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Category Archives: fact finding

Children giving evidence


This is a Court of Appeal decision, arising from a private law case in which there was an issue as to whether a child should give evidence as part of the forensic exercise of determining the truth of what happened.

Re B (Child Evidence) 2014


John Bolch does an excellent summary here


The case builds on, but doesn’t change the principles set down by the Supreme Court in Re W


The fundamental difference is that in Re W, the potential child witness was the subject of proceedings (thus the welfare of the child was a legitimate component of judicial decision-making, though not the paramount consideration), whereas this was a sibling/half-sibling of the child in question and thus wasn’t covered by that umbrella of welfare.  Other than in the broader philosophical sense that a Court dealing with the welfare of a particular child ought not to cause harm to another child in that pursuit of a decision. Also, in Re W, the child had given a video interview to the police and that could potentially stand as evidence, in this one, the child had not given any interview and the issue was whether and how the child’s evidence ought to be placed before the Court if at all


The original trial Judge had decided that a series of questions ought to be drawn up and the CAFCASS adviser ask them of the child and record the answers, deciding to leave the issue of live evidence to one side until that information was available.

I’m not quite sure why the appeal was brought before that decision was made, or how the Court of Appeal dealt with it so quickly (it feels a bit premature to me, but nonetheless they did)


The Court of Appeal backed the decision of the trial judge to proceed in that way, but were keen to stress that this was not sanctioning an opening of the floodgates (as Jack of Kent has pointed out, floodgates opening is actually a good thing contrary to the metaphor – they are SUPPOSED to open).


  • I would not expect our endorsement of Judge Cameron’s decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.




  • In addition to the argument that G’s evidence was peripheral, it was also argued on F’s behalf that it was wrong to have embarked upon the Family Court Adviser path because it would (or should) lead nowhere as the shortcomings in G’s evidence rendered that evidence of little value. The shortcomings were said to arise from matters such as G’s age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.




  • I recognise the logic in the submission that the court should not involve a child in steps designed to explore the possibility of him or her giving evidence unless satisfied that the evidence is likely to be of value. However I would not take such an absolute position. It can be difficult to take a reliable decision in a vacuum and there can sometimes be merit in a step by step approach which enables more information to be gathered before deciding irrevocably. In deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about matters such as this.




In the light of the Court of Appeal’s decision to nuke fact finding hearings in public law from orbit, a decision I respectfully think is something one could happily eat with cheese, I thought these remarks from the Court of Appeal were interesting

The pursuit, in public and private children proceedings, of “the truth” about past events is not an abstract endeavour. What happened in the past is the foundation for informed decisions about the future, including decisions as to what, if any, risk of harm a particular course of action may present to the child who is the subject of the proceedings. The more reliable the court’s findings as to what happened in the past, the more reliable should be the prognosis for the future and the better the court should be able to judge where the welfare of the subject child lies.


Quite so.

Interim care order appeal (unsuccessful)


This is our dear old friend section 37 again, and also a regular topic on these blogs – the bringing of allegations that aren’t proven and the consquences for the person bringing the allegation.


Re W (A child)  2014


In this case, private law proceedings were taking place between the two parents about where the child (an 8 year old girl) should live and how much time she should spend with each parent. As part of those proceedings, very serious allegations of sexual abuse were made against the father

[I note, and think it is probably more important than the Court of Appeal treated it, that the Court had previously made findings that the paternal grandfather had sexually abused the child - that sort of thing would probably make any parent hyper-sensitive and vigilant, and also possibly means that the child might act out in a sexualised way as a result of the established sexual abuse which might lead a mother to mistakenly but genuinely think the father had done something. I don't say that this explains and excuses everything, but it is quite an important bit of context]


At the finding of fact hearing, the Judge found that none of the mother’s allegations were true, and went on to make an Interim Care Order removing the child from mother’s care – although no public law application by Social Services had been made, the Judge using the power under section 37 of the Children Act 1989 to make an Interim Care Order in the absence of an application (albeit for a maximum of 8 weeks, rather than for whatever duration the Court sees fit as with the new public law regime)



  • On that day the judge concluded at [246] to [260] of his judgment that all of the allegations that the mother had made against the father were false including, in particular, that he had ever behaved in a sexually inappropriate way towards his daughter. The judge set out his conclusions in considerable detail. The conclusions that were reasoned in the previous 245 paragraphs. He held that the mother:



 (i) had wrongly suggested that the child did not want to see her father, and was frightened by him;

(ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;

 (iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child’s life;

 (iv) believed that the father was involved in the child’s abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;

 (v) misled the court by saying that it was the child rather than herself who struggled with the grandfather’s abuse;

 (vi) deliberately put the worst interpretation on events to place obstacles in the way of the father’s contact;

 (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);

 (viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;

 (ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning – the child was and is subject to influences which she should not be;

 (x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and

 (xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.


  • The judge concluded that the child could not remain living with her mother before the case was finalised because of the mother’s behaviour, in particular her involvement of the child, and her unjustified convictions, in particular that the father was dangerous and presented a risk of sexual abuse. The judge concluded that the child had suffered significant emotional harm in her mother’s care within the meaning of section 38 CA 1989 and that her psychological safety required her immediate removal from that care.


The mother appealed this.


The Court of Appeal rejected it. They considered firstly that the Judge had applied the correct test in law



  • Turning then to the implications of the findings of fact that the judge made. It should be noted that it is no part of this appeal that the judge applied an inappropriate test to the question of removal. That test was set out in Re LA (Care: Chronic Neglect) [2010 ] 1 FLR 80 at [7] by Thorpe LJ:



13. “separation is only to be ordered if the child’s safety demands immediate separation [...] at an interim stage the removal of children from their parents is not to be sanctioned unless the child’s safety requires interim protection”


  • Safety is given a broad construction and includes the child’s emotional and psychological welfare (see, for example, Re B (Care Proceedings: Interim Care Order) [2010] 1 FLR 1211 at [56]).

That test is usually seen in connection with an application by a Local Authority to remove a child under an Interim Care Order, but exactly the same principle and legal test extends to a Judge making an Interim Care Order and his own care plan of removal   [The more difficult issue of how a Judge doing this is becoming both the applicant and the tribunal is something that doesn't get raised - to me, it is a significant problem, but the Court of Appeal when dealing with other section 37 appeals haven't ever felt it was problematic]


The next issue was whether the Judge had properly applied the facts of the case to that test, when deciding that the test was met  – and specifically whether the Judge had failed to look at whether removal was proportionate and what other options were available that would have been less interventionist.


  • The question is whether the test was wrongly applied to the facts. The judge rejected the mother’s allegations that the father had been involved in or was aware of the sexual abuse of the grandfather or had himself acted in a sexually inappropriate manner. The judge made extensive findings about the inappropriate conduct of the mother which I have summarised by using the analysis that the judge himself constructed at the end of his judgment. The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child. The judge’s finding that the mother was “bent on manipulation and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.




  • Given that context, the judge was required to consider his child protection duties and powers. The only question that realistically arises on this appeal is whether he exercised them proportionately. There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order. The test for removal was clearly satisfied on the facts as found and that only leaves the question of whether there was a less draconian, i.e. more proportionate order that the judge could and should have considered.




  • I ask the question rhetorically: given the court’s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother. Each of the alternative orders described to this court would have left the child in that care without any better ability to protect the child than there had been hitherto. The situation might have been different if there could have been effective policing of that care in the interim and before other assessments were conducted but that was not an option addressed to the judge or to this court. I bear in mind that the family court sometimes hears cogent evidence of particular harm that may be caused on the removal of a child from the care of a parent which the court must consider and balance in the welfare analysis and proportionality evaluation, but that was not this case.




  • The distress that had been engendered in the child, as advised by the children’s guardian, sadly made an immediate move to the father impossible. No other relative was immediately available without assessment of the position that relative would take in the highly antagonistic and dysfunctional family relationships that existed (for example, to consider the effect on the maternal family of the mother’s discussions with them that the father was a paedophile). That included the mother’s sister who is now being assessed by the local authority. The only realistic option that remained in this case was the neutral position of short term foster care.




  • The judge described his decision as proportionate at [264] and in accordance with the child’s welfare having regard to the ‘welfare checklist’ in section 1(3) CA 1989. He specifically envisaged a short period of respite care while the local authority explored the possibility of placing the child with her father and/or the obtaining of therapeutic assistance for the mother. Given the need for an assessment of the child’s aunt (who has not challenged the interim conclusion of the judge), there was no immediately available realistic option for the court other than removal.







  • Leading counsel for the father has taken the court through the judgment, identifying the specific points at which the judge came to value judgments about the welfare factors in section 1(3) CA 1989 based on the facts that he found. None of those conclusions is seriously challenged in this appeal and it is not necessary for this court to set them out seriatim. The judge analysed his conclusions by reference to more than 40 written submissions made by the mother. The judge did not specifically address the child’s wishes and feelings in his analysis but he had set out in detail what it was that the child had been influenced to say. It is hardly surprising that there was little more that he could add given the context in which he had to make his decision. It may well have been harmful to ask the child anything else at that stage. Likewise, the judge made ample reference to the situation the child was in and focussed on the unacceptability of its continuation. To that extent the effect of the proposed change of circumstance for the child was regarded as positive and no party other than the mother disputed that.




  • Given that a decision by a court to remove a child into public care, whether in public or private law children proceedings engages article 8 of the ECHR, a welfare analysis and proportionality evaluation are necessary. In any case where there is more than one realistic option it will be necessary for the judge to summarise his conclusions in what is now a conventional balance sheet approach i.e. where there is a choice to be made between two or more realistic options, an analysis of each option by reference to the welfare checklist is required so as to afford paramount consideration to the child’s welfare. The court is then required to evaluate the proportionality of its proposed intervention (and / or that of the local authority) by conducting a balancing exercise in which each of the available options is evaluated by considering the positives and negatives, or the benefits and detriments, of each option side by side. An adequately reasoned judgment must deal with the reasonably available options and give them proper and focussed attention.




  • That was not this case. There were no other realistic options i.e. options that were reasonably available to the court and no more proportionate interference than that contemplated by the judge. Given the stark facts, no further analysis was necessary.



[Okay, this may be more widely important, because this is the Court of Appeal accepting the point that some High Court Judges, notably Pauffly J have made about Re B-S, that the Court isn't required to rigorously scrutinise EVERY option, only the realistic ones. The Court of Appeal accept that what is required of a Judge is to analyse each of the REALISTIC OPTIONS.  They say in this case that there were no other realistic options, so the level of scrutiny and weighing up was much lower.  That, to me, is interesting, since I read last week of a Court of Appeal judgment that overturned a Placement Order where BOTH OF THE PARENTS WERE IN PRISON at the time of the final hearing and were going to be there for some years to come, and the Court of Appeal overturned it for lack of proper analysis of the options. Consistent much?    *  I have that on Lawtel as Re T (a child) 2014 but without a bailli report yet, and Lawtel is paywall-y so I can't link]

I would be using Re W (a child) 2014 as Court of Appeal authority for the principle that only the REALISTIC options need to be scrutinised and weighed.  (That raises the question of how you sift the options into realistic and unrealistic without scrutinising them, but y’know, there are degrees of scrutiny  – like for example, mum is not a realistic option to care for her child because she is doing FIVE YEARS IN PRISON)


The Court of Appeal here are saying that removal on the facts of the case was such a blindingly obvious outcome that it doesn’t matter if the Judge didn’t spend much time in the judgment setting out the pros and cons, the facts speak for themselves.  [They might regret that, this seems to be something that lawyers could argue about till the end of time - was THIS case bleedin' obvious, or was it finely balanced? We call an expert witness, whose specialist subject is the Bleedin' Obvious, Mrs Sybil Fawlty]


So, the mother’s appeal on those first two points failed – the next point was whether this was procedurally fair and whether she had been properly placed on notice that she might face an Interim Care Order and removal of her daughter.


