SW and KSW & Ors [2009] EWCA Civ 644 (01 July 2009)

SW and KSW & Ors [2009] EWCA Civ 644 (01 July 2009)

The judge was entitled to refuse to require the child complainant (ISW) to give oral evidence and be cross-examined in the care proceedings, exercising his discretion in accordance with binding authority. The process was not rendered unfair by this refusal or by the lack of legal representation for the appellant. The judge was also entitled to proceed with the fact-finding hearing and make findings of rape on the balance of probabilities, notwithstanding the appellant's subsequent acquittal in the criminal trial. The appeal is therefore dismissed.

Citation
[2009] EWCA Civ 644
Parties
1st Appellant: SW; 2nd Appellant: KSW; 1st Respondent: Portsmouth City Council; 2nd Respondent: ISW, AJW, EDW - The Children
Jurisdiction
England and Wales
Judgment Date
01 July 2009
Procedural Posture
Appeal (care Proceedings) / Appeal From Fact Finding Order in Care Proceedings
Outcome
Appeal dismissed
Legal Topics
Care Proceedings, Fact Finding Hearings, Concurrent Criminal and Care Proceedings, Cross Examination of Child Witnesses, Standard of Proof in Care Vs Criminal Cases, Case Management, Legal Representation in Care Proceedings
Family Law Child Protection Criminal Law (interface) Care Proceedings Fact Finding Hearings Concurrent Criminal and Care Proceedings Cross Examination of Child Witnesses Standard of Proof in Care Vs Criminal Cases +2 more

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Parties

SW

1st Appellant

KSW

2nd Appellant

Portsmouth City Council

1st Respondent

ISW, AJW, EDW - The Children

2nd Respondent

Procedural Posture

Appeal (care Proceedings) / Appeal From Fact Finding Order in Care Proceedings

Legal Issues

  1. 1 Whether the judge erred in refusing to permit cross-examination of the child complainant (ISW) in care proceedings
  2. 2 Whether the judge should have adjourned the care proceedings pending the outcome of the criminal trial
  3. 3 Whether the findings of fact (rape) against the appellant were sustainable in the absence of oral evidence and cross-examination of the child

Ratio Decidendi

The judge was entitled to refuse to require the child complainant (ISW) to give oral evidence and be cross-examined in the care proceedings, exercising his discretion in accordance with binding authority. The process was not rendered unfair by this refusal or by the lack of legal representation for the appellant. The judge was also entitled to proceed with the fact-finding hearing and make findings of rape on the balance of probabilities, notwithstanding the appellant's subsequent acquittal in the criminal trial. The appeal is therefore dismissed.

Court Disposition

Appeal dismissed

Orders

  • Permission to appeal granted on limited grounds
  • Appeal dismissed; findings of fact (rape) upheld