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Re W (Minors) (Wardship: Evidence) ; [1990] 1 FCR 286

Family Court Reports

Edited by:
The Rt Hon Sir Mathew Thorpe
Publisher:
Bloomsbury Professional

FamD

[1990] FCR 286

Re W (Minors) (Wardship: Evidence)

FAMILY DIVISION

20 JULY 1989

ANTHONY LINCOLN, J

COURT OF APPEAL

3 NOVEMBER 1989

ANTHONY LINCOLN, J

Evidence – hearsay – wardship proceedings – whether hearsay evidence admissible.

Evidence – hearsay – admissible in wardship proceedings – hearsay evidence of statements of child containing grave allegations against parent – need to regard such evidence with great caution – whether court could make findings of fact based solely on such evidence – whether such evidence would justify a finding in wardship that child at risk.

The father had three children, all girls. The eldest child was born in February 1982. Her mother played no part in her upbringing and her whereabouts were not known. For 18 months the eldest child was cared for by the paternal grandmother and the father. In July 1983 the father set up house in London with the woman who became the mother of the two younger children ("the mother"), and the eldest child went to live with them. The two younger children were born in October 1984 and March 1986 respectively. In August 1987 the father said that he was in bed and awoke to find the eldest girl fondling his penis. His reaction was to get the mother to call social services, and a social worker went to the home. The father said he could not bear to have the child in the same room as he was and arranged for her to go and stay with the grandmother in Lincolnshire. Living with the grandmother was her other son ("the uncle"). From August 1987 to April 1988 the eldest child stayed with the grandmother and the uncle, with visits to the father and mother. The father was found to have something abnormal, uncontrolled and hysterical about his temperament and character. The grandmother had a very powerful personality and was impulsive and hot tempered and both she and the uncle could be hysterical. There was some concern as to neglect and physical abuse of the eldest child while she was living with the grandmother and uncle.

In February 1988 the social workers lost touch with the eldest child's whereabouts. As a result the local authority in Lincolnshire began wardship proceedings. The child was found soon after. She was happy and well and nothing appeared to be wrong. However, a social worker had sworn an affidavit about the past of the grandmother and uncle. When they saw the

[1990] FCR 286 at 287

affidavit in April 1988 the grandmother and uncle took the eldest girl to the parents. The family went to a social services office in London. There was a stormy interview and some violence. The eldest child was placed by the family in the care of the local authority in London.

Subsequently, there was considerable hostility between the grandmother and the father. At one stage the grandmother sought to take the eldest child into her care. By October 1988 the parents had decided to cut off relations with the grandmother and the uncle. They caused a solicitor's letter to be sent to them stating there should be no further contact by the grandmother and the uncle with the children. In January 1989 the parents moved out of the area, partly to distance themselves from the grandmother and uncle.

When the eldest girl was placed in care in April 1988 the local authority placed the child with foster parents who kept a written record of the child's behaviour. They recorded incidents of the child's sexual behaviour towards other children or towards herself. The child told the foster parents about incidents in which the uncle had sexually abused her. Later she stated that the father had sexually abused her and the two younger children.

In August 1988 the eldest child was interviewed by a child psychiatrist. This interview was a long one and was video recorded. In the course of it the child repeated her allegations of sexual abuse implicating the father and the uncle. However, there was pressure and insistence of questioning in the interview. The video recording was seen by another child psychiatrist called by the parents. He criticized the interview, in particular as to the increasing pressure and insistence of the questions.

As a result of the eldest child's allegations the two younger children were taken into care. They were placed together but with different foster parents than the eldest child. Their foster parents also kept a written record of their behaviour. This included masturbation, a fear of men, and inappropriate conduct towards another woman. The children told the foster parents of sexual abuse by the father.

The three children were examined by a consultant paediatrician. The doctor said she found physical signs that all three children had been sexually abused. However, a clinical forensic practitioner, experienced in detecting the results of sexual abuse, disagreed with these findings.

The two younger children were interviewed twice by the same child psychiatrist who had interviewed the eldest child. The interviews were video recorded, but were inconclusive except that during the second interview one of the girls suddenly lay prone on the floor and performed a sexual movement of her body saying that the father did that to her. The other child, the youngest, at one point said that the father hurt her and pointed to a doll's vaginal area and then to the doll's anus. The child psychiatrist called by the parents saw the video recordings and criticized the interviews as they were clearly conducted on the basis that there had been sexual abuse and that pressures had been brought to bear to obtain a disclosure.

At the hearing, the Judge found that the eldest girl had suffered a poor start in life, afflicted by constant upheavals. She had been placed in care, the parents had said they did not want her back, and there was intense hostility between the grandmother and the father over the care of the child. The Judge found that it would be unthinkable to return the child to such an environment. He ordered that she be placed in the care of the local authority with a view to adoption. He went on to consider the issue of sexual abuse of the eldest girl as this would directly bear on the decision as to whether the two younger children should be returned to the parents.

The Judge rejected the evidence of the consultant paediatrician that there were physical signs of sexual abuse of all three children. He stated that he had to approach the evidence of the children's allegations on the basis that they were put before the court both directly through the video recordings and by way of hearsay through the foster parents. He stated that he was satisfied that the children had made the statements described by the foster parents. He accepted that the uncle had sexually misbehaved with the eldest girl. So far as the father was concerned, the Judge stated that he entertained a very considerable suspicion that the three

[1990] FCR 286 at 288

children were telling the unprompted, unrehearsed truth; but he held that he could neither acquit nor condemn the father on the evidence he had received. However, he found that the children's statements to the foster parents were very disturbing. If they were fantasizing about their parents, their state of mind was so abnormal, sexually orientated and ugly that only a very poor upbringing could have brought about such results. If they were telling the truth, this must raise serious questions about the parents' mental and sexual state and their ability to rear children. The Judge found that the two younger children had an unhealthy and precocious knowledge of the male and female organs and were capable of behaving in a sexual manner not to be found in girls who had been brought up with care. He found that the parents had been guilty of serious failure in this respect. He found that these matters weighed heavily in the scales against the parents. He considered whether they could be returned to the parents under strict supervision. He had stated that he would not be in the least confident of keeping the grandmother and the uncle out of the parents' or the children's lives, and that there was a real risk of the uncle's re-entry into the lives of the two younger children. He therefore held that, because of the difficulties of enforcement, he could not return the younger children. He ordered that they be placed in the care of the local authority with a view to adoption.

The parents appealed against the order in relation to the two younger children. They did not appeal against the order in so far as it related to the eldest child. The principal submissions on behalf of the parents were: (i) that, in reaching his conclusion that the children should be placed in care, the Judge had relied on hearsay evidence and had made findings based on that evidence which he was not entitled to make; and (ii) that his decision to place the two younger children in care was based solely on his mistaken conclusion that the grandmother and uncle would make the enforcement of a supervision order impossible.

At the hearing of the appeal, the court received additional evidence from the foster mother of the two younger children and from a social worker of a further allegation of sexual abuse by the father made by one of the younger children the day after the Judge had announced his decision.

Held – dismissing the appeal: (1) The wardship jurisdiction was a special paternal jurisdiction, a judicially administrative jurisdiction. The court was put to act on behalf of the Crown, as being the guardian of all minors, in the place of the parent and as if it were the parent of the child, thus superseding the natural guardianship of the child. It was an ancient jurisdiction which had been invoked for centuries. In wardship proceedings the practice had always been to admit hearsay evidence. The proceedings were not subject to the strict rules of evidence and a Judge exercising the wardship jurisdiction could admit hearsay evidence as a matter of law: see R v Gyngall [1893] 2 QB 232; Scott v Scott [1913] AC 417; Re K (Infants) [1965] AC 201; Re S (SA) (A Minor) (Wardship: Court's Duty) [1984] 1 WLR 156; and H v H; K v K (Child Cases: Evidence) [1989] FCR 361.

(2) Although hearsay evidence was admissible in wardship cases it must be regarded with great caution. Such evidence included statements made by children to others, including doctors, police officers, social workers, and foster parents. The Judge had to consider what weight, if any, he should give to it. Hearsay evidence of statements made by a child could include a grave allegation against a parent, and (per Neill and Butler-Sloss, L JJ:) it would be rare for the court to make a finding against a parent solely upon such hearsay evidence of statements made by a child.

Per Neill, LJ: In Re K (Infants) [1965] AC 201 at p 242 Lord Devlin said that a grave allegation against a parent would not be allowed to be proved solely by hearsay at any rate in a case in which direct evidence could be produced. It was of crucial importance to take account of that saving, which Lord Devlin himself introduced. The court would examine with particular care the evidence of the person who communicated the hearsay material to it. But as the welfare of the child was the paramount consideration, in some cases a court, in assessing the

[1990] FCR 286 at 289

risks to which a child might be exposed, might be obliged to reach conclusions of fact which in other proceedings it would not be free to do.

Per Butler-Sloss, LJ: Hearsay evidence of the statements of a child might be received by the Judge. He had a duty to look at it and consider what weight, if any, he should give it. In considering the extent to which, if at all, a Judge would rely on such evidence, relevant considerations included the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, and any knowledge of the child's predisposition to tell untruths or to fantasize.

(3) Hearsay evidence of a child's statement containing allegations of abuse and naming the perpetrator could be accepted as true by the court but be insufficient to justify a finding of abuse against the named person. There might be cases where the court was unable to make a positive finding on the evidence as to what had happened in the past but had come to the conclusion that the child might be at risk for the future. In wardship proceedings the court had a duty to treat the welfare of the child as paramount and take steps to protect the child.

Per Butler-Sloss, LJ: Hearsay evidence of statements of a child alleging abuse would, unsupported, rarely be sufficiently cogent and reliable for the court to be satisfied that a person was the perpetrator. Such evidence might, however, reveal a clear indication that the child had been exposed to inappropriate sexual activities and might be sufficiently compelling to satisfythe Judge that the child had been subject to sexual abuse.

(4) In this case the Judge only relied on the hearsay evidence of the statements of the children and the video recordings of the interviews of the children to a limited extent. He did not find it proved that the father had abused any of the children. But he found that the children had been exposed to sexual misbehaviour; that they had an unhealthy and precocious knowledge of the male and female organs; that they were capable of behaving in a sexual manner not to be found in girls who had been brought up with care; and that the parents were guilty of a serious failure in this respect. These findings were justified on the evidence. However, the Judge had erred in ordering that the two younger children be placed in the care of the local authority on the ground that it would be impossible to keep the grandmother and the uncle out of the children's lives. The evidence did not support this. The Judge was also in error in that his finding that the parents were guilty of serious failure towards the children (in respect of their sexual knowledge and behaviour) failed to meet the essential point of assessing the risks to the children within the immediate family. It did not appear that he had decided that issue. If he had done so and had decided in favour of the parents, he was plainly wrong. In the circumstances, although the local authority had not served a cross-notice, the court should determine the issue on its merits. The Judge's findings as to the children's exposure to sexual misbehaviour, their sexual knowledge, and the parents' failure to provide proper care in this respect, all led to the conclusion that there was a substantial risk to the welfare of the children if they were returned to the parents. The additional evidence admitted by the court was hearsay. The court accepted its accuracy. It did not add much to the overall picture before the Judge but so far as it went it underlined the evidence before the Judge.

FAMILY DIVISION

20 July 1989

Names have been changed and fictitious names substiuited to preserve the anonymity of the wards.

Jonathan Cole for the local authority.

Margaret Puxon, QC and Laura Harris for the parents.

[1990] FCR 286 at 290

MR JUSTICE ANTHONY LINCOLN.

These are wardship proceedings relating to three children. Ann, born on 1 February 1982 (seven); Rita, 12 October 1984 (four-and three-quarters) and Mary, 19 March 1986 (three-and-a-half).

The family consist of the second defendant, the father of all three children, and the first defendant, the mother of Mary and Rita. She is not married to the father but they live together as husband and wife. The third defendant is the grandmother, the mother of the second defendant and a man called John. They live in Lincolnshire, and in London, not with the father. The whereabouts of the mother of Ann have at all material times been unknown.

The local authority is applying for all three children to be placed with local authority foster parents with a view to adoption. The second and first defendants (whom I shall call the father and mother) seek the return of all three children. The third defendant appeared in the first minutes of the hearing only to announce that she would play no part in the proceedings.

For 18 months after her birth Ann was brought up by the grandmother and father. I have formed the distinct view that the grandmother was a very powerful personality who dominated her family. She was also impulsive and hot tempered. That trait she has passed on to her son, the father. I would add from my observation of him that there is a strong strain of hysteria in him, which has led to ugly and threatening confrontations with social workers.

