that submission is the House of Lords decision in Re S which is in file 3, at tab 16"
00:48:12.030,00:48:12.630,spk_1,"The"
00:48:26.010,00:48:26.440,spk_3,"tab what?"
00:48:26.450,00:48:27.160,spk_1,"16"
00:48:27.380,00:48:39.420,spk_3,"16, one six. The background facts to that many, many miles from this one case of a child having died, the courts concerned"
00:48:39.420,00:48:39.800,spk_1,"with"
00:48:40.350,00:48:55.370,spk_3,"six surviving siblings and the conflict between the press' Article 10, right to publish and Article 8, Privacy of the Child and the key proposition to which we advert is set out in Paragraph 17."
00:48:57.500,00:48:57.890,spk_1,"Page 8,"
00:48:57.890,00:49:02.060,spk_3,"of 13. I believe that the print out, which is in the Bundles, which is"
00:49:02.060,00:49:03.250,spk_1,"the"
00:49:03.260,00:49:30.710,spk_3,"distillation of the principles from the Campbell Mirror Group case, which is distilled in Paragraph 17 to the four propositions set out in the last few lines of that Paragraph. First, neither article has such precedence over the other. Secondly, where the value is under the two articles are in conflict and intense focus on the comparative importance of the specific rights being claimed in individual cases necessary."
00:49:30.720,00:49:32.200,spk_4,"Thirdly,"
00:49:32.410,00:49:49.810,spk_3,"the justifications for interfering or with or restricting each right must be taken into account, and finally, the proportionality test must be applied to each convenience to be called the ultimate balancing test. Our submission is that"
00:49:49.820,00:49:50.920,spk_0,"this is Lord Steyn, isn't"
00:49:50.920,00:49:52.090,spk_3,"it? Yes. Yeah."
00:49:52.970,00:50:03.970,spk_1,"I mean, that's to qualified rights 10. I mean, you're for what it's worth, entitled to make the point that Article 6 on which you're alive is a rather more absolute character,"
00:50:04.050,00:51:42.290,spk_3,"My Lord. Yes. And that's something to which we've given considerable consideration as to whether or not we should make a claim that an Article 6 right has any greater claim in a balancing exercise and after consideration. It was our decision, I hope not wrongly, but our decision that it would not be appropriate to seek to argue that the father's Article 6 right in a situation such as this had any prior claim in relation to Article 8 rights and really two reasons underlying that decision are firstly, I believe the most appropriate language is to say that although after 60 non qualified right is not an absolute right, and so if that's the law in relation to Article 6, it begins to make the position difficult to claim a prior position for Article 6. But secondly, the Article 6 rights are in these cases spread across the parties and because the child, the child witness, has her Article 6 rights and the siblings have their Article 6 rights to a fair hearing. And so in any event, there's going to be a levelling between the parties in relation to their Article 6 rights. And indeed, we've so far, I've just been addressing the situation where one has a child, witnesses who are parties. One also, of course, has to think about child witnesses who are strangers to litigation. They will have rights to engage in the litigation. Are"
00:51:42.290,00:52:36.250,spk_0,"you drawing any distinction between parties and and witnesses whose future will be affected by the outcome of the proceedings? Obviously, my colleagues will probably understand that in care proceedings, children are the children who are the subject of the care proceedings are parties to the proceedings. So clearly their rights are an issue in the proceedings, and the proceedings will be the determination of their civil rights as much as they will be the Determination, in fact, in relation to the father. In this particular case, he has no civil rights in relation to the particular witness about whom we're talking. His civil rights are in relation to the other children, where the parties, the proceedings, but in other family proceedings. Of course, children are not necessarily parties. But would you be drawing any distinction between them?"
00:52:36.340,00:53:12.120,spk_3,"No distinction at all in terms of where the test should be framed in the individual case. If the child is that if I can use expression of stranger child, then then that might well inform the weight, which the trial judge gives to particular factors. In that case, it may be a child's a stranger child. Then, depending on the particular facts of that case, one might decide that some facts have less weight. In that case, they might have the child was a party. It's just a question of it needs to be looked at in the individual case."
00:53:12.360,00:53:14.990,spk_0,"I'm sorry. I don't understand what you mean by a stranger"
00:53:14.990,00:53:32.210,spk_1,"child. What's the second of the four cases? A stranger child that was 12 year old who's friend. They've both been abused. But the friend was the step. That's right. It was only friends future who was going to be dictated in the capital."
00:53:32.230,00:53:40.130,spk_3,"In repeat. That's right. I'm sorry, a shorthand stranger child. I simply mean the child who is not a party to the litigation. I'm"
00:53:40.130,00:54:33.150,spk_0,"sorry. That's what I'm challenging you about because in private law proceedings, child's future may be an issue, even though the child is not a party to the proceedings. A stranger child I would take to be a child whose future is not an issue in the proceedings but may have relevant evidence to give. So we've got three different sorts of child. We've got the child who is the true stranger in the sense that her future is not going to be affected by the outcome of these proceedings, or at least not directly affected. There's the child whose future will be affected but who is not a party to the proceedings and the child whose future is affected. Who is a party to the proceedings. We've got those three categories. Are you drawing any distinction between the party non party? That's a technicality of family proceedings?"
00:54:33.160,00:56:51.430,spk_3,"I accept that and accept it rises very often. It's not some unusual situation, and it needs to be encompassed. But the our argument is in favour of a test, which says, if I can just use a shorthand at this stage or competing claims and rights must be looked at from an even starting point and trial judges, when considering any of the three positions that my lady deposits will have to look at the position of the individual child or children, which may fulfil different functions in one case and consider their position within that test. And so, if you have if you if you have a set of care proceedings where there is only one child, only one child in the family, only one child involved in any way at all who is the Who is alleging abuse? And so she is the child witness and she is the subject of the proceedings, you won't have to consider any sibling rights, and you will give an intense focus upon her Article 6 and Article 8 rights. If you have a case where the only witness to an event is child is not a party to the proceedings. The trial judge. When evaluating the evidence as to whether or not that child would have to give evidence, I would have to consider that she has a right to family life into privacy. So she has Article 8 rights and would have to evaluate those. But the trial just wouldn't have to worry about the one of the troubling aspects of these cases, of course, the future impact upon family relations if it is a subject child. And so the range of factors to be considered by the trial judge within the same test may not be so broad or troubling when one is considering a stranger child. So it's the What is different, I would submit, is the range of factors to be considered by the trial judge. Not not the overarching"
00:56:51.440,00:56:52.900,spk_0,"test,"
00:56:52.910,00:57:00.680,spk_3,"which is ultimately the framework within which the judge will decide whether that child in those circumstances should give evidence in that case,"
00:57:01.710,00:57:09.840,spk_0,"why the Article 8 rights of a stranger child engaged at all? Any more than any other witness?"
00:57:14.530,00:57:24.250,spk_3,"Because of her right to privacy and because of a particularly delicate nature of an inquiry. I'm assuming an allegation of sexual abuse in this exchange, because"
00:57:24.260,00:57:34.210,spk_0,"We do have to also think about other types of allegations. But let's leave it with the allegation of sexual abuse. Wouldn't that be true of anybody adult or child?"
00:57:40.280,00:59:26.160,spk_3,"Yes, it it may be, but when one is considering a child, you have to. The court has a responsibility to consider that child's welfare in a way that they courts often have to consider welfare for older witnesses who may be learning disabled. And it does. It does crop up in different situations, and those young people who may be over 18 but have learning difficulties equally would need careful and special consideration. And so estimate the the the child witness who is not not a party to proceedings does have Article 8 rights to privacy because of the nature of the allegations and the intrusive nature of the testing of evidence in this sort of case. But depending on the particular facts, a particular case a judge might come to a different decision if the child were a stranger child, if the child were the only subject child of those proceedings. And so when all that I would respectfully submit is consistent with an intense focus on the comparative importance of the specific rights being claimed, that any potential witness who can articulate a claim is deserves that intense focus and and that's what should be undertaken and their status within the proceedings will be a factor and may or may not influence the decision as to whether or not they should give evidence."
00:59:32.230,01:00:18.570,spk_0,"So it's easy to understand, isn't it? How, as you rightly put it if we're looking at Article 6, all the children, both the adults, have got Article 6 rights that are engaged in this case, so they're all entitled to a fair hearing in the determination of those rights. And the only question is what's fair If you introduce Article 8 that adds a different level of complexity, which may vary as between the strangers to the action and the parties to the action? That's the only point I'm putting to you. It's not identical to the straightforward battle between Article 8 and Article 10. That there was in that was complicated"
01:00:18.570,01:00:19.240,spk_3,"enough"
01:00:20.610,01:00:23.250,spk_0,"Isn't necessary point against maybe a point in your favour."
01:00:23.260,01:01:16.830,spk_3,"I accept that proposition entirely, I hope not immediately leaping on the last part of your statement expressing the thought that came before it. That may well be, But the challenge that I laid down is to say what what reason by reference to principal or precedent is there to say that whenever in whatever conjunction these competing claims or before accord, what reason is that it's apart from the process of parallel analysis that you, if you're going to be fair, a good old English word. You start in a level way. And this convention law tells us that if you're going to be convention compliant, you start with a level playing field. And it..."
01:01:16.830,01:01:30.210,spk_2,"Does parallel analysis mean anything more than starting with a level playing field? Or has it got a more complicated content than than that? It's your own praises it or is it taken from a..."
01:01:30.220,01:01:49.300,spk_3,"I might say, I've tried to isolate where it's actually come from, but it's an expression I've seen often used to express. What I understand to be the test in Re S that you're parallel that you look at each completing right from"
01:01:49.310,01:01:52.550,spk_2,"comes from human rights textbooks. My"
01:01:52.550,01:02:17.980,spk_3,"lord, I'm afraid I have tried to track down where it lodged in my mind. I'm afraid I've not been able to I don't know. It's not. It's not in Re S. I thought when I went back to read it, I thought I'd find it that and didn't but it does, I would submit, seem to encapsulate well, the Re S test."
01:02:20.710,01:02:25.410,spk_5,"In other words, you look at the intrinsic merits of each of the points without any preconception. Yes"
01:02:27.210,01:03:59.540,spk_3,"and My Lord, It's the temptations triumph as an advocate, trying in some way over sophisticate or elaborate that. But it's a very simple proposition. Did you the the the competing interests or rights, however, one phrases them that are engaged in these cases are acutely important and highly sensitive that the father, the father's right to a fair trial, fulfils those criteria, as does the child's right to privacy and the child's welfare considerations. But each of them is so fundamental that we submit there is no warrant to do other than to begin with and even approach. And although a number of conventional authorities are put before this court illustrating different points that there is no warrant, we would submit from any of them for anything to say that one interest has a prior claim over another. And we submit that the taste the test as articulated in the development of these cases, which we bring before this court offend against that principle because they do have that starting point, the expression of the need for a"
01:04:04.280,01:04:04.610,spk_0,"for"
01:04:04.610,01:05:45.770,spk_3,"a particular justification and that those to articulate the test in those way. There's ways is in conflict and money. That's why I come back to our urgent claim that we're not seeking to make it more or less likely, that a child should give evidence. It may well be otherwise. But there is because of the sensitivity and the importance of the conflicting claims. You have to start from an even point and it's set out in our documentation. I perhaps don't need to spend too long at this stage. But just picking up my Lord, Lord Browne's points right off and 6 a little further. The the Article 6 right is an unqualified but not an absolute right. But the right when one analyse it through the convention Case law is to overall fairness in the proceedings. So the court has to stand well back and look at the overall effect within the proceedings. And it's for that reason that if one looks at the various convention cases on that subject, in some instances, hearsay evidence is admissible in some instances, not it doesn't track the Article 6 right doesn't translate into any necessary result. One has to look at the overall fairness and that's why we say that one has to measure each of these factors in an even way. And"
01:05:45.780,01:06:58.450,spk_4,"I find that I mean, that must stop as soon as you start to measure them. Because I think you're saying that as soon as you start to measure them, you you said you look at how strong they are in the particular case, the intrinsic merits in each case, so that the only sense in which they're equal is that on paper, they're all there in black and white. But in practise, as soon as one looks at the facts and as soon as one bears in mind that was dealing with a child's evidence, you're likely to say, aren't you that there is in most if not all, cases are very strong. I wish to avoid a child being obtrusively cross examined, at least in the traditional sense, so that I haven't you got You may say well that there is how strong it is, according to the child and the age and so on. But nonetheless, it is likely to be a factor, which, is a strong factor. In any case,"
01:07:01.310,01:07:23.370,spk_3,"I respect don't descend from that altogether. But one has to be, if I may respectfully say so, very careful about how that is expressed, because that proposition can lead to expressing it in a way which is, as it is found in the present Authorities, which overrate the importance on that factor. The"
01:07:23.380,01:07:40.890,spk_4,"president Authorities express almost a result, they say that there's a very strong presumption you don't have any cross examination when you've weighed. All the factors, however, actuate them. But here I'm simply suggesting that this is a factor which you would put into one side of the equation."
01:07:42.020,01:07:52.900,spk_3,"Yes, I'd accept that. But just to illustrate my caution about how it's treated me, I just look at a short passage from the joint judgment of Lord Justice Wilson and Wall in the present case,"
01:07:53.930,01:07:54.310,spk_0,"which"
01:07:54.310,01:08:01.700,spk_3,"is in Bundle 1. That's 3"
01:08:01.710,01:08:02.330,spk_1,"(A)"
01:08:08.980,01:08:11.080,spk_3,"and it's a Paragraph 28 which"
01:08:11.080,01:08:11.560,spk_0,"is,"
01:08:12.280,01:08:15.600,spk_3,"as I understand it is that the kernel of"
01:08:16.370,01:08:16.660,spk_1,"their"
01:08:16.660,01:08:20.790,spk_3,"lordships reasoning in relation to the outcome in this appeal"
01:08:21.319,01:08:21.630,spk_4,"but"
01:08:21.630,01:09:45.710,spk_3,"the point I wanted to go to an answer to My Lord Mance's point comes at the end of the Paragraph. Perhaps I should just go through the Paragraph in order and then come to that in just a moment. A pack of 28 in our view, references in the family jurisprudence to which Mr G. Particular object and then the starting point is that child's oral evidence is undesirable and that it is rare to order it don't do no more than represent This court's concern today is expressed in all four of the Authorities about the emotional health of a child subjected to cross examination in these circumstances and its prediction of the likely decisiveness of that feature in striking the balance in most cases, just pausing there, if I may, in my submission one if one is looking at the cases overall and accepting Miss Brannigan summary of the test one cannot unhitch those comments from the particular Justification comment, which comes from Lady Justice Smith in l M. And the first point on that is that if one has a particular Justification, I submit that that casts a burden on the Respondent.  Lord Justice is War and Wilson.Then speak about the likely decisiveness of that feature. Which is the point, My Lord Lamont has just touched upon. The very test includes a prediction. Would you"
01:09:45.710,01:09:47.620,spk_4,"object to that? Yes, yes, yes."
01:09:49.190,01:11:56.820,spk_3,"And in a moment if I can, I just turn to how that works out in practise, because we have some interesting examples of how the test works out in practise, and I'll come to those after dealing with this Paragraph reading on the court. Then the judgment deals with the question of whether or not they're per incuriam. I don't go to that part, but picking it up four lines from the bottom. The court can hardly be said to have been unaware. For example, the right of the adult accused by the child have overall a fair hearing. Indeed, we've already in effect described, such as being an elementary feature of the central dilemma. That's the touches upon the second element of our complaint, which is that the the particular features of the tests are not sufficiently articulated. We would submit is not sufficient to infer or assume that all the relevant matters would be in the mind of a trial judge. They need to be set out clearly and then, finally, furthermore, the analysis of the issue through the prism of convention rights has offered it to us does not appear to us to generate any significantly different effects from that of existing jurisprudence as we interpret it, founded firmly as it is upon opinion as to what the welfare of the child is likely to demand. But I submit that that falls on the wrong side of the expression of the test because it is giving prior ranking to that future. And it is giving it primacy, if not paramount Status and in the context of the other competing interests, that is not appropriate and it is not consistent with the Re F approach. And I would respectfully submit This isn't a question of nitpicking over the words. When one looks at the way the test is phrased, it is very, very clearly expressed. Welfare has a prior ranking, and that is not appropriate. Turning to how it works out in practise because it's way a collection"
01:11:56.820,01:11:57.240,spk_1,"of"
01:11:57.750,01:13:07.340,spk_3,"Court of Appeal Authorities actually lands on the ground when individual judges are dealing with it. May I just take a moment? Firstly, may I go in the large one, which I hope is still before the Court Bundle 3. The first of the Authorities Bundle to the decision in Re S, Re W at tab 19. And this is picking up on a point that was made by Lord Justice Rimer or in the judgment in the present case, tab 19 is the report of S v W, Re W. It's a navigator. I think you have to use the print page numbers at the top right hand corner of each page. And can I go to 15 out of 17?"
01:13:10.320,01:13:10.550,spk_1,"Yeah,"
01:13:18.400,01:14:33.510,spk_3,"Lord Justice Wall 68. So that's the Paragraph. Paragraph 68. Lord Justice Wall sets out Lengthy citation from the decision of Donald Judd Marston, where the judge, the trial judge, refused to permit the child to give evidence. And Lord Justice Rimer had seized on the words which come five or six lines before the break in. That citation has presented on this page he sees that that is, the father says, is grossly unfair. The reality is the position which pertains in 99 out of 100 of these sorts of cases. It is only in very unusual case that a complainant, if I can use that word from criminal law, will give evidence the child would give evidence, the child will give evidence and then goes on to the door swinging analogy, which again is something I'll come to a little later now, as Lord Justice Rimer says in the Court of Appeal's judgment. In this case, that's obviously not a scientific test, but but taken together with the other matters to which I can take the court, it does give some indication of how this test is working out and practise. A further indication can be found from Her Honour Judge Marshall's decision..."
01:14:33.510,01:14:37.470,spk_0,"Well, you could say the history of this case gives a fairly clear indication,"
01:14:37.650,01:14:47.060,spk_3,"Yes, but it's more particularly expressed in the submissions and the judgment of Her Honour Judge Marshall, which is to be found in Bundle 1 at"
01:14:47.060,01:14:48.600,spk_1,"tab 8"
01:14:48.610,01:14:57.190,spk_3,"a. And if I can go to Paragraph 12 of that"
01:14:57.200,01:14:57.750,spk_1,"judgment,"
01:15:07.150,01:15:23.900,spk_3,"Paragraph 12, the local authority lies on the decision of LM. It is submitted by the local authority that the guidance set out there, and it's clear that it is unusual for a child to give evidence and care proceedings and only in exceptional circumstances. Now that's clearly"
01:15:23.900,01:15:24.910,spk_4,"a"
01:15:24.920,01:15:38.980,spk_3,"gloss, or in addition to that, which is to be derived from the Authorities. But one finds local, the local authorities submitting that what is required is exceptional circumstances. At Paragraph 1, one finds the Guardian's submissions summarised"
01:15:39.610,01:15:39.880,spk_1,"and"
01:15:39.880,01:16:16.870,spk_3,"at the foot of the page, picking up the last words. It is suggested that this case is not exceptional. So the guardian is submitting that what is required is the hunt for an exceptional case before committing the child give evidence and that lodges with the judge such that it's to be found at the very end of a judgment. Page 10 of that judgment, Paragraph 15 (k). Although this will undoubtedly be a difficult case, given the nature of the allegations in the background, on balance, I'm not persuaded. The circumstances are sufficiently difficult or exceptional to justify interfering with the local authorities. This is not called to give evidence."
01:16:19.240,01:16:19.470,spk_1,"So,"
01:16:19.470,01:16:33.930,spk_3,"My Lord, my lady taking together, Her Honour Judge Marshall's dissent. And these comments about exceptional although of course I can't pretend it's scientific. It does give this cause a sense of how this works out in practise."
01:16:34.450,01:16:41.320,spk_1,"We also had Lord Justice Wall and, or Lord Justice Wilson saying they had only ever come across it once in their entire professional career."
01:16:41.510,01:16:44.110,spk_3,"Precisely that was the next, the next"
01:16:45.690,01:16:45.900,spk_1,"I"
01:16:45.900,01:17:11.420,spk_3,"can say so, evidence that I was going to to produce both both Lord Justice's Justice Wilson in LM, para 56, if anyone wants to the reference, makes that point. And Law Justice Wall in Re W of para 55 that they had never had a child give evidence before them. And so that gives one a sense of how this is working out in practise. I"
01:17:11.430,01:17:52.260,spk_4,"can't help thinking that there are some similarities to the arguments and reasoning in the case of Norris, which we handed down judgment. I don't know whether everyone looks at it. It's a very different field. But the complaint there was about the use of the word exceptional circumstances. And we, in fact, put us like gloss on it and said that what one should be looking at was the exceptional consequences. But it's in the context of sending someone abroad, extraditing them in order to stand trial. So it's rather different from this."
01:17:53.600,01:17:55.620,spk_3,"I'm not familiar with the authority. There's"
01:17:55.620,01:18:36.790,spk_0,"no particular reason why you should be Mr Geekie. It was about Extradition. But it was to some extent behind my earlier comment to you, in that, that, of course, is about the difference between the effect upon extradition of Article 8 rights and the balance between the general value of adhering to extradition requests as against the particular effects on this father there had been some reference to exceptionality in earlier case law. So to some extent, it has motivated my earlier questions. It's interesting. We're both thinking the"
01:18:36.790,01:18:38.290,spk_4,"same. Thank"
01:18:38.290,01:18:39.070,spk_3,"you. Have"
01:18:39.070,01:18:41.600,spk_4,"a look at it. It's not probably"
01:18:41.990,01:18:43.330,spk_0,"yes"
01:18:44.760,01:18:57.540,spk_3,"without being able to cross refer to that case directly. I do submit that it is a value to this court to see how the test expressed in that way falls out on the ground. And of"
01:18:57.540,01:19:40.080,spk_0,"course, there's a prior thing isn't, though, in practise. Lord Justice Wilson. Lord Justice Wall, I think. Both of whom gave up first instance, judging in care proceedings slightly after the time when I did, they've never had a child give evidence. I think I never had a child give evidence, but nobody ever asked me. I don't remember anybody ever asking. So you've got a further point haven't you again? It may be for you or it may be against you or whatever, because nobody expects such requests to be granted. People don't ask"
01:19:40.670,01:21:29.130,spk_3,"if I grasp that too readily. It may come back to me with your earlier point in relation to the to the global effects of these cases. So cautioning myself and subject to that it is a point. Yes, that's but the if. If the perception is that it has to be exceptional, then the starting point is the child won't give evidence then. Indeed, nobody asks, and that may not be doing justice to some, to some cases, we touched very briefly on the door swings both ways. Are you? Can I Can I just deal with that? Because in my submission, it is important Something again, to which Lord Justice Rimer drew particular attention but that the door swings both ways. Argument is encapsulated in the suggestion that if a child is not called, there is a concomitant weakening of the local authority case, adopting if I may, Lord justice rhymes approach that is on reflection, a highly unsatisfactory situation. In this type of litigation, we're not engaged in straightforward, adversarial civil litigation. We were engaged, of course, with the court being charged with the decision is the welfare of the child. So if the door swings, one swing of the door is that the judge has to reject an allegation that is possibly true because she, the judge has not heard from the child. Then the system may well be failing. It's not satisfactory. A system intended to settle disputes between individuals but rather to promote the welfare of children may come back the wrong decision for lack of evidence, which could have been put before the"
01:21:29.130,01:21:29.760,spk_0,"court"
01:21:30.300,01:21:48.340,spk_3,"and so say that, well, the door swings both ways. We respectfully submit it. It's not good enough because it abandons the courts child protection, responsibility. And if I mail simply adults, Lord Justice Reimers summary of it to say that it's a profoundly unsatisfactory outcome."
01:21:49.000,01:21:58.000,spk_1,"Where is he? I know you said you understand where it's what Paragraph, My Lord?"
01:21:58.000,01:21:59.120,spk_4,"I'll just take you to"
01:21:59.120,01:21:59.530,spk_1,"it."
01:22:05.280,01:22:26.730,spk_3,"52. It does it partly then I think it elsewhere as well. It's a 52 that he also deals"
01:22:26.730,01:22:28.510,spk_1,"with. What"
01:22:28.510,01:22:33.570,spk_3,"he analysed is the straightforward situation and the unsatisfactory nature of that."
01:22:36.090,01:22:46.230,spk_1,"But I mean, surely the deeper complaint is that very unfortunate if it swings either way. In other words, it's unfortunate if the judge has to reject,"
01:22:46.920,01:22:47.400,spk_3,"even"
01:22:47.400,01:23:02.380,spk_1,"though it may be true, because it's only hearsay. But equally it goes the other way. And the judge actually convict because it hasn't hasn't been cross examination. That's unfortunate that way to convince"
01:23:03.470,01:23:04.540,spk_0,"convince"
01:23:06.600,01:23:16.280,spk_1,"convict in the sense that in care proceedings the order made is the order that supposes that the father is guilty of what he's accused of."
01:23:16.290,01:25:16.510,spk_3,"That takes takes one to another very worrying aspect of the presentation of the arrangements as they are, which is well, perhaps we ordered articulated better in the written documents. But the present arrangements have a hidden bias. The present emphasis is in favour of not hearing from the child, and that reminds me that creates a hidden bias in favour of accepting the hearsay account of the child. Once the decision is made in an individual case not to receive oral evidence, I submit that that decision gives rise to a pressure on the record to accept the child's account. A reason for saying that is that unless the account is self evidently flawed, a judge who rejects an account without hearing from the child risks are serious injustice to that child one only need to think about the case of a competent teenager, with the social worker coming back afterwards to say the judge didn't accept her account and the child saying, But the judge didn't hear me. And so if a case is to proceed on the basis that there is an even chance that the court will reject the account if the child doesn't give evidence, the court needs to give the most serious consideration to the consequences of doing so without hearing from the child. And if one looks at the dilemma from that perspective, it does, in my submission, create for a judge of pressure or hidden bias in favour of accepting the account of the child. Once the decision is made not to hear from that child because of the risk of grave injustice, that child,"
01:25:17.320,01:25:17.960,spk_4,"it would object"
01:25:17.960,01:25:54.610,spk_3,"her account without having heard from her. And so I've earlier resisted the proposition that this is a submission globally, which is to have more children give evidence, and I would look at this to support that, to say that the tensions and sensitivities of this as such that underlying if there is the risk of actually doing harm to the child, perhaps unintended, certainly unintentionally. But the the emphasis or not hearing from the child, risking harm to that child or risking a bias in favour."
01:25:54.620,01:26:07.880,spk_2,"There are risks anyway. Doesn't all this simply underline or all council? Very well aware of huge responsibilities that fall on family judges who have to decide these things?"
01:26:09.060,01:27:02.480,spk_3,"My Lord, I accept that entirely. But But if the if the arrangements are such that the expectation is the child doesn't give evidence that that it's such an important decision in the setting up of a case in the case management that if the present system can be seen to not be doing justice and to have inherent risks, then in the context of the anxieties Your Lordship articulates, it is a negative contribution to helping judges sort that out and accept the context your Lordship articulates. But the the judges are entitled to have a test, which gives them full flexibility, a full discretion to make sure all relevant matters are taken into account and that there is no bias one way or the other."
01:27:03.220,01:27:48.770,spk_4,"Can you just help me? I'm afraid this is a question board of my ignorance. Looking at the relevant section in the Act of Care Order may be made if the court satisfy the child concerned is suffering or likely to suffer a significant harm. How does that work in practise when a judges assessing the evidence does the judge make positive findings one way or the other as to whether the evidence is accepted? Or is it possible for a judge to say the evidence may be true? And therefore, I'm satisfied that the child is likely to suffer a significant harm"
01:27:48.780,01:27:54.340,spk_3,"in wardship? The judge would have been able to say that, of course, but"
01:27:54.350,01:27:55.560,spk_4,"not in a care order"
01:27:55.570,01:27:57.040,spk_3,"not not"
01:27:57.100,01:28:05.420,spk_4,"actually possibly find on the balance of probability that there is a story is true and that is likely to be further"
01:28:06.010,01:28:17.150,spk_3,"looking backwards. You have to be satisfied on the balance of probably an event either did or didn't happen. Assessment of future risk has to be on the basis of proven events, not speculation that a couple sentences."
01:28:17.150,01:28:19.850,spk_0,"That was beautifully put Mr Geekie, as I would have expect!"
01:28:19.850,01:28:33.040,spk_2,"The local authority has set out in the clearest possible terms the findings effect, which it is seeking. And it's going to be the family judges duty to make findings on those allegations."
01:28:33.050,01:29:24.240,spk_3,"Yes, and just to flesh out the structure of the proceedings in a little more detail in just a moment, the convention often is that where there are hotly disputed facts, there will be a split hearing. The court will decide the contested facts first on a fact finding mission before coming later to consider the welfare outcome for the child in the light of those findings and applying the welfare check list. So this is set up as a split hearing. The fact finding hearing. Did these things happen or not? And when the judge has made that determination, if the local authority has approved the case, then judgment due course will go on to look at the welfare considerations and asked what the future for these children should be, all of them in the light of those facts as found, and any other assessments that might have taken place on the basis of those facts as found."
01:29:25.610,01:30:01.730,spk_0,"Of course, if the stark situation that you have put to My Lord only really arises where your only basis for thinking that there is a an appreciable risk of harm to children in the future is because a particular event has happened in the past. That's the situation in which you have to have found on the balance of probabilities that that event took place in order to justify your prediction. That goes back to the case of Re H in 1996, recently reaffirmed in this court."
01:30:01.740,01:30:02.330,spk_3,"I believe so,"
01:30:02.510,01:30:03.160,spk_0,"yes"
01:30:03.830,01:30:25.340,spk_3,"And yes, the further sophistication is that one may be looking at simply findings of fact as to whether or not this thing happened and then going on to say in the light of that is the threshold, as My Lord just read it out. Satisfied. But one might be doing both together. It depends upon the range of facts before the court."
01:30:26.210,01:32:07.310,spk_0,"Could I just mention something else just so that it's at the forefront of everybody's mind as we're considering these very difficult issues? And that is that it's not entirely right to say that the judge has not heard from the child. We're not talking hearsay evidence as in a witness statement given by the child or, as in other people's accounts, of what the child has said to them most of the time, I mean some of the time one is. But in most of these cases, we are talking about a video recorded interview done under the achieving best evidence guidelines, which everybody is able to watch. And if it's done properly, it's done either jointly or individually, by a police officer and a social worker who have been trained to do this in such a way as not to put leading questions to the child. Not to put words into their mouths, not to, well to counteract any suggestion that they are playing upon the suggestibility of a child witness quite, in other words, taking a great deal more care than is normally taken an ordinary examination in chief of an adult witness as a general proposition. So we're mostly talking about, although it's technically here, say it is actually a direct recording of what the child has said in an interview of that nature to police officer and all social worker, Am I not right?"
01:32:07.500,01:32:08.070,spk_3,"Except that it's"
01:32:08.090,01:32:09.040,spk_0,"mostly what we're talking"
01:32:09.040,01:32:12.320,spk_3,"about where I've had a shorthand and not the child. Of course,"
01:32:12.330,01:32:43.740,spk_0,"Yes, well, it's only that you and I have done loads of these cases my colleagues have done well, possibly Lord Kerr may have done, but my colleagues have not. So it's important to know what it is we're talking about. We're not talking about not having heard from the child we're talking about not having heard directly from the child and not having given those representing the people who may feel affected by what the child has said a direct opportunity of cross examination. Yes, that's what"
01:32:44.270,01:32:53.050,spk_2,"the judge has happened already. Relied on the video in Paragraph 15(i) of her judgment as one of the reasons,"
01:32:53.060,01:33:44.760,spk_3,"yes, when a judge looks at the all the issues as to whether or not the child should give evidence or not, that's very much an aspect which the judge can consider. And indeed, in some cases, as it happens, not in this one. The judge may have expert evidence to guide him or her as to the potential liability of that recorded statement. And so there's additional evidence which can be taken to count, and one, one= additional point, if I may, on the ABE interview, which is relevant as your leadership has summarised it is, of course, done in that highly professional way, given the chance to child speak and not challenging the child. But therein is its own difficulty, which it is not a challenging account. And so, although except all the others have said and has to recall that it is, it is very much a free account with no challenge of any sort whatsoever."
01:33:45.350,01:34:16.930,spk_4,"I was going to ask that, I mean at the time. What, Firstly, what sort of time in advance of the trial? These video interviews recorded. And at that time will there in practise have been any knowledge of the likely response of people such as the step Father in this case and any opportunity for that likely response to be fed into the questioning"
01:34:16.930,01:35:42.260,spk_3,"in any way. The ethos is get it done as soon as possible. This child was video interviewed on the day that she made her complaint at school, and so that that is, that is the guidance to get it done as soon as possible. So it is captures the child, child's account as fresh as possible. And so firstly, there is no opportunity to at all to know how any person might respond to it, because it's the first caption of that evidence. And indeed, under the guidance of the ABE interview procedure for an interviewer to seek to challenge or to put another person's account would be regarded as wholly wrong. That is not the purpose, and the purpose is to have the child to give the account. And, My Lord, that that summary of how these things happen does impact come back into the point that my lady, My Lord Browne, we're making about the wider impact of these cases, that that's how they often start. And that is in my submission when one looks at it from that perspective, gives some reassurance that the anxiety which the court rightly raises with me is not likely to apply in practise because these interviews are almost inevitably led by the police. That's the starting point"
01:35:42.980,01:35:55.720,spk_5,"slightly oblique issue to that point. Is it open to the judge to prescribe High cross examination will be conducted if she decides that the child should give evidence"
01:35:59.610,01:36:03.600,spk_3,"I would expect to submit the answer to that must be overwhelmingly yes"
01:36:04.940,01:36:09.540,spk_5,"to the extent of requiring council to submit questions in advance."
01:36:11.060,01:37:07.090,spk_3,"Of course, the evidence based my answer to lordship's question is limited for obvious reasons, but where I personally have seen children give evidence and I've experienced of very learning disabled just passed children giving evidence 1921 but functioning at a much younger level and certainly in one case I have in mind in that regard, the judge made absolutely clear to council in advance that in cross examination she would take a pretty dim view of leading and would be likely to discount questions which were answers, which arose from leading questions. So council was, in a sense, free put the questions he or she chose. But knowing given the limitations of the witness, the judge would see them in a particular way. How far particular judges might go. I think it's difficult to"
01:37:07.090,01:37:25.550,spk_5,"say. But those are forensic issues. I was more concerned about the judge who I was anxious to ensure that the child was protected as far as possible. What measures could the judge take to ensure that the child was not oppressed during cross examination?"
01:37:25.550,01:38:15.690,spk_3,"During the cross examination of itself, I would anticipate that the judge would readily and immediately intervene if counsel were acting in a way which the judge regarded as oppressive. And there's there's there's greater facility to do this, when, of course, has a child in a live link, because the judge can get quite a lot across the council without a word being said. And I certainly have experience of that. If you've got everyone's either on the TV but this eye contact and gesture contact between counts and the judge that can do quite a lot to moderate. A cross examination, which needs a little moderating or judges I would submit would be entitled to take more direct steps to limit council the idea"
01:38:15.690,01:38:17.050,spk_2,"of questions"
01:38:17.050,01:39:12.210,spk_3,"in advance. Personally, I've certainly never encountered, and one can see that might give rise to further considerations. But in my commission there is there is plenty of opportunity for that to be done, and and I would suggest it's proper to bear in mind. I think I don't I didn't seem to make a comparison with criminal law because my criminal law experience in practises. Some dissed somewhat distant now. But I think one can fairly claim that advocates and family proceedings are accustomed to questioning witnesses who are very limited for a variety of reasons. Often parents who are very limited young adults are very limited. And so there is a body of experience which could be brought to bear in the task when it does happen, as it does already. As Mr Brannigan noted in the footnote to her document."
01:39:12.960,01:39:28.270,spk_2,"So just just coming back to the question of when the ABE interview was because I think that's quite important because the child made more than one complaint at school. But it set out very clearly in Paragraph 7 of Miss Branigan's skeleton identifies when"
01:39:29.170,01:39:51.410,spk_3,"there are now two interviews the 18th Mr Liebrecht correct me I got the wrong date the 18th of June 2009. Child made the complaint at school that she'd been saying things to friends and some parents for some time. But she said something to a teacher on the 18th of June and that ABE interview took place that day."
01:39:51.420,01:39:52.410,spk_4,"Then"
01:39:52.410,01:41:03.210,spk_3,"the chronology, which Miss Branigan extends is the account we have from this Miss Branigan. Is that when Charlotte, if I can call by that student and not her real name. When Charlotte was told the outcome of the Court of Appeal proceedings, which, of course, she was rightly took place, she on that day made further comments the social worker, which were then the subject of a further ABE interview on the 13th of January. And that chronology is a passing interest in illustrating My Lords Lord Saville and Mance's question earlier questions about these processes. The first interview was conducted by the police in the joint investigation, then looking at a crime. Social workers also present and taking part from their perspective. The second interview the police had indicated that they didn't wish to investigate, so that was considered by Judge Marshall, and she invited the local authorities, arrange what's called a single agency interview with just social services, Undertaking that interview. So we have an illustration, in fact, two different types of interview taking place in this case."
01:41:03.310,01:41:15.170,spk_2,"But I think that the content of the second interview was more concerned with allegations not only about Charlotte herself but also her mother and her half siblings."
01:41:15.600,01:41:16.650,spk_3,"Yes,"
01:41:16.680,01:41:18.440,spk_1,"it was physical abuse other than"
01:41:19.070,01:41:20.890,spk_3,"yes, yes,"
01:41:22.730,01:41:31.810,spk_1,"I just wonder, why wasn't there a ABE interview back in whatever it was June 09, when not during the 09, June 08, when the first allegation was met?"
01:41:32.590,01:41:50.240,spk_3,"Because I believe what happened is when the Charlotte said something at school when the police went into a police or social workers. But certainly when she was first spoken to, she immediately retracted what she had. What was, she was reported to have said. So there"
01:41:50.240,01:41:50.720,spk_4,"was"
01:41:51.350,01:42:00.160,spk_3,"the beginning of that. Chain of Events was a friend showing a text message, Charlotte then being spoken to and her not"
01:42:00.870,01:42:01.340,spk_1,"putting"
01:42:01.340,01:42:02.940,spk_3,"forward a complaint herself."
01:42:02.950,01:42:04.330,spk_1,"I"
01:42:04.340,01:42:37.980,spk_3,"speculated a small degree, but I would imagine in that situation the police felt well. If she's not saying anything, there's nothing for us to interview her about, in fact, because they saw her in school that day and she said, No, no, my friends went wrong. It's all a misunderstanding. And then the next day took a police state witness statement from her, where she disavowed that which has been said by her friends and then later was interviewed herself as a suspect for having wasted police time, where she admitted that she had, where she made a statement to the effect that she had lied."
01:42:38.650,01:42:46.500,spk_1,"It doesn't matter, but I think they're all muddling up to events. Because then there was another occasion when she said that the girl had misunderstood what she said."
01:42:47.480,01:42:50.280,spk_3,"There was a further such event or prior one. There were two"
01:42:51.230,01:43:53.040,spk_4,"just following up. Lord Curzon Point. Would there be anything to be said for a situation where not only where the general lines of, wished for examination disclosed to the judge in advance, but the judge actually put the questioning? I mean, I've seen procedures on the continent where it is standard for questioning to be done by the judge and very rare that anything remains, which, at the end, which counsel wish to ask separately. In Germany, they're certainly entitled to. But I'm not sure about other jurisdictions. I mean, is that certainly in France also, the judge does a lot of the questioning, is that is there anything to be said for that bearing in mind that an experienced judge would know, firstly indirect familiar to the witness, and secondly, it would know how to put the things unobtrusively?"
