RSS Feed

Category Archives: Uncategorized

Friday daftness – sample chronology


Date                                                                   Significant Event


June                                                                  Bryan purchases an instrument. It is understood that he paid something appproximating £3.38, certainly no more than that.


Early July 1969                                               Bryan visits GP with lacerations to his fingers.


mid July 1969                                                 Bryan becomes drawn into a group of adolescents that he had met through school.  Jimmy is certainly involved. Jody also believed to be.


At around  this time, reports come in of Bryan repeatedly standing on the porch of an unnamed girl’s mother.



4th August 1969                                      Jimmy quits the group of adolescents. Bryan spents more time on porches, and at drive-ins.


18th August 1969                                   Jody gets married. Bryan by this stage is effectively living on unnamed girl’s porch. Her mother reports that it seemed to last forever.


31st August 1969                                      Bryan confirms to professionals that these were the best days of his life.


1991                                                            For a few weeks, Bryan becomes the most hated man in the world. Then everyone remembers how much they love what happened to him that summer.


Poppi Worthington – the long-awaited judgment

Poppi was a little girl, aged 13 months, who died in December 2012.


Within care proceedings relating to Poppi’s siblings, a finding of fact hearing took place as to what caused her death and whether it meant any risk for those siblings. That took place in March 2014 and has not been published until this week. An inquest also took place and the Coroner described her death as “unusual and strange”.  Part of the reporting of the inquest discussed the existence of the finding of fact hearing and in particular that the Guardian in the case had prepared a schedule of professional failings.


Of course the Press and public would be very interested in those failings, and if there are lessons to be learned, one would want to learn from them.

The police decided in March 2015 not to charge the father with any criminal offences as a result of Poppi’s death (it taking 2 1/2 years to get that decision) and as a result, the father sought to overturn the finding of fact hearing.

The Judge therefore decided that whilst allowing a re-hearing of the finding of fact hearing, it would be potentially prejudicial to publish the results of the March 2014 hearing and have the Press comment on it. A decision was made that part of it would be published in the Winter of 2015.


(All of that is discussed here)


And the (heavily redacted) fact finding judgment is now published


Cumbria County Council v M and F 2014


The redactions really remove any scope for discussion of what happened to Poppi and why the father came under suspicion and what conclusions were made in March.  But it does outline the professional failing identified by the Guardian and endorsed by the Court.


What there ISN’T, at least within the published judgment, is any evidence or claim that social workers had failed to protect Poppi before her death or should have seen it coming. The criticisms are instead about the failings of various agencies to properly investigate it and whether the siblings had not been properly protected. Still very important, but at this stage, there’s nothing within the judgment that suggests that Poppi is another Baby P or Daniel Pelka (where professionals ought to have foreseen the risk to her and failed to act to keep her safe).   Until P’s death, none of the other children was subject to statutory intervention by the local authority and the mother cared for them all satisfactorily. There were no concerns reported by health, education or social agencies. 


What were the professional failings afterwards though?


  • 85. The observations below are made in the context of these good practice protocols and regulations, which appear to have had no effect in this case:

    The national multi-agency protocol: Sudden Unexpected Death in Infancy (SUDI), known as ‘the Kennedy Protocol’. This provides a framework for the collaborative investigation of all unexpected deaths in infants and children up to the age of 2 years. The emphasis is on finding the cause of an infant’s death, incorporating both medical and forensic investigation. Responsibility for oversight of the operation of the protocol rests with the Local Safeguarding Children Board.