In March 1983 the father was looking after Ann under a court order. He was helped by a young girl who was a lodger. In May he moved to an address in London and in July the mother moved in with him. The two of them had the day-to-day care of Ann.

During the years that followed they both observed certain strange habits in Ann. She wet the bed. She would tell stories that were not true, according to their evidence, and took things which did not belong to her. She went on nocturnal raids in the kitchen and ate a vast amount of food. Something was obviously wrong with her.

By 1987 there were three small children in the household. In the early months of 1987 – the date is not certain – Ann sustained a wrist fracture. She spent a little time with her grandmother while the parents moved. The local authority had been alerted by anonymous calls, but at this stage they were not worried but were paying visits to the parents' new home.

On 15 August 1987 a very strange episode occurred, if the father is to be believed. He describes how, when he was asleep in bed, he woke to find his penis being fondled. He thought it was the mother so he responded and turned towards her. He then discovered as he opened his eyes that it was his five-and-a-half year old daughter Ann. He leapt out of bed, called for the mother. He was in an extremely bad state having feelings akin to what he imagined were those of the victim of a rape. He thought the mother would not believe his story, but she did. He was in a state of shock. At his request the mother called up the social services.

I now repeat what he said in his affidavit:

[1990] FCR 286 at 291

"They came straight round. By this time we were sitting in the kitchen, with the children playing upstairs and I was in a state of shock. I felt that I could not bear to have Ann in the same room with me and I did not know how I was going to be able to cope with her. I was worried on two counts. The first being my evident state of distress at what had happened, and the second being the fear that no-one would believe me, that I would be assumed to be a child abuser. Neither of us had said anything to Ann about what had happened, apart from her witnessing my evident shock when it happened. She and her sisters were just playing happily upstairs. We still do not know how she could have learned to do what she did. In our experience she has no sexual knowledge, has not been sexually interfered with in any way and we have never behaved in a sexual manner in front of her."

The parents then called up the grandmother who agreed to come down from Norfolk to take Ann back to her (the grandmother's) home. She was to look after Ann until the father "was in a fit state to cope with her again."

So Ann found herself back in Norfolk with the grandmother, going to school there. According to the father, Ann was brought down on frequent visits for the father "to get used to her again." And I quote from the affidavit:

"To be able to cope with seeing her with a view to her coming back to live with us as soon as I could cope with it."

On one such visit, says the father, Ann made another similar attempt but he handled the matter more calmly.

A social worker from the local authority arrived at the home in response to the parents' call. She found that Ann was upstairs playing noisily with the other children, quite unaware that her parents were upset. She found the father in an apparent state of shock with his head in his hands. He told her what happened. He said:

"That he could not see where she had got this from and thought that she must just know about this through something she had seen on the television set. I suggested that for her age Ann must either have experienced this for herself or been present during sexual activity. The father was incensed by this suggestion. He started shouting and raving at me. Jumped up and paced about. He shouted obscenities at me and at one stage he came towards me in a threatening manner. The mother managed to prevent him from making contact with me. Fortunately at that moment the grandmother telephoned from Norfolk."

This is by any standards an extraordinary episode. Its disclosure emanated from the father. If he had not told the mother and the mother had not called in the social workers, nothing would have been heard of it.

It is suggested on behalf of the local authority that the whole story is an attempt to pre-empt accusations that might be made against the father. But by whom? Ann was totally unaware of the fuss and did not think anything wrong had taken place. I am quite unable to reach any conclusion about what happened in the father's bed on

[1990] FCR 286 at 292

15 August. I decline to find, on a balance of probabilities, that on that occasion the father sexually assaulted his daughter. On the other hand, if the father's description of the episode is correct, then his method of handling and managing it was deplorable. He made no effort to find out where she learnt such sexual behaviour. Instead of talking calmly with his daughter and explaining to her what was good behaviour and what bad, he called in his mother and Ann had once more to move, to leave her home and her parents' care to live with her grandmother.

As to the father's reaction, his feelings: "I could not bear to have Ann in the same room with me"; his crying; his prolonged histrionics – if they were genuine, then they confirm my belief that there is something abnormal, uncontrolled and hysterical about the father's temperament and character.

The attitude of the father towards social workers varied greatly during the months that followed the August episode. Both he and the mother were capable of sensible and rational co-operation with them, particularly with regard to Ann's future. They agreed to accept the intervention of a psychologist and the father wanted a social worker to remain involved with the family, visiting on a regular basis. The father and mother were worried at Ann's propensity to lie, making trouble between them.

Social workers took the view at the time that the father "was unlikely to have abused Ann". The father himself was described as frightened in case Ann's behaviour in August was repeated and he would be labelled a child molester. The father calmed down, but he felt that Ann should stay with the grandmother until she had been "sorted out" and then she should come home.

On the other hand, there were strange outbursts against social workers. Similar behaviour was indulged in by the grandmother and her other son (John) who could both be hysterical and abusive at times.

At this period, the last half of 1987 and the early months of 1988, the life of Ann was split between the grandmother's home in Lincolnshire and visits to the father and mother in London.

During one of the discussions between the grandmother and social workers, she stated that neither the father nor mother were capable of looking after Ann. And, indeed, it did at first appear that Ann was settling down with her grandmother, but in January there were problems. It appears that while staying with the father and mother in London, Ann had climbed into her father's bed. He told her to get out. Her behaviour deteriorated at the grandmother's home.

In January 1988 the social workers in Lincolnshire were indirectly informed as a result of an anonymous letter that the grandmother and John were beating Ann with a dog chain. They visited the grandmother's house. The girl was seen to have superficial bruises. She herself showed the social workers bruising on her eye, saying that she had sustained the bruise falling downstairs, but the marks proved to be pencilling which she herself had rubbed on her eyes.

During the visit both the grandmother and John were abusive, agitated, hysterical and unpredictable. She said at one moment the social workers were to take Ann back to London, at another she was to be sent to a boarding school, all said in front of Ann.

In February 1988 the social workers completely lost touch with her whereabouts which, I am satisfied, the family hindered the authorities in finding out. They received a letter from the head teacher which indicated certain worries. I read from the letter

[1990] FCR 286 at 293

dated 12 February 1988:

"My main area of concern are that the denials by [the grandmother] and John that, for example, there has been interference by John at bath time. Almost as if there was an attempt to pre-empt such accusations. From what we can ascertain, there has also been a most inconsistent approach in the way that Ann was handled. On the one hand there was a lavishing of gifts and on the other there was a very harsh attempt to publicly humiliate Ann in front of her peers by [the grandmother] when Ann had apparently stolen chocolates from her granny's room. It seems to be an unusual domestic arrangement and one which had little or no future given [the grandmother's] age and the fact that she did not enjoy good health."

The reference to the grandmother's apparent attempt to pre-empt accusations is reminiscent of the contention of counsel for the local authority with regard to the August incident. He suggested that the father on that occasion was pre-empting accusations of child molesting when he disclosed what Ann had done to him. I do not overlook this resemblance of behaviour when reaching the findings which I have already made.

The local authority, because of the apparent disappearance of Ann, issued proceedings in wardship. Order for disclosure of her whereabouts was made and after a month's delay these came to light. Ann was found to be happy and well and there was nothing wrong. At the end of the boarding school term she came to London to spend her holidays with her parents, but her journey there was the occasion of abusive, threatening and almost hysterical telephone calls from the grandmother to the social workers and anger on the part of the father. He was now asserting that if Ann could not return to the boarding school, she was to stay with the father. In fact Ann was to spend only a few weeks more with her parents before she was finally placed with foster parents.

During this time Ann received a somewhat severe slapping on her face from the mother for misbehaviour; the marks were apparent two days later, but she was not particularly upset. However, the incident reached the ears of the grandmother whose antipathy to the mother was considerable. She abused the social workers for leaving Ann in the care of people unfit to have her. It was their fault Ann was hit. And yet, despite this tension between the grandmother on the one hand, mother, and perhaps also father on the other, in April, the grandmother and John came to London to their home there and Ann stayed with them.

The last event in Ann's life with her family is the oddest and most irrational of all, characterized by violence, impulsive and almost mindless decisions and behaviour on the part of the family.

On 15 April the grandmother and John came with Ann to the parents' home. All of them were very angry about the contents of an affidavit they had now seen. It was sworn by a principal social worker in Lincolnshire. It set out certain details about the past of the grandmother and John. They also had seen the letter from the head teacher, which referred to their denials of bath time interference with Ann and the father thought it reflected on his fitness as a parent. Father, grandmother and John,

[1990] FCR 286 at 294

together with Ann, went down to a social services department in London where there was a stormy interview and some violence.

What followed is, to my mind, of considerable importance in determining the future of Ann. The family, and, in particular, the father, handed Ann over to the care of the local authority who placed her with foster parents.

The reasons for the father's decision hardly matter. It may have been done for a limited period to protect the parents from further allegations of poor care, though such a reason for depriving a child of its home and parents seems to me woefully inadequate.

But, in any case, four months later the parents in an affidavit were to say this:

"As regards earlier paragraphs in our affidavit, we would accept, as we have already stated, that it would be very difficult now for the ward Ann to return to our care."

That was nine months ago. Nothing that has happened since, in my view, has made it likely that the parents could cope any more effectively with the upbringing of Ann. On the contrary, things have got worse. There have been allegations by Ann of sex abuse. There had been deplorable interrogations of Ann by the father during supervised access, causing her great distress. And the hostility between the grandmother and father has intensified as a result of these proceedings to the point where he described her as a Judas.

It would be unthinkable to return Ann to such an environment. She needs to learn to live wit – normal, secure family environment if she is to develop normally after what I consider to be a poor start in life, afflicted by constant upheavals.

For the purpose of this decision I need go no further into the allegations of sex abuse. But I am obliged to consider them since they directly bear on the decision as to whether Rita and Mary should be returned to their parents, and I am obliged to consider the subsequent history of Ann, her statements to various people and her behaviour.

She was placed first, with Mr and Mrs H. In June, after she had been with them for two months, she was taken to a consultant child psychiatrist by a social worker, along with the foster parents, her grandmother (the third defendant) and John (her uncle).

The grandmother was now seeking to take Ann back to her care. At this point both grandmother and John were pointing the finger of accusation at the parents, alleging neglect and responsibility for Ann being bruised. They themselves had been accused of the latter in an anonymous letter. John described his brother as a danger zone.

The H's told the child psychiatrist that when Ann came into care she appeared dirty, and unkempt, with holes in her clothes. They felt that she had settled extremely quickly, perhaps too quickly, and was also over affectionate. They added that after a planned access visit the father had failed to materialize, when Ann and her foster mother had been left waiting at a children's home for several hours, Ann had talked to the foster parents about her life at home and had said while she wanted to see her fathers she felt that "mummy doesn't love me". Also noted that her behaviour had deteriorated when the meeting with her father had failed. She became more cheeky, bossy, drew pictures on the walls, sleep had been disturbed, she was keeping others

[1990] FCR 286 at 295

awake. They had also noted worrying, but mild, sexualized behaviour on two occasions when they had seen her stroking another girl's arm and a three year old boy's body, including his back and bottom and also kissing him.

It is to be noted that the only accusations at this stage related to neglect on the part of the parents, not sexual abuse, and, secondly, this was to be the last meeting between Ann and the grandmother.

After this meeting the H's began to keep notes. They constitute one source of information about Ann's behaviour. They are a continuous record. I am not prepared to believe that they were concocted. There is too much detail, some of it trivial, some of it significant. I can see no reason for the H's to write fiction about the child. At the end of June, and on a number of days in July, they recorded incidents in which Ann behaved sexually towards one of their small children or towards herself.

On 28 July Ann was talking for the first time about her secrets, a word first used by Mrs H. She continued the next day with talking about her secrets. On the first day she said that her Uncle John had videos under the bed and they were rude exercises. The next day she said:

"When I watched the videos, Uncle John would tell me to close my eyes and then when I opened them he'd have no clothes on, he did sex to me. He would do to me what was on the videos. I would kiss him all over."

What she meant by sex she could never explain, but she was clearly describing a perverted sexual event.

She continued to share her so-called secrets at a later date, saying she did sex with daddy. Later, in August, she demonstrated to Mrs H how John put his penis in her mouth. Then she extended the allegations of having sex to her grandfather and other relations.

