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28 JUN 2013

Samantha Bangham’s Week in Cases 28 June 2013

Samantha Bangham - Family Law Reporter It has been a momentous week for family lawyers, and for that matter all female members of the legal profession, as Baroness Hale of Richmond has been appointed Deputy President of the Supreme Court making her the most senior female judge in British legal history. Regular readers will have spotted that I am a super fan of Lady Hale and so I unashamedly remind you of a few of her remarkable achievements.

After graduating from Cambridge, Lady Hale taught law at Manchester University from 1966 to 1984, also qualifying as a barrister and practising at the Manchester Bar. She specialised in family and social welfare law, was founding editor of the Journal of Social Welfare and Family Law, and authored a pioneering case book on ‘The Family, Law and Society’. In 1984 she was the first woman to be appointed to the Law Commission.

Lady Hale became the UK’s first woman Lord of Appeal in Ordinary in January 2004, before the establishment of the Supreme Court in 2009, following 5 years sitting in the Court of Appeal and 5 years as a High Court judge. She is currently the only female Justice of the Supreme Court.

Following the announcement Lady Hale commented: ‘It is an honour and a privilege to have been chosen to follow Lord Hope, who has made such a success of the role in the transition from the House of Lords to the Supreme Court. I look forward to continuing and building upon the work which he has done to establish this great new institution in our national life.’

This wonderful news only serves to reinforce my admiration of Lady Hale, so much so that I am considering having some ‘Lady Hale Rules’ t-shirts printed!

So back to the coal face… and it has been a week where particular attention has been given to vulnerable witnesses, with two judgments released by Pauffley J (the older judgment I suspect has been released in view of Re A (Vulnerable Witness) [2013] EWHC 1694 (Fam). In that case a young woman made sexual abuse allegations against the father and as a result contact between the father and his child had been suspended. Since judgment in the case was given in the Supreme Court: Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, a number of interim directions had been made including for contact between the child and her father. A report had been obtained from a consultant forensic psychiatrist regarding the, now 21-year-old, young woman’s psychiatric state, her mental health and special measures which may assist her to give evidence as well as the likely effects upon her of giving evidence.

The young woman was resistant to her continuing involvement in court proceedings and she did not agree with the suggestion that the instruction of an intermediary such as Communicourt would assist her in giving evidence. The psychiatrist’s report opined that a requirement to give evidence may increase the young woman’s depression and suicidality and that she may experience an increase in post traumatic reliving experiences but the concluding sentence added that both giving and not giving evidence ran the risk of making her intra-psychic conflict worse as both had potential negative consequences for the wider family. There was an additional risk that if her health deteriorated she may lose her university place which was of great importance to her.

In circumstances where there was no right answer for the young woman the balance fell in favour of devising a set of circumstances in which she could be assisted to give a personal contribution to the hearing via the involvement of a highly experienced intermediary from Communicourt. The judge reiterated her interest in ensuring the welfare of the young woman and that she would be constantly on alert to ensure fairness, relevance, clarity of purpose and adequate protection. It was entirely likely that specific protective measures would be put in place and a myriad of possibilities existed so as to afford her proper protection.

The earlier case of Re G and E (Vulnerable Witnesses) [2011] EWHC 4063 (Fam) (Family Division, Pauffley J, 16 June 2011) concerned a 17-year-old girl who had significant learning difficulties and functioned at around the level of an 8-year old. She made allegations of sexual abuse against her father and care proceedings were initiated in relation to herself and her 7-year-old brother. The Official Solicitor, who acted for the girl, was of the provisional view that she should not be called to give evidence. Two expert reports, one from a psychologist and one from a psychiatrist assessed the girl and found that with the appropriate support and safeguards she would be competent to give evidence. The Official Solicitor maintained his stance.

Drawing on the guidance in Re W [2010] UKSC 12, [2010] 1 FLR 1485, the only sensible conclusion was that the girl should be required to give live evidence. The local authority’s case upon threshold was based upon the girl’s allegations. The case against the parents rested on the sexual abuse allegations against the father and the mother’s inability to protect her.

Pauffley J reiterated the judge’s role such cases which was both inquisitorial and paternalistic. He or she was required to watch, assess and make constant judgments as to the utility, fairness and impact upon the witness of continuing. A balance had to be struck between on the one hand enabling a fair process and on the other protecting the vulnerable.

In a retrial of a fact-finding hearing, Re L and M [2013] EWHC 1569 (Fam), following the Court of Appeal overturning the original decision ([2012] EWCA Civ 1710, [2013] 2 FLR forthcoming) the court had to consider a 6-month-old child who was taken to the GP by the father due to concerns of swelling on her head. She was referred to the hospital where she was found to have sustained ‘spectacular’ multiple skull and rib fractures, although no brain injury was present.

In preparation for retrial, Dr Stoodley, consultant paediatric neuroradiologist was instructed and he prepared a report which challenged some of the basic assumptions upon which the original experts had based their conclusions. Primarily his interpretation of the imaging showed that what had originally been thought to be fractures were in fact accessory sutures. Although unusual, Dr Stoodley had convincingly demonstrated by reference to 3D reconstruction the striking symmetry between the lucencies that he proposed as accessory sutures. Therefore, the number of skull fractures was reduced from 8–10 to 4. The most likely explanation for the skull fractures without the incidence of any brain damage was an eggshell skull which absorbed the impact causing the fractures.

The parents’ account of how the injuries were sustained was hesitant and unreliable and the judge found they had not been truthful about the incidents. The local authority had proved on the balance of probabilities that the child sustained the injuries non-accidentally whilst in the care of one or both of the parents. It was not possible to say whether they occurred in one incident or which parent was responsible.

Meanwhile, in the Court of Appeal, judgment was given in the case of Thursfield v Thursfield on 20 June 2013. The parties had reached a financial agreement following divorce in Michigan, USA and when the husband failed to comply the wife obtained a breach of contract judgment against him which the husband appealed. The wife sought to enforce the judgment in England. Freezing and disclosure orders were granted but the husband failed to comply resulting in committal proceedings. The husband provided disclosure of some information at a very late stage but the judge found him to be in contempt and sentenced him to 24 months’ imprisonment.

The husband appealed, claiming the sentence was excessive and that he had supplied information. He claimed the judge should have taken into account his age and previous good character. The appeal was dismissed. It was well established that the court should consider imposing a long sentence where there was a continuing failure to meet disclosure requirements in order to encourage future co-operation. The defendant’s age was not a consideration for the judge. With regards to his character, in the instant proceedings he had persistently failed to comply with court orders and the only attempt he had made had been late and insufficient. The judge was entitled to regard the breaches as serious and although a different judge may have reached a different conclusion, there had been no error in this judge’s assessment.

Now, to turn my attention to those t-shirts …

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.

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