    • Cumbria LSCB’s own complementary protocol at the time of P’s death: Sudden and Unexpected Deaths in Children and Young Persons. This guidance, since updated, applied to the sudden and unexpected death of a child under the age of 18 years.
  • The Local Safeguarding Children Boards Regulations 2006, which set out the criteria for holding serious case reviews.
  • 86.Cumbria Constabulary
  • It can come as no surprise that, well over a year since the death of this child, no decision has been taken about a criminal prosecution. As a result of the police view that Dr Armour may have jumped to conclusions, a decision was then taken by senior officers not to investigate until her report was received. Due to the extreme delay in that process, there was no real investigation into P’s death for nine months. Such minimal investigation as thereafter took place was inevitably affected by the delay and by actions not taken at an earlier stage. Instances may include:
    • Items at hospital not preserved for forensic analysis: ambulance sheet, paramedic’s gloves, hospital stretcher sheet.
    • Items at home not preserved for forensic analysis: P’s pillow, her clothing (pyjama bottoms if any), the parents’ sheet, any possibly penetrative item, the father’s computer.
    • Scene not secured: loss of P’s last nappy despite the presence of police officers.
    • Decision by DI S and DCI F not to visit the home, despite it being nearby. According to the national protocol, a senior officer should immediately attend the home to take charge of the investigation and ensure that evidence is intelligently preserved.
    • No reconstruction with the parents at home, so that their accounts could be understood and investigations focused.
    • No forensic medical examination at the time of death. Swabs were not taken until post-mortem. Under the Cumbria protocol, police are entitled to take anal swabs automatically. Delay in taking swabs may prejudice the forensic analysis.
    • No engagement of a paediatrician with specialist knowledge of investigating sexual abuse, in order for there to be a physical examination of the child, a viewing of the home and a report for the pathologist.
    • Dr Armour’s initial views were not clearly passed on to the local authority for safeguarding purposes.
    • The parents were not interviewed formally until August 2013.
    • No analysis of either parent’s mobile telephone or Facebook accounts.
  • Samples were not sent for analysis until after receipt of Dr Armour’s report. For example, the swabs from the father’s penis, taken on 12 December 2012, were not sent for analysis until 2 August 2013.
  • No statements taken from any witnesses (paramedics, nurses, doctors, family members) until September 2013, at which point three statements were taken (from the ambulance crew and from Dr B).
  1. Many of these matters were canvassed during the evidence of DI S, who led the enquiry at the outset, and she was driven with evident reluctance to accept a number of failings in the inquiry. Evidence was not taken from DCI F, the senior officer with overall responsibility for the investigation. He may therefore have further information to provide.Cumbria County Council
  2. Given the history, it can likewise come as no surprise that, well over a year after P’s death, the family still awaits a decision about the future of the other children.
    1. At the outset of the proceedings, the local authority was directed to file a statement explaining its actions. This led to a full account from the Assistant Director of Children’s Services. In it, she accepts that
    • Legal advice should have been taken at the outset, and certainly before the family returned home. In fact, the first time that legal advice was taken in this troubling and extremely serious case was on 30 August 2013. Even this was reactive (to the parents’ arrest) and even then there was no decision to issue proceedings for another eight weeks.
  • Proceedings should have been initiated as soon as it became clear that P had suffered injury prior to her death. Had that happened, the court would have been able to get a grip on the matter and ensure that proper investigations were carried out much nearer to the time of P’s death. The local authority shares responsibility with the police for the fact that this did not happen.
  • Even when legal advice was given on 23 September that care proceedings should be issued, a decision of the Legal and Placement Panel two days later rejected this advice. Another month passed before proceedings were issued in reaction to the mother’s rejection of supervision.
  1. I would add that the children should have immediately been medically examined and that in S’s case, a skeletal survey should have been performed. Furthermore, the local authority’s expectation that the mother should supervise the father in relation to this number of children was in my view wholly unrealistic, not to say unfair to her.
  2. In the result, the children were returned home without any effective child protection measures being taken. Fortunately there is no evidence of them suffering harm in the ten month period before they were removed from the parents’ care. The Coronial investigation
  3. It is not clear, and I have not asked, how HM Coroner proceeded in this matter. Concern has rightly been raised about the gross delay in production of the pathology reports. Cumbria’s protocol expects that within 48 hours of the post-mortem, the pathologist will provide preliminary findings to the Coroner. In this case, Dr Armour said that she wanted to have every piece of information before she committed herself. In particular, she was awaiting the results of routine histology on the leg bones. She did not accept the suggestion that the delay was unacceptable. Bearing in mind the interests of the surviving children, that was not a practical approach, though she was not to know that the consequence of her silence was that no other investigation was taking place.
  4. I have no information about the decision of the coroner to release for burial the body of a child who died in unexplained and possibly suspicious circumstances when a pathology report had not been received, a decision precluding the possibility of a second post-mortem. The NHS Trust
  5. In the light of the expert evidence, and having heard from the paramedics, doctors and nurses who were present on 12 December, it is apparent that they did everything they possibly could to resuscitate P. It is sadly likely that by the time she came into their hands she had already died.
  6. Unfortunately, Dr B, the locum paediatrician, had only been employed at the hospital for less than three weeks. He was not aware of either the national or local protocols for infant deaths. He was therefore unable to lead the forensic medical investigation in an appropriate manner.
  7. Neither Dr B nor, more pertinently, Dr W, completed the workbook provided as part of the Cumbria protocol. This would have ensured a methodical examination at the time of death and the timely taking of swabs.The Local Safeguarding Children Board
  8. Regulation 5 of the Local Safeguarding Children Boards Regulations 2006 sets out the functions of LSCBs. This includes the requirement to undertake reviews of serious cases in specified circumstances. Regulation 5 provides that a review must be held where abuse or neglect of a child is known or suspected and the child has died. This is mandatory: see page 66 of the statutory guidance in “Working together to safeguard children” (March 2013). Moreover, a review may be held even when the mandatory requirement does not apply.
  9. A sub-group of the Cumbria Local Safeguarding Children Board met on 4 February 2014. The meeting took place at police headquarters and was attended by six persons. The minutes show that DCI F, the principal investigating officer, played a prominent part, although he invited another member to lead the discussion. The conclusion was that the criteria for a serious case review were not met, although the matter would be reviewed in six months following the outcome of the family proceedings and any criminal proceedings.
  10. It will certainly be appropriate for the conclusion of the subgroup of the LSCB to be independently reviewed as it would appear to conflict with the regulations. Collective responsibility
  11. While I reach no conclusions, consideration by others of the above matters may lead to the view that P’s death did not receive the professional response to which she and her family were entitled.