  • It is convenient to take the last two propositions first because the whole context of the decision making process needs to be analysed if one is to understand what happened on the day the order was made. At the time the fact finding hearing was being case managed by Judge Cardinal on 21 June 2013 the judge indicated to the parties in the presence of the mother that if it were subsequently to be established that the mother was leading the child to make false allegations against her father, the court would consider making a residence order in favour of the father. At that stage, the judge had identified as a key issue the nature and extent of the harm that was being or would be caused to the child if the mother’s allegations were false and had rightly, in my judgment, identified one of the potentially serious consequences, namely removal of the child and a change of residence away from the child’s primary carer.




  • On 16 July 2013 at a hearing when mother was again present and assisted by an experienced McKenzie friend, Ms Haines, Judge Cardinal repeated his concerns to both parents: the consequences for each parent of the allegations being determined to be true or false were patent. On 18 October 2013 in the presence of Ms Haines, the judge explained to the mother that if he rejected her allegations he would have to very carefully consider the child’s future.




  • On the morning of 28 October 2013 before the fact finding hearing in question began, Judge Cardinal addressed all the advocates and Ms Haines. Entirely properly and to enable the parties to think about their positions, the judge indicated that if the mother’s allegations against the father were subsequently proved, he would have to consider exercising his powers to make a section 37 direction and an interim supervision order because the threshold for intervention would be met and the child would need protective assistance. He also dealt with the converse position. He explained that if the allegations were found to be false (a necessary and logical position on the facts of this case if they were not proved) he would have to consider exercising his powers to make an interim care order on the basis he would approve the removal of the child from the mother’s care. These observations were repeated by the judge more than once during the fact finding hearing.




  • The fact finding hearing was adjourned on 31 October 2013 at the conclusion of the oral evidence. The judge directed the parties to file written closing submissions by 10.00 am on 6 November 2013 in preparation for the resumed hearing on 11 November 2013. The judge directed the local authority as the recipient of his section 37 direction to attend court on 11 November 2013. In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions. The questions related to what orders he should make specifically including the options of interim care or supervision orders and residence and contact orders. The mother understood the judge’s intentions at least to the extent that she faithfully replicated his questions in her written submissions.




  • The mother did not answer the questions posed by the judge in her written submissions but as respects the notice she had of the judge’s powers and his realistic options, it is quite clear that she had days not hours or minutes to consider her position. Indeed, as to the key question about the removal of her daughter, she had more than 4 months notice and repeated reminders of the stark position that faced everyone if her allegations were found to be false.




  • As the judge records at [56] of his judgment, the mother’s closing submissions were received and considered after the deadline he set. There were in fact four sets of closing submissions from her, the last of which was received on 11 November 2013 which was the resumed final hearing day. By that time the mother would have been aware of the written submissions of the other parties specifically dealing with removal and inviting the court to take that step. The father asked the court to remove his daughter from the mother’s care and the children’s guardian recommended and reasoned the precise order made by the judge. The guardian also dealt with the difficult position that would arise if the judge decided that the mother’s allegations were false and that she had involved the child in her allegations to the extent that on removal the child would not immediately be able to go to live with her father.




  • At [30] and [31] of his judgment the judge records the following:



12. “[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child's] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.

12. [31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home.”


  • Once the judgment had been handed down the judge gave the parties the opportunity to reflect on his conclusions and have discussions including with the local authority who were present in accordance with his earlier direction. Counsel recollect that there was a period from about 12.30 pm to 2.15 pm during which the mother asked the local authority to consider placement of her daughter with the mother’s sister. The local authority would not accept that proposal without an assessment for reasons that are understandable having regard to the content of the judgment. That decision was not at that stage a matter for them but rather for the court and it is of note that from about 2.15 pm to about 3.00 pm the mother was given and used an opportunity to make further oral submissions to the judge about her proposals and the orders that the court could make.




  • Given the judge’s record and that of all counsel in the case and for the reasons set out above, I cannot accept that the mother would have been in any doubt about what the judge was able to do and indeed what he proposed to do if the facts were found against the mother and absent any submissions as to other alternatives. The mother had every opportunity which she used to make proposals about placement including her sister and other members of the family. During oral submissions to this court and for the first time both without written warning or earlier complaint, the mother instructed her counsel to the effect that she had not had notice of the other parties written submissions because she had had computer difficulties and had not been able to open their documents. The process that I have described and the manner in which this complaint is disclosed to this court make it inherently unlikely but even if it is correct, there is ample other material to remain of the firm view that there was no procedural irregularity. This element of the ground of appeal is without merit and is not the case that was put to the single judge when he granted permission. There was no procedural irregularity or unfairness



There does seem to be quite a few warning shots there, that weren’t picked up on.


An argument that was not raised by the mother’s McKenzie Friend which might have been (I think the appeal was doomed, but I would have liked to see how the Court of Appeal tackled this) was the article 6 point. A parent in private law proceedings can be unrepresented – and in this case it seems that the mother was – making use of a McKenzie Friend, because she would not qualify for free legal representation.

In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions.

In a case where a Local Authority applies to remove your child, you automatically qualify for free legal representation. Once the Judge was contemplating the possibility of making an Interim Care Order and removing the child,  should the mother not have been entitled to free legal representation in exactly the same way that she would have been in care proceeedings?  From the point of view of a parent’s rights, does it matter whether the Interim Care Order is made by a Judge after a Local Authority apply, rather than by a Judge of his own motion?  The issue is the removal of the child from her care and into foster care, surely?


If a Judge is contemplating removal of a child into foster care under section 37,  should a parent not be entitled to free legal advice and representation about that, and be able to challenge it with the benefit of such representation?  Is it a denial of the principles of Airey v Ireland for her to NOT be able to be represented?  Given the warning that the Judge gave to the mother about the risks of the finding of fact hearing, might it have been beneficial for her to have had legal advice?




Private law appeal (unsuccessful)

The Court of Appeal have given judgment in Re H (Children) 2014


This relates to an appeal from the decision of Parker J to make an order transferring residence of three children from their mother’s care to their father’s care AT AN INTERIM STAGE – the case is not over and further steps are being taken prior to the final hearing of the private law applications.


The interim change of residence followed a finding of fact hearing in which the mother made very serious allegations about the father – including that he had raped her and hit the boys with a belt. The boys had made that allegation during police ABE (Achieving Best Evidence) interviews.


The Court of Appeal are quite right, to make sense of the appeal, one needs to look at the context of the litigation, which they set out in summary form


  • In order to make sense of what follows, it is necessary to set out the bare bones of the chronological history which catalogues the development of evidence with respect to each of these two core themes.




  • On 4th April 2013 the mother applied for an injunction against the father under the Family Law Act 1986 and made applications for residence and supervised contact orders with respect to the children. In her witness statement supporting those applications the mother did not complain that she was the victim of any physical or sexual violence from the father save for one occasion nearly twenty years earlier prior to their marriage. She did, however, allege that the father was highly controlling and threatening in his manner towards her and that he would regularly assault the children and, in particular, would take a belt to them if he considered that they had misbehaved. The father issued a counter application for contact and specific issue orders regarding the children’s schools.




  • The first court hearing took place on 15th April 2013 before DJ Hodges. At that hearing the mother’s position had changed from one of supporting supervised contact between the children and the father. Her case was that the elder boy, A, opposed the two younger children having direct contact with the father and the mother herself therefore opposed direct contact for any of the children. At the hearing the District Judge explicitly stated that the court would start with the presumption that children should grow up knowing both parents. Some 2 hours after the conclusion of that hearing the mother and A attended the local police station and made allegations about the father’s behaviour. The police record shows that, in addition to the allegations of violence towards the children, the mother alleged that the father had also been violent towards her, but that his abuse of her was “mostly emotional and sexual”.




  • On the following day, 16th April, police visited the mother and the children at the refuge. Notes of that visit indicate that C and A made allegations of physical assault by their father, but that these were not substantiated by B’s account. The mother’s complaint was of emotional and mental abuse. She made an historical allegation that he had raped her and she stated that he had physically abused her, but that this had not happened for some years. In subsequent police interviews (in April and in September) the mother came to make allegations of repeated rape and controlling behaviour.




  • On 23rd April A undertook a formal Achieving Best Evidence ["ABE"] interview with the police in which he made various allegations of physical assault by the father, including the use of a belt.




  • Matters then took a striking turn when, on 30th April, the father filed a statement exhibiting a number of notes and other documents written by the mother which described how she had herself been violent to the children, that she was unable to cope and was unable to control her consumption of alcohol.




  • At his subsequent police interview the father denied the allegations of rape, violence and controlling behaviour. He accepted that during one of A’s violent outbursts he had physically intervened.




  • The first hearing before Parker J took place on 7th May 2013 in which the judge heard oral evidence from the mother, father and paternal grandmother. The judge’s judgment on that occasion indicates that the background material produced by the father, originating as it did from the mother’s own hand, suggested that the father’s case that the mother was emotionally very troubled, was borne out. The judge said that the material that had been produced “worries me in the extreme, particularly the mother’s reference to drinking, Alcoholics Anonymous and being physically out of control with regard to the children”. The case was thus one in which allegations flowed in both directions.




  • Having heard the mother’s oral evidence with regard to the father’s behaviour and, in particular, his use of a belt on the children, the judge was plainly unimpressed with her credibility and stated “I thought that the mother’s evidence with regard to the belting was all over the shop to put it bluntly as to what actually she said had happened and what precisely she knew”. The judge was, however, plainly impressed with the “quite excellent” paternal grandmother who the judge described as being “true as steel, stout as oak”.




  • As a result of this, her first encounter with this case, the judge developed a very clear strategy as to the way forward. Whilst expressing concerns that the mother’s presentation, and the children’s allegations, might indicate that the children had become “recruited children”, in the sense that they had fallen in with their mother’s view of matters, the judge was prepared to accept, for the moment, that these matters were as a result of her troubled emotions and were not deliberate acts. The judge therefore ordered that the two younger children should be made available for contact with their father each Saturday during the day, but that all such contact should be supervised by the paternal grandmother and a paternal aunt. A was free to attend contact with his father and brothers should he desire. The judge fixed a further hearing for the end of June.




  • Three days later, on 10th May, the mother made a without notice application to stay the contact order. Fortunately it was possible for the father and his legal team to attend court on that hearing before Parker J, who, having heard the matter, dismissed the mother’s application. It is apparent that, again, the judge heard oral evidence from the mother on that occasion. The judge records the mother as saying that she was not relying on her serious allegations of domestic violence against herself and the children in opposing contact, but upon the need for the family to “heal” from the difficult marriage and marital circumstances and for the children to repair their relationship as siblings before contact could take place. The judge expressed great concern about what she perceived as the mother’s shifting stance in the proceedings, which did not demonstrate a solidly-founded mindset upon which the court could place any confidence. The mother’s application for a stay was founded upon A refusing point blank to attend any contact with the father and the younger children being said to be visibly upset and awake all night after being told of the proposal for contact. The judge on this second hearing expressed herself as having far more cause for concern as to the extent to which the children had been drawn into adult concerns and adult perceptions. The judge considered that the mother’s “havering and wavering about what her case actually is” supported her view that a firm grip was needed to be taken on contact before there was further opportunity for matters to deteriorate. The judge therefore repeated that she expected contact to take place in accordance with the order.