When I come to consider whether these allegations are true or not, I shall not disregard the view of both Dr G and Dr C, the child psychiatrists called respectively for the local authority and the parents, that the earliest disclosures have the greatest significance. The earliest referred to John and not to the father or grandfather.

Nor shall I overlook the fact the Ann could tell untruths, as in the case of the bruises which turned out to be pencilling.

On any view, this girl was conscious of sexual matters to an extent quite out of keeping with her age.

On 11 August according to Mrs H, and I accept her evidence, Ann said that she did not want to live with the grandmother and John because John always did sex to her everyday. She said she wanted to stay with daddy because when daddy did sex with Rita and Mary, Ann was made to watch and Ann had to try and help Rita and Mary. So now Ann was implicating the father with Rita and Mary.

Five days later she told Mrs H, in the most graphic detail, how John put his penis in her mouth, and on the same day that daddy did it to Rita and Mary.

I read from the affidavit of Mrs H:

"On August 16 Ann said to me: `Daddy did it to Rita and Mary.' Ann said `Rita went downstairs to tell mummy; that mummy came in and hit daddy around the

[1990] FCR 286 at 296

face. Ann said that mummy then smacked her (Ann) and that she (Ann) got the blame. Ann said that mummy said words to effect: `Why did you do that to daddy?' and Ann responded that he had done it to her."

There was more in the same vein later.

The father vehemently denied these allegations. He questions whether they were made at all. I accept that they were made. Both father and mother argue that ideas were put into the head of Ann at certain interviews with the child psychiatrist and by prompting, as well as learning them from television and other sources.

On 24 August 1988, with the leave of the court Dr G interviewed Ann in the presence of Mrs H. The interview was a long one, conducted with skill and sensitivity. However, in my view, it was much too long to engage a child, however sensitive the questioning.

It appears that Ann repeated her allegations, implicating the father and uncle in sexual indecency with Rita and Mary who were described as being hurt by their assailants and crying.

Dr G reached the conclusion that Ann's demeanour and manner of describing the experiences, together with her consistency, "strongly suggest that sexual abuse could have occurred".

Dr C, who practises privately in psychiatry, saw the video of this interview and others. I found the interview very worrying and agree with many of his comments. I, too, noticed with anxiety the increasing pressure and insistence of questions. I will return to Dr C's general comments later.

As a result of these allegations, Rita and Mary were placed with Mr and Mrs D. The father and mother have very strong feelings of animosity towards the D's. It was the D's first experience of children alleged to have been sexually abused. They were told to write everything down and so a record was kept of what was said about their families.

As in the case of the H's, the diary is a running record relating to the children's daily lives. I do not for one moment accept that it was concocted.

One entry refers to the statement of Rita that her dad had scraped her with a knife and that her Uncle David scraped Mary in her bottom with a knife while in the bath.

There are entries describing masturbation and bad language. According to another entry, Mary was very nervous, especially towards men. When she sees a new man she says: "Don't get me" and runs behind someone she knows. Rita referred to herself crying because her dad bites her. On one occasion during an outing Rita asked a woman if she could rub her breasts, which is what her mother allowed her to do.

Three other entries are important and must be referred to in detail and I will read them:

"She doesn't talk about her mum or dad at all. Only the family she talks about is John and David. She has also said that Uncle John has hurt Mary, but will not say how. She said this on 24 Sepember 1988. She has also said this once or twice before.

On October 5, I took Mary to the toilet because she had trouble going to the

[1990] FCR 286 at 297

toilet, going too often. Mary had to be examined by the doctor, who is a male. She had to have her bottom examined. When I tried to take her knickers off for the doctor she was very frightened and scared. She held on to me very tight, but when she was examined by a female doctor she was not afraid. When we left the doctors she said to me: `Daddy naughty. Daddy hurt me'."

The next entry is 19 October 1988:

"Rita told me a secret. She told me at home they played a carrot game. She told me the people who played the game, which was daddy, grandad, Uncle David, mummy, Mary, Rita and Ann. She said they all take their clothes off and that they play with a carrot and some glue. I asked her about the glue; all she said it was white. I asked: `What do you do in the game with the carrot and the glue?' She said they stick it. I asked her why they took their clothes off. She said that her dad said they had to. She did not want to talk any more."

The last entry on 3 November in full, is:

"Rita told me another secret. She told me that she went in the bath with her dad and she said he had got a big willy. She stood up and pointed to her knee and said: `This big'. and she said she plays with her dad's willy. She showed me how she played with it. She said daddy plays with her milly. She said, and showed me, that her daddy lays on top of her and rubs himself on her and does the same to Mary and Ann. All the time Rita was telling me, Mary was putting her hands down the front and back of her knickers and saying that her dad hurts her."

These are very disturbing descriptions. If the children are fantasizing about their father and mother, their state of mind is so abnormal, sexually orientated and ugly that only a very poor upbringing could have brought about such results. If they are telling the truth, the parents' behaviour described by the girls must raise the most serious questions about the parents' mental and sexual state and their ability to rear children.

On 30 August Dr W, a consultant paediatrician, examined Ann at the request of Dr G and on 14 September the same paediatrician examined Rita and Mary. She was well aware of the allegations made by the children and of Dr G's firm conviction that sexual abuse had taken place.

It is argued – and I consider with some justification – that Dr W was liable to be predisposed to find what she in fact found. I attach some weight to that possibility. As to the condition of Ann's genitals she considered that she saw damage which could have been caused by attempted sexual intercourse at some time previously. She further believed from her examination of Ann's anus that Ann had been buggered. At the end of her examination she was very angry with the parents.

On 14 September she took measurements of Rita's hymen, noted a ragged edge and concluded that its appearance was consistent with digital penetration. She observed, as she believed, abnormal appearances in Mary's hymen which she considered highly suggestive of sexual abuse.

[1990] FCR 286 at 298

These findings with regard to all three girls were strongly criticized by a clinical forensic practitioner, Dr P, experienced in detecting the results of the sexual abuse of children. He was called on behalf of the parents. Dr P was wholly unable to accept Dr W's findings. He considered, for example, that the fine adhesion across the hymen which Dr W had found in Ann:

"Cannot be interpreted as being indicative of any attempted penile or digital penetration of the vagina ... It can be considered no more than a possibility of sexual abuse and in those terms I would not disagree with the use of the word `consistent'. It is equally consistent with the child masturbating."

This Ann certainly did.

In Rita's case, Dr P again dissented from the conclusions. The measurements which Dr W gave for the hymen were doubted by him and he considered that, even if they were intended to be measurements of the hymen orifice, they were neither indicative or not consistent with digital penetration. In fact Dr P's view was that in the case of both Rita and Mary, Dr W's findings were not indicative of genital or anal abuse.

In that state of medical evidence, I would hesitate before holding that there had been attempted sexual intercourse or buggery. If I have to choose between the two doctors, then I prefer the evidence of Dr P, which I found convincing. It does not however, follow that the girls were not subjected to other forms of sexual behaviour.

On 15 September Rita and Mary were seen by Dr G and the interview was video recorded. Nothing of any great significance emerged from the interview except that the girls were distressed at being separated from their parents. Certainly there were no allegations against anyone. It was a month later on 19 October that Rita told Mrs D that she had the secrets I have already referred to.

During these autumnal months the parents saw Ann on access visits. Quite incredibly, on one of these visits the father, being determined to clear himself of the allegations against him, asked Ann to mimic the sexual acts which she had experienced. Hearing this on tape, I became convinced that however unjustifiable he may think the accusations against him, the father is an unbalanced and hysterical person whose behaviour is unpredictable. The social worker who was present intervened after long hesitation, but the damage was done. Ann was very distressed. It has to be said in fairness to the parents, that all three girls showed an affection for him throughout and a desire to return home; all of them and the parents were upset at parting. On the other hand, Ann had no wish to see her grandmother and John.

At the end of one extremely distressing access visit, the father said, within earshot of the children, that this would be the last access visit because of the upset access was causing.

It was in these circumstances that on the next day Rita and Mary spoke to the D's about sexual activities at home with the parents. Rita also told her father, and his behaviour in relation to the D's, necessitated a change of foster parents.

On 12 December 1988, Rita and Mary were once again interviewed by Dr G. This interview was video recorded. The subject of the carrot game was raised. Rita said that her father and her Uncle David (a brother of the mother) played the game. She

[1990] FCR 286 at 299

also described it as a willy game, but she was very guarded throughout, though, in my view, she realized fully that the adults wanted to know more. But my conjecture is that she was uncertain as to the consequences.

There was an unexpected episode in the course of this interview when Rita suddenly lay prone on the floor and performed a sexual movement of her body, saying: "Daddy goes like this on me." Mary joined the interview and at one point said: "Daddy hurt me", and she pointed to a doll's vaginal area and then to the doll's anus.

At a later interview with the parents Dr G went over the video with them and they repeated their emphatic denials and their assertion that the D's were at the root of it all. But as Dr G pointed out in her report, what possible motivation is there for the D's persuading the children to talk as they did? Why the strange emotion shown by the children? Why should Mary and Rita obey their foster parents, rather than the parents whom they undoubtedly loved, and why should the children love the foster parents who placed them in Opposition to their parents? These questions defy an answer.

I turn now to the opinion and comment of Dr C, who though called in on behalf of the parents, "was acting as an independent whoever is instructing me". He was not happy about the carrot and willy games described or the intense pressure put on the children that they had a secret to disclose and if they did they would feel better.

There were other matters. The father being allowed to tape access visits, the anonymous letters in the case, the tension and manipulation in the background of this case, of this family which worried him. With all of these I completely agree. He considered – as I do – that Mary and Rita loved their mother and she can well look after them, giving them a structure to their life and the emotional care they need. He advised that Ann should be removed from the family.

He then said:

"I was concerned that the video recordings, particularly the last, were clearly made on the basis that there had been sexual abuse and that pressures were brought to bear to obtain a disclosure. Having said this, it is my opinion that unless there is a clear explanation as to why and how the disclosure took place, the clear picture of whether or not there was a possibility of learnt responses from others, such as Ann, or other children, it is inescapable that there is a marked suspicion of sexual abuse by the father and there is therefore a risk if the children return home. This is not to deny the love and affection and capability of [the mother] or, indeed, of the father who is his own worst enemy."

I remind myself, first, that the interests of the children are paramount. Secondly, that I must approach the evidence of Ann's, Mary's and Rita's allegations on the basis that they are put before me both directly through the videos and by way of hearsay through the foster parents. Thirdly, that there must be shown to be a high degree of probability that they are true.

I have put aside the medical findings of Dr W for the reasons I have given. I have equally put aside the incident of 15 August 1987, save that it throws much light on the unbalanced character of the father. I am left with the statements and behaviour of Ann, Mary and Rita by video and by report of the foster parents.

[1990] FCR 286 at 300

I say at once that I am not influenced one way or the other by the vehemence, violence and tenacity of the father in his attitude to the allegations. It is well known that abusers and innocent parents can be indistinguishable in the ferocity of their reaction to such allegations.

I have already stated that I am satisfied that the children made the statements described by the foster parents. Although the father has hesitated to state that he believes John to be an abuser of his children, the earliest and, therefore, most significant disclosure of Ann related to John and convinced me that he had sexually misbehaved with her and that he was a thoroughly bad and dangerous presence in the lives of the children.

As to the father, I agree with Dr C that he can be vehemently in favour of one course at one moment, equally vehemently opposed to it the next. Although his mother is now "a Judas", she plays a dominant role in the family and may resume that role in the future. I would not be in the least confident about an undertaking to keep grandmother and John out of the parents' or the childrens' lives. Social workers experienced difficulty in tracing Ann's whereabouts when she was placed in a boarding school at the beginning of 1988. To my mind father is worryingly unbalanced and excitable and in saying this I make allowance for the fact that he has been in danger of losing his children and he has realized this.

In carrying out the necessary balancing exercise I put on the one side in favour of the parents:

(a)   that they are the natural parents;

(b)   that there is a strong bond of affection and love between them and their two children Mary and Rita;

(c)   that the children will be greatly distressed at being removed since they wish very much to rejoin their parents;

(d)   apart from the sexual allegations, mother has given them good care;

(e)   that perhaps – and it is a big perhaps – the father and mother may have learnt much from these proceedings; and

(f)   what is frequently forgotten that placements for adoption and adoption itself may go wrong, particularly, after these gruelling years of change and interrogation experienced by Mary and Rita.

On the other side, I put the very real risk of John's re-entry into the lives of Mary and Rita and if their reports of sex games are true, on their further involvement in such evil goings on.

