Case No. KH18C00272

41.It is appropriate to first deal with the submissions made by the Local Authority as the Local Authority relies on what it describes as fundamental principles of part 4 care proceedings. 42.Mr Thomas submits “evidence which has to be answered in the family court does not have to come from the Local Authority. It might lie on the other side of the fence and come from a co-respondent(s) or an intervenor(s). It may come from the cross-examination (or, indeed, but somewhat less likely, from the evidence-inchief) of a respondent or intervenor. They are all compellable. This is the distinguishing feature of the family jurisdiction. It is always the case at half-time that the court has but a partial picture. The Local Authority is entitled to rely, in the discharge of its burden of proof, upon evidence which comes from respondents and/or intervenors”.43.Mr Thomas relies on the provisions of r22.2 FPR 2010 that says: "The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved (a) at the final hearing by their oral evidence and (b) at any other hearing by their evidence in writing." 44.It is, submits Mr Thomas, the general ‘rule’ that all parties to Family Proceedings will give oral evidence. Mr Thomas relies on the words of Sir Mark Hedley in AA v 25 Others where he said: “57.. where parties have filed statements of evidence upon which they wish the court to rely at the final hearing, they are under an obligation to go into the witness box to confirm those statements and to answer questions about it. That is underlined, in my judgment, fairly firmly by section 98(1) of the Children Act. Generally speaking, in civil proceedings nobody is obliged to answer questions which might tend to incriminate them. It will be very obvious that in many Part IV proceedings, precisely such questions are at issue in the case. 58.Section 98(1) says this: "In any proceedings in which a court is hearing an application for an order under Part IV or V, no person should be excused from (a) giving evidence in any matter or (b) answering any questions put to him in the course of his giving evidence on the ground that doing so might incriminate him or his spouse or civil partner in an offence." 59.It seems to me that that section is drawn in clear terms and, if the compensating provisions in section 98(2) are not as clear as they might be in terms of their operation in practice, it is certainly my conclusion that every party in care proceedings is obliged to give evidence and to answer all questions that are put to them. Technically, of course, that could be enforced by committal proceedings, but the convention or practice of the court is not to do that, it is rather to draw an adverse inference from a failure to give evidence, that adverse inference being that the party has something to conceal which they are not willing to risk in those proceedings, and I have to say that, in my experience, both as the trial judge and as an occasional member of the Court of Appeal, I cannot recall any case in which a party has refused to give evidence and has not had an inference drawn against them. Others' experience may, of course, differ.”45.It is the submission of the Local Authority that its case is not over until the court has heard oral evidence from the Respondents. In Y v K [2003] EWCA Civ 669 at paragraph 35, Hale LJ as she was then, described the obligation on the Respondents to give oral evidence in the following terms: “Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.”46.Mr Thomas has informed the court that should any of the Respondents refuse to give oral evidence, it is likely that the Local Authority would seek an order to compel them to do so. Mr Thomas submits that he has legitimate questions to put to the Respondents. During the course of his oral submissions, he gave some examples of references contained in the messages downloaded from the seized devices that he submits, he is entitled to put to the respondents to seek their explanation. 47.I did not require the Local Authority to specify all the matters that it seeks to put to the Respondents as I did not make the same demand of the Respondents before allowing them to cross-examine the Local Authority’s witnesses. However, I did press Mr Thomas to give some explanation, beyond simply putting the Local Authority’s allegations to each witness, for why the hearing of the evidence from the Respondents was necessary to the fact-finding process in circumstances where it is asserted that the Local Authority case was fatally undermined by crossexamination and the Local Authority had not, deliberately I am sure, engaged with those arguments in its written submissions.