  • On 28th June all three children were interviewed by police and made allegations of violence against their father.




  • The judge had directed the local authority to provide a report pursuant to Children Act 1989, s 37. In that report, which is dated 26th July, the local authority recommended that no contact with the children’s father should take place “for the time being”.




  • At the end of September, and again in a revised document one week later, the mother filed a detailed schedule of allegations. That second (revised) document raised, for the first time during the court process, allegations of rape “on numerous occasions” from l992 onwards.




  • At this stage the father filed additional material including video, audio and photographic evidence which included a film apparently taken by A of a violent assault by C on B. It was apparent that the father was not present in the house and the children were in the care of the mother, who, apparently, can be seen ineffectually attempting to stop the assault and then leaving the room. This material was viewed by Parker J during a hearing on 29th October. That hearing, which had been intended to be a substantial fact finding process, was thwarted in two respects. Firstly, sadly, the mother’s father had died some five days earlier and she was not available to attend for all of the three or four day trial. Secondly, as a result of a failure by the police to respond to orders for disclosure, the court did not have access to key police records. The case was therefore adjourned part heard. However, at this hearing the court again heard evidence from the mother, father and paternal grandmother. In a short judgment given on 30th October the judge concluded that the risk of the children being put under pressure by the mother was very high in the light of the mother’s inability (apparently demonstrated in the witness box) to restrain herself in airing what she says about the father, including allegations of rape, in the children’s presence. The judge concluded that professionally supervised contact was not in the children’s interests, as there was a high risk that the children would understand that they should behave badly at contact so that this behaviour would be seen by the contact supervisors.




  • Although the judge was plain that the fact finding process was not concluded, and that she kept an open mind, she was struck by the fact that the two younger children had not made assertions of being belted by their father until after the judge herself had made her adverse comments relating to the mother’s oral evidence at the May hearing. The judge seriously entertained the view that the younger children may well have sought to provide corroboration for the allegations that were being made by picking up from the mother’s conversation, either directly with them or by overhearing what she said to A, what the issues in the case were. The judge therefore considered that contact should be reinstated to the father as soon as possible for the younger two children. The judge was clear that, because of A’s alliance with his mother, he should not attend those contact visits, but could, if he wished, have supervised contact with the father. The matter was set down to conclude the fact finding process at a two day hearing on 19th December.




  • Between the October and December hearings contact took place, but not without incident. It is not necessary to spell out the details, but in consequence of the difficulties on 4th December the father applied to enforce the contact order and applied for a residence order with respect to the two younger boys.




  • The fact finding hearing concluded on 19th and 20th December with judgment being given on Monday 23rd December. On the first day of the hearing the court ordered that B and C should stay overnight that night with the father. During their stay the two boys received a text message on their mobile phone from their elder brother A encouraging them to disrupt their time with the father. Part of the message read “fight, break stuff and argue to get out of this situation…you know what to do to get out of this situation…if you don’t act [F] will have custody of you after tomorrow. Good luck. Break, destroy and burn.”




  • At the conclusion of the hearing on 23rd December the judge made an immediate order transferring residence of the two younger boys to the father and making a residence order for A to the paternal grandmother. It is against those orders that the mother now seeks permission to appeal.



The appeal was centred around 3 issues


1. That the judge had come to conclusions prematurely about the allegations, making up her mind before hearing all of the evidence. In part because the earlier history of the litigation had set her mind against the mother’s allegations before the evidence was properly tested at a finding of fact hearing.

2. That in meeting the boys whilst the finding of fact hearing was going on, the exercise crossed from the appropriate one of familiarising the children with the Court and the process into an inappropriate one of gathering evidence  (I note, in passing that Parker J was of course the Judge who was recently criticised by the Court of Appeal for just this issue, having asked a child some 87 questions during an hour long interview )


3. That the Judge had decided that the case warranted an expert of particularly high calibre to assist, but then went on to decide that as the expert she had in mind was not available, no expert would be instructed.


[For my mind, looking at this purely from the outside, the third point is the best one, but relatively little was made of it]


Point 1 – the appellant claimed that the Judge had prematurely reached conclusions and as a result had curtailed mother’s ability to call witnesses and to put matters to those witnesses who had been called (regular readers will know that this is the Jones v NCB point – has the Judge ‘descended into the arena and become a participant in proceedings’ ?


This in part is complicated by the fact that the Judge had previously conducted a hearing in the case, and evidence had been heard during that hearing. Was the Judge entitled to rely on the impressions she formed of the evidence in the earlier hearings, thus allowing her to fairly restrict evidence and the extent of the evidence this time around? The Court of Appeal said yes, she was.


  • The range of detailed points about the judge’s conduct of the proceedings all, to a greater or lesser extent, come back to the central submission that the judge formed a premature conclusion on the factual material which was adverse to the mother’s case. That the judge had formed a preliminary view by, at the latest, the end of the October hearing, seems clear. In the light of that view, and conscious of the very tight timetable within which the December hearing had to be completed (given that the judgment was in fact handed down on the first day of the vacation), the judge may have been justified in excluding certain matters entirely from consideration in oral evidence, limiting the witnesses and the time available for cross-examination. On this point Mrs Crowley’s core submission is that the judge was wrong to use the early adverse view she had formed of the mother’s evidence to determine the allegations that had been made by each of the three children and to do so without a proper evaluation of the primary material that only became available to the court at the December hearing. That primary material comprised of the disclosure that was received from the police, including, importantly, the records of the various interviews undertaken by the children and the parents together with a DVD recording of A’s ABE interview. In particular, a point is made concerning the judge’s assumption that the younger boys only made allegations of physical assault by their father after Parker J had made adverse observations about the mother’s credibility at the May hearing. That assumption was shown to be erroneous with respect to C on disclosure by the police on the eve of the December hearing of a note of the interview with him undertaken by the police on 16th April. Mrs Crowley submits that the judge simply failed to engage with this new material and did not refer to it in the judgment.




  • In this respect Mrs Crowley is correct. At paragraph 63 of her December judgment the judge deals with the issue in this manner:



“I have thought very hard, notwithstanding the evidence that I have heard about good contact, whether there could have been incidents when the father had taken a belt to the children, whose behaviour was, as I have said, seriously out of control at this time. But as a result of the combination of the timing; the older boy’s assertions; the fact that the children were taken to the police station, as they must have been, in order to make this disclosure; the fact that I had made comments in my judgment only weeks previously about the lack of any assertion by the boys; I have come to the conclusion that I cannot place any reliance on these allegations. Also, the mother’s case about what she knew at the time has been markedly unreliable and inconsistent. She cannot possibly have not known about beatings at the time had they happened.”


  • It can be seen that the judge’s understanding of the timing of the boy’s allegations, coming after her adverse comments in the May judgment, is but one of the factors relied upon by the judge. It must also be borne in mind that the interview with the boys at the police station on 16th April, whilst happening prior to Parker J’s observations, took place within 24 hours of DJ Hodges indicating that the presumption would be for direct contact to take place.




  • In her skeleton argument in response to this application, Miss Pamela Scriven QC for the father submits that the premium now placed upon ensuring judicial continuity in these cases is partly justified by the fact that it is beneficial for a judge, over the course of successive hearings, to form a developing view of the evidence as it unfolds. I entirely agree with that submission, and Mrs Crowley does not seriously dispute it. It is, in my view, wholly artificial to regard one part of the series of hearings conducted in front of Parker J to be, in some manner, a free-standing, fact finding hearing in which the judge must ignore any previous views she had developed as a result of evidence heard on prior occasions. In a case such as this, where, fortunately, judicial continuity had been largely maintained, the proceedings before the judge, at successive hearings, should be regarded as one single process. Before the start of the December hearings this judge had heard the mother give oral evidence on three previous occasions. At the December hearing she received the material that had been disclosed by the police and watched A’s ABE interview.




  • In her judgment the judge rejected the allegations that were made by the mother having expressly referred, once again, to the “marked inconsistencies” in the mother’s accounts. With respect to A’s ABE interview the judge observed that his demeanour was “quite remarkably flat” with no sense at all of any emotional engagement. The judge observed that “there was every sense of giving an account which had been repeated, perhaps in his own mind, on many occasions, rather than being any form of spontaneous recall”. That description is not challenged within this appeal and we have not been invited to view the ABE interview ourselves. The judge concluded that the father may very well have been over-rough with A on one particular occasion, but she observed the difficulties in dealing with a child whose behaviour is physically very challenging.




  • The judge reviewed the evidence relating to allegations made by the boys more generally, and, in particular, about being hit by the father with a belt. I have already set out the judge’s conclusion on this point which is at paragraph 63 of her judgment. The reasons given by the judge, save for her misunderstanding as to the timing of the first allegations made by the younger boys, is supported by the evidence to which she refers and the conclusion to which she came was plainly open to her on that evidence.




  • Once it is established, as I consider it is, that the judge was entitled to form a preliminary view of the veracity of the mother’s core case following hearing her oral evidence at the two hearings in May, I consider that the criticisms of the robust case management that the judge undoubtedly deployed in December must fall away.



The nub of this is really the timing of the allegation that the father had hit the boys with a belt, which came right on the heels of  DJ Hodge telling the mother that direct contact would be in the interests of the children (no allegations of physical abuse were being made by mother at that hearing, but they emerged immediately after). At the fact finding all of the mother’s allegations were rejected, and Parker J reached a decision that the mother’s behaviour had gone beyond a misguided belief that the children were at risk or over-protectiveness and into darker areas.


The change of residence is interesting – the boys were expressing the view that they did not want to live with their father. The social worker did not support a move, nor did the Guardian. (note the criticisms below of the Guardian)


  • Neither the social worker nor the Children’s Guardian supported an immediate change of residence. In justifying her conclusion in favour of an immediate change of residence, the judge explained her reasons for disagreeing with these two professionals as follows:



“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.


73. The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”


  • At paragraphs 74 to 76 the judge then set out her conclusions:



“74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.

75. I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment. Much though I would like to give these boys a Christmas as they want it, or as they believe they want it, it is unsafe for them to spend Christmas Day with their mother and her family. Quite apart from anything else, the mother accepts that the two younger children should spend Christmas with the father and his family. They should be told that that is now the parental agreed plan.

76. I am in no doubt that the boys must remain living with their father until this case can be looked at again. I see no chance of any significant change to divert me from that view. I am not inclined to bring this matter back before the circuit judge in January, when I am away, unless there is some emergency which needs to be dealt with. There does need to be some form of further investigation. I am not at the moment persuaded, particularly because an expert of proper calibre has not been identified, that there needs to be any form of psychological assessment. That simply detracts from the judicial role and, after all, it is not experts who make findings and decisions; it is the Court. I would like to see how things settle down.”



Point 2 – the Judge meeting with the boys



  • On the morning of the second day of the December hearing the judge conducted two judicial meetings with the children, firstly with the younger two and secondly with A. Depending on the circumstances of any given case, a judge may see a child for a variety of purposes. Such purposes are, however, likely to fall under one or both of two heads, namely providing an opportunity for the young person to say anything that they wish to say to the judge and, secondly, providing an opportunity for the judge to explain the process being undertaken by the court and to otherwise enhance the young person’s understanding of, and feeling of engagement with, the court proceedings. Judges are encouraged to adhere to the guidelines issued under the authority of the President of the Family Division by the Family Justice Council (Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010) [2010] 2 FLR 1872). The guidelines make it plain that a judicial meeting is not for the purposes of gathering evidence:



“It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her”


  • It is clear that the meeting with the judge occurred in consequence of the judge’s conclusion that such a meeting was likely to be beneficial, rather than arising out of any request from any of the children. The judge indicated both at the October hearing and on the first day of the December hearing that she considered a meeting with the children was likely to be useful. Mrs Crowley submits, and the transcript supports her, that the meeting arose from a desire on the part of the judge to inform the children of the process and of the orders that might be made, rather than to ascertain their wishes and feelings, which were well recorded. On 19th December the judge told the parties that she perceived a need to be open with the children and to “put her cards on the table” at that stage of the process.




