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Category Archives: fact finding

An argument about publication of a judgment

 

Wigan Borough Council v Fisher and Others 2015

Again, Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/34.html

I think this is the first reported authority on how to deal with transparency and publication of a judgment where one party objects, following the President’s transparency guidelines. The first and most important thing to say is that the High Court held this:-The question of whether a judgment should be published is an integral part of the proceedings from which it arises and I consider that where a party is legally aided, any work that is necessary to contribute to the court’s decision on publication should normally be covered by the party’s legal aid certificate.There were care proceedings about a little girl named A, who was in foster care but eventually went back to live with her mother. The central theme of those proceedings was the very tragic death of A’s sister Evie.

  • The proceedings arose because of the death of A’s sister Evie at the age of sixteen weeks on 21 February 2013. During her short life, she had sustained a number of serious injuries.
  • My fact-finding judgment was given on 6 December 2013 at the end of a hearing lasting eight days, during which each parent blamed the other for Evie’s injuries. My conclusion was that they had been caused by the father and that the mother should be exonerated. There was no appeal and the proceedings ended.
  • Mr Thomas was then prosecuted for causing grievous bodily harm to Evie. On 29 October 2014, he was acquitted by a jury at Liverpool Crown Court. The trial was reported in the press.
  • On the day of his acquittal, Mr Thomas gave an interview to a journalist in which he said “All I ever wanted to do … was to prove my innocence and now I have done that.” This interview, illustrated with a photograph of Mr Thomas holding a photograph of Evie, was published in the Wigan Observer and in the Daily Mail.
  • On 9 December 2014, a Coroner’s inquest reached an open conclusion, formerly known as an open verdict

 

The issue of whether the fact-finding judgment should be published was therefore an important and live one. Firstly, the name and face of the father was known to the media, as was Evie. Secondly, there was public interest in what had happened to Evie. Thirdly, the combination of the care proceedings (which remained confidential), a criminal trial (which was in the newspapers) and an inquest (which had been reported) might lead people to erroneously conclude that if the father had not hurt Evie then mother must have done.  Equally, however, father who had put himself in the public domain after having been found Not Guilty in a jury trial would obviously not want a finding of fact judgment which held that he was responsible for Evie’s death coming into the public domain.

 

  • To avoid the risk of prejudice to the criminal proceedings, I had deferred a decision on the publication of the fact-finding judgment. In November 2014, when those proceedings had ended, the parties referred the matter back to me. They initially suggested that an anonymised version of the judgment could be published, edited in such a way as to protect A’s identity.
  • I did not consider that this was realistic. The criminal trial and the Coroner’s inquest had taken place in public and substantial information about the family and the surrounding events had appeared in the press. This information was to all intents and purposes the same as that considered in greater detail in the family proceedings, except that this court’s conclusions were not reported. It would therefore be impossible for an anonymised fact-finding judgment to be published without it immediately being linked with this family. I therefore asked the parties for further written submissions by 13 January on the following possibilities:

 

(a) That the judgment should not be published at all.(b) That it should be published in an un-anonymised form.

(c)  That it should be published in an un-anonymised form, accompanied by a reporting restriction order preventing the identification of A (in which case an application would have to be made and the media notified in accordance with the Practice Direction).

(d) That it should be published in an anonymised form with workable accompanying directions that could be understood by the media. 

 

The Judge discussed the transparency guidance and the purpose of it

 

  • A salient purpose of the guidance is to promote understanding of and confidence in the proceedings of the Family Court. But beneficial though that goal is, it is not an end in itself. Rather, it is part of a necessary process to ensure that the rights of individuals and the public, referred to above, are properly balanced. That cannot happen if confidentiality in the proceedings of the Family Court, a public body, is allowed to trump all other considerations. A balance has to be struck in each case, using the guidance as a valuable aid. There will still be cases where, notwithstanding the guidance, publication is not permitted, and other cases where the judge will authorise wider publication than that contemplated by the guidance.
  • The guidance has had a marked effect. In 2014, its first year, over 300 judgments at High Court level were posted on the Bailii website, together with 160 judgments by other judges. These numbers are a very substantial increase on previous levels of publication, particularly in relation to judgments in local family courts. As a result, there is a very considerable body of material available to anyone who wants to better understand the way in which our proceedings are conducted.

 

 

I will set out the parties respective positions – the LA wanted the judgment to be published, as did mother. The father opposed publication. The Guardian supported publication but sought safeguards.

 

  • The local authority supports the publication of the judgment in an un-anonymised form, except that the surviving children A and B should not be named. It submits that there is good reason to publish the judgment and no compelling reason to the contrary:
  • The fact that an infant has been seriously injured and has died in unusual circumstances is shocking and rightly becomes a matter of public concern. Questions are asked – Why? Who? How? Could the death have been prevented? If so, is someone to blame?
  • The mass of publicly available information is noted. It includes Evie’s name, details of her injuries and death, the names of both parents, their locations, ages and photographs. Any privacy and confidentiality has long since been breached. The only remaining confidentiality attaches to A, who has not been publicly identified.
  • Conclusions have now been reached in the criminal court, the Coroner’s court and the Family Court about the events surrounding Evie’s death. The outcome of two of the three is now known, but not the third.
  • Neither A nor her mother are likely to be unduly affected or destabilised by further publicity.
  • Knowledge that the mother has been exonerated could assist her and A.
  • A’s identity is not likely to become more widely known. There is no evidence that the press has done other than respect her privacy, and a reporting restriction order is not necessary.
  • Publication would show the rigour with which the Family Court investigates the death of and injuries to a child and how it arrives at its conclusions.
  • Where, as here, there is criticism to be made of professionals, it is in the public interest to know of this in the hope that lessons will be learned.
  • Anonymisation of the judgment would be utterly pointless, except insofar as the surviving children’s names are concerned. It would lead to confusion and questions as to why the Family Court was seeking to withhold information that is already public knowledge.
  • The mother supports publication of the judgment and does not seek any other protection beyond that suggested by the local authority, namely the withholding of the children’s names. She contends that there is a clear public interest in publication for these reasons:
  • The information already in the public domain is very extensive, as demonstrated by a collection of press clippings from the Internet.
  • She has been placed in a difficult position by the father’s acquittal and the publicity he subsequently sought. Given that Evie was undoubtedly assaulted, the result has been to cast suspicion on her. She has been approached by the media to tell her side of the story, but has refused. Following the Coroner’s proceedings, the Daily Mail report posed the question in the title to its coverage: “Father with battered baby daughter’s handprint tattooed over his heart was cleared of beating her. So how did Evie die?” The article goes on to state that the father sought to blame the mother during his criminal trial.
  • The Family Court proceedings are the missing piece from a jigsaw of information. The other processes have been reported. The mother feels strongly that somewhere within the public domain there should be an accurate report of what happened to Evie. In time it will be of value to A that the truth is known. She also feels that the publication of the judgment would help to bring matters to a close for the family.
  • The father opposes publication, for these reasons:
  • The guidance states that the names of family members will not normally be used. The metaphorical opening of the doors to the Family Court is aimed at exposing the family justice system, not the families who pass through it, to the light of publicity.
  • Identification of the perpetrators of crime is the purpose of the criminal courts, not the Family Court.
  • The reasons for care proceedings to be conducted in private continue to be sound. The care with which the courts protect the rights to privacy, even of those who are found guilty in the criminal courts, is shown in a number of authorities, to which detailed reference is made. A careful balancing exercise must always be conducted.
  • Any attempt to publish the judgment in an anonymous form is doomed to fail, as the family would inevitably be identified. Since an anonymised judgment cannot be published, there should be no publication at all.
  • Identification of the family would breach its right to respect for private and family life and would be fundamentally wrong. Naming the father would be an unwarranted interference with his rights. Publication may destabilise A’s placement with her mother.
  • Just because the father involved himself in media coverage is not a reason to stir matters up again. Republication can be as harmful as publication.
  • There is no wider public interest, such as may exist in cases of failures by statutory agencies.
  • The Children’s Guardian does not argue that there are compelling reasons for publication not to occur. She notes that
  • There has already been a great deal of publicity but that A has not been named, though reference has been made to “another child”.
  • Her primary concern is that the mother and A may be exposed to unwelcome scrutiny and distress as a result of publication that reveals the disparity between the outcomes in the criminal and the family proceedings.
  • She supports as many safeguards as possible being implemented to reduce interest in this matter. She would oppose publication that identifies A or further identifies Ms Fisher, or refers to the inherited condition Treacher Collins syndrome. Any reference to the Wigan area and the local authority should be removed , and the names of solicitors deleted.