01:43:54.420,01:43:59.130,spk_3,"Well, My Lord, firstly, I personally have never come across that, and I would"
01:44:00.070,01:44:00.100,spk_0,"I"
01:44:00.220,01:45:11.240,spk_3,"anticipate that most of the family judges in front of whom I appear would be reluctant to step into the arena in that way. I may be wrong, but certainly in cases where I've heard children give evidence, that's not been the case, and I would be surprised if it were. But one part of the written presentation we've made to this course is the parallel, parallel view, not analysis, parallel view of criminal proceedings and the special measures that are available to children in criminal proceedings. And one of those measures is the use of intermediaries. Now I have no personal experience of that, but I understand that that does take place and that intermediaries are used within criminal proceedings. I can't speak with any authority about it, but as I understand it, you would have a person who has had specific training to assist in the questioning of a witness who was appointed by the court, I believe and would be fulfil some of those functions which My Lord raises, and there would be, in my submission, no reason in principle why that could not be available in a family case."
01:45:12.270,01:45:51.640,spk_0,"It's only because we think in traditional Common law adversarial process terms that we're not used to the idea that the court may act as an inquisitor. But of course, if we're thinking in terms of what Article 6 of the European Convention requires, we have to think how it would appear to a Continental Judge. And a Continental judge will probably be quite surprised to think that it wouldn't be the judge's responsibility to take the questioning further if there seemed to be things that had not been properly explored in the assuming there is an ABE interview and of course, there isn't always. But assuming that"
01:45:54.130,01:45:58.540,spk_3,"maybe yes. In principle, I I wouldn't say that."
01:45:58.540,01:46:12.310,spk_0,"There is a study of the intermediaries measure a preliminary study of the intervening years measure, which I can dig out for you, which is very encouraging."
01:46:12.320,01:46:34.110,spk_3,"Yes, well, anecdotally, I've heard good reports in relation to criminal proceedings, but I can't really urge that any further than that simple comment. My Lord, may I turn to make such submissions? I have in relation to"
01:46:35.790,01:46:35.890,spk_4,"the"
01:46:35.890,01:46:41.380,spk_3,"matter is being put before this court now and the fact that the Family Justice Council are undertaking a task."
01:46:41.390,01:46:41.840,spk_2,"Yes,"
01:46:42.050,01:48:00.590,spk_3,"the report as to what to happen is extremely short that simply reflects the newness of it is a very short letter from the Family Justice Council, which simply says that Lord Justice Thorpe is setting up a multi multi disciplinary committee has proposed by Lord Justice, Wall and Wilson. And it has its first meeting on 16 March whose take part what the remit will be, we can't know. Other than that we have a number of questions asked by the Court of Appeal in this case. So the the issue seems especially to me to be, is how should this court today approach this Appellant's case in the light of the fact that that is to be going on? My Lords, can I, can I come at that question by looking at a short passage from the judgment of Lord Justice Wall in the Re S Re W case, which I have already referred briefly already? It's in, File 3. The first of the Authorities Bundle at tab 19, Paragraph 57."
01:48:07.370,01:48:07.690,spk_1,"Paragraph"
01:48:07.690,01:48:15.760,spk_3,"57, Lord Justice Wall. Ah, well, in that section of his judgment, he is"
01:48:16.490,01:48:17.000,spk_2,"Paragraph"
01:48:17.000,01:49:17.730,spk_3,"54. He sets out his view. At that stage, the state of law was generally unsatisfactory. That's the end of Paragraph 54. Paragraph 55 is the Paragraph where he deals with the point about he never having had a child witness before him. Paragraph 57. Lord Justice Wall gives his views on the what has or hasn't happened under Pigott and in the middle of that Paragraph says this. If the law is to be changed and if children are either to be compelled to give oral evidence in court or to be excused from doing so, it must be for Parliament to make that change. With the great respect and deference to Lord Justice Wall I would respectfully submit that the proposition underlying that sentence is where we are already. We are already in a situation where judges have to decide whether children have to be compelled to give oral evidence or to excuse from doing so."
01:49:19.840,01:49:21.410,spk_2,"Sorry which..."
01:49:21.410,01:50:00.640,spk_3,"Paragraph 57. I hope I've taken to the right place. It's halfway down Paragraph 57. Bang in the middle of the Paragraph whether children are to be compelled to give evidence or to excuse from doing so is where we are. We have the hearsay order. Judges have to make that decision. And although I'm not accepted All that Lord Justice Wilson has previously said about the test, it will be recalled in Re P, he says that the application must be approached on its merits and without preconceptions. So judges are already tasked with precisely that. So there is."
01:50:01.440,01:50:01.720,spk_0,"We"
01:50:01.720,01:50:05.340,spk_3,"would submit nothing in that sense to go before Parliament."
01:50:05.450,01:50:10.310,spk_0,"Yes what would Parliament say? Parliament have already said here says Yes. Well,"
01:50:10.320,01:50:24.550,spk_3,"that's my submission entirely. It's classically the role of the courts to, as they have done, set out the way in which that power should be or power should be exercised."
01:50:24.560,01:50:43.990,spk_4,"Surely surely what you're really complaining of is the 3rd and 4th lines. No doubt the argument is that where the defendant's liberty is at stake, you must have the right to test the evidence by cross examination, irrespective of the harm that may be caused thereby. That may be true in criminal proceedings, but nobody suggests it's true here."
01:50:44.000,01:50:49.320,spk_3,"Quite so, Yeah, yes, so when"
01:50:49.320,01:51:05.020,spk_2,"when he says it, it's for Parliament to make the change he's talking about the criminal law is he? About criminal evidence. If he switched over to family law, it's not easy to see, at which point, precisely, he's done so."
01:51:08.950,01:51:13.260,spk_4,"Basically, you're accepting their discretion and saying that got slanted."
01:51:13.440,01:51:16.690,spk_3,"Maybe I missed something. I hadn't seen it in that context. I"
01:51:16.690,01:51:19.830,spk_1,"think he's in care proceedings as the next sentence would suggest."
01:51:25.860,01:51:38.300,spk_3,"Yeah, yes. Well, then maybe I've maybe I had misapprehended what that was saying. But in any event, what I was seeking to do is to take to end of a possible spectrum"
01:51:38.550,01:51:39.970,spk_0,"disappear"
01:51:39.970,01:53:09.190,spk_3,"raises particular point. Is this the right point in time? In the right venue? Do we need legislation or the other end of the spectrum? Is it a contribution from the family Justice Counsel? The family justice Counsel may provide background evidence. I don't see that dismissively at all. Background evidence against which these applications can be considered by judges and it may be very valuable background evidence. So when a judge has to consider a particular case, we would submit, the judge should have evidence particular to that child as to the likely effect upon that child. Evidence about all the other competing interests to be considered. And it may be very valuable for that judge to set that evidence in the context of whatever the family Justice Council is able to contribute and undoubtedly would be an extremely valuable contribution to the evidential evaluation that that judge must take My Lord looking on from today into the immediate future. Any cases that arise for decision before the family Justice Council reports, the courts will need to know what tests to apply and going beyond that In any cases that follow any report from the family justice Counsel, the courts will need to know what tests to apply."
01:53:10.020,01:53:10.280,spk_0,"Do"
01:53:10.280,01:53:14.300,spk_2,"we know whether they've been asked to report by a particular date?"
01:53:14.310,01:54:32.160,spk_3,"I don't know any more than it is. In that brief note, I came to my attention had been set up. Urgent that this talk from knows something about it by asking given as much information as I could at the time, and that letter is produced as a result of that inquiry. So I'm afraid I can't other than the 16th March, I can't assist at all, and that information is fresh as of I think about Thursday last week. I could overnight make inquiry as to whether the personality yet confirmed. But I was told at that stage that although people been invited, not all has yet accepted etcetera. So it's very it's very fresh. Therefore, in a nutshell, there is. I don't I don't suggest otherwise much that can be contributed to the evidential assessment that has been made. But none of that will or does avoid the need for the test to be considered. And if we're on this in this field, wrong in our submissions, then there is a test. If there's any virtue in our submissions, then this court can say what the test should be upon a proper legal analysis and applying domestic and convention"
01:54:32.160,01:54:32.820,spk_0,"law."
01:54:33.310,01:54:42.290,spk_3,"And that is the test which will guide judges when they have to make these decisions in cases to come either side of any report from the family justice Counsel."
01:54:43.890,01:54:48.860,spk_0,"Well, whatever the Family Justice Council does, they can't tell anybody what the test is."
01:54:49.320,01:54:49.780,spk_3,"I agree"
01:54:50.610,01:54:57.450,spk_0,"they might be able to say something about what it should be, but they can't say what it is. It's your point."
01:54:57.460,01:55:19.650,spk_3,"It is quintessentially a task for this court. Would that be a convenient moment"
01:55:19.650,01:55:20.100,spk_0,"or"
01:55:21.790,01:55:30.720,spk_2,"yes, I'd make it two minutes to, but if that's a convenient investigated, we will look forward to hearing again at two o'clock."
start,end,speaker,text
00:00:37.470,00:00:38.130,spk_0,"Mr Geekie."
00:00:39.130,00:00:48.620,spk_1,"My Lord. My Lord, I've taken the opportunity to have a look at the Camberwell case, and if I might just deal with that briefly, it's in the"
00:00:48.630,00:00:49.520,spk_2,"first"
00:00:49.530,00:00:51.660,spk_1,"authorities bundle, file 3 at tab"
00:00:51.660,00:00:52.350,spk_0,"9."
00:00:56.140,00:01:04.650,spk_1,"At paragraph 19, My Lady touches upon the issue in hand, it's the citation that goes over the page from the bottom of"
00:01:04.650,00:01:05.890,spk_0,"19"
00:01:05.900,00:01:20.710,spk_1,"onto the next page. The aim of the special measures is to assist vulnerable or intimidated witnesses who might otherwise be unwilling to come forward at all or unable to give the best evidence of which they are capable. And My Lord Lord Brown's --"
00:01:20.720,00:01:37.280,spk_2,"Well, doesn't My Lady come back at 39? [Pause]. Clearly the second sentence of 39, isn't it -- the third sentence?"
00:01:38.650,00:01:39.130,spk_1,"Yes."
00:01:41.260,00:01:41.610,spk_2,"Because"
00:01:41.610,00:01:44.500,spk_3,"this whole case was about the validity of the"
00:01:45.680,00:01:46.720,spk_2,"statutory"
00:01:46.730,00:01:52.570,spk_3,"requirement that evidence be given by video link rather than in other ways."
00:01:52.580,00:01:54.140,spk_1,"Primary way."
00:01:54.150,00:01:58.640,spk_3,"And the objection -- the object being that, people should know they have [inaudible]"
00:01:58.640,00:01:59.750,spk_4,"stood right from the word go."
00:01:59.760,00:02:04.910,spk_1,"Yes, and, with respect of course, I agree paragraph 39, and then My Lord also at paragraph"
00:02:04.910,00:02:05.700,spk_0,"70."
00:02:07.690,00:05:05.710,spk_1,"The conclusion of that paragraph, that it will encourage their full cooperation within the criminal justice system, retaining the maximum opportunity to face to face confrontation with the child witness at trial. My Lord, having surveyed those comments, as before, I accept that that is -- that wider matter is a matter to which this Court should give attention, and considering these submissions, and I would respectfully submit that there's nothing which we have advanced which stands contrary to that either objective or safeguard, however one regards it, and having considered the way My Lords put it in that case, it does [inaudible] submit -- reflect the way, of course, that it will be approaching criminal cases, and there is nothing that could arise from this judgment, which would make the matter worse for children, I would submit. May I turn to say a word about the position of siblings. The siblings, in this case, obviously, but the question of siblings generally. I've touch upon these matters already to some extent, but slightly tangentially, and if I can therefore just deal with it for a moment as a separate heading, we would submit that the position of siblings, siblings who are the subjects of proceedings, presents an acutely difficult situation. It's not an unusual situation at all, that the older sibling, the older child, should be the one making the allegation, and there should be younger siblings whose position hangs in the balance. That was the case in R v B, and is the case here. It presents a number of difficulties, not least, we would submit, for guardians. And as it -- Ms Branigan seems to concede in the final paragraph of her documents, that it can present an acute difficulty for guardians where they have to consider the position both of the potential child witness and the other siblings. A guardian, for instance, may be satisfied that a child witness would suffer some important element of harm if giving evidence, but it may be that the welfare interests of the younger children has to be considered separately. It may be strongly in the interests of those younger children, that the allegations are tested robustly, and I don't want this submission to be more -- to sound more draconian than it is intended to be, but it may be that if the result of the testing is a finding that their oldest sibling was not reliable in the accusations, then those younger siblings family life may be saved, and it may, from their perspective, be a price worth paying, so there's a potential for a real tension between the interests of different"
00:05:05.710,00:05:18.060,spk_0,"siblings. Well, in an extreme case, you have different guardians, and the most extreme case I can think of was the conjoined twins, where the matter got to the Court of Appeal before it was realised that they needed separate guardians."
00:05:18.400,00:06:10.890,spk_1,"My Lord, yes. And obviously one always wants to have an eye to the practical effects of any proposition. Because this is a specific case management decision, it may well be that many judges and guardians, in many cases, would consider that a single guardian could make those representations. One would have to have very much an eye to that possibility. And so the simple submission we make is there needs to be an intense focus on the position of those younger siblings, and the position without a doubt is all the present authorities are silent on that subject, so if nothing else, under as it were the second global heading of our argument, it's something which needs, whatever the overall framework of the test, it's something which needs very clearly to be articulated, that there can be separate factors to be considered for younger siblings."
00:06:12.750,00:06:46.530,spk_3,"But of course, it's in everybody's best interests that all the evidence is properly deployed and properly tested. That's in everybody's best interests. Of course, the whole idea of achieving best evidence, is to achieve best evidence. The only question is whether, in order to achieve the best evidence, it's always necessary to have a face to face confrontation across a dramatic courtroom between a very tall man with a loud voice and rather little girl with a small voice. Oh, that's just a figurative"
00:06:46.530,00:06:48.400,spk_1,"example. The arrangements would, of course, be"
00:06:48.400,00:06:49.520,spk_3,"different."
00:06:49.550,00:07:14.850,spk_1,"And it may not be me cross examining. Exactly. My Lady, yes, yes, but, when the judge is considering the child -- the potential child witness, there is potential for harm to that child, and that has to be weighed very carefully. But that concern does not arise for the siblings."
00:07:18.690,00:07:42.500,spk_3,"Well, for the siblings, you have the two kinds of harm. One is that they're left in a dangerous situation. If the allegations against their parent are not believed, and the other is that they are in some way -- have their family life disrupted, and of course, that could be in lots of different ways, if the allegations are believed, so it's in both directions."
00:07:42.500,00:08:51.080,spk_1,"Yes, and they find themselves with the door swinging. My Lord, may I move on to address the particular facts of this case, which, unless the Court feels it necessary for me to do otherwise, I think I can deal with in relatively short compass, that the facts have been summarised in the [inaudible]. We've dealt with the facts of this case in our written argument, and it's dealt with some length by Lords Justices Wall and Wilson. So I don't -- as I say, unless the Court invites me to do otherwise, I don't propose to go through all those elements in any great detail, but making perhaps slightly more global submissions, we would suggest that it is a striking feature of this case, that Charlotte was willing to give evidence. And as the Court knows, it was the expectation of all, including herself, that she would do so until the judge proposed an alternative. And I don't make any criticism of the judge in that comment, that's simply the correct factual history. And it is another extremely important feature of this case,"
00:08:51.240,00:08:52.270,spk_4,"because"
00:08:52.270,00:10:18.510,spk_1,"of that history, when one can see how it arose, but because of that history, no reasons specific to her welfare were put forward as to why she should not give evidence. There was -- when the judge amended or proposed to amend the order which he had made in September, the local authority and the guardian then changed their positions, but the judge had not been presented and no stage was presented by specific assessment of the interests and the welfare interests of this child. And, we would submit, that it is essential, as I have made clear in a number of the other submissions made, that the cases -- any individual cases judged very much on the evidence of that case. And it does, we would submit, illustrate the presumptive element of the test at the moment, that it was thought possible to put a case before the court leading to a decision the child didn't give evidence, without any evidence particularised to that child, and that does reveal a deficit in the case as presented factually. The arguments which we have presented in favour of the child giving evidence are summarised by Lords Justices Wall and Wilson in the judgment in this case at, paragraph 16, that's file 1, tab 3(a), I"
00:10:18.520,00:10:20.400,spk_0,"believe. Yeah, file"
00:10:20.400,00:11:17.990,spk_1,"1, tab 3(a), paragraph 16, and the lettered subparagraphs A to K do encapsulate matters which we put forward, and upon which we certainly do rely, but absent from that list, and I do reaffirm, it's the point that no evidence particular to the harm that will be suffered by this child was before the Learned Judge. And that is an important absence from that list A to K, so I would invite the court to, as it were, add that point to that list. And arising from those considerations, there were, we submit, very strong reasons as to why, on that particular facts of this particular case, it was necessary that she should give evidence. There's absolutely no dispute between the parties, but that her account is central to the"
00:11:17.990,00:11:18.760,spk_3,"case."
00:11:20.380,00:13:06.080,spk_1,"The scientific evidence is an important component of the case, and is clearly, as part of the forensic analysis, capable of supporting her account, but it is not independent of it. And if her reliability is considered by a judge to be significantly dented, the scientific evidence cannot stand alone to make out the case, and therefore one comes back to the importance of her account. And in the absence of oral evidence, the reality of a case such as this, is that without oral evidence, and subject to the one issue of questions in relation to the scientific evidence, challenging the case amounts effectively to a paper review. And we submit that a paper review, of a matter of such importance, is not a sufficient investigation, and particularly where of course, as the Court knows this, that Charlotte has in the past, one way or another lied to figures of authority about allegations. And of course, in the way that I've already just summarised, the decision on her allegations is central to the welfare decision about the younger siblings, and that increases the focus on the need for the Court to have the most in depth inquiry. So, My Lord, I rely upon the matters as set out by Lord Justice Wilson and as added to by me, in the way that we've articulated in the written case, and I don't propose to go over those matters, but we say, that on those facts and on the test, as we submit to this Court"
00:13:06.080,00:13:06.470,spk_4,"that"
00:13:07.040,00:13:43.920,spk_1,"there should be on an equal starting, one can properly conclude that Charlotte should give evidence in this case. Having said that, I accept that if this Court would consider that in the light of the appropriate test further evidence were needed before that decision as to whether or not she should give evidence was made, then this Court might take the view that that was a first instance decision which should be made. And so, if I may respectfully do so, my submission is, if you take the facts as are,"
00:13:44.430,00:13:44.710,spk_2,"then"
00:13:44.710,00:13:58.120,spk_1,"that would lead to the decision that the child should give evidence. If the Court having -- if the Court is minded to reconsider the test, and having framed it, considers that further evidence would be required, it may well be that that would be a first instance decision. [Pause]."
00:14:05.690,00:14:24.690,spk_2,"Mr Gee, can you help, I mean, what happens to [inaudible] in the UK? I mean, assume that she doesn't give evidence, assume that for that reason, well, I say for that reason, assume that that having been position, the judge says, Well, I'm not sure on the balance of probabilities. Does the criminal case go ahead?"
00:14:28.050,00:14:28.480,spk_4,"The"
00:14:28.480,00:14:45.970,spk_1,"formal answer to that, of course, is whether the criminal case goes ahead is a matter for the CPS -- of course -- as Your Lordship knows. But one does know from experience that decisions in family cases can impact upon decisions as to criminal cases, but not necessarily at all."
00:14:45.980,00:15:00.170,spk_2,"There's a case I picked up from the page called Levi, where, apparently there was someone who was convicted of manslaughter, and that was upheld despite the trial judge and the care proceedings not having been satisfied, or something."
00:15:00.180,00:15:31.830,spk_1,"Yes, Mr Justice Hedley was not able to come to a conclusion as to who was responsible for the death of the child, I think it was a death. The Crown decided nonetheless to press the criminal case, which led to the conviction of Levi, as a pretrial endeavour, the defence team in the Crown Court had argued that it was wrong for the Crown to proceed when the family division judge had made such a decision."
00:15:31.840,00:15:34.490,spk_2,"Right, no child evidence involved in that case."
00:15:35.110,00:15:35.670,spk_1,"No."
00:15:36.240,00:15:37.790,spk_2,"No, but I mean, the same idea."
00:15:37.950,00:15:38.720,spk_1,"Yes."
00:15:38.730,00:15:42.910,spk_2,"So the care judge unsatisfied, but the prosecution went ahead."
00:15:43.290,00:15:53.690,spk_1,"I think many would say that's a rarity to come across that situation, which is why it's up in lights as a reported case and that one --"
00:15:53.700,00:16:05.710,spk_2,"if it's a rarity, I mean, does it follow that if care proceedings -- the allegation is not sustained because the child hasn't given -- hasn't"
00:16:06.550,00:16:07.020,spk_4,"been"
00:16:07.020,00:16:15.140,spk_2,"cross examined or whatever it may be, the child therefore never gets to give evidence, because the criminal proceedings fail."
00:16:15.450,00:18:06.560,spk_1,"Well, turning more directly to the issue of the interplay of the criminal family proceedings and the way Ms Branigan has raised it in her argument, in the way Your Lordship is positing it, it can very much cut both ways, and it's very difficult now to predict how matters might turn out in any future case, depending upon the decision of the judge in the care proceedings. One certainly can't say that if children give evidence more often in family cases, it's going to mean they have to give evidence twice because, these are generalities, of course, but one comes across cases where the family judge is not satisfied as to the case, relevant papers are sent to the Crown, they consider those papers ,and take the view, in the light of that, that it's not a prosecution that merits being pursued according to their own guidance. And so, as a result of the child giving evidence in the family case, there is no criminal case. The converse can apply, if the child gives evidence patently, competently and well, and the judge makes findings, then the criminal defence team are going to need to attend to that with enormous care, knowing the consequences for a plea or not in such a case, and the fact that the child has once stood up to cross examination, and one can foresee there may be cases where pleas of guilty might follow. Now this is conjecture, but it's conjecture simply put forward, to rebut the suggestion that if the outcome, which is not necessarily so, if the outcome here is that more children give evidence, then it will end up children giving evidence twice, not necessarily so at all. It could --"
00:18:06.760,00:18:25.050,spk_2,"I was really looking at the other side of the coin, the child not giving evidence at this stage. If the allegation is then found not sustained on the balance of probabilities, it may result in there being no prosecution, so the child doesn't give evidence, not really doesn't give it twice, doesn't give it once."
00:18:25.060,00:20:10.460,spk_1,"Yes, I respectfully agree, and in cases where, for whatever reason, whether a judicial decision or simply the way matters fall out, if the criminal case comes first, then that may well spare the child, if there's a conviction that will -- it is highly likely to seal the issue, in family cases often there are far more wide ranging considerations, but it would deal with the heart of it. Having said that, to be even handed about it, the child may give evidence to a jury, applying the burden standard proof, the defendant may be acquitted, and then the question arises whether the child might then need to give evidence before the family judge, or whether the transcripts might suffice. So all one can say, having run around those possibilities, is it's probably not appropriate to try and set the appropriate test now, by any prediction as to how it's likely to affect the interplay between crime and family. There are so many uncertainties and it's the science of human frailty that's likely to predict that rather than thing else. [Pause]. My Lord, drawing my submissions to this Court to a conclusion in just a few words, the -- judged by the documents that have been submitted, I anticipate that the submissions that this court is about to receive, are that -- to the effect that there is a consistent line of sound authority, which properly sets the test that is to be applied in these types of cases. We would respectfully submit, that before this Court, is a series of"
00:20:10.470,00:20:11.250,spk_0,"cases"
00:20:11.260,00:20:42.950,spk_1,"which demonstrate a rising scale of unease and dissatisfaction as to the way the law is presently set. Even if one goes back to Lord Justice Nichols in The Crown v B, one has there, as fully set out in that case and in Lord Justice Rimer's judgment, and in our submissions, grave anxieties about the process which was being embarked upon in that particular case, and which has come to set the trend for so many"
00:20:42.950,00:20:43.610,spk_4,"others."
00:20:44.430,00:21:29.640,spk_1,"So at the very beginning of the process, one has those articulated anxieties. More recently, one has the anxieties expressed by Mr Justice Coleridge in the Torbay case, and one has the unease expressed by Lord Justice Wall in the re S, re W case. And then one comes to the Court of Appeal decision in this case, where all three judges of the Court of Appeal, expressed considerable unease and anxiety about the state of the law, albeit from different perspectives. Lord Justice Wall and Wilson directly expressed their unease, Justice Rimer goes considerably further raising his concern of risk of miscarriage of"
00:21:29.640,00:21:30.320,spk_4,"justice."
00:21:31.750,00:22:10.610,spk_1,"That, My Lords, we suggest, does show a rising scale of unease and dissatisfaction. The origins for that are traceable, and I hope we have done something to be able to trace them, and the conflict with re S, we submit, is clear. And it's in those circumstances that we invite the Court to revisit the way in which these cases are decided. And so doing, is in our submission, that that is to say nothing for how an individual case may fall out, and it is not a plea for more children to have to give evidence. My Lord, unless I can assist the Court any further, those are my submissions."
00:22:10.620,00:22:12.130,spk_0,"Thank you very much, Mr Gee."
00:22:12.460,00:22:40.690,spk_3,"Could I please ask you to dictate to us the test as you would like it to be? Because I've been looking through your printed case and I don't actually find -- I find some very cogent criticisms of the present state of the law, but I'm not sure -- other than pointing as to paragraph 17 of re S, you have actually told us what you think the law should be. Would you like time to think about that?"
00:22:40.710,00:24:57.600,spk_1,"My Lady, Mr Liebrecht and I have done a lot of thinking about it, and I didn't want to be presumptuous in any dictation, but I can certainly tell Your Ladyship how -- the factors that we would see comprising the appropriate test. The first, because one would be -- having to put it in the context of what has gone to date, the first statement would be a clear statement of an equal starting point for all competing interests. Sorry, could you say that again? An equal starting point for all competing interests and the -- of course, one can't begin to list all competing interests that might arise, but judges can be cautioned or advised to be alert to the Article 6 and 8 rights of witnesses, and in the way that My Lady, we've canvassed already, that would apply to different -- witnesses in the three different positions before the Court. The Article 6 and 8 rights of parents, and the Article 6 and 8 rights of siblings. And if one sets those as separate categories as the appropriate path to begin thinking about, that at least gives a decision-making judge in an individual case the right ambit of decisions to consider. The present authorities rely significantly upon the, as Lord Justice Wilson put it, the yardstick of oppression, we've traced through the origins of oppression as a test in issuing a witness summons, just -- I haven't gone through it in detail, but it goes back to the ITN case and Morgan v Morgan within family proceedings, and we've done that simply because, this Court may wish to consider whether or not oppression is too clumsy a test. It may be that when one is looking at the welfare of the child, things short of oppression should be taken into account. So, there is -- certainly there's no, we would submit, there's no binding authority on this Court that says oppression must stay in, and the Court may wish or need to consider whether a more flexible test in looking at the child's welfare might be appropriate."
00:25:00.120,00:25:00.290,spk_3,"My"
00:25:00.290,00:25:14.040,spk_1,"Lady, we have referred to Section 114 the Criminal Justice Act 2003 because in our submission, that provides an extremely helpful guide as to evaluation."
00:25:14.160,00:25:14.780,spk_5,"Sorry, which section?"
00:25:14.790,00:25:22.210,spk_1,"Section 114 of the CJA 2003. Perhaps I should go to it, it's in the second bundle"
00:25:22.540,00:25:25.540,spk_0,"of authorities. [Pause]."
00:25:32.060,00:26:31.740,spk_1,"At tab 34. [Pause, pages turning]. Section 1 -- Subsection 1 sets up the broad categories of the admissibility for hearsay evidence, and subsection D, If the court is satisfied, it's in the interest of justice for it to be admissible that to be considered in light of Subsection 2. And, My Lords, if one goes through Subsection 2(a) to (i), they do illustrate if one has this case or any other similar case in mind, how thoroughly one can test the advantages and disadvantages of the hearsay evidence. A, how much probative value the statement has --"
00:26:32.030,00:26:42.590,spk_3,"Have we got the equivalent in civil proceedings? Hearsay evidence has been admissible in civil proceedings, since the, I think, 1995 Act."
00:26:43.910,00:26:45.390,spk_5,"I think, since well before it, right?"
00:26:45.400,00:26:46.100,spk_1,"Well,"
00:26:46.110,00:27:06.660,spk_3,"I know it's 68. It was admissible but you had to give notice and [inaudible]. It's been admissible without any strings attached since 95, and there is a list of factors there. I would have thought that was much more appropriate, because these are civil proceedings than criminal proceedings. My Lady, I have to confess -- where we're up against --"
00:27:06.670,00:27:08.510,spk_1,"I haven't gone to that."
00:27:08.520,00:27:12.900,spk_3,"We're up against Article 63 in criminal proceedings, which we're not in civil proceedings."
00:27:13.020,00:27:29.460,spk_1,"Yes, yes, and of course I'm not -- I'm very cautious about the way I put the submissions, I'm not suggesting we should just import wholesale Section 114, but because the issue is recognised to be so difficult, any guidance that is available could happily be adopted. That's what I'm asking."
00:27:30.420,00:27:31.170,spk_3,"I"
00:27:31.180,00:27:33.120,spk_5,"think it's more general, but that's my recall [inaudible]."
00:27:33.500,00:27:56.390,spk_2,"I mean, really, the fact is there is no question but that this is admissible. I mean the interview on, isn't -- nobody's questioning that, the only question is whether it should be subject to cross examination. And not all these bits and pieces under Subsection 2 apply, but it does throw some light on the sort of considerations you should be having, and that's really your point."
00:27:56.480,00:28:03.710,spk_1,"My Lord, yes, and I should have -- I rushed into Section 114 too quickly. I should have prefaced it by recognising, of course, that that is a test of admissibility and we're not in that"
00:28:03.710,00:28:05.530,spk_2,"arena, but"
00:28:05.540,00:28:39.290,spk_1,"it can help inform the issue which is presently under consideration, which is whether or not the child should be required to give evidence because it's just -- it's a way of ensuring that one has tested through what the weight of the material is, and what the consequences of having it in are. What's obviously missing from Section 114, because it has no part in its function, is the welfare of the child, and so one would plainly have to have, at the forefront of any judge's consideration, the question of the welfare of the child, alongside all the other considerations. Well,"
00:28:39.290,00:28:45.200,spk_2,"I suppose the welfare of the child conceivably comes into Subsection 2(g) --"
00:28:45.660,00:28:54.180,spk_1,"My Lord, yes, either 1(d), the interests of justice generally, or 2(g). But having said that, we're not -- considering the statute --"
00:28:54.180,00:28:56.200,spk_2,"But it's not asserting the same point."
00:28:56.640,00:29:27.850,spk_1,"No, but it's only insofar as it's a helpful guide, I say no more than that. But the key point which follows from that, which is the substance of the submission we make, is that the assessment made must be particular to the case in hand. And I went to 114, no more -- for no purpose, really, other than to say that's one way of looking at the -- that assessments. You look at the assessments particular to the case, and generalised propositions are unlikely to be sufficient."
00:29:29.680,00:29:33.980,spk_0,"So coming back to your intense focus in Lord Steyn."
00:29:33.990,00:31:05.190,spk_1,"Yes, yes, it's all within that framework, precisely. I mean, I began by saying the test have a clear statement of an equal starting point, and that's obviously a distillation from that, and then of course, insofar as any alleviation measures can be taken, they should be taken. There's no reason that -- where children do give evidence in family proceedings it is done by video link and matters of that sort. And then, of course, any test would have to set out clearly the caution which would be necessary if the hearsay evidence is received by the Court, untested by cross examination, and that is found to be expressed in the authorities but perhaps not in the way that it should be. It's most articulately expressed, most urgently expressed by Lord Justice Nichols in The Crown v B. And then, My Lady, in all that I've just said there is, we would submit, nothing, which creates a presumption in the opposite direction, but it would provide, we submit,  a clear and open way in which a judge could be assisted in coming to the right decision on what are always going to be extremely difficult"
00:31:05.190,00:31:05.700,spk_4,"facts."
00:31:10.760,00:31:43.590,spk_2,"You wouldn't, so to speak, by some presumption, like, you know, if the judge, unless, how to put it, unless the judge thought there was some real material advantage in hearing the child give, subject to cross examination, in a way of assessing the reliability of the evidence, then"
00:31:44.260,00:31:44.320,spk_1,"the"
00:31:44.330,00:31:47.750,spk_2,"presumption is you don't. Something like that? I mean,"
00:31:48.380,00:31:48.740,spk_3,"the"
00:31:48.740,00:32:01.390,spk_2,"judge has got to feel that there is some real point. All the concerns, in these various expressions, Lord Nicholls -- Lord Justice Nichols, Coleridge and the rest of it onwards, I mean, they're all understandably"
00:32:01.390,00:32:02.920,spk_4,"because in the"
00:32:02.930,00:32:26.800,spk_2,"ordinary way of things, you need to test things by some form of cross examination to be sure that, to be as sure as possible that it's reliable, safe, you know that the evidence is to be accepted. But then there might be circumstances, maybe quite frequently in those situations where a judge, frankly, thinks, Well, for the best [inaudible] in the world, I'm not going to get anything out of this."
00:32:28.840,00:32:35.550,spk_1,"My Lord, that is one conclusion which a judge might reach, having tested through all the competing"
00:32:35.550,00:32:36.950,spk_5,"factors. But"
00:32:36.950,00:33:26.910,spk_1,"I would respectfully urge that there is no advantage, and disadvantage in suggesting that at any starting point it would be, if we're right about our submissions following re S, it would be contrary to the principles set down by this Court and its previous guides, and one has seen how a presumption has worked out on the ground, historically in this case, coming down to the exceptional submissions made [inaudible] Judge Marshall and those other submissions I've made, and because the competing interests are all so stark, it is right in law and better in practice simply to say start, you begin the competition on a level basis, how each party is evaluated on the evidence in that case must be seen in that particular case."
00:33:32.020,00:33:33.810,spk_0,"Thank you very much Mr Geekie."
00:33:34.480,00:33:35.010,spk_1,"I'm obliged."
00:33:35.020,00:33:38.030,spk_0,"Mr Liebrecht."
00:33:39.040,00:33:39.670,spk_2,"No"
00:33:39.670,00:33:43.210,spk_0,"additional submissions, My Lord. Ms Davis."
00:33:45.270,00:33:47.670,spk_3,"I'm here, My Lord."
00:33:50.990,00:33:53.630,spk_4,"My Lord, My Lady, if I can [inaudible]"
00:33:55.830,00:33:56.280,spk_0,"came"
00:33:56.280,00:33:58.240,spk_4,"up towards the end of Mr Geekie's submissions"
00:33:59.330,00:33:59.470,spk_0,""
00:34:00.430,00:34:01.150,spk_4,""
00:34:01.740,00:34:02.140,spk_0,"dealing"
00:34:02.140,00:34:05.890,spk_4,"with the issue of ABE interviews,"
00:34:06.750,00:34:07.230,spk_1,"a"
00:34:07.240,00:34:15.629,spk_4,"question was raised as to how these things are normally done in care proceedings. The feature"
00:34:15.629,00:34:17.879,spk_3,"that [inaudible], the essence of it"
00:34:17.889,00:34:19.270,spk_4,"[inaudible]"
00:34:19.270,00:34:20.300,spk_2,"as quickly as"
00:34:20.300,00:34:20.929,spk_4,"possible."
00:34:21.790,00:34:22.600,spk_2,"Is your mic turned on, sorry --"
00:34:23.360,00:34:26.620,spk_0,"It's hiding behind your screen, I can't see whether it's on or not."
00:34:26.620,00:34:27.580,spk_4,"Yes, they are on, yes."
00:34:28.450,00:34:31.389,spk_2,"Well, then you're going to have to speak up, if I may ask you to."
00:34:31.389,00:34:32.149,spk_0,"Yes, if I"
00:34:32.649,00:34:55.510,spk_4,"turn them to point me, there. Yes, the question arose in relation to why this child Charlotte, as she is now being called, wasn't questioned when she first made allegations in June of 2008. And the answer to that was, well, she retracted. Of"
00:34:55.510,00:34:57.010,spk_2,"course, what"
00:34:57.010,00:35:05.330,spk_4,"actually happened at that point was that she didn't retract, she was ambivalent at school when questioned, she then went home for the"
00:35:05.330,00:35:06.380,spk_1,"night and"
00:35:06.380,00:35:08.660,spk_4,"then when questioned again next morning"
00:35:08.660,00:35:09.880,spk_2,"by the police, she retracted"
00:35:09.880,00:35:10.200,spk_4,"at that"
00:35:10.210,00:35:11.690,spk_5,"point. And the"
00:35:11.690,00:35:43.790,spk_4,"point about an ABE interview is that that would be considered bad practice, to leave the child in that situation overnight before doing the ABE interview, or to leave the child in a potentially difficult situation. Because an ABE interview can't really be seen as being simply analogous with a written statement. If you have a written statement, you come to court, give evidence in chief, you're cross examined on it. The point about the ABE interview is that it's designed specifically to be the way"
00:35:43.850,00:35:44.540,spk_1,"of"
00:35:44.840,00:38:13.390,spk_4,"achieving the best evidence that you can get, or are likely to get from children. And there's a process whereby, the child makes a disclosure, somebody makes a referral to social services or the police, very often it's to the school, they make notes on the back of an envelope, it goes to the head mistress, she contacts -- or it's made to a parent who goes to the police. So there's a process before it gets to the police and social services. They then initiate something called a Section 47 inquiry, before they do an ABE interview, usually the child is visited for what is called a vulnerable witness assessment, which frequently involves asking the child general questions, and very often seeing whether or not the child discloses anything in the course of that, at which point they close it down and then set up an ABE interview. And the ABE interview is designed to contain no leading questions at all, if at all possible, because as I think it was the Cleveland report, we apologise, My Lords, for not having a copy of that here, but was very clear that the process of questioning children was supposed to be open-ended, it was supposed to encourage free recall, free discussion, free exposition from the child with open-ended non-leading questions, then designed to elicit detail and as much as the child could remember. So it's quite different in many respects from, say, just a written statement or a statement to the police or something like a no comment interview to the police, in criminal proceedings. There was also a recognition in Cleveland that the more you question a child, the less likely you are to get the truth. But if you keep questioning a child about something, it's more likely to come up with something that previously hadn't arisen. So the general rule is that you only do one ABE interview, and you only do another one if there's a very good reason for it. But you certainly don't go beyond two. So the whole process is not simply a question of taking a statement"
00:38:13.390,00:38:14.240,spk_2,"from a child,"
00:38:14.250,00:38:39.430,spk_4,"but is actually designed to elicit the best evidence that you can from a child. And therefore it isn't perhaps as obvious in relation to children, as it is in relation to adults, that you have statement cross examination to test it. It's a little more -- the ABE interview is designed to be in more depth than that in the first place."