  • The judicial interviews were conducted entirely in accordance with the guidelines. The judge saw the boys in the court room, albeit no doubt in an informal configuration, so that the encounters were recorded and have been transcribed. She was accompanied by her usher, her clerk and the Children’s Guardian. First of all the judge saw the two younger boys together. In addition to hearing the boys give a short account of their wishes and feelings, and their reaction to spending the previous night in the father’s home, the judge used the encounter to describe the possibility that the court might order a change of residence and her expectation that the young people, as would be the case with the adult parties, would co-operate with her decision and abide by it. The boys were plain in stating that they did not want to go to live with their father. During the second interview with A the judge adopted an approach which was commensurate with his age and sought to explain to him that he was not “the man of the family” and that it was the grown ups who had to take responsibility for the arrangement of the affairs of the children.


Point 3 – the instruction of an expert



  • Given the extreme behaviour displayed on occasions by A and given the striking content of the mother’s own handwritten notes reflecting on her own behaviour and emotional stability, the question of whether or not the assistance of a child and adolescent psychiatrist or psychologist inevitably arose for consideration. On the first day of the hearing in December the judge indicated that an expert of a particularly high calibre was required. She indicated that she had a particular expert in mind, but, on the second day of the hearing the judge reported that she had made enquiries which had ascertained that that particular expert was not available to take this case on. The judge therefore concluded that no other expert should be considered and the case would proceed without additional expert involvement.




  • That sequence of events had initially been one of the grounds of appeal   [The Judge went on to grant an application in February 2014 for the instruction of a different expert, so that bit of the appeal falls away]  Although any appeal on the question of whether or not an expert should be instructed therefore falls away, Mrs Crowley criticises the judge’s approach to this matter, on the one hand considering that only an expert of high calibre should be instructed but, on the other, taking it upon herself to assess the situation. She submits that as indicating that the judge went outside the boundary of her judicial role in developing an analysis of the family dynamics which, wrongly it is submitted, supported the decision to make an immediate change of residence.

Even though that point did not have to be determined, since it had fallen away by that stage, the Court of Appeal still say that Parker J was entitled to make that decision and did not need to have expert evidence in order to make her decision that in the interim, the children should move from mother’s care to father’s care.

Although I understand the argument as is so clearly put by Mrs Crowley, I do not consider that the judge’s approach to this matter is open to that criticism. The residence arrangements that are currently in place are plainly interim arrangements pending the further assessment by Dr Asen and the further consideration of the court. Given that the judge was required to make findings of fact in December, and given that those findings were so adverse to the mother, the question naturally arose as to whether the children could be emotionally “safe” if they continued in their mother’s care after those adverse findings had been made. The judge having concluded that the allegations made by the boys were not grounded in reality, it was necessary to consider other explanations to explain the fact that the boys had nevertheless said what they had said to the police. Of the limited range of alternative explanations available, the judge’s conclusion, at that stage of this ongoing process, that the allegations in some manner arose out of a dysfunctional relationship with the mother is not, in my view, seriously open to challenge.


Any hearing where the allegations are as strong and vivid as this carries risk for both parents – if the Court finds mother’s allegations proven, then father will have difficulty in establishing any relationship with his children. If the Court finds that mother, as they did here, has made them up and drawn the children into a web of deceit, then a change of residence is a distinct possibility – by that time, the children having taken sides so manifestly are going to find a change of residence very difficult. And of course, worst-case scenario is that a Court eventually concludes that the children are so damaged and the parents so culpable that the children can live with neither parent.  Great care has to be taken over making allegations for tactical reasons, rather than raising  a genuine concern. If the concern is genuine, then it is vital to raise it early on in evidence, rather than filing statements that make no mention of something so serious.



The Local Authority do have to participate in an appeal against orders they applied for


I’ll start with this caveat – this judgment involves a neighbouring Local Authority, and also involves members of the bar who I know, and members of the judiciary that I appear before. Writing about it then makes it difficult, without risking injured shins, hurt glances or lost readership.

So with that in mind, I will dispense with my usual snarky attitude and just give the facts and the principles (this case does have a few important things in it, which prevents me from just skipping over it, as was my first instinct)


Re S (Children W &T) 2014


This involved a finding of fact hearing about some very grave allegations of sexual abuse made by a fourteen year old, which had in turn implications for whether two much younger children might be at risk. Those allegations were firmly disputed.  The Judge made the findings, and the mother and her partner (who was the subject of the findings) appealed.

The Court of Appeal begin (and end) with their views about the decision of the Local Authority not to participate in the appeal and to rather send in a document expressing that they were ‘neutral’.   The Court of Appeal did not like that.



  • Before moving on, I would note that the judge’s order was made in care proceedings brought by the West Sussex County Council, based upon allegations of serious sexual abuse of a 14 year old girl. In a “Position Statement” dated 24 February 2014, the Council stated that they had been kept regularly updated by the solicitors for the mother on the progress of the appeal. In paragraph 2 of that statement, the following is to be found:



“West Sussex County Council has regularly confirmed in correspondence with the parties that it maintains a neutral stance in relation to the appeal by the mother and father. West Sussex County Council provides this position statement to formally confirm [sic] to the court this neutral stance.”

At the end of the statement, it is said that the Local Authority will be happy to reconsider the question of representation at the appeal hearing “if the court expresses a wish for West Sussex County Council to be represented at the hearing”.


  • To my mind, this statement fundamentally fails to grasp what were the proper roles of the local authority and of the court respectively in these appeal proceedings.




  • Having taken the decision to present these allegations to the judge and having secured findings of fact broadly along the lines that it was seeking below, the least the Local Authority could have done would have been to attend before the court to ensure that the findings were not disturbed to the potential prejudice of the children in this case, who the authority had been contending were at risk from what they said had happened to another young girl at the hands of these parents. Non-participation was not an option. It was never the function of the court to advise the parties, still less to advise upon the obvious, namely that the presence of the local authority was required. That was why Ryder LJ’s order (with which no doubt the local authority had been served) had directed an “inter partes” hearing.




  • After the grant of permission to appeal, at a hearing without notice to the potential respondents, the Lord/Lady Justices of the court do not see the papers in the case until a constitution to hear the appeal is identified and the papers are delivered, a matter of days before the hearing, to the assigned judges. For my part, at that late stage on the court’s designated reading day, I was merely puzzled as to why there was no sign of participation from the local authority. For the future, for my part, I would hope that this type of insouciance on the part of local authorities will be avoided.

and at the end, from the President



  • My final concern relates to what, I am bound to say, was the quite astonishing attitude to the appeal evinced by the local authority. It was neither present nor represented before us. Even more surprisingly it filed a remarkably perfunctory position statement which, without condescending to particulars, simply announced that “it maintains a neutral stance in relation to the appeal” and “in light of its neutral stance … has chosen not to file/serve a Respondents Notice.” I do not understand what the local authority thinks “neutrality” means. A guardian may on occasions, as indeed in the present case, appropriately maintain a stance of neutrality in relation to a fact-finding hearing. The guardian, after all, is not setting out to make a case and prove facts. The local authority, in contrast, had commenced the proceedings, had decided to make a number of allegations – as it happens very serious allegations – and had succeeded in persuading the judge that most of them were proved. How in the circumstances could the local authority be neutral? Had it suddenly become indifferent to the outcome? Surely not. The consequence is that the court was deprived of any assistance by way of response. Even if, in order to conserve taxpayers’ money (as the position statement said), it was appropriate not to send an advocate to attend the hearing, written submissions resisting the appeal and setting out, even if fairly briefly, why it was being said that the appeal should be rejected would surely have been of assistance. I add these observations by way of supplement to what McCombe LJ has already said on the point, comments with which I entirely agree.



Thus, principle number 1 of the case – Local Authorities need to play a part in the appeal as a respondent, whether they desire to or not.


Principle number 2 – we have a repeat of the clear message that fact-finding hearings are politely discouraged



  • My first concern relates to the decision that there should be a separate fact-finding hearing. I make no criticism of those involved, who were conforming with what was then understood to be appropriate practice. But for the future judges and practitioners considering the use of a separate fact-finding hearing in a care case must bear in mind the current approach, which is to discourage their use except in a relatively limited group of cases. In Re S, Cambridgeshire County Council v PS and others [2014] EWCA Civ 25, Ryder LJ made clear, para 29, that a split hearing in a care case will usually be appropriate only in either “the most simple cases where there [is] only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made” or “the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child.” He went on, “For almost all other cases, the procedure is inappropriate.” I agree. This is not the kind of case in which, in future, a split hearing should be ordered.



[I'm sorry, I have tried to do whatever the typing equivalent of biting your tongue is, but I  am struggling]


Principle number 3 – a reminder of the importance of complying with Court orders – in this case, the  order made that the Local Authority should produce and lodge for judicial approval a schedule of the findings that were made did not happen. That left the Court of Appeal looking at a schedule of findings that were the draft findings sought, and not a schedule of what the Court had actually found.


The simple fact is that, even now, the court’s order has not been complied with. Yet worse, there is, even now, no authentic, definitive, record of precisely what findings the judge made. This is simply shocking. It is, I regret to say, yet another manifestation of a deeply rooted culture in the family courts which I had occasion to condemn in Re W (A Child), Re H (Children) 2013] EWCA Civ 1177, paras 50-51: “the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.” Despite our inquiries, I was left wholly unclear as to how this deplorable state of affairs had been allowed to persist for so long. It must be remedied without delay: the parties as soon as possible must put before the judge for her approval an agreed schedule of the findings she made. For the future, there must be no repetition.


Principle number 4 – the appeal turned in large part on the appellant’s claim (which was rejected) that the Judge in her interventions had ‘descended into the arena’


The lead case on this, as we know, is Jones v National Coal Board, way back to Lord Denning’s time.

And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v Clewer. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that : “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”


…..[I]t cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.”



The shorthand for this is usually, has the Judge descended into the arena and started to participate in the litigation, rather than asking such questions as are needed for clarification.

The Court of Appeal in this case were clear that this Judge had not stepped over that line, but do add that where the witness being asked questions is vulnerable, it may be that a Judge has more leeway with the nature and type of interventions than with other witnesses.


The Court also suggest that as part of the new culture, Judges might well be more active in the proceedings than would have been at the time of Jones. But that if a Judge does overstep the mark, the Court of Appeal would intervene.

The first concerns reliance on Jones v NCB. That was a very extreme case on the facts. Moreover, since 1957 when that case was decided there has been a culture change in the conduct of litigation. More attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case. This is true both of civil litigation (see CPR Part 1.1) and family proceedings (see FPR Part 1.1). One of the corollaries of this new culture is that a judge is expected to take a more active part in the proceedings than would have been the case half a century ago: see Jemaldeen v A-Z Law Solicitors [2012] EWCA Civ 1431; [2013] CP Rep 8. That said, if a judge does overstep the mark, even in a family case, this court will intervene. Thus in Re J (A child) [2012] EWCA Civ 1231; [2013] 1 FLR 716 counsel was prevented from pursuing a line of relevant cross-examination. She rightly objected to the judge that she was being denied the opportunity to put her client’s case, but the judge did not accede to her objections. This court ordered a new trial.