The re-hearing has either just finished or is currently before the Court. With that in mind, no speculation please about what might have happened to Poppi or who may have been responsible if anyone.  The Court will reach and publish those conclusions and the Court is in possession of all of the facts, whereas we only have a sliver of them.

Social workers slammed for lying on oath


I know the title seems pure clickbait, since it is the sort of thing that is alleged quite often, but this is a case where the Judge did actually make that conclusion.  It involves social workers and managers who set out to change the parenting assessment conducted by another worker (who the Judge found to be blameless) so that it reached different conclusions and painted a wholly different and negative picture and then lied to the Court about it. This is social workers interfering with the parents right to a fair trial. It really is deeply shocking stuff.


A, B, C, D and E (Final Hearing) 2015


The case was decided by His Honour Judge Horton, and involved Hampshire County Council. Some of the workers involved no longer work at Hampshire and they are not spared.



12. This is I hope an unusual case. I certainly have not previously come across one quite like it either at the Bar or as a judge.


13. My previous judgments explain these comments but in my experience it is exceptional to find a case in which there has been deliberate and calculated alteration of a report prepared by one social worker in order to make that assessment seem less favourable, by another social worker and the Team Manager; the withholding of the original report when it was ordered to be disclosed and the parties to the alterations lying on oath one of them twice, in order to try to cover up the existence of the original report. Those people are referred to and named in my December judgment but given the enormity of what they did and the fact they still work as social workers it is right that I should name them again so that practitioners and members of the public coming across them are aware of their shortcomings in this case.

  1. Sarah Walker Smart the children’s Social Worker lied twice to me on oath. I was told during this hearing that she has been promoted to Team Manager within this authority.
  2. Kim Goode, Sarah Walker Smart’s then Manager, was the person who initiated the wholesale alteration of the original report and who attempted to keep the truth from the parties and me. At the time of the last hearing she was District Manager for the Isle of Wight. I was told during this hearing that she is still in post.
  3. Lisa Humphreys was Kim Goode’s Manager. Her evidence was deeply unimpressive. She made a ‘hollow’ apology to the parents during her evidence; she regarded a social worker lying on oath as “foolish” and she failed to accept any personal responsibility for what had gone on under her management. At the date of the last hearing she was Assistant Director of Children’s Social Care with Lambeth Borough Council.
  4. In my December judgment I concluded that the parents’ and children’s Article 6 and 8 Rights had been breached. The children had been removed illegally and the parents had not had a fair parenting assessment carried out due amongst other things to all professionals both childcare and legal, failing to identify M’s communication difficulties and the need for a psychological assessment. I therefore at the parents’ suggestion, directed that Symbol a parenting assessment organisation which specialises in people with learning and communication difficulties, should carry out a full parenting assessment. This was to be coupled with individual therapy for both parents. This ‘dual’ approach had been suggested by Dr Halari a highly qualified adult clinical psychologist who had seen each parent, prepared reports and who gave evidence. The plan was for the therapists and assessors to work together in order to give the parents the best possible chance of making the agreed and much needed changes to their parenting.