00:38:40.940,00:38:54.260,spk_3,"It's also a more free flowing thing, isn't it? Oh, yes. So, all sorts of stuff comes along, which enables you to see how the child is behaving and reacting to the whole situation. Yes, yes,"
00:38:54.260,00:38:55.080,spk_4,"indeed. And of course,"
00:38:55.080,00:38:58.860,spk_3,"it's in normal surrounding, or nearly normal surroundings as well. Yes,"
00:38:58.870,00:39:02.230,spk_4,"yes, and --"
00:39:02.240,00:39:03.550,spk_3,"Well, normal is putting out a bit high, but --"
00:39:03.560,00:39:12.680,spk_4,"Yes. The child will be encouraged to give their own account, and then they will go back over it and ask for more details on the specific bits of it. You've"
00:39:12.680,00:39:13.340,spk_3,"managed to turn"
00:39:13.340,00:39:15.290,spk_4,"your microphone -- oh sorry, I'm afraid the button--"
00:39:15.300,00:39:16.810,spk_3,"it's very easy to do."
00:39:16.820,00:39:51.130,spk_4,"Yes, all you have to do is [inaudible] buttons. So the interviewer is then supposed to try and elicit more detail on particular items of the child's story. And of course, is strictly enjoined not to ask leading questions, not to make suggestions to the child, which, of course, is exactly what would happen in cross examination, is you would be putting things to a child, on the basis that children may well be more susceptible to pressure and suggestions. The"
00:39:51.130,00:40:08.420,spk_5,"other side of the coin is that because it's designed to get in at the very first possible moment, it is designed to take place in a situation where there's in fact no possibility of knowing background from anyone else's viewpoint."
00:40:09.000,00:42:25.460,spk_4,"Indeed, indeed, it doesn't always work perfectly, as was the case in this case in 2008. But that is the good practice is to get in quickly. And the general approach in care proceedings, when the accusee, the person against the allegations are made, seeks to challenge the ABE, there are a number of ways in which [inaudible] challenged that don't amount to wishing to call the child to give evidence. And one of those is to get an expert to look at the quality of the ABE interview, not a veracity expert, as they're sometimes called, but somebody to say, Well, yes, good practice was followed, or, no good practice wasn't followed, but only in this respect, that kind of approach. Another thing that is frequently done, is to call and cross examine all those involved in the initial allegation and the initial referral. So where a child has said things to friends, said things to their mother or grandmother, then a social worker has come in, and then the police have conducted a vulnerable witness assessment, all those people are called and challenged as to what they said, very often with a view to establishing whether or not they in fact asked leading or suggestible questions to the child and therefore have in effect contaminated the ABE interview before you even reach the interview. And that's a very common feature of care proceedings, which is another reason why it's very important for the ABE interview to be done at the outset. Frequently also in care proceedings, you get further disclosures from the child to the foster carer at a later stage. And of course, that can all be challenged. So that is the if I can say, that is the normal process of care proceedings. So it isn't quite as bold, it isn't usually bold as saying, Well, there's a statement, and it should be challenged. It's a process that has been designed, as I said, to elicit the best of what children can give by way of evidence, in a way that's appropriate to children. We"
00:42:25.460,00:42:27.800,spk_3,"don't have the guidance, do we?"
00:42:27.810,00:42:29.090,spk_4,"Cleveland, no I'm afraid not, My Lady."
00:42:29.100,00:42:33.510,spk_3,"I don't mean Cleveland, I mean the subsequent ABE guidance. Do we have that? Yes, we do."
00:42:33.770,00:42:34.570,spk_4,"Yes."
00:42:35.160,00:42:36.240,spk_1,"There is a section in the bundle"
00:42:36.760,00:42:37.300,spk_2,"which identifies it. I'm afraid the wrong document got in there. Oh."
00:42:40.450,00:42:41.060,spk_3,"But we've"
00:42:41.060,00:42:42.570,spk_2,"got two originals here, which we brought when we realised the problem. So I'm afraid, if you to the section somehow a draft got in [inaudible] we didn't have time to [inaudible] or change it."
00:42:53.100,00:42:56.150,spk_3,"Because I've certainly not seen the 2009 versions,"
00:42:58.180,00:42:58.630,spk_0,""
00:43:00.350,00:43:01.550,spk_4,"which is what's"
00:43:01.560,00:43:02.410,spk_3,"listed here."
00:43:03.270,00:43:13.750,spk_4,"My Lady, yes, it's called a consultant, consultation paper. I must admit, I did notice that it wasn't ABE, that it was a consultation paper, but I assumed that some clever point was going to be made on it. [Laughter]."
00:43:14.240,00:43:17.380,spk_3,"No, I think not. No."
00:43:17.890,00:43:19.310,spk_4,""
00:43:19.380,00:43:21.490,spk_3,"But it does go back quite a long way."
00:43:21.500,00:43:25.410,spk_4,"Originally, it was called the Memorandum of Good Practice, and it followed the Cleveland"
00:43:25.410,00:43:26.000,spk_2,"report,"
00:43:26.590,00:43:50.040,spk_4,"and then it was refined. And, of course, although in the ABE. the achieving best evidence, it's very much recognised that the fact that although it's designed to be appropriate for criminal proceedings, they're also used in civil proceedings, in care proceedings, and indeed in private law proceedings. So"
00:43:51.100,00:43:51.510,spk_1,"Ms Davis,"
00:43:51.510,00:44:07.210,spk_2,"I don't want to muddy the water under you, but I mean, we've now got a second ABE interview, as we all know, on the 13th of January, making allegations of physical abuse. I mean, presumably all that's going to have to be"
00:44:07.830,00:44:08.400,spk_4,"in"
00:44:08.400,00:44:10.970,spk_2,"play and the care proceedings."
00:44:10.980,00:44:27.230,spk_4,"Yes. Yes, with a fresh schedule, finding assault has been drawn up on the basis of those, yes. So there hasn't been a second ABE interview in relation to the original allegations. No,"
00:44:27.230,00:44:34.360,spk_2,"no, I follow because I mean, is there no, I mean, they simply don't refer, the second one just simply doesn't touch on the first, at all?"
00:44:35.540,00:44:37.330,spk_4,"No. I mean, it doesn't"
00:44:37.330,00:44:40.710,spk_2,"even record the fact that there have been earlier allegations? It"
00:44:40.710,00:44:43.890,spk_4,"would if the child had brought them"
00:44:43.890,00:44:44.530,spk_2,"up."
00:44:44.540,00:44:48.020,spk_4,"Yes, but as far as I'm aware --"
00:44:48.030,00:44:48.860,spk_5,"excuse"
00:44:48.860,00:45:36.880,spk_4,"me, [whispering] -- it does refer to the fact that she was interviewed before, because there is a formula that they go through at the beginning of the interview, where they relax the child, talk about non-specific things, talk about understanding of truth, I think in the course of which it was mentioned that she had been interviewed before. But as far as I'm aware, it doesn't go over again the earlier matters, because that would not be in accordance with the achieving best evidence practice, its purpose is simply to illicit what the child has to say about the further allegations that she has made of physical abuse in relation to herself and the rest of the family."
00:45:42.140,00:45:42.660,spk_2,"But,"
00:45:43.790,00:45:46.810,spk_4,"so My Lords, the point being, of course, that in"
00:45:47.070,00:45:47.760,spk_5,"the"
00:45:47.770,00:46:00.690,spk_4,"care proceedings jurisdiction, the courts are very well aware of the process of conducting"
00:46:00.690,00:46:01.170,spk_1,"these"
00:46:01.480,00:47:10.930,spk_4,"interviews and their purpose and nature, which leads, My Lord, onto the second point that, briefly looking at the history, it was the point I made in my written case statement. The reason why there are no special measures in care proceedings as there are in criminal proceedings, is because there haven't had to be, because of the fact that in wardship proceedings and in children's proceedings until H v K, and then subsequently after the changing of the law, hearsay evidence has been acceptable, and it is rare for children to be called. So all the lengthy and extensive consideration that went into the matter, to resolve matters within the criminal jurisdiction simply wasn't necessary because it didn't arise."
00:47:11.550,00:47:11.970,spk_1,"As"
00:47:11.970,00:47:18.160,spk_4,"a matter of practice in care proceedings, if it is possible, on the rare occasions when a child is"
00:47:18.160,00:47:19.220,spk_2,"called,"
00:47:19.230,00:48:10.920,spk_4,"usually the court will make an arrangement to borrow a criminal court that has the right facilities so they can give evidence by video link. But that relies on being in the right kind of court centre where you have those facilities which, of course, many of them don't. But it is very rare that a child is called. So there hasn't been no consideration of special measures in civil proceedings, because nobody turned their mind to it. It simply hasn't been necessary because the matter is approached from an entirely different angle. In criminal proceedings, there is an assumption that the child will give evidence and will be cross-examined, whereas in care proceedings there is an assumption, that we say is a right assumption, that the child will not. So it simply hasn't arisen until now."
00:48:11.100,00:48:16.780,spk_5,"That is really the point in issue in this case, isn't it? I mean you put your finger"
00:48:17.880,00:48:18.480,spk_4,"on it,"
00:48:18.490,00:49:05.530,spk_5,"insofar as I am able to detect any ratio decidendi in the Court of Appeal cases, it seems to have emerged from a comment by Dame Janet -- Lady Justice Janet Smith, and been taken up in the fourth case W, and then applied in this, and it just seems to me to that effect, that there is -- it's very rare that you call a child to give oral evidence and the discretion is almost always, if not always, exercised against it, full stop. And that's all I can detect, because there's a lot of talk about how important the discretion is, but ultimately, that's what the statement of principle is. And it's the statement of principle which the judge applied at the first instance in this case, on the last page of her judgment."
00:49:05.540,00:49:26.310,spk_4,"Yes, and that is a principle, it's not a -- the point I was simply making, it isn't an oversight, it's a specific statement of principle, one that on behalf of the local authority, we say is a correct statement of principle, and my learned friend says, effectively, is not."
00:49:30.270,00:49:50.210,spk_2,"[Inaudible] I really I [inaudible] to know, you know, how many of these cases, how many of them go to criminal trial, what happens? I mean, is there anybody got any idea of statistics? How many cases -- an allegation like this is made in care proceedings, and then are made again in criminal proceedings?"
00:49:52.830,00:50:04.570,spk_4,"I'm not aware of any statistics, My Lord, and our research is, we haven't come across any. Certainly it would be a very good idea if some research were done into this. I --"
00:50:04.580,00:50:05.180,spk_2,"I mean, does it"
00:50:05.180,00:50:06.720,spk_4,"happen every"
00:50:06.720,00:50:08.720,spk_2,"day or twice a year?"
00:50:09.990,00:51:02.130,spk_4,"I would say quite frequently when you're doing care cases, with very young children, there is often a great reluctance on the part of the CPS, or indeed anybody else to consider the prospect of them giving evidence. Very often it depends on how much forensic evidence there is in support. If there is a lot of forensic evidence, then that's a very different matter. In relation to how they fit with care proceedings, as a general rule, the care proceedings come first. If the child simply doesn't give evidence in care proceedings and the judge says he can't find something proved, as the child hasn't given evidence that may have no effect at all on the CPS decision to proceed with criminal proceedings where, of course, the child will be giving evidence. If a child gives evidence --"
00:51:02.130,00:51:04.470,spk_5,"What do you mean by giving evidence, gives --"
00:51:04.470,00:51:07.830,spk_4,"It's been cross-examined, yes. It's been cross-examined."
00:51:08.450,00:51:09.030,spk_1,"On"
00:51:09.030,00:52:11.900,spk_4,"those rare occasions when a child does give evidence by being cross-examined in care proceedings, then it is usual for the representative from the police or the CPS to seek a transcript or to attend, to listen, or to make an application to be allowed to do so, so that they can see whether or not their case in criminal proceedings is undermined. So each case really depends very much on its facts. But the cases I'm aware of, where children, for one reason or another, have been called to give evidence have been very much at the upper end of the age scale. And that has usually been the case, that the police have been most anxious to know what evidence has been given, to see whether or not it affects their criminal proceedings. But normally, when a child doesn't give evidence, whatever is decided in the care proceedings is unlikely to affect their decision one way or the other,"
00:52:13.990,00:52:14.290,spk_3,"because"
00:52:14.290,00:52:37.530,spk_4,"they will be calling the child to give evidence in the criminal proceedings. In relation to R v Levy, to which My Lord referred. Of course, it wasn't simply that the judge didn't find the case proved at first instance, his decision at first instance was that he couldn't decide which of the two parents was responsible for the injury, and it then went on"
00:52:37.540,00:52:38.210,spk_2,"when the"
00:52:38.220,00:52:53.100,spk_4,"father was found guilty. But my understanding from reading that -- of reading that cases is I think the mother's position changed somewhat between the two hearings, which may account for it. So it isn't a question of the judge having found it not"
00:52:53.110,00:52:54.560,spk_2,"prove at"
00:52:54.560,00:53:00.810,spk_4,"all, he simply found on the balance of probabilities proved against both of them."
00:53:03.150,00:53:03.320,spk_3,""
00:53:04.810,00:53:24.790,spk_4,"But on that point about the underlying assumptions, that, of course, goes throughout the Pigott report, which appears at tab 43."
00:53:24.940,00:53:26.470,spk_2,"Sorry, what underlying assumption?"
00:53:26.480,00:53:30.100,spk_4,"The underlying assumption that children"
00:53:30.840,00:53:31.680,spk_3,""
00:53:31.690,00:53:45.510,spk_4,"will be called to give evidence in criminal proceedings. I believe that My Lords have already been referred to this, this is at internal page 19 of the Pigott Report"
00:53:45.510,00:53:46.100,spk_3,"at 222,"
00:53:46.100,00:53:57.830,spk_4,"where they say, Of course, we agree that cross-examining is essential. Indeed, in appointing the group, the Home Secretary made it clear that proposal which did not allow for this would be unacceptable,"
00:53:57.990,00:53:58.660,spk_3,"which may"
00:53:58.660,00:54:03.300,spk_4,"well explain the"
00:54:04.520,00:54:05.710,spk_3,"earlier statements that"
00:54:05.710,00:54:21.330,spk_4,"they had made, which appear at 211, where they say, The admissibility of video recorded interviews would relieve some of the pressures, and"
00:54:23.380,00:54:23.760,spk_2,"on"
00:54:23.760,00:54:26.710,spk_4,"page 16 towards the end of paragraph 2.12."
00:54:26.720,00:54:27.390,spk_2,""
00:54:28.140,00:54:35.390,spk_4,"This led us not only to endorse the case already explained for relieving the stress upon child witnesses. The Pigott"
00:54:35.390,00:54:36.420,spk_2,"report, their"
00:54:36.420,00:54:37.380,spk_4,"terms of reference"
00:54:37.380,00:54:38.970,spk_2,"were these"
00:54:38.970,00:55:27.640,spk_4,"children are going to be cross-examined. How do you make it better for them? Not should we should be cross-examine children, but, they are going to be cross-examined. And where you look, My Lords, at 2.10, which is on page 15, that sets out their understanding, as they say in terms, most children are disturbed to a greater or lesser extent by giving evidence in court, and they go on as to why, and something they expand upon in the body of their report, that children are likely, or it is probable, that they will be disturbed, traumatised, harmed, upset by having to give evidence."
00:55:27.800,00:55:54.580,spk_2,"But surely, I mean, at the time when Judge Pigott was reporting, or his committee was reporting, I mean, it was a full courtroom scene. It was. I mean, a child just came in like any other witness, everybody was wearing -- I don't, did we used to take our wigs and gowns off? I'm not sure we did, I don't think we did.  So I mean, it was absolutely the full experience of a witness, no protective or measures whatsoever, no special measures at"
00:55:54.580,00:55:55.730,spk_4,"all. Absolutely."
00:55:55.740,00:56:13.890,spk_2,"And there was accused counsel, you know, just as aggressively as he wanted. No doubt a judge tried to restrain him to a degree, if he, no doubt it would be unwise for you to be a jury to be too -- But that's how it was."
00:56:14.990,00:56:16.900,spk_4,"Well, indeed, My Lord -- I"
00:56:16.910,00:56:24.830,spk_2,"mean, I don't think anything of that character is contemplated now, by an applicant such as the appellant here."
00:56:25.460,00:56:29.200,spk_4,"No, indeed."
00:56:29.340,00:56:29.720,spk_3,"This is"
00:56:29.720,00:56:58.530,spk_4,"the starting point of the Pigott report and their underlying understanding from the evidence that they obtained as to what the difficulties were, the only evidence of any substance, and we say that is of insufficient substance, that there has been, or how the special measures have worked, is measuring up, which appears at 44."
00:56:59.030,00:57:00.030,spk_2,"Tab?"
00:57:00.040,00:57:07.640,spk_4,"Which is tab 44, which evaluates the"
00:57:07.640,00:57:08.680,spk_3,"implementation"
00:57:12.880,00:57:23.950,spk_4,"of the special measures. This was a piece of research, it was based on interviews with 182"
00:57:23.960,00:57:24.780,spk_2,""
00:57:24.790,00:57:47.170,spk_4,"witnesses. Of whom, bare with me one moment while I find the relevant statistics -- 67% were victims of the offence charged, so the other 33% were witnesses rather than victims,"
00:57:49.920,00:57:50.190,spk_2,"and"
00:57:50.190,00:58:05.310,spk_4,"21%, the defendant was a member of the immediate or extended family, and 35% gave evidence in relation to sexual offences. And they did a series of interviews and asked a series"
00:58:05.310,00:58:06.320,spk_5,"of questions,"
00:58:06.830,00:59:08.160,spk_4,"firstly designed to ascertain the extent to which special measures had been implemented, which is where you get statistics from like 44% have not had a familiarisation visit and so on, but also asking questions about how worried or anxious they felt beforehand, whether they felt scared, whether they felt intimidated, whether they had stress symptoms. For example, looking at Section 1032. [Pause, pages turning]. Symptoms of stress. 29% had sleep problems, 18% [inaudible] problems, felt sick. 15% were depressed. 13% experienced panic attacks or flashbacks."
00:59:09.020,00:59:10.110,spk_3,"[Inaudible]."
00:59:10.480,00:59:18.780,spk_4,"Sorry? Oh, sorry, 13 and 7%. The difficulty"
00:59:20.120,00:59:20.350,spk_1,"with"
00:59:20.350,00:59:27.930,spk_4,"this kind of evidence, My Lords, is firstly, that special measures in criminal proceedings has clearly not been fully implemented, and secondly --"
00:59:27.930,00:59:28.960,spk_2,"Sorry, I missed that, clearly --"
00:59:29.630,00:59:40.580,spk_4,"Sorry, special measures in criminal proceedings has not been fully implemented. And secondly, measuring up, does not specifically address the problems"
00:59:40.580,00:59:42.460,spk_2,"of children"
00:59:42.470,01:00:02.390,spk_4,"who are the victims of abuse or victims of alleged abuse, giving evidence in family proceedings. This measuring up is of only partial application to the matter that the Court has to deal with today."
01:00:03.360,01:00:07.300,spk_2,"Measuring up, as I understand, is in respect of the post-Pigott criminal process."
01:00:07.520,01:00:08.180,spk_4,"That's right."
01:00:08.430,01:00:18.260,spk_3,"Oh it's more than that. It's not only the post-Pigott -- It's the post-special measures, which are -- yes -- you know, very much more extensive than the Pigott measures."
01:00:18.270,01:00:22.000,spk_4,"Yes, but I suppose in the sense that Pigott led to special measures -- yes --"
01:00:22.000,01:00:23.010,spk_3,"and measuring"
01:00:23.010,01:01:16.400,spk_4,"up is saying, How are we doing now? But for example, one point that is made at page 140 Section 10.32, down towards the bottom, where it says the group of 95 young witnesses who reported symptoms of stress was compared with the 87 who did not. A greater proportion of those reporting stress symptoms were victims of sexual offences, 49% compared with 9%. That that is just a kind of indicator on that particular occasion of the extent to which measuring up as a whole, does not really answer the important questions that one would need to answer before making any substantial change to the law in care proceedings. Doesn't that [inaudible]"
01:01:16.430,01:01:47.860,spk_5,"because, I mean, if there is insufficient information to draw conclusions, why do you assume that in any particular case, there is going to be considerable damage to the particular child in having to give evidence? And that observation is reinforced when you have a child who, on the face of it, is ready, willing and able to give evidence."
01:01:50.160,01:02:02.430,spk_4,"Yes, I suppose, if the Family Justice Council were to commission research that showed the opposite, I think people would be surprised, but that would be the research, and that would show"
01:02:02.430,01:02:04.220,spk_2,"it. [Inaudible] the other way around, I mean,"
01:02:05.560,01:02:38.280,spk_5,"you invite the Court -- you say the president authority simply assumes that there is likely to be generalised but unproven damage. Now, if the Family Justice -- if we said that that wasn't a justified assumption, then of course, if the Family Justice Council produced statistics showing that in every single case a child is really at risk, then one would draw that conclusion that in every single case one should approach the discretion on that basis, but at the moment I'm not sure why you do."
01:02:38.290,01:03:31.460,spk_4,"Because the Pigott inquiry is, at the moment, the best evidence that we have, on an evidence based approach to what is in the interests of children. The Pigott inquiry took evidence from the range of bodies and individuals which have already been referred, My Lords, of psychiatrists and the Royal College of Paediatricians, and so on. And so the evidence based approach of the Pigott inquiry is that giving evidence is harmful. Now, it can be argued that, and indeed it has been argued that, well, that was before special measures. And what I am arguing, My Lord is yes, but what we don't have is any focused evidence to set against the Pigott inquiry to say, Well, if you do it in this way, things are different now."
01:03:31.590,01:03:32.470,spk_6,"Would the --"
01:03:34.050,01:03:34.080,spk_4,""
01:03:34.090,01:03:52.540,spk_6,"would an approach that didn't erect a presumption that a child will be required to give evidence, but recognised that the risk of adverse effect on a child is always a matter of importance,"
01:03:53.500,01:03:53.760,spk_4,"would"
01:03:53.760,01:03:57.700,spk_6,"that not better reflect the effect of the Pigott report?"
01:03:57.710,01:04:19.730,spk_4,"Well, query My Lord, whether that is actually the situation now, one of the authorities, it escapes me which for the moment, says this isn't a presumption, it's a guideline. If the case were to -- if cases were to be approached on a case by case basis, as suggested by my learned friend, to say we'll have a level playing"
01:04:19.740,01:04:19.860,spk_2,"field,"
01:04:20.990,01:04:40.080,spk_4,"one would anticipate that the first thing that any judge of first instance would say is, well, of course, I approached it with a level playing field, and the first thing I take into account is the fact that the evidence base that we have, which is the Pigott inquiry, indicates that the giving of evidence is, in general, a traumatic and upsetting experience for children. But that doesn't"
01:04:40.080,01:04:45.340,spk_6,"necessarily involve the erection of a presumption, or the construction of the presumption does it?"
01:04:46.220,01:04:47.160,spk_4,"It doesn't -- I beg your pardon?"
01:04:47.160,01:04:54.720,spk_6,"It doesn't necessarily involve the establishment of a presumption against the calling of the child."
01:04:55.210,01:05:31.890,spk_4,"It would be a presumption that calling a child is likely to be, or there is a very high risk that it will be traumatic and harmful to the child, with possible mental health consequences. And it is difficult to see how, to a judge of first instance, that would not translate into a presumption against calling a child, because that is the evidence base as it currently stands, and the point I'm making about measuring up, is that it isn't"
01:05:31.900,01:05:33.150,spk_3,"specific"
01:05:33.150,01:06:06.520,spk_4,"enough to deal with this particular issue of children in care proceedings, and there are enough mentions in it of concerns, to lead one to the inevitable conclusion that a very focused and specific piece of research needs to be done, before there could be any change. And if I can refer you further on that point, to Section 1.1 at page 17. [Pause, pages turning]."
01:06:25.560,01:06:26.750,spk_3,""
01:06:26.760,01:06:27.920,spk_1,""
01:06:27.930,01:06:28.980,spk_3,"Where they state"
01:06:29.000,01:06:50.670,spk_4,"their study sample. They started off with a work in their own words, which is where they went out and asked these questions, halfway down 1.1, it says 74% of 160 witness services and young witness schemes agreed to take"
01:06:50.670,01:06:51.430,spk_1,"part."
01:06:53.610,01:07:43.560,spk_4,"Only 43 had referred young witnesses to the study by the end of the fieldwork, even those who did so found it difficult to approach young witnesses systematically as requested, it then goes on to say, Several were reluctant to offer a research interview to those insensitive cases that had a difficult time at trial or who were looked after by a local authority. So even attempting to do this piece of research, the professionals involved in trying to interview the witnesses so much took it for granted, if you like, that those who were in care were so much at the vulnerable and sensitive end, that they didn't even want to answer the questions, so they don't actually appear in measuring up, as apiece of research. And the other thing that supports"
01:07:43.570,01:07:44.570,spk_2,""
01:07:44.580,01:07:47.000,spk_4,"that conclusion is at Section 10.3,"
01:07:47.000,01:07:48.930,spk_2,"page 135."
01:07:50.210,01:07:51.270,spk_5,"Which, 10(3)?"
01:07:51.370,01:07:53.590,spk_4,"Section 10(3), page"
01:07:53.600,01:08:05.180,spk_2,"135. [Pause, pages turning]."
01:08:10.080,01:08:16.490,spk_4,"Impact on health and welfare."
01:08:17.299,01:08:18.509,spk_3,"97% of"
01:08:18.509,01:08:36.740,spk_4,"young people said their family was supportive. That is a statistic that I would suggest I have to accept, without any evidence or research to base it on, would instantly tell those involved in care proceedings. I'm sorry,"
01:08:36.740,01:08:37.569,spk_2,"you're dropping over"
01:08:38.200,01:08:43.040,spk_4,"that statistic, that 97% of young people said their family was supportive --"
01:08:43.049,01:08:43.440,spk_2,"Yes"
01:08:43.549,01:09:45.970,spk_4,"-- is a statistic that would immediately suggest to those who deal with care proceedings, that the sample used here does not involve most or many of the children that we deal with in care proceedings. It is a normal feature of care proceedings, the kind of a typical case in care proceedings, is an older child being abused by a father or stepfather, much more rarely a mother, more usually father or stepfather, who is unsupported by their mother. And where there are young -- frequently younger siblings, and part of the motivation on the part of the older child, is a concern about the younger siblings and that therefore, there is a split in the family, and sometimes there is a major division in the family. That, I mean, that is a very difficult situation in care proceedings. So there is, we say, nothing as yet on"
01:09:45.970,01:09:46.630,spk_5,"which"
01:09:47.240,01:10:43.400,spk_4,"the Court could -- a court could say, Pigott is out of date, everything would be different if we did it differently now. We still have a situation where the the the evidence base as it is, is that the giving of evidence is harmful, and we are not in a situation, we do not have the evidence, to say it would be all right if only we adopted a special measures approach. We simply don't have that evidence, and that is something that maybe the Family Justice Council could address. So, the local authority would say that, when the authorities as they are, take as their starting point the assumption is we do not call children because it's harmful, because it's traumatic, that assumption is not an assumption plucked out of the air. It's an assumption based on the evidence as it is at the moment."
01:10:47.910,01:10:48.210,spk_3,"But"
01:10:48.210,01:10:52.550,spk_6,"when you say the evidence as it is at the moment, the evidence as emerges from Pigott."
01:10:53.840,01:11:00.810,spk_4,"Well, yes and -- yes, yes."
01:11:01.400,01:11:09.040,spk_6,"Which was given as My Lord, Lord Brown has pointed out, at a time when proceedings were very different from they are now,"
01:11:09.610,01:11:10.090,spk_4,"and"
01:11:10.090,01:11:14.020,spk_6,"also given in the criminal context."
01:11:15.540,01:11:24.120,spk_3,"Trouble is, because it doesn't happen, we haven't got a research study of how children feel about giving evidence in care proceedings."
01:11:24.530,01:12:00.380,spk_4,"No, we don't. And it would be difficult, I think what happened in measuring up, which is that the people doing the research didn't even want to ask the children in care because they thought they were so vulnerable, to actually set out to do a piece of research based on children in the care system as to how -- if you could find those few who gave evidence, and then do some research on those, and compare them to the ones who didn't give evidence, it's going to be very difficult piece of work. But"
01:12:00.390,01:12:03.720,spk_3,"I would imagine some ethics committees would have some problems with it,"
01:12:03.730,01:12:05.500,spk_4,"too. Yes, yes."
01:12:06.310,01:12:43.780,spk_5,"All this goes in the criminal context because Article 6(2) say so, because it's fundamental, and you, I mean you would -- it's an obvious comparison, but it's it's quite difficult to see that it justifies so great a gulf in practice. Criminal proceedings have an effect on liberty, but nonetheless, care proceedings have a radical effect on life."
01:12:43.790,01:12:45.050,spk_4,"Yes, yes."
01:12:47.390,01:12:47.610,spk_5,""
01:12:47.610,01:13:11.700,spk_4,"I think the the key to why they are so different, of course is, I suppose, in many respects, family is a relatively new area of law, compared to crime, and that the focus on crime has always been principles. The principle that better that nine guilty men go free than one guilty man be convicted."
01:13:12.060,01:13:31.570,spk_5,"Well there's increasing -- actually, there's increasing emphasis in Europe on the need to have to take account of the rights of victims and witnesses. Yes. And if your propositions are right, maybe it ought to be criminal procedure which bows, rather than vice versa."
01:13:31.580,01:15:40.190,spk_4,"It may well be. There's an underlying assumption in learned friend's submissions, that the criminal process is the more modern and the more up to date, and that the family is lagging behind. It may in fact be the other way around. But the criminal process has arisen because the necessity for fair trial, for natural justice, to be able to confront your accuser, to be able to ask questions, is so essential to the criminal process. But of course, in the family process, the focus of the issue is not is this person guilty or not, have the prosecution proved their case? It may well seem like that, at times, from the point of view of the person against whom the allegations are made, but in reality, that is not the focus of the case. The focus of the case is the welfare of the child. And the essence of the local authority submission is, to put it in one sentence, it doesn't really make any sense to set up an entire process designed to protect children, and then for that process to then be used to further traumatise them at the incidence of the potential abuser. Because, if the situation were, that as a matter of course, children who make these allegations would be called to give evidence to be cross-examined in care proceedings, it is entirely understandable that an innocent man, would wish the child to give evidence in the hope that they would then tell the truth. But it is also highly likely that every guilty person on the receiving end of these allegations, would also be very anxious for that child to give evidence, in the hope that the pressures would cause the child to retract before they ever gave evidence or cause the child to break down in the course of cross-examination. So"
01:15:40.780,01:15:40.940,spk_2,"I"
01:15:40.940,01:17:17.180,spk_4,"suppose it's a floodgates argument in that if children were to be available to be called, if there was a decision to be made in every case about whether a child was to be called, there would almost invariably be an application for that child to be called, and the child would not know until that application had been decided, whether or not it would be called to be cross examined. Dealing further with the practicalities, if one then goes on to consider the situation that that puts the local authority in, in one respect it would be easy for local authority to say, particularly in a case like this, where you have a bright and articulate child, it would be easy for the local authority to say, Well, we'll call her, she's bright, she's articulate, that'll be fine, rather than thinking in terms of what is the potential for psychological harm and future psychological harm for this child, and to take a parental decision, effectively, in the exercise of their parental responsibility, that is not appropriate to call her. If in a substantial number of cases they were faced with the likelihood that on a level playing field argument, an argument where Article 6 took a very strong part, that a lot more children were going to be called to give evidence, the local authority would always then be in a position of having to weigh"
01:17:18.580,01:17:18.830,spk_3,"the"
01:17:18.830,01:18:44.850,spk_4,"interests of that child against the interests of pursuing the case. Because there are some cases where they don't need the child's evidence, where they can say, Well, right, in that case, we don't agree to the child being called, so we won't rely on any of that evidence, we've got other evidence that doesn't require the child to be called. But there are many cases where they can't do that. And one can only imagine the situation, for example, where you have a, say a teenage child, with no siblings, who, they are quite confident, does not want to give evidence or would not be happy giving evidence. If there is a decision that she should give evidence, the local authority thinking, Well, she's probably not going to go home anyway, so it's not worth putting her through the trauma of giving evidence, so we won't proceed with the proceedings because she'll remain in voluntary care. Where, however, there are younger siblings, who need to be protected, it would be very difficult for local authority in those circumstances, or for the child herself, not to feel under pressure to give evidence, even if it would be damaging, even if it be very upsetting or traumatic for her, not to feel, I have to make myself do this, or for the local authority not too subtly encourage her to do it, because of the need to protect the younger siblings. It's a minefield, in terms of child care and balancing the interests of an older child and younger children, and balancing the interests of potential psychological harm to children."
01:18:44.860,01:19:11.480,spk_2,"I mean I do absolutely see all that, and if I may say so, you tell it extremely well. It just seems to me that it's so important to get the decision right in the care proceedings, much more important, actually, than it is to get it right and in any subsequent criminal proceedings. If a child is going to be giving evidence once, well, then it ought to be in the care proceeding and not in the other. If the child gives evidence in the care proceedings and there's --"
01:19:11.480,01:19:11.660,spk_4,""
01:19:12.560,01:20:36.080,spk_2,"the evidence is accepted, well, I mean, I wouldn't, myself, mind a regime in which, if the child doesn't want to get evidence again, that's it. Criminal proceedings either drop or must depend on other evidence. But I mean it's -- because it's just a question of how much more likely it is you're going to get the right result. If you do have the child cross-examined, that seems to me to be almost the all important consideration, because I mean, if you're going to get decisions right that otherwise you're going to get wrong, then it's worth paying a price, because, you know, you're going to protect sometimes that child, often, as you say, the youngest siblings and the rest of it. I mean, that's what really matters, to get it right. And if the child is making false allegations, it's equally important that that is right too, so that the younger siblings, etcetera, don't lose out in life. I mean, we have no notion that's -- I mean a lot of people, particularly with non family background, your sort of Lord Justice Nichols and Lord Justice Rimer and so forth, and perhaps even I, myself, feel, because we're brought up against tradition that basically, cross-examination is a good idea, you know, it helps get out the truth."
01:20:36.740,01:21:17.990,spk_4,"My Lord, absolutely, and there is a basic cultural disparity between the family law world and the criminal world, where the criminal law world, effectively, insofar as it has to, sacrifices the interests of children in order to get the result right. Whereas in the family world, the interests of the child is what it's all about, and therefore you don't sacrifice anything, as far as Children are concerned, you don't -- you're pursuing the interests of the children. So yes, My Lord, you have to get the answer right if at all possible, but not by traumatising children along the way. And this --"
01:21:18.580,01:21:51.210,spk_5,"Well this assumes that questioning -- is traumatising, yes -- well, no, it doesn't. It assumes that it has no purpose, I mean, you haven't fed that into the equation at all. Admittedly, I did notice there was a reference to the value in assessing, you judge the demeanour of the witnesses, I personally have always found that an extremely suspect notion, there being some very plausible liars, at least in the adult world, which I am familiar with."
01:21:52.790,01:21:53.520,spk_2,"[Laughter, inaudible]."
01:21:54.710,01:22:03.110,spk_3,"Yes [inaudible]. We are battling for principle, in an evidence free"
01:22:03.110,01:22:04.250,spk_4,"world,"
01:22:05.040,01:22:41.340,spk_3,"in the sense that we don't know what the impact of giving evidence in the very different atmosphere of family proceedings Court is on children, because they don't, on the whole, do it. The other thing, actually, we do have a little bit more evidence about, is how you get the best evidence out of children, because that's what achieving best evidence is all about. And it is based on a certain amount of psychological research about the reliability of what children"
01:22:41.340,01:22:42.360,spk_4,"say. Yes"
01:22:43.190,01:23:28.150,spk_3,"To a much greater extent than the assumption that cross-examination is the way to the truth. Now I'm not denying that cross-examination is the way to the truth in many, many cases. But one of the concerns is that a typical Old Bailey-style cross-examination is as likely to obscure the truth as it is to allow it to emerge. This is part of this is why I say we are trying to search for principle without actually having the empirical data on which to apply it. We want the best evidence, we want to get the answer right, no family judge is sitting there wanting to get it wrong. You're always doing the best you can. How do you do your best?"
01:23:29.220,01:23:31.460,spk_4,"My Lady, there is also the issue"
01:23:31.470,01:23:32.370,spk_3,"of"
01:23:33.630,01:23:43.480,spk_4,"the developmental stages that children go through in how they think. That is something that not even all the experts would agree where to draw the lines. You're going"
01:23:43.480,01:23:49.020,spk_3,"to have to speak up because even I'm having difficulty hearing you. No, it's not that, you just have to speak up."
01:23:50.510,01:24:26.500,spk_4,"The people who propose various levels of developmental stages, don't all agree on how they work. But the traditional Old Bailey cross-examination, that is designed to catch out even a hardened liar, may have a completely opposite effect on a child who may be at a stage of development and understanding where they're highly suggestible. So if a large man with an authoritative voice, tells you that this is so, and that's so, they say, Yes. And it may not be at all, of course, because -- [Inaudible]"
01:24:26.500,01:24:36.480,spk_2,"I mean you certainly don't want an Old Bailey-style cross-examination [inaudible], I mean, Old Bailey cross-examinations are designed to mislead the jury, I mean that's their very purpose."
01:24:36.540,01:24:41.660,spk_3,"I'm so glad that My Lord has said it, I was trying to avoid saying it."
01:24:41.670,01:25:31.950,spk_2,"No, no and I do recognise that in a sense, in the criminal context, actually, the reason why you have to allow a cross-examination and confrontation, all the rest of it, is not actually to get at the truth, it's in order to give the accused the feeling that he's had a fair trial and a fair opportunity. Yes. I mean, and that is regarded in a criminal context, I think, as perhaps more important than getting at the truth. I mean, I don't think Strasburg were in the least bit interested in a proposition, Well, actually you're going to get more reliable evidence by not cross-examining. I don't think they'd buy that, whereas in a -- I certainly in a care context, you know, if I was persuaded that you are more likely to get the accurate result without, well then, of course, I would be very susceptible to all that sort of"
01:25:31.950,01:25:33.380,spk_4,"argument. Yes."
01:25:33.500,01:26:00.770,spk_2,"I mean it's fair to say, I haven't looked back at our old friend Camberwell Green, or whatever at all, but actually, I mean, there is something in that too about getting the best -- and there's a sort of, you know, there's a provision in the legislation, you know, for doing something you couldn't otherwise do if it's going to obstruct your getting the fair, best result, or something -- I can't remember [inaudible] perhaps look at it overnight, because I don't want to take you off course."
01:26:00.870,01:26:07.550,spk_4,"Well, My Lord, it's the highlighted in My Lord's judgment at paragraph 70."
01:26:07.850,01:26:14.500,spk_2,"70 of what? Camberwell Green. Oh, well, no but that's a different point."
01:26:14.510,01:26:15.270,spk_4,"Oh, right."
01:26:23.220,01:26:23.290,spk_2,"No,"
01:26:23.400,01:26:24.350,spk_4,"maybe that was"
01:26:24.350,01:26:24.930,spk_0,"a different point, yes."
01:26:32.640,01:26:37.470,spk_2,"And there is -- there was some statutory provision, I've just seen some reference to it, it's"
01:26:38.580,01:26:38.650,spk_4,"in"
01:26:39.180,01:26:50.240,spk_2,"some situations, whether it might tend to inhibit such evidence being effectively tested was one statutory provision, 19(3)(b), how it fits into the scheme, I can't for the life of me remember. But,"
01:26:51.400,01:26:51.550,spk_1,"I"
01:26:51.550,01:26:53.250,spk_2,"mean, there is something about that."
01:26:57.390,01:26:57.760,spk_4,"Who"
01:26:57.760,01:26:58.400,spk_2,"says [inaudible]. [Pause, pages turning]"
01:26:59.990,01:27:00.220,spk_5,"[Silence]."
01:27:38.160,01:27:40.300,spk_0,"The first paragraph of your speech, isn't it?"