This development is likely to crop up again, as one can see from reading paragraph 28 of the new Practice Direction 12J (dealing with fact-finding hearings in private law proceedings) to reflect the reality that in a post LASPO world, we are likely to have unrepresented parties cross-examining one another


The relevant portions being:-


“Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances , in order to ensure both parties are able to give their best evidence”


That guidance does not refer to the principles in Jones v NCB, but they would probably be worth referring to before such an exercise occurred. It seems that this is likely to be a particularly difficult balancing act. As we know, in any finding of fact hearing, at least one party walks away unhappy, and if they are unhappy about the way the Judge conducted that questioning (either too harsh, or too soft, too long or too short) an appeal might well arise.


Principle 5 – there were a number of matters about the conduct of the hearing that the appellants sought to rely on, and each of those was quashed by the Court of Appeal, largely on the basis that applications were not made AT THE TIME about whether this particular course should or should not be followed. You do run the risk, if you bite your tongue and press on regardless, of not being able to rely on those case management decisions made by a Court in a later appeal.




Intervening lodger



Intervening lodger




The Court of Appeal decision in Re H (a Child) 2014


This case was effectively an appeal of findings of fact made against A, a young man living in the grandmother’s home.  [He might not be a lodger, but the judgment doesn’t say that he is a relative or partner, and I have used a process of deduction]


Care Orders and Placement Orders were made in the case, and the only realistic options in the case were those orders or a plan of mother and the children living in grandmother’s home, where A would continue to live.


The issue about that was that there were allegations of A having sexually abused children, and the professional opinion was that the mother and children could live with grandmother IF those allegations proved to be false, but not if they were proved to be true.


The Court of Appeal say “There was no question that A could or should move out of that household”     – I’m not quite sure why not, but there it is.


The preliminary question was A’s ability to appeal the decision – the Court of Appeal don’t actually consider appeals against findings of fact, but rather ORDERS arising from those findings of fact   (that, as Shakespeare put it, is a custom more honoured in the breach than the observance, but every once in a while the Court of Appeal remembers that)


There’s no simple answer to whether A could appeal against those conclusions, since he would not have standing to appeal the ORDER, but in the event this thorny problem was sidestepped as the grandmother was given public funding to run the appeal, and SHE of course could appeal the ORDER.


The order of course flows from those adverse findings.  


My reading of the case is that the lead Judge had some sympathy with the way that Leading Counsel representing the grandmother (and A) looked at the ABE interviews.


11.That theme which necessarily dominates this application was that the one option before the judge was for adoption of B with the maternal grandmother. There was no question that A could or should move out of that household. In attractive submissions, Mr Feehan took the Court through the transcripts of the DVD records of the ABE interviews of each of the three cousins and highlighted the flaws in those records which he submitted are sufficient to render the content unreliable. If he is right, then the judge was wrong to place reliance on any part of the same and the findings of fact would then be unsafe.

12To understand the context of that submission, one has to be conversant with the 2007 guidance “Achieving Best Evidence in Criminal Proceedings”, which is the multi agency best practice guidance that makes strong recommendations to those presenting the evidence of children to courts, both family and criminal alike.

13There is then a series of decisions of this court that highlight how a failure to follow that guidance can lead to fatal contamination of the children’s evidence. Mr Feehan took this court in particular to TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children’s materials that no reliance could be placed on the same. Mr Feehan highlighted the significant similarities between this appeal and Re: TW and invited this court to come to the same conclusion.

14In addition, he highlighted a line of authority on the demeanour of witnesses which caution the Court in deciding credibility issues in its reliance on demeanour alone. The point is obvious. What is the circumstantial material and does it tend to suggest credibility and reliability, or not, as the case may be?



In passing, I will raise my concern about the quality of ABE interviews, and particularly something which troubles me greatly, the development recently of “Q and A” sessions as a prelude to doing an ABE interview, almost as a sifting process to see if the child is going to make allegations in ABE. That seems to me to entirely miss the point of an ABE interview, which is to ensure that one sees exactly what the child is asked and is able to see whether the allegations emerge naturally from the child or whether they might have emerged by way of careless or inadvertent suggestion by the questioner. I am not sure that the ABE guidance is followed properly throughout the country, and it can cause significant problems either way (either a child’s allegations being contaminated and over-stated leading to a person wrongly being determined to be an abuser, or a genuine account having been contaminated leading to a finding that it is not safe to rely on what the child says)



15In deconstructing each of the interviews of the three cousins, Mr Feehan has identified varying significant failures. I can summarise them in headline form, but it is important to understand that he took the Court to the detail in the interviews themselves to substantiate his submissions.

a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.

b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys’ family circumstances, including the house in which it was said the abuse occurred.

c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:

(i) no understanding of the difference between truth and lies and/or the effect of telling lies on the part of each of the cousins.

(ii) no rapport or ordinary conversation so as to allow the boys to settle and gain appropriate professional trust in the interviewers.

(iii)no free recall or an opportunity for spontaneous recall of what it is that the boys reflected upon.

(iv) seriously leading questions, both open leading questions and closed leading questions, in both cases tending to suggest either that an answer must be known to them or indeed, what the answer should be.

(v) a confusion between asking the boys to recall what has happened and what they had previously told their mother had happened.

(vi) inaccurate rehearsal or summarising of what the boys had said in interview.

16Mr. Feehan was also able to point to the fact that these boys had never repeated the allegations in any other environment or since interview, despite one of them being engaged in some significant therapeutic work. Finally in the context of the proceedings, A was described favourably by the judge, despite some of his evidence being found to be unreliable



That does appear to be a significantly flawed ABE interview – the issue for the Court is whether, taking careful account of the flaws the Judge was able to still have confidence in the core truth of the allegations, or whether the ABE was so flawed that no reliance could safely be placed on anything that was said within it.


17The failings in the ABE interview process are very troubling, but no doubt with the same clarity with which Mr Feehan has addressed this Court they were put to Peter Jackson J who analysed those failings with some care. The judge likewise considered the position of the pre-interview discussions with the relatives. It should be remembered in that regard that the judge heard all of the adults who were also made available for cross-examination.

18Given the failings which were apparent, the judge entered into the task of highlighting the most worrying elements of the allegations made by the boys in their interviews. He did so at paragraph 49 of his judgment. The passages relied on include the graphic use of language by one particular boy who was the youngest about his experience of what happened. The judge found that material to be cogent despite the serious failings of the interview process. In essence, the judge was able to be satisfied that there was a core of truth in what had been described in the interviews.

19 That is a position to which a judge is entitled to come unless the whole of the interview process is so flawed that there is nothing reliable that emerges at the end of the same. Having regard to the way the judge set out at paragraph 49 what he relied upon, his impression of that boy’s evidence is something that it would be very difficult, if not impossible, for this court to undermine. Furthermore, there was nothing in the conduct of the adult relatives which led the judge to conclude that the boys had been coached or contaminated in their discussions with them


The remark at para 17 that shows that the trial judge had been very alive to the failings of the ABE interviews and had analysed it carefully was what sank this appeal. The Court of Appeal did not feel that the trial judge had got this wrong.


20 At paragraph 63 of the judgment, the judge carefully discusses the evidence from the family about their circumstances, the effect of the flawed interviews and that part of the interview process that led him to identify the cogent material upon which he relied. Finally, he considers the position of the boys and the adults and reminds himself that it was not for A to prove anything in the proceedings before him.

  1. Insofar as there is a submission that a judge hearing evidence from a witness is entitled to disagree with the content of the same and might thereby come to a conclusion which is not otherwise proved by the local authority, I do not consider that to be a reversal of a burden of proof, as submitted by Mr Feehan. It is a part of binary fact finding in a quasi inquisitorial process where the judge has considered what findings he can or cannot come to. At paragraph 63, the judge puts his finding into context and describes and explains why it is he found the younger cousins to be reliable enough. At paragraph 64 of his judgment, he sets out the findings that he makes. In my judgment, the judge was not wrong in the exercise that he undertook.



The Court of Appeal were unhappy about one finding


  1. If I take issue with anything at all, it is in respect of one part of one sentence at paragraph 64 of his judgment where the judge summarises what has gone before and says:

“He attempted to perform anal sex upon K, though it is not clear whether there was any significant penetration.”

  1. The clause: “it is not clear whether there was any significant penetration” must, as a matter of law, read “I make no finding on the evidence that there was penetration” and accordingly there was no finding on that issue at all. That phrase should not have found its way into the schedule of findings that presently appears in the order, and to that extent the order should be corrected.

Equality of arms – D v K and B 2014


One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.


This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.

The new radicals

The philosophical issues thrown up by Re M, and Not the Nine O’clock news.

There are some things that my dad had views about that had no influence on my own belief systems. I don’t for example, believe that Freddie Mercury was “straight as a die”, that Roy Orbison was only pretending to be blind, that the moon landings were faked (and that REM know about it and their song “Man on the Moon” is not about Andy Kaufman but is really about exposing the fake moon landings).  I don’t feel the need to stand during the Queen’s Speech, or even to watch it.

But there are some things where I know that my dad’s views and philosophies stayed with me to this day – that you should always tip cabbies and hairdressers well, that West Ham are dear to my heart, that it is better to pretend to play the drums when listening to music than play air guitar, and his sense of antipathy towards Unions and Union bosses.

I’ve never had a Union treat me badly or double-cross me, or let me down, but I do have a hostility towards them, an innate, programmed hostility that comes not from my own experience but the beliefs my dad instilled in me about what a bad lot they were.  Why, even this week, when I heard that Bob Crow had died, my initial gut reaction was the one my dad would have had, and not one bourne out of any personal antipathy towards a man who had no adverse impact on my life at all.

Listening to politicians suddenly speak out about what a great man Bob Crow was reminded me of this classic Not the Nine O’Clock news sketch


Anyway, the point of this long rambling intro is that in Re M, the High Court were preparing themselves to tackle the issue of the influence that a father could have on his children, for good or for ill.

The father in this case is a Libyan man, with seven children. He came to England and married an English woman and started that family. The marriage ended when the mother began to drift back to her earlier Christian beliefs, the father being Muslim. There were problems about the children being returned from an arranged holiday in Libya and a dispute between the parents as to whether this was an attempt by the father to move the family lock stock and barrel to Libya. There were allegations made by the mother about the way that the father treated her and the children – those allegations are not proven or tested and were to be the subject of a fact finding hearing in private law.

The Local Authority had been asked to undertake an investigation and they reported that the children were fine and happy with mother and they had no concerns.


At paragraph 10, under a heading “Recommendations”, the social worker wrote,


“The children are happy and content in the care of their mother, having gone through a period of instability since last year. They are attending school and many other activities. The behaviour of [the eldest two sons] has calmed significantly and [the second son] has become very close to his mother. [The mother] is providing a physically and emotionally safe environment for the children.”

The report commented also upon the relationship between the children and their father that had been observed during occasions of contact. It said at paragraph 6.6,

“[The father] was observed during contact with the children. He was very warm and affectionate towards the children. His interaction with the children was age-appropriate during the contact and the children found it a positive experience. However, all children apart from [the eldest son] requested for future contact to be supervised.”

It was therefore something of a surprise to Holman J, when the day before the fact-finding was to begin, he received a communication from the Local Authority that they intended to commence care proceedings.