What should I put in the scales with regard to the allegations against the father? All three children have made them. The fingers of all three point to the father. I have hesitated, as Dr C has, in reaching a conclusion, not because I disbelieve these three children but because of the dangers of making a mistake in such extremely difficult and emotional cases. I have finally decided that I go a little further than Dr C. I entertain a very considerable suspicion that the three children were telling the unprompted, unrehearsed truth. I do not either acquit the father of abusing his children nor condemn him. The matter does not stop there. Whether he abused Mary or Rita or not, I am satisfied that they have been exposed to misbehaviour of a sexual

[1990] FCR 286 at 301

nature (whether by John, the father or anyone else matters not); that they have an unhealthy and precocious knowledge of the male and female organs; and that they are capable of behaving in a sexual manner not to be found in girls who have been brought up with care. The parents have, it seems to me, been guilty of serious failure in this respect.

I put these matters in the scales against the parents and the scales weigh heavily against them. I have asked myself the question whether it would be right nonetheless to allow the children to be returned under strict supervision. Because of the difficulties of enforcement I have already referred to, the answer must be no. If they could have been overcome, I would have returned the children. I therefore accede to the local authority's application.

COURT OF APPEAL

3 November 1989

LORD JUSTICE NEILI.

I will ask Butler-Sloss, LJ to give the first judgment.

LORD JUSTICE BUTLER-SLOSS.

This is an appeal from the order of Anthony Lincoln, J made on 20 July 1989 relating to the future of three little girls, Ann born on 1 February 1982, Rita born on 12 October 1984 and Mary born on 19 March 1986. The three children became wards of court in 1988 on the application of the local authority, who now apply for an order that all three children be placed for adoption. The Judge granted their application and terminated contact with their parents, the appellants.

Ann is the daughter of the second defendant by a previous association and the other two girls are the daughters of both him and the first defendant (whom I shall call "the mother"). The third defendant is the paternal grandmother, who has played no part in these proceedings.

Ann has had a disturbed upbringing with several changes of care within the family before she was taken into care by the local authority on 15 April 1987. Ann's mother played no part in her upbringing and she was cared for during the first 18 months by her father and grandmother. The Judge found that the grandmother

"... was a very powerful personality who dominated her family. She was also impulsive and hot tempered."

In July 1983 the father set up home with the mother and Ann lived with them. Comments were made about the habits of Ann at that time which led the Judge to the view that something was obviously wrong with her. On 15 August 1987 an incident occurred which triggered off all the subsequent proceedings. The father in bed woke to find Ann, then five, fondling his penis. The Judge set out the father's account and that he was in a state of shock. The father told the mother, who called the social services. The grandmother in Norfolk was also telephoned and she agreed to take the child back with her for a while. The Judge found it to be an extraordinary episode and if the father had not told the mother and she had not called in the social workers, nothing would have been heard of it. He said:

[1990] FCR 286 at 302

"I am quite unable to reach any conclusion about what happened in the father's bed on August 15. I decline to find, on a balance of probabilities, that on that occasion the father sexually assaulted his daughter. On the other hand, if the father's description of the episode is correct, then his method of handling and managing it was deplorable."

Ann's life was then split between Lincolnshire with the grandmother, and visits to London to the father and mother. The social workers lost touch with her and the Judge was satisfied that the family hindered their efforts to find her. The local authority therefore issued wardship proceedings to trace her whereabouts. She was found a month later, well and happy. There were continuing disputes between the mother and father on the one side and his mother over the standard of care Ann was receiving and where she should live. She continued to move between the parents' home and the two homes of the grandmother. On 15 April 1988, in circumstances which are still in dispute before this court, Ann was placed by the family in the care of the local authority. It appears from the oral evidence of the social worker that the Judge's assessment of the father's approach to the handover was incorrect and that in fact, so far from being the instigator of the move, it was initiated by the grandmother and the father was a reluctant participator.

The Judge found that:

"It would be unthinkable to return Ann to such an environment."

There is no appeal from that decision to place her permanently elsewhere. But both before the Judge and to this court the local authority rely heavily on the history of Ann to influence the court not to return the two younger girls to their parents, and her experiences are therefore relevant.

When Ann went into care there was some concern as to neglect and some allegations of physical abuse, both by an anonymous letter accusing the grandmother and her other son, John, who lived with her, and by the grandmother and John accusing the parents. But the question of sexual abuse did not at that stage arise. Ann was placed with foster parents, who kept a record of her behaviour. The Judge found that:

"They are a continuous record. I am not prepared to believe that they were concocted. There is too much detail, some of it trivial, some of it significant. I can see no reason for the [foster parents] to write fiction about the child."

In July 1988 Ann began to describe her "secrets" and told the foster mother about Uncle John, about watching pornographic videos with him, and taking part in sexual acts with him. She later implicated her father and other relatives. She also implicated the father in sexual activities with the two younger girls. She described the reaction of the mother, who hit the father after being told by Rita and then smacked Ann. The father vehemently denied these allegations. In a video-recorded interview with Dr G,

[1990] FCR 286 at 303

a child psychiatrist (seen by the Judge), Ann repeated these allegations implicating the father and John in sexual acts with the two little girls. The interview was criticized in some respects by Dr C, whose comments were endorsed by the Judge, particularly with regard to increasing pressure and insistence of questions. The Judge recognized and took account of the fact that this child did tell untruths and was found to have done so on previous occasions. It is, however, accepted that Ann has been exposed to inappropriate sexual experiences, the extent of which has not been assessed in these proceedings, and Dr C recommended that Ann be removed from the family.

As a result of these allegations Rita and Mary became wards of court on 31 August 1988, and were placed with different foster parents from Ann. They were also interviewed by Dr G, on two occasions. The interviews were inconclusive and apart from one incident at the second interview, there were no allegations of sexual abuse. The Judge said:

"There was an unexpected episode in the course of this interview when Rita suddenly lay prone on the floor and performed a sexual movement of her body saying `Daddy goes like this on me'."

The children, however, spoke more freely to their first foster parents, who kept a running record which the Judge accepted was not concocted. There were entries relating to masturbation and bad language. Rita spoke of secrets and implicated John and her father in sexual activities with Mary and herself. The Judge set out what Rita had said, and said, at p 297E ante:

"These are very disturbing descriptions. If the children are fantasizing about their father and mother, their state of mind is so abnormal, sexually orientated and ugly that only a very poor upbringing could have brought about such results. If they are telling the truth, the parents' behaviour described by the girls must raise the most serious questions about the parents' mental and sexual state and their ability to rear children."

The three girls were medically examined by a consultant paediatrician, whose findings were criticized by a clinical forensic practitioner called by the parents. The Judge did not rely upon the medical evidence to support allegations of sexual abuse, but pointed out that it did not follow that other forms of sexual abuse had not occurred.

Dr C made a report and gave evidence. In his report he expressed his view about the mother:

"I am, however, quite clear that Rita and Mary love their mother, and that she is well able to look after them, give them a structure to their life and give them the emotional care they need."

After expressing his concerns about the method of interviewing and the circumstances in which the younger children made their statements, he said:

[1990] FCR 286 at 304

"Having said this, it is my opinion that unless there is a clear explanation as to why and how the disclosures took place; a clear picture of whether or not there was a possibility of learnt responses from others, such as Ann or other children, it is inescapable that there is a marked suspicion of sexual abuse by the father and that there is therefore a risk if the children go home."

In his evidence he modified his report and told the Judge that he did not have the same anxieties about Rita and Mary as he had about Ann. He recommended, despite some worries, the return of the two younger children under supervision which he said was essential. A criticism of the Judge by Mrs Puxon for the parents was that he did not refer to, and appeared not to have recalled, the change of emphasis in Dr C's evidence.

This was a long hearing spread over a considerable period of time, with two long adjournments. The problems were very difficult and complicated; there were underlying and deep-seated family relationships and animosities, particularly between the grandmother and John on the one side and the parents on the other side; but they united from time to time and showed a common front to outsiders, particularly social workers; the grandmother dominated the rest of the family; there was unpredictability, temper and hysteria shown both by the grandmother and by the father – described by counsel as "having a short fuse". The Judge formed an adverse view of the father and had a unique opportunity to do so over the prolonged hearing.

He said at p 292B ante:

"... there is something abnormal, uncontrolled and hysterical about the father's temperament and character."

And at p 298F ante:

"... the father is an unbalanced and hysterical person whose behaviour is unpredictable."

There were no medical findings upon which he could rely. He had the behaviour of the children and the statements they had made to foster mothers, social workers and to Dr G. The Judge received in evidence the statements of the children both as reported by the foster parents and from the video recordings which he viewed. He also received in evidence audio tapes made by the father of conversations during access visits.

The Judge approached the consideration of the statements of the children on the basis that they were put before him "both directly through the videos and by way of hearsay through the foster parents". He also directed himself that there "must be shown to be a high degree of probability that they are true". In the passage to which I referred earlier, he considered the alternative possibilities of truth and fantasy.

One factor in the Judge's balancing exercise was his real and justifiable concern about the grandmother and John, and their continued association with the children. He was convinced that John had sexually misbehaved with Ann and that "he was a thoroughly bad and dangerous presence in the lives of the children". The appellants

[1990] FCR 286 at 305

do not disagree with that assessment of the father's brother.

The Judge pointed out the ambivalent approach of the father to his mother and that, although he was calling her a "Judas" during the hearing, she might resume her dominant role in the family in the future. He went on to say at p 300C ante:

"I would not be in the least confident about an undertaking to keep grandmother and John out of the parents' or the children's lives."

He then listed with great care six points in favour of the parents, to which I will refer later, and said at p 300F ante:

"On the other side, I put the very real risk of John's re-entry into the lives of Mary and Rita and if their reports of sex games are true, of their further involvement in such evil goings on."

The Judge went on to assess the allegations made against the father:

"What should I put in the scales with regard to the allegations against the father? All three children have made them. The fingers of all three point at the father. I have hesitated, as Dr. C has, in reaching a conclusion, not because I disbelieve these three children but because of the dangers of making a mistake in such extremely difficult and emotional cases. I have finally decided that I can go a little further than Dr. C. I entertain a very considerable suspicion that the three children were telling the unprompted, unrehearsed truth. I do not either acquit the father of abusing his children nor condemn him. The matter does not stop there. Whether he abused Mary or Rita or not, I am satisfied that they have been exposed to misbehaviour of a sexual nature (whether by John, the father or anyone else matters not); that they have an unhealthy and precocious knowledge of the male and female organs; and that they are capable of behaving in a sexual manner not to be found in girls who have been brought up with care. The parents have, it seems to me, been guilty of serious failure in this respect."

The Judge summed up his concerns, both as to the parents and the grandmother and John, in the final paragraph of his judgment at p 301B ante in these words:

"I put these matters in the scales against the parents and the scales weigh heavily against them. I have asked myself the question whether it would be right, nonetheless, to allow the children to be returned under strict supervision. Because of the difficulties of enforcement I have already referred to, the answer must be `no'. If they could have been overcome, I would have returned the children."

Mrs Puxon raised a number of issues in her notice of appeal. Her primary point related to the admissibility of hearsay evidence in wardship cases. She argued that the rules of evidence apply to wardship hearings in exactly the same way as any other child application or other civil proceedings and that the restrictions of the Civil Evidence Act 1968 are applicable to wardship.

[1990] FCR 286 at 306

In the way in which the Judge came to his conclusion and made his findings this issue does not strictly arise. He admitted the statements of the children made to others and on the video recordings which he viewed, but relied upon them in this case only to a limited extent. His findings of inappropriate sexual knowledge and behaviour of the children might equally be inferred entirely properly from the evidence showing the state of mind of the children and the way in which they were behaving. His finding of sexual impropriety by John towards Ann is not the subject of appeal. No finding of sexual abuse of the two younger children was made, nor any finding of sexual impropriety by the father. However, the issue of hearsay arises more directly from the further evidence which this court has received de bene esse and to which I shall refer later. The admissibility of the further evidence, the use to which it might properly be put and the weight, if any, to be placed upon it, if relied upon, all fall to be determined.

In order to consider whether and for what purpose hearsay evidence may be admitted in wardship proceedings, it is necessary first to look at the position of wardship itself.