01:27:41.520,01:28:00.550,spk_2,"19(3)(b). Yes, but doesn't anybody [inaudible] other people might have referred to it, I mean, I was only -- I'm looking at paragraph 22"
01:28:00.560,01:28:01.640,spk_0,""
01:28:02.050,01:28:06.870,spk_2,"and then there's a Subsection 4 of Section,"
01:28:08.460,01:28:08.690,spk_4,"I suppose,"
01:28:08.700,01:28:27.820,spk_2,"21, is it? The rule does not apply to the extent the Court's is satisfied that compliance with it would not be likely to maximise the quality of the witness' evidence so far as practical. So [inaudible]"
01:28:28.480,01:28:29.890,spk_4,"it's not very clear, is it?"
01:28:29.900,01:28:34.010,spk_2,"[Inaudible] paragraph 65, I've got a parenthesis, it"
01:28:36.270,01:28:36.870,spk_4,"deals"
01:28:36.870,01:28:39.220,spk_2,"with some aspect of it, but I can't for the life of me remember what."
01:28:40.400,01:28:41.510,spk_3,"Except there is"
01:28:42.940,01:28:54.270,spk_2,"that special provisions about how something might tend to inhibit such evidence being effectively tested. So there it was, I mean, that was a concept introduced into that statutory scheme."
01:29:01.770,01:29:06.370,spk_3,"It's interesting that I record at paragraph 38,"
01:29:07.180,01:29:07.380,spk_4,"that"
01:29:07.390,01:29:21.220,spk_3,"council for one of the appellant's in the Camberwell case acknowledges that a video recorded interview is likely to be the best evidence that a child can give, for the reasons that I then record. Yes."
01:29:32.520,01:29:37.930,spk_4,"Yes, My Lady, which really comes back to my point that an ABE interview is not really the equivalent of a statement of an adult."
01:29:38.940,01:30:35.170,spk_5,"It slightly depends what you mean by best evidence. I mean, if one entertains the hypothesis, which I suppose one must entertain that sometimes, some such allegations might be fabricated, then it may be the best evidence in a different sense, and it may be that if questioned against the background, it might be retracted or might prove to be untenable. I suppose that's the sort of possibility one's got to entertain, when it is flatly deny that there was any abuse, and I mean in this case, as a matter of interest, as I understand it, she was asked in her first ABE interview why she had made previous allegations which she'd retracted. Yes, and she explained, yeah. That was a complete discussion of that theme, was it, so one could say that's been dealt with thoroughly."
01:30:35.320,01:30:40.230,spk_4,"She explains why she retracted, yes. I think she was 11 at the time."
01:30:40.550,01:31:11.880,spk_5,"I mean, I noticed in paragraph 26 of your case that you said the strength of the forensic evidence, coupled with the medical evidence, those are factors in favour of her account, and the history of these previous allegations and retractions is such that it's not necessary or appropriate for her to be drawn directly into the forensic arena, i.e. what, that they're sufficient to enable the court to decide between two apparently conflicting cases?"
01:31:13.140,01:31:13.270,spk_3,"Well,"
01:31:13.270,01:31:16.280,spk_4,"My Lord, care --"
01:31:17.270,01:31:18.780,spk_3,"a care"
01:31:18.780,01:31:19.610,spk_4,"judge --"
01:31:20.380,01:31:20.850,spk_3,"there"
01:31:20.850,01:32:46.100,spk_4,"is the evidence of the child, and there are the two experts reports, and then there are a number of lever arch files that contain all of the history and the documentation and the texts and the letters, in relation to what she told her friends, what her friends told their mothers, how it got to social services, what the responses of everybody was, the whole history of the thing. That is part of the evidence that a care judge would look at very closely, in terms of consistency. Of course, against the background of being very experienced at these kinds of allegations, and that is something that, My Lord, there is a lot less of in the criminal courts and the criminal courts is much more focused on the specific allegations. But the local authority, in a case like this, would be relying on all of that. And we have to take into account, of course, the fact that she has made an allegation that she has then retracted, but that is very much part of the historical background of this case that we would expect a care judge to look at in great detail, yes. And then, of course, sometimes -- in this particular case, there is the forensic evidence. So the evidence of the child, directly via the ABE interview [inaudible] --"
01:32:46.550,01:32:50.020,spk_5,"And then the stepfather will"
01:32:50.020,01:32:51.710,spk_4,"have his"
01:32:51.720,01:32:55.250,spk_5,"account before the judge, which will be cross-examined."
01:32:55.290,01:33:34.450,spk_4,"Yes, and of course in particular in relation to the retraction. And of course, it would have been open to the father, had he so wished, to call, to cross-examine all those people to whom the child made previous statements, or wrote letters, or sent texts, or who have made statements saying what this child has said to them, to cross-examine those, and indeed to cross-examine social services and the police in respect of the Section 47 investigation and the vulnerable witness interview of the staff at the school, all these people could be could be cross-examined, if the father so chose."
01:33:36.140,01:33:41.260,spk_2,"And Ms Davis, your paragraph 15, which sets out what Lord Justice Wilson said in re P, I mean"
01:33:41.260,01:33:41.870,spk_0,"that rather"
01:33:42.610,01:34:47.090,spk_2,"worries me. There it is if you don't call the child, well, then, I mean -- whether cross-examination does or doesn't actually tend to serve a purpose, I mean, you actually have to direct yourself, Well, frankly, we can't give this evidence the same sort of weight. Now, in a case like this, where on the face of it, it's the make or break evidence, that forensic evidence, the scientific evidence, I mean, as Mr -- he rightly said, I mean, it's not totally independent, so of course it's not going to carry the day, I mean, either the child is telling the truth or the child is a liar, and if it fatally weakens the case, I mean, then there could be catastrophic results, you could get the child not carrying the day in care proceedings with all the consequences of that, quite possibly a dropped criminal prosecution on the foot of it, and the child never had its word actually heard in -- tested in court in cross examination."
01:34:47.940,01:34:50.710,spk_4,"My Lord, no. My Lord, does have its words heard in court, of course, by the interview [inaudible] --"
01:34:50.720,01:34:54.730,spk_2,"Well it's only heard by the ABE -- I mean, I follow that absolutely --"
01:34:54.730,01:34:55.390,spk_4,"Yes."
01:34:55.690,01:35:17.150,spk_2,"But I mean it, and you know, if the child was there, and aware of what was happening, she's told, Well because you're not actually giving evidence in court because of the principle that you generally don't, your evidence may be fatally weakened, and you may find that your siblings returned to a father when otherwise they wouldn't have done."
01:35:17.160,01:35:28.470,spk_4,"Yes, and in those circumstances, many children would then say, Well, in that case, I'll give evidence, as much as I don't want to, I will give evidence to protect my little brothers and sisters --"
01:35:28.570,01:35:29.810,spk_2,"But does this child not get any option?"
01:35:30.610,01:35:46.060,spk_4,"and may be traumatised as a result. And may be traumatised as a result, and that is why the local authority exercises its parental responsibility to make that decision for the child, in the light of the current law. My Lord, there is"
01:35:46.060,01:35:46.880,spk_2,"no"
01:35:46.890,01:36:07.010,spk_4,"satisfactory answer, if I can put it that way, in the sense that there is no obvious and perfect solution to the difficulties in testing a child's evidence without running the risk of traumatising the child. This is a balance between two unsatisfactory solutions."
01:36:07.100,01:36:12.390,spk_0,"It is the case, isn't it, that the local authority changed its position? Yes, they did. Quite"
01:36:12.400,01:36:13.410,spk_2,"definitely."
01:36:13.420,01:36:21.400,spk_4,"They did. They did, indeed. They changed their position when they obtained the forensic evidence, that strengthened their case to the point --"
01:36:21.640,01:36:26.670,spk_0,"And you say that was the decisive -- yes -- point in the change of attitude."
01:36:26.840,01:36:34.820,spk_4,"Yes. We received -- the local authority received the police evidence which included the forensic evidence."
01:36:35.520,01:36:43.280,spk_6,"Well, I had thought that the judge brought this up of her own [inaudible], and it was at that point that the local authority changed --"
01:36:43.320,01:36:54.490,spk_4,"Yes, because by that time, the police evidence had been received. It can take -- it could be quite a difficult and lengthy process to get police evidence in care proceedings. In theory -- So it just happened that"
01:36:54.670,01:36:57.540,spk_6,"those two events coincided?"
01:36:57.550,01:36:58.300,spk_4,"Yes. [Inaudible] satisfactory."
01:37:00.710,01:37:12.340,spk_5,"But I mean, that suggests that the local authority changed its stance because it thought that it had an overwhelming case. Is that -- It"
01:37:12.350,01:37:31.770,spk_2,"doesn't sit very easily with what the guardian says at paragraph 22 of page 6. The guardian says his or her mind was changed for two reasons, closer consideration of the applicable legal principles, and then the fact that the police had charged the father of 14 offences."
01:37:32.120,01:37:32.520,spk_4,"Yeah."
01:37:33.080,01:37:35.850,spk_2,"That's not the same reasoning at all as yours."
01:37:35.920,01:37:37.800,spk_4,"It may well not be, My Lord."
01:37:39.390,01:37:42.740,spk_2,"Sorry, which [inaudible]? [Inaudible] 22 at Page 6 of the guardian's case."
01:37:43.120,01:37:45.330,spk_4,"My Lord, the guardian is a different party."
01:37:45.340,01:37:54.400,spk_2,"Well, I'm not accusing you -- inconsistent. Well, I mean, I am, but not as an accusation."
01:37:56.180,01:38:05.900,spk_4,"My Lord, we are the local authority and they are the guardian. My Lord, I've taken instructions as to the change of mind in the local authority."
01:38:06.620,01:38:10.840,spk_2,"So really, what you're saying is what, you think you'll get home without it?"
01:38:11.920,01:38:15.750,spk_4,"My Lord, that would have been the reasoning, yes."
01:38:16.840,01:38:34.210,spk_0,"The two reasons are not perhaps quite so different as My Lord is suggesting, because, no doubt the fact that the police decided to bring charges on 14 counts had something to do with the fact that forensic evidence, and possibly strong forensic evidence, was available."
01:38:34.220,01:38:37.100,spk_4,"Yes, absolutely. Yes, yes."
01:38:39.120,01:38:39.340,spk_3,"But"
01:38:39.340,01:39:20.580,spk_4,"My Lord, I think it's fair to say that very often in care proceedings, such is the volume of care proceedings and the pressure of work, that these decisions are often made very shortly before hearings. But I don't actually know, without taking instructions, how shortly before the directions hearing it was that the police evidence was received. But it may have been quite shortly. [Whispering]. Received on the Friday and hearings on Monday. Yes, I'm told all the police evidence was received by the local authority, which was about lever arch files, for a hearing on Monday, for directions hearing on Monday. So received on Friday for the hearing on Monday."
01:39:20.700,01:39:27.780,spk_2,"Perhaps the more interesting question is why, given how infinitely rare it is to call one of these children, why did you originally decide you"
01:39:27.780,01:39:54.670,spk_4,"would? My Lord, that, I have to say, is unusual decision. And it's not one, I confess, on which I have taken instructions. I can say My Lord, from personal experience in that particular area of the country, that one of the judges of first instance, who is now retired, was in the habit of calling children more often than is the norm, and that may have had something to do with it. What,"
01:39:54.670,01:39:55.290,spk_2,"in Hampshire?"
01:39:55.470,01:39:56.080,spk_4,"Yes."
01:39:58.030,01:40:02.680,spk_3,"And of course, Her Honour, Judge Marshall came from London, so she didn't know the local rules in Hampshire."
01:40:02.880,01:40:07.920,spk_4,"No, that's right. That's right. But"
01:40:07.930,01:40:09.120,spk_2,""
01:40:09.960,01:40:33.460,spk_4,"I am aware myself, bearing in mind that the -- certain of the cases have mentioned the rarity and unusualness of children being called, in Hampshire I think they were called a little more often than that, contrary to the established law, when they were in the 15 to16 year-old category."
01:40:34.250,01:40:36.420,spk_3,"But then there is a test bed --"
01:40:36.430,01:40:37.380,spk_4,"There is potentially a test bed, yes."
01:40:37.750,01:40:39.700,spk_3,"Research material there, which somebody should [inaudible] --"
01:40:40.520,01:40:44.610,spk_4,"Potentially, My Lady yes, but in the older age group, yes."
01:40:44.610,01:40:54.930,spk_6,"It's my fault, I think, but I'm not quite clear where you stand on the question of whether, on the current state of the law, there is a presumption that a child will not be called."
01:40:55.250,01:41:23.300,spk_4,"My Lord, we would say, although efforts are made to call it a guideline rather than a presumption, that is a distinction without a difference, and in effect, there is a presumption, and that if it were to be the case, currently, that one were to say there is no presumption, there is a level playing field. The first item to fall to be considered under the level playing field, would be current received wisdom from research is that it is potentially traumatic and harmful for children."
01:41:23.540,01:41:37.690,spk_6,"Well, if there is a presumption, should it be applied in a case where a child, unlike the child in this case, who says that she's willing to give evidence, where a child says, I want to give evidence, should the presumption be applied?"
01:41:38.290,01:41:41.900,spk_4,"My Lord, yes, this"
01:41:41.900,01:41:42.270,spk_3,"is --"
01:41:42.270,01:42:10.700,spk_4,"the essence of exercising parental responsibility for children, is that they do not always necessarily know what is in their best interests. A child may be highly motivated to give evidence, and have no real understanding, of the effect that that could have on the child. Obviously, it is something that will be taken into account, that very similar, similar to residence and contact proceedings. A child says, I want to live with my father, I want to live with my mother, you take that into account, but you don't make the decision based on it."
01:42:11.770,01:42:20.300,spk_2,"Is there a body of evidence which tells the views of children who haven't been able to give evidence and whose accusation has not therefore being accepted?"
01:42:21.410,01:42:35.400,spk_4,"Not that I'm aware of, and indeed, that would be a body of evidence that would be most interesting. And I wouldn't surprise me if there weren't of a body of teenagers in particular who felt quite strongly about the matter."
01:42:35.410,01:42:44.170,spk_6,"But should there not be a body of contemporaneous -- yes -- relevant evidence before a presumption is erected against any party?"
01:42:44.690,01:43:12.090,spk_4,"My Lord, the presumption that there is at the moment, is based on the evidence that we have at the moment. I would argue that before one changes that presumption, there should be a fresh body of evidence. The presumption is there already, and is based, [inaudible] say, on Pigott and"
01:43:12.100,01:43:13.020,spk_3,"the"
01:43:13.030,01:43:30.110,spk_4,"long experience of the wardship jurisdiction and subsequently the family jurisdiction as to -- on children, on how children function, the effect these matters have on children, the effects of being in care, of being in conflict with your"
01:43:30.110,01:43:31.030,spk_3,"family."
01:43:31.110,01:43:59.840,spk_4,"For example, the assumption which may not be based entirely on research, but it's certainly based on professional knowledge, that these things are far worse for a child who is unsupported by their family, which of course, is very often the case in care proceedings that a child who is not believed, and is isolated by the family, is a very, very vulnerable child, indeed."
01:44:02.450,01:44:11.730,spk_2,"Could you possibly help with your paragraph 10 on the last page? What are these -- what do you suggest are the adequate counterbalancing -- Oh, I'm sorry,"
01:44:12.840,01:44:13.080,spk_3,"is"
01:44:13.080,01:44:24.980,spk_2,"it really paragraph -- it's the concluding summary, sorry yes. Paragraph 10 of your concluding summary, on the last page, you say that there are current jurisprudence that shows adequate counterbalancing measures, what are of these?"
01:44:25.510,01:44:30.130,spk_4,"Well, My Lord, that was in reference to the points I made"
01:44:30.980,01:44:31.130,spk_3,"in"
01:44:31.130,01:44:39.760,spk_4,"my argument, when I was arguing, starting at paragraph 11 onwards, and particularly at paragraph"
01:44:39.760,01:44:40.960,spk_3,"18,"
01:44:41.020,01:45:19.920,spk_4,"that despite the fact that the current jurisprudence on this subject didn't mention, as far as I can ascertain, either Article 6 or Article 8 that, in fact, the cases pursued a course of recognising the importance of a fair trial, recognising the difficulties being caused by the fact that this evidence was not tested in cross-examination, and then directing themselves as to how to deal with this issue, all of which could well"
01:45:19.920,01:45:20.860,spk_3,"be"
01:45:20.900,01:45:24.560,spk_4,"seen as counterbalancing measures, as required."
01:45:24.570,01:45:31.900,spk_2,"So I'm sorry, the counterbalancing measure is the self-direction that you pay less regard to the evidence than had it been cross-examined to?"
01:45:31.900,01:46:19.110,spk_4,"The problems of considering untested evidence, it's not so much that you necessarily pay less regard for it, but, I think as one judge put it, you consider it very anxiously. And certainly the -- in particular, in consideration of the other evidence there is, that either supports or detracts from it, which is part of the problem considering untested evidence. And yes, and part of that is the weakening of the evidence for the initiators of the proceedings, and the strength or otherwise of other evidence and implications of getting it wrong. The cases, which are basically R v B County Council Ex parte P, Re P (Witness Summons),"
01:46:19.120,01:46:20.430,spk_3,"LM and"
01:46:20.560,01:46:22.810,spk_4,"Re W Care Orders Sexual"
01:46:22.810,01:46:23.970,spk_5,"Abuse,"
01:46:23.980,01:47:15.000,spk_4,"have all in their various ways addressed some or all of those issues, and that in so far -- this is really a point that addresses the Article 6 point, that if you are going to, if you are going to move away from a constituent right in Article 6 in relation to a fair trial, such as the issue of being able to cross-examine a witness or confront your accuser, you have to have counterbalancing measures in place to ensure that the trial is otherwise overall fair. And that is my argument, My Lord, that despite the lack of mention of Article 6 and Article 8, that this process has in fact been followed by the courts,"
01:47:16.640,01:47:16.780,spk_2,"that"
01:47:16.780,01:47:34.160,spk_4,"they follow a process of -- an understanding of the basic principles of natural justice and the necessity for a fair trial, as indeed, is pointed out at some length in Horncastle, and are very alive to the difficulties that that causes. [Pause]."
01:47:48.970,01:48:05.020,spk_2,"I'm sorry to be tiresome, but I mean, you mentioned Horncastle, but I mean, the one thing we can be sure about is that if this was a Horncastle case, a criminal case, this child would be called. I mean this wouldn't be a case for having admitting hearsay without the child being called."
01:48:05.090,01:48:40.910,spk_4,"No, that's right. But the essential argument is that care proceedings are designed to protect children, and their underlying principle is the welfare of the child, and the child's interests are paramount. And to contemplate, in the course of that, pursuing a course that is likely to traumatise or re-traumatise, an abused child, is contrary to the essence of the proceedings. And"
01:48:40.910,01:48:42.120,spk_2,"therefore the"
01:48:42.120,01:49:45.160,spk_4,"courts have found, in various ways, ways of avoiding to do that, while still attempting to achieve a fair trial. My Lord, then, the current situation on the -- is that the ABE interview and the ABE evidence route is the best that has been devised, in the absence of any further research suggesting that something else would be better. But My Lord, it's no part of the local authority's case to say that this is satisfactory in every way, because it cannot be satisfactory in every way, from the point of view of the person on the receiving end of an allegation. Obviously, they would feel that the trial was fairer, and indeed, it would be fairer, if they were able to cross-examine. But from the point of view of the family jurisdiction, looking at the welfare of the child, that is a price too high to pay in terms of what is in the best interests of the child. [Pause]."
01:49:51.140,01:49:57.780,spk_2,"And if the proceedings fail because the child wasn't [inaudible], she too would think it would have been fairer to have given her a chance to --"
01:50:01.530,01:50:10.900,spk_3,"This is a very anxious question, isn't it? It is. Because on the one hand, Mr Geekie says, and"
01:50:12.880,01:50:13.440,spk_5,"strikes"
01:50:13.440,01:50:59.870,spk_3,"me as being, possibly more likely to be correct, that although the judge will warn herself time and again, you know, of what she might do about the fact that it's hearsay, there is actually a hidden bias towards accepting it, for some of the very reasons that My Lord is putting forward, so that it may be more likely that -- the problem that he's putting forward is probably not very common, but of course, that would be part of the complaint that Mr Geekie is making. Am I making myself [inaudible]? There aren't a lot of judges who throw out a care case on the basis that they didn't hear direct evidence from the child."
01:50:59.880,01:51:13.680,spk_4,"No, My Lady, but there are judges who threw out a care case on the basis that the ABE interview does not disclose, or satisfactorily disclose, in the light of all the other evidence, the explanation of"
01:51:13.690,01:51:15.460,spk_2,"the -- you're whispering again."
01:51:15.460,01:51:53.800,spk_4,"Sorry, I beg your pardon, My Lord, there are judges who will throw out care cases on the basis that the ABE evidence does not satisfactorily disclose, in the light of the other evidence and the evidence of the alleged perpetrator, abuse. That certainly happens, that sometimes ABE interviews, what is described is somewhat inchoate or is capable of an alternative explanation, or other evidence discloses the child may well have a motive. So it doesn't -- the ABE interview doesn't inevitably result in a finding."
01:51:54.940,01:51:57.220,spk_3,"No, of course not."
01:51:57.920,01:52:27.280,spk_4,"And indeed, of course, I suppose one could equally argue that in criminal proceedings, that a determined child who, for whatever reasons, proposed to stick by allegations that were false, is unlikely, perhaps with the softer kind of cross-examination style used for children, to change her evidence, there will be a miscarriage of justice in the criminal courts equally well, or equally badly, perhaps if I can put it that way, My Lord."
01:52:29.010,01:52:41.570,spk_2,"And what happens in the case if father, or step father says, Well, actually, you know, the child did have a motive for lying, and it's this. I mean, does he have to disclose his hand in advance of the care proceedings? Yes,"
01:52:41.570,01:52:51.340,spk_4,"he does. He does have. My Lord, yes, in care proceedings there is a positive obligation on all parties to provide their evidence. Yeah, I see."
01:52:52.840,01:52:53.350,spk_2,"The parents"
01:52:53.350,01:52:58.150,spk_4,"cannot sit back and say to the local authority, Will you prove it? And --"
01:52:58.220,01:53:05.710,spk_2,"but if in this sort of situation [inaudible] child had a motive, somebody then go and put the motive to the child and say, What do you say about this? How does that work?"
01:53:07.770,01:53:09.090,spk_4,"That isn't usually done, My Lord."
01:53:09.340,01:53:10.440,spk_2,"It isn't?"
01:53:10.450,01:53:10.920,spk_4,"No."
01:53:11.370,01:53:18.680,spk_0,"Was Charlotte's full sister mentioned at all in the ABE interview, can you remember?"
01:53:19.390,01:53:23.680,spk_4,"She was mentioned by Charlotte. But bear with me one moment. [Whispering]"
01:53:25.210,01:53:25.370,spk_1,""
01:53:25.370,01:53:26.070,spk_4,""
01:53:28.550,01:53:29.200,spk_2,""
01:53:30.670,01:53:33.450,spk_3,""
01:53:33.850,01:54:49.040,spk_4,"That's right, yes. In this particular case, because there had been a previous allegation that had been retracted, and because the child gave an explanation as to that previous allegation and its retraction, which involved the explanation about being jealous of the other sister, then, yes, it was mentioned in that context, but it would not normally be the case, no, that if a child gives an ABE interview and the father is subsequently interviewed, or subsequently files a statement saying, Well, this is the explanation for it, that isn't usually taken back and shown to the child, who then gives a further interview. I think one of the suggestions in Pigott that wasn't implemented, was that that very process should happen even in criminal proceedings, in the sense that you do an ABE interview of the child, you show it to the defence, he says what he has to say about it, and his council then questions the child in a subsequent interview, that that whole process taking place in the first few weeks, and the child's job is then finished, and you then have both examination and cross-examination. But that has never been implemented."
01:54:50.380,01:55:04.930,spk_3,"There actually is provision for it, also, in the more recent legislation, yes. But as I understand it, that has -- certainly what we were told in Camberwell, was that has that has not yet been implemented. It's"
01:55:04.930,01:55:05.610,spk_4,"not going to be."
01:55:06.440,01:55:07.530,spk_3,"Yes."
01:55:07.540,01:55:20.830,spk_4,"My Lady, and part of the tension there might be, the wish in criminal proceedings, on the part of defendants in criminal proceedings to keep their powder"
01:55:20.830,01:55:22.170,spk_5,"dry, as"
01:55:22.170,01:55:29.660,spk_4,"opposed to care proceedings, where you want everybody to say what they've got to say right at the beginning."
01:55:29.910,01:55:58.720,spk_5,"Just on your general basis for approaching these cases in the lights of the Pigott approach and a general belief that there is a real risk of traumatization, that isn't actually really consistent with, for example, LM, itself at tab 4 in paragraph 51, there is in fact, a recognition"
01:55:58.720,01:55:59.290,spk_2,"by"
01:56:03.010,01:56:05.970,spk_5,"Lord -- Dame Janet Smith,"
01:56:08.110,01:56:08.570,spk_2,"that there is a"
01:56:08.580,01:56:11.480,spk_5,"danger of psychological harm, but she says,"
01:56:11.740,01:56:12.930,spk_2,"In the absence of evidence,"
01:56:12.930,01:56:34.930,spk_5,"I cannot assess the gravity of that danger, I can only place limited reliance on the judge's impression of L, he seemed to regard her as fairly robust, but in my view, that is not a satisfactory basis on which to conclude that there will be no psychological harm. She seemed to think it's all a matter of the particular case, didn't she there?"
01:56:35.140,01:56:36.800,spk_4,"My Lord --"
01:56:36.800,01:56:39.450,spk_5,"In other words, it's not a sort of a general conclusive assumption."
01:56:40.270,01:56:50.130,spk_4,"My Lord, the presumption is that it is normally not done, based on the Pigott approach, which is that it is likely"
01:56:50.140,01:56:51.020,spk_2,"to,"
01:56:51.260,01:57:34.040,spk_4,"that does not that does not enable, as is the way of scientific statistics, it doesn't enable you to point at any one child and say, That child will definitely be harmed or that child will definitely not be harmed. Where it is argued that there is a particular justification, there is then another another argument to be had, about the extent to which the presumption is rebuttable, in the case of this particular child. And My Lord, that is what is going on, we would say, here, the judge does say there is a danger it will cause psychological harm, in the absence of evidence, I cannot assess the gravity of that danger. [Inaudible] Whatever"
01:57:34.040,01:57:36.950,spk_5,"it was, it was overridden on the circumstances of that case. Of that"
01:57:36.950,01:59:05.830,spk_4,"particular case, yes, where there was a huge lacuna in the evidence, where the mother had retracted and said, Well, I put the child up to it and nobody knew -- they got to the -- virtually to door, of the Court with nobody knowing what the child said. It would certainly have been the case for seeking another ABE interview had there been time, but there is another matter which, My Lords who have not practiced in the family jurisdiction may not be aware of, that although they are called joint investigations, when the police and social services investigate jointly, which results in an ABE interview, in practice, it is very much the police who call the shots. And if the police decide, that for whatever reason, that they're not going to do an ABE interview, the local authority can be left hanging. This particular case is unusual, that it was put to the judge that the local authority are also ABE trained, and that if the judge were to express herself in certain terms, the police might be persuaded to lend the local authority their facilities, because it's the police who have the facilities for conducting the interviews. And in that particular case, the judge did so express herself and the police did, but that is unusual, and had the police said no, the local authority are not usually in a position to conduct ABE interviews by themselves. It would be"
01:59:05.830,01:59:09.750,spk_0,"a convenient moment, or is there something else you want to us --"
01:59:12.230,01:59:21.480,spk_4,"Sorry, My Lord, I'm sorry, I was just digressing there, but looking again at the point raised, My Lord"
01:59:21.480,01:59:22.200,spk_3,"about this"
01:59:22.210,01:59:29.540,spk_4,"particular judge, in this particular case, trying to see if there was a justification for departing from the"
01:59:29.540,01:59:30.730,spk_2,"norm, if I can"
01:59:30.730,01:59:33.030,spk_4,"also refer you, My Lord, to paragraph 41"
01:59:37.020,01:59:37.590,spk_2,"where it's"
01:59:37.590,02:00:04.450,spk_4,"said in terms, In my judgement, there is no reason to say the law has moved on since that guidance was given, that guidance was based upon the results of research into the ill effect on children giving evidence in cases of abuse. There was no evidence before us and none before the judge to suggest that this research has been invalidated. The mere fact that the child does not now have to stand in the witness box is an advance, but it does not seem to me to go to the heart of the problem, which is the psychological effect on the child of having to talk about the abuse and having the account challenged as"
02:00:04.460,02:00:14.980,spk_2,"untrue. [Inaudible]. Thank"
02:00:14.980,02:00:15.530,spk_0,"you very much."
02:00:16.670,02:00:17.330,spk_2,"My Lord, can"
02:00:17.330,02:00:23.750,spk_1,"I offer make good the absence of the copies of the ABE? We can get some copied off for tomorrow, and if the Court wants one copy"
02:00:23.750,02:00:24.990,spk_2,"overnight, we have two here."
02:00:24.990,02:00:26.560,spk_1,"Well,"
02:00:26.570,02:00:58.640,spk_0,"I think if there's one available, we will happily take that tonight, thank you. I was going to say more generally that if any party wants to put in more material tomorrow, in view of the urgency of this case, it would be very helpful if we could get it before Court rather than it being handed over in Court, I mean, even if it's only half an hour before, that's better than nothing, and an hour is -- would be even better. Very good. And we'll resume at 10:30 in the morning."
02:01:02.290,02:01:03.870,spk_2,""
start,end,speaker,text
00:00:30.630,00:00:31.100,spk_0,"[Inaudible]."
00:00:33.220,00:00:33.840,spk_1,""
00:00:33.840,00:00:34.920,spk_0,""
00:00:34.930,00:00:35.600,spk_2,"W (Children)."
00:00:38.660,00:00:43.450,spk_3,"Ms Davis. My Lords, My Lords,"
00:00:44.370,00:00:44.460,spk_0,"I"
00:00:44.460,00:01:11.460,spk_3,"believe I have covered a majority of substantive areas. I've, my learned junior and I endeavoured overnight to put together in a written form our thoughts on how a judge at first instance should approach this matter, the guidance that they should be given, and that is the typed list that appears before"
00:01:11.460,00:01:11.890,spk_0,"you."
00:01:14.690,00:01:17.450,spk_1,"Thank you very much. Do you want to take us through it"
00:01:17.460,00:03:25.260,spk_3,"now? Yes. My Lord, the first thing I can say, on looking at it again with fresh eyes this morning, it occurs to us that exceptional circumstances and where there are specific justification, is somewhat tautologous, and to say it is undesirable and should only be required in exceptional circumstances, would be sufficient. The thinking behind the idea that it is undesirable for child to give evidence, again goes back to the point I was making yesterday, that that is the current evidence base, that it is likely to be traumatic or damaging. And that although one can say that there are perhaps a percentage of children who are not so traumatised or damaged, the current evidence base is not sufficient to counter at the findings of Pigott. And that it is also extremely difficult for a judge in those circumstances to be able to say, looking at a particular child, Well, you are one of those that is likely to be damaged, or you are one of those who is not likely to be damaged. Then the issue of the Article 6 rights, which are obviously important in relation, to the alleged abuser in particular. Of course, all parties have Article 6 rights, but it is his Article 6 rights that are the particular concern in this situation, and then in deciding whether there are exceptional circumstances, a list of all the matters that the judge must bear in mind, if those factors applied to that particular case. And one in particular, of course, is the age and maturity of the child, that where a child is approaching 17, or 17 and approaching 18, the view a judge at first instance takes, as to the extent of the undesirability, and whether or not that is an exceptional circumstance, may"
00:03:25.260,00:03:26.070,spk_1,"be very different,"
00:03:26.080,00:05:21.270,spk_3,"as a view a judge would take if the child was, say, 12, but it is very difficult to put specific age groups on this is, as of course, children vary a great deal. And then the other issues, which have been highlighted as important in a variety of cases, and indeed, in in Pigott, the degree of harm suffered, the support the family has from family and other sources, which is a very important point in care proceedings, as I alluded to yesterday, and the significance of the child's evidence to the case, and the strength of the other evidence, which, of course, is a matter that has arisen in some of the criminal cases that have gone to the European Court of Human Rights, as to whether there is such a test as the sole and decisive evidence test, which is a matter of issue in Horncastle, the case Horncastle, and the strength of the other evidence. So again, that is something that a court would have to bear in mind, as to whether it is simply the word of the child against an adult or what other evidence there is. And that, of course, also -- that consideration is perhaps allied with the last consideration, which is number 11, which is the ability of the alleged abuser to challenge allegations, so that if there is other evidence that is relevant, that can be tested. Passage of time since the child made allegations. That is important, bearing in mind the matter that was being dealt with yesterday. And, My Lords, we've put before the Court this morning the case that was mentioned yesterday of Re D Child Abuse Interviews, which deals with"
00:05:21.280,00:05:21.790,spk_2,"the --"
00:05:21.800,00:05:48.240,spk_3,"mentions the philosophy, as it were, and the understanding -- evidence based understanding of, and the reasons behind, the principles laid down in the memorandum -- the Cleveland Report Memorandum. My Lords, it was emailed, I'm so sorry. Yes, we"
00:05:48.240,00:05:55.720,spk_1,"have got it. It seems to be a classic example of just everything being done as wrong, as badly as it could have been."
00:05:56.100,00:05:59.110,spk_3,"Yes, yes. Repeat interviews."
00:06:00.400,00:06:15.080,spk_4,"Have you got a spare copy? Pardon? Have you got a spare copy? Oh, I'm so sorry My Lord. Have you got a spare? [Inaudible]. It's on my desk. [Inaudible]. Thank you very much."
00:06:18.470,00:06:19.240,spk_3,""
00:06:20.580,00:06:21.310,spk_4,""
00:06:25.380,00:06:25.670,spk_3,"Yes,"
00:06:25.670,00:06:26.870,spk_2,"a classic example"
00:06:26.870,00:06:27.970,spk_3,"of everything that's done wrong, but it"
00:06:27.970,00:06:29.260,spk_0,"was, in"
00:06:29.260,00:06:39.330,spk_3,"particular, it's at the bottom of page 17, and the beginning of"
00:06:39.340,00:06:40.290,spk_0,"page"
00:06:40.690,00:06:46.510,spk_3,"18, well the judge -- the Court"
00:06:47.030,00:06:47.940,spk_2,"We've got a computer printout. Oh."
00:06:49.650,00:06:50.300,spk_3,"Well,"
00:06:50.310,00:06:53.320,spk_1,"we've got some way you can track it if you -- We can track it, yes."
00:06:53.360,00:06:54.240,spk_2,"Internal page"
00:06:54.240,00:06:56.360,spk_3,"7? Yes, they come"
00:06:56.360,00:06:57.980,spk_0,"up very faded"
00:06:58.300,00:07:01.100,spk_3,"in between the paragraph's, you get these little faded page numbers,"
00:07:01.330,00:07:02.440,spk_2,"and they appear at"
00:07:02.450,00:07:05.400,spk_3,"what is in fact the top of each page."
00:07:05.410,00:07:06.340,spk_2,"But it's internal"
00:07:06.340,00:07:07.460,spk_3,"page 7 of this -- which print?"
00:07:10.210,00:07:10.840,spk_2,"Internal"
00:07:10.840,00:07:11.730,spk_3,"page 7 of this"
00:07:11.730,00:07:12.320,spk_1,"printout. Yes, yes, but which bit are you?"
00:07:13.360,00:07:14.280,spk_3,"Where"
00:07:14.280,00:07:14.890,spk_2,"the"
00:07:14.900,00:07:19.350,spk_3,"Court says, there are, however, some general observations, which I feel I ought to make."
00:07:20.170,00:07:21.210,spk_1,"Penultimate paragraph, yeah?"
00:07:21.220,00:07:22.570,spk_3,"The penultimate paragraph, yes. [Pause]."
00:07:39.550,00:07:41.710,spk_1,"And this is Lady Justice Butler's [inaudible]?"
00:07:41.710,00:07:43.000,spk_0,"Yes, yes,"
00:07:43.000,00:07:43.350,spk_3,"My Lord. [Pause]."
00:07:59.800,00:08:00.550,spk_0,"Yes. [Pause]."
00:08:12.400,00:08:13.230,spk_3,"My Lord,"
00:08:14.200,00:08:14.350,spk_0,""
00:08:14.350,00:08:17.140,spk_3,"I've lost my"
00:08:17.140,00:08:17.680,spk_0,"crib sheet."
00:08:18.720,00:08:19.740,spk_3,"Excuse me one moment, My"
00:08:19.760,00:08:20.900,spk_2,"Lord, I seem to have"
00:08:20.910,00:08:25.110,spk_3,"put my proposed guidance in amongst Re D. All right, here it is."
00:08:25.920,00:08:26.020,spk_0,"My"
00:08:26.020,00:08:56.160,spk_3,"Lords, of course, on that, it can no doubt be argued, that of course, the younger the child, the more those principles apply. But it is perhaps a matter of art rather than a matter of science at what point it is possible to say, that it is no longer the case that the more you question a child, the most likely you are to come up with the answers that you want"
00:08:56.160,00:08:57.240,spk_0,"to hear and the"
00:08:57.240,00:08:59.650,spk_3,"less reliable evidence is likely to be."
00:08:59.660,00:09:19.880,spk_4,"Just as a matter of interest, it may be that you can't give the answer, and certainly my experience is very stale, and things may have changed, but in criminal cases are courts, juries in particular, given this sort of information?"
00:09:19.910,00:09:21.830,spk_3,"No. I"
00:09:21.840,00:09:36.190,spk_4,"know that's my -- no it's not. And yet that is exactly the situation where the child is being questioned, where it's very, it's rather paradoxical that in the situation where the child isn't being questioned, all this information is behind the reasoning."
00:09:36.200,00:10:05.640,spk_3,"Yes, and of course, one can only, one can imagine, in the criminal courts at a six or seven year-old child with a grown man, and it doesn't have to be, doesn't have to be scary, it doesn't have to be a big man in a wig and gown, and it doesn't have to be in a courtroom, but simply saying with firmness, Well, this is what really happened, isn't it? Repeating it several times, may well elicit the response, Yes, because that is the way sometimes children can be in that situation."
00:10:05.660,00:10:07.350,spk_4,"That happens over a video link, of course."
00:10:07.360,00:10:22.170,spk_3,"It does, but there's a huge lack of cross-fertilisation of understanding and ideas between the criminal jurisdiction and the care jurisdiction, in this area as well as in many others, My Lord,"
00:10:22.170,00:10:22.770,spk_0,"which,"
00:10:23.800,00:10:33.090,spk_3,"presumably is a matter of concern to those in the family field and concern for different reasons for those in the criminal field. But, yes,"
00:10:33.090,00:10:44.180,spk_1,"is there a criminal specialist or some judge who might even have some influence in the criminal jurisdiction going beyond this family Justice Council Working Party chaired by Lord Justice Thorpe?"
00:10:44.370,00:10:45.570,spk_3,"Who,"
00:10:45.580,00:10:46.180,spk_1,"do we know?"
00:10:48.250,00:10:50.150,spk_3,"No, we don't. We only know that they are going ask people [inaudible]."
00:10:50.150,00:10:52.810,spk_1,"It might have been a good idea to have a senior presiding judge or something."
00:10:53.300,00:11:21.620,spk_3,"Yes, yes. And because there are those of us who see both jurisdictions on occasions, there are lines of questioning pursued in criminal proceedings, that are perfectly legitimate in criminal proceedings, that would seem quite bizarre to pursue in family proceedings, because they're coming -- their understanding of how children work, and what makes children tick, and how children talk about these things is"
00:11:21.620,00:11:22.360,spk_0,"very different."
