Kent County Council v D & Ors (Application for Re-hearing)

1. On 6 January 2015 I gave judgment at the end of a fact finding hearing in three related care cases, known as the D, E and F case. Those proceedings concern six children whose ages range between 3 to 15 years. That hearing considered the factual basis upon which the Local Authority alleged the threshold criteria had been established in each of the cases.

2. The findings I made are set out in a schedule of findings dated 6 January 2015, which are set out by way of an annex to this judgment.

3. One of the central issues in the case was the allegations of sexual exploitation made by a 16 year old girl Z. As part of the police investigation she was the subject of a number of ABE interviews as well as a number of section 9 statements. Z did not give oral evidence in the family hearing. I had considered a Re W application at an earlier hearing and concluded that she should not give oral evidence due to the harm such a course was likely to cause her, for the reasons set out in the judgment given determining that application. That ruling was not appealed.

4. In the fact finding judgment I did not consider all the findings based in whole or part on her evidence reached the required standard, although some did for the reasons I gave in that judgment. Those findings are: In relation to AK

1. That she was more involved with Z than she revealed ( 466 ). She was in regular contact with Z ( 481 )

2. That she was involved in the arrangements for Z being sold for sex, knowing that she was under 16 ( 484 )

3. That she was at least complicit in causing or permitting the exposure of Z to inappropriate and abusive sexual activity, knowing that she was under 16 ( 482, 497 )

4. That she kept Z in her home against her (Z’s) will ( 485 ) In relation to JE and the E household

1. That her knowledge of Z was significantly more than she revealed and this was due to more direct contact she had with Z than she said ( 480 ). She was in regular contact with Z ( 481 ).

3. She was probably at the least complicit to some extent in what was happening to Z in terms of her being sold for sex. The precise extent of her involvement/complicity is difficult to say but the Court is only able to make positive findings that she knew Z was being sold for sex and that she knew Z was under 16 years old and she took no action in relation to this ( 482 and 497 ). In relation to JC

1. That her relationship and knowledge of Z was far more than she has said ( 480 ) and that she was in regular contact with Z ( 481 ).

2. She was probably at the least complicit to some extent in what was happening to Z in terms of her being sold for sex. The precise extent of her involvement/complicity is difficult to say but the Court is only able to make positive findings that she knew Z was being sold for sex and that she knew Z was under 16 years old and she took no action in relation to this ( 477 - 480, 482 and 497 ). In relation to JS

1. That he was supplying drugs to JC from his home address ( 503(3) ).

2. That he introduced JC to drugs ( 501 ). In relation to LF

1. That he knew of the sexual exploitation of Z by individuals, although not specifically of her being exploited by JE ( 493 ).

5. Following the conclusion of the fact finding hearing the parallel criminal proceedings started on 12 January. Two of the mothers in the care proceedings, AK and JE, were defendants in those proceedings together with 5 male defendants facing charges of sexual exploitation concerning Z. Z gave oral evidence in those proceedings over a period of 12 days. In addition prior to giving oral evidence she was able to view her ABE interviews and read her section 9 statements. The memory refreshing procedure was video recorded. The criminal proceedings concluded on 6 March 2015 when HHJ O’Mahony acceded to the application at the end of the prosecution case that there was insufficient evidence for the case to continue on the basis of the inherent unreliability of Z’s evidence.

6. That determination resulted in applications being made by the following parties for a re-hearing regarding the findings made against them that related to Z’s evidence: (i) The mother in the D case AK (AK -findings 1, 2, 3 and 4). (ii) The mother in the E case JE (JE - findings 1 and 3). (iii) The father in the E case JS (JS - findings 1 and 2). (iv) The mother in the F case JC (JC - findings 1 and 2). (v) The father in the F case LF (LF - finding 1).

7. There are pending appeals against some of my findings by AK and JS. The Court of Appeal is aware of the re-hearing applications and the applications for permission to appeal are stayed pending the outcome of these applications. In the light of my conclusions below about the application for a re-hearing by JS there would appear to be no reason, subject to the views of the Court of Appeal, why that appeal cannot proceed. The Court of Appeal will need to be updated about the position regarding the other applications.

8. All parties agree the framework governing applications for re-hearing is set out by the President in ZZ and Others [2014] EWFC 9 . At paragraph 33 he endorsed the words of Hale J in Re B [1997] 1 FLE 286 ‘Above all, the court is going to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasion reach different conclusions on the same evidence....the court will want to know....whether there is any new evidence or information casting doubt on the accuracy of the original finding.’ There must be what the President called ‘solid grounds for challenge’.

9. In considering such applications there are three stages: (1) Whether the court will permit any reconsideration or review or challenge to the earlier finding. (2) If it does, to consider the extent of the investigations and evidence concerning the review. (3) The review hearing where the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.