 

Note that the Local Authority was in favour of publication even though professionals were criticised in the judgment.

 

The Judge decided that the judgment would be published, and will appear in 28 days (thus allowing the parties time to prepare themselves, and for any appeal).  I think that it must be right that where a father has gone to the Press and insinuated that mother was responsible for the death of a child, that the judgment showing why she was fully exonerated from blame ought to be out there. I suspect it won’t get the same exposure in the Mail as the previous story, I hope to be proven wrong.

 

Determination

 

  • Having given due consideration to all of these matters, I am in no doubt that the fact-finding judgment should be published and that the only restriction that is necessary is that the actual names of the children referred to as A and B (another child associated with the family) are not to be revealed. The rubric attached to the judgment is sufficient to achieve this restriction. There is no need for a reporting restriction order. The media can be relied upon not to identify young children gratuitously in circumstances of this kind.
  • I find that the relevant considerations point very much in the same direction.
  • The first consideration is that it is generally in the public interest for accurate information to be made available in such a serious case. The need is particularly pressing when the information now in the public domain is incomplete and distorted.
  • The second consideration is that the mother supports publication and it is only fair that she should be able to rely on the judgment to show that she was not responsible for Evie’s injuries. Non-publication would be an injustice to her.
  • The third consideration is that publication is unlikely to destabilise A and her mother. On the contrary, it is likely to improve their situation in the long run. It is clearly in A’s interests to grow up on a true footing, knowing that her mother was not responsible for her sister’s death and that her relationship with her father is as it is because of what he did. Any short-term disturbance that might possibly arise from publicity is greatly outweighed by the long-term benefits of the truth being known.
  • The final consideration is that the rights of the father carry little weight in the overall balancing exercise, given his conduct and his attempts to misrepresent the position to the mother’s detriment. If his submissions were correct, the law would be a screen to hide the truth. There is instead a public interest in the findings about the father being made known. The fact that they have been reached according to the civil standard in the Family Court as opposed to the criminal standard in the Crown Court makes no difference in this case. to prevent the truth being seen.
  • These conclusions are, as it happens, in keeping with the guidance. Paragraphs 16 (public interest) and 17 (serious fact-finding) are both engaged. Insofar as the naming of the family members departs from the normal approach, this is warranted under both limbs of paragraph 9 (party’s wish to refer to exoneration and public interest in identification of a person against who findings have been made).
  • I agree with the local authority that it would be futile to seek to remove identifying information in an effort to dissociate the Family Court’s conclusions from information already on the public record. The court should not stultify itself and any attempt to publish anonymously could only lead to bewilderment about what could and could not be reported. The Guardian’s submissions were made before the mother’s position was known, but were they to remain unchanged, I would prefer the positions of the local authority and the mother.
  • I do not agree with the father’s analysis of the purpose of the guidance. As I have explained, it is not narrowly concerned with the image of the Family Court but with the wider goal of achieving a proper balancing of all the rights that arise in these cases.
  • The fact-finding judgment, and this judgment, will be placed on the Bailii website 28 days from now, to allow time for all interested parties to prepare themselves and for any rights of appeal to be exercised.

 

 

Proof of facts – High Court guidance on disputed injuries

This is a very short judgment, with not a single word wasted, and it sets out not only a helpful summary of the state of the law on resolution of disputed injuries but clarifies some areas where there has been doubt and confusion.

It does not really need my ham-fisted attempt to summarise it, so I will simply alert you to its existence, and recommend heartily that you read it. [I am inferring that this judgment is setting out points of general principle arising from the Poppy Worthington case – that particular judgment of the facts in the case is not going to be published until the Autumn, when the re-hearing is underway]

 

BR (Proof of Facts) 2015

Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/41.html

Mr Justice Peter Jackson:

 

  • A fact-finding hearing into how a baby came to have a very large number of fractures took place in March and in April I gave a judgment that cannot be published at this stage. This short published judgment touches on three topics of more general relevance, described below.
  • The context is that the local authority alleged that the injuries were inflicted by the parents. They denied this and relied on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in the baby’s bones. Other expert medical opinion considered it more probable that the fractures and other appearances were the result of assaults. It was common ground that there is no known medical condition that might explain the fractures, but that the radiological appearances were highly unusual.
  • The topics that I extract from the fact-finding judgment are these:

 

(1) Proof of facts.(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015).

(3) An analysis of generic risk factors and protective factors.

Proof of facts

 

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.
  • Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.

 

(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.

(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.

(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”

I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

 

  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.
  • When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.
  • Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.

 

Evidence about pain response

 

  • In the present case, the medical experts commented upon the absence of an account by the parents of any pain response at the moments when the multiple fractures must have occurred. All the doctors stated that fractures are painful, whether bones are normal or not, and that a distinctive pain reaction would be expected from a baby when a bone breaks. The nature of the acute reaction might vary depending upon the bone. The nature of the chronic reaction in the hours and days afterwards might be confused with other childhood ailments.
  • The cause of the fractures was undoubtedly the application of force to the baby by an adult, who must have been touching the baby at the moments when the bones broke. The fractures did not occur spontaneously and the baby did not cause the injuries to itself. The question was whether the bones could have been weakened so that they fractured on normal handling.
  • On behalf of the parents, reference was made to an aspect of the judgment of HHJ Bellamy in Re FM (above). In that case, the allegation was that a mother was responsible for causing bilateral leg fractures to a child of just under a year of age. Accepting the evidence of Dr Allgrove, who was also a witness in this case, the judge found it possible that excessive use of a mid-strength topical eczema cream might have led to bone demineralisation and a propensity to fracture in a child with some degree of hypotonia and hypermobility of her joints. He concluded that the local authority had not proved its case and dismissed the proceedings.
  • The relevant part of the judgment concerns the judge’s observations on the medical evidence about a child’s likely reaction to a fracture at the moment that it occurs. A paediatrician had given evidence that it must have been “a memorable event”. At paragraph 115, the learned judge said this:

 

“As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation.”

 

  • Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
  • Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.
  • In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.

 

Risk factors and protective factors

 

  • On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

 

Risk factors

  • Physical or mental disability in children that may increase caregiver burden
  • Social isolation of families
  • Parents’ lack of understanding of children’s needs and child development
  • Parents’ history of domestic abuse
  • History of physical or sexual abuse (as a child)
  • Past physical or sexual abuse of a child
  • Poverty and other socioeconomic disadvantage
  • Family disorganization, dissolution, and violence, including intimate partner violence
  • Lack of family cohesion
  • Substance abuse in family
  • Parental immaturity
  • Single or non-biological parents
  • Poor parent-child relationships and negative interactions
  • Parental thoughts and emotions supporting maltreatment behaviours
  • Parental stress and distress, including depression or other mental health conditions
  • Community violence

Protective factors

  • Supportive family environment
  • Nurturing parenting skills
  • Stable family relationships
  • Household rules and monitoring of the child
  • Adequate parental finances
  • Adequate housing
  • Access to health care and social services
  • Caring adults who can serve as role models or mentors
  • Community support

 

  • In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.