00:11:22.470,00:11:31.450,spk_3,"So to have both, I would agree, on the Family Justice Council, to have both disciplines would seem to me to be very important, yes. But"
00:11:31.450,00:11:38.490,spk_0,"with the object of educating the criminal justice system rather than the object of educating the family justice system. Yes, I'm"
00:11:38.490,00:11:40.300,spk_3,"sure the criminal justice people would see it the other way around, but"
00:11:40.310,00:11:41.470,spk_0,"exactly."
00:11:42.200,00:11:43.360,spk_1,"It might give some advantage to both."
00:11:43.370,00:11:43.910,spk_0,"Yes,"
00:11:44.240,00:13:25.680,spk_3,"indeed, passage of time since a child made allegations, again, is something that, we would say, is probably very important with small children, and possibly by the time they're getting towards adulthood, becomes less important. But children may well have, again, this is something that needs an evidence base, a different perception of the importance of trying to give an answer that an adult wants to hear, as opposed to saying, Well, it's so long ago, I don't remember, again, these are difficult concepts. Likelihood of any further delay, of course, delay being inimicable to children. The likelihood of children having to give evidence in other proceedings, a matter that's already been raised in many cases, given the evidence base that it's likely to be traumatic and damaging to have to repeat that experience. Evidence of harm to a child from giving evidence, including expert evidence, thought appropriate, the point at which a judge, at the first instance, is concerned that this may well be an exceptional circumstance, and is considering whether or not there is any justification for the child giving evidence in the proceedings. The judge of first instance, of course, then has to make a decision on all these issues, on evidence of harm. And that is a very difficult one, and it's a very difficult decision for a judge. But it is one that would have to be"
00:13:25.680,00:13:26.780,spk_0,"tackled,"
00:13:26.870,00:13:50.460,spk_3,"and it may well be that in addition to the thoughts of the parents, the guardian and the local authority, and particularly if there are treating psychologists and psychiatrists involved, or indeed an independent expert, it may be appropriate to seek their advice on this matter, and the child's wishes and feelings, of course. You"
00:13:50.460,00:13:51.720,spk_1,"need to switch your thing back"
00:13:51.720,00:14:07.260,spk_3,"on. Oh, I'm sorry, I keep leaning on the button. Yes, and of course, the child's wishes and feelings, abuse of the others and the ability of the alleged abuser to challenge allegations, which I've already referred to in relation to number 4."
00:14:09.240,00:14:17.010,spk_1,"Just going back to the opening words of this paper, the starting point is that it's undesirable, I mean, I just wonder about that, that seems to"
00:14:18.790,00:14:19.310,spk_3,"beg"
00:14:19.310,00:14:25.360,spk_1,"every question. The starting point is that it's likely to be damaging for a child, [inaudible],"
00:14:25.360,00:14:26.680,spk_0,"I"
00:14:26.680,00:14:32.190,spk_1,"mean, that's wide, it's likely to be damaging. If you say it's undesirable, then you've answered them."
00:14:34.250,00:14:34.680,spk_3,"Yes."
00:14:34.680,00:14:37.060,spk_1,"You said that it is undesirable, end of story."
00:14:37.070,00:14:38.180,spk_3,"Yes, it may"
00:14:38.180,00:14:42.480,spk_1,"not be, it may be highly desirable because that's where the balance ultimately falls."
00:14:43.270,00:14:48.750,spk_3,"So to have a rather a presumption on the outcome, a presumption on the underlying reasons,"
00:14:48.760,00:14:49.390,spk_1,"which"
00:14:49.390,00:14:54.430,spk_3,"is that the starting point is that it is likely"
00:14:54.430,00:14:58.420,spk_1,"to be damaging and traumatic for a child to give evidence [inaudible]."
00:14:59.010,00:14:59.750,spk_3,"Yes, My Lord, yes."
00:15:00.670,00:15:14.450,spk_1,"And which of the next words are you suggesting [inaudible] deleted, it should only be required where there is specific justification, well, I think I might accept that, but I mean exceptional circumstances, we've all been around this course so"
00:15:14.450,00:15:14.870,spk_0,"often -- yes --"
00:15:15.460,00:15:16.550,spk_1,"in other -- yes."
00:15:18.000,00:15:26.850,spk_3,"Yes, My Lord, giving it thought, I would propose the specific justification rather than exceptional circumstances."
00:15:26.850,00:15:28.470,spk_1,"Well, I'm sure you'll be right to do so."
00:15:28.470,00:15:47.700,spk_3,"Yeah. Because exceptional circumstances, it's, in some respects, nothing is really exceptional in these cases. The specific justification is there needs to be a very good and particular reason as to why the general rule is not"
00:15:47.700,00:15:48.510,spk_1,"being followed"
00:15:48.520,00:15:49.880,spk_3,"in a particular case and"
00:15:49.880,00:15:51.230,spk_1,"specific justification,"
00:15:51.290,00:15:53.240,spk_3,"My Lord, I would say, would seem to cover that."
00:15:59.440,00:16:25.130,spk_4,"I'm not sure again, [inaudible], when it's right to talk about the general rule, because that starts the whole exercise with an assumption that it's out, unless very rarely it's in, and -- Yes -- the accepted mantra is that it's permissible to say that that is the result of applying the test, but that shouldn't be part of the test, one sees why"
00:16:25.750,00:16:26.460,spk_3,"people"
00:16:26.460,00:16:29.630,spk_4,"feel that it's prejudged the answer."
00:16:30.340,00:16:35.380,spk_3,"Yes, My Lord, and referring back to a matter that I raised yesterday"
00:16:35.380,00:16:36.370,spk_0,"that, I"
00:16:36.370,00:16:42.170,spk_3,"think it was in the case of LM, that it was said, well, it's not a presumption, it's a guideline."
00:16:44.210,00:16:49.250,spk_4,"I think it was said it was not a principle, it's a guideline, actually, which probably needs the same."
00:16:49.920,00:17:03.660,spk_3,"It is a guideline. It is the current view that, for a child to give evidence is likely to be traumatic and damaging to the child. So"
00:17:03.660,00:17:15.110,spk_1,"in the second short paragraph, you strike out the words -- Exceptional circumstances -- yeah, whether -- you put in, Whether there is specific justification -- [pause]."
00:17:24.069,00:17:24.240,spk_0,"In"
00:17:24.240,00:17:28.830,spk_1,"[inaudible] a third paragraph, whether there is specific justification."
00:17:29.860,00:18:23.430,spk_3,"Yes. [Pause]. And of course, the last two paragraph's are, well, the first of the last two paragraph's is practical, of course which presents a difficulty in the current arrangements that are made, because of course, at the moment, the only way in a combined court centre where a child can give evidence by live link, is to make arrangements with the criminal courts to effectively borrow their equipment unless they have it already, and that is simply not possible in some of the smaller courts."
00:18:27.530,00:18:27.830,spk_0,"And"
00:18:27.830,00:18:51.060,spk_3,"then the cautionary approach that the judge at first instance has to take where the evidence has not been tested by cross-examination. But of course, My Lord, I dealt at some length, yesterday with the issue of why testing a cross-examination where there's been an ABE interview is not necessarily, in any event, the best"
00:18:51.070,00:18:51.610,spk_1,"way to"
00:18:51.610,00:18:53.980,spk_3,"get the best evidence from a"
00:18:53.980,00:18:54.640,spk_0,"child."
00:18:56.250,00:18:56.910,spk_3,"My Lady --"
00:18:56.980,00:19:07.260,spk_1,"I'm just -- I'm sorry, on the last time. I mean, would you quibble with, In those circumstances necessarily attach lesser way to the child's evidence?"
00:19:08.080,00:19:16.160,spk_3,"[Pause] My Lord, no."
00:19:18.270,00:19:32.270,spk_0,"The alternative point of view to that is, that if we accept what is said, which comes straight out of Cleveland, as"
00:19:32.270,00:19:33.240,spk_3,"to the"
00:19:33.240,00:20:12.290,spk_0,"factors tending to support the reliability of a child's evidence, in other words, not putting leading questions, questioning the child much closer to the event than many months later, or whatever, all of those sorts of things, it could be said that more weight should be attached to that evidence than will be attached to evidence, especially evidence in chief, given given much later. And the problem with cross-examination is that it does put leading"
00:20:12.290,00:20:13.520,spk_3,"questions -- it does, indeed --"
00:20:13.530,00:20:31.110,spk_0,"to a child, in circumstances where the child may be very tempted to say, Yes, even though that is not necessarily correct. And of course, it is going to vary an awful lot with the age and maturity of the child, there's no doubt about that, but those are reasons for saying"
00:20:31.460,00:20:31.940,spk_3,"the"
00:20:31.940,00:20:41.180,spk_0,"fact that those questions in a leading form have not been put to the child now, doesn't necessarily affect the reliability of the child's evidence."
00:20:42.150,00:20:43.060,spk_3,"No, the reliability -- I think that's"
00:20:43.060,00:20:46.440,spk_0,"what you're trying to argue, isn't it? Yes. I'm not saying I agree with you, but I'm just --"
00:20:48.830,00:22:01.150,spk_3,"No. But, the reliability of a child's evidence, really, falls to be considered in different ways, other than via cross-examination, in that one is -- would be considering the circumstances in which the allegation was made, the possibilities for the child having misunderstood, having been put up to it, the degree of vagueness in the answers it gives, the quality of the questioning in the ABE interview, which is not always of the best and sometimes experts are asked to look at that, the reasons a child may or may not have for making allegations that are not true, and also, of course, any subsequent disclosures that the child may have made spontaneously, which does happen in a number of proceedings, that are usually recorded by professionals in note form, and then fall to be considered. So there is a lot of consideration, of the credibility or otherwise, of what the child is saying, aside from"
00:22:01.160,00:22:02.030,spk_0,"cross-examining"
00:22:02.030,00:22:07.670,spk_3,"the child and saying to the child, Well, this isn't true, is it? Or however the child is cross-examined."
00:22:07.670,00:22:09.390,spk_2,"So it doesn't become, simply"
00:22:09.390,00:22:45.690,spk_3,"because the child is not cross-examined, it doesn't become the case, well, you've got the interview, it says this happened, and you have to believe the child, and that's it. It doesn't end the case simply because the child isn't cross-examined. There's still a great deal to be considered and assessed by a judge at first instance. So in attaching appropriate weight, I suppose what I'm trying to say is, one wouldn't attach less weight to a child's evidence just because the child hasn't been cross-examined. But there are many, many reasons why one might attach less weight to a child's evidence."
00:22:46.330,00:22:56.940,spk_1,"Well, I'm sorry, I mean, I recognise that cross-examination, you know, may take the child astray, one would hope a Family Division judge"
00:22:56.940,00:22:58.120,spk_3,"would be"
00:22:58.120,00:23:11.900,spk_1,"able to see through that, and not just because the child, maybe has changed in the face of cross-examination doesn't necessarily mean that the cross-examined answers are necessarily any more, or, as it happens, the other ones -- but it's"
00:23:11.900,00:23:12.730,spk_0,"just"
00:23:12.740,00:23:29.350,spk_1,"completely untested, I just -- I come from a tradition where I think if you said, frankly, it doesn't matter that this hasn't been cross-examined to, it carries exactly the same weight as if it had, I find that difficult."
00:23:30.100,00:23:40.280,spk_3,"My Lord, I think what I was going on to say, is that this would -- it's not right to say boldly, that because"
00:23:40.290,00:23:41.450,spk_0,"because it's untested"
00:23:41.450,00:24:17.920,spk_3,"doesn't matter, that is something again, that varies a great deal with the child's age, that it might well be, it's easy to say on the peripheries that it's much easier to say in relation to child of 4, for example, that there are huge dangers in cross-examination and testing by cross-examination is really not appropriate, would be a very different consideration, perhaps with a child of 15 or certainly 16 or 17, and at 17, one might well expect the child to be giving evidence in any event. It becomes much more a matter of judgement for the individual judge at first instance, when you're dealing with 11 12 year olds. Yeah but I think we have -- that's the problem"
00:24:17.920,00:24:20.320,spk_1,"-- discussed this point at some length, now."
00:24:20.500,00:24:38.620,spk_3,"Yes, yes. So the judge would have to bear in mind that, say, a 12 year old's weight wouldn't -- evidence hasn't been tested, but how appropriate would cross-examination of a 12 year old be, in any event? And is this a particularly bright 12 year old, or -- but, of course, there are other matters other than intelligence."
00:24:38.940,00:25:42.320,spk_4,"I wonder whether there isn't a more fundamental conception of justice at the root of the principle that if an accused hasn't had the chance to address his case directly to the accuser, then you would give less weight to the accuser's statements. Because I think, one is, as a result of this exercise, drawing certain conclusions about the rights of the accused, if I can use that word, and it is an elementary expectation of justice that you will have the chance, not merely to have your say, but actually to put have your point of view put, even if you don't put it directly to the other side, I don't say that it's in a sort of face to face and frowning brow to brow Shakespearean fashion, but it's in some form, and"
00:25:43.230,00:25:43.540,spk_3,"so"
00:25:43.540,00:25:58.290,spk_4,"I just wonder whether, irrespective of whether you can say, Well the psychologists tell us that children are very reliable when they speak in this natural, immediate way, which I fully understand, whether there isn't something more fundamental, actually, which precludes us giving it quite the same force."
00:25:58.300,00:26:02.200,spk_3,"Yes, yes."
00:26:02.490,00:26:02.760,spk_0,"Well, My Lord"
00:26:02.770,00:26:45.130,spk_3,"I entirely see the force of that argument, that it's where the person accused has an explanation for events, and is then in a situation where he cannot, and nobody else is allowed to say to the child, he says, Well, this is what happened, what have you got to say about it? Yes, that is very unsatisfactory. Of course, the original idea of Pigott was that the child would be the you would do the ABE interview, and then within a very short period of time, the defendant's case would then be put to the child in a second short interview, not going to court and all the rest of it, but the defendant having said what his response was [inaudible] what say and --"
00:26:45.200,00:26:46.440,spk_4,""
00:26:46.440,00:26:49.000,spk_0,"Well, there's no reason in principle why that shouldn't happen in family"
00:26:49.010,00:26:50.500,spk_3,"proceedings. No."
00:26:50.870,00:26:52.270,spk_0,"The reasons"
00:26:52.270,00:27:10.870,spk_3,"why it can't, why it doesn't happen and can't happen, of course, are entirely practical, which are that it can take many months to extract the evidence from the police, and it can take equally as long, if not longer, to extract a version of events from the person against whom the allegation is made."
00:27:11.160,00:27:14.130,spk_0,"Why does it take so long to extract the video from the police?"
00:27:14.900,00:27:22.740,spk_3,"It doesn't it's not necessarily the video. If the police are still undertaking investigations, they're loathe to give all police disclosure."
00:27:23.140,00:27:24.250,spk_0,"Well, that I understand, but --"
00:27:24.260,00:27:25.730,spk_3,"Yes, and if they're not --"
00:27:25.730,00:27:27.740,spk_0,"My experience was you got the video straight away."
00:27:28.060,00:27:36.860,spk_3,"Well, very often you get the video quite soon, yes, if the police undertake a video. Of course, the problem then arises in all those cases where the police for whatever reason decide [inaudible]."
00:27:36.860,00:27:38.990,spk_0,"Well, and sometimes there are very good reasons for not doing that."
00:27:39.000,00:28:27.290,spk_3,"But in practical terms, it can take a series of directions and a series of increasingly vehement orders to extract disclosure from the police, up to and including orders requiring the Chief Constable to attend personally, to explain the non-arrival of certain documents. This is a not uncommon experience in the on the circuit. And then, of course, the parents are very often in a very difficult position, because they will also have criminal lawyers giving them very different advice. And although the jurisprudence is quite clear on this, that that is irrelevant to care proceedings, and there is an obligation to put your story, it's still, where you have people of limited, perhaps limited understanding and education, that is very difficult situation to be in."
00:28:28.010,00:28:28.260,spk_0,"So"
00:28:28.260,00:28:49.430,spk_3,"My Lady, yes, in an ideal world, yes, within a matter of, say, two or three weeks of the ABE interview, somebody could say to the child, Well so and so says this is what really happened, what do you have to say about that? In an ideal world, but they haven't even managed to achieve that in criminal proceedings."
00:28:49.640,00:29:11.960,spk_0,"Well, no. My point to you is, there are reasons in criminal proceedings why they can't achieve it, because people are entitled to keep their powder dry, to a certain extent. That doesn't apply in care proceedings, they're not entitled to keep their powder dry, they're compellable witnesses, as to what happened, and therefore subject"
00:29:11.970,00:29:12.580,spk_3,"to"
00:29:13.100,00:29:16.890,spk_0,"the availability of the facilities, there is really no reason at"
00:29:16.890,00:29:18.690,spk_3,"all why"
00:29:18.700,00:29:26.850,spk_0,"a series of further questions giving the alternative account of events, can't be put to the"
00:29:26.850,00:29:28.070,spk_3,"child"
00:29:28.620,00:29:32.080,spk_0,"in the same sort of surroundings to which the child is used to. Yes."
00:29:32.200,00:29:33.390,spk_3,"Within a short period of time --"
00:29:33.390,00:29:37.680,spk_0,"within a comparatively short period of time while everything is still fresh in everybody's mind."
00:29:37.690,00:29:39.200,spk_3,"Yes, and then that can simply be"
00:29:39.200,00:29:40.240,spk_0,"recorded. Yes."
00:29:40.290,00:29:49.580,spk_3,"And then everybody can see it. In an ideal world, My Lady, yes, absolutely, that would"
00:29:50.360,00:29:50.710,spk_0,"answer"
00:29:50.710,00:30:14.950,spk_3,"the situation as to the obvious lacuna, when there is an explanation, rather than just saying, Well, I didn't do it, but there is an explanation the child should hear and be able to comment on. Yes. It would, of course, require, not only the availability of the,"
00:30:18.250,00:30:18.470,spk_4,"well,"
00:30:18.470,00:30:22.670,spk_3,"the ABE interview, and the police evidence and the facilities that the police"
00:30:22.670,00:30:23.590,spk_0,"have for"
00:30:23.600,00:30:31.820,spk_3,"recording these interviews, but of course, it would also require funding in other ways, as obviously this kind of questioning would have to be done by the"
00:30:31.820,00:30:33.580,spk_1,"appropriate -- by who?"
00:30:33.680,00:31:25.310,spk_3,"The appropriate lawyers, presumably, rather than the judge. And of course, there's no provision for funding of that, at the moment either. So it would require considerable change. But, My Lady, yes, that aspect of Pigott would seem to be eminently suitable to children's proceedings. My Lady, the only other point I wished to address in relation to matters not covered yesterday, is the point raised about the difference between party children, subject children, and children who are merely witnesses, of course, all of whom have, Article rights as a matter of course -- but"
00:31:25.310,00:31:26.240,spk_0,"the party children and the"
00:31:26.240,00:31:27.410,spk_1,"subject children have got"
00:31:27.410,00:31:35.100,spk_0,"Article 6 rights. Yes. Because it's determining their civil rights. Yes. What Mr Geekie calls stranger children,"
00:31:35.110,00:31:35.680,spk_3,""
00:31:36.450,00:31:41.440,spk_0,"have, well, Mr Geekie conceded they had Article 8 rights, I think it was,"
00:31:41.440,00:31:43.140,spk_3,"I think"
00:31:43.140,00:31:51.420,spk_0,"quite big of him, so to concede. But he did. But they're obviously of a different order from the rights"
00:31:51.420,00:31:52.890,spk_3,"of the"
00:31:52.890,00:31:55.040,spk_0,"people whose interests are at stake in the proceedings. Yes."
00:31:55.510,00:31:59.540,spk_3,"And of course, absolutely, they don't have the interest"
00:31:59.550,00:32:00.000,spk_0,""
00:32:00.400,00:34:20.310,spk_3,"in the proceedings. I mean, the kind of child who is merely a witness apart from the obvious complete witness, who's a complete stranger who sees something, is the, for example, a child who claims that they have been previously abused but is not part of these proceedings, or a friend of the party child, or the subject child, who claims to have been abused, and therefore they do not have, very often they do not have a degree of personal involvement and emotional involvement in the matter that of course makes things so difficult for a party child or a subject child. And of course also, very often, they are likely to be better supported by their family, which is the problem with party children and subject children. Subject children, where you're in private proceedings, of course, [inaudible] completely in the middle of family conflict, and they are in a very difficult position because they have no guardian to support them, or rarely have a children's guardian to support them. There is less likely to be an ABE interview, and more likely to be allegations between the parents as to the child being used or abused and put up to things and being required to say things or make allegations and, of course, a huge problem for the child being stuck within family conflict, in terms of what a child needs, as opposed to what an adult needs, in terms of its developmental needs and its attachment needs in relation to its parents, in deciding where its loyalties lie, and where its security lies, and where its safety lies. And so a subject child, in some respects, is almost in a worse position than a party child, even though they may well be still living within the family and with a family member. That is a matter of, we would submit, considerable anxiety to the court, that in those circumstances you are unlikely to have an ABE interview -- thank you -- and therefore, if the child were to give evidence, it's then in a position of giving all of its evidence in"
00:34:20.310,00:34:20.740,spk_0,"court."
00:34:21.500,00:34:59.500,spk_3,"But without the child giving evidence, you have people making notes of what the child says, rather than an ABE interview, so that is a very difficult situation. And one way, to assist with that, would be to broaden the circumstances in which an ABE interview is done, rather than simply at the moment, as they are done, primarily by the police for the purpose of criminal proceedings, so that the court can ask for ABE interviews to be done in proceedings that are not"
00:35:01.260,00:35:01.580,spk_4,"care"
00:35:01.580,00:35:27.070,spk_3,"proceedings and where there are no involved criminal proceedings. But again, that's something that doesn't exist at the moment. But again, the the subject child, we say, the factors that we have set out in the proposed guidance do also cover all the difficulties likely to be faced by a subject child. My Lords, I"
00:35:27.070,00:35:27.780,spk_0,"believe --"
00:35:28.710,00:35:30.120,spk_3,"can I just,"
00:35:32.340,00:35:33.230,spk_0,"clarify with"
00:35:33.230,00:35:34.230,spk_3,"you what you"
00:35:34.230,00:35:37.620,spk_0,"mean by the difference between a party child and a subject child?"
00:35:37.730,00:35:50.990,spk_3,"Well, I'm talking really about a public law proceedings where the child is a party and has a guardian, and where there are frequently criminal proceedings and a ABE interview, and subject child, I was using that term to mean private law proceedings, where you have warring parents."
00:35:50.990,00:35:52.000,spk_0,"Oh, I see, that's what you mean."
00:35:52.010,00:35:53.820,spk_3,"Yes. I'm so sorry, yes."
00:35:53.990,00:35:54.880,spk_0,"I"
00:35:54.890,00:35:55.390,spk_3,"thought you were"
00:35:55.390,00:35:56.040,spk_0,"meaning,"
00:35:56.810,00:35:58.010,spk_1,"then I realised you couldn't"
00:35:58.020,00:36:09.800,spk_0,"be, you were meaning the younger children, children in the position of the younger children in this case -- oh, I see -- who are not the complainants, but they are, of course, subject to the proceeding."
00:36:09.810,00:36:10.760,spk_3,"They are parties,"
00:36:11.520,00:36:13.340,spk_0,"And they are parties, which is why I was challenging you."
00:36:13.350,00:36:15.860,spk_3,"Yes, yes, they're all parties."
00:36:15.860,00:36:16.110,spk_0,"Yes,"
00:36:17.350,00:36:19.490,spk_3,"but of course -- they have the support of a guardian,"
00:36:19.490,00:36:26.160,spk_0,"and in fact, their evidence is unlikely to be necessary -- indeed. In that case. You're talking about private law proceedings."
00:36:26.170,00:36:47.080,spk_3,"Private law proceedings, yes. Mother and father, sometimes grandmother, rarely a guardians, and allegations made in unsatisfactory circumstances, frequently not an ABE interview and no video link facilities at the local county court. And a judge in those circumstances endeavouring to make these difficult decisions. I"
00:36:47.090,00:37:04.040,spk_1,"mean, I know we're speaking here generalities, but I mean, isn't it relevant in our particular case that C, on any [inaudible] is now with foster parents, and will not return to the family home? Presumably has support from the foster parents --"
00:37:04.300,00:37:05.280,spk_3,"Yes."
00:37:05.680,00:37:11.670,spk_1,"and isn't, so to speak, at risk of returning with the repercussions of having given evidence."
00:37:12.740,00:37:43.430,spk_3,"In terms of direct repercussions, possibly not, she doesn't go home and get told off in that sense. In terms of the effect on a child of being not believed and unsupported by important family members, and then being effectively in the care system, and effectively excluded from the family, the psychological impact of that really can't be overstated, My Lord. But again, that is a matter of --"
00:37:43.440,00:37:44.700,spk_1,"that's going to happen either way."
00:37:46.810,00:37:47.340,spk_3,"Yes."
00:37:47.950,00:37:52.310,spk_1,"That's not going to depend on whether she gives evidence orally at the hearing."
00:37:52.770,00:38:16.570,spk_3,"Well, giving evidence -- if she gives evidence, she's not being believed, although there's some very recent signs of change, she's not being believed by her parent, by her mother, because, of course, the alleged abuser is her stepfather."
00:38:16.790,00:38:18.120,spk_4,"Well, that's slightly changed, hasn't it?"
00:38:18.680,00:38:20.080,spk_3,"Slightly, yes."
00:38:20.340,00:38:24.800,spk_1,"We've seen the letter from the mother's solicitor? Yes. We've all read it. Yes, and"
00:38:25.180,00:38:28.500,spk_3,"there has been one contact which --"
00:38:28.510,00:38:29.790,spk_0,"I was going to ask about that."
00:38:29.800,00:38:31.690,spk_3,"Yes, the local authority -- well,"
00:38:32.130,00:38:33.280,spk_0,"the risk of giving"
00:38:33.280,00:38:46.800,spk_3,"evidence, My Lady, the local authority do not consider that to have been successful, that the child was very anxious to talk about her life to her mother, and the mother was very unresponsive, and the local authority are, frankly, we're --"
00:38:46.800,00:39:03.630,spk_0,"Well, we're not making judgments about that, but in the papers that we have seen, contact between Charlotte, we're calling her, and her mother had been stopped by the local authority because they"
00:39:03.640,00:39:04.540,spk_2,"thought that it was --"
00:39:04.550,00:39:11.300,spk_0,"the mother's response was damaging to Charlotte, as I understood it. Yes. So you're saying there has been one meeting, at least."
00:39:11.790,00:39:12.350,spk_3,"There has been."
00:39:12.360,00:39:15.520,spk_0,"Is Charlotte still seeing her -- the little --"
00:39:15.520,00:39:16.570,spk_3,"She is, yes."
00:39:17.640,00:39:18.480,spk_4,"But"
00:39:18.480,00:39:23.660,spk_3,"of course, the implications for Charlotte,"
00:39:23.670,00:39:24.270,spk_4,""
00:39:26.180,00:39:41.990,spk_3,"of the proceedings and giving evidence, of course, [inaudible] right back in the middle of the proceedings, are huge because she's also of an age where she is aware, very much aware that they're all scattered in foster"
00:39:41.990,00:39:42.780,spk_0,"care,"
00:39:44.430,00:40:08.420,spk_3,"and there is always the possibility that they will be further scattered as a consequence, if these allegations are proved if the situation, as it is at the moment, doesn't change and that she is responsible for that. And she will also, and this is something that does arise, is facing cross examination, or the prospect of cross-examination from a stepfather,"
00:40:08.430,00:40:09.390,spk_0,"who"
00:40:09.390,00:40:42.430,spk_3,"is not your real father, is actually quite a different thing to facing cross-examination from a real father, or on behalf of a real mother, who, of course, from a child's point of view of the very people who should be looking after you and protecting you. And these are all psychological factors that -- these are perhaps -- form part of what the Court of Appeal called the big issues, the big questions, that need to be considered before making any extension to the question of children giving evidence in family proceedings."
00:40:44.020,00:40:44.440,spk_0,"Essentially"
00:40:44.440,00:41:07.010,spk_3,"My Lady, because children are children, because they do not think or function as adults. So from the point of view of this child, in practical terms, yes, she's in foster care, and yes, she's unlikely to suffer any direct repercussions that might come from coming into contact with some people, but that really is barely scratching the"
00:41:07.010,00:41:08.450,spk_0,"surface of the potential"
00:41:08.460,00:41:30.160,spk_3,"psychological ramifications for a child in her position. My Lords, unless I can assist you any further, I was going to, in respect to this particular case, my learned junior is proposing to deal with that, in respect of the way this case should be dealt with. Thank"
00:41:30.160,00:41:31.460,spk_1,"you very much. Ms Earley."
00:41:38.710,00:41:38.920,spk_0,"[Inaudible, whispering]. So, I'm"
00:41:38.920,00:41:39.940,spk_2,"just going to move, I'm"
00:41:39.940,00:41:41.030,spk_3,"going to reach the"
00:41:41.030,00:41:43.650,spk_2,"lectern, so hopefully you can hear me as well [inaudible], so apologies."
00:41:44.440,00:41:44.890,spk_0,""
00:41:44.890,00:41:45.540,spk_3,""
00:41:55.900,00:41:56.140,spk_4,"My"
00:41:56.140,00:42:22.340,spk_2,"Lords, it's a particular concern of the local authority, and no doubt a concern of My Lords as well, as to what the consequence of any decision Your Lordships might make in respect of Charlotte, and how the ramifications might be in respect of Charlotte, and the process in respect of this fact finding hearing. As My Lords are no doubt aware, this case is currently listed for a fact finding hearing to commence on Monday, for the time estimate of four or five days."
00:42:22.340,00:42:23.970,spk_1,"We have that very well in mind, yes."
00:42:23.970,00:42:51.270,spk_2,"Thank you, and no doubt My Lord also have well in mind, the fact that will be the third listing of this fact finding hearing, it originally being listed in November, but adjourned because of late disclosure from the police, then listed for hearing in January and again adjourned because Charlotte had made new disclosures which form the substance of her second ABE interview, which My Lords referred to yesterday."
00:42:52.280,00:42:52.500,spk_3,"My"
00:42:52.500,00:43:55.200,spk_2,"Lords will no doubt also have in mind the fact that Charlotte and her siblings have been in foster care since June or the beginning of July of last year, so for them some considerable time, and also that a new baby is due to be born in March to this family and that obviously urgent decisions are going to need to be made about where that baby is going to be placed upon birth. What I would also urge Your Lordships to bear in mind, is what Charlotte has recently expressed to her guardian, that she is frustrated that everything is taking so long, and one, of course, can see quite why, when we put it that this is the third time, next week, that this fact finding hearing is due to take place. Considering, of course, what decision My Lords are going to reach in respect of this case, and in respect of Her Honour Judge Marshall's judgment in respect of whether Charlotte should give evidence, and also the Court of Appeal's comments and criticisms in respect of Her Honour Judge Marshall's"
00:43:55.210,00:43:56.030,spk_3,"judgment."
00:43:57.390,00:44:14.730,spk_2,"My Lords will have to go on to consider, in my submission, what factors Her Honour Judge Marshall looked at and, if necessary, cross refer that to both our suggested guidance, that should be given to judges, and also, of course, any guidance which Your Lordships consider appropriate to draw up in respect of these cases."
00:44:15.400,00:44:15.660,spk_0,"Her"
00:44:15.660,00:44:22.960,spk_2,"Honour Judge Marshall's judgment can be found in bundle 1 of tab 8, My Lords."
00:44:25.720,00:44:26.320,spk_0,"[Pause, page's turning]."
00:44:41.380,00:44:49.810,spk_2,"And no doubt, My Lords have seen this, and seen the decision that Judge Marshall reached, that Charlotte should not give evidence -- I think you can assume we've"
00:44:50.330,00:44:51.770,spk_1,"all read the judgment several times, yes."
00:44:55.300,00:45:51.660,spk_2,"Cross referencing Judge Marshall's judgment to the suggested guidance from myself and my learned friend Ms Davis, in respect of guidance to be given to judges, it is in our submission that even if My Lords were to adopt our new guidance, then My Lords can be satisfied that, applying that Judge Marshall would not have come to a different decision, and therefore her decision that Charlotte should not give evidence can stand, and that the fact finding hearing can take place, as intended, next week. My Lords, Looking at the proposed guidance, it is our submission that Her Honour Judge Marshall, in her judgment, expressly considered all of those factors listed at 1 to 11, and if Your Lordships require, I can take you to the specific point, but if"
00:45:51.660,00:45:53.250,spk_0,"not, where"
00:45:53.250,00:46:20.580,spk_2,"we say she has not specifically required -- specifically considered the proposed guidance, is only in respect of the support that the child has from family and other sources, and five and six, the passage of time and the likelihood of any further delay. It is our submission that a careful consideration of Her Honour Judge Marshall's judgment would show that she has considered all the other factors in our proposed"
00:46:20.590,00:46:21.790,spk_0,"guidance."
00:46:22.030,00:46:23.640,spk_2,"And in respect of"
00:46:23.650,00:46:24.890,spk_0,"the,"
00:46:24.900,00:46:41.650,spk_2,"firstly, the support for Charlotte, and of course we say this is relevant because in Pigott, My Lords will no doubt recall, it was expressly said that is one of the factors as to whether or not a child is likely to be traumatised by giving evidence, the amount of family support that that child has."
00:46:42.760,00:46:43.260,spk_0,"When"
00:46:43.260,00:47:05.460,spk_2,"Your Lordships go on to consider the fact that Judge Marshall did not expressly consider the amount of support that Charlotte does or does not have, we say a simple conclusion can be reached that she does not have family support, and therefore that is a factor that militates against her giving evidence, and not a factor to be likely to conclude that she should be more likely to give evidence."
00:47:06.510,00:47:06.910,spk_0,"In"
00:47:06.910,00:47:28.030,spk_2,"respect of the passage of time, and the likelihood of further delay, again, in our submission, although we cannot say that Judge Marshall expressly considered those factors, we say that a consideration of those factors would be, in the circumstance of this case, neutral to a decision of whether Charlotte should or should not give"
00:47:28.030,00:47:28.750,spk_3,"evidence."
00:47:29.460,00:48:09.570,spk_2,"And therefore, as said, Your Lordship can be satisfied that applying the new guidance, no different decision would have been reached by Judge Marshall than the decision she made back in November, that Charlotte should not give evidence. In the event that My Lords decide, as Mr Geekie requests Your Lordships to, that the presumption that a child should not give evidence if we're calling that, or a principal or a guideline, if we're calling it that, that a child should not give evidence because of the known harm that is caused to children by being cross-examined, if you are with my learned friend Mr Geekie on that"
00:48:09.570,00:48:10.890,spk_0,"point, then"
00:48:10.890,00:48:24.120,spk_2,"of course, you have to go on to consider whether, in those circumstances, the presumption or guideline is removed, Her Honour Judge Marshall's decision can still stand. It is, in our submission, impossible"
00:48:24.130,00:48:24.800,spk_0,"to put"
00:48:24.810,00:48:43.830,spk_2,"yourselves into the mind of Judge Marshall and say, how much she was influenced by that guideline in reaching her decision. What we would ask Your Lordships therefore to do, is to consider whether you are able to exercise the discretion yourselves on the basis of whatever factors or guidance you consider appropriate in these"
00:48:43.830,00:48:44.540,spk_0,"cases."
00:48:45.610,00:48:48.250,spk_2,"And we would ask Your Lordships to do that, bearing in"
00:48:48.250,00:48:49.350,spk_0,"mind the"
00:48:49.350,00:49:06.310,spk_2,"starting factors that I set out at the beginning of my submissions, about the fact that this is the third time this case has been listed, and the impact of further delay on both Charlotte and her siblings. We would ask Your Lordships to exercise that discretion, so there'll be no further delay in this case."
00:49:06.990,00:49:24.430,spk_4,"In that respect, I mean, the judge was obviously much better informed about the background and the facts, and so on, than we are likely to be and had seen the first interview on video, presumably."
00:49:24.430,00:49:25.590,spk_2,"She had seen the video."
00:49:25.600,00:49:32.890,spk_4,"I mean, is that an advantage for the judges, doesn't that give her a better feel than we would have?"
00:49:33.070,00:50:12.250,spk_2,"I would accept, My Lord, of course, that in ideal circumstances, the tribunal who is exercising discretion should see the ABE interview, if there is one. The circumstance, in my submission, is slightly different than this case, because Your Lordships can draw from Her Honour Judge Marshall's impression of that, in respect of Charlotte going out on a number of occasions, because she said she had a tummy ache, for example, but you'll recall that Her Honour Judge Marshall made no further findings in respect of C's presentation, that she's an articulate, intelligent 14 year old, which is accepted by all the parties before the Court. There's nothing else, we say, that Judge Marshall found as a fact in watching that video, that is relevant to the exercise of the discretion."
00:50:13.470,00:50:27.560,spk_1,"I mean, has Ms Marshall looked at this case since the second ABE interview on the 13th of January? I mean, she's bound to have to exercise a fresh discretion, is she not, in any event, I mean, even"
00:50:27.560,00:50:28.960,spk_0,"if"
00:50:28.970,00:50:37.050,spk_1,"the matter was to go back to her, she would need to consider that, has she done so? We have no reason to suppose she has, has she? I"
00:50:37.060,00:51:18.980,spk_2,"understand that the, all parties envisioned the fact findings to take place next week. All parties have been served the ABE interview of the second ABE Interview of Charlotte. No party has resumed their application for Charlotte to be called to give evidence before the Court next week. So [inaudible] say it hasn't been relisted before Judge Marshall. If, for example, the father in light of the second ABE interview, was saying he didn't accept the new allegations, and therefore that supported his application to call Charlotte to be cross-examined, in our submission, he should have made that application to the Court, in knowledge of the fact this case was listed for a fact finding hearing next week, and no application has been made."
00:51:19.290,00:51:31.410,spk_1,"Oh well, I didn't, I don't understand that about that. I mean, so are you saying that this Court can safely work on the basis that the father is no more -- not interested in cross-examining in respect of the second ABE interview?"
00:51:32.150,00:51:32.490,spk_0,"Well,"
00:51:32.490,00:51:48.430,spk_2,"the Court can, and no doubt Mr Geekie can address you on that, but the Court can assume, on the basis that the father has not made any application to the trial judge in that respect, and one would expect him to have done so, if he was likely to renew that application, knowing that the fact finding hearing is listed for the third time next week."
00:51:49.420,00:51:53.890,spk_0,"Sorry -- [inaudible, whispering]."
00:51:54.700,00:51:55.230,spk_4,""
00:51:56.850,00:51:57.450,spk_3,"But he hasn't made"
00:51:57.450,00:51:58.410,spk_0,"an application."
00:52:00.000,00:52:01.140,spk_3,"Of"
00:52:01.140,00:52:17.980,spk_1,"course Judge Marshall herself raised the question of whether Charlotte should give evidence, if she becomes aware that there is a second ABE interview, is she likely again, of her own motion, to say that she ought to revisit the question? She"
00:52:17.980,00:52:46.890,spk_2,"is aware, the judge is aware because the issue was raised before the judge, in January, and the case was listed for the second fact finding hearing. The second fact finding hearing was adjourned, because on that day it was made clear that Charlotte had made further disclosures that needed to be subject to an ABE interview. It was subject to directions before Judge Marshall because the police were saying at that stage they wouldn't be involved in the ABE interview, and therefore the local authority had to get direction from the judge to direct the social workers could carry out their interview on their own. So she's aware of it, but"
00:52:47.410,00:52:49.500,spk_1,"she hasn't looked at the second interview?"