The wardship jurisdiction

The earliest origins of wardship arose in feudal times when it was an incident of tenure arising when a tenant died leaving an infant heir. The Crown exercised the prerogative rights on the death of a tenant-in-chief and in 1540 a Court of Wards was set up to enforce the right of the Crown and the execution of its duties in connexion with wardship. Although the Court of Wards was abolished in 1660, the wardship jurisdiction did not die. The Court of Chancery claimed jurisdiction over children, based upon the original jurisdiction of the Lord Chancellor prior to the setting up of the special court which, with its abolition, was held to revert to him and through him to the Court of Chancery. In Falkland v Bertie (1696) 2 Vern 333 at p 342, the court held:

"In this court there were several things that belonged to the King as pater patriae and fell under the care and direction of this court, as ... infants ... and afterwards such of them as were of profit and advantage to the King were removed to the Court of Wards by the statute; but upon the dissolution of that court, came back again in the Chancery." [See generally Lowe and White, Wards of Court 2nd Edition, Chapter 1].

In the hands of the Court of Chancery the modern protective jurisdiction over children was developed. Lord Cottenham, LC in Re Spence (1847) 2 Ph 247 at p 251 said:

"I have no doubt about the jurisdiction. The cases in which the court interfere on behalf of infants are not confined to those in which there is property ... This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal."

[1990] FCR 286 at 307

At the end of the 19th century the statutory concept of the welfare of the child was introduced by the Guardianship of Infants Act 1886. In R v Gyngall [1893] 2 QB 232 at p 248, Kay, LJ said of wardship that it:

"... is essentially a parental jurisdiction and that description of it involves that the main consideration to be acted upon in the exercise is the benefit or welfare of the child. Again the term `welfare' in this connexion must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration, and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction."

It is clear that the jurisdiction of the High Court in wardship is an ancient one which has been invoked for centuries. From 1660 until 1970 it was exercised by the Court of Chancery and then the Chancery Division. It is now exercised by the Family Division and to some extent remitted to the county courts (Matrimonial and Family Proceedings Act 1984, s 38).

It is a special jurisdiction and not dependent upon statute for its exercise. Lord Esher, MR in R v Gyngall (above) said at p 239:

"Wardship was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of the parent and as if it were the parent of the child thus superseding the natural guardianship of the child."

This special paternal jurisdiction, inquisitorial rather than adversarial, has been referred to in many subsequent decisions of the House of Lords and of this court. Viscount Haldane, LC in Scott v Scott [1913] AC 417 said at p 437:

"Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction."

Lord Scarman in Re E (SA) [1984] 1 WLR 156 said at p 159:

"A court exercising jurisdiction over its ward must never lose sight of a fundamental feature of the jurisdiction that it is exercising, namely, that it is exercising a wardship, not an adversarial, jurisdiction."

The present wardship procedure is to be found in RSC Ord 90 and stems from the Supreme Court Act 1981 and the 1984 Act (to which I have already referred) but reflects the inherent jurisdiction of the High Court to deal with children, and RSC Ord 90 is the convenient procedure adopted to bring the matter before the High Court. The carrying out of this special jurisdiction requires a different approach from the court, to some extent at least, from other civil litigation and even other applications relating to the welfare of children based upon a statutory jurisdiction, however anomalous the result may be: see H v H; K v K (Child Cases: Evidence)

[1990] FCR 286 at 308

(1989) FCR 361.

Lord Devlin recognized this position of wardship in Re K (Infants) [1965] AC 201 when at p 242 he said:

"Here the test of convenience is the right one. It is agreed that the practice always has been to admit hearsay ... the jurisdiction itself is more ancient than the rule against hearsay and I see no reason why that rule should now be introduced into it."

In Re K (above) the House of Lords was considering hearsay evidence contained in a confidential report of the Official Solicitor. Lord Evershed, at p 219, approved the observations of the trial Judge, and said:

"The jurisdiction is not only ancient but it is surely very special, and being very special the extent and application of the rules of natural justice must be applied and qualified accordingly. The Judge must, in exercising this jurisdiction, act judicially; but the means whereby he reaches his conclusion must not be more important than the end. The procedure and rules, in the language of Ungoed Thomas, J. should serve and not thwart the purpose."

Lord Devlin said' at p 238:

"A principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice."

It is, in my view, of some significance that neither in the speeches in Myers v DPP [1965] AC 1001 nor in argument in that case was there any reference to the special jurisdiction of wardship. I do not consider that thereafter an administrative and non- adversarial procedure stretching back several centuries, seen in its application to be different from other civil proceedings, would without any adverting to its existence be subjected to a new set of rules by the Civil Evidence Act 1968. Moreover, s 18(1) of the Civil Evidence Act recognized "civil proceedings in relation to which the strict rules of evidence do not apply".

In my judgment, wardship hearings are not subject to the strict rules of evidence and a Judge exercising the wardship jurisdiction may admit evidence classed as hearsay which would otherwise be excluded. It is important, however, to remember that in all proceedings relating to the welfare of children the evidence of what children have said is receivable for other reasons, such as, for instance, the state of mind of the child, an indication of the child's wishes, or arising from an interview the child might have with the Judge privately at the hearing.

Mrs Puxon sought to persuade us that in his approval of the use of hearsay in wardship proceedings Lord Devlin saw its use as limited and as a matter of convenience in connexion with reports of the Official Solicitor or a court welfare officer. She relied upon a passage from his speech at p 242, where he said:

[1990] FCR 286 at 309

"I agree that the liberty to tender hearsay evidence could be abused. I cannot imagine that any Judge would allow a grave allegation against a parent to be proved solely by hearsay, at any rate in a case in which direct evidence could be produced."

She also relied upon the decision of this court in Thompson v Thompson [1986] 1 FLR 221 which was considering hearsay material in a welfare officer's report and drew a distinction between comparatively uncontroversial matters which were unobjectionable and acutely controversial matters where the welfare officer should report his own observations and assessments. However, both in 1963 and 1975 (when Thompson was decided) the problem of how to treat statements of children revealing allegations of sexual abuse did not arise and was not, I am sure, within the contemplation of either court.

In wardship, therefore, the rules as to the reception of statements made by children to others, whether doctors, police officers, social workers, welfare officers, foster mothers, teachers or others, may be relaxed and the information may be received by the Judge. He has a duty to look at it and consider what weight, if any, he should give to it. The weight which he places upon the information is a matter for the exercise of his discretion. He may totally disregard it. He may wish to rely upon some or all of it. Unless uncontroversial it must be regarded with great caution. In considering the extent to which, if at all, a Judge would rely on the statements of a child made to others, the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, any knowledge, as in this case, of a child's predisposition to tell untruths or to fantasize are among the relevant considerations. Helpful guidance as to the court's view of interviews with children for the purpose of "disclosures" are to be found in a number of decisions: see Re E, Re N [1987] FCR 169 and 184; Re M, Re, W Re G, Re H, and C v C [1988] FCR 47, 81 114 and 147, principally, Latey, J in Re M (A Minor) (Child Abuse: Evidence) [1988] FCR 47. (See also H v H, K v K [1989] FCR 356). I agree with Latey, J as to the usefulness of a video recording, but its status cannot be greater than other statements of children, although its impact, if well recorded, is more direct. I would just add that I view with some alarm the use of the word "disclosure" to identify an interview with a child for the purpose of eliciting whether or not there is something to disclose.

Grave allegations of sexual abuse made in a statement by a child naming a perpetrator present considerable problems. Such allegations would, unsupported, rarely be sufficiently cogent and reliable for a court to be satisfied, on the balance of probabilities, that the person named was indeed the perpetrator. The evidence may, however, reveal a clear indication that the child has been exposed to inappropriate sexual activities and may be sufficiently compelling to satisfy the Judge that the child has been subjected to serious sexual abuse. Statements of a child may well be supported by the manner in which the child gives the description and in other aspects of his or her behaviour. The giving of the statement is unlikely to be neutral in the inferences to be drawn.

Additional evidence to support the identity of the abuser is likely to be more

[1990] FCR 286 at 310

difficult to adduce. But the child may be at risk. If the alleged perpetrator is outside the family and the parents are able and willing to protect the child, a problem is unlikely to arise for that child. The risk can be avoided and the child protected. If, however, the child names a member of the family and there is no evidence other than the statement of the child, and if the Judge accepts the child's account after having applied all the cautionary tests, in my judgment he has a duty in wardship proceedings to treat the welfare of the child as paramount and to take steps to protect the child. It is not necessary to make a finding of sexual abuse against a named person in order for the Judge to assess the risks to the child of return to that environment. He is engaged in a different exercise, that of the assessment of the possibilities for the future. The assessment of the possibilities is crucial for the protection of the child and he may decide, as Sheldon, J said in Avon County Council v G [1988] FCR 290 at p 298, that it is an "unacceptable risk". Purchas, LJ in Re F (Minors) [1988] FCR 679 at p 684B approved a passage in Hollis, J's judgment in Cleveland County Council v A [1988] FCR 593 (at p 597G):

"... if the risk of a child having been sexually abused while in his or her family environment is a real, reasonable or distinct possibility, action should be taken ... I do not consider that a probability has to be shown but a real possibility. In that way, the interests of the child will be safeguarded."

This exercise is not unique to the family work. Lord Reid in Davies v Taylor [1974] AC 207 at p 212 said:

"To my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than `substantial', on the one hand, or `speculative' on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective."

In that case the claim was by a widow after a fatal accident and the House of Lords were evaluating the possibility of reconciliation between the deceased and the widow. But the words may helpfully be applied to the exercise of a Judge's discretion in child applications.

Mrs Puxon accepted that a Judge was entitled to rely upon hearsay evidence in order to provide protection for the child against future risks, by way of continuation of the wardship (see Re F) and orders such as supervision, injunctions or undertakings. She drew a distinction between such orders which kept a child within the home, even one where there was considerable suspicion, and an order removing the child from that home. She argued that the latter course was unjustified in reliance upon the statements of a child which amounted to hearsay evidence, in that it involved a change of status of the child. If the Judge is entitled to take account of the information for the purpose of protection of the child, I cannot for my part see why the line should be drawn at a stage of inadequate protection, such as an ineffective supervision order,

[1990] FCR 286 at 311

and the Judge precluded from taking the practical step of removing the child from an environment which was seen to be adverse to the welfare of the child. Under the existing legislation, by s 7(4) of the Family Law Reform Act 1969 a Judge in wardship may, in exceptional circumstances, make a supervision order, or by s 7(2) may commit a child to the care of the local authority. A decision to make one or other order ought not to be dependent upon different procedural rules but should be a matter for the discretion of the Judge, taking into account that it is a serious step to remove a child from home and family and one which s 7(4) and 7(2) require to be in exceptional circumstances. It is always a matter of balancing the need to protect the child against the importance of preserving the unity of the family.

Turning now to Mrs Puxon's other main ground of appeal, she submitted that the Judge's decision in the last paragraph of the judgment to remove the children permanently was based upon the difficulties of enforcement. That enforcement according to her, related to fears that John and the grandmother might re-enter the children's lives and the Judge's decision on the facts was unjustified. Mr Cole sought to show that the enforcement which concerned the Judge was not limited to the grandmother and John, but also included the impossibility of enforcing a strict 24- hour supervision over the parents themselves. His difficulty was that, as he informed us, concerns as to the impossibility of supervising the children on a 24-hour basis to protect them from risks within the immediate family were not canvassed before the Judge.

I find it difficult, I have to confess, entirely to understand the final basis upon which this very experienced Judge made his decision. If it was limited to the difficulties of enforcement of any order protecting the children from contact with John and the grandmother, I agree with Mrs Puxon that the extreme step of removal of the children from their home and immediate family for that reason was unsupported by the evidence. It is common ground that the threat from John and the grandmother was never a live issue during the hearing before the Judge. In his judgment at p 300E ante he set out six points in favour of the parents: that they are the natural parents; the strong bond of affection and love between them and the two younger children; the children would be greatly distressed at being removed since they wished to rejoin their parents; other than the sexual allegations, the mother had given them good care; that perhaps the parents may have learnt from the proceedings; and that placements for adoption may go wrong, particularly for these children with all that they had gone through. The Judge also, at p 299D ante, referred to the evidence of Dr C and said:

"He considered, as I do, that Mary and Rita loved their mother and she can well look after them, giving a structure to their life and the emotional care they need."

These were powerful factors in favour of the parents. If the inappropriate sexual knowledge of the children and their exposure to unsuitable experiences, to which he referred earlier, was not so serious as to require in itself the removal of the children, having regard to all other considerations, then the issue of enforcement of a ban on the grandmother and John was not, in my judgment, standing alone, sufficient ground for such a decision and he was in error in removing the children.