The December judgment had escaped my attention, so here it is


The portions setting out the failings of the Local Authority are long, but because they are so powerful, I will set them down in full   (I really can’t believe that I missed this judgment first time around).  Underlining, as ever, mine for emphasis (though I could almost underline every word). Apologies that the paragraph numbering goes all over the place.


  1. The factual matrix underpinning the breaches
  2. Removal
  3. Social worker Ms X was allocated to these children on 27 October 2011 and remained their social worker until Sarah Walker Smart was allocated the case in June 2013. During this time she formed a working relationship with the family.
  4. She was clearly concerned at A and B’s lack of schooling, failure to engage fully with health professionals and issues of basic neglect. Such was her concern that she initiated the PLO process on 12 April 2012. The PLO letter was clear and Ms X spelt out what was required. See Mrs Randall’s comments at D131.
  5. As early as 11 May 2012 Ms X had identified that the parents were unsure how to work with professionals and that the parents become aggressive and hostile.
  6. By April 2013 Mrs Randall’s opinion based on the recordings of Ms X was that little had really been achieved during 18 months of PLO process. D133
  7. In late Spring early summer 2013 Ms X obtained a new post within the authority. She made her last visit to the family on 4 June 2013. By this time Ms X had begun compiling information for Core Assessments on all the children and it was made a condition of her leaving that she completed Comprehensive Core Assessments. I heard evidence that I accept that Lisa Humphreys and Kim Goode were exasperated by Ms X’s failure to complete them.
  8. The new social worker allocated to the children was Sarah Walker Smart. She was new to this team and relatively inexperienced in child protection work. Her manager remained Kim Goode who was and is extremely experienced in such work having been in it for 18 years.
  9. Kim Goode and Sarah Walker Smart carried out an introductory joint visit on 20 June 2013. I am satisfied that Kim Goode and Sarah Walker Smart found a situation that they had not been fully prepared for by Ms X’s case recordings. This was not only in relation to the condition of the home and children but also the attitude of the parents. The mother in particular was difficult and hostile. I pause there to record that whilst I make criticism of the parents it must be seen in the context of their then unidentified difficulties and the attitude of Kim Goode who I am quite sure did nothing to calm the situation. I have seen and heard Ms Goode. She is a strong willed, forceful, opinionated person who it would be difficult to challenge effectively or at all. Her manner of answering during cross examination amply demonstrated this.
  10. As a result of what they saw and as a result of there having been 18 months without sustained change Ms Goode and Ms Walker Smart decided that the case should be taken to a legal strategy meeting. This took place on 24 June 2013. see K136.
  11. It was decided that the Comprehensive Core Assessment “with concerns” should be concluded as soon as possible, that care proceedings should be instigated and that a new PLO letter would be written. This was delivered to the parents on 27 June which was the same date as Sarah Walker Smart’s first statement.
  12. On 11 July Ms Walker Smart visited the home and found things largely the same as before but that the children’s presentation was “Ok”.
  13. On 12 July Care Proceedings were issued and on the 15 July directions given including a direction for the LA to file and serve the “current assessments to which the Social Work statement refers”. A21
  14. Also on this date the Housing Officer visited the home. He was clearly concerned by the condition of the property; a number of problems with the condition of the property that had not been reported and the overcrowding but I am satisfied he does not “condemn” it or say that it is dangerous. He did believe that the family should be temporarily or permanently re-housed.
  15. On 15 July the court made directions including giving a hearing date for a contested ICO.
  16. On 16 July Ms Walker Smart spoke to the Housing Officer. She purportedly interpreted what he said as the house was condemned, dangerous and unfit for the family to remain in. It is clear from Ms Walker Smart’s e mail of the same date that she was trying to get Mr Sibley to say that the property was unsafe and dilapidated due to the parents’ neglect and makes it clear that “we are planning to remove the children” and “need as much evidence as possible based on the home conditions being unsafe”.
  17. I am satisfied that by this date Kim Goode and Sarah Walker Smart had decided that the children should be removed from their parents care and that they intended to bolster their case by involving the housing department. This is clear from the wording of the e mail and I interpret the e mail as pressure being put on the Housing Officer. It was clear from his evidence to me that he was not prepared to do so.
  18. Lisa Humphreys told me that she had approved the cost of B&B and that she had not approved the removal of the children from their parents. This does not fit in with the content of the e mail and I have trouble believing that Kim Goode would construct a plan for removal without the approval of her DSM.
  19. On 17 July at 09:00 Sarah Walker Smart made a visit to the home. It was she said her view that the children were “no longer safe in the home and that if they remained they could experience significant harm”. In reality I doubt that anything was very much different from before and I am certain that the grounds for immediate separation were not there. She reported on what she saw to Kim Goode.
  20. At 11:17 that day Kim Goode set out an action plan. That action plan clearly expected the police to use their administrative powers to remove the children. She does record that if the police won’t agree to do so then the mother is to be asked to go to B&B with the children. Ms Walker Smart never offered this option to the mother and I am satisfied from the video footage and her evidence that this option was never in her mind. It is probable that Kim Goode never discussed this option with her.
  21. At 15:30 that day a joint police and social services visit took place. The LA accepts that the visit and removal was unlawful and breached the family’s Human Rights. The details of the breaches are set out later in this judgment.
  22. I have viewed the Body Worn Camera footage. I can well see why the LA makes the admissions it does. The removal was a flagrant breach of this family’s Human Rights. There were insufficient grounds for such action and it is clear the police felt that too as they did not try to use their administrative powers; the correct procedure was not followed; no true consent was obtained, and that which was obtained came from F under duress. Further he did not have power to give consent for the older two children as he did not have parental responsibility a fact Ms Walker Smart should have known.
  23. I am asked by F to find that the use of the police was a manipulation to coerce the parents. I am not satisfied that the social workers were deliberately trying to manipulate the police although I am satisfied that the effect on the parents was to coerce them. The parents, mother in particular could be verbally aggressive and had been so to Ms Goode. In circumstances where it had been decided to remove the children from their parents and it could reasonably be anticipated that the parents could be hostile, it would be appropriate to involve the police to avoid there being a breach of the peace. However, the video footage shows that the situation was badly handled with 8 police officers and two social workers descending on the parents and presenting them with no choice but to relinquish their children. There were no grounds for such removal, there was no discussion, no alternatives offered and it was clearly the intention of Ms Walker Smart to remove the children from their parents’ care come what may by asking for consent to s20 accommodation if the police did not act.