00:52:50.210,00:52:50.480,spk_0,"Well,"
00:52:50.480,00:53:07.090,spk_2,"it would have been filed at the Court, but certainly no party neither judge has asked for directions to take place before the fact finding hearing that's due to take place next week. There were directions but [inaudible]."
00:53:08.940,00:53:09.050,spk_3,"The"
00:53:09.050,00:53:36.970,spk_2,"matter was last before the court, I'm told, on the 12th of February, but my understanding is that was listed for a contested interim care order, at the request of the mother, a slightly off point, because the mother was saying that in light of her changed position, in saying that she now believed some of what Charlotte was saying, that there was reason to argue on her behalf that the children should return home and be placed with her."
00:53:38.250,00:53:39.460,spk_1,"Is she now living apart"
00:53:39.460,00:53:39.780,spk_4,"from the father?"
00:53:41.020,00:53:41.500,spk_0,"She"
00:53:41.500,00:53:49.510,spk_2,"says they've now separated, the local authority, to be fair, are somewhat sceptical as to how concrete that separation is. Is he still in"
00:53:49.510,00:53:50.920,spk_0,"the caravan? I think"
00:53:50.920,00:53:53.630,spk_2,"it's now in London, I believe, he's moved to London."
00:53:53.840,00:54:06.070,spk_0,"There was an exclusion order in the early days, and he went to live in a caravan, and then, of course, the children were put in foster care, so we don't know what's happened to him since."
00:54:06.830,00:54:08.540,spk_2,"And I would hold he now lives in London."
00:54:08.550,00:54:12.110,spk_1,"And nothing happened, effectively, on the 12th of February, did it?"
00:54:12.360,00:54:26.290,spk_2,"I understand that the interim care order was not contested, and that no concrete directions or important directions were given other than that the fact finding would take place on the 8th of January, the 8th of March, sorry, so next"
00:54:26.290,00:54:27.020,spk_1,"week. Right."
00:54:30.520,00:54:32.030,spk_0,"Of course, the facts that the local"
00:54:32.030,00:54:33.250,spk_3,"authority wants"
00:54:33.260,00:54:38.370,spk_0,"found are all relating to the sex abuse allegations."
00:54:38.380,00:55:03.670,spk_2,"Well, that was the original local authority's threshold criteria, if I can call it that, or schedule of findings. The local authority have now filed an amended schedule of findings, which does include the issue of domestic violence, but it's fair to say that the issue of domestic violence and physical abuse was not raised for the first time in Charlotte's ABE interview,  two of the children, the other siblings raised it when they first went into foster care, so it's not a new part of the case."
00:55:06.180,00:55:07.130,spk_0,"So have we got the"
00:55:07.130,00:55:24.390,spk_2,"amended schedule? It's not part of the appeal [inaudible]. Yes, and I understand from my learned friend Mr Geekie, that those representing the father have not seen the amended threshold document."
00:55:26.130,00:55:32.850,spk_1,"Is the fact finding exercise likely to proceed if Mr Geekie's client hasn't seen the amended schedule?"
00:55:34.690,00:56:01.780,spk_2,"Well, My Lord, clearly, that will depend on what is in it, the extent to which it takes Mr Geekie and his client by surprise, whether it's just further delineating the facts that were known to all the parties, in any event, the local authority are likely to argue it was, given that these were disclosures or allegations made by two of the children when they initially went into foster care, and given that Mr Geekie and his client have seen the content of Charlotte's second ABE interview, so nothing in there should take them by surprise."
00:56:01.790,00:56:05.950,spk_1,"It's particularly important to get it to Mr Geekie's solicitors as a matter of urgency."
00:56:06.700,00:56:09.710,spk_2,"Of course, My Lord, and that's something we hope we can arrange to doing."
00:56:09.960,00:56:10.880,spk_3,"It's been done. I've"
00:56:10.880,00:56:13.980,spk_2,"told it's been sent through solicitors, but maybe it hasn't reached counsel."
00:56:15.690,00:56:18.160,spk_0,"This is quite taking me back to everyday life"
00:56:18.160,00:56:18.690,spk_2,"in family"
00:56:18.690,00:56:32.960,spk_0,"proceedings, where new things come out of the, well, newish things come out of the woodwork all the time, and you simply can't fix on a time when nothing new is going to happen because that's not how children's lives are."
00:56:36.090,00:57:09.490,spk_2,"Yes, My Lady, I have some factual information to give the Court in respect of where this case would go were it not to take place next week, because we've made those inquiries. So, Your Lordships can put it in the context of what the likely delay is going to be both to Charlotte and her siblings. We were told from the Portsmouth Listing Office that if the case did not take place next week, but were still to remain before Her Honour Judge Marshall, it could take place in May, or, likely to be able to take place in May. We also,"
00:57:09.500,00:57:10.450,spk_1,"do do you have a date in May or not?"
00:57:10.450,00:57:11.600,spk_4,"No,"
00:57:12.080,00:57:12.540,spk_2,"just"
00:57:16.070,00:57:16.310,spk_4,"May. We"
00:57:16.310,00:57:41.420,spk_2,"also made inquiries with listing at the High Court if this Court considered it appropriate not to remit it to Judge Marshall, but to a judge at the Family Division, and we're told that the listing would be in October, unless it was felt appropriate to give it a vacation listing, in which case it was likely that a listing could be found in August or September."
00:57:45.610,00:57:45.720,spk_3,"The"
00:57:45.720,00:58:09.460,spk_2,"local authority, of course, would say in that regard, it would be the summer, two points, firstly, that these children have then been in foster care for a year, before the facts have even been determined, which, of course, is stage one of the care proceedings before we go to stage two of the care proceedings to determine where these children future lies, and if we reach the summer, we're then in the stage of also coming up against the criminal proceedings, which we understand are likely to take place in the summer, and therefore."
00:58:09.470,00:58:21.540,spk_1,"I think, Ms Earley, we all have very, very clearly in mind, that it is most desirable for this hearing next week to proceed."
00:58:21.570,00:58:22.180,spk_2,"Thank you, My Lord."
00:58:22.180,00:58:45.420,spk_1,"And I mean, I don't want to stop you, but I assure you, we really do have that very well in mind. And I think some of the things you've been telling us, show that these delays happen, and it's never any one party putting up their hands and say, It's all down to me. They happen because life is unpredictable, and we've got to do the best we can to push this case"
00:58:45.420,00:58:46.700,spk_2,"forward. Thank you, My Lord, that's very helpful."
00:58:48.740,00:58:49.010,spk_0,"Can"
00:58:49.010,00:58:54.850,spk_2,"I assist Your Lordship any further in respect of Charlotte, specifically, and where this case is going practically in terms of the fact finding listing?"
00:58:55.030,00:59:06.410,spk_1,"Well, we're still looking forward to hearing from the guardian who I dare say will have more to say about that. So, unless there's anything that you want to say on behalf of the local authority, thank you very much."
00:59:06.410,00:59:06.930,spk_2,"Thank you."
00:59:08.270,00:59:31.340,spk_0,"[Pause]. My Lords, I think, realistically, anyone practising in this"
00:59:31.340,00:59:32.270,spk_1,"jurisdiction"
00:59:32.280,01:00:12.740,spk_0,"has become increasingly aware of the tensions that are between the different ways in which children are treated, particularly as between crime and family, and trying for myself to track through where that unease derives from, I think principally, I identified two issues. I think first, is the recognition that from a legislative and policy perspective, special measures have undoubtedly improved the situation that was identified by Pigott, without any doubt at all."
01:00:14.200,01:00:25.610,spk_1,"There was a time, I was at the bar, a very long time ago, when quite a lot of practitioners practiced both in crime and in family, but my impression is that is quite a rarity nowadays."
01:00:25.620,01:00:28.340,spk_0,"Yeah, I have to say, I'm that rarity, and"
01:00:29.050,01:00:30.990,spk_3,"the"
01:00:31.000,01:00:44.030,spk_0,"position that I'm in, is that I prosecute and do care proceedings, and defend and represent parents or children in abuse cases."
01:00:44.150,01:00:49.190,spk_1,"Well, we're very lucky to have your shared experience of the two fields."
01:00:49.200,01:02:07.580,spk_0,"Interesting, I've also been on a jury in the last year, where we had two children's cases. So it was actually very interesting seeing it from that side of the bench, and also -- really, interestingly, how much more disturbing it was sitting in the jury box, watching it happen, from doing it yourself or watching another practitioner doing it. It felt qualitatively different, being in the jury box from the bench, which I can't explain in any way, but it was a very interesting exercise, from that point of view, anecdotally. I don't think I'm in any doubt, from my personal experience, that special measures have moved on with things enormously. And I think if you do practice cross jurisdictionally, you do frequently ask the question, Why is it that we're approaching this, really, from polar parts? Clearly the legislative framework operates in that way, and I've identified that in my case statement. Clearly the objectives"
01:02:07.670,01:02:08.730,spk_4,"are"
01:02:08.730,01:02:27.640,spk_0,"very different, but I don't think any practitioner would suggest that special measures have moved things on enormously for children giving evidence in court."
01:02:27.670,01:02:32.050,spk_4,"Would suggest or would deny? You said, I don't think any practitioner would suggest."
01:02:32.060,01:02:36.270,spk_0,"I don't think anyone would deny, that that has been the consequence of it."
01:02:37.030,01:02:40.480,spk_1,"Sorry, I'm now lost, just say that again."
01:02:40.480,01:02:49.080,spk_0,"Yes, I don't think any practitioner would deny that the introduction of special measures has improved the situation for children giving evidence just"
01:02:49.080,01:02:49.810,spk_3,"as a very general"
01:02:49.810,01:06:19.440,spk_0,"proposition. It has to be quantum leaps different for a child to be doing it via video link than confronting counselling court. And so I think that's where the practitioners come from, special measures has been a good introduction, has moved things forward. The reason I say that measuring up makes interesting reading, is because it comes from a different perspective. The practitioner's perspective is one thing, the perspective of the child going through the process is a completely different thing. And I'm going to take Your Lordships shortly to two or three passages which, we say, are worthy of particular note within measuring up, because, from my perspective reading that document, the perceptions of children are clearly different from where I would say that practitioners' are. The other specific reason why I think this overall issue has become increasingly troubling, is because of the huge increase in fact finding hearings. When the 89' Act came into force, I struggled to recollect any significant hearing where we spent a lot of time looking at the factual substrata. Now that may have been a wrong approach, but that was the way it was, and much more of the hearing was concentrated on welfare and the future of the child. I think rightly, we've come to recognise how important the factual substrata is, to the future decisions for the children. But that increase, in fact finding hearings, I think, has shed a spotlight onto this particular issue, and we would be saying to the Court, that it's important to look at this issue not just in the context of Section 31 but in the much broader context of family proceedings generally. And our overall submission is that, in fact, the issues that this Court is being asked to consider, and indeed the terms of reference of the Family Justice Council, actually throw up far more difficult issues in the private law arena, than they do in the public law arena, and I shall develop that shortly to explain why I say that. I think the third issue for practitioners is that there is a real unease about the rigid way in which the current jurisdiction has been applied to children at the upper end of the scale, and Mr Geekie took you to R"
01:06:19.440,01:06:20.580,spk_3,"v B County Council at"
01:06:20.590,01:06:24.690,spk_0,"tab 7 and highlighted the concern"
01:06:24.700,01:06:25.060,spk_2,"that --"
01:06:27.470,01:06:28.980,spk_1,"this is the 1991 case, is it?"
01:06:28.990,01:07:02.970,spk_0,"It is. And if you remember, Your Lordships were invited to consider the very real concerns that were being expressed by Lord Donaldson and Lord Justice Nicholls in relation to the outcome, which was attendant on the application of the principles. And can I perhaps just look at Lord Nicholls' -- Justice Nicholls' judgment, I've got it at page --"
01:07:05.360,01:07:06.830,spk_1,"7 of 10?"
01:07:07.920,01:08:46.460,spk_0,"My Lord, thank you very much. And the first three introductory paragraph's say nothing that's controversial, but what we do say is that -- what is quite clear from the fourth paragraph, the last paragraph on that page, is that Lord Justice Nicholls was being very specific about the disquiet that had arisen in that case. I do not read this judgment as Lord Justice Nicholls saying, I am very concerned about the application of this jurisprudence to children as a generality, what concerns me is in this present case, this child is now aged 17 years and three months, in the normal course events I would have thought that fairness and best interests march hand in hand with requiring the veracity of her statements to be established. And the same sort of concerns occur over the page for Lord Donaldson, and his second paragraph, again, reservations around this particular child at her particular age. And in a sense, those reservations reflect where we know where we are on special measures because, of course, children broadly fall out of special measures at 17, and we will reflect in due"
01:08:46.460,01:08:47.140,spk_3,"course,"
01:08:47.799,01:08:51.279,spk_0,"that for children at the upper age of the scale --"
01:08:51.290,01:08:52.339,spk_3,"Sorry, do"
01:08:52.350,01:09:04.839,spk_1,"you mind if I ask you something else about the case, which isn't on what you're talking about, but in that case, the alleged abuser, the stepfather,"
01:09:04.850,01:09:06.160,spk_0,"wanted"
01:09:06.170,01:09:09.120,spk_1,"J [inaudible], she was the girl of"
01:09:09.120,01:09:10.130,spk_0,"17 -- Yes."
01:09:11.009,01:09:44.670,spk_1,"But the case seems partly [inaudible] been decided that the local authority wasn't going to call her, and that decision couldn't be traditionally reviewed, and that the stepfather couldn't really sensibly call her as his take out a witness summons, and call her as his own witness, because he couldn't then cross-examine her. Now that seems to me, from what I know of this case, to be a feature of this case, but it hasn't been mentioned at all. Who's witness Charlotte actually would be if she were"
01:09:44.670,01:11:50.420,spk_0,"called? When the issue was raised on the 21st of September, and from as again, this is my first involvement in this case, so I'm sure I'll be corrected if I've got this wrong. The case was listed on the 21st of September to deal with what was apparently a disputed application for disclosure from Hampshire Constabulary, and in fact, they were represented on that day. That objection fell away again, as I understand it, outside Court. And so the matter went into Court on a general directions basis, and it was during the course of the discussion, that the local authority indicated that they were proposing, they were proposing to call C, in effect because they had no other way of proving their case. And of course, that was technically right at that stage, because there was no forensic evidence, and so on and so forth. The guardian was very troubled about that indication. She was slightly hesitant, partly because she had been out of the arena for four years, and had just come back in, and wondered if there's been a seismic shift in jurisprudence, took advice from her solicitor, who I think, would frankly say on reflection, he should have said, I need to think about this, but reacted to the situation he had. And then the suggestion came forth that in fact, it should be the guardian who should call C, if she was to be called at all. Now my understanding was that the preamble to the order which recorded that C was going to be called to give evidence, did not indicate by"
01:11:50.420,01:11:51.000,spk_3,"whom."
01:11:54.390,01:12:16.860,spk_0,"Judge Marshall of her own motion struck the preamble from the draft order and listed it for a contested hearing on the 23rd of October. And so a long-winded answer to Your Lordship's question is that, as I understand, it had not been a resolved position, but"
01:12:18.170,01:12:18.360,spk_3,"the"
01:12:18.360,01:13:25.480,spk_0,"suggestion certainly was that it was going to be the guardian who would tend to C for her evidence. Can I say anecdotally, a case I did in Swansea last year, where a 17 year old was called to give evidence, was called by the local authority. She had undertaken an ABE interview but had made subsequent disclosures, much as Your Leadership has already identified as a rolling situation. The local authority called her, and led the new evidence, and I don't use led pejoratively, they adduced the evidence. And in fact, what happened in that case was that two questions into my cross-examination, having identified that I was with the stepfather, the witness left the video suite, never to return, and the two questions she'd been asked her about her family and completely neutral. So that was my experience, anecdotally then, that it was the"
01:13:25.480,01:13:26.670,spk_3,"local authority who had done"
01:13:26.670,01:13:27.660,spk_0,"it. But"
01:13:27.660,01:13:28.390,spk_3,"I think we"
01:13:28.390,01:13:32.630,spk_0,"would see, in this case,"
01:13:32.630,01:13:33.700,spk_3,"that it probably would be"
01:13:33.700,01:13:36.780,spk_0,"more appropriate for the guardian to lead that evidence,"
01:13:36.790,01:13:37.970,spk_3,"bearing in mind the guardian"
01:13:37.970,01:13:42.650,spk_0,"and her solicitor have struck up a good relationship with C."
01:13:43.690,01:14:08.580,spk_4,"Is there anyone who could compel you to call it? I mean, how does it work? Because, basically, Mr Geekie wants to ask questions, so is there anyone -- I mean, I suppose the answer is that someone is putting in the child's evidence, because it's on the -- in the interview, and so you'd be entitled to, normally --"
01:14:08.690,01:14:09.320,spk_0,"Yes."
01:14:09.330,01:14:12.340,spk_1,"Isn't the ABE the evidence-in-chief, in effect? Yes."
01:14:12.700,01:14:18.330,spk_0,"Oh, absolutely. Well, actually, technically, I suppose it's not."
01:14:18.340,01:14:20.030,spk_2,"I"
01:14:20.040,01:14:35.440,spk_0,"hope these technicalities are not going to dictate the substance of this very difficult and anxious decision. But whereas it is expressly provided that the ABE -- the video of the ABE"
01:14:35.440,01:14:36.650,spk_3,"interview"
01:14:36.660,01:15:31.860,spk_0,"will stand as the child's evidence-in-chief in special measures, and was in the Criminal Justice Act of 1991, what we have is simply a blanket admissibility of hearsay. Yes. So basically, it's somebody producing this video as an exhibit, as part of their own evidence, that's, I think, the technical situation. I think that's right. But I'm not in much doubt that the Court can direct the guardian to call any witness that the Court [inaudible] the guardian to call, I mean, that's common practice. And that's where I would see it would be appropriately lead from, particularly in this case, but to deal with the question enforcement, and of course, it's a question that I address in my case statement, and I don't think I have for myself reached a resolution, because the authorities that provide the principles that we've identified,"
01:15:32.700,01:15:33.040,spk_3,""
01:15:33.040,01:18:30.670,spk_0,"arise in the context of applications for witness summonses. It doesn't arise in the context of an application to call the child. In each case, what is happening, is that a party to the proceedings is seeking to compel the witness to give evidence, and, of course, that's where we get the oppressive description from because, of course, the test on the summons, is whether the issue of the summons is oppressive, not whether the calling of the child is oppressive. And I think that's one of the reasons that we don't have as much clarity as I think we need to have, about the circumstances in which children might be called to give evidence. And I am concerned about enforcement, and I'll hopefully say quickly for which reason. If a court has, in response to an application by a party, indicated that there is a particular reason, an exceptional circumstance, whichever test you're going to apply, but passing that test, it is right that a child should give evidence in family proceedings, what is actually the consequence thereafter, of either a refusal by that child to give evidence, or an inability to give evidence in that the child attends at the court, perhaps sits in the room, finds that three questions in it's completely incapable of completing the task, what inferences is the Court then to draw from that position? Because if you've got a piece of evidence from a child, which the court said, There is no particular reason for this child to be called to give evidence, you attend to it carefully, you give it such weight as seems appropriate in the light will be other circumstances, but if you, in fact, have made a decision that says it's right for this evidence to be called and tested orally, where does that leave you in the event that the child won't cooperate, can't cooperate? And that has really troubled me, in terms of the inference that you then take into the family proceedings, because, of course, within the criminal proceedings, the outcome would be an acquittal, and rightly so. But that doesn't seem to me translate into family proceedings with any ease whatsoever. And so it's that sort of consequence that has troubled us on behalf of the child, is where you take the position., if you're going to say, Yes, a child must give evidence, and then it can't. Well, I mean [inaudible] ask for this, I mean,"
01:18:30.670,01:18:52.100,spk_1,"assume it's a borderline case, and there it is, the judge, not least for that very reason, thinks, Well, we better just see what this child -- whatever it is 16, 17 years old, say, as in your case, whatever -- and then the child, you know, perhaps for entirely understandable reasons, can't take"
01:18:52.100,01:18:52.800,spk_0,"it,"
01:18:52.810,01:19:06.830,spk_1,"well, I mean, one can imagine that in that situation it would be appropriate, would it not, for the judge to say, Well, I'm terribly sorry, this child may very well have spoken the truth, but I can't be sure on the balance even on the balance of probabilities, that that is so."
01:19:08.980,01:19:50.190,spk_0,"Respectfully, we risk, then, putting the protection of the other children at risk. I think this is a really difficult -- because I think there are natural consequences, that you would say, Well, that would flow from it. But I'm really on behalf of the child, I'm very concerned, that if we put in place a framework which has an expectation behind it, we elevate that evidence in a way that puts other children, either the subject child and or its siblings at risk, when under the current situation, they would not"
01:19:50.200,01:19:51.450,spk_3,"be, because of the way in they had been treated. Well, is that right, that"
01:19:51.450,01:20:40.230,spk_4,"they would not be, because, I mean, I thought that was precisely what the current situation was, going back to the case you've referred to R v B, ex parte P, Lady Justice Black [inaudible] said quoted the stipendiary, who said, I'll have regard to the gravity of the allegations and the fact it wasn't tested by cross-examination, she said, I'd like to endorse those comments, i.e. hearsay evidence is admissible as a matter of law, but you look at it with caution. So you are in a situation where, under the present law, judges are supposed to direct themselves that it may be necessary to give less weight, even significant less weight to it, although it's entirely admissible as of right, as you point out."
01:20:40.240,01:23:01.400,spk_0,"Yes, I think my concern comes from the next step on. Yes, but why, where does it follow? See, it may very well, the judge has seen what happened. Yes. The judge knows all the other evidence in the case. Yeah. And we're talking about masses of evidence. Of course, part of the problem with split hearings is that the judge is denied rather a lot of evidence the judge ought to have, so, I'm not a fan of split hearings myself, as must be apparent. I mean, they're good in some respects, but they're very, very bad in others. But there is a lot of material there, isn't the judge the best person to work out did this child run away because this child couldn't cope with the situation, i.e. it was all too overwhelming and too upsetting, and the child was being made to relive a very painful situation, or did the child run away because the child couldn't face being exposed as a liar? Yes. Isn't that a judgement aren't the inferences a matter for the person who's seen and heard the evidence, in the light of all the other evidence to draw, not your knee jerk, what would I do if a 40 year old man ran away from the witness box? We're supposed to understand children in these cases, that's what they're about. Yes, well, I respectfully agree, I flagged the issue because I am concerned about it, because if we start from Mr Geekie's level playing field and we have a determination that a child should be giving evidence in any given situation, do we, are there inferences to be drawn then, from the child's inability or refusal to give that evidence? And as I said, it's not a question I've really formulated an answer to, but I do think it's problematic when you come to exactly the point that My Lord raised, which is, how do you force that, how are you going to move that forward? And I think it's a -- that is a real issue within family proceedings. I don't put it forward as a major issue, but I have flagged it in my case statement, and I do think it's got to be considered in the overall context of where we are."
01:23:01.570,01:23:30.160,spk_1,"Well, however experienced and careful a judge is in forming a view, this seems to be an intelligent, composed 14 year old. There must always be a risk of total collapse with a child that age. The judge has got to do the best she can, isn't she? Nobody's going to suggest that child should be a punished for contempt of court or something, because she can't stand it."
01:23:30.170,01:23:36.590,spk_0,"No, it's not so much that, it's how it impacts on the findings that the judge has got to make."
01:23:37.130,01:23:47.180,spk_1,"Yes, I know, I see that. I mean, I wouldn't [inaudible] any inferences are drawn again, my only concern is, if it's a borderline case, it may leave the judge still, in a position of uncertainty."
01:23:47.190,01:23:51.010,spk_0,"Not being able to take the matter forward. But that will be"
01:23:51.010,01:23:51.950,spk_1,"true"
01:23:51.960,01:23:57.550,spk_0,"in the positive situation, if the child didn't give evidence,"
01:23:57.560,01:23:58.580,spk_4,"because"
01:23:58.580,01:24:12.230,spk_0,"the judge would again be saying, Well, I haven't heard from the child directly, I haven't seen the other side put to the child, however gently or sensibly"
01:24:12.230,01:24:12.650,spk_3,"or"
01:24:13.170,01:24:17.680,spk_0,"firmly, or whatever is the right way to do it, so I am going to have"
01:24:17.680,01:24:18.300,spk_4,"to"
01:24:18.310,01:24:21.410,spk_0,"approach that evidence with a much"
01:24:21.410,01:24:22.510,spk_3,"greater degree of caution"
01:24:22.510,01:24:31.880,spk_0,"than I would do if that had happened, that is, as My Lord points out, already the law. So, in a way, it doesn't make much difference, does it?"
01:24:34.900,01:24:35.030,spk_4,"I"
01:24:35.030,01:25:21.800,spk_0,"suppose the only category of child that then would cause real concern, is the one, and let's take C as this example, if this Court or another court were to say C should give evidence within these proceedings, and her guardian goes to her and she says, I'm not gonna do it, undoubtedly, that refusal is going to be an issue for the father within those proceedings, and it's how that refusal is going to be treated, and how you go about assessing whether that's a refusal because the allegations aren't true or because they can't face it, it's that sort of situation that, I think, we're quite concerned about on behalf of the child."
01:25:21.810,01:25:38.110,spk_1,"Are you going to tell us, at some stage, what the latest view of the guardian is about Charlotte's state of mind? I mean, we've been told by Ms Earley that she's frustrated, which is entirely understandable. Yes, yes. I mean, in due"
01:25:38.110,01:25:38.510,spk_4,"course, you'll come to that."
01:25:38.630,01:26:07.830,spk_0,"I'm certainly going to address that in due course. Could I just take a few moments to just think about private law proceedings? Because this is an issue which causes Cafcass huge concern. Section 31, parties and parents, non means tested, non merits tested public funding. And"
01:26:07.830,01:26:08.940,spk_3,"so,"
01:26:08.950,01:26:20.560,spk_0,"unless there has been a spectacular breakdown in communication, it is the norm for the alleged abuser to be represented"
01:26:20.640,01:26:21.300,spk_3,"through"
01:26:21.310,01:26:42.660,spk_0,"counsel or indeed experienced solicitor advocate. That is not the position that we face day by day, in private law proceedings. Increasingly, and Your Lordships will be fully aware of this, there are very few private law litigants"
01:26:42.660,01:26:44.050,spk_3,"who qualify for public"
01:26:44.050,01:29:13.500,spk_0,"funding, and so it tends to be those who can afford to pay, or those who fall right under the benefit line, and are able to claim public funding. Most of these cases are now done with at least one unrepresented parent. And it was rightly indicated earlier, allegations of sexual or physical or indeed emotional abuse, made within private law proceedings are frequently not the subject of ABE interviews, for all sorts of reasons, family want to keep it private, certainly we are absolutely familiar with the sort of last throw of the dice, I'm going to make sure that this parent doesn't have contact with a false allegation of sexual abuse. Who is going to call the child, is the child going to be called by a parent to give evidence against the other parent? Because frequently the child won't be represented within the private law proceedings. If that's going to happen, do you appoint a Rule 9.5 guardian so the child is represented, but how, then do you deal with the cross-examination of that child? We think there are really serious issues which arise in the public law arena, and ironically, we would say it's an arena in which you're more likely to find allegations being fabricated. You mean private law? I'm so sorry, private, yeah. That's the arena where you're going to find the fabricated allegation, the embellished allegation, fact finding in private law is a very, very difficult task, which is carried out extremely well by the district judges up and down the land, but the fact of the matter is that the resolution of, say, an allegation of sexual abuse within the private law arena as it stands, risks the child being called and or being cross-examined by a parent, which, in our submission, would be wholly unacceptable."
01:29:14.560,01:29:21.000,spk_1,"By a parent in person, because the criminal law prohibition doesn't apply."
01:29:21.010,01:29:22.180,spk_0,"Quite."
01:29:23.920,01:29:32.300,spk_4,"And all this is within the same statutory instruments, is it, which make hearsay evidence admissible automatically?"
01:29:32.300,01:31:37.220,spk_0,"Yes, and I have to say, I mean quite understand why, in relation to this specific appeal, our attention's been on Section 31, but I think it's important that we recognise that the decisions here are going to have a far, far greater import than in a sexual abuse allegation in Section 31. The inquisitorial nature of childrens' proceedings applies in private law proceedings, as much as it does in care proceedings, there may not be authority for that proposition, but it's obviously correct. Absolutely. I don't believe it to be controversial, Mr Geekie will tell me if he thinks it is, so the judge would, or the court, would be in charge in the same way, as to what to do about a particular piece of hearsay evidence, and how to arrange for it to be challenged if the judge thought that that was necessary, in the circumstances. But in terms of, if you set, and I think we are very much in line behind the local authority in terms of favouring some clarification from this Court about the current position, those considerations will apply equally in the private law arena. And I do think we have to have strongly in mind, when there is a suggestion that there shouldn't be a starting point, and I think it really goes to that point, if you start with a blank canvas, as suggested by Mr Geekie, and you just factor in all of the issues as you go, we think there is a real risk of importing into the private law arena, a completely inappropriate involvement by the child in the evidence building process."
01:31:37.690,01:31:39.660,spk_1,"The issue comes down to this, does it not, the"
01:31:39.670,01:31:40.800,spk_0,"question"
01:31:40.800,01:31:47.550,spk_1,"is whether the erection of a presumption is the most efficacious way of protecting the child's interests."
01:31:47.560,01:31:49.330,spk_0,"Yes. I"
01:31:49.330,01:32:07.470,spk_1,"mean an alternative of looking at it, is to say, Well, of course, in every case, the risk of a child being damaged will loom large, and therefore must be given very serious consideration in every instance. In that way, you're not constructing a presumption."
01:32:07.590,01:32:08.550,spk_0,"Presumption"
01:32:08.550,01:32:24.670,spk_1,"inevitably means a skewing of the litigation in favour of one, not necessarily one party, but one outcome. The question is whether it's better, rather than doing that in an arguably artificial way,"
01:32:25.180,01:32:25.460,spk_3,"it's"
01:32:25.460,01:32:46.130,spk_1,"better that you recognise that in every case, the risk of damage to the child, whether it be the trauma involved in giving evidence, or it be the undesirability of being cross-examined by its own parent, that that will always be a matter to be given very serious consideration."
01:32:46.820,01:32:49.770,spk_0,"We think, with respect, that"
01:32:49.780,01:32:51.220,spk_3,"the better"
01:32:51.220,01:33:00.350,spk_0,"way, and we are not in our submissions going to be suggesting there should be a presumption, we are saying there should be a starting"
01:33:00.350,01:33:00.960,spk_3,"point."
01:33:01.680,01:33:02.440,spk_0,"What's the"
01:33:02.440,01:33:03.700,spk_4,"difference? Well,"
01:33:03.710,01:33:06.160,spk_0,"it may be, but in a sense --"
01:33:06.840,01:33:07.100,spk_3,"are"
01:33:07.100,01:34:29.810,spk_0,"we looking, when it is said, inevitably in that exercise the damage to the child of giving evidence is going to be an important weight in the balance, are we not there making a distinction without a difference? We would say it's far better, in the child's point of view, to be up front about it. We say that it isn't possible, with respect, to have a level playing field in circumstances such as this, if you've got adult competing litigants, with their different cases to run, absolutely, the same considerations apply. But when you are looking at children giving evidence, that is not, with respect, we say, the same thing at all, as an adult party giving evidence, and you have to, because of the inherent damage in it, because of that recognition, we do say that you have to put that right at the forefront with all the factors to be balanced against that in place. But we say in order to protect the child in the process, you have to have that as a starting point."
01:34:29.820,01:34:50.060,spk_4,"I mean you said that, you referred us to Lord Nicholls' statement about a child just over 17, and you said yourself, there was real unease in the profession about the rigid way in which the present approach operates at the upper level of age. Well, that immediately indicates that it can't be the same force in every"
01:34:50.060,01:34:50.710,spk_0,"case. No."
01:34:50.820,01:35:07.400,spk_4,"So, if it can't be the same force of every case, why isn't it an important factor, but nonetheless only one factor, in an exercise which actually involves a lot of people's different rights?"
01:35:07.410,01:36:45.330,spk_0,"Yes, but we would say on behalf the child, I'm afraid, that there has to be, because of that particular vulnerability, and because of the process, that there has to be some built-in protection, and we say that's the best way of doing it. Can I come to the issue of age? Because we we flag in our statement of case a possibility that we see, not necessarily for now, but for consideration in conjunction with the Family Justice Council, and I'll explain how we came up with our ages in a moment, but we would certainly say that within the factors to be considered, we can see no reason why a judge should not be told that the way in which to approach the chronological issue, is that the older the child chronologically, obviously [inaudible] with issues of physical, mental health, learning disability, that, with age, the, can I just, I'm just pausing because I. Yes, I was looking for the word that I'd written down for myself. The older the child, we say, the stronger will be the expectation that that child will be able to"
01:36:45.340,01:36:46.060,spk_3,"cope"
01:36:46.360,01:38:10.770,spk_0,"with the emotional difficulties of giving evidence. And we say that that should be specifically part of the counterbalancing features. So the older the child, the stronger will be the expectation that they will be able to cope. And we say, it's in that way that you factor in age, and that if you simply take out consideration at the very forefront of the decision-making process, that, and I don't think we would dissent, with respect, from the wording, My Lord, that was used earlier, that it was likely to be damaging. We wouldn't dissent from that proposition. But we say that in order to protect the child, to ensure that the process is as fair as possible, and in that respect, it's not just about fairness to the person who's being accused, it's about the fairness of the actual process itself and the results that that brings forth for a child at the end of the day. And we've thought, I have to say, long and hard, and can I say I've had"
01:38:11.710,01:38:11.940,spk_3,"a"
01:38:11.940,01:40:07.080,spk_0,"brief opportunity to talk to Cafcass legal, and their views about it, and to a certain extent, those are incorporated in this document. But Cafcass overall, and not just about this guardian, would be immensely concerned, at this stage, at the suggestion that the situation that we have now, which starts with, It's damaging for children to give evidence, that should be displaced in any significant way. We say there are ways in which Article 6 can be respected, even more so, than I think obliquely it is now. We do say there are ways in which that you can build in that particular issue about the older child, but we do say that to go any further than that, at this stage, without a proper evidential base for it, risks huge ramifications for the child, which, frankly, we're not in a position to assess at this stage and, you'll see from my statement of case, that we are very concerned about the child who, now, if we go down a track where that presumption, whatever you call it, the starting point, the presumption, is shifted, we say that many more children are going to be brought into the situation where they're giving evidence twice, and that's likely to be care followed by crime, in reality, that's how it's working out on the Circuit, certainly, I don't know about London, but certainly on the Circuit care proceedings coming in 6 to 8 months before the criminal proceedings"
01:40:07.080,01:40:07.700,spk_3,"are coming on. And"
01:40:08.510,01:40:10.150,spk_0,"we have no idea,"
01:40:10.160,01:40:13.470,spk_1,"what's the position, you say, happening? On"
01:40:13.470,01:40:14.170,spk_0,"the ground."
01:40:14.180,01:40:18.930,spk_1,"On the ground, I apprehend, you're having your care proceedings without the child being called."
01:40:18.940,01:40:21.020,spk_0,"Yes. What"
01:40:21.020,01:40:31.120,spk_1,"are you contemplating as the result of those before the criminal trial, that the accusation is found -- established on the balance of probabilities, or not?"
01:40:32.150,01:40:32.440,spk_0,"I'm"
01:40:32.440,01:40:35.650,spk_1,"asking what you're telling us about the practical experience on Circuit?"
01:40:35.650,01:40:42.470,spk_0,"The practical experience on Circuit is that the first set of proceedings, in time, are the care proceedings."
01:40:42.480,01:40:44.190,spk_1,"Quite. Child not called."
01:40:44.190,01:40:46.970,spk_0,"At the moment, child not called."
01:40:46.980,01:40:47.880,spk_1,"Result?"
01:40:48.180,01:40:58.640,spk_0,"Result, by and large, you get some sort of outcome on the fact finding, and it moves on from there. The child."
01:40:58.640,01:41:10.980,spk_1,"Sorry, what sort of fact -- what sort of result, are they mostly found that he accusations are upheld? If they're not, are they followed by a criminal case?"
01:41:11.770,01:41:30.110,spk_0,"Oh, yes. Again, you can only, I can only say that this is anecdotally, but my experience is that the police really take no interest in what has happened in the care proceedings. Which one has to,"
01:41:30.120,01:41:31.050,spk_1,"but the CPS don't either?"
01:41:33.960,01:42:10.950,spk_0,"No, no. Because all sorts of different parts of the evidence are available in the care proceedings which won't be involved in the crime. We find that there is very, very little cross pollination between the two. And that's the reality of it. And so, at the moment, the child usually knows the outcome of the, certainly the fact finding stage, and pretty well knows the outcome for itself, before it gets into the Crown Court,"
01:42:10.990,01:42:11.590,spk_3,"quite"
01:42:11.590,01:42:29.870,spk_0,"frequently. But of course, it's only giving evidence once, and it's putting in the additional stage, where we say you've got the evidence in the care proceedings, and then the child having to wait to give evidence again, in a different"
01:42:29.870,01:42:30.910,spk_3,"forum."
01:42:30.920,01:42:45.820,spk_0,"We say, we don't know because nobody has done the work on it, but we say, potentially hugely damaging for a child if it's got to go through that process twice. The only way it wouldn't normally go through that process twice, is if there was a"
01:42:45.820,01:42:46.740,spk_2,"retrial."
01:42:49.600,01:43:19.050,spk_0,"But currently, a child will only expect to give live evidence on one occasion, and that will be in the criminal proceedings. And we say you have to take into account that potential impact, if it's already had to go through the mill once, and potentially then twice. And we say that measuring up actually makes quite depressing reading at chapter 9. Just"
01:43:19.050,01:43:20.280,spk_1,"remind us where measuring"
01:43:20.280,01:43:20.710,spk_0,"up?"
01:43:23.220,01:43:24.370,spk_3,"Yes, tab, so sorry"
01:43:25.690,01:43:26.400,spk_1,"It's in"
01:43:26.510,01:43:29.220,spk_0,"the fourth bundle, and it's at tab 44."
01:43:29.230,01:43:29.890,spk_1,"Yeah."
01:43:30.400,01:43:34.210,spk_0,"[Pause, pages turning]."
01:43:37.680,01:43:38.060,spk_4,""
01:43:45.190,01:44:04.720,spk_0,"Could I just, as a complete side note, and while I remember it, we were discussing I think yesterday about Section 28 which, of course, is the implementation of the second part of Pigott, the reference to what's happened to that appears at page 33 of measuring"
01:44:04.720,01:44:05.460,spk_3,"up,"
01:44:13.770,01:44:20.310,spk_0,"and it appears that there was a government announcement in 2004 not to implement the provision"
01:44:20.320,01:44:21.130,spk_3,"on pre-trial"
01:44:21.130,01:45:05.190,spk_0,"cross-examination based in part on a briefing paper suggesting case processing has dramatically changed in recent years, and I think probably a statement of hope or expectation. My reading of that paragraph was that, what was being said is, Well, because we've given, in principle, priority to children's cases, therefore, it's not required that we put in this extra stage. That experience is not borne out, certainly, by the findings here. And in fact, on the previous page,"
01:45:10.410,01:45:10.670,spk_4,"the"
01:45:10.670,01:47:10.940,spk_0,"study deals with priority listing. But unfortunately the statistics which follow, and we've just referenced the page number, but 34, they set up the experience of time to trial, Crown Court, I think the 67 months is probably exceptional, but the average time for the wait for a Crown Court trial is 13 months, between reporting offences and trial, and the statistics are there and actually they make very gloomy reading, frankly, because Pigott was driven, and indeed, every consideration about special measures have been driven on the basis that children need priority and a quick decision, and it's not happening on the ground, that is not happening. And in a sense, I think there's a, we do have to reflect that, when we're thinking about the broader canvas and how these children are in the care system. But chapter 9, which is the chapter that I just wanted to have a quick look at in terms of children's experiences, and I do say that this makes depressing reading, because round about a third of children experiencing giving evidence, are identifying hostility, a lack of politeness, aggression, all those sorts of adjectives, from advocates cross-examining them in the Crown Court. Now, of course, that's a matter of perception, and what one child sees as aggression, its parent may see as a perfectly appropriate set of questioning. But --"
01:47:12.230,01:47:12.690,spk_1,"You do"
01:47:12.690,01:47:17.610,spk_4,"equate that sort of perception with trauma?"
