Double trouble

One of the trickier areas in advocacy is the interface between care and criminal cases, where one's client is accused of offences against a child in respect of whom the local authority have issued care proceedings.

Familial sex abuse or ill treatment cases with double proceedings are beset by procedural and evidential difficulties. The need of the criminal defence team to have as much information as possible about the background of the allegations and the conduct of the social services investigation is at odds with the confidentiality rules '“ and secrecy '“ of the family courts.

Documents filed within the family proceedings can't be disclosed without the leave of the family court, which makes for strangely convoluted preparation. One's client is allowed to have the documents in the care case, as a party to those proceedings, but when he hands them over to his criminal barrister in conference they have to be handed back '“ and the subsequent application to the family court for disclosure is often conducted in an atmosphere of artificiality bordering on hypocrisy. One indicates delicately that there might be X or Y in the papers which should be disclosed, although one cannot possibly say for sure...

The problems can operate the other way too, where police officers are reluctant to hand over their documents to the family courts because confidentiality issues apply in relation to unused material. Generally though it is the defendant who makes disclosure applications, unfunded ones direct to the family court, and by way of third party witness summons against the local authority in the Crown Court.

Working together

Local authorities claim PII on their files, which have then to be filleted and assessed by the criminal judge before disclosure is made. Other than defence disclosure issues, it is clearly necessary that the left hand knows what the right hand is doing '“ the Crown Court and the family court, CPS and local authorities, need to work together and transmit information and material.

Judges have devised protocols to make this happen, including a requirement for joint directions hearings and case management by one judge for both sets of proceedings. This was all set out in R v SL 2006 EWCA Crim 190, which described procedures known as the 'London Scheme' which was used as far back as 1993. The scheme is meant to sort out the timetabling of both cases and settle the procedural and evidential issues in one case which impinge on the other, including disclosure, although its practical effect varies widely between courts and judges even in London.

It was, however, comprehensively ignored in W (Children) 2009 EWCA Civ despite the cases being heard in a combined court centre '“ actually in the same building! The care case concerned rape allegations against the father of a 14-year-old girl, with tangential issues of ill treatment by the mother. The father was inevitably charged in the criminal court with rapes and other sexual offences. Wall LJ, who had been a High Court family judge for 11 years, noted with despair in his judgment that the family court judge was vague even as to the terms of the indictment, far less the date of the criminal trial. With a sense of déjà vu, he reiterated that it is essential not only that the family court be aware at all stages of what is happening in the criminal courts, but should also be the 'proactive coordinator of the proceedings '“ ensuring that each is heard timeously and with as little prejudice to the competing interests involved'.

Practitioners take note, and get yourselves off to the Family Division in such cases. W (Children) raised other worrying areas as well: the father had had to represent himself during the fact finding hearings in the care case, which had gone against him. He had not been eligible for legal aid because he did not have parental responsibility for the children '“ his income was not enough for private representation. Wall LJ had a go at the legal aid authorities, saying that quite apart from fairness what they did not '“ or would not '“ understand was that competent representation saved both time and money.

Cross-examination of children

Unusually perhaps in these days of cuts and deficiencies within the criminal justice system, the father was better served in the criminal case. He was represented, and he was acquitted, after his daughter had given evidence and been cross-examined.

Re W (Children) feeds into the present debate about the propriety of cross-examination of children in sex abuse trials; as is standard within family proceedings the girl's complaints about her father were given via video and by others as admitted hearsay, and she had not been called for cross-examination. The father's appeal was largely on this issue.

Judges have a discretion to permit cross-examination, but they never exercise it; Wall himself said that in his 11 years hearing care proceedings he had not once had a child called to give evidence in his court. He went on to say that every child and adolescent psychiatrist he had ever spoken to universally condemned cross-examination as actually abusive to the child, both in itself and because it can be many months after the event, thus delaying both therapy and recovery.

The concern that cross-examination is overly abusive to children is an issue within criminal justice as well as family law; and it must be true that however delicately a child is cross-examined, being made to relive and retell '“ where abuse has occurred '“ can only be traumatic.

But what is the alternative if the article 6 rights to have one's accuser tested still take precedence, as they surely must? Perhaps we should, as Wall suggests, reconsider the Piggot proposals, whereby children would be cross-examined on video by defence counsel very soon after they have made their original ABE videos. Still questioning, but done much earlier, so that the child was not involved in the actual trial at all. That might limit the pain for the advocate as well '“ cross-examining little moppets aged five about their naughty fibs about nice daddy has to be done, but doing it earlier and without hostile glares from the jury box would be a blessing to us all.