  1. Factual matrix underpinning the failure to disclose material evidence
  2. This relates to the Comprehensive Core Assessment that Ms X completed and sent to Kim Goode for what has been described “Quality Assurance”.
  3. Ms X completed writing her CCA on 18 June 2013. See P125. The Assessment contained both positives and negatives. It was therefore a balanced report. She e mailed it to Kim Goode.
  4. On 27 June 2013 Sarah Walker Smart swore her first statement asking the Court to read her statement along with the ” Core Assessment (July 2013) completed by Ms X” (my emphasis).
  5. On 10 July Ms Melanie Kingsley asked Kim Goode to forward Ms X’s core Assessment. Kim Goode replied saying she just wanted to “pad out the conclusion before it goes off”.
  6. On 15 July the court directed the LA to file and serve the “current assessments to which the Social Work statement refers”.
  7. On 16 July Kim Goode made substantial changes to Ms X’s Comprehensive Core Assessment (CCA) which are recorded by the word processing programme by way of tracked changes. All the substantive changes made are negative. The changes change the tenor and conclusions of the report completely. The picture painted by it is now wholly negative and would if accepted, have the effect of substantially improving the LA’s case for removal of the children, probably permanently. In my judgment these changes amounted to a wholesale rewrite and were not a proper use of the Quality Assurance system.
  8. Ms X never approved the changes.
  9. Kim Goode sent the track changed document to Sarah Walker Smart on 17 July at 13:02 who made few if any and no substantial changes. She could not make many changes as she had little knowledge of the family due to her brief involvement. She signed the assessment as if it were her own and it was served on 6 August.
  10. Ms X’s CCA was not filed in accordance with the court order.
  11. An order was made for the CCA to be filed by 30 July. Ms X’s version was never filed.
  12. Solicitors for the parents asked on numerous occasions for the disclosure of the document referred to in Ms Walker Smart’s statement and for any documents prepared by Ms X.
  13. On 22 August 2013 Melanie Kingsley in response stated in an e mail: “an assessment was started by Ms X but not concluded. The decision was taken that because Ms X no longer works for the department, the new social worker SW would compile an entirely new assessment, as it would not be appropriate for her to complete another person’s partially completed piece of work. Accordingly Sarah Walker-Smart wrote and filed a new Core Assessment which is in this bundle. There is nothing outstanding from Ms X which may be filed with the parties”
  14. I am satisfied that this e mail gave a deliberate and entirely false impression. Kim Goode and Sarah Walker Smart knew that Ms X had completed her assessment. The problem was that Kim Goode did not like it. In her opinion it did not fit in with her assessment of the family’s circumstances. Kim Goode knew Ms X had completed it because she had changed it. Ms Walker Smart knew Ms X had completed it as she had seen the tracked changed document which was obviously based on Ms X’s completed work.
  15. I am also satisfied that the legal department knew of the existence of the Ms X piece of work as Ms Kingsley had referred to it in her e mail of 10 July.