 

Court of Appeal – split hearings aren’t to be used for ‘whodunnits’

Not their exact words, you understand.

These are their exact words:-

 

  1. The hearing at the end of which the findings were made was what is known as a ‘split hearing’ i.e. a hearing limited to a discrete issue of fact without a full analysis of the welfare context. Counsel for the parties before this court acknowledged that the decision to have a split hearing which was taken by a different judge when different advocates were involved cannot have been right given that the issue to be decided was perpetration in the context of an incident of harm, rather than whether the harm occurred.
  2. It is unnecessary for this court to do other than refer to the clear guidance on the point that has been firmly and repeatedly given by this court but just as repeatedly ignored, see for example In the matter of S (A Child) [2014] EWCA Civ 25 at [27] to [31]. There is no discrete issue that would determine the proceedings in a case like this where harm has been suffered and the perpetrator of that harm is unknown. The social work assessments of those in the pool of potential perpetrators may cast important light on the allegations that are to be determined and upon the reliability of those in the pool and the other witnesses and materials that are available

 

Re BK-S (children) (Expert evidence and probability) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/442.html

If you were wondering which appeal judge was standing up for Lord Justice Ryder’s lead decision in the little-loved Re S (a child) 2014 which effectively banished split hearings for anything other than the most serious case (even though split hearings were invented by the Children Act advisory committee and endorsed by the House of Lords)… well, you aren’t really wondering that, are you?

 

[If you are, then I would like to talk to you about my new business opportunity, where investors get to buy tonnes of gold for the price of grammes of gold. This gold will be all yours when the Sun enters its supernova phase.  The price of gold will likely to increase all the time that your investment is maturing, making this an even more profitable venture. It really is a once in a lifetime investment opportunity]

It is an interesting case in itself, a 6 month child who had been administered (by an adult) doses of an anti-psychotic medication over a period of time. It was established by toxicology reports and medical evidence that the child had been given this drug, Olanzepine, and that it had caused him significant harm. The only real issue was whether it had been given by father, mother or paternal grandfather.

 

The parents were separated, and thus there was quite a clear log of who had been caring for the child on particular days. And the expert called (and then re-called) was able to give quite detailed accounts about how the test results showed the level of Olanzepine, and how Olanzepine has a half-life  (i.e if someone takes 100 milligrams of  X time, there would be say 50 milligrams, and after 2X time, 25 milligrams, and so on), such that calculations can be done to work back from the level to calculate when the drug was taken. Or in this case administered.

The difficulty was that all of that information on half-life is based on adults. For a child of six months, the half-life might be different. It might react more quickly, or more slowly, or have greater symptoms.  The reference to Tanoshima here is the name of a study – both are on single children, because obviously there are ethical medical issues on giving anti-psychotics to 100 infants to see how quickly it comes out of their system.

 

  1. When Professor Johnston was recalled on 28 May 2014, the following oral evidence was adduced:

    “Q. [..] There are two reported studies. One that says a half life is 11.6 hours in a 28 month old child. The other one is 13.72 hours for a child of 17 months.

    A. Yes.

    […]

    Q. Can we safely assume – and I mean with almost certainty – that the half life of [Z] would have been less than 21 hours?

    A. I think that would be a reasonable assumption.

    Q. Yes. I think you also said in your previous evidence that it would be a reasonable assumption to take the 13.7 in the Tanoshima case as well?

    A. Yes.

    Q. Would that be right? So if I were for instance to take 18 hours, that would be safe as well?

    A. Yes.”

  2. The judge accepted the evidence that was adduced in the following passage in his judgment:

    “Professor Johnston agreed that to assume a half life between 21 and 13.7 hours would be likely, but that working on a half life of 18 hours in those circumstances would be safe.”

 

On reading that, I can instantly see the appeal point. If the half-life was taken by the Judge as being probably 18 hours, but between 13.7 hours and 21 hours, and that took one person OUT of the pool of perpetrators and made it more likely than not that the other person administered the drug, then an alternative reading of the evidence given might be

“So it is very difficult to be sure of the half-life of Olanzepine in a child of this age, because the research deals with only two children, and both are much much older. It would be unwise to place reliance on hard and fast numbers to resolve this problem”   (my words, but I guess that’s what counsel had been driving at with those questions)

The Court of Appeal considered that the Judge had not been wrong to follow the expert evidence and to make the finding that Olanzepine had been administered to the child on a date when mother had been in hospital with the child and father had not been present – thus that the mother had been the person who administered the drug to him.

My blood runs wild (and not as a result of angels in the centrefold)

 

I often kvetch about the President’s burning desire to make the welfare of the bundle paramount (which on the ground is resulting in me spending hours of precious time removing actual EVIDENCE that the Court has ordered be filed from bundles, negotiating with other sides about what statements should be removed, and bracing myself for the inevitable complaints at the final hearing that the whole case is now going to turn on that document), but I do think that His Honour Judge Wildblood QC has a point here.

 

Re A and B (children : fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B48.html

[Of course, when the Judge reads the next blog post, about Ryder LJ’s further pronouncement in the Court of Appeal on fact-finding, he will observe that fact finding hearings are still effectively banned and thus the hearing ought to have never happened, but that’s by the by]

 

i) The bundles. To deliver eight lever arch files to a judge on a Thursday evening for him to start a case on Monday morning is unrealistic where the summarising documentation is inadequate. To those who did so I pose this question: ‘How long would it take you to read that amount of material?’ During the hearing I asked what the advocates’ expectations were of me in relation to enclosures M, N, P and Q which extend to over 1,250 pages which had not been adequately summarised (medical records, Local Authority records etc) and the discussion ended with me understanding that I was asked to read them and summarise them myself during the hearing. That would have been manifestly unfair because the advocates and parties would not then know what I was taking into account when reaching a decision before I did so and would not have an opportunity to comment on things that I discovered. In the end I required a list of pages to be given to me from enclosures M and N and read those. I read the whole of enclosures P and Q over two nights (a total of 542 pages). If I had attempted to read 1,250 pages and each page had taken an average of one minute to read and summarise it would have involved over twenty hours of reading mid-case on part only of the documentation that was filed.

ii) The case was given a three day time estimate which was never realistic, particularly if I was going to be expected to read that amount of material during it. As it is I have dealt with the case in five days and have typed this judgment during the fifth day.

iii) The bundles that were produced were in disarray. Many pages were blank. Many reports were repeated. Some pages were upside down. The medical records were not in chronological order and switched between years randomly. Important documents were not included.

 

Even the purpose of this hearing was somewhat hard to fathom – there were two children A (aged 10) and his half-brother B (aged 7 months). A was in care for other reasons and B was living happily with his mother, about whom no complaint was made. The allegations related solely to the father – there was no proposal that the father move back in with the mother, and his contact was supervised twice per week. There were a wide range of allegations made against the father by the Local Authority (most having emerged from A himself).