On further enquiry, it emerged that fresh allegations had been made to the Local Authority, who were greatly concerned about them. The substance of those allegations were that the father was “radicalising the children” and promoting radical fundamentalist thoughts associated with terrorism, that he was not simply promoting and advocating Islam as a faith but insisting to the children that anyone who was not following the Islamic faith was an ‘infidel’

This was something that had not been raised as a specific allegation or that the Court had been asked to deal with at the fact-finding hearing, although there was this reference to it in mother’s statement

“Immediately following my return, both children were extremely hostile and rude to me and used concerning language which includes calling me a ‘fucking bitch’, a ‘Christian witch’, and [the second son] told me that I am evil and going to hell. When I asked the children where they had got these ideas from, they said that their father had told them …

On 22 May 2013 I spoke to [the eldest son] about his behaviour and he told me that he cannot love me because I am going to ‘hell fire’. He was crying and said that I was going to hell because I am not a Muslim. I comforted him and his behaviour gradually improved from this time on. [The second son] however, continued to be extremely angry and volatile. [The eldest two sons] are showing signs of radicalised behaviour and have said that they want to be a jihadist when they grow up since a young age, and that they hate England and Christians …”

The Judge made it plain that no findings had been made against the father and these allegations were both untested and strenuously denied

    1. I stress very strongly and clearly indeed that at the moment all of this material is no more than statements made by, or attributed to, the mother, and no more than allegations insofar as it relates to the father or any members of his family in Libya.


  1. The father himself very strongly denies nearly all of the allegations that have been made against him and which were intended to be the subject of the fact finding hearing this week. I understand from his counsel today that he also very strongly denies that he has said, or done, anything to any of the children which might lead any of them to say the things or behave in the ways described by their mother in the passage that I have just read.


The Judge felt that it would be unfair to start the finding of fact hearing when father had had no notice or warning of these allegations and that the detail of what was alleged was not available to him, nor had he had the opportunity to respond. The case was therefore adjourned to gather that evidence, let father have the proper chance to respond and for the allegations to be tested. It is, of course, the mother (or the Local Authority) who have to prove these allegations – it isn’t for father to disprove them.

It will be an interesting judgment to read when the finding of fact hearing is concluded – I don’t want to comment particularly on this individual family as the allegations are yet to be tested and no real detail is available for anyone to form any view as to their truth or not – the whole thing might be a  misunderstanding, an exagerration or even outright falsehood.

I do think though that the case raises interesting debates about whether there is a bright line between sharing your beliefs and values – even if those might not be the cultural norms of the UK – and emotional harm to children.  Is this a Hedley J  Re L case, where society ought to tolerate a broad spectrum of behaviour and views and values, or a Supreme Court Re B case where the behaviour of the adults was held to cross the line into significant harm?

The Judge captures this very elegantly

“Radicalising” is a vague and non-specific word which different people may use to mean different things. There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend, at a mosque and wish to display religious observance. This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child’s parent or parents. If and insofar as what is meant in this case by “radicalising” means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate. On the other hand, if by “radicalising” is meant, as appears in paragraph 12 of the draft addendum report that I have already quoted, “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” then clearly that is a very different matter altogether. If any child is being indoctrinated or infected with thoughts involving the possibility of “terrorism” or, indeed, hatred for their native country, which is England, or another religion, such as Christianity which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity.



It is very difficult, when you start thinking of concrete situations, to see where that bright line would be.

For example – a man says to his fourteen year old son

1.  Islam is a faith with many followers throughout the world, it is something that I firmly believe in. I also believe that there are substantial elements of Western society that are decadent and not in keeping with my faith and tradition and the world would be a better place if more people followed Islamic traditions.

seems fine to me

Let’s add

2. There are those in the Western world that are threatened by Islam, and are frightened that their time of dominance based on greed and capitalism will come to an end. As a result, they oppress Islam, they stir up fear and hatred of Muslims, they scapegoat us for the ills of the world and start wars against Islamic countries using lies and deceit.

Now let’s add

3. There are Muslims who fight back, who resist this oppression. They risk their lives for what they believe in. They stand up for what is right, and they are honourable men to do so. We cannot fight against the West with tanks and planes because we do not have their resources and might – instead we rely on brave men who sacrifice their life to do what they must to bring the West to realise that what they do to Muslims is wrong. Being a martyr for something you believe in is better than tolerating oppression.


[For the avoidance of any doubt, I do not suggest at all that these views are in any way representative of mainstream Islamic thought or belief - it is just laying out a trail of how one might move away from mainstream Islamic thought and justifiable feelings of wanting to share your faith with your children towards the very tiny proportion of radical fundamentalist viewpoints]

Even that third one still seems to me to be an expression of faith and values – it might be edging towards stuff that might make people uncomfortable, but if you live in a free society you don’t just defend the right of people to say things that you agree with – sometimes people need to be free to say unpalatable things, unpopular things.

Almost certainly before you get anywhere near the point where the child is going to start hating the West or wanting to take action, you’ve got many many more steps than that – but how many? How far down that route do you go before what is happening is not an expression of views but emotionally abuse and indoctrination or radicalisation?  But putting your finger on where that point is that crosses the line between expressing your faith and views and saying what you believe and becomes harmful is not easy.

Even if the Judge has a verbatim account of what was said to a child, fixing that the bright line has been crossed might prove to be a difficult task.

Concessions and fact-finding

The High Court dealt with these issues in a case called Re AS (A child) 2014.

There was to have been an 8 day finding of fact hearing. The central allegation was that the child who was six, had been given excessive doses of insulin, causing him to become very unwell.  Although he had diabetes, his condition and situation had been made worse by this over-medication, and therefore this was a case of Fabricated or Induced Illness.

It was also noteworthy that the mother had told the child, and many other people, that she herself had cancer, when it was clear from her medical records that she did not.

Before the finding of fact hearing began, mother’s legal team talked to her – what is said is obviously confidential, but the end result is that the Judge was told that mother did not make any admissions that she had administered the excessive doses of insulin to her son, but accepted that it was inevitable that at the conclusion of the finding of fact hearing that those adverse findings would be made against her, and thus if certain amendments were made to the Local Authority threshold document, there would be no challenge to the Judge making findings in accordance with that threshold document.

That’s quite a nuanced position, since mother was not making any admissions but simply accepting that the findings were inevitable and not wanting to put everyone through an 8 day process to end up at that result. It is also quite a smart way of avoiding the self-incrimination issue that I’ve previously blogged about, whereby if there were any criminal proceedings being considered the admissions if any made might end up being used in criminal trial as inconsistent statements.

The Judge obviously mulled over this position – on the one hand,mother was making no admissions , on the other there was the need to be proportionate given that the threshold was not actually challenged.

(a) I have read the papers in this case in great detail. I have formed exactly the same view as Ms Henke and Ms Japheth, namely that it was inevitable that I would find, on the balance of probabilities,, that the threshold criteria were established for the reasons given by the Local Authority and, in particular, that I would have concluded that there was induced illness in relation to AS by the Mother secretly giving AS excessive dosages of insulin. At this stage, I do not know why she did so. This will be a matter for the welfare hearing that is fixed for May.

(b) The binary system adopted in this jurisdiction means that my findings become a fact. In other words, it would no longer be open to the Mother to challenge those findings. The case would proceed on the basis that this is what happened. The assessment I have already ordered by Professor A Mortimer, Consultant Adult Psychiatrist will be conducted on the basis that the Mother has indeed induced illness in AS, which was, of course, extremely serious and potentially life threatening. The Mother understands and accepts this.

(c) I have already noted that the Mother has not been able to bring herself to admit to me that she did this. I wondered for a time whether it was therefore necessary for me to conduct a fact finding after all but I concluded that counsel were right when they said I did not need to do so. The Mother is prepared to accept today that I will make the same findings as I would have made if I had heard evidence over eight days. There seems absolutely no purpose therefore in doing so. I have to remember the overriding objective of dealing with cases justly. This includes ensuring that the case is dealt with expeditiously and fairly in a way that is proportionate. I must also consider the need to save expense. I cannot see that it would have served any useful purpose to proceed with a very emotionally draining hearing, which would inevitably have caused immense unnecessary distress to the Mother. I am quite sure there would be no material advantage in doing so as the findings of fact I would have made after a contested hearing would have been exactly the same as the ones I make now. I therefore approve unreservedly the course of action urged upon me.

(d) The fact that the Local Authority has proved its threshold document does not mean that there will inevitably be a final care order. I will have to consider that issue in May, acting on the basis of what is in the best interests of AS.

(e) Finally, I do accept that it has taken considerable courage for the Mother to accept the inevitability of my finding of induced illness. I have already indicated that I am sure she was right to do so. It follows that I commend her for the position she has adopted and confirm that the advice she has received was undoubtedly correct. She is to be praised for having accepted it and taken what I entirely accept will have been a very difficult decision for her.

The whole caboodle landed in…


Once in a while, even in family law, you read a case where the circumstances are brand-new  (I think of the Port Harcourt fertility clinic undertaking fake labours, the case where the District Judge took the whole court on an uninvited excursion to a grandparents home to check it out, the peculiar case of whether a child was concieved by artificial insemination or biological insemination) and this is another of those.

SA v BN 2013

The case began as private law proceedings, about a 3 year old girl named JN. JN’s father sought parental responsibility and contact with her, following his separation from JN’s mother. The mother initially responded by saying that J was not the biological child of the father and DNA tests were directed. It then came to light that JN’s mother had had previous children who were the subject of care proceedings. The Court asked the Local Authority to look into this.

    1. On 10 February 2012 the section 37 report, was filed, it recorded the mother’s failure to cooperate with the preparation of the report and concluded: “At this stage it is not clear if J is at risk of significant harm; due to Miss N’s lack of engagement, J has not been seen and historical information that has come to light has not been discussed with Miss N“. It went on “The local authority will be considering initiating child protection proceedings in respect of J. The local authority will also be making a referral to the First Response Team so that an assessment can be carried out in respect of J and GN to assess the risk in the light of information received from Children’s Services.”


    1. When the matter came on again before District Judge Dowding on 15 February 2012, the mother did not attend but she was represented. District Judge Dowding extended the period for the DNA testing to 9 March 2012 and required the mother to attend with J in order to provide mouth swabs a penal notice was attached to her order.


    1. On 27t February 2012 the mother and the grandfather took J for the DNA testing.


  1. On 1 March 2012 the mother, without any prior notice took J to Kinshasa in the Democratic Republic of Congo (DRC), allegedly for the funeral of her mother, the paternal grandmother


The next hearing is where things started to get properly weird. The maternal grandfather and later, the mother began to assert that whilst in the Democratic Republic of Congo, J had been involved in a car accident and had died.

    1. On 5 April 2012 when seen by RC a social worker the grandfather said the mother was in the Congo and had died following a road traffic accident On 10 April 2012 the maternal grandfather sent a text and two photographs to RC a social worker, saying that J had died in a road traffic accident in the Congo on Saturday, 3 of March 2012. The two unidentified photographs show a coffin with people sitting around it and a second photograph of a body of an old woman in a coffin.


  1. Four days later on 16 of April 2012 the maternal grandfather sent three further photographs. Subsequently, the maternal grandfather e-mailed what purported to be J’s Congolese death certificate. It was in this context that RC duly prepared the section 37 report, (dated 4 March 2012) attaching to it the photographs and the purported death certificate,.