[A quick break here to say “Holy F**ing s**t!”]


  1. Twice more did Ms Coates ask for Ms X’s “draft” to be filed and served. Ms Kingsley replied on 13 November 2013 “there is nothing that can be filed”. Again this was patently untrue.
  2. On 31 March 2014 Sarah Walker Smart commenced giving evidence before me. A transcript of her evidence is at 72.1 of the transcript section.
  3. She was asked in chief: “Have you ever seen a core assessment completed by Ms X? “No” “Can you explain the reference to one in your statement?” “.. there was an assumption that Ms X had completed a Core I relied upon an assessment that did not exist. That’s completely my error.” I then asked: “You have given the date of July 2013 which rather implies that you had some basis to believe that there had been a Core Assessment carried out. What was your factual basis for that?” Answer:” The team manager” Kim Goode, “assumed that Ms X had written one”.
  4. I asked whether Kim Goode had checked for the Core Assessment. I was told that she had and that she could not find it.
  5. Sarah Walker Smart went onto to say that she had not checked. She said: “I’ve never seen a Core Assessment in Ms X’s name.”
  6. I have considered this evidence very carefully and been mindful of the two fold test in the R v Lucas direction that I must give myself when encountering lies.
  7. I am satisfied that her evidence that she had never seen a completed Core Assessment by Ms X was a lie. Sarah Walker Smart had seen a completed Core Assessment by Ms X. She had seen the tracked changed version e mailed to her by Kim Goode. I am satisfied on the balance of probabilities that this was a deliberate lie to try to deflect attention from the existence of that document. I do not make this finding lightly or willingly but the evidence drives me to it. This lie was repeated in her evidence given to me on 25 November 2014.
  8. I am also satisfied that she lied when she said that the reference to such an assessment in her statement was a “mistake” based on an “assumption”. I am satisfied that the reason she mentioned it was because she had seen Ms X’s Core Assessment and she did not think there was anything wrong in referring to it. It was only afterwards that the import of what she had done became clear. In my judgment this is the only logical reason why she would have mentioned it. Her attempts to say it was a wrong “assumption” on the part of herself and Kim Goode was a fabrication. Again I do not reach this conclusion lightly but it is an inevitable one. Again she repeated this lie in evidence in November.
  9. Ms Walker Smart had the opportunity to disclose the existence of the Ms X assessment during the April part of this final hearing but did not take it. She chose to try to get away with the deception she had practised. I made it clear at the end of that hearing that I was worried about this issue and that I required full enquiries to be made to see if such a document existed. See 72.45 line 30 of the transcript of Ms Walker Smart’s evidence.
  10. Lisa Humphreys was also at court during the April hearing. She knew that the parents’ advocates wanted Ms X’s assessment disclosed and she knew of its existence yet she did not then or afterwards bring its existence to the attention of the court, the new social work team or the legal department. She could have accessed it easily as it was located in her ‘Outlook’ programme on her computer.
  11. The completed Ms X Comprehensive Core Assessment was eventually disclosed inadvertently as part of the disciplinary proceedings’ file in relation to Ms X in early August 2014. Kim Goode had initiated disciplinary proceedings against Ms X as a result of what she saw were serious failings in her work. As a result Ms X was dismissed from her employment. Her health is now so poor that she was unable to give evidence. I do not know whether her poor health and the disciplinary proceedings are linked but they cannot have helped her. This is not the place to comment on the appropriateness of that investigation, its fairness or its conclusions but I do ask the LA to robustly review their conclusions and decision in the light of this judgment and all that is now known about this case.
  12. Kim Goode’s involvement in this deception was examined in the November hearing.
  13. I am satisfied she knew of Ms X’s completed CCA as she had changed it. I am also satisfied she knew that the parties and court wanted it disclosed and she had decided that she would not.
  14. At one point I asked her: “So it was a deliberate decision by yourself not to let the court and the parents have” the Ms X Comprehensive Core Assessment and the guardian. Is that right?” “Yes” she answered.