One has, however, to read the judgment as a whole. The Judge was concerned at

[1990] FCR 286 at 312

p 297E ante about the disturbing descriptions given by the children, and at p 300G–H ante he concluded that he entertained a very considerable suspicion that the children were telling the truth about their father. The Judge said that he could neither acquit nor condemn the father. On the balance of probabilities a finding of sexual abuse by the father on the evidence available (taking into account that it was hearsay), would have been unjustified. But the matter does not stop there. I do not share the Judge's view that it does not matter which of the adults had exposed the children to misbehaviour of a sexual nature. For my part, I consider that some view must be formed as to the direction from which the children will be at risk in the future. It may often be difficult to evaluate, but, if it can be done, it is clearly important to evaluate that risk in considering the future protection and welfare of the child.

The Judge found there to be a substantial risk from the extended family. But his finding that the parents had been guilty of serious failure towards the children failed, in my view, to meet the essential point, which is the assessment of the risk to the children within the immediate family. The concern about the parents was not limited to risks of omission but included risks of commission within the home. In failing to deal specifically with this area of risk the Judge was also in error. Having erred in two material respects, in my judgment the grounds for his decision cannot stand. Since we are dealing with the welfare of the children and in the wardship jurisdiction, we cannot, however, just set aside his order and return the children to the parents.

I turn now to the additional evidence. We heard it de bene esse, but in the light of what I have already said, I for my part am satisfied that it was right to receive it. The Judge's reasons cannot be upheld; the evidence relates to children in wardship; it was not available at the trial. Unlike the facts in M v M (Minor: Custody Appeal) [1988] FCR 39, this court was able to hear oral evidence of two witnesses and the situation which arises is entirely different.

We first heard evidence from Mrs F, who is the foster mother of Rita and Mary. She had sworn an earlier affidavit and given evidence before the trial Judge. Her evidence to this court related to two occasions shortly after the decision of the Judge on 20 July 1989. Mrs F told us that both children were throughout aware that a Judge would decide whether they were to go home to their parents. Their parents had told them of it and so had she. Rita was expecting to be given the decision on Friday 21 July. She was also accustomed to seeing her father on access visits each Friday. According to Mrs F, Rita is a very mature child for her age, very aware of what is going on around her and "never forgets anything". Mrs F told us that she went in about 8.30 am to Rita's bedroom. She was in bed alone. Mrs F said:

"Rita asked me if she and Mary were going to see mummy that day. I told her that the Judge had made a decision that they were not going to go back t9 live with mummy and daddy. I said to her `Do you think you know why the Judge said this?' She said `Yes, I think it is because of the rude secret that daddy did to me'. I then asked her what daddy did to her. She said `He was in my bed and pulled his pants down and laid on top of me and it hurt me'. I then asked her if she told mummy. She said `Yes. Mummy was cross. They were shouting and daddy was throwing things. Mummy told daddy to go back to Quick Fit and stay there'."

[1990] FCR 286 at 313

The little girl said she did not want to talk about it and Mrs F said that they would not keep talking about it but she must tell the social worker. She was nervous and agitated when she spoke about it. According to Mrs F, apart from the occasion when it was discussed with the social worker on 28 July, to which I shall refer in a moment, there was no further reference to this by the child or by Mrs F.

The second occasion when Rita spoke of this was on the visit of the social worker on 28 July. The foster mother was present. We have had the accounts from both witnesses. According to the social worker, Rita came rushing into the room in an anxious state, with something she needed to tell the social worker. She was calmed down. She then gave a description similar to that she gave to Mrs F, both as to the father's behaviour and the mother's reaction. This was after a slightly odd introduction where, according to the social worker, when asked if she knew why she said she would not see her mum and daddy, she said "No" and asked Mrs F "Do I?". However, the overall impression in my mind is of a child giving more or less the same account on each occasion.

Mrs Puxon has sought to persuade us that the additional evidence should not be admitted since it was hearsay, but for the reasons I have already given I am satisfied that hearsay evidence is admissible in wardship proceedings. In any event, Mrs Puxon argued that no weight nor reliance should be placed upon it. She has raised discrepancies between the accounts of Rita over secrets in the past, over the descriptions of what was called the carrot game and questioning on this subject in the past. The child had never told either Mrs F or the social worker about rude secrets in the past, nor made that specific allegation to anyone except on one occasion to Mrs the previous year. She had, however, demonstrated something similar to Dr G, an incident to which I have already referred. The two occasions on which Rita made the allegation in July 1989 were after she knew that she would not be having access nor seeing her parents again.

The reliability of the person relating what the child said is of vital importance. Mrs F is an entirely respectable person, a responsible and experienced foster mother of many years, and was clearly doing her best to give an accurate account. As Mrs Puxon pointed out, she was and needed to be in the picture as to the background of the children in her care. She said she did not initiate the secrets conversation on 21 July. She did, however, question Rita earlier in the year about the carrot game, although she said she was asked not to talk about these things. The carrot game had featured as a matter of concern before the Judge. The local authority had placed much emphasis upon this as being of a sexual nature. But to Mrs F Rita gave a wholly innocent explanation for it. I am uncertain whether Mrs F may have innocently prompted the child to say something on 21 July. If she did, it would explain the odd discrepancy between her evidence and that of the social worker on 28 July. I have no reason to doubt, however, the accuracy of her account of what the child herself said on 21 July, and indeed the Judge accepted her earlier evidence.

What weight should be placed upon this additional evidence and what effect should it have upon the outcome of this case? I do not, for my part, consider that it carries the case very much further forward from the position before the Judge. The value of this additional evidence is to underline the earlier evidence of which in my view the Judge took too little account.

[1990] FCR 286 at 314

The issue in this appeal, in my view, is the assessment of the degree of risk attaching to the return of the children to their own home. Mr Cole has sought to uphold the judgment as it stands and there is, somewhat surprisingly, no cross-notice to ask this court to uphold the Judge's decision on other grounds. In substituting its own decision for that of the Judge, in the absence of a cross-notice, ought this court to set aside the entire decision-making procss, or only the final decision as to the risk from the extended family, which was clearly wrong? In my view, this court has to do the balancing act and weigh all the factors in the scale in the light of my view that he erred in two material respects. The absence of a cross-notice ought not to impede this court from exercising its own discretion in this case. RSC Order 59 r 10(4) provides that this court may exercise its powers notwithstanding no notice of appeal or respondent's notice has been given, and "the Court of Appeal may make an order, on such terms as the court thinks just, to ensure the determination on the merits of the real question in controversy between the parties".

In the special jurisdiction of wardship with the welfare of the child paramount, in my view we have a duty in this case not to be fettered by technical considerations and we ought to do what we believe to be right in the best interests of Rita and Mary.

Taking into consideration all the evidence set out by the judge, including the view of Dr C in his oral evidence that with safeguards the two children could return to their parents, and the additional evidence about Rita, I, for my part, am satisfied that there is a substantial risk to the well-being of both children from the father if they were to return home. I also consider that the mother will fail to protect the children from that risk. I am entirely satisfied that risks of commission would be extremely difficult to monitor and prevent by any form of supervision available to any social services department, and supervision would be ineffective to meet this type of risk. For all these reasons, I consider the Judge was right to remove the children and that this court ought not to return them.

I would dismiss this appeal.

LORD JUSTICE MCCOWAN.

The last evidence the Judge heard was from Dr C called on behalf of the appellants. The last question put to that witness was by the Judge. He asked:

"Supposing that at the end of the case, after the submissions of counsel, Dr C, I reach the following conclusion with regard to Mary and Rita, that I can neither acquit or condemn either parent themselves of being directly implicated, but that I share your worries, would you still say that they should go back, provided there is supervision?"

The doctor answered:

"Yes, provided there is supervision."

That was on 24 April 1989.

The case was then adjourned to await the decision of the Court of Appeal in H v H; K v K (Child Cases: Evidence) (1989) FCR 356. Eventually the court reassembled

[1990] FCR 286 at 315

on 27 June 1989 and the Judge heard submissions from Mrs Puxon and Mr Cole. In the course of Mrs Puxon's submissions the Judge indicated his provisional view of the case. He said to Mrs Puxon:

"I feel there is sufficient wrong in that situation without regard to the truth of the allegation for Ann to be removed; whereas as far as Mary and Rita are concerned, I thought that their state of mind as a result of the interview they had was such that they would not be removed but that they should be subject to very careful inspection and supervision by the local authority."

Mrs Puxon indicated that her clients would, with reluctance, accept that situation. However, Mr Cole, after an adjournment to take instructions, responded that he was unable to accept the Judge's invitation. Argument was therefore resumed and concluded that day. The Judge then reserved his judgment and eventually gave it on 20 July 1989.

Having spent a good deal of time considering the concluding pages of the Judge's judgment, I do not find it easy to conclude that he meant other than what he said at p 301B ante, namely:

"Because of the difficulty of enforcement I have already referred to, the answer must be no. If they could have been overcome, I would have returned the children."

That sounds plain enough. What, then, were the difficulties of enforcement which he had already referred to? I can be in no doubt that he was referring back to the passages in his judgment at p 300C ante:

"I would not be in the least confident about an undertaking to keep grandmother and John out of the parents' or the children's lives."

At p 300F ante:

"On the other side J put the very real risk of John's re-entry into the lives of Mary and Rita and if their reports of sex games are true, of their further involvement in such evil goings on."

It must be remembered also that, while the Judge had not felt able to conclude that the children's father had sexually abused them, at p 300B ante, he had (rightly or wrongly) found:

"... the earliest and therefore most significant disclosure of Ann related to John and convinced me that he had sexually misbehaved with her and that he was a thoroughly bad and dangerous presence in the lives of the children."

Hence, were it not for the Judge's belief that it would be impossible to keep the grandmother and John, and particularly the latter, out of the lives of Mary and Rita if returned to their parents, the judgment appears to say that he would have returned

[1990] FCR 286 at 316

them to their parents under strict supervision.

There has been in this case no cross-notice and Mr Cole at the outset of the hearing before us indicated that all he sought to do was to uphold the Judge's finding. However, that submission was based upon his interpretation of what the Judge had held, namely that it would be impossible to supervise the children if returned to their parents, and that keeping John out of their lives had nothing to do with it. As I have indicated, I am wholly unable to accept that interpretation.

In fact Mr Cole conceded that he had never argued before the Judge anything about enforcement problems (whether in relation to John or supervision). He also conceded that the Judge never asked Mrs Puxon to deal in argument with whether it would be possible to enforce an undertaking to keep the grandmother and John out of the children's lives. That in itself, in my judgment, would make his decision of the case on that point unsatisfactory. But the matter does not rest there. Mr Cole made the further concession before us that he had never contemplated that there would be difficulty in keeping the grandmother and John out of the lives of Mary and Rita; that it was in fact never a live issue of the case; and that the local authority were worried, not about John, but about the father. Indeed there was, in my judgment, no evidence before the court to justify the Judge in making a finding that it would be impossible to keep the grandmother and John out of the children's lives if they returned to their parents. On the contrary, in the court welfare officer's subsidiary report of January 1989 it was stated that the parents had moved from the area, partly to distance themselves from the grandmother and John, and had decided to cut off relations with them in the interests of the children and themselves as a family. In earnest of that was a solicitor's letter on their behalf dated 28 October 1988, from which I quote, beginning in the middle of the second paragraph:

"... our clients have now reached the decision that there should be no further contact whatsoever, between either of yourselves, and our clients and their children. We would make it clear that this is a decision reached after much thought following the discussions with social services. It is however firmly believed that this would be in the best interests of the children, and our clients as a family.

In the above circumstances, would you therefore please refrain from attempting any contact with our clients, or their children, and we have to advise you that should any attempts of contact be made, we are instructed to commence court proceedings to obtain an appropriate order against you."

It is not in dispute that after 14 October 1988, when the father learned what Ann was saying John had done to her, there was no contact between the parents on the one hand and the grandmother and John on the other, and that the following month the parents moved from the area. The grandmother was, it is true, a party to these proceedings and turned up at court on the first day, but only to announce that she intended to take no part in them. She then left the court, along with John, never to reappear.

For all those reasons I find it impossible to justify the basis on which the Judge decided the case.

The Judge did not find it proved that the father had sexually abused any of his

[1990] FCR 286 at 317

children. In my judgment, he was right to take that course. The only evidence that was before him to that effect was, as the Judge said:

"... the statements and behaviour of Ann, Mary and Rita by video and by report of the foster parents."