01:47:19.900,01:47:20.790,spk_3,"Why"
01:47:20.790,01:47:28.110,spk_4,"does one assume, I mean, children can be quite blunt in their comments without"
01:47:28.120,01:47:29.020,spk_0,"feeling"
01:47:29.020,01:47:31.720,spk_4,"trauma about what they've experienced?"
01:47:31.730,01:49:28.110,spk_0,"The problem is, I don't think we've done that piece of work. I think this goes so far, but it does have its limitations, rightly identified by Ms Davis, these are, 97%, children in families supported by their families, it doesn't deal with the children in the care system, and we would say that this is one of the issues that the Family Justice Council needs to be considering in it steps forward, because we do think that there is a place for a multidisciplinary approach to this, we can see that Dr [inaudible] was very prominent in the discussions that led to Pigott, and I anticipate that that is the sort of evidence that the Family Justice Council is going to have to gather, because I agree, that you have the statistic, what is the causal connection into trauma and so forth? And we simply don't know what the answer is. And what we are saying is that, until you know that answer, until you've got some indication of what that answer would be, you cannot, at this stage, take a massive leap forward, and simply assume, Well, you know, the Family [inaudible] Division will get it right, people are sensible, they're sensitive in their questioning, it will be okay, because, frankly, we're not sure that that is the case. And that is why we support the work of the Family Justice Council, I have to say, because we do absolutely agree with, I think it's at paragraph 30 of Lord Justice Wall's judgment, when he said that, the time is right for us to be thinking about the possibility of change. We absolutely agree, and we agree for the reasons that I've outlined right at the beginning."
01:49:29.460,01:49:31.630,spk_1,"Which part of chapter 9 are we to be looking"
01:49:31.630,01:50:15.230,spk_0,"at? Well, I think, certainly 9.1 is a snapshot, in terms of how people were perceived, it then goes on to consider how children understood the questions that they were being asked, only 50% were saying that they understood all the questions, there's criticism of long words, double negatives within questions, and unfortunately, the whole of that chapter, which deals with"
01:50:15.960,01:50:16.470,spk_3,"how"
01:50:16.470,01:50:56.830,spk_0,"children understand questions, the complexity of what they're asked, their actual experience of being asked questions, and the misunderstandings that arise, are dealt with, effectively, right through this chapter. 9.4 at 115, frankly, I think most of us would look -- if you look in the box at the bottom of there, he, the defence lawyer said, Do you think I'm nice looking? I said, No, he said, Would you kiss me? I said, no."
01:50:56.840,01:50:58.030,spk_1,"Well, that ought to have been stopped. I mean, that's just ridiculous."
01:50:58.030,01:51:13.970,spk_0,"Well, that is absolutely right, and the question one would be asking about that is, how on Earth did these questions come to be asked in the first place? And so, whilst respecting the policy and the legislation that"
01:51:13.980,01:51:14.670,spk_3,"is"
01:51:14.670,01:52:59.710,spk_0,"there in special measures and asks us within the justice system to respect, the conclusion of measuring up is that there is a real gulf between that policy and legislation, and the actual culture that is working out on the ground. And we do say that that has real implications when we are thinking about the family justice system, and the possibility of opening up this area, this has to be put into the balance. Now, whether these statements, these sentiments, these expressions from children, actually feed in to harm, whether quantifiable or not, is something we simply don't know, at the moment, and I think that, that for us is a real concern. But in a situation where a study such as as this, is showing that real gulf between expectation and practice, we have to be taking that into account when we decide what is the right way forward for children within the family justice system, when we can see, at least by way of a snapshot, what is happening under special measures. I feel slightly as if I'm jumping around, but the Court has heard about the evolution and the real issues, and what I'm trying to do is highlight the issues that perhaps we haven't thought"
01:52:59.710,01:53:00.850,spk_3,"about or I"
01:53:00.850,01:53:20.020,spk_0,"just want to highlight from a different perspective. Can I just pick up on an issue that was raised by MS Davis, but is a real issue for Cafcass, which is the practicalities of children giving evidence and, of course, much, I'm so sorry [pause]."
01:53:21.730,01:53:22.390,spk_1,"Much"
01:53:22.390,01:54:00.180,spk_0,"resource has been applied to ensuring that within the criminal justice system, the facilities are there, set up for children to give evidence in accordance with special measures, and where you have a combined court centre, as you do in Portsmouth, we make arrangements to use the Crown Court when, on the odd occasion, a child gives evidence within family proceedings, that's how you would do it. The difficulty is that some of the county courts simply do not"
01:54:00.190,01:54:01.750,spk_3,"have the"
01:54:01.750,01:54:05.800,spk_0,"facilities to implement a special measures type"
01:54:05.800,01:54:06.970,spk_3,""
01:54:06.980,01:54:32.420,spk_0,"arrangement for children giving evidence in family proceedings. And again, I'm sure I'll be corrected if I'm wrong about this, but just taking, for example, the registry, currently there is one court set up that can receive a video link, and it's not set up for children giving evidence at all, but there is one court, Court 20, has the video link facilities."
01:54:33.330,01:54:34.590,spk_1,"This is in the RCJ?"
01:54:34.590,01:54:36.360,spk_0,"This in the Principal Registry in High Holborn."
01:54:36.360,01:54:36.930,spk_1,"Right."
01:54:40.610,01:55:46.150,spk_0,"The way in which that link works is that the witness can only see the back of the judge's head because of where the camera is set up, and the fact that you can't manipulate the bench, it's a very small court, anyway. What the witnes sees is the back of the judge's head, and that is it, there's no direct, unless the judge physically turns around 180, the judge can't see, the witness can't see the judge's face. And so what's happening is that we are decamping down to St Dunstans House, where the video link facilities are a little better, but not much, in order to activate the witness link, and in a recent case we went down there, I think, six times during the course of three weeks. That is, I'm afraid, no way to receive children's evidence, special measures protected, or no."
01:55:46.560,01:56:26.270,spk_4,"I'm not quite sure where it fits in to the argument. I mean, if the contrary view is that, in the interests of justice, actually, you should, in a particular case, be hearing the evidence of the child, it's not a very easy answer to say, Well, it just happens that in this part of the country or London, there isn't the facility, there very well should be, and, I mean, the reality is that, if one is not able to do justice, one simply, the country is simply in breach of the Convention, but that's not a very satisfactory answer in the instant case."
01:56:26.280,01:57:44.410,spk_0,"No, it isn't that, but certainly what we would be saying is that as part of the factors that you've got to take into account, it is not necessarily straightforward simply to say we can move special measures into family, because we like the way the arrangement is structured, we've got real practical issues to consider, and that will have to take into account, with respect, the prospect of transfer between court centres, and we only flag it as a practical issue but again to be factored into the situation, because the family justice system simply isn't set up in a way that makes special measures an easy route to adopt. Now it's not, that's not a reason for not going there, but it is a reason for taking real care about how you deal with these cases and how you approach them, and Cafcass, particularly, wanted me to flag that up. We don't have to think only in terms of special measures, as they operate in criminal. No, no we don't. Of course, as I think was probably said on more than one occasion, because we are here dealing with how the court deals with, what is admissible evidence, there are a large number of other things that might be, strategies that might be adopted in order to make it possible"
01:57:44.410,01:57:45.520,spk_3,"to put"
01:57:45.530,01:58:30.920,spk_0,"an alternative point of view to the child. And I think then the question that that begs is, Do we do that via this Court giving its guidance, or do we have to await Family Justice Council to think about. Our problem is, that we've been presented with a question of law. Absolutely. The question of law is whether the present guidance gives appropriate weight to the Convention rights that are in play here, that is a question of law. Yes. We can't duck it just because we would like Family Justice Council to provide us with a solution. No. But it is, respectfully, a question of how far we go down the route, and where the line is"
01:58:30.920,01:58:31.390,spk_3,"drawn,"
01:58:31.950,01:59:02.970,spk_0,"and all these are very real considerations within that. How are things in Well Street, Ms Branigan, because if you're wanting to -- I don't know, I simply don't know, but I suspect not great. Well, it's a much better design court than -- Oh, absolutely but the sheer volume of stuff going through the registries, and that again, of course, on a private basis is a real consideration, because, of course, that's where the vast majority of that work is done. Can"
01:59:02.970,01:59:10.320,spk_1,"you give me a ballpark figure for how long it takes, roughly from an accusation to a fact finding session in the care proceedings?"
01:59:13.430,01:59:15.340,spk_0,"Anecdotally, nine to twelve months."
01:59:16.060,01:59:17.300,spk_1,"Nine to twelve months?"
01:59:17.300,01:59:30.540,spk_0,"Yes, depending on the complexity of it. I think some centres are getting in the more straightforward fact finding cases, perhaps in six."
01:59:33.600,01:59:39.550,spk_1,"But in these criminal cases, how long do we think they were, where do we find that statistic, I've lost it."
01:59:39.810,01:59:42.810,spk_0,"That statistic is in -- It's page 34, is it? Yes."
01:59:45.560,01:59:46.700,spk_1,"Measuring up."
01:59:46.710,01:59:48.040,spk_0,"Measuring up, page 34."
01:59:48.580,01:59:49.800,spk_1,"Yeah, that's right, 34. Time"
01:59:49.800,01:59:53.060,spk_0,"to trial, 311. Well,"
01:59:53.070,02:00:05.260,spk_1,"I mean that, and that, the bottom figure there is average, of course, it's a great range, but average eight months, but I mean."
02:00:07.010,02:00:12.540,spk_0,"Well, of course, that's from the defendant's first court appearance. And,"
02:00:12.540,02:00:13.020,spk_3,"of course -- [Inaudible] --"
02:00:14.090,02:00:19.370,spk_0,"that average time of eight months at the bottom comes from the defendant's first court appearance."
02:00:19.470,02:00:20.000,spk_1,"First court appearance"
02:00:20.000,02:00:20.740,spk_4,"where?"
02:00:21.300,02:00:23.090,spk_0,"As I understand it, the Crown Court."
02:00:23.100,02:00:24.350,spk_1,"I see, not [inaudible]."
02:00:25.390,02:00:27.070,spk_0,"And, of course, here,"
02:00:27.180,02:00:28.880,spk_3,"the complaint"
02:00:28.880,02:00:33.810,spk_0,"is made in June, and the charge is either at the end of September or the beginning of October,"
02:00:33.820,02:00:34.830,spk_3,"I can't remember exactly"
02:00:34.830,02:00:41.210,spk_0,"where it falls in that, but it's after the 21st of September, before the 23rd of October. So there's another built in three"
02:00:41.210,02:00:42.680,spk_1,"months within that. I"
02:00:42.690,02:00:55.530,spk_0,"think it's, broadly speaking, it is unusual to get a trial of, particularly a sexual abuse allegation, much under a year from the date of --"
02:00:55.540,02:00:56.260,spk_4,"The average is 13 months, according to this [inaudible]."
02:00:56.270,02:01:45.460,spk_0,"Yes, so my anecdotal experience fits with this, and of course that in a sense, highlights everything that experts and the assessments have made, which is that delay is the biggest enemy in these sort of situations, and it doesn't seem as if we're able to address that. That's where we are, and we have to be thinking about that in terms of impacts on children. Could I -- within our case statement, I think we set out the various paths that we felt that"
02:01:46.920,02:01:47.200,spk_3,"the"
02:01:47.210,02:01:48.020,spk_0,"Court should go"
02:01:48.020,02:01:50.290,spk_3,"down. And"
02:01:51.400,02:01:52.050,spk_0,"it's fair to"
02:01:52.050,02:01:53.100,spk_2,"say we've refined our"
02:01:53.100,02:03:17.870,spk_0,"thinking somewhat. [Pause, pages turning]. [Whispering]. Cafcass, on behalf the child, either this specific child, or children generally, recognise how important it is to get, as far as it's possible, the right outcome for the child. That's in every case what underpins our thinking. Within the correctness of the outcome, must come into consideration the process itself, that the process should not become abusive to the children, either who have made allegations, or who are the subject of the proceedings overall. My understanding is that Mr Geekie accepts that. I may be putting his case"
02:03:17.880,02:03:19.050,spk_4,"on"
02:03:19.050,02:03:21.320,spk_0,"that higher than perhaps, I should. He will tell"
02:03:21.320,02:03:22.600,spk_4,"me"
02:03:22.610,02:05:04.370,spk_0,"if I'm wrong. And respectfully, we do associate ourselves with the comments made by Your Ladyship yesterday, when we were thinking about ABE interviews and what underpins those. The whole purpose of that exercise is an attempt to get the best evidence from the child. And listening to the debate, it's easy, in a sense, to stand at a case which has, say, one issue, one serious allegation of sexual abuse and to say, How is it, within that context, that a court can make a decision without hearing that evidence tested? The reality is that that circumstance does not often arise because, and again -- I feel awful because Your Ladyship has such a wide experience of it, but our sense is that, when you're looking at allegations made by children it's actually quite rare to find a single allegation case. There are frequently issues of neglect, other types of abuse, which may be evident through school, or so forth. And so that very stark situation where one identifies that position, is a very unusual one to find. And within this case,"
02:05:08.460,02:05:08.940,spk_4,"there"
02:05:08.940,02:07:11.160,spk_0,"is a good deal of evidence apart from that of the child C in her two ABE interviews, for the Court to consider. Various terms have been applied to the forensic evidence that there is, but in short, the child complains of the stepfather taking his penis out of her and ejaculating onto her back. The forensic evidence is that there are lines of ejaculate on the inside of this child's underwear and her skirt, on the back. The forensic scientist has been approached, and to her has been put the father's proposition that this could be accounted for by accidental contamination, and the position, as I understand it, is that he suggests that having had intercourse with his wife that afternoon, he removed his underwear, and wiped himself with it. That underwear went into the family washing basket and C's clothes followed it and became accidentally contaminated. The forensic scientist has said that that is an unlikely explanation, for -- Extremely unlikely -- Well, I think it's putting, two -- Well, I've read the statement -- Yes -- and if there are only two competing arguments, it becomes extremely unlikely, that's what she said. There's semen on the tissue, we don't know whose it is, but, with respect, who else within this family is producing ejaculate, which is going onto a"
02:07:11.160,02:07:13.690,spk_4,"tissue? Excuse me, I didn't catch your phrase, there's already two"
02:07:14.170,02:07:14.710,spk_1,"competing what?"
02:07:15.220,02:07:19.290,spk_0,"Explanations for the semen on the clothes, I think she -- [Inaudible] it's."
02:07:19.300,02:07:20.400,spk_4,"Yeah,"
02:07:20.400,02:08:16.620,spk_0,"she then elevates that explanation. You have the accounts of the adults who saw her on the 18th of June, and the very real distress that she was manifesting, and importantly, you have the evidence of other members of the family, and it is, I think, disappointing, and quite understand why the mother says, I don't have an active role to play in this appeal, I'm neutral on the subject, but it doesn't sit very happily with her recent statement, which says, I think there's something in what she says, but I don't think it's all true. She hasn't actually then specified what she accepts and what she doesn't, but what we do know is that she roundly rejects the allegations of physical abuse and domestic violence. So the mother, within the proceedings, is going to be cross-examined on her"
02:08:16.620,02:08:17.640,spk_3,"account."
02:08:18.640,02:09:25.020,spk_0,"There's the question of N. Now, -- I'm so sorry, N. N applied to become a party to these proceedings, and that application was considered and refused by Her Honour Judge Marshall. I can turn up the date of the order, but it's in the autumn time, and she -- Oh, because the witness statements describe her as a party. Yes, she is not a party. She's not a party. She's not a party to the proceedings. I couldn't understand why she would be, but -- No, well, quite. She was represented on two separate hearings, again, I'm gleaning this from my understanding of it, but the application was refused by Her Honour Judge Marshall, and probably rightly so. But she is over 18, she is firmly in the camp of the parents, she lives with mother currently. Query, if allegations made in respect of her by C,"
02:09:27.940,02:09:28.260,spk_4,"she"
02:09:28.260,02:09:56.890,spk_0,"was anxious to become a party, perhaps some thought should be given to her giving evidence. But I think it is important, in the circumstances of this case, to look at what is surrounding this because, it is not, in my submission, as plain as, she says this, he says that. And we do say it's very important also to look at the detail that is attributed by the accused,"
02:09:56.900,02:09:57.380,spk_3,"using"
02:09:57.380,02:10:39.360,spk_0,"that word loosely, to the debate, because if you have a parent who is saying, She's a liar, don't accept any of it, that puts you at one end of the spectrum. If you have a parent who says, Well, I remember that incident because X, Y and Z happened, and there's a different interpretation, or we need to look at the different circumstances, I think that gives a very different flavour to the hearing overall. So there's a lot of, with respect to My Lady, a lot of information that's coming into this decision, and, respectfully, it isn't just about this child against this stepfather. I can't understand what the respect to me is."
02:10:40.290,02:10:40.750,spk_4,"Did"
02:10:40.750,02:11:35.330,spk_0,"I suggest it was, or wasn't? You didn't say it was, and I'm respectfully adopting it. Your Ladyship said these cases are about a whole range of evidence that comes in, and it is extremely unusual, in my submission, to find a case where there is simply no other evidence bar the two competing accounts, and again, respectfully, if that is the case, as indeed it was in the Swansea case, then the decision was called -- the decision was made to call the child, and within what you have as a structure, currently, you have the room to do it. At paragraph 47 of our case statement -- [Pause, pages turning]."
02:11:50.670,02:11:51.560,spk_1,"50 what?"
02:11:51.570,02:12:05.570,spk_0,"47, My Lord, page 18. We set out what we understand to be the principles"
02:12:06.550,02:12:06.870,spk_2,"at"
02:12:06.870,02:12:41.380,spk_0,"present. Can I just turn to the top of page 19 for a moment? Because I think on reflection, with great respect to Lady Justice Smith, we don't feel that that expression of principle as she saw it, is helpful in the context of the debate that we're having."
02:12:41.390,02:12:41.920,spk_3,"Which?"
02:12:42.480,02:12:46.850,spk_0,"Some cases where it's right for a child to give oral evidence, such cases will be rare --"
02:12:46.850,02:12:47.730,spk_1,"The very top bullet point?"
02:12:47.740,02:12:52.050,spk_0,"Yes, and I think the use of the word rare"
02:12:52.750,02:12:52.810,spk_1,""
02:12:52.820,02:13:13.470,spk_0,"is unfortunate in the overall context, because I think it does, again it touches on a debate that was going forward yesterday, that empirically, that may be the outcome, but we do not think it's right to have that as part of a principle, because it puts in a presumption, and it sets the bar too high."
02:13:15.460,02:13:29.220,spk_4,"We were discussing earlier this morning the second point, and possible modification of that, to delete the word undesirable and replace it with, Likely to be damaging."
02:13:29.230,02:14:21.790,spk_0,"Yes, we do not have a difficulty with that at all. So we would say that bulletpoint one stands, that likely to be damaging can be substituted for undesirable, and we've given careful consideration to whether it's exceptional circumstances or another phrase, and I have to say we favour particular justification. We feel again, that exceptional circumstances builds in to the starting point a skew which is not justified in the circumstances. I accept entirely that a starting"
02:14:21.790,02:14:22.420,spk_4,"point"
02:14:23.160,02:14:36.230,spk_0,"implies a skew, but it's how askew does that become? And we think that particular justification, rather than exceptional circumstances, is the right phraseology, in the circumstances of this --"
02:14:36.230,02:14:37.870,spk_1,"So leave in three and strike out four?"
02:14:38.430,02:14:48.180,spk_4,"Why do we need -- the starting point is, why isn't this just a factor? It is likely to be damaging for"
02:14:48.180,02:14:51.980,spk_1,"a child to give evidence in care proceedings."
02:14:52.160,02:15:17.190,spk_0,"We are clear that children giving evidence within care proceedings require a protection, and a respect in terms of their"
02:15:17.190,02:15:18.090,spk_3,"position."
02:15:18.680,02:15:19.540,spk_0,"We get"
02:15:19.540,02:15:40.550,spk_4,"it, as long as you recognise that this is likely to be a significant factor in every case, although you yourself acknowledge that it may be a factor of differing weight in different cases, according to a particular age, but maybe other factors, and maybe one would be better informed about that after the Family Justice Council --"
02:15:40.690,02:16:21.970,spk_0,"Yes, I think that that's really where we are. We feel that the removal of that starting point, that -- whatever you describe it as, we feel that's a step too far at this stage, we still believe that the statutory framework, and the philosophy behind the Children Act, requires a protection for children witnesses that has to be recognised upfront. And I would say, in a sense, if you simply put it into the balancing factors, it's a distinction without a difference, because you're going to be saying to the court, Look, all other things being equal, that's the one that's going to carry the day."
02:16:21.980,02:16:45.910,spk_1,"But it probably is a difference without a real difference, that if it's a balancing exercise that the metaphor is of two scales, and you put some factors in one and some in the other, and some are heavier and some aren't. But if you've got scales, why do you have to have a starting point, I mean, one might ask. Because"
02:16:45.910,02:17:15.429,spk_0,"we say that you have to build in a level of protection for the child witness, which is not reflected, we would say, in a balancing exercise, we say -- But if you've got a heavy weight, a variably heavy weight, but in most cases, and without any additional evidence than we already have from Pigott, that automatically goes into one side of the scale, doesn't that produce"
02:17:15.429,02:17:16.349,spk_2,"the same effect?"
02:17:20.230,02:17:24.160,spk_0,"I think our concern would be that the weight of that"
02:17:24.160,02:17:25.280,spk_3,"argument"
02:17:25.490,02:17:30.040,spk_0,"could become diminished in the competing arguments, I think that's our real concern. But"
02:17:30.210,02:17:56.400,spk_1,"it isn't given any strength by describing it as a starting point, it's still a factor that, I mean, could be called an end point, that would be the final consideration, but so long as the weight is recognised, in the balancing exercise, so long as it's invariable presence in the balancing exercise is safeguarded, surely the protection is there. [Pause]."
02:18:02.179,02:18:02.769,spk_0,"I think --"
02:18:08.040,02:18:08.070,spk_3,"I"
02:18:08.080,02:18:15.870,spk_0,"think that I'm looking at, is an end practical result. And"
02:18:21.719,02:18:21.889,spk_3,"I"
02:18:21.889,02:19:19.920,spk_0,"think if we are saying that, what underpins the consideration of whether a child gives evidence or not, is the likelihood of that being a damaging experience, I think we would say that that needs to be expressed clearly and up front. I mean, I don't think I can add to that, but we would be very concerned that if you put it into a balancing exercise, in the sense if you're saying, Well, that part of the balancing exercise outweighs Article 6 rights, Article 8 rights of other subject children, and so on and so forth, there is a, we believe, a real risk of watering down that protection, it's about maintaining that protection, and I think in a sense, we intellectually do not have a"
02:19:19.929,02:19:20.590,spk_3,"problem"
02:19:21.380,02:21:06.380,spk_0,"with wording that recognises and preserves that issue. The question is whether, if we put it as part of a balancing exercise, there is a tendency to water it down and a tendency to overlook that that is what drives the consideration of the court, and we say it's a far more honest, and it's a far more -- it's a far clearer message, in terms of the court's expectation of what will happen, day by day. And can I just say this, that in our consideration of this, we -- and it's a refinement that doesn't appear in here, and I want to put forward to the Court for consideration -- we do, and it comes out of a comment that Your Ladyship made yesterday, when you said, If you don't ask, you don't get, and actually that's very true because we don't ask, and we don't routinely think about it, and we think that that has got to change, and certainly what we are going -- we're submitting to the Court now, is that the question of whether a child who has made an allegation that's material to the considerations of court should be called to give evidence and cross-examined, that that must be considered in every case where that applies. So at the moment you've got a situation where the burden is on, in this case, stepfather to make the application. He drives it forward, it's for him to make that out."
02:21:06.390,02:21:07.380,spk_3,"What"
02:21:07.380,02:22:13.120,spk_0,"we would say is, if you place it as an obligation on the court at a case management stage in public law proceedings, and at the, and I'm afraid, they call them all sorts of different things, but there is a first directions hearing for the private law, that it's given all sorts of different phraseologies around the country, but at that first substantive directions hearing, where there is an obligation on the court to say, Do we have a material allegation here which may require the child to give evidence, that mandatory consideration is a huge step forward, we submit, in terms of Article 6 rights, that we accept that the burden should not be on the accuser to raise it. It's something that the court, in its inquisitorial role, should be undertaking, we believe, at this time. Sorry, I'm not"
02:22:13.120,02:22:19.430,spk_1,"quite sure it follows, are you saying that it has recently been introduced or you're saying that it ought to be introduced?"
02:22:19.440,02:22:20.440,spk_0,"We say that it ought to"
02:22:20.450,02:22:20.990,spk_3,"be."
02:22:21.870,02:22:40.130,spk_0,"This is -- is this something on which you have consulted Cafcass legal? We've talked broadly about it, and certainly there was no dissenting voice from there, and certainly the guardian who instructs me, is entirely on board with that suggestion."
02:22:40.140,02:22:41.520,spk_4,"Can I just note it down again?"
02:22:41.530,02:22:42.300,spk_0,"Yes."
02:22:43.300,02:22:43.790,spk_3,"We"
02:22:43.790,02:24:44.430,spk_0,"are saying that -- [pause] -- What I noted down and tell me if I got it wrong, is that the question whether the child should be called to give evidence must be considered in every case, the obligation is on the court in care proceedings at the case management conference, yes? Yes. And in private law hearings at the first directions hearing, the first proper directions hearing, whatever that is called. Yes. Is that correct? Yes, I think that the introduction to that was that, where -- And then you said the question was, Do we have here a material allegation, which may require the child to give evidence? Yes. And that should be considered, and rather than putting the burden on the person accused to rock the boat -- Absolutely -- stir the pond, whatever it is, whatever metaphor one wants -- and I'm sorry if that site that comes on the hoof, but it has, there is no doubt that the Article 6 element of this has troubled us hugely, and we don't feel that the process that we have now -- it's almost offensive for the person who is accused of having done something, to have to apply for a summons, because that's the way it's been happening, and we find that offensive, that cannot be the right way forward. And so we've been trying to think how you take that element, at least partially out of the equation, and it may have to be considered if the child refuses to give evidence. And, of course, if you put it into the court's consideration, that will have to be kept under review, undoubtedly, be kept under review by the court. Can"
02:24:44.430,02:25:10.440,spk_4,"I just try one idea? I mean, you were talking a moment ago about starting points. In these proceedings, the starting point, if there is one, is surely that the child's welfare is the paramount consideration, which under the statute, is given, I suppose, a slightly greater weight than anybody else's rights. But of course, there are several children or there are a number of children here involved, and someone has to feed that into this equation."
02:25:10.880,02:25:18.650,spk_0,"Yes. The interests of C would not be a paramount concern, would be an important consideration, but because of it --"
02:25:18.860,02:25:21.140,spk_4,"Yes, because they're siblings. Yes,"
02:25:21.140,02:25:41.920,spk_0,"this is not a decision about the upbringing of the child. This is the point. Technically -- Yes. -- we're talking about procedural decisions, and although it has been held, the welfare of the child is an important consideration in making procedural decisions, it isn't the paramount, governing, ruling consideration, that is when you actually make a decision about what's to happen to the child."
02:25:41.930,02:25:52.140,spk_4,"But bearing in mind that the procedural decision is really quite important in relation to the making of the proper substantive decision, I can't really detach them very easily."
02:25:52.950,02:26:35.810,spk_0,"Well, statute's clear about it, and I think that probably feeds into our feeling that -- about this being an issue as a starting point, rather than in the balance, because you don't have that paramountcy that applies to this decision. We believe that you've got to find some other way of recognising how important this decision is in terms of the child giving evidence, and because we don't have the paramountcy applicable to this, I think that's why we land up in the place of saying to you, We believe there should be a starting point, I think that's at least part of the argument."
02:26:36.530,02:26:38.690,spk_1,"Well, would that be convenient moment, Ms Branigan?"
02:26:39.530,02:26:40.650,spk_0,"Oh, My Lord, yes, I'm so sorry. Yes."
02:26:40.660,02:26:42.070,spk_1,"How are you doing, do you think?"
02:26:42.210,02:26:43.570,spk_0,"I think --"
02:26:43.580,02:26:45.250,spk_1,"I [inaudible] we've asked you an awful lot of questions."
02:26:45.260,02:26:47.290,spk_0,"I think I've got another 20 minutes."
02:26:48.590,02:26:49.120,spk_1,"[Inaudible] two"
02:26:49.120,02:26:49.860,spk_0,"o'clock."
start,end,speaker,text
00:00:41.040,00:00:41.870,spk_0,"Yes. Miss Branigan."
00:00:42.890,00:00:43.100,spk_1,"My Lord"
00:00:43.100,00:00:45.350,spk_2,"I have been asked to"
00:00:45.360,00:00:46.630,spk_1,"just clarify"
00:00:46.630,00:01:05.740,spk_2,"the situation, so far as Natalie was concerned, she was inadvertently included as one of the children in the original application and therefore joined to the proceedings. Yes. Therefore, she was represented and then her honour Judge Marshall discharge her from the proceedings when it became clear that she was"
00:01:06.200,00:01:07.540,spk_1,"incorrectly included in"
00:01:07.540,00:01:11.040,spk_2,"the application and that she had no other valid"
00:01:11.330,00:01:11.910,spk_1,"point"
00:01:11.910,00:01:13.200,spk_2,"to make within the proceedings, as"
00:01:13.640,00:01:14.310,spk_0,"a party."
00:01:14.310,00:01:15.440,spk_1,"She was already 17, wasn't"
00:01:15.440,00:01:27.700,spk_2,"she? She was. Yes. Yes, it was a mistake. And in fact, she she was the subject of the police protection order as well, which was slightly harmful to the circumstances but. Oh well."
00:01:27.710,00:01:29.720,spk_1,"No doubt somebody is advising her accordingly."
00:01:31.440,00:03:19.240,spk_2,"Looking at what we say should be the starting point. Can I just consider, the issue of the welfare of the child and in the context and this feeds directly into my paragraph 47 where I say the welfare, of the child is irrelevant but not paramount consideration it links into Mr Geekie's point about whether a non subject child, so a child who is simply a witness within proceedings has Article 8 rights engaged, so not as confident as Mr Geekie on that. But what I would say is that if the court is considering a child as a witness and in no other capacity, we would say that that child's welfare is relevant and that probably actually answers the Article 8 point if that's engaged. But when we say welfare of a child is relevant, we mean for any child witness, whether a party or no. The way in which we had formulated the factors to be put into the balancing exercise came as is clear from paragraph 45 of the Medway case from the judgement of the Lady Justice Smith, where she went on to look at the various factors, she's put them in a much more generalised form. We don't have any objection to a more detailed formulation, I think you just for a moment oops, of"
00:03:19.240,00:03:19.730,spk_1,"course,"
00:03:29.970,00:03:44.720,spk_2,"yeah, okay, My Lords have that at tab 4 in the authorities bundle. Well she's"
00:03:44.720,00:04:04.130,spk_1,"basically talking about what the extra evidence will bring to the quality of the evidence before the court and the capacity of the court to do justice and reach the right result. On the one hand and the harm that very process may do to the child on the other. That's basically, what she's doing isn't it?"
00:04:04.190,00:04:11.690,spk_2,"Absolutely. And we would say that actually, the last sentence of paragraph 45 actually would not be"
00:04:11.690,00:04:14.050,spk_1,"necessary, if you"
00:04:14.050,00:04:29.030,spk_2,"had the starting point that we suggest, because that feels in the current evidential base in relation to harm children, but as I say, we don't have any substantive objection to a more detailed formulation as put forward."
00:04:29.030,00:04:32.860,spk_1,"That that that may be the head of the pin on which we're currently dancing, Miss Branigan,"
00:04:34.410,00:04:36.070,spk_2,"Whether -- yes --"
00:04:36.070,00:04:41.830,spk_1,"it's a starting point or whether it's a factor which we take for granted because it's so important,"
00:04:42.880,00:07:23.600,spk_2,"Well, can I? It links into a practical concern I have, And so perhaps it's worth dealing with at this stage. What we don't want to do in my submission is to land ourselves in a situation where this issue becomes a dominating feature of the overall case management. Our concern is that if you do not have a starting point, the court could be confronted with a very detailed inquiry simply about whether a child should give evidence and that that is not what we intend at all, but to pick up a point that Miss Davis made, it is and without making any assumptions about whether these allegations are right or not, or the propensity of that. If in fact you are a parent who has abused, it is undoubtedly in that party's interest effectively to make life as difficult as possible for the child. And we are really concerned about setting up a situation where the court has to hear detailed evidence about what the child feels about this, child thinking about it, potentially the social worker and the guardian being challenged on their analysis of whether this is going to be harmful to a child or not. I'm thinking about a sliding scale of children, whether a child of, say, the age of C is more ahead than her contemporaries and therefore more resilient. We really want to guard against that situation, and we do and I've said it several times. I'd say it for the last time. We really do believe that the court has to send the signal that the child is protected in this situation and that it is going to be, for the person seeking that child to give evidence to formulate the particular reasons, and I think that's the way it has to be. If we're going to keep this within its proper bounds,"
00:07:25.460,00:07:26.740,spk_3,"I take it the impression."
00:07:26.750,00:07:27.160,spk_1,"So"
00:07:29.270,00:07:39.050,spk_3,"there's some judgement in this case that it's an easy decision, even under the present law."
00:07:39.060,00:07:41.170,spk_2,"No.. no"
00:07:41.180,00:07:43.740,spk_3,"I don't know how long it took to argue the case in front of her."
00:07:43.800,00:07:44.890,spk_2,"I don't"
00:07:45.360,00:07:47.380,spk_3,"know how long did"
00:07:47.390,00:08:09.980,spk_2,"certainly written submissions had to be presented for that. We certainly presented a position statement for the hearing on the 23rd of October, which I think was then amplified on a second occasion. Could we just thinking about the factors that may be placed into the balance?"
00:08:09.980,00:08:11.120,spk_4,"We would"
00:08:11.120,00:08:33.010,spk_2,"probably say that the quality of the A B interview comes high up the list. Clearly, if you have a well conducted interview, that is going to be an important part in the balancing exercise we suggest. And equally a poorly conducted interview would tend towards an argument that the charge should be called."
00:08:33.969,00:08:35.360,spk_5,"Could you switch on the machine on as well."
00:08:35.669,00:08:59.450,spk_2,"Oh I'm so sorry. That so sorry. We also think that the nature of the challenge to the allegations is important and it picks up on the keeping your powder dry issue. If you have a parent who has formulated sensibly and clearly"
00:09:00.390,00:09:00.610,spk_1,"a"
00:09:00.610,00:09:34.700,spk_2,"series of challenges to the evidence, again that would way we we submit in the balance. If you have a parent who simply said, Well, it's all a lie and is silent in every other respect that those are the two polar parts of the argument. But it may be that the nature of the challenges would be an issue to be taken into account, not"
00:09:34.700,00:09:38.340,spk_5,"the nature of the child's allegation. It's the nature of the father's response."
00:09:38.340,00:09:39.120,spk_2,"Absolutely."
00:09:39.390,00:09:48.460,spk_1,"If he's saying that can't be right, because that's something you really need to know what the child has to say about that. This is without prejudice to how you go about it."
00:09:48.470,00:09:49.570,spk_2,"Yes, because"
00:09:49.570,00:10:02.340,spk_1,"it seems to me there are many, many ways in which one could go about. But that's a very different question from his saying, Oh, she's always been a liar. She's telling lies. It's all a tissue of lies and I'm not going to tell you why etcetera."
00:10:03.350,00:10:38.480,spk_2,"And I think that also gives you a sense of the person that you're dealing with. Are they looking at this as an opportunity to make life as difficult. It is possible for the complainant, or do we have a genuine situation where the court really needs to be looking at the quality of the challenge and assessing that evidence? And we do think that's an important part of this and it may be that that direction needs to be incorporated, at the preliminary hearing where you're looking for a response to those allegations."
00:10:39.080,00:10:47.490,spk_6,"What do you say? The challenge in this case falls on the spectrum between what you described as the two polar points."
00:10:49.750,00:11:26.280,spk_2,"In terms of the statement filed within these proceedings, it says it's untrue. Having said that, there is the father's interview with the police and he has also, sorry. And he has also provided for the forensic scientists an account. And I'm not quite sure how this has come about because I'm not in the proceedings as a whole in the bundle as a whole is not here. But he has formulated his explanation for the semen being on the skirt."
00:11:26.290,00:11:31.540,spk_6,"Not likely that the child would be cross examined about that. Surely?"
00:11:32.560,00:12:11.870,spk_2,"Well, one would absolutely hope not. As I understand it, the forensic scientist is warned, and so but just thinking about that for a moment. If the forensic scientist says that's an extremely unlikely explanation, and we know that that's her position. We haven't had any sense of where the alternative lies. And so the answer to the question is, I think in this case, somewhere between the two, we"
00:12:11.870,00:12:13.230,spk_1,"don't have a very detailed"
00:12:13.240,00:12:43.240,spk_2,"excuses. But we do have the interview and we have some information, but we don't have and this isn't a criticism of your father, but what we don't have is any sort of response to the allegations of physical abuse. And I think we have our own views about the case management of it. But there it is. That is the factual situation at the moment as it stands. Nor do we have any detail from the mother about what she says"
00:12:44.560,00:12:45.640,spk_1,"about the allegations"
00:12:45.640,00:12:55.920,spk_2,"that C has made in respect of domestic violence to her and things that she's seen. We just have from Mum. I think some of that's probably right"
00:12:57.310,00:12:57.500,spk_1,"and"
00:12:57.500,00:13:37.390,spk_2,"I've shifted my position to that extent. I don't know if that's helpful or not, but I think we're sort of halfway between the two ends of the spectrum here. We would also say that the factors should include the observation that a reluctant child should not be forced to give evidence, how that we'd sort of put it above the line if I can put it in that way because it's included in my bullet points at 47 on Reflection, it may well be that that sits below the line in terms of"
00:13:37.390,00:13:50.170,spk_1,"factors that's on the harm side of it is your first three factors were on the willing to improve the quality of the evidence before me. This is a harm factor. It is."
00:13:55.130,00:14:05.820,spk_2,"Now, from my Statement of Case and I think from the arguments put forward by the local authority, I think the court understands where we stand"
00:14:06.970,00:14:07.230,spk_1,"in"
00:14:07.230,00:15:25.830,spk_2,"general terms about C and her evidence. We align ourselves with the arguments that have made that the law, as it apparently stands, was properly applied by this judge. And there's no challenge to that in this court. Question is whether you shift the goalposts, and I think what we would say is that it's the degree of movement that is probably going to determine whether the decision Per se can stand or whether it needs to be re referred to the first instance judge. And obviously we've queried whether that judge, in fact, can be Judge Marshall. Not I don't want to be in any way offensive to the learned judge, simply that she has taken a quite clear view in this case about whether or not she needs to hear the child. And I think in so doing, she has certainly given some indication about where she feels the truth may lie. And in those circumstances, it may well be It's proper for somebody else to look at it a fresh, but we don't necessarily invite specific reference to that. But I think it's an issue. Well, we've we've got"
00:15:27.470,00:15:33.910,spk_1,"a number of possible choices. Haven't been home. One is we simply dismiss the appeal."