A second break to say again “Holy f**ing s**t!”



  1. Whilst she tried to persuade me that she did this out of concern for the children as she felt the assessment was not accurate, I find this suggestion breathtaking. This is a manager with 18 years experience deliberately flouting the lawful request of the parents for disclosure of information and more to the point flouting court orders for such disclosure. At one point she tried to suggest that she was unaware of the duty to disclose, which I find as Mr Ker-Reid put it “incredible” in both senses of the word.
  2. There was a particularly telling piece of cross examination by Mr Ker-Reid when he put this question to her: “You were overtly, determinedly, seeking to deceive courts of justice, put your head together with other professionals in your department, whether legal or social workers, to tell judges of the Family Court that there was not an assessment by Ms X which you knew there was? That is right is it not?” Answer: “It is but I..” Q: “It is”. Answer: … “gave the explanation”. Q: “We have your answer, done”.
  3. I am satisfied that this question and answer perfectly sums up the thinking of Kim Goode and her approach to this case. I heard Kim Goode’s “explanation” and I am not satisfied by it. Her perception of whether the assessment was correct or not was not a reason for non-disclosure particularly in the face of a Court order. It was as she conceded dishonest to have said that there was no assessment from Ms X. I am satisfied that this “explanation” was in fact an attempt to deflect blame away from herself.
  4. I have already commented on my impression of Ms Kim Goode from my observation of her in the witness box and from her work on this case. She is a strong personality and I am satisfied that those subordinate to her would find it hard to challenge her. This atmosphere is probably what led Ms Walker Smart into such grave error. Whilst this may be an isolated incident in her career I have very grave concerns as to Kim Goode’s working practises in this case and in my judgment a thorough review of her work and management style should be undertaken by the LA.
  5. I have made some comments about the involvement of Lisa Humphreys in this case. I found her to be a very strong and forceful personality. Whether her management style fed into or off Kim Goode I cannot say but I am clear that they are similar in management style. Subordinates would find it hard to say no to or challenge her.
  6. Her response to hearing of Ms Walker Smart’s lies to me was astounding. She thought it was “foolish”. I am afraid that is not the way I see it and it is not the way she should have seen it. Such a comment makes the lies seem like minor misdemeanours which they are not.
  7. I also found her failure to accept personal responsibility for what has happened in this case depressing. Whilst of course managers cannot be responsible for rogue employees and their decisions are only as good as the information they are given by their subordinates, they should at least sound as if they mean any apologies they give. The one she gave the parents during her evidence did not sound heartfelt and I noted that there was no apology to the Court for the lies that had been told or the unnecessary delay that had occurred by those under her. It is probable that she saw no harm in withholding the Ms X CCA as she seemed to me to be fully in support of withholding it, because in her view it was not an accurate piece of work.



Wow. Just wow.