This hearing then, as a prelude to whether the Court could make any orders about the return of J to the country, had to firstly establish as a fact whether J was in fact, deceased.  As the mother was the person asserting this, the burden of proof was on her. Prima facie, she produced quite a lot of evidence.

i) the death certificate of JN, 700/N008080;

ii) medical report of cause of death, 603 2012;

iii) burial permit, number 012/2012;

iv) pro-justice official police report, 0403 2013;

v) expert request form, 007/201204032012;

vi) death certificate of Sisika Masamba; [the grandmother]

vii) hospital transfer ticket for JN.


However, on forensic examination, this evidence rather crumbled

(i) Death certificate.

    1. On about 5 February 2013 EM spoke to a Dr. N from the relevant medical facility about J’s case. A transcript of that telephone call was forwarded to the UK. Dr. N was asked about the death certificate of J and said as follows:


I am familiar with this case and I have seen your colleague here. The girl you are talking about did not die here. The number on the documents bears the name of another person. Thank you for raising this problem because we have now discovered that there is a Mafia network in trafficking in documents. We have just had a second case in death certificate from our department but it is a fraudulent document. Briefly, J did not die here, not a trace has been found and I don’t know what to tell you. What we can do is ask you to help us. If the woman in London could give us the contact details of the person who presented her with these documents, after that we could retrace the networks this document is trafficking. I have no further comment.”

    1. Subsequently, on 26t July 2013, Dr. N signed a witness statement in which he dealt with the authenticity of the “cause of death report“, but not the death certificate. It follows therefore that there is no official written record emanating from the Congo confirming that the death certificate, (as opposed to the cause of death report), is a fake. Taken, however, with the information in relation to the report in relation to the “cause of death” form set out below in this judgment, I find on the balance of probabilities that the death certificate filed herein is a fake.


(ii)Medical Report of Cause of Death.

    1. Both Dr. N of the medical facility, and the medical director of the medical facility in Africa, have signed witness statements saying that the “cause of death” report is a fake.


Initially, CATSR were unable to verify the authenticity of the report as the signatory, a Dr. EKM had been on long-term sick leave. Subsequently, CATSR sent an e-mail to CFAB that Dr. K had been seen on 15 January 2013 and did not wish to discuss the matter. That was not the end of the matter as in a further e-mail AW was informed that Dr. N and Dr. T had told CATSR that Dr. K had been dismissed from the medical facility.

    1. The short statement prepared by Dr. N says as follows:


I believe that this document is a forgery as this document does not relate to the death of JN, but to another person. The document is a false document. The child, JN, did not die in this hospital. Accordingly, I have no hesitation in concluding that this document was a fake.”

(iii) Burial Permit.

    1. On 14August 2012 Mr. M was interviewed Mr. M is the manager of a Cemetery where the mother says that J is buried and which it is said is shown in one of the photographs produced by the grandfather showing the mother and a young man standing next to a wooden cross upon which is written J’s name. Mr. M says (and he thereafter confirms in his statement) that until July 2012 he alone was the person authorised to produce a burial permit for the cemetery. Since July 2012 the system has changed and officials in the town hall now produce the permits. This burial certificate is however dated March 2012 and therefore he would have been responsible for issuing a permit.


    1. Mr. M said that the document is a fake for the following reasons:


a) Mr. M does not recognise the stamp, (which is not that of the cemetery), or of the signature of the person purporting to sign it.

b) The date of birth is not written in the usual way and the age of the child is simply written as one and a half, which Mr. M says, makes no sense.

c) The telephone number on the document is incorrect as there are ten digits in Congolese phone numbers and there are only eight written on the document.

    1. It was confirmed, for completeness sake, that the burial permits now used and issued by the Civic Hall are in a wholly different format from that of the burial permit carrying J’s name.


    1. I accordingly find that the burial permit is a fake.


(iv) The Official Police Report.

    1. Mr. MM (Commandant in the DRC police force in Kinshasa), was seen and confirmed that the report carrying his signature is accurate and that an accident indeed took place. There are, however, two matters of significant concern in relation to this document which would otherwise be the only document confirmed by its author to be genuine. The document which is entitled Official Police Report, gives the wrong date for the accident, referring to it as happening at 9 a.m. on 4 March, instead of the date universally referred to elsewhere and which the mother maintains, namely 3 March and not 9 am rather 16.27 was a date referred to in some of the documents.


    1. Added to this, it is accepted by Mr. MM that an official register of all accidents is maintained by the police in the city. When Mr. MM was asked for that register and provide confirmation of his report, he said that “they” had just moved offices and the register had been lost.


    1. Taken with the totality of my findings in relation to the other documents produced, I find on the balance of probabilities that the official police report is a fake and the officer in question was lying when he said the report was genuine.


(v) Expert Request Form, dated 4 March 2012.

The same observations apply to this document as the official police report, the provenance being the same.

(vi) Death Certificate of Sisika Masamba.

    1. A Dr. ZM, who certified this document, has filed a statement in these proceedings saying that this death certificate purporting to relate to the death of the grandmother is a fake. Dr. ZM was seen and said that the certificate was from his hospital, and the name on the document was his, but the writing and the signature were not his. Furthermore, and significantly, the number on the death certificate (700/NO06050) was produced on 7 October 2011 for an entirely different woman called D L and not for the grandmother.


    1. The death certificate for the grandmother is a fake.


(vii) Hospital Transfer Ticket.

    1. The mother gave evidence that J was initially admitted to one hospital and was then transferred to the hospital where she died. Officials from the original hospital, a Mr. CK and a Mr. KN, were seen at the hospital. They said that the document bore the name of their hospital but that it had not been produced by the hospital. When asked to clarify, they gave the following reasons for saying the document was a fake:


a) The transfer tickets produced at their hospital are booklets, whereas this was a full format A4 piece of paper.

b) They do not accept serious accident cases at the hospital.

c) They place the stamp at the bottom and not at the top of their documents and their stamp is small and not the same size as the stamp that appeared on the document.

d) On the transfer ticket in the place marked they always write: “CH” this had not been done.

e) For clinical information they always refer to the general condition of the person and write a comment such as “traumatisation” or “lesion” or “wound“, in the transfer ticket produced there is no reference at all to the general condition of the person.

f) For the destination, if it was a transfer ticket originating from their hospital they would have spelt the destination hospital differently

g) For the dates they always write …/…/20.. and the rest is written in by hand. On this transfer ticket the 2012 had been made by machine.

h) There was no-one in the hospital with the signature that appeared on the purported transfer document. Generally, when a transfer document is produced it mentions the name of the person who authorised the transfer and his signature is at the end, but this document did not bear the name of the person responsible for the transfer.

i) The document produced showed someone else had taken a page from a folder and scanned it in to increase the font for the typeface. In their tickets that the records are keyed in, but they do not much use either type face or the font on the purported transfer document.

j) Finally, the document does not even have a reference in hospital records which are kept at the so-called originating hospital.

    1. On 13 August 2013 Mr. M of CATSR returned to the hospital in order to obtain statements confirming all this information. He met with Mr. C again and on this occasion a Nursing Sister RK. They felt unable to produce a confirmatory statement or comment on the authenticity of the document without the original alleged hospital transfer ticket, which has not been produced by the family.


  1. Whilst a signed witness statement to confirm the contemporaneous note of the conversation Mr. C had with CATSR would be preferable, I conclude, on a balance of probability, that the hospital transfer ticket is a fake for the reasons listed by Mr. C and that it bears no resemblance to a genuine transfer document.


If you are thinking that right about now, none of this looks too good for the mother, and that faking your child’s death to avoid a contact order is somewhat extreme, you are not wrong

    1. Finally, in considering the evidence purporting to support the mother and grandfather’s case that:


i) the grandmother, SM, died on or around 27th of February 2012 and was buried on 3rd of March, and ii) that J was killed in a road traffic accident on 3rd March 2012,

I consider also the photographs produced by the grandfather in April.

    1. In relation to the photographs of the woman in the coffin, there is absolutely no evidence that the woman in that photograph is the grandmother. Further doubt, if necessary, is cast on them by the fact that notwithstanding she was said to have died in February and the photograph was produced in April, the photographs have a Christmas border on them. I do not accept the grandfather’s evidence that it is traditional to put a border on such a photograph and to decorate them in such a way; neither do I accept that this border was other than specifically Christmas related. One glance at the photographs showed these are definitely Christmas decorations.


    1. In relation to the photograph purporting to be the mother standing by her child’s grave, I have no doubt that this was staged for the benefit of these proceedings. It shows a wooden cross, easily made, with hand rather machine printing on it.


    1. The agreed evidence in this case, endorsed by the doctor’s evidence, is that the level of corruption in the Congo is such that there would be little difficulty in obtaining fake documents of the type produced in this case.


    1. In my judgment the documents are fake; there is no credible evidence that the grandmother died around 27 February 2012 or that J died on 3rd of March, whereas there is very considerable evidence that the family have set out to produce false documentation in order to try and deceive this court and, more importantly J’s father, into believing that she is dead.


    1. On 11 July 2012 the mother was ordered to hand her passport over to the guardian for safekeeping until further order. According to the mother, her father (the grandfather) wanted the mother to go to France to friends for Christmas. The grandfather contacted the mother’s solicitor to ask whether or not agreement could be reached for her to have her passport to enable her to obtain a visa and thereafter go to France. By consent, an order was made on 13 November 2012 granting leave for the passport to be released, on the basis that the passport would be returned to the guardian within three days of the mother’s return to England.


    1. The mother’s case is that she was unable to get the necessary visa and so the planned trip to France did not take place. She says in her statement that she forgot to return the passport and kept it in a handbag where she used it to enrol at college for the new term. In addition, she needed it, she said, in order to make arrangements in relation to her bank account.


    1. The mother’s case is that on 2 February 2013 she got the bus to college and on arrival her passport was missing. The mother denies having travelled outside the area and insists that the passport was genuinely lost.


    1. The court ordered the mother to produce evidence from both the college and the bank that she had used the passport for the purposes stated. She has failed to produce any such evidence. There must be a very strong suspicion that the mother travelled to the Congo or France to see J over Christmas 2012 and that far from losing her passport, she was unable to give it back to the guardian showing, as it would, that she had travelled to that country.


  1. Whilst the court may have strong suspicions that the mother’s account in relation to the passport is untrue, I do not feel able on the necessary standard of proof to find as a fact that the mother travelled to the Congo.


So, not only did JN not die in a road traffic accident whilst visiting the Congo with the mother to attend the grandmother’s funeral, the Court didn’t believe that the GRANDMOTHER was dead either.


Findings and Conclusions

    1. I am satisfied on the balance of probabilities that:


i) The mother left the United Kingdom on 1 March 2012 as a result of the section 37 report and in the knowledge that social services intended to launch child protection proceedings in relation not only to J, but significantly as far as the grandfather was concerned, to J and G, the children of his most recent marriage. I am unable to say to the requisite standard of proof whether concern about the outcome of the DNA test played any part on the decision. ii) That the application made by the mother for a visa allowing her to travel to the Congo made on 15 February was made as a direct response to that report.

iii) There was no telephone call to the effect that the maternal grandmother had died. I have no idea whether she is dead or alive. It maybe that the photographs produced by the grandfather are indeed photographs of the funeral of the grandmother. If so, that funeral took place, I am satisfied, near to Christmastime, some time before, and not in March 2012. The death certificate was a fake.

iv) The mother travelled to the Congo with J on 1 March. Thereafter the mother and J lived with the extended family and probably her uncle until such time as the grandfather obliged the mother to return to the UK in June of 2013. In my judgment it is a moot point as to whether or not she would have in fact returned to this country had not the grandfather travelled to the Congo and obliged her to return.

v) I find as a fact that J did not die whether in a road traffic accident or in any other way and the documentation produced is fake. It follows that I find that J is alive and that the mother and grandfather each know of her whereabouts whether it be the Congo, France or UK.

vi) I am satisfied that the grandfather’s relationship with his daughter is enmeshed and unhealthy at best and that the grandfather has shown on more than one occasion that he will not allow his daughter to move away from him and establish her own life. I am satisfied that he brought the mother’s relationship with the father to an end, wishing her to return to live him.

vii) Similarly, I am satisfied that he would not allow her to stay away in the Congo and that his relationship with her was more important to him than the fact that by bringing her back to England he was separating mother and child.