That was all hearsay evidence. I accept that wardship is a special jurisdiction in which Judges are entitled to receive and have regard to hearsay evidence, but, in my judgment, it would be wrong for a Judge to find sexual abuse proved against a particular person solely on the basis of hearsay evidence. What he can do, however, is to have regard to hearsay evidence to assist him to form a view as to the degree of risk involved for the future in permitting children to return to their parents.

My view being, as I have indicated, that the Judge was clearly wrong to decide this case on the basis that John and the grandmother could not be kept out of the children's lives, the question that has troubled me is what to make of his remark that if those difficulties of enforcement could have been overcome, he would have returned the children to their parents. Can it be said that he properly weighed the risk of further exposure of the children to sexual misconduct if returned to their parents and found it not a real possibility? Had he heard counsel on the difficulties of enforcement, which were worrying him, and appreciated that it was common ground that they posed no problem, would he in fact have ordered that the children return to their parents under strict supervision?

It is certainly right to say that the Judge put into the scales findings that he made which were favourable to the parents. Thus in his judgment at p 299D ante he said, referring to the evidence of Dr C:

"He considered – as I do – that Mary and Rita love their mother and she can well look after them, giving a structure to their life and the emotional care they need."

The other passage in this context is at p 300D ante:

"In carrying out the necessary balancing exercise, I put on the one side in favour of the parents:

(a) that they are the natural parents;

(b) that there is a strong bond of affection and love between them and their two children Mary and Rita;

(c) the children will be greatly distressed at being removed since they wish very much to rejoin their parents;

(d) apart from the sexual allegations the mother had given them good care;

(e) that perhaps – and it is a big perhaps – the father and mother may have learned much from these proceedings; and

(f) what is frequently forgotten, that placements for adoption and adoption itself may go wrong, particularly after these gruelling years of change and interrogation experienced by Mary and Rita."

[1990] FCR 286 at 318

The Judge then went on to say, at p 300G ante:

"What should I put in the scales with regard to the allegations against the father? All three children have made them. The fingers of all three point at the father. I have hesitated, as Dr. C has, in reaching a conclusion, not because I disbelieve these three children but because of the dangers of making a mistake in such extremely difficult and emotional cases. I have finally decided that I go a little further than Dr. C. I entertain a very considerable suspicion that the three children were telling the unprompted, unrehearsed truth."

By which he must, I believe, have meant "insofar as they made allegations against their father of a sexual nature".

The Judge went on to make three very important findings, beginning at pp 300H – 301B ante. First he said that he was satisfied that Mary and Rita had been exposed to misbehaviour of a sexual nature. (His following remark "whether by John, the father or anyone else matters not" is curious, because it would obviously matter very much as far as returning the children to the father was concerned. He must, I think, have meant no more than "leaving aside who was actually guilty of the sexual misbehaviour".)

Secondly, he found that Mary and Rita had an unhealthy and precocious knowledge of the male and female organs.

Thirdly, he found that they were capable of behaving in a sexual manner not to be found in girls who have been brought up with care.

In the light of those findings he held that the parents had been "guilty of serious failure in this respect" and added "I put these matters in the scales against the parents and the scales weigh heavily against them".

So they do. After much anxious consideration I find it impossible to understand how in the light of those findings the Judge could have come to any view other than that there was a real probability of exposure of the children to misbehaviour of a sexual nature if returned to their parents.

I conclude that the Judge was deflected by his anxiety to keep the children from contact with John and the grandmother from considering the real issue which he had to decide, which was whether the risk of returning the children to their father, even with strict supervision, was too great. I do not believe he ever really decided this issue. If he did and in favour of the parents he was, in my judgment, plainly wrong.

That being my view, I do not consider it would be right in a wardship case for me to be influenced by the respondents' failure to serve a cross-notice justifying the Judge's decision on grounds other than those he himself gave.

I should add that I agree that it was right for this court to receive the additional evidence, but I have not, for my part, found that it affected my decision.

For the reasons I have given, I too would dismiss the appeal.

LORD JUSTICE NEILL.

Before I give my judgment it might be convenient to give a reminder that this case involves children and nothing should be published which would be likely to identify them or any of them.

This is an appeal from the order of Anthony Lincoln, J dated 20 July 1989 in

[1990] FCR 286 at 319

wardship proceedings relating to three children, Ann (born on 1 February 1982), Rita (born on 12 October 1984) and Mary (born on 19 March 1986).

By his order the Judge ordered that the children should remain wards of court, that they should be placed in the care of the local authority pursuant to s 7(2) of the Family Law Reform Act 1969, and that they should be prepared for adoption. There is no appeal against the order in so far as it relates to Ann, but the parents of Rita and Mary appeal against the order for the placement of Rita and Mary in the care of the local authority. The parents seek return of these two children to their care, though they accept that they should remain wards of court and that they should be subject to close supervision.

In support of the appeal counsel for the parents advanced four main arguments:

(1)   That in reaching his conclusion that the children should be placed in care the Judge had relied on hearsay evidence and had made findings based on this evidence which he was not entitled to make.

(2)   That in any event in the cases of Rita and Mary his findings were contrary to the weight of the evidence and that his conclusion that they should be placed in care was inconsistent with the findings which he made as to the parents' qualities as parents.

(3)   That moreover his decision to place the children in care was based solely on his mistaken conclusion that the children's grandmother and uncle would make the enforcement of any order for supervision impossible.

(4)   That no further evidence should be admitted because any evidence from the present foster mother would be no more than additional hearsay evidence on which no relevant findings could be based.

I propose to consider these arguments under three headings.

A. The Admissibility and Use of Hearsay Evidence in Wardship Proceedings

Counsel for the parents was prepared to concede that hearsay evidence was regularly admitted in practice in wardship proceedings and indeed that many welfare and other reports were based in large measure on hearsay material. Counsel was further prepared to concede that a court is entitled to rely on hearsay evidence for the purpose of making or continuing an order for wardship or making orders for supervision.

She submitted, however, that such evidence could not properly be used:

(a)   to make adverse findings of fact against a parent or another individual; or

(b)   to make orders which changed the status of the child or which had the effect of removing the child completely from the care of the parents.

For my part I find difficulty in finding a satisfactory basis for the suggested distinction between the types of order for which hearsay evidence may be used. Nevertheless the use of hearsay evidence in wardship proceedings raises a question of principle which requires to be addressed.

Counsel for the parents put in the forefront of her argument the provisions of the Civil Evidence Act 1968. Thus s 1 provides:

[1990] FCR 286 at 320

"(1) In any civil proceedings a statement other than one made by a person while giving oral evidence in those proceedings shall be admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Part of this Act or by virtue of any other statutory provision or by agreement of the parties, but not otherwise."

"Civil proceedings" are defined in s 18 of the 1968 Act Section 18(1) provides:

"In this Act, `civil proceedings' includes, in addition to civil proceedings in any of the ordinary courts of law –

(a) civil proceedings before any other tribunal, being proceedings in relation to which the strict rules of evidence apply; and

(b) an arbitration or reference, whether under an enactment or not,

but does not include civil proceedings in relation to which the strict rules of evidence do not apply."

Basing herself on these statutory provisions, counsel submitted that as wardship proceedings took place in an ordinary court of law hearsay evidence could not be admitted otherwise than as provided in s 1(1) of the 1968 Act. It is therefore necessary to consider the nature of wardship proceedings and whether in such proceedings the "strict rules of evidence" apply.

It is possible to trace the origins of the wardship jurisdiction to a period long before the establishment of the Court of Wards in 1540. I am content, however, to start my examination of the exercise of this jurisdiction with the case of R v Gyngall[1893] 2 QB 232.

In that case the mother of a 15 year old girl applied for a writ of habeas corpus in the Queen's Bench Division. The father of the girl was dead. At the material time the child was living with a lady who kept a convalescent home in Weymouth. The case is instructive because in the course of his judgment Lord Esher, MR considered the two types of jurisdiction which might have been exercised before the Judicature Acts. It is also to be noted that the court had before it a statement by the child of her recollection as to the history of her past life. This statement was exhibited to an affidavit by the lady in whose custody she was living. At p 238 Lord Esher said:

"It seems to me that before the Judicature Act there were two distinct heads of law, under either of which there might have been an application in the present case. The common law jurisdiction, under which the courts used to deal with these matters by habeas corpus. That jurisdiction was exercised for the purpose of determining as between two or more persons their rights ... That jurisdiction might be exercised in cases where there was no question of the relation of parent or child, or it might be exercised as between parents and other persons. In such latter cases, where the dispute was with regard to the custody of a child, the question arose whether the party detaining the child had a right to retain it as against the parent. I

[1990] FCR 286 at 321

take it that at common law the parent had, as against other persons generally, an absolute right to the care of the child, unless he or she had forfeited it by certain sorts of misconduct ... Where the common law jurisdiction was being exercised, unless the right of the parent was affected by some misconduct or some Act of Parliament, the right of the parent as against other persons was absolute.

... But there was another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. That was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent."

A little later Lord Esher continued, at p 240:

"It is argued that ... the Court of Chancery was bound to give the custody of the child to the parent, unless the parent had been guilty of misconduct to the extent which would in a common law court have destroyed the prima facie absolute right of the parent. The fallacy of this argument appears to me to consist in mixing up the two jurisdictions, and extending to one of them considerations which appertain solely to the other."

It is clear that in that case Lord Esher was satisfied that the mother had not been guilty of any misconduct which as between her and other people had derogated from her right to the custody of the child. Nevertheless the court was entitled, in the interests of the welfare of the child, to supersede the natural rights of the mother and refuse the order that the child be returned to her.

The special position of wardship proceedings was recognized by Viscount Haldane, LC in Scott v Scott [1913] AC 417 where detailed consideration was given to the rights of a court to hear proceedings in camera. Lord Haldane clearly regarded wardship proceedings as being in a separate category when he said at p 437:

"The case of wards of court and lunatics stands on a different footing. There the Judge who is administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor, is not sitting merely to decide a contested question. His position as an administrator as well as Judge may require the application of another and overriding principle to regulate his procedure in the interest of those whose affairs are in his charge."

The special nature of wardship proceedings was further recognized in the decision of the House of Lords in Re K [1965] AC 201. It was there held that as the paramount consideration of the Chancery Division in exercising its jurisdiction over wards of court was the welfare of the infants, the proceedings were not a mere conflict

[1990] FCR 286 at 322

between parties and a parent was not entitled as of right to the disclosure of confidential reports submitted to the court. The court, however, left open the question, which had not been fully argued before it, whether it was proper to admit or act upon hearsay evidence. Nevertheless it seems that in the Court of Appeal in the same case it was accepted that hearsay evidence was included in reports as a matter of practice. In the House of Lords Lord Evershed (at p 223) stated that he was content for the time being to accept the existing practice.

Counsel for the parents, however, placed reliance on part of a passage in the speech of Lord Devlin in Re K in which he expressed an opinion on the question of hearsay at p 242:

"I turn now to consider the objection on the ground of hearsay. Here the test of convenience is the right one. It was agreed that the practice always has been to admit hearsay. None of the Lord Justices in the Court of Appeal disapproved of this practice nor were they invited to do so. Reports on such matters as conditions prevailing at the school to which it is proposed to send an infant or of a house in which he is to reside may often be of great assistance and I think that it might often adversely affect the interests of the infant if a Judge were to be debarred from acting upon them. A Judge in chambers is, of course, quite capable of giving hearsay no more than its proper weight. An inflexible rule against hearsay is quite unsuited to the exercise of a paternal and administrative jurisdiction. The jurisdiction itself is more ancient than the rule against hearsay and I see no reason why that rule should now be introduced into it.

I agree that the liberty to tender hearsay evidence could be abused. I cannot imagine that any Judge would allow grave allegations against a parent to be proved solely by hearsay, at any rate in a case in which direct evidence could be produced. I agree that in such a case if a lot of hearsay material was produced a party might be embarrassed by not knowing what steps he ought to take to meet it. But I think that it is well within the inherent powers of a Judge exercising this sort of jurisdiction to deal with such a situation. He can, in a proper case, indicate in advance that he will pay no attention whatever to grave allegations that are based only on hearsay. I do not think that the possibility of abuse should be allowed to outweigh the benefits of continuing existing practice."

It was forcefully argued by counsel on behalf of the parents that in this passage Lord Devlin clearly recognized the distinction which she was seeking to draw between evidence about living conditions in a particular house or school on the one hand and evidence which involved grave allegations against a named person or persons. Lord Devlin, she said, warned against making any serious findings against a parent on the basis of hearsay evidence.