  1. Conclusions and Findings on Human Rights breaches
  2. It follows from my conclusions above that this family’s Human Rights have been breached. The parties have produced one combined document for me to consider covering the breaches that the parents, A, B and the Guardian allege have occurred and the LA’s response to each of them. In short the LA has albeit late in the day, conceded all of the general breaches alleged and most of the specific facts that go towards those general conclusions. I have amalgamated the various breaches from this composite document and my findings and condensed them into a manageable form. My findings are as follows.
  3. Removal of the children on 17 July 2013
  4. The LA accepts and I find that it acted unlawfully and disproportionately by removing the children from the care of the parents on 17.7.13 purportedly pursuant to section 20 of the Children Act 1989. I am satisfied that it did this by:
  1. a) Taking a decision to pursue police protection in preference to the provision of alternative accommodation;
  2. b) Failing to consider making an application for an EPO or short notice ICO;
  3. c) Failing to consider whether any family placements were available;
  4. d) Failing to inform the parents of the available options such as B&B
  5. e) Failing to encourage the parents to seek legal advice or the advice of family or friends;
  6. f) Acting without the Father’s informed consent to the removal;
  7. g) Acting without the consent (informed or otherwise) of the Mother;
  8. h) Acting without the consent of any person with parental responsibility for A and B;
  9. i) Purporting to act under section 20 of the Children Act by seeking the consent of the parents in the presence of 8 uniformed police officers presenting an overt threat of police protection;
  10. j) Acting in knowledge of the Father’s expressed belief that the police would act to remove the children in any event;
  11. k) Removing the children in circumstances which did not reach the test for an emergency removal;
  12. l) Purportedly justifying the removal at the time and subsequently by way of reasons which were incorrect and/or known to be untrue by the Social Worker namely that the home had been condemned; and
  13. m) Failing to obtain the wishes and feelings of the children contrary to section 20(6) of the Children Act 1989.
  14. n) Failing to have in place a policy document guiding procedures when social workers attend a family with police, such document having been directed by HHJ Levey DFJ to be produced in or about January 2013;
  15. o) Upon it becoming known to the Team Manager and/or District Service Manager that the Social Worker had acted disproportionately by removing the children from the care of the parents on 17.7.13 the LA should have taken steps to rectify matters by offering to reunite the children and parents in alternative accommodation but failed to do so.
  1. Failure to disclose material evidence
  1. The LA accepts and I find that it acted unlawfully by materially failing to comply with its duty to disclose documents which modified and/or cast doubt on its case and/or supported the case of the parents by:
  2. Failing to disclose the Comprehensive Core Assessment of Ms X as directed as early as 15 July 2013 or at all prior to its inadvertent disclosure pursuant to a court order on 11.8.14 relating to disclosure of disciplinary proceedings concerning Ms X;
  3. Failing to disclose the ICS Core Assessments of Ms X as directed or prior to 1.4.14;
  4. Failing to disclose ICS notes with the District Service Manager’s comments due to inconsistent practices in recording information by her;
  5. Failing to disclose case recordings until directed to do so by the court on 3.3.14; and
  6. Failing to inform the parties of the existence of the video of the children’s removal and/or disclose the video itself until directed to do so by the court in May 2014. This video was in the possession of Kim Goode and viewed by her within weeks of the unlawful removal. She knew that the removal was unlawful but failed to do anything about it.
  7. The non-disclosure of the Comprehensive Core Assessment of Ms X in the face of repeated requests from the parties and directions of the court was deliberate and the decision not to disclose the document was known to Sarah Walker-Smart, Kim Goode, Lisa Humphreys and the Legal Department.
  8. The LA misled the court and the parties as to the existence of a Comprehensive Core Assessment undertaken by Ms X.
  9. In particular the LA does not dispute and I find that Sarah Walker Smart lied on oath on 31 March 2014 when she said she had never seen a core assessment completed by Ms X; that Kim Goode had looked for one and had not found one and that the reference in her first statement to such an assessment was therefore an error.
  10. Further, Sarah Walker-Smart repeated the lies on oath on 25 November 2014.
  11. The LA’s failure to comply with its duty of disclosure caused an incomplete picture to be presented to the Guardian and to the court within the LA’s evidence filed before 7.4.14.


  1. Denial of fair opportunity to participate in decision making
  2. I make the following findings in relation to this head.
  3. The parents were not consulted about the removal of the children.
  4. Neither the Court nor the parents were provided with the investigations and recordings which precipitated the applications to separate C from A and B or to apply for a section 34 order to “terminate” contact;
  5. In respect of the application to terminate contact, Hampshire County Council relied upon reports from foster carers upon which they did not seek the parents’ instructions. The foster carers’ reports were inconsistent with Hampshire’s own evidence such as contact supervisor recordings;
  6. Hampshire County Council undertook sibling assessments without discussing the children and their attachments with their parents, or indeed observing the children together;
  7. Hampshire County Council failed to convene a Family Group Conference or take any steps to explore potential family support, which led to their overlooking the Gs and issuing placement applications although the parents did not bring the existence of the Gs or their willingness to offer care to the attention of HCC until August 2014;
  8. It is alleged that the parents have been excluded from LAC and PEP reviews and all medical appointments for all of the children. I have not been addressed in submissions on this point and so can make no findings. If it is thought significant I will hear further submissions on this point;
  9. Hampshire County Council failed to provide the parents with contact notes and foster carer records in accordance with the Court’s direction or on a regular basis. This has deprived the parents of the ability to address any identified issues and effect change.
  10. Hampshire County Council had been “put on notice” of their Human Rights breaches by the order of 07.04.14 (A121); further order on 08.05.14 and Mother’s detailed skeleton