10. In summary, it is submitted that new evidence, not previously before the family court, requires this court to re-consider the findings founded in whole or part on the evidence of Z in the schedule dated 6 January. There is no serious opposition to this course by the Local Authority in the case of AK, JE, JC or LF; or by the respective Children’s Guardians or DF (who is now separately represented).

11. If the court accedes to this each of the parties made written submissions as to the extent to which the court should review its previous findings. Consideration was also given in the written submissions as to whether the cases could be dealt with separately, although this was rightly not pursued. In the event there was a large measure of agreement as to the extent of the re-hearing.

12. In his written skeleton argument Mr Storey Q.C., on behalf of AK, stated that any rehearing should take place before a different judge and that I should recuse myself. That was not the position of the other parties. That application was withdrawn at the start of this hearing once it became clear that dates could be fixed that would accommodate continuity of the mother’s legal team. There are considerable advantages in judicial continuity in a case as complex as this and I, of course, approach any re-hearing with an open mind. New Material

13. The new material relied upon to re-open the findings can be summarised as follows: (1) Z’s oral evidence in the criminal trial (together with the recorded memory refreshing sessions beforehand when she viewed the ABE interviews) which resulted in the conclusion by the trial judge not to allow the case to go before the jury on the basis of the second ground in Galbraith, due to what he considered were the ‘extreme flaws in the reliability and credibility of Z’s evidence’. Z gave oral evidence over 12 days with careful consideration having been given to appropriate safeguards and the use of an intermediary. HHJ O’Mahony’s conclusion was founded on a number of grounds, which included (i) 8 men being wrongly put in the frame in allegations of rape and trafficking, 2 of whom were defendants in the criminal proceedings. HHJ O’Mahony stated when giving his ruling ‘it is clear from the cross examination based on sound and undisputed disclosure that by mistake, confusion or sheer lies, Z has implicated eight men of serious crime and then in evidence withdrawn the allegations or robustly rejected them as being wholly wrong’. The detailed analysis in the ruling in the criminal proceedings includes some evidence available at the family hearing, although the further inconsistencies, retractions and reasons for retractions in Z’s oral evidence in the criminal proceedings is clearly new. (ii) The lack of corroborative evidence to support the two weeks Z had said she spent in hospital. That position was largely known at the family hearing although in the memory refreshing stage Z stated that the hospital stay was not true. (iii) The different accounts Z had given of her return from Town C to Town A, 3 of which were known to the family court, but a further account was given in oral evidence. (iv) The differing accounts of times she was taken to Town C, she gave a different account in her ABE interview (known about at the time of the family hearing) and in her oral evidence (both in her examination in chief (30 – 40 times) and her cross examination (’I made a mistake’ )). The accounts in the oral evidence are new. (v) The events when Z was in town A. The documents disclosed Z had been seen by the police, told them her parents were selling her for sex and then Z denied to the police having said that (this was all known in the family proceedings). In her oral evidence she rejected any of the events disclosed in the town A documents had occurred and that all was well throughout her time in town A. In a lunch break during cross examination she was seen on the phone to her mother writing notes which she tried to tear up when the police tried to take them from her. She refused to answer any more questions about town A. When her mother gave oral evidence about the phone call she said Z had told her on the phone that she, Z, had lied about it in evidence before the jury. The account in Z’s oral evidence, and her mother’s evidence about the phone call are new. (vi) Inconsistent accounts by Z as to whether she had taken drugs voluntarily or not, when the prosecution case was she was forced to take drugs. In her 13 February interview (which was known to the family court) she said she was addicted to drugs. In her oral evidence she said she did not know or remember if she brought drugs or was addicted to drugs. There is reference to a facebook conversation concerning drugs and a video of Z expertly rolling a joint. The oral evidence, facebook conversation and video are new. (vii) Inconsistent accounts concerning sex with JDI, which were described by HHJ O’Mahony as ‘remarkable’ ; alleging that in the 6 March interview, denying it in the 24 October interview (both of which were known in the family proceedings) and in her examination in chief and cross examination stating that he had raped her. The content of her oral evidence is new. (viii) False complaint by Z against her father, she admitted this in her oral evidence. This was not before the family court although her mother gave evidence in the family proceedings that she thought Z had done this as the father had stopped her going out to a nightclub. (2) Further details emerged in the criminal proceedings about the evidence gathering of DC Verier that puts into question the neutrality of the investigation, which I had already been critical of. It emerged during the criminal trial that DC Verier had been instructed to pre-prepare a statement in section 9 form and turn up at the address with it and present it to Z. This was not disclosed in her evidence during the hearing before me, although it was raised as an issue in cross examination. (3) The evidence available in the criminal proceedings (notably the evidence of DC Brightman in the voir dire) regarding the circumstances surrounding the ABE interview of CC such that HHJ O’Mahony excluded it under section 78 PACE as having been obtained in circumstances which he considered as oppressive bearing in mind the vulnerability of the witness. The full detail about the circumstances of this ABE interview appears to be new.