In my judgment, however, it is of a crucial importance to take account of the saving which Lord Devlin himself introduced, namely, that a grave allegation against a parent would not be allowed to be proved solely by hearsay "at any rate in a case in which direct evidence could be produced." [My emphasis.]

In my judgment, the correct approach to the matter is to recognize that in wardship proceedings, which are of a special kind and which involve to some extent the exercise

[1990] FCR 286 at 323

by the court of a parental, or administrative jurisdiction, hearsay evidence is admissible as a matter of law, but that this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed.

Lord Esher himself in R v Gyngall (above) clearly recognized that the court had to proceed with great caution before it interfered with the rights of a parent. Furthermore, in Scott v Scott (above) and in Re K (above) the speeches in the House of Lords emphasize that, though the jurisdiction is a special one, the Judge who exercises it has to act judicially because he is exercising a judicial function.

There are cases in other branches of law where the special nature of the jurisdiction which is being exercised permits, and indeed obliges, the court to admit evidence which would not be admissible if the strict rules of evidence referred to in s 18(1) of the 1968 Act were observed. Thus in Kavanagh v Chief Constable of Devon [1974] QB 624 the Court of Appeal upheld the decision of the Divisional Court to the effect that the Crown Court when exercising its administrative functions was not governed by the rules of evidence normally applied in criminal and civil courts. Accordingly in an appeal under the Firearms Act 1968 the court was entitled to take into consideration all matters including hearsay which the Chief Constable was at liberty to consider. The facts in Kavanagh's case are, of course, far removed from those in the present case, but the judgment shows that where a court is exercising a function which is administrative rather than judicial the rules of evidence do not apply. In the case of wardship proceedings the function of the court is perhaps best regarded as having a dual nature, being in part judicial and in part administrative.

In exercising this jurisdiction the court will be very slow indeed to make a finding of fact adverse to a parent if the only material before it has been untested by cross- examination. Moreover, it will examine with particular care the evidence of the person who communicates the hearsay material to it. But as the welfare of the child is the paramount consideration I see no escape from the conclusion that in some cases a court, in assessing the risks to which a child may be exposed, may be obliged to reach conclusions of fact which in other circumstances and in other proceedings it would not be free to do.

There may also be cases, however, where the court may not be in a position to make a positive finding on the evidence as to what has happened in the past, but may nevertheless come to the conclusion that a child may be at risk for the future. This situation was considered by the Court of Appeal in H v H; K v K [1989] FCR 356 in two cases involving future access by a father. At p 389 Stuart-Smith, LJ said this:

"In the type of case with which we are concerned in these appeals there may be insufficient evidence upon which the Judge can conclude that the father has sexually abused his children, nevertheless there may be sufficient evidence to show that there is a real chance, possibility or probability that he will do so in the future if granted access. That must be weighed against the disadvantages to the child of not seeing its father; the balance may come down against any access or unsupervised access. And the Judge in the exercise of his discretion will act accordingly.

[1990] FCR 286 at 324

I would only add this on the standard of proof. Where the court is concerned with what has happened in the past, this must be established on balance of probability. But where serious allegations are made, amounting to criminal or grossly immoral conduct, the degree of probability must be commensurate with the occasion and proportionate to the subject matter: see Bater v Bater [1951] P. 35 per Denning, LJ. at p.36 and Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247."

Once the court has decided that the child may be at risk it seems to me to follow that the powers of the court are not limited merely to making wardship orders or orders for supervision. In a proper case the court may feel obliged to place the child in the care of a local authority, even though the evidence is not sufficient to prove as a fact that the child has been sexually abused by a particular parent.

B. The Judge's decision that the children should not be returned to the parents because of the difficulties of enforcement.

Counsel for the parents drew our particular attention to the final paragraph of the judgment, which I must read, though it is necessary in order to judge its meaning and significance to read also the previous paragraph as well as two short passages in the judgment at p 300 ante.

At p 300G the Judge said this, having set out (he six factors which told in favour of the parents:

"What should I put in the scales with regard to the allegations against the father? All three children have made them. The fingers of all three point at the father. I have hesitated, as Dr. C has, in reaching a conclusion, not because I disbelieve these three children, but because of the dangers of making a mistake in such extremely difficult and emotional cases. l have finally decided that I go a little further than Dr. C. I entertain a very considerable suspicion that the three children were telling the unprompted, unrehearsed truth. I do not either acquit the father of abusing his children nor condemn him. The matter does not stop there. Whether he abused Mary or Rita or not, I am satisfied that they have been exposed to misbehaviour of a sexual nature (whether by John, the father or anyone else matters not); that they have an unhealthy and precocious knowledge of the male and female organs; and that they are capable of behaving in a sexual manner not to be found in girls who have been brought up with care. The parents have, it seems to me, been guilty of serious failure in this respect.

... I put these matters in the scales against the parents and the scales weigh heavily against them. I have asked myself the question whether it would be right nonetheless to allow the children to be returned under strict supervision. Because of the difficulties of enforcement I have already referred to, the answer must be no. If they could have been overcome, I would have returned the children. l therefore accede to the local authority's application."

I must also read two earlier passages on p 300C where the Judge said this:

"I would not be in the least confident about an undertaking to keep the

[1990] FCR 286 at 325

grandmother and John out of the parents' or the children's lives."

And later he said:

I put the very real risk of John's re-entry into the lives of Mary and Rita and if their reports of sex games are true, of their further involvement in such evil goings on."

It was clear, counsel submitted, that the reason, and the only reason, why the Judge decided not to return the children under strict supervision was because of the difficulties in enforcement. These difficulties were plainly difficulties concerning the grandmother and John, and did not relate to any difficulties of enforcement as far as the parents themselves were concerned. Thus the Judge specified the difficulties as those to which he had already referred and, moreover, it was extremely unlikely that he would have intended to refer to any difficulties of enforcement against the parents who, in the nature of things, could not be supervised otherwise than by means of periodic visits.

In my opinion, counsel's interpretation of the last paragraph of the Judge's judgment is correct. It seems to me that in the context of the anxieties about the grandmother and John, expressed in the judgment at p 300 ante, the phrase "the difficulties of enforcement I have referred to" means the difficulties of keeping the grandmother and John out of the children's lives. It is common ground, however, that any difficulties with regard to the extended family were not a serious factor in the case. In any event, the parents have now effectively severed relations with the grandmother and John, who live in Lincolnshire, and are unlikely to play any part in the children's life in the future. Furthermore, the argument that the grandmother and John might be the source of some evil influence in the future was not put forward on behalf of the local authority at the trial. Counsel for the parents had no opportunity of dealing with it. I am quite satisfied that, in these circumstances, the Judge's decision that the children should not be returned to the parents because of difficulties in enforcement cannot be supported on that ground.

C. The conclusion to which this court should come

It was strongly argued on behalf of the parents that once the Judge's reasons for his decision to refuse to return the children had been shown to be in error, it followed that his earlier view that had it not been for the problem of enforcement he would have allowed them to go back, though under strict supervision, should be followed and, indeed, that no other solution could properly be adopted. The local authority had not put in any cross-notice to support the decision on some other ground, and, accordingly, the appeal should be allowed. In addition, it was submitted, the Judge's earlier conclusions about the culpability of the parents were open to serious objection

(a)   because they were largely based on inadmissible hearsay evidence; and

(b)   because in a number of respects the Judge had misinterpreted the evidence.

[1990] FCR 286 at 326

Speaking for myself I must express some surprise that the local authority did not serve a cross-notice, because it seems clear from the final submissions put forward on their behalf that this court is being asked to find that there is a greater suspicion that these two children were being sexually abused by the father than the Judge thought, and that, in any event they are more at risk than the Judge considered.

The absence of a cross-notice is not, however, conclusive. The duty of the court is to consider the welfare of the children. Moreover, RSC Ord 59 r 10(4) shows that the court is empowered to make such order as will ensure the determination, on the merits, of the real question in controversy between the parties. That paragraph of the rule reads as follows:

"The powers of the Court of Appeal under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent's notice has been given in respect of any particular part of the decision of the court below or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court of Appeal may make any order, on such terms as the court thinks just, to ensure the determination on the merits of the real question in controversy between the parties."

I am quite satisfied that no technical considerations should stand in our way.

In these circumstances it seems to me that, having decided that the Judge's reason for refusing to return the children cannot be supported, it is incumbent on this court to look at the matter afresh.

We have had the advantage of a full and carefully reasoned argument by counsel for the parents in which she emphasized a number of matters, including the following:

(A)   That the medical evidence which had earlier provided the local authority with grounds for concern had proved inconclusive when tested in cross-examination at the trial.

(B)   That the evidence relating to the carrot game, which had also been a source of concern as indicating that the children had been exposed to wholly inappropriate sexual behaviour, had ceased to be of any value following Rita's latest account of the carrot game which she gave to Mrs F in July 1989. This account described the game m a manner which was wholly innocent.

(C)   That the additional evidence, even if admitted, added nothing of importance to the earlier hearsay evidence by the children about sexual abuse and was quite insufficient to support even a finding of a reasonable suspicion that the children had been sexually abused by the father.

(D)   That even, contrary to her former submission, if a finding of reasonable suspicion could be made, this was not sufficient to justify an order which would lead to a final and irrevocable breach between the parents and the children.

This is a diificult and anxious case. On the one hand are the important facts in favour of the parents which the Judge listed in the judgment. To these are to be added the fact that some of the evidence against the parents was conflicting and

[1990] FCR 286 at 327

unsatisfactory. But one has to look at the picture as a whole.

In his judgment at p 296G ante the Judge set out some of the entries from the record which was kept by the first foster parents who had charge of Rita and Mary. At p 297E the Judge gave his assessment of those entries. He said this:

"These are very disturbing descriptions. If the children are fantasizing about their father and mother, their state of mind is so abnormal, sexually orientated and ugly that only a very poor upbringing could have brought about such results. If they are telling the truth, the parents' behaviour described by the girls must raise the most serious questions about the parents' mental and sexual state and their ability to rear children."

It is to be noted that in the course of his judgment the Judge stated that he was satisfied that the children had made the statements described by the foster parents.

For my part I am satisfied, having seen Mrs F in the witness box, that on 21 July 1989 Rita did tell her about the "rude secret". Mrs F gave this account:

"Rita said that he [the father] got in my bed. He pulled his pants down and laid on top of me. And it hurt me."

Mrs F then said:

"I asked her if she had told her mother. She said `Yes. Mummy was cross. They were throwing things. Mummy told daddy to go back to Quick Fit and stay there'."

I accept that that in substance was an accurate account of the conversation which took place at about 8.30 am on 21 July 1989.

With that introduction, I must turn again to the Judge's judgment at p 300G ante. He said that he entertained a very considerable suspicion that the three children were telling the unprompted, unrehearsed truth. It seems to me to follow, though the Judge was no doubt perfectly correct not to make a firm finding that the children had been sexually abused by their father, he, in his own words, had a very considerable suspicion that they had. This is important, and I am unable to agree with the Judge that it did not matter whether the sexual behaviour to which he was satisfied they had been exposed had been that of John, the father or anyone else. Looking at p 300 of the judgment in the light of the earlier paragraph at p 297 which I have already read, it seems to me to be clear the Judge came to these conclusions:

(1)   That the children had been exposed to misbehaviour of a sexual nature.

(2)   That he had a very considerable suspicion that the children were telling the truth and, therefore, a very considerable suspicion that there had been sexual abuse by the father. Accordingly, it was likely they were not fantasizing.

(3)   That the children had an unhealthy and precocious knowledge of the male and female organs.

(4)   That they were capable of behaving in a sexual manner not to be found in girls who had been brought up with care.

[1990] FCR 286 at 328

(5)   That if the girls were telling the truth, the parents' behaviour raised the most serious questions about their mental and sexual state and their ability to rear children.

To my mind, these conclusions, coupled with the Judge's assessment of the father's personality, seem to me to point inexorably to the further conclusion that there is a real or substantial possibility that these children would be at risk if they were returned to their parents. The fresh evidence, which I consider we were right to admit, does not add much to the overall picture, but so far as it goes it reinforces the view that the Judge's decision must in the end be upheld.

For these reasons, I too would dismiss this appeal.

Appeal dismissed. Legal aid taxation. Leave to appeal to House of Lords refused. Stay of execution of three weeks for the purpose of lodging petition to the House for leave to appeal.

Solicitors: Robert A Joy, Esq, for the local authority.

Messrs Straker, Holford & Co for the parents.

CTL