[I haven't really gotten into the whole dynamic of the relationship between the mother and the grandfather, which is a whole other can of worms in the judgment - but the Judge had to look at whether this tissue of lies had been orchestrated by the mother alone...]

    1. The question then arises as to who masterminded this elaborate façade. In her assessment, prepared in the care proceedings and dated 29 July 2009, the social worker (J Cl) spoke to the mother on a number of occasions. She referred to the mother as appearing: “Distracted and disinterested in most of the questions and did not speak freely. Although she provided an answer to all of my questions, she provided short answers. I found it extremely difficult to draw her into free conversation. B was unable to maintain eye contact in the course of any of my sessions with her.


    1. Those observations chimed with my own assessment of the mother during the course of her evidence. She was virtually monosyllabic. She was courteous and replied to the questions she was asked, but she was throughout completely flat, showing no emotion whatsoever, even when speaking of what, on her case, were the simply appalling events of 3 March 2012.


    1. In assessing this mother I bear in mind that whatever the truth of J’s death, she is a young woman who was abused and has been traumatised by her life experiences since she came to this foreign country at fourteen-years of age. In those circumstances it would not be right for me to use her demeanour as evidence against her assertion that J died as opposed to evidence of a deeply troubled young woman.


    1. I do, however, feel able to say with certainty that this mother would have been quite unable to have planned and put into effect the removal of J to the Congo and to have thereafter arranged the production of the documentation.


    1. It follows that I am satisfied that the grandfather has organised and manipulated events every step of the way. It should come as no surprise to the court that J was spirited away to the Congo. DN was sent back to the Congo to avoid the consequences of his having raped and impregnated his half-sister and I have no doubt that the mother would have been sent back to the Congo had the police not acted on the tip-off after the grandfather’s arrest for rape. Throughout the papers one can see the grandfather’s manipulative hand. He is there at each appointment, making arrangements, organising things and was, and I am satisfied remains, in complete control of every aspect of his daughter’s life.


    1. The grandfather made it clear that the uncle in the Congo is the member of the family who controls matters at that end that is where the mother lived I have no doubt that the grandfather and the uncle between them organised and obtained the various documents.


    1. The mother has recently remarried and is expecting another child. It remains to be seen whether she will now be allowed to make a life of her own.


    1. The grandfather as unrepresented Intervener has played a full part in the proceedings. He has been courteous and polite throughout. On one level he gave plausible evidence, although his self-centred approach was apparent at every turn. He was considerably more animated than the mother, particularly towards the end of his submissions when he was bordering on tears but tears of self-pity in relation to the effect the proceedings had had upon him. This was in contrast to the way in which he spoke of the death of J, in positively callous manner, saying that the hearing of her death had “spoilt my day, spoilt my shift at work” and saying, quite brutally, that once J was dead he had destroyed everything about her, including any photographs he may have had.


  1. I am satisfied that the grandfather knows of the whereabouts of J and that he could organise, if he so chose, to ensure her return to the UK, her country of habitual residence immediately. Accordingly, I find that J is alive and will make a raft of orders designed to ensure her return to this country as soon as practicable.


I know that private law proceedings can get vitriolic, and even have false allegations thrown around, but telling a father that his daughter is dead sets something of a new low.

Mostyn-tacious – a judgment that makes your temples throb

 The case of Re D (A child) 2014 presented Mostyn J with a very very serious issue to try.

 The child, D, was profoundly unwell, with a great deal of problems.

 A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen – she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.

 On 2nd July 2013, there was a suspicion that D’s mother had deliberately turned off the tap which controlled the oxygen supply to D.

 There ended up being three, and only three possibilities


  1. The tap had not been turned off, and the medical staff who believed that it had were wrong
  2. The tap had been turned off, but it had been done so accidentally by a student nurse J
  3. The tap had been turned off deliberately by the mother



It is fairly easy to see that if a student nurse had made such a dreadful mistake, that would have some consequences. Likewise, if the Court were to find that mother had done so deliberately that would have very serious consequences for her.  Therefore, if the medical staff who believed the tap had been turned on were wrong, that would be important to know.


The police had undertaken a forensic exercise, but the only DNA on the tap was D’s herself. Obviously D was not capable of touching the tap, so the DNA would have been transferred there by another person touching the tap. So, the forensic evidence did not really help one way or another.


Here’s where things start to get complicated. Obviously, before you move to the identification of a perpetrator  (the whodunit exercise), you first want to establish whether anyone did anything.


Mostyn J indicated that he was satisfied that it was more likely than not that the tap HAD been turned off.


As he then pointed out, once he had found that it was more likely than not, the binary approach turns that into a probability of 100%.  Once a Judge finds that X event was more likely than not to have happened, then it happened.


The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.


And moving onto the ‘whodunnit’ part, the Court no longer takes into account that there was doubt about the first element, because it is a proven fact.  [i.e once the Court has found as a fact that an injury happened, then on considering who perpetrated it there is no longer a final option of “nobody did anything”]



Mostyn J was clearly in difficulties with that. He provided some probabilities, purely by way of example.


  1. Counsel for the Local Authority asks me to consider scenario (i) first. She invites me to find first on the balance of probabilities that the oxygen supply was indeed turned off and that Nurse G is not mistaken about that. As I will explain, I accept that submission notwithstanding that I have some serious concerns that I may well be wrong. I will find on the barest balance of probability that the supply was turned off. I appreciate that in a different context in Re B (Care Proceedings: Standard of Proof) at para 44 Lady Hale stated that “it is positively unhelpful to have the sort of indication of percentages that the judge was invited to give in this case”. However I do not think that prevents me from indicating, only for the sake of example, that the probability that the supply was turned off was 55% (or as the mathematicians would say P = 0.55 and Q = 0.45). Indeed, were I not to do so I believe that a serious injustice may well arise in this and other cases, for the reasons that follow.
  1. If I approach the exercise in the staged way suggested by Counsel for the Local Authority then the 55% probability which I ascribe to scenario (i) is converted by reason of Lord Hoffmann’s binary method of judging to a 100% certainty (or P = 1). What is a mere likelihood (in the true sense of the word) is transmuted into a certainty. The 45% probability that the oxygen supply was not turned off simply will not feature in the second stage which inquires into who turned it off.



What he then says, is (and indicating that he ascribes these percentage values purely for illustration) – what if the Judge then thinks that between the two remaining probabilities  (the student nurse did it v mother did it) he ascribes a 60% chance to the student nurse and 40% to mother…


On the traditional approach, having established that someone turned off the tap (it is more likely than not that someone did, so it becomes a judicial fact), one would then just find that it was more likely than not that the student nurse did it accidentally.


But if you sit down and do some maths, as Mostyn J did


Well, you then end up with


1.         The chance that the tap was not turned off and it was a mistake                        45%

2.         The chance that the tap was turned off by the student nurse 33% [that being 60% of the 55% chance that the tap WAS turned off]


3.         The chance that the tap was turned off by the mother       22%  [that being 40% of the 55% chance that the tap WAS turned off]


[That adds up, as probabilities must, in a closed system where there are no other options, to 100%.  And the largest of those probabilities is that the tap wasn’t turned off – although none of them hit the magic 51% that would show that it was MORE LIKELY THAN NOT]


As you can see, you get two contradictory results, depending on whether you approach the three possibilities in a LINEAR way (deciding first whether the tap was turned off, and then who did it)  or whether you calculate the probabilities of each event and THEN look at which is the most likely.

What is being illustrated here, is that if, instead of a two stage process

1. Did the event happen?

2. Who did it?

One compresses that into a one stage process

1. Is it more likely than not that person x did event y ?

 You can end up with two different answers.


That led Mostyn J to form these two conclusions


 I have already indicated that on the barest balance of probabilities Nurse G was right to deduce that the oxygen supply was turned off. The grip on the tap in the off position is distinct if slight. She has been consistent in her contemporaneous statements. She is an experienced and meticulous nurse. On the other hand, she accepted that this may well have been an event where the oxygen saturation level fell even though the oxygen was on, and that she may have jumped to a conclusion. There was a great drama happening and attention to detail may have been wanting. Having considered the matter very carefully I am satisfied, just, that the supply was turned off, but I do record that my doubts are very real.


[i.e that the Court finds it was more likely than not that the tap WAS turned off, although there’s a significant possibility that it wasn’t.]


But then


Having weighed all the evidence very clearly I conclude on the balance of probabilities that if the supply was turned off the mother did not do it. In the light of Lady Hale’s strictures I do not ascribe a percentage probability to this finding but I am confident in it. But it does not follow from this finding that I am concluding that J did turn the supply off by accident. Far from it. A correct application of the laws of probability leads me to conclude that in relation to her also I am not satisfied on the balance of probability that she accidentally turned off the supply.



[Explicitly finding that IF the tap was turned off, mother did not do it, but also making clear that this does not mean that the only remaining of the three possibilities – that the student nurse, J, did it, was what the Court found. In fact, that this possibility is not found either. ]



I think (deep breath) that the finding actually ends up being (though this is never baldly stated)


Whilst it appears that it is more likely than not that the tap was turned off, once one factors in the doubt about this, it is not more likely than not that the tap was turned off EITHER by  J, the student nurse, or by the mother, and thus no findings can be safely made against either mother OR J the student nurse.



I can see what Mostyn J is getting at here, but it is clearly problematic that a Judge faced with the exercise of hearing the evidence about a very grave allegation ends up not finding that any of the only three probabilities is more likely than not to have happened.  You end up with an odd situation that the Judge basically hints that the MOST likely of the three explanations is that the tap was not turned off, even though the only thing that he found WAS more likely than not was that the tap WAS turned off.


A problem here is that the case before him didn’t easily settle into a Lancashire finding – i.e that (i) it is more likely than not that someone turned off the tap (ii) the Court can’t identify the perpetrator, but that the only two possibilities are the student nurse J and the mother and neither can be safely excluded


The reason being that the ‘motivation’ for turning off the tap is different for the two potential perpetrators – one is an accident, and one is deliberate. So a Lancashire finding doesn’t really resolve anything.  [It is, at least arguable that if the scenario had been that either mum or dad had deliberately turned off the tap and nobody else could possibly have done it, then, a Lancashire finding would have been made]



The other problem is that whilst the numbers used by Mostyn J are arbitrary, for illustrative purposes, the residual impression is that Mostyn J considered that if the tap HAD been turned off, it was much more likely to have been by the student nurse than by the mother, that being caused simply by the numbers he plugs into his calculations.


That residual impression is quite a big deal for the nurse in question, and I wonder whether the human importance of what was being deliberated here got somewhat lost in the maths.

 I wonder if these arguments are going to be imported into other cases, or whether Mostyn J is pretty much the only Judge who is going to divert from the standard way of dealing with findings.

One thing is for sure, counsel appearing before Mostyn J in finding of fact cases would do well to read up a bit on probability theory and bring a calculator (and perhaps some Migraleve).  




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