  1. In this judgment I am critical of the Local Authority. I list the main reasons why at the end of the judgment. I consider that it has approached this hearing without any adequate consideration of the quality of the evidence that it could place before the court. Its approach has been unrealistic and lacking in analysis. As a consequence, scarce resources have been wasted.
  2. This has been a five day hearing which came into my list two working days before it started, bearing eight lever arch files. On the working day before the case started I held a telephone directions hearing in which Advocate B, Counsel for M2, rightly questioned the proportionality of it proceeding but was told by the Local Authority that it thought the hearing to be necessary; I had not been able to read enough of the papers overnight to intervene. I regret that.
  3. Given the outcome of this hearing I think that very little has been achieved from it. He oldest child, A, is in care and, by mutual agreement, does not have contact with his father, his mother or M2. There is very clear evidence that B’s mother cares for B well. She and B have lived together in a residential placement since 19th December 2014. Within the parenting assessment undertaken by the Local Authority at E106 the following is stated at E125 : ‘I do consider that B’s mother can care for him adequately in the community at this stage…[E126]…She has been unfailingly polite, patient, co operative and compliant throughout this assessment. She has responded to advice and guidance with polite interest but [we] have not been entirely convinced that she welcomed it…[E131] …there have been no concerns about her care and he is a healthy, happy baby who is thriving’. B’s mother has been assessed over a long period of time. The father, from whom she is now separated, has contact with B twice a week under supervision. The Local Authority’s position is that B’s mother has been assessed whilst in her current placement and that ‘no concerns have been raised with regards to her basic care of B’.
  4. As will be plain I have rejected most of the allegations that the Local Authority has made. Much of the Local Authority’s case rested on things that A has said against the father. In the telephone directions hearing that I held before the case started I enquired whether the Local Authority regarded A as a reliable source of evidence. I was told that it did; as the evidence (both expert and factual) shows, that was totally unrealistic. When I asked the child’s solicitor what the guardian’s assessment was of the reliability of A I was told that the guardian was away (and has remained away during this hearing) and so it was not possible to answer my question, a response that does not require further comment.

 

[Although that response does not require further comment, I must remark that there is considerable restraint being exercised there. On a case that turns largely on the reliability of A as a complainant, it is astonishing for the Guardian or those representing her not to have a view as to that reliability.]

 

The Judge was also rightly unhappy that the chronology provided was wholly inadequate. The absence of a full chronology meant that several vital questions were unanswered and could only be established by a trawl through the eight bundles of evidence.

 

  1. Chronology – As I state at the end of this judgment when I deal with matters of practice, there was no adequate chronology in this case to summarise the evidence and put matters in context. As Lady Hale observed in a case relating to another area of family law (home ownership), context is everything. For instance (and this is an abbreviated list) i) What preceded the ABE interviews? ii) When did the child make the first allegations against the father? iii) When was the firebell incident (when A says in interview the father began to abuse him physically)? iv) What sexualised behaviour did the child exhibit and when? v) What other false allegations had the child made and when? vi) What state was the child in when he came from Portugal? vii) What happened in the first set of proceedings which ended in August 2013? viii) What was A’s weight loss (see above)? ix) When did A make the first allegation against M2? x) What role did M2 play in A’s care? xi) What does the information from the school demonstrate when it is put into a schedule (I had to require production of the school / home books and the ‘SF’ file was handed in at the start of the hearing)?
  2. It has been left to me to put the evidence in order (and I say more about this at the end of the judgment). That being so I think that it is essential to put the case into its chronological perspective if any sense is to be made of it and I have done that by putting the evidence into chronological order. The result is a judgment of much greater length than I would have liked which has taken me a very long time to produce. I have typed it within the five day listing that I have had to allow for this case

 

The judicially composed chronology is excellent, and completely necessary to make proper sense of the case.  Of course, whilst it is excellent and necessary, it breaches the President’s guidance on chronologies, by first going back further than 2 years in time, and second it is far longer than the President’s mandate.

I can’t say that I’ve ever heard of a Judge having to produce their own chronology, however. That is not an activity that is likely to make him warm to the applicant’s case.

 

The Judge also felt that none of the professionals involved – either the professional clients or the lawyers had properly attempted to analyse the evidence. With eight bundles having been produced, everyone had clearly been very dilligent in identifying bits of paper that needed to be collected up and distributed, but somewhat lacking in the process of analysing where all this evidence would take the Court.

v) The advocates themselves had not seen relevant material. The papers from the previous proceedings were produced late and omitted important material, such as the threshold document from the 2013 proceedings. Nobody knew, when the case started, what had happened about the January 2013 allegations within those proceedings. There was no mention of the parenting assessment, the psychological report or the guardian’s report in the chronology. I had to call for the threshold document from those proceedings. The chronology jumps from 21/01/13 to 01/05/2013 then to 10/10/2013 and therefore somersaults over the 2013 proceedings. That is just not sensible.

vi) It was perfectly plain to me that there had been no realistic assessment of the evidence that was being placed before me by the Local Authority, upon whom the burden of proof rests. The Local Authority is the prosecuting authority and has the burden and responsibility of proving the case that it brings. There are many examples of this. A particularly obvious one is that A says that his father started to hit him after the firebell incident in July 2013 – what impact did that have on the January 2013 allegations against the father? The sexual allegations against M2 should have been put in the context of the other material, not least the similar and false allegations that A had made against others. The chronology that I have put together (which can be compared with the Local Authority chronology) speaks for itself. Huge parts of relevant and important evidence had been omitted in the Local Authority’s analysis.

vii) There has been no overview by the Local Authority or by the guardian (and I deliberately include the guardian and the child’s solicitor in this) about the reliability of the child’s evidence. That is not the fault of this child. But it does mean that before presenting a case that is so heavily dependent upon what the child has said it is of obvious importance to consider the reliability of the child as a source of evidence. I held a telephone conference hearing on the Friday before the case started and I asked for the Local Authority’s assessment of the child’s reliability. The guardian’s solicitor told me that the guardian was not available and she could not take instructions on that issue. The Local Authority counsel told me that the Local Authority viewed A as a reliable source of evidence. It was plain that there had been no proper assessment of this issue and that there had been no proper thought given to the many untrue allegations that this child had also made. That is not just unfair to the parties but it is unfair on the child whose future should not be subject to such a process.

viii) The important evidence relating to A’s weight and the condition of his feet and hands was not summarised or analysed before the case started. I created the weight chart which I extracted from the papers. Other than that the important job of seeing what the child’s weight had been had been covered by Dr GR in his report. If the point was to be made and proved it needed to be supported by evidence from the medical records. The child’s solicitor tried to cross examine on this point without any information from or reference to those records and, in doing so, sought to make a point that was wholly invalid. As to the state of A’s feet in January 2014 it was necessary for me to require an analysis of the level of pain that the child would have felt at the time that the blisters etc were developing (would it have been obvious to his carers that he was so injured?); I very nearly made a totally false assumption that the child would have been in obvious pain (as to which see Q10).

ix) Despite the abundance of evidence about the psychological difficulties that A has, there is no evidence that any consideration was given to how A should be interviewed in the light of his very specific difficulties. The questioning that I saw gave no demonstration at all of questioning being crafted by reference to those difficulties or in a way that reflected the very large amount of medical information that was available in relation to him.

x) There was a wrongful absence of enquiry into the interview that took place on 15th January 2013 [the M10 interview]. There was no recording of it or any evidence of an investigation arising from what A said in it. There is no point in me expressing my opinion about the standard of practice that those absences demonstrate because the points are too obvious.

 

 

None of the findings sought by the Local Authority (and supported by the Guardian) were made. It is therefore theoretically possible that either of them could appeal. I really wouldn’t….

 

 

 

 

The spine was white like snowflakes

No one could ever stain

But lifting all these bundles

Could only bring me pain

 

Hours go by, I’m flicking through, I’m reading J nineteen

But there’s no hint of threshold, on the pages in between

 

My blood runs wild

I can’t believe this crap they’ve filed

My blood runs cold

The chronology is not that old

Chronology is not that old

 

Na na na na na na na na na

 

(Apologies to the J-Geils band)

Crime and care

 

This was an appeal decision, which really arose from the Court in care proceedings making findings that sexual abuse allegations against a father were proven (and then making Care Orders and Placement Orders) and the criminal trial then going down the route that the allegations were concocted and the jury unanimously acquitting the father.

