W (Fact Finding: Hearsay Evidence)

Factual and Procedural Background

This appeal concerns findings of fact made by Her Honour Judge Davies on 21 June 2013 in care proceedings relating to five children. The appellants are the parents of those children, referred to as the father and the mother. The respondents include the local authority, four of the children represented by their guardian, and one child separately represented. The hearing before Judge Davies lasted five days and involved extensive oral and documentary evidence. The judge found that the father had sexually abused two children, including one adult child, and that the mother knew of this abuse and failed to protect the children. The parents appealed these findings, focusing principally on the judge's approach to hearsay evidence. The appeal court allowed the appeal and ordered a rehearing of the factual issues.

Legal Issues Presented

1. Whether the judge erred in her approach to hearsay evidence relied upon in making findings of sexual abuse.
2. What weight should be given to hearsay evidence, particularly in the absence of direct evidence from a key witness.
3. Whether the judge adequately considered the reasons for the absence of direct evidence and the effect of retractions on the reliability of hearsay evidence.

Arguments of the Parties

Appellants' Arguments

• The principal complaint was that the judge erred in her approach to hearsay evidence, particularly the evidence relating to the adult child who did not give direct evidence or a statement despite orders.
• The hearsay evidence, especially that relating to sexual abuse allegations, should have been given little or no weight given the absence of direct evidence and the retractions made by the adult child.
• The judge failed to critically scrutinize the hearsay evidence, including the older material which was multiple hearsay and lacked contemporaneous records.
• The judge did not adequately address the reasons for the absence of direct evidence or consider alternative measures to obtain direct evidence.
• The retraction letters from the adult child required careful consideration which the judge did not provide in sufficient detail.

Respondents' Arguments

• The judge had managed the case throughout and had an excellent vantage point from which to assess the evidence.
• It was clear from the judgment that the judge was aware of the absence of direct evidence and was cautious in the weight given to hearsay evidence.
• The judge’s conclusions were founded on the evidence as a whole, including consistency, demeanour, and other corroborative factors.
• While the judgment could not cover every nuance, it was sufficient to show the judge considered both positive and negative features of the evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the judge's treatment of hearsay evidence, particularly regarding the adult child who did not provide direct evidence despite an order to do so. The court emphasized the importance of understanding the reasons for the absence of direct evidence when weighing hearsay under the Civil Evidence Act 1995. It noted that the judge did not adequately address why the witness failed to give direct evidence or what efforts were made to secure it, nor did she consider alternative measures such as special court arrangements or witness summonses.

The court found the judge's acceptance of older hearsay material insufficiently scrutinized, noting the multiple hearsay nature and lack of contemporaneous records. The judge failed to critically evaluate the reliability of this evidence or articulate the limitations, such as the absence of follow-up by authorities or contextual details.

Regarding recent hearsay evidence, the court observed that the judge did not sufficiently analyze the significance of the adult child's retractions and letters alleging pressure from social services. The judgment lacked detailed reasoning demonstrating how the judge balanced positive and negative evidence features. The court stressed that a judgment must transparently show the weighing of all relevant evidence, including retractions and the absence of direct testimony.

Because the judgment did not provide this critical analysis, the court could not be confident that the findings of fact were properly made. Consequently, the findings concerning sexual abuse of the adult child and the other child, and the mother's knowledge and failure to protect, were set aside. The case was remitted for a rehearing before a different judge to ensure a fresh and properly reasoned evaluation of the evidence.

Holding and Implications

The appeal was allowed and the findings of fact made by the trial judge concerning sexual abuse and related matters were set aside. The case was remitted for a rehearing of the factual issues before a different judge.

The direct effect is that the original findings cannot stand and a fresh determination is required. No new precedent was established as the appeal was decided on the basis of the existing legal framework concerning hearsay evidence and the proper approach to weighing such evidence in care proceedings.