00:15:33.920,00:15:34.410,spk_2,"Yes,"
00:15:35.610,00:16:08.510,spk_1,"things go ahead on Monday as planned. Another is that we allow the appeal and say this discretion has to be exercised afresh. Now, if we were to do that, the question would arise. Can we ask Judge Marshall to reconsider matters? In the light of the judgement of the court bearing in mind."
00:16:08.520,00:16:08.960,spk_2,"And"
00:16:10.520,00:17:15.640,spk_1,"I mean, I have to say that whatever the criticisms that can be made of her judgement or of the present state of the law. And, of course, I have read with care what Lord Justice Rimer had to say about it. This was it seems to me, a pretty full and careful consideration of the issues, whether it reached the right result or whether it gave the right weight to the right things. I haven't read a lot of judges who have taken as much care of this sort of issue as as she did, and, if she were able to revisit the issue at the outset of the hearing on Monday and supposing she were to come to the conclusion that, having looked at whatever this court says, she had perhaps given too much weight to one factor and not enough and had or applied the wrong starting point or whatever and therefore decided that she would ask Charlotte give"
00:17:15.640,00:17:16.250,spk_2,"evidence."
00:17:17.240,00:17:28.370,spk_1,"What would the guardian's view of that be? I know that Charlotte has not been told that we're talking about her today, but we do need to know what the guardian's view would be."
00:17:28.610,00:18:02.850,spk_2,"And I can tell the court exactly what that is. Can I just put it in its historical context? When the court was considering between the 23rd of October and the 25th of November, the question of whether C should give evidence, The Guardian and her solicitor of visited C specifically to ask her view about giving evidence twice. She"
00:18:11.260,00:18:11.440,spk_0,"I"
00:18:11.440,00:19:07.650,spk_2,"think, the issue was we tried to make it as straightforward as possible and simply said that an issue had recently arisen about whether or not she should give evidence in both proceedings. She was told that evidence within the care proceedings was a possibility only, she said, that she would prefer not to do that is give evidence twice but would do so but would do so. Would what? Would do so if required. And the phrase that she used, which I think is a matter of concern to the Guardian, as she was saying, Well, she could use it as a practice run for the criminal proceedings."
00:19:11.370,00:19:19.030,spk_3,"I don't personally find that very surprising. No. Sound like her reaction sounds entirely common-sensible."
00:19:19.040,00:19:41.850,spk_2,"Absolutely. But I think what it does highlight is precisely the point about actually you can't take necessarily what the child is saying at its face value because we would say a child who is saying Well, it's a practice run for the real thing probably doesn't have a proper appreciation of what's in store for her. That would be our concern about it. So that"
00:19:41.850,00:20:29.960,spk_1,"is a separate issue. What's in store for her? Yes, because one of the things that we've been emphasising with councils throughout is that there's more than one way of confronting this situation, and it doesn't necessarily entail counsel for the father. Putting questions directly to there are other ways of doing it and still enabling him to put whatever precise challenge he may have. And you've identified one example where she said she actually says what happened in her interview. As I recall, she says, What happens? Well, he might want to put to her, Well, no, didn't I do this? There are various ways of doing that, so I"
00:20:29.960,00:20:41.900,spk_2,"mean, I think that's absolutely right. I think the difficulty is, of course, that those those ideas are embryonic. So far, the justice system is concerned. We simply haven't addressed our"
00:20:41.900,00:20:42.960,spk_1,"minds to it."
00:20:44.500,00:20:59.720,spk_2,"But I entirely agree there are other ways there are various ways of doing it. What has happened subsequently is that she was told by the Guardian by telephone of the outcome of the Court of Appeal hearing"
00:20:59.730,00:21:02.340,spk_0,"this paragraph 23 of yours, isn't"
00:21:02.340,00:21:44.810,spk_2,"it? And it's the reason I included it, because I I know we shouldn't over burden with facts that it seemed important. And it particularly seemed important to me because I was struggling when I first came into this many days ago to understand how it was that this watch of information had been forthcoming on the 22nd of December about the physical abuse and what triggered that. My speculation. It's speculation only, was that having been told she wasn't going to give evidence for whatever reason, it then came out. She,"
00:21:44.820,00:22:11.680,spk_3,"I mean, that does seem rather odd. Why should it make any difference to her producing this information? Whether or not she's going to give evidence in the care proceedings, she knows she's going to give evidence in the criminal proceedings, and she said she's or indicated she's fairly relaxed about giving evidence twice, although not surprisingly, she said she'd prefer not to. I don't quite understand where this is going at the moment."
00:22:11.690,00:23:17.910,spk_2,"I think there's a, there's a real difference for her in terms of making allegations that relate to her and allegations that bring in wider members of the family. And that was really that. The striking thing about the second interview was that in interview one, it was all about her. It was contained. She was going to deal with it. The allegations are much, much broader in the second, and I think there was a real can. Our worry is that she's got a concern that if she says these things that happened to her mother, it then puts her mother into the position of having to be in direct conflict with the father of the stepfather. And, of course, that inevitably happened as a result of the first interview. But it was much more direct in terms of Second Interview and implicating the other Children and bringing them into the arena. And I think that was that was our, that's simply also amateur. Look at it from our standpoint."
00:23:17.920,00:24:04.810,spk_3,"Can we go back to the original point? Is the possibilities as to the way, the case might get? I mean, one possibility is the one that My Lady was mentioning, that we if of course, I mean she's dealt with to either. The appeal fails, if the appeal succeeds, then it goes back to Judge Marshall or you say, possibly not Judge Marshall. That's one possibility. Another possibility, I notice in the case involving Lady Justice Smith and the court actually was invited and did decide the issue of discretion itself, which is what Miss Earley was suggesting, What's what's your position?"
00:24:05.150,00:25:23.880,spk_2,"Well, can I tell you what the child's position is now? Which is that there was a real explosion, as I understand it of emotions post the 13th of January interview, with the suggestion that she just wanted to wash her hands of it all,  the Guardian senses that she's come back from that point. She's certainly more reluctant and more ambivalent about the issue of giving evidence. Now the question I posed to The Guardian was if this court or another court said that she had to give evidence in the care proceedings, whether that's something that the Guardian felt that she could effect, so whether she could persuade C that that's what she should do. I think she feels that she could, but I think she's. She's concerned that post care it's much less likely that shell, I feel confident in the criminal proceedings, so that's her assessment of it at the moment."
00:25:28.630,00:25:31.490,spk_0,"Are you going to be involved next week?"
00:25:31.600,00:25:34.780,spk_2,"But my junior is, strange looking."
00:25:37.870,00:25:38.100,spk_1,"To"
00:25:38.100,00:25:59.410,spk_2,"the question of whether this court should exercise its discretion, I think we would say it depends on the extent to which the current applicable principles are going to be revisited. I know we"
00:25:59.410,00:26:03.090,spk_1,"get it right. You're happy for us to do it. We don't exactly"
00:26:03.100,00:26:03.920,spk_2,"exactly"
00:26:03.930,00:26:09.240,spk_1,"rather we send it back to a real judge who knew who knew about these"
00:26:09.240,00:26:27.050,spk_2,"things. I'm not sure about a real judge, but I think because we do see it very much the case management issue and something that's got to be kept under review, I think we feel the further we depart from where we are currently, the more appropriate it is for the first instance judge to make that determination"
00:26:27.060,00:26:33.880,spk_5,"how late in a four or five day hearing could be decided if it was revisited?"
00:26:35.140,00:27:07.450,spk_2,"I think the problem is the preparation and of course again. We've only got the special measures to take the guidance. But you certainly would not normally anticipate telling a child even today in anticipation of three working days before the start of the trial that it was required to give evidence and then do all that familiarisation. That is a longer piece of work, even for a child who is reasonably confident about giving evidence."
00:27:07.460,00:27:08.770,spk_5,"It's a familiarisation"
00:27:08.770,00:28:23.630,spk_2,"with the video link. Yes, certainly the recommendations the child should have a visit to the court should practice, if at all possible on the link, she's going to have to review her, interviews, which are four discs in all and quite lengthy, because she's got at the moment no idea that she may be required to give evidence next week, and that's a decision we just had to take. Do we tell her about the Supreme Court or not? And the decision, a joint decision between us and local authority, was not because we just weren't confident that she could take on on board the implications of that. So we are in a position where she's completely ignorant of everything that's been going on, and I think we would say on welfare for See that if she is to give evidence in the proceedings, we think next week is going to be too soon, and certainly we would be very concerned that we couldn't do a proper preparatory job with her to ensure that that was a as least harmful experience for her as possible."
00:28:23.640,00:28:25.610,spk_1,"Let's just let's just think of"
00:28:25.620,00:28:26.100,spk_2,"the,"
00:28:27.610,00:28:32.520,spk_1,"this is obviously thinking, worst case scenario from your point of view. So,"
00:28:33.510,00:28:34.600,spk_2,"we"
00:28:34.600,00:29:02.580,spk_1,"reached considerably different conclusion on the law. We think that the only thing for us to do is to exercise the discretion ourselves because otherwise it's going to build an enormous amounts of delay, and we decide that she should give evidence, which is going to be worse, putting off the fact finding hearing until"
00:29:02.580,00:29:03.410,spk_2,"May,"
00:29:04.650,00:29:24.180,spk_1,"or a very swift and skillful piece of work by the Guardian and Social Workers. That's the worst case scenario. I completely understand that. But I'm putting it through because we need to know the answer. Can"
00:29:24.180,00:30:28.810,spk_2,"I turn my back for a moment? Guardians, who is that, C from C's Point of view, the later may would be the worst case scenario that she would understand if we went to her and said because of the decision that's been made, we haven't got very much time. So we need to do X Y and said, and she thinks that intellectually, she'd be able to process that, whether emotionally, she's going to be able to process it. We have no idea. But from her perspective, she is incredibly concerned about the siblings. She's very worried about her sibling,"
00:30:28.820,00:30:57.560,spk_0,"just to mention another hypothetical possibility. If this court were to allow the appeal and sending the matter back to Judge Marshall for her to revisit her decision in the light of a judgement are Judgement. It is most undesirable that too much of those five precious days should be spent in"
00:30:58.160,00:30:58.780,spk_2,"making"
00:30:58.780,00:31:05.570,spk_0,"submissions to the judge. I would have thought I was speaking because entirely for myself. Now it seems to me"
00:31:05.570,00:31:06.050,spk_2,"that"
00:31:06.590,00:31:37.450,spk_0,"the judge, if that were to happen, should be given a copy of our judgement at the earliest possible moment and that she should invite strictly time limited submissions as to what she ought to do. But if that were to happen, of course it's for case management for her to decide how long to spend on it. But if she were, she probably would want to know what C's attitude was as far as anyone could tell her on Monday morning."
00:31:37.460,00:31:39.690,spk_2,"Yes, we would certainly do that."
00:31:41.200,00:31:42.160,spk_0,"As"
00:31:42.160,00:32:09.770,spk_2,"I say, it was a decision that we took. But we've certainly not hugely fearful about an adverse reaction if we went to her and said, Look, the decision is being reviewed. I don't think we probably even put it in the context of Supreme Court would simply say that the decision had been reviewed and that she was needed to give evidence. And we'll need to put her through the preliminary bit reasonably rapidly."
00:32:10.310,00:32:13.730,spk_1,"Some 14 year olds would be proud to be making law in the"
00:32:13.740,00:32:14.260,spk_2,"Supreme Court."
00:32:14.270,00:32:15.830,spk_1,"We'll"
00:32:15.830,00:32:43.130,spk_2,"probably tell her about it later on. But I'm not sure that in the context of what she's got to make sense of immediately, I'm sure we'll have the wider discussion in due course. But I think if she's got to make sense of a situation where she has now understood for some months that she hasn't got to give evidence, that's changed and next week's that the week I think there's a limit to what we should be telling her at this stage and how she should make sense of that."
00:32:43.250,00:33:03.280,spk_5,"If the matter on My Lord scenario goes to go back to the judge for her to decide a fresh on Monday, I mean between now and Monday, or presumably in order to make it a real possibility of the child could then give evidence if the judge so exercises the discretion of the child, will have to be informed asap and started."
00:33:03.740,00:33:05.140,spk_2,"Absolutely. Yes,"
00:33:05.140,00:33:07.050,spk_5,"we were training process would have to"
00:33:07.050,00:33:49.580,spk_2,"start. We wouldn't delay in those circumstances, and we tell her that in fact she may be required and we want to show her the court, and we would we would do that. This guardian would undertake that she has a good relationship with this child, as does in fact, the social worker. And simply the practical point that I would want to be clear about before we undertook that exercise is that in fact, there's going to be a video link available at Portsmouth because we have no idea about that. We have to book the Criminal court in order to do that, and so that that information would have to be fed in. What"
00:33:49.580,00:34:42.260,spk_3,"concerns me is I mean, it took two months to sort out this issue and get a very comprehensive judgement last time. If we send it back now, despite what My Lord said, isn't there a real risk that an awful lot of time is going to be taken? And then on Monday, the judge is going to want to take time to put our reasons in writing and inevitably, next week would be at risk, and there's the additional factor that if we send it back now, you will have to tell you see of a risk what's she going to think of the legal system? It goes one way or another, like an electric switch, and she then she's got to be in suspense for a week and maybe the switch is turned off again and she's not giving evidence on Tuesday. I just wonder whether it's a very realistic to say that"
00:34:42.270,00:34:43.300,spk_2,"and"
00:34:43.389,00:34:44.450,spk_3,"keep the date."
00:34:44.700,00:34:55.320,spk_2,"The risks attendant on all of that. But we have got to keep see central to the considerations and if,"
00:34:55.990,00:35:09.290,spk_3,"well, what I'm suggesting, I'm just coming back to the point that I put before and it may be, it may be that I'm overlooking something, but wouldn't it be better to have a decision now if we got to that point?"
00:35:09.640,00:35:47.600,spk_2,"But I'd absolutely accept that as a matter of principle. What I'm saying is that we shouldn't shoot on the decision into that. If in fact Your Lordship Decision moved significantly away from where we are, we have to look at completely different applications, discretion that that's the only thing that concerns me about it. I fully recognise the thoughts of the point it's going to. It's going to depend, I'm afraid, on where the decision falls into course. But we have to keep see central to the consideration."
00:35:47.600,00:35:56.420,spk_1,"Which is why I asked about her comparative guardians view of her comparative view of delaying next year's hearing and"
00:35:56.930,00:35:57.690,spk_2,"not being"
00:35:57.690,00:36:06.000,spk_1,"faced with the sudden requirement that people might want to put some questions to her. I'm keeping an open mind about how that might be done."
00:36:06.000,00:36:35.730,spk_2,"Yes, and I don't think we're particularly driving any point. And at the conclusion of my submission, I put forward a series of propositions, I don't think any of them is necessarily perfect or imperfect. It's where we are on the timetable, and I think we've got to do the best we can. Provided the best we can, doesn't cross a line, which then becomes in a court to seize well,"
00:36:36.540,00:36:50.730,spk_5,"the video link. You only need it for an hour. I don't know. I mean, nobody is obviously asked the Port Court at Portsmouth whether that court is free. But you only need it free for a very short time,"
00:36:51.560,00:36:51.990,spk_1,"wouldn't"
00:36:51.990,00:36:52.340,spk_0,"you?"
00:36:55.030,00:37:22.820,spk_2,"I think it's very much. I'm not sure that's necessarily right, because, of course, the physical allegations now involve the mother's team. Fairly significant if the mother's position is that she denies the reported violence meted on her and the Children in her present. That's a detailed piece of cross examination. I frankly be astonished. If you're looking at less than half a day,"
00:37:25.090,00:37:39.950,spk_3,"How can you cross examine on that? I mean, one doesn't know what the allegations are, but it sounds like the sort of cross examination which says it didn't happen. How that can go on, especially with a child for any length of time. I find"
00:37:39.950,00:37:48.290,spk_2,"difficult. Yeah, I mean, it does. I'm afraid it does, and well."
00:37:48.290,00:37:58.780,spk_3,"That may be a very good reason why people don't shouldn't be allowed to cross examine two very often, but if it happens, But it sounds if it's a a"
00:37:58.790,00:38:38.800,spk_1,"cultural. This is one of the reasons why I keep on saying that direct questioning is not necessarily the right answer in these questions. What might be the right answer is formulating precise points of challenge to precise points made by the child and enabling those simply those to be put, maybe by counsel for father, maybe by counsel for mother or through an intermediary who might be the judge who might be somebody else rather than but but questions in advance rather than the sort of fishing type cross examination that were all too familiar"
00:38:38.800,00:38:45.420,spk_2,"with. And I think for me that that's where we produce the case of SME Sweden."
00:38:45.670,00:38:46.290,spk_1,"We"
00:38:46.290,00:39:58.270,spk_2,"rather like that suggestion, actually. I mean, it's very analogous to the unimplemented Section 28 but a situation where a child has asked a series of questions in a video interview we think could be a very significantly positive way forward. When you're looking at these sorts of issues, in reality, I think it's it's not about a child not being challenged. That's not the concern. It's not about blindly accepting that children say what I think. The real fear is is that children will be exposed to, to use Your Ladyship's words, a fishing exercise, particularly when you're looking over your shoulder at criminal proceedings. Because as night follows day, there'll be applications for that, that evidence to be transcribed so that when the child says something slightly different in the criminal proceedings, previous inconsistent statement will be fit. I'm afraid we can see all of that as part of the"
00:39:59.100,00:40:03.640,spk_1,"think of it as an old style committal. That's what he really wants."
00:40:04.420,00:40:06.430,spk_2,"Yes,"
00:40:07.190,00:40:07.820,spk_1,"and"
00:40:08.780,00:40:09.490,spk_2,"so"
00:40:09.500,00:40:12.270,spk_1,"maybe an unduly cynical remark and I apologise to Mr Geekie."
00:40:12.680,00:41:07.970,spk_2,"But it may well be that that that's it's more happily, in a sense, between the competing Article 6 rights, which stepfather undoubtedly has, and this child. And I think the problem is that we do tend to think in terms of that very stylised cross examination that one is familiar with in the criminal situation. And I think we we potentially have a huge opportunity to take things forward in terms of how we think about the reception of evidence and how we challenge and how parents can legitimately challenge the Children without it turning into that sort of practice run for the criminal proceedings. Let's see if I can answer his questions that was completely inappropriate for the child. And so"
00:41:08.390,00:41:08.640,spk_4,"I"
00:41:08.640,00:42:02.180,spk_2,"think there is an opportunity here. We would say it's an opportunity that, at least in parts, got to be informed by the work from the family Justice Counsel. But why not strike out and say you didn't implement Piggott? But we think it's a good idea in terms of the unimplemented Section 28 were not confined by the statute. Let's grasp it, and it's about how you make those sorts of imaginative proposals for Children. And I think, from where we stand, that's, I think, ideally, where Miss Jones and I would have liked to have taken out our thinking in the course of these submissions. But Your Lordships knows about the time constraints, and that's the sort of thing that we would have been looking to do with the longer leading period."
00:42:02.220,00:42:07.450,spk_0,"We're not going to have time, I think, to preempt the entire work, the family."
00:42:08.410,00:42:27.760,spk_2,"But it may well be that this court can say we have got some opportunities. Let's think about them. But it's what you do in the meantime and how far you go, that is our concern. I think that's reflected very clearly on our case statement, and I hope through submissions, through me,"
00:42:31.580,00:42:31.980,spk_0,"can"
00:42:31.980,00:42:57.150,spk_2,"I just. The only other invitation I have for this court relates to something that has been gone over time and time again by the court of appeal. But it's simply not happening, which is that about the liaison between care and criminal judges. And it's a heck middle horse I know. Lord Justice Wall in."
00:42:57.530,00:43:01.380,spk_1,"If Lord Justice Wall can't get his own way in this matter, I'm not sure"
00:43:03.700,00:43:14.730,spk_2,"it it is like being a head against brick wall. We know very little of what's happening in the criminal case. I don't think we even know who the allocated judges for this case,"
00:43:14.790,00:43:16.680,spk_1,"I"
00:43:16.690,00:43:31.190,spk_2,"don't know whether it helps or not, but it is frustrating that the expectation is of closer liaison, which is simply not taking place. So I don't know whether you would feel it's appropriate to make a comment about"
00:43:31.190,00:43:50.020,spk_0,"it, I'm sure, is very, very aware of this prop, and the rest of us are to a lesser extent. But we cannot, I think, solve all that in our judgement today. And we have quite a lot of other things that we are going to have to try and solve"
00:43:50.030,00:43:50.880,spk_1,"a little bit."
00:43:53.360,00:43:53.660,spk_2,"Lord"
00:43:53.660,00:43:54.980,spk_1,"Judge's judgement in"
00:43:54.980,00:43:58.420,spk_2,"me. Okay,"
00:43:58.420,00:44:01.180,spk_1,"So looking up, Levy"
00:44:01.190,00:44:04.710,spk_2,"Levy, is that the one that's in my four paper buildings? Yes."
00:44:10.630,00:44:54.090,spk_1,"I was. Was it in this one, or was it in? Yes, quoted by Lord Justice Woolf, which suggests that the first joint directions practice direction in London was in 1993. I don't think it must have been later than that. I think it was because it was when I was liaison Judge for London and his honour. Judge Himes, who was the recorder of London and who had been the designated family judge in Norfolk in Norwich, got together to try and produce a practice direction for London, probably without much practical success. But we certainly tried produced one. So I think it's later than 93'."
00:44:54.100,00:44:57.030,spk_2,"I think it's later than that, but it's certainly"
00:44:57.040,00:44:58.020,spk_1,"been"
00:44:58.020,00:45:02.750,spk_2,"on the agenda for a while, that's for sure. But"
00:45:03.700,00:45:03.970,spk_0,"you"
00:45:03.970,00:45:29.980,spk_2,"know the sort of situation that his honour Judge Crime was faced with when you've got the care and the crime converging into the one space and the timetable, one would have to say, You know, it's sensible for the two judges to be talking to each other to see the best way through in a particular case, and delay is always the problem. But why"
00:45:29.980,00:45:30.830,spk_1,"don't you know,"
00:45:30.890,00:45:34.380,spk_2,"why don't we know about the cruise?"
00:45:34.380,00:45:41.230,spk_1,"Got the crime? Is it because nobody's got it? Or is it because court service won't tell you"
00:45:42.870,00:46:12.500,spk_2,"there is? There isn't an allocated judge, you say? Yeah, right. So it doesn't appear that there's an allocated. And of course, there was an adjourned. I want to say case management conference. I don't know where that chose me age, but there's certainly an adjourned hearing, and I have no idea why that was adjourned either. And it does reflect Lady, My Lord. I don't know if I can assist any further."
00:46:13.150,00:46:21.460,spk_0,"Thank you. Thank you, Mr Geekie."
00:46:22.950,00:46:23.430,spk_1,"Let"
00:46:23.430,00:46:40.370,spk_4,"me just tell the court a simple matter of information, which doesn't seem to me to be relevant. But in case anyone thinks it is, in fact, I'm not able to represent this apparent. At the hearing on the 8th of March when it had to be put over on the Fourth of January, I was already engaged in a herd matter, and Judge Marshall knew that,"
00:46:41.740,00:46:41.970,spk_1,"My"
00:46:41.970,00:46:46.620,spk_4,"Lord, overnight we produce for the court the up to date version of the."
00:46:46.630,00:46:48.860,spk_0,"But will Mr Liebrecht. No,"
00:46:48.880,00:47:01.010,spk_4,"isn't it? The funding in the court below has been leading counsel only Mr Liebrecht assistances for this hearing. Only alternative leading council is in place and ready. Whatever. Whatever comes."
00:47:01.010,00:47:01.510,spk_0,"Thank you."
00:47:03.370,00:47:21.250,spk_4,"Overnight, My Lord. We provided the ABE interviewed up to date, maybe interview document. I believe we will have that. It's updated on that one, My Lady, that the one we handed him was the prior one because it was only just before coming to court, we realised that the wrong one was in the bundle, so that's been updated."
00:47:21.250,00:47:29.930,spk_1,"Now, some very kind person left this, but you better have now that we've got the photocopies, you better have the original. Thank"
00:47:29.930,00:47:31.310,spk_4,"you for this."
00:47:31.460,00:47:43.860,spk_0,"I scan this for any indication of when it was actually published. It seems to be a modern government habit just to suppress any data when the document comes out. Yes, it seems to have been,"
00:47:45.500,00:47:47.530,spk_1,"but"
00:47:47.770,00:47:49.480,spk_4,"ultimately that one has a date. And I think the"
00:47:49.480,00:47:50.810,spk_0,"best ones. This"
00:47:50.820,00:47:51.800,spk_4,"this"
00:47:51.800,00:48:08.670,spk_0,"refers to a code of practice that came into force in April 2006 sometime after that. But, yes. Page, page 9 of the forward is the nine is the best indication or"
00:48:08.670,00:48:10.170,spk_4,"10. The 2000"
00:48:10.180,00:48:11.050,spk_0,"revision 2007"
00:48:11.050,00:48:12.550,spk_4,"revision."
00:48:13.670,00:48:14.480,spk_0,"Oh, yes,"
00:48:14.490,00:48:16.950,spk_4,"I believe it may be that that is what"
00:48:16.950,00:48:20.270,spk_0,"this is. So this is 2007. Probably"
00:48:21.050,00:48:21.690,spk_4,"thereafter."
00:48:21.690,00:48:22.200,spk_0,"Yes."
00:48:22.210,00:48:23.930,spk_4,"Yes,"
00:48:25.060,00:48:29.580,spk_0,"right."
00:48:31.640,00:48:31.940,spk_2,"My"
00:48:31.940,00:48:43.390,spk_4,"Lord. Similarly, we provided to the court the relevant part of the Civil Evidence Act 1995. Just so the court had before the provisions of Section 4, Subsection 2. I don't suppose to go to the"
00:48:43.400,00:48:44.650,spk_0,"city provided"
00:48:44.650,00:51:52.300,spk_4,"those in the light of submissions that have been made. My Lord, may I make a brief comment upon just a few matters that have been raised Firstly, the discussion that has taken place in relation to the ABE interview and its status as the best evidence. I don't contend the proposition for one moment that in the case of a child who has been abused, it is likely to be the best evidence. But the difficulties we apprehend it is that it does not deal with the difficulty of testing in an account, which may not be true, so that that is the heart of the difficulty for those cases where there really is an issue as to reliability. The ABE interview, because of the careful manner in which it is, produced, may disguise rather than reveal difficulties. May I just say a word about some of the exchanges that took place in relation to what was styled very loosely. I appreciate the old Bailey cross examination, but certainly I'm sure we all understood what was intended by that loose styling in a criminal case. It may well be that there are limitations upon the degree to which a Crown Court judge can intervene the reasons for that particular to the jury trial. But in the family case, we certainly would accept that a family judge has a continuing duty to safeguard the welfare of a child who is a child witness and in those circumstances, in the way that was canvas to a degree in submissions, I think particular between myself and My Lord, Lord Kerr, it would be the duty or certainly available to him, probably the duty of the family judge, too. Be more interventionist in relation to the way in which cross examination is conducted, and certainly if one is, I appreciate My Lady has raised other matters about how these things can be done, and I'll come to that in just a moment. But if one is thinking in terms of cross examination will be through, albeit through a live link, this court could make clear we would submit that it is the duty of the judge to continue to control the process. A live point of that is the point that I made yesterday about the status of the child, who is a simple witness, what I call the stranger child. And there any Article 8 rights they have. The way in which I hope will certainly intended to put that is that it's that individual, that child before the court, has a right to respect for private life, and these processes are intrusive into private life total that extent that child has, the court has to look to that child's right. That consideration will be considerably more circumscribed when one is the subject child. But the point is that in any case of any child witness before the court, the judge would have a continuing duty and therefore would be obliged to have control over the way in which the cross examination proceeds. So the"
00:51:52.310,00:52:32.530,spk_3,"real trouble in these cases is that in the absence of any actual positive explanation or positive case, I suppose there may be a positive case in the present case in the sense that whatever you said is motivated by jealousy, right. But in the absence of any positive case about the alleged facts, cross examination usually reduces itself to asking the witness to go through the whole story all over again and then hoping that in some respects the account is slightly inconsistent and then building on them. And that is a very lengthy exercise. And I've often thought entirely unproductive, but maybe"
00:52:32.570,00:53:05.890,spk_4,"cases. I recognise the difficulty, My Lord, and I don't disagree that that is what sometimes occurs. Whether it should do or not is perhaps a different matter, but I would respectfully submit that often. The more important and perhaps more effective, cross examination is when one is looking at surrounding details. Because if these cases have background and if they are surrounding details that are not credible or don't conflict with other evidence that can sometimes give a road into understanding more about what the child has had to say."
00:53:05.900,00:53:50.460,spk_3,"What I understand what actually I think to some extent seen on the continent, is whether question is actually done by judge. And it may be with an intermediate with the same. The witnesses, in fact, effectively given their previous story and then our supplementary questions on the assumptions. On the basis of that, I think to an English cross examiner that giving too much away in the sense you're helping the witness too much might be the view. But it was certainly a much shorter process, you say, Judge says, You've said this before. Now I want to ask you just these questions, but it seemed to me with a child that might be quite an appropriate way of dealing with it, but it may be it's anathema to someone in your position"
00:53:50.470,00:53:51.330,spk_1,"well,"
00:53:51.370,00:57:32.360,spk_4,"I would suggest that many family advocates would recognise that long and head on. Conflicted cross examination about the details of the event itself may be very unproductive. It may have a different impact on in front of a jury, I don't know. But many take the view that to examine surrounding detail to examine points which can reveal whether the child is reliable or not and can reveal context and background can be more productive. And the point about that cross examination is it's less likely to be traumatising for the child. It's not one of the key concerns, of course. This is asking the child have to relive the event, and that is a supremely sensitive arena. Other questions which can be revealing, can be illuminating, for the tribunal can be in relation to aspects which are less difficult for the child. And so I simply invite the court not to approach on the basis of it has to be a you did. You didn't in relation to the the events themselves, but there can be much more that can be revealed and of assistance to the tribunal of fact. Well, My Lady, turning to the alternative proposals about other means in which this might be done. I've made submission already in relation to what we say about the standing or position of the work to be done by the family justice counsel in relation to this hearing. I don't propose to go over that submission again. The court has our position on that. Of course, I would accept that the Family Justice Council will be able to not only provide a depth and breadth of evidence, but also they will be able to advise on policy and practice. And all of that might inform future practice. What has been in a sense canvas before this court in the course of yesterday afternoon and today is the possibility of some form of Section 28 of the Youth Justice Act, which has not been brought in crime of the prerecorded cross examination being deployed within family proceedings. My Lord, I simply say in relation to that that that does seem to us with respect to involve such broad issues of policy and practice that although it might be something upon which this court could pass comment as to, the virtue of further investigation, as did indoor indeed did. Lord Justice Wall in S and W and W. We would respectfully suggest it would be. It's difficult to see how it could be a direct outcome of a hearing such of this, which is concentrating upon a specific legal test. May I just touch briefly on three or a couple of final short subjects? The question has arisen about the father's position in relation to any further application arising out of the interview. The Child on the 13th of January, 13th of January. My Lord, it's been quite impossible to contemplate putting that issue before Judge Marshall, because at all stages since the 13th of January, the question is to the appropriate test that Judge Marshall should have to apply if she had to reconsider. The matter has been under judicial scrutiny, as at the 13th of January, the Court of Appeal decision was pending that was promulgated, I believe on the ninth of February, and within days of that, this court has granted permission for the matter to come back to this court. So it's been quite impossible to invite Judge Marshall to reconsider that issue without her having available to her the test that she should apply."
00:57:34.920,00:57:36.400,spk_1,"Nobody's suggesting otherwise."
00:57:37.370,00:57:43.980,spk_4,"I perhaps I misunderstood. But I thought was a suggestion that the father perhaps should have taken it back in relation to that if I misunderstood,"
00:57:43.980,00:57:46.410,spk_0,"that may have been a bit of a suggestion."
00:57:46.960,00:57:47.450,spk_4,"Very"
00:57:47.450,00:57:47.840,spk_0,"well."
00:57:49.430,00:59:06.550,spk_4,"Finally, My Lord, the question of private law proceedings has touched upon by Ms Branigan. I believe in our written documentation. We recognise that the issues that are raised rising from this specific case were likely to have equal ramifications for private law proceedings. And it certainly would be consistent and right that whatever test there is should be applied equally in each is our submission. We also recognise and did so in the documents the additional particular difficulties that touch upon family private law proceedings because very often the parents are not represented, and the any account from the child does not come through independent sources in the way that it does in public law proceedings. And those are very real difficulties. I don't dissent from that. We also pointed out in our document that a similar situation can manage us in. The situation can arise in public law proceedings, where often now you have interveners who are individuals have been a legislative done acts and adjoined to the proceedings to make their representations in relation to those matters. And they, for similar reasons of public funding, will not have lawyers representing them. So it's a situation that does arise in public proceedings as well."
00:59:08.410,00:59:08.680,spk_2,"The"
00:59:08.680,00:59:43.690,spk_4,"additional difficulty for private law proceedings, as noted by Ms Branigan, is that it is recognised by many that the nature of the conflict in private law proceedings is perhaps the most fertile ground for false allegations to be made. So these issues are acutely difficult in private law proceedings, and I don't speak against any of you speak against any of the particular points Mr Branigan made about that we would, in large part, agrees the sensitivities and difficulties. All we could say is this"
00:59:43.690,00:59:45.020,spk_2,"that it"
00:59:45.020,00:59:57.950,spk_4,"must be right in our submission that the same tests must be applied and individual judges in individual cases will have to factor in all those elements to which Mr Branigan averted in particular. Whether or"
00:59:57.950,00:59:59.280,spk_2,"not an"
00:59:59.280,01:00:11.770,spk_4,"individual parent in person will be cross examining cross examining will have to be part of the evaluation. But I don't know, Mr Branigan suggesting anything else, but we would certainly submit."
01:00:11.780,01:00:12.530,spk_2,"A"
01:00:12.540,01:00:16.750,spk_4,"single test would need to apply across all relevant proceedings."
01:00:19.240,01:00:19.470,spk_1,"My"
01:00:19.470,01:00:22.060,spk_4,"Lord, those are the only masters I wish to raise in reply."
01:00:22.530,01:00:23.540,spk_0,"Can"
01:00:23.540,01:00:29.730,spk_3,"I just ask, what is your attitude about who should make the decision? If one were in your favour,"
01:00:32.520,01:00:32.790,spk_2,"My"
01:00:32.790,01:00:56.360,spk_4,"Lord, there are recorded for this court both in the judgement of our own Judge Marshall and judgments. The court appeal the facts as found in relation to this case. We submit that somewhat depending upon how style any judgement this court could say on those facts. This child should give give evidence,"
01:00:57.490,01:00:57.750,spk_2,"but"
01:00:57.750,01:01:11.210,spk_4,"it may be that your judgement would be such that it indicated that additional matters needed to be taken into consideration. And in that situation, we would accept that it will be very difficult for this court to exercise"
01:01:11.210,01:01:12.000,spk_0,"a primary"
01:01:12.000,01:01:14.770,spk_4,"discretion on factors as yet unknown."
01:01:15.360,01:01:24.230,spk_6,"Could I just give me for interrupting? Is that additional to the facts as found or additional to the material that we have considered?"
01:01:25.960,01:01:47.320,spk_4,"I when I was saying that I was thinking additional facts has found, but this court could if it so appropriate, look traditional facts as shown in the papers. But the more one is just arriving from the papers rather than the trial judge's primary position here in primary submissions, the more difficult I would respectfully submit it becomes to exercise the discretion of fresh. But so"
01:01:47.320,01:02:06.630,spk_1,"in principle, this sort of discretion is exercised on the basis of the material that the court has. The court isn't making up its mind about issues of fact, the courts just doing the best it can on the basis of the material that it has before it. It's a case management decisions,"
01:02:06.640,01:02:10.930,spk_4,"yes, and that's why I'm not taking a particularly firm line on this."
01:02:10.930,01:02:11.920,spk_0,"But if the judgement"
01:02:11.920,01:02:22.560,spk_4,"of this court was such that, it said that additional factors which don't have appear anywhere should have been taken into account and need to be laid before judge of first instance that pushes beyond."
01:02:22.780,01:02:31.420,spk_1,"If we were to say that we would need psychological evidence, expert evidence is to the harm of this particular child. That's the sort of thing."
01:02:33.610,01:02:57.010,spk_4,"Yes, I have in mind that we say there was no direct evidence of any particular harm for this child. But I hope, My Lord, My Lady. That's not ducking the question, but it's simply saying that on the facts as found, certainly you could deal with it. It may be that you say more would need to be taken into account."
01:03:04.610,01:03:44.910,spk_0,"Thank you. Thank you. Well, the court is very grateful to all those who have been involved in presenting this important and difficult to feel short notice whether you've made all solutions to us or not. And we will consider our decision and, we will immediately proceed to considering what I might call the logistics of how we get it out. I think it probably would be useful if someone from each team could remain available for the next half hour. That's not say we're going to give a decision within"
01:03:44.920,01:03:46.030,spk_1,"half"
01:03:46.030,01:04:19.650,spk_0,"an hour, but we may be in a position to tell you when we are going to do it, and that's not so. You need to stay in court or anything like that. If someone from each side could be around for half an hour with yeah, and it is likely, but not certain, but likely that what we announced in half an hour, we'll involve having someone here tomorrow morning but we will give you further information about that as soon as we can."
01:04:21.200,01:04:27.750,spk_4,"Well, thank you. So long as it's council for each party. Would the court be content?"
01:04:27.760,01:04:32.340,spk_0,"I thought I said that. What did I say? No you probably did"
01:04:32.530,01:04:34.450,spk_4,"I'm just thinking of a commitment tomorrow morning."
01:04:34.450,01:04:37.080,spk_1,"Which somebody thank each party."
01:04:37.110,01:04:38.690,spk_2,"I"
01:04:38.700,01:04:47.710,spk_0,"think it would be useful if someone from each party could be around for the next half hour. And it is likely that someone from each party should be tomorrow"
01:04:47.710,01:04:49.530,spk_4,"morning. I'm sure it's clear. First time. Thank you."
01:04:49.540,01:07:52.690,spk_0,"Thank you. Yeah. The court has reached a unanimous decision as to the disposal of this appeal for reasons that we hope to hand down in writing at 9:45 tomorrow and the order we propose to make. And this obviously is subject comments on drafting that they can result tomorrow, the order we propose to make is one. The appeal be allowed. Two, the fact finding hearing fixed in the Portsmouth County court for the eighth of March, 2010 is to proceed. Three, the question whether the child C give evidence at that hearing and then in parenthesis and if so, in what way and a parenthesis be remitted to her honour Judge Marshall, to determine in the light of the judgement of this court. Four, there be no order for costs except for detailed assessment of publicly funded costs and subject to anything which anyone feels obliged to raise straight away. We will return to it to this so far as necessary when the reasons are handed down tomorrow morning. Yeah, well, and and we are obviously very conscious indeed of all that needs to be done between now and next Monday. And that is why we thought it right as we had reached a unanimous decision to let you know straight away. And the reasons will be made available. Just, just as soon as we can. Thank you very much."