14. The courts overriding objective is to deal with cases justly having regard to the welfare issues involved. The factual and welfare issues in this case could not be more serious or complex. The threshold findings relied upon by the Local Authority are the only basis upon which they are justified, by law, in seeking to interfere with the Article 8 rights of each of the adults and children.

15. Although the Local Authority submits that the family court was aware of and alive to the significant emotional, psychological and intellectual difficulties of Z and the inconsistencies in her evidence at the time of the family hearing it acknowledges the procedural bind the court is in. Decision

16. I have reached the conclusion that in the somewhat unique circumstances of this case that justice requires the applications for a rehearing should be permitted on behalf of AK, JE, JC and LF in relation to the findings identified above. In reaching this decision I have taken into account the following considerations: (i) The need to balance the public interest in finality in proceedings and minimising delay to a child against the importance of ensuring findings of fact have been correctly determined to ensure matters are justly determined. (ii) Whilst any further delay is inevitably inimical to the welfare of each of these children in different ways, due to their varying ages and needs, the importance of the court’s findings in each of the cases as to any welfare decisions is clear, and weigh the balance in favour of ensuring the findings are correctly determined. (iii) It is clearly important for each of these children to know the truth. (iv) Any findings that involve Z will have an impact on the risk assessments that are undertaken and are likely in each of these cases play a key part in the welfare decisions made by the court, which include whether the children are rehabilitated and/or decisions as to contact. (v) The credibility of Z was at the core of the Local Authority’s case. It is an issue that has already received careful consideration by this court but the new information from the evidence in the criminal proceedings provides a ‘solid ground’ upon which the findings I made should be reconsidered. It will be necessary for this court to consider again the reliability of Z’s evidence in the light of the new material that is now available. (vi) Although the outcome of a further hearing cannot be predicted it is possible that the court may reach a different conclusion; a review of the new material may lead to different findings, it may not. The new material raises serious issues for the court to consider. (vii) The findings that are sought to be re-considered are inextricably linked and should be considered together.

17. The application for a rehearing on behalf of JS is in a different category. That application is not, in my judgment, based on any solid ground. The finding about drug taking is set out in paragraphs 499 – 503 of the fact finding judgment. At the end of paragraph 500 I note that Z identifies the R property on the drive round as being a place where she went to get drugs. In her oral evidence in the criminal proceedings Z said she could not remember going to this property.

18. The basis for the findings against JS as set out in the analysis in paragraph 501 does not rely on Z identifying the R property. There is therefore no solid basis upon which that finding should be reconsidered by the court. Extent of the re-hearing

19. The court now has extensive transcripts of the relevant evidence in the criminal proceedings. I have made further directions in relation to outstanding material from those proceedings together with social work case notes that are said by the Local Authority to contain new relevant information regarding Z.

20. There will be a fresh Re W application made on behalf of AK when I will need to consider again whether Z should give oral evidence. I have directed a further welfare assessment of Z is undertaken for the purposes of that application.

21. The Local Authority has considered their position in the light of the material available and does not propose to amend the findings sought, but acknowledges they are under a duty to keep that position under review.

22. There will need to be oral evidence given at the re-hearing, focussed on those matters that arise from the new material. Threshold Criteria

23. In the recent skeleton argument filed in support of the applications to re-open the findings JS has raised the issue as to whether the findings made in January provide a sufficient basis for the threshold criteria to be met. This issue was not specifically raised in the documents submitted after the circulation of the draft judgment or in oral submissions made at the hearing in January. Until the re-hearing applications the case had proceeded on the basis that the threshold criteria had been established in each of the cases.

24. This issue has now been specifically raised in the light of the recent decisions of Re J (A Child) [2015] EWCA Civ 222 and Re A (A Child) [2015] EWFC 11 .

25. The court will need to consider what, if any, submissions are made regarding the threshold criteria at the conclusion of the re-hearing in the light of any findings made. Although I have refused the application by JS for a re-hearing in relation to findings made against him I will consider further representations on his behalf regarding the threshold criteria at the conclusion of the re-hearing. Injunctions

26. The Local Authority raised for the first time at this hearing the possibility that they may be applying for injunctions against some of the respondents in this case, following Birmingham City Council v Sarfraz Riaz and others [2014] EWHC 4247 (Fam) . They also raised the prospect that they may be seeking such injunctions against third parties, possibly including some of the male defendants in the concluded criminal proceedings.

27. What steps they take is clearly a matter for them but I made clear in the exchanges with Mr Feehan Q.C. during this hearing that any application that is made needs to have a clear and properly evidenced foundation, particularised in statements in a way that justifies the orders sought. Proportionate participation at the re-hearing

28. One matter that was raised during this hearing has been the extent to which any parties who are not active participants in the re-hearing should attend or take part in the proceedings. Parents and children are automatic respondents to care proceedings and are entitled to non-means non-merits tested public funding. With that funding comes an obligation and responsibility on their legal representatives to ensure that any representation of that party is proportionate to the issues at stake and the forensic part they are likely to take in the proceedings.