The father applied for a re-hearing of the care proceedings.  As part of that re-hearing, it was vital to see exactly what the Judge in the criminal proceedings had said as part of his summing up to the jury before their acquittal. That information was very slow in coming forward and the Judge in the care proceedings refused father’s application for an adjournment to get that evidence.

 

Thus resulting in the summary of this case being :-

Appeal against refusal of an application for an adjournment of an application made by the appellant father for a re-hearing of care proceedings. Appeal dismissed.   {via Family Lore}

John Bolch at Family Lore managed to compress the nub of the appeal into a very short space, with remarkable economy.

Re U (Children) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/334.html

 

[I have to say that I don’t entirely agree with the Court of Appeal on this one. I’m not saying that I would necessarily have overturned the original findings, but I would have wanted to see exactly what the Judge in the criminal Court directed the jury, and probably the transcripts of evidence in the criminal case before deciding whether this was important fresh evidence]

In the care proceedings, there had been a number of allegations including of physical abuse, but the allegation in question was of a sexual nature.  The parents case was that these allegations were false and had been put into the child’s mind by a community worker named Raj.

 

  1. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
  2. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
  3. The focus in both the care proceedings (in relation to ZU’s allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
  4. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj’s evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
  1. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as “utterly unconvincing witness” clearly “partial and biased”. He did not accept her evidence and believed it likely that she had been “put up to it by the father or someone on the father’s behalf”.
  2. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls’ evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.

The Judge in the care proceedings thus went on to make findings of fact that ZU had been sexually abused by the father.

There were, as I said earlier, other issues that went to threshold, including a finding that the children had been hit

 

The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

“Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children.”

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father’s instruction. The judge made the inevitable finding that the mother had failed to protect the children.

 

But, staying with ZU’s allegations of sexual abuse, the Judge in the care proceedings had concluded that the parents explanation that Raj had concocted these allegations and put them in ZU’s mind was not correct.

 

By the time the criminal proceedings took place, two months later, the mother, father, ZU and Raj all gave evidence and the father was acquitted of the sexual abuse allegations.

He then made an application for a re-hearing of the care proceedings, on the basis of what had happened during the criminal proceedings.

“5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of “not guilty” and the father was acquitted.”

Remember that the criminal court is applying a higher standard of proof   [What most people still think of as ‘beyond reasonable doubt’ but is actually now to convict the juror must be persuaded ‘so that they are sure’ in percentage terms probably high 80s, if not 90s]  rather than the civil standard of proof in care proceedings [more likely than not – i.e 50.01% or more]

 

But this seemed to be more than a Judge just indicating that it was impossible to be sure, and verging towards an indication that the evidence of Raj and ZU was such that it would be unsafe to rely on it due to the flaws in it.

When considering the father’s application for re-hearing then, the substance of what the criminal Judge had said was vital.

  1. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

    And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

  2. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant’s solicitors some weeks previously.

 

On 12th December then, the father asked for an adjourment to get this evidence. The Court refused the adjournment and went on to consider the father’s application for a re-hearing in the absence of that evidence.

  1. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

    The Refusal of the Adjournment

  2. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

    “[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors.”

  3. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.

 

Of course, in a practical sense, the delay for the children still occurred, since the decision was appealed, and the appeal Court didn’t hear the case until mid March. It might have been a far less disruptive delay to have waited until mid January to actually get the transcript of the Judge’s summing up…

 

The Court of Appeal accepted that any decision made by the Judge hearing that application would be imperfect.

  1. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father’s application.
  2. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children’s future; strain which would necessarily impact on the family environment to the detriment of the children.
  3. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU’s case, she might have to give evidence again.
  4. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
  5. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be “imperfect”.

 

With that in mind, the Court of Appeal considered that there had been a proper balancing exercise about the pros and cons of the father’s application for an adjournment and the Judge was right to refuse it

  1. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father’s case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father’s case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
  2. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.

 

[It is really hard for me to put out of my mind that the reason father’s case was prejudiced here was not due to any inaction on his part or those acting for him, but on the delays in the Court process of obtaining a transcript that was so vitally important. The Court of Appeal have remarked many times on how slow the transcription of judgments for appeals has been and how the system gets bogged down. Here, that transcript was not just an informative document but a piece of evidence that the father was deprived of making use of, because the system is so unfit for purpose. That leaves a very bad taste in my mouth]

 

Having lost the argument that the application for an adjournment should have been granted rather than refused, the father was inevitably going to lose the second part of his appeal that the re-hearing should have been ordered.

  1. Application for a rehearing
  2. By Ground 5 the father seeks to appeal the judge’s dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
  3. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

    …Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

  4. In considering the first stage the President said [33]

    ……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

  5. The judge explained that there was no evidence to support the father’s submission other than his own assertions about what had happened at the trial The judge’s decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father’s case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
  6. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
  7. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
  8. I would accordingly dismiss the father’s appeal in relation to the substantive application for a rehearing of the finding of fact hearing.

 

I personally think that if the father had been able to obtain a transcript from the criminal trial showing that an experienced Judge had seen ZU and Raj crumble under forensic examination and shown themselves to be unreliable witnesses who had concocted this story and more importantly that ZU had accepted in her evidence that she HAD fabricated the allegations, that would have been enough to meet the test.

Of course, it might be that the transcript would, if obtained, fall substantially short of that. Perhaps father was over-stating it. Perhaps he was completely right. We will never know. It doesn’t seem that it even materialised for the Court of Appeal hearing.

Have the Courts here really upheld the father’s article 6 right to fair trial? Given that father was deprived of the key piece of evidence not because he was dilatory or hapless, but because the Court system for getting a vital transcript was so hopeless.

Well, they have upheld his Article 6 rights , because the Court of Appeal say so. But I haven’t read many Court of Appeal decisions that made me feel so squirmy and uncomfortable  (Cheshire West in Court of Appeal  was the last one I felt like this about)

The ‘were babies murdered’ case

 

I know that this has been attracting a lot of attention of my commenters, and that it has been quite divisive. As I said at the time, I didn’t know the full facts and from what little I had it sounded like an incredible story that would require compelling evidence to be true.  I don’t think that any of the cases alleging Satanic abuse have ever amounted to be anything more than fantasies or concoctions.

The High Court, having examined the evidence reaches the conclusion that none of the lurid allegations are true. And also that the people who had been shouting the loudest about the allegations had abused the children to get them to say these things, had been giving them cannabis and had caused them injuries.

 

P and Q (Children : Care Proceedings: Fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/26.html

 

I am going to be clear from the off here – whilst I am happy for people to comment and debate on this story, I will take down any post that asserts or insinuates that the people named in this judgment as being wholly innocent of these dreadful accusations has done any of those things. There are probably dozens of places on the internet where you can do that if you want to, but this won’t be one of them. Nor will I allow any comments which name the children. [If you want to say “I believe the mum and Mr Christie” then I think you are utterly wrong about that, but I won’t stop you saying that]

 

 

I know that there will be people who remain convinced otherwise, who have seen the films for themselves, made up their own minds and will view this as being a cover-up. Nothing I say is likely to change your mind about that.

 

For those of you who don’t know, what is this case all about?

  1. The subject children have been named repeatedly on the internet. Their photographs and film clips in which they feature have been published and re-published widely. Filmed police interviews of the children have been uploaded on to publicly accessible websites; so, too, intensely personal information relating to both children. As at 10 March 2015, more than 4 million people worldwide had viewed online material relating to this case.
  2. It is inevitable that a large proportion of those have a sexual interest in children. Any rational adult who uploads film clips to Youtube featuring children speaking about sexual activity must be assumed to realise that fact.
  3. I considered but ultimately rejected the suggestion that the children’s names should appear within the judgment. My priority is to protect them from further harm of whatever kind. Those who have posted material identifying the children have done so with flagrant disregard for their welfare interests. I see no good reason for adding to the damage already done. Only those with prurient or unhealthy curiosity will take steps to identify the children. My faith in humanity indicates that the overwhelming majority of individuals will do nothing because they, like me, have no interest in inflicting further harm.
  4. In the period before 13 January 2015, there had been some relatively limited online publication of court and other relevant material. It had been my hope that after discussion with the mother and her McKenzie Friend on 13 January, there would have been withdrawal of material from the internet. Since about 26 January the volume posted in a variety of formats on different sites has increased markedly; and the claims made against the father, the children’s former head teacher, other teachers, professionals and a very large number of parents at the children’s former school have proliferated.
  5. Many of those individuals are now living in fear because they have been identified on the internet as abusers of children and their contact details including telephone numbers, home and email addresses have been published. Lives have been disrupted. Several of those implicated have received malicious, intimidating ‘phone calls and emails at all hours of the day and night from all over the world. For example, “Hey cock. We’re coming for you. You scum paedo.
  6. It has been necessary for the police to protect worried parents and children at the gates of the school in Hampstead at the centre of the allegations. Prospective parents have wondered whether to withdraw their children from allocated places. Existing parents have been uniformly supportive of the school and every member of the teaching staff.

 

The Court had been asked as part of care proceedings, to consider all of the evidence and reach conclusions as to whether these allegations were true.

 

They all arose from two children, P and Q, and specifically from films that were taken of them making very strong allegations, principally about their father but then involving many other people.  These films had been taken by their mother and her partner. The films had then found their way onto the internet and had been viewed by millions of people (many of whom took them at face value)

 

  1. This necessarily lengthy judgment has one essential purpose. It is to provide definitive conclusions upon a quantity of evidence at the end of a thorough-going hearing. I have surveyed the relevant history as well as all of the significant developments in a wide-ranging police and social services investigation. Everything of importance on all sides of the dispute has been considered so as to enable me to arrive at authoritative findings.
  2. These are care proceedings brought by the London Borough of Barnet relating to two children, P and Q who are 9 and 8 years old respectively. Their parents are Ella Draper and Ricky Dearman.
  3. In September 2014, lurid allegations of the most serious kind were drawn to the attention of the Metropolitan Police. In a variety of ways, it was suggested that P and Q were part of a large group of children from north London who had been sexually abused, made to abuse one another and that they had belonged to a satanic cult in which there was significant paedophile activity.
  4. Specifically, it was said that babies were supplied from all over the world. They were bought, injected with drugs and then sent by TNT or DHL to London. The assertions were that babies had been abused, tortured and then sacrificed. Their throats were slit, blood was drunk and cult members would then dance wearing babies’ skulls (sometimes with blood and hair still attached) on their bodies. All the cult members wore shoes made of baby skin produced by the owner of a specified shoe repair shop.
  5. Children, it was alleged, would be anally abused by adult members of the cult using plastic penises or “willies.”
  6. Christchurch Primary School in Hampstead was said to be where the “main action” occurred but at least seven other local schools were named. East Finchley swimming pool was identified as one of the other meeting venues for the paedophile ring. Rituals were performed, so it was claimed, in an upstairs room at the McDonald’s restaurant where the “boss” allowed child sacrifice because he was a member of the cult. Human babies were prepared, cooked in the ovens within a secret kitchen and then eaten by cult members.
  7. It was alleged that the children’s father, Ricky Dearman, was the leader of the cult and that others included the children’s headteacher, Ms Forsdyke, another teacher, Mr Hollings, the priest at the adjacent church, a large number of named parents of other children, social workers, CAFCASS officers and police officers. It was said that, in all, more than a hundred people were involved in ‘doing sex‘ to the children.
  8. I am able to state with complete conviction that none of the allegations are true. I am entirely certain that everything Ms Draper, her partner Abraham Christie and the children said about those matters was fabricated. The claims are baseless. Those who have sought to perpetuate them are evil and / or foolish.

 

But, some people will be saying, the children said these things – they must be true, or why would they say them?

  1. All the indications are that over a period of some weeks last summer, P and Q were forced by Mr Christie and Ms Draper, working in partnership, to provide concocted accounts of horrific events. The stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is a strong word but it is the most accurate way to describe what was done to the children by Mr Christie in collaboration with Ms Draper.
  2. The children were made to take part in filmed mobile ‘phone recordings in which they relayed a series of fabricated satanic practices. Subsequently, at the instigation of Abraham Christie and Ella Draper, the children repeated their false stories to Jean-Clement Yaohirou, Mr Christie’s brother in law, in a late night discussion. It lasted for about three hours; Mr Christie and Ms Draper did most of the talking.
  3. P and Q were ABE (Achieving Best Evidence) interviewed on 5, 11 and 17 September 2014. On the first two occasions, they supplied information about events they claimed had occurred, similar in their overall content to the mobile ‘phone video clips and audio recording. On 17 September, in ABE interview, both children withdrew their allegations. Each stated they had been made to say things by Abraham Christie, the mother’s partner, which were not true; and they gave very full details of the way in which he had secured their compliance.
  4. Ms Draper and Mr Christie have not participated by being present in court. I am as sure as I can be that their absence has been deliberate. They have chosen to remain away; but the internet campaign has continued. Countless online articles have been posted in which the truth of the satanic abuse claims is asserted repeatedly. Notwithstanding injunctions restraining Ms Draper and Sabine McNeill, one of her supporters, from publishing information from the proceedings on the internet or elsewhere, such material continues to be uploaded. Efforts to persuade internet servers to remove material have been of only limited value. As soon as information is removed by one provider, it emerges elsewhere.

 

You may pick up as you read the document, that the mother was not present in Court for most of the hearing, and no doubt a Telegraph journalist is already preparing a piece about how she was refused a voice. Just to clear that particular topic up – she was entitled to free legal representation, she had that representation and sacked them, she had a McKenzie Friend and refused to come to Court.

  1. The mother’s and Mr Christie’s participation
  2. In the initial stages of the proceedings, Ms Draper had the advantage of representation by experienced Solicitors and Counsel. On 10 December 2014, at court, she dispensed with her legal team. My first involvement with the case was on 13 January 2015. Dates were secured for this hearing as follows: 17 – 20 February, 3 – 6 and 10 – 12 March. On 13 January, the indications from Ms Draper were that once again she would avail herself of legal representation.
  3. Until 26 January 2015, the mother appeared as a litigant in person assisted by McKenzie friends. On 9 February my clerk notified the parties, by email, that there would be a hearing the following day. Ms Draper failed to attend court on 10 February when mandatory and prohibitory injunctions were made against her. Ms Draper has not filed further evidence nor any schedule of the detailed findings sought as directed by my order of 20 January. Arrangements had been made for her to attend at the offices of the local authority to collect the final bundle and Practice Direction documents. Ms Draper did not attend although her email communication had suggested she would.
  4. The oral evidence began on 17 February. At 08.51 that day, my clerk received an email from Ms Draper in which she asked permission for her McKenzie friend, Belinda McKenzie to represent her and her parents’ interests in court. Ms Draper stated that she had been “prevented from being present in the court” and that Ms McKenzie had her “formal instruction to convey (her) position.” Ms McKenzie reiterated that request at the beginning of the hearing. But, as I explained to Ms McKenzie, in circumstances where the mother herself was absent, the Practice Guidance relating to McKenzie Friends expressly prohibits such an individual from acting as the litigant’s agent or from conducting the litigation on her behalf. In Ms Draper’s absence, it seemed to me that there was no proper role for Ms McKenzie.
  5. In response to my inquiry, it was established that Ms McKenzie remained in contact with Ms Draper. She assured me she would pass on a message urging the mother to participate by coming to court and informing her that the hearing would continue in her absence. Outside court on 17 February, Ms McKenzie apparently indicated to the local authority’s legal team that Ms Draper was in the process of instructing a lawyer. However, at no stage, has there been any contact with anyone purporting to act on behalf of Ms Draper.
  6. The mother has remained absent from the court. Her partner, Abraham Christie was outside the front entrance of the building on 17 February as part of the group campaigning for the “return of the ‘Whistleblower Kids’ to their Russian family.” A witness summons was issued requiring his attendance to answer questions on Friday 20 February. Attempts to serve that summons were unsuccessful.
  7. Earlier attempts at securing Mr Christie’s participation in the proceedings because of the likelihood that the local authority would seek findings against him were wholly unsuccessful. A series of communications from the local authority’s Solicitor went unanswered.

There is no substance in the assertion that the mother has been prevented from participating at this hearing. If she had been arrested on 12 February in connection with harassment allegations, the overwhelmingly likelihood is that she would have been released on bail enabling her to come to court on 17 February. If she had been remanded in custody, I would have been in contact with the police and prison authorities so as to make appropriate arrangements for Ms Draper’s attendance at court.

 

The mother instead chose to fight the case on the internet rather than in Court.

 

  1. Within her position statement for 26 January hearing, written for her by Ms Sabine McNeill as she later revealed, the mother made a thinly veiled threat as to what would happen if the children “were not returned to their mother and grandparents with immediate effect.” Ms Draper stated that the consequence would be “high level embarrassment.” An open letter to Theresa May, the Home Secretary, posted on the internet, explicitly states that the Position Statement was “our offer NOT to expose this scandal in exchange for returning the children.”
  2. The clear message from recent events is that whilst Ms Draper is prepared to campaign using the internet she is not willing to take part in this inquiry.

 

The Judge goes through the detail of the films that were taken of the children in which the mother and Mr Christie draw these allegations out of the children. They make for very depressing reading. I haven’t the stomach or heart to put them all in. Please though, if you are immediately wanting to line up with the parents against the evil State and the corrupt and wicked Courts, read the judgment first and see if these are people that you really want to give your support to.

I’ll just give you the final bit

Towards the end of the recording there is a passage when the children and Mr Christie are all shouting, excitedly, “Kill, kill, kill.” Mr Christie urges the children to “Say it… Say it how they say it.” A. “Kill, kill, kill.” …. Mr Christie, “What’s the word that you say?” A. “Kill.” Mr Christie, “Say it more for me. I want to hear it…. I like the sound of it. Can you say it together, say it, let’s all say it together.” There is then repeated chanting of the word “Kill” and a little later of the phrase, “Kill the baby.” Once more Mr Christie urges the children on saying, “Let’s say it together. Let’s say it together. Kill the baby.” And they do.

 

The Judge, who had read everything, watched everything, and seen the witnesses give evidence, had this to say about the children’s presentation in the ABE interviews they originally gave to the police after the mother and Mr Christie made their complaint and provided them with films.

 

  1. Again and again, as I watched the interviews of 5 and 11 September my sense was that the children, for the most part, were in the realms of fantasy. There was an urgency and an excitement about what they were saying as the detail became ever more elaborate. It was as if they had been transported away from reality and into dream land. There were obvious parallels in what P was saying with some aspects of the story line in C.S. Lewis’ ‘The Lion the Witch and the Wardrobe.’
  2. There was no change in the presentation of either child when they described apparently horrific acts as experienced by them and others. There did not appear to be any emotional connection with what they were saying except that they seemed energised.
  3. The other significant deduction is that material supplied by P relating to the physical abuse of both children by Mr Christie in order to get them to talk should alert any sensible observer to the potential for false reporting.

 

 

The conclusions are stark

  1. Overall conclusions in relation to Ms Draper’s allegations
  2. In addition to my findings already made both within the opening paragraphs of the judgment and subsequently it is necessary to consider how and the extent to which the children have been harmed.
  3. Both P and Q have suffered significantly. Their innocence was invaded. Their minds were scrambled. Their grip on reality was imperilled. They were introduced to sexual practices of which they had no real understanding at a time when they should have been shielded from such things.
  4. Perhaps most significantly of all, the children were made to absorb and repeat on film and in interview grotesque claims against so many blameless people including the father whom they love.
  5. I have no doubt but that the physical injuries described by the children as having been inflicted by Abraham Christie were, indeed, caused by him. I reject as baseless Ms Draper’s suggestion that instead Mr Dearman was responsible. A straightforward conclusion given that neither child had seen him for about three months at the time of Dr Hodes’ examination and subsequent police photography. Those photographs clearly show recent rather than healed injuries.
  6. There is good evidence to find, as I do, that in the three months leading to their reception into care both children ingested cannabis. Scientific analysis revealed that both children had metabolites of the drug (THC) in their hair – a finding which could not be explained by ingestion of ‘hemp based products’ because none would contain sufficient levels of cannabis to produce the metabolite. It is impossible for the analysts to say whether the children had ingested the drug whether by passive smoking or oral ingestion. However, the children were clear in interview when describing the way hemp was made into soup using the juicer.
  7. The amounts found in the children’s hair samples suggested their ingestion had not been, as Ms Cave of Lextox described, a “one-off” but regular over the period. It is hard to imagine how any parent could deliberately expose a child to an illegal drug. But it may have been part of Mr Christie’s and Ms Draper’s plan so as to gain the children’s compliance. I need hardly say now profoundly damaging it was to administer illegal drugs to a child.
  8. The posting of film clips featuring the children speaking about sexual matters has exposed P and Q to the potential for very serious embarrassment and humiliation in the years ahead maybe, even, throughout the whole of the rest of their lives. Doubtless they will grow and develop so that their visual appearances will alter. But it may be difficult to shield them from unwelcome interest and reputational damage unless radical steps to divert attention are taken.Final thoughts about the investigation
  9. If there is one key message at the end of this inquiry it is that it is not and never will be sufficient to consider just one or two evidential features in isolation. It is always necessary to take account of all the material not just a selection. Those who arrived at their own early conclusions on the basis of partial material were woefully misguided.
  10. The individuals who have watched online film clips, read online articles and believed in the allegations would do well to reflect that ‘things may not be what they seem’ and that it is all too easy to be duped on the basis of partial information. There are many campaigning people, sadly, who derive satisfaction from spreading their own poisonous version of history irrespective of whether it is true or not.
  11. Proper consideration should always be given to the context within which allegations are made. In this instance, years of court conflict over the issue of contact and Ms Draper’s antipathy for Mr Dearman provided fertile territory for the creation of false allegations and their reiteration by the children.
  12. The history of the key protagonists may also play a part in untangling the intrigue so as to get at the truth. Mr Christie has a background of criminality for drugs offences, violence and dishonesty. More recently, he received a police caution for assaulting his adolescent son.
  13. Finally, that it is never possible to predict how a court inquiry of this kind will unfold. Against the preconceptions of many including my own, when the maternal grandparents gave evidence on 4 March 2015 they made their views about the allegations plain. They consider them to be “total nonsense and fantasies.”
  14. This is a summary of my salient findings – • Neither child has been sexually abused by any of the following – Ricky Dearman, teachers at Christchurch Primary School Hampstead, the parents of students at that school, the priest at the adjacent church, teachers at any of the Hampstead or Highgate schools, members of the Metropolitan Police, social workers employed by the London Borough of Camden, officers of Cafcass or anyone else mentioned by Ms Draper or Mr Christie.

    • The children’s half brother, his father and stepmother – Will and Sarah Draper – are likewise exonerated of any illicit or abusive acts involving the children.

    • There was no satanic or other cult at which babies were murdered and children were sexually abused.

    • All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.

    • The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr Christie in collaboration with Ms Draper.

    • Both children were assaulted by Mr Christie by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.

    • The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.

 

Having had a discussion with Ian from Forced Adoption this week, I said that I had very mixed feelings when a Court imprisons a parent for speaking out about their case – I’m not at all sure that it is the right solution for a difficult problem and I would rather it didn’t happen.  I would not have those mixed feelings in this particular case.

 

Allegations of abuse against a father

Reported cases in private law where serious allegations of sexual harm are made against a father against a backdrop of separation and acrimony and disputes over the children are becoming more common. They are always extremely difficult. And these days, more and more, they may begin as private law cases but end up as public law cases.

 

The Court is generally left with four choices when faced with allegations of this kind

 

  1. The allegations against father are true, with all the consequences that that will mean for his relationship with the children
  2. The allegations are not true, but they were an honest mistake (with the hope that once the Court has given that judgment, everyone can move on)
  3. The allegations are not true, and they were made with the honest belief of the mother that they were true (again, with the same hope as above)
  4. The allegations have been fabricated by the mother with the intention of hurting father and frustrating his contact.

 

In this case, Hampshire County Council v Mother and Others 2014, there are two linked judgments.

 

The first http://www.bailii.org/ew/cases/EWCC/Fam/2013/B19.html was in December 2013 and was the finding of fact judgment.

 

That concluded that the allegations against father were not true, and that mother had played a part in bringing them about

 

My finding is that while Mother has indeed been the victim of her psychological problems, she has also consciously created some of the allegations here. I have been told that the Guardian is also of the view that there is a combined explanation for the allegations. The timing between contact re-starting and the next allegation being made is too much of a co-incidence for there not to have been some volition on her part. There are also examples of Mother embellishing stories as – the addition of the alleged threat of self harm she over-heard Child make to a nurse or doctor on the 31st August when she was questioned about it by MG is a good example.

 

 

It must be understood by Mother that her allegations that Father has sexually abused Child have been found to be totally unfounded, created by her both unconsciously and consciously. She must also understand that what she has done has been hugely emotionally damaging to Child, who will take a long time to recover her own psychological equilibrium, even with her Father’s help. She must never allow herself to make such allegations again, or she will risk never seeing her daughter.

 

 

An interim care order had been made in October 2013, placing the girl in foster care.

 

 

The second judgment http://www.bailii.org/ew/cases/EWFC/OJ/2014/B126.html

 

relates to the final decisions in the case, mother having been given six months of time to reflect on the findings and move forward.

 

Sadly, she had not been able to do so. That led to the child being placed with the father, that mother would have seven contacts per year and that there was a s91(14) order meaning that mother would be unable to make any further applications to Court without leave.

 

(The Court note in that analysis that it is not lawful to attach conditions to a s91(14) order but did agree that it would help to tell mother the sort of changes that she would need to be making for such leave to be granted)

 

One of the difficult features in this case was that mother’s position if anything had hardened in that intervening period, probably not helped by the fact that her therapist was supportive of her belief that father had abused the child, and so were her family.

 

(MG was an expert in the case, who had made some recommendations as to the best way of moving mother forward after the finding of fact judgment)

 

 

MG has been cross examined as to her findings and conclusions in this hearing. She said that since the last hearing it is a great pity that her recommendations as to treatment for Mother have not been taken up. She had recommended that Mother be seen by an independent psychiatrist to formulate a treatment plan to reduce her anxieties and her medication. She said that therapy should be found for Mother in conjunction with the psychiatrist. Instead Mother has been discharged by her treating psychiatrist in the NHS mental health service with a diagnosis of “no serious mental illness,” which MG said is regular practice these days by treating mental health professionals. And instead of seeing an independent psychiatrist, she has found a psychotherapist who she consults by webcam, and who has accepted without question everything that Mother has told her about her allegations of sexual abuse against Father. MG said that it is a great pity that this treatment is not evidence based and does not challenge her at all, so the net effect is that Mother is no further forward with any form of treatment, but appears to be reinforcing her views by getting professionals on-side.

 

Mother’s actions since the December hearing, it should be recorded, have been to try and shore up her position that the allegations against Father were true. She has repeated them fully to her psychotherapist, who wrote a lengthy letter to the court on her behalf. A mental health professional contacted Children’s Services on her behalf in connection with the allegations. Her vicar has become involved in the case, getting up a petition with over 100 signatures from churchgoers for the return of Child to Mother’s care, and attending contact uninvited. And finally Mother has re-asserted the truth of the allegations in a document written by her for a contact planning meeting in January 2014 after a difficult contact session.

 

 

[The Court doesn’t seem to have picked up on the point that it is unlawful for mother or others to identify that her child is the subject of ongoing Court proceedings, which someone must have done in order to sign the petition]

 

 

These cases are all really hard. For a father, to be accused of sexually harming your child when you have not done it must be one of the worst things imaginable and if the Court decide having tested the evidence that you are innocent you think that this will be an end of the nightmare, but it isn’t. And looking at it from the mother’s perspective, either the allegations are true and the Judge has got it wrong (which is not right legally, but is a human reaction) or by that point your relationship with the father is so corrosive and damaged that you have convinced yourself that he IS a risk and yet nobody will listen to you.

 

 

Looking at it from a purely forensic and legal perspective, the only thing for a mother to do in this situation is to say that the allegations were made in good faith and to protect the child, but that she now accepts the judgment.

 

But human beings don’t make decisions based on pure forensic legal considerations but on emotions and feelings.

 

I am reminded of the Blackadder lines

 

It is so often the way, sir, too late one thinks of what one should have said.

Sir Thomas More, for instance, burned alive for refusing to recant his Catholicism, must have been kicking himself, as the flames licked higher, that it never occurred to him to say, “I recant my Catholicism”

 

 

In a case like Hampshire, where mother is given the chance to recant her allegations and not only doesn’t do so, but proclaims them anew, it is not a very difficult decision for a Court to make.

 

On the ground, for a family and a child, they are some of the hardest things of all.

 

The mother and her side of the family are never going to accept that the child should be with father, they are always going to feel that mother has been punished for speaking out and saying the truth and that the child is in the most dangerous placement possible. What does that do to their relationship with the child? What are those contact sessions like? How will difficult questions raised by the child be answered?

 

I’ve got very little sympathy for mothers who perniciously fabricate such allegations about fathers (the option 4 in my original list), but what about those mothers where the allegations were made in good faith and they can’t move on from “it is my child, I KNOW in my heart that this really happened”?  (options 2 and 3)

 

Legally and forensically it is easy – recant your Catholicism and accept the judgment. I can’t help but have some sympathy for mothers in that position though. What, they might say, if the Judge has got this wrong? People make mistakes – Courts get things wrong.

 

If you are in that position, how easy is it to just say “I give up, okay, it never happened”, when every fibre of your being says that it did?

 

What, they might say, if the Judge thinks that on the balance of probabilities, it is 55% likely that the allegations aren’t true. For the law, that proves it. But for me as a mother, what about that 45% chance? How could I, as a mother, be happy that there was a 45% chance that my child has been abused?

 

[None of that counts in legal and forensic terms – once the Judge has made a decision, you either accept it, or you successfully appeal it. The Court’s decision means that all of that doubt and uncertainty is removed and that what the Court say happened IS what happened]

 

We are hearing more and more from the Courts that it is not the job of the Court to fix people, to make them better, to solve their problems.

 

(for example T v S http://www.bailii.org/ew/cases/EWHC/Fam/2013/2521.html

 

The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father’s complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father’s ambition to achieve.

 

And Re K http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

“In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.”     )

 

 

And to an extent, that is right. The Court don’t have a magic wand to make things better, they don’t have resources to fix people.

 

Indupitably, however, there are people who come out of Court proceedings substantially more broken than when they went in. I don’t have an answer, and I suspect we’re less likely to get one that we were pre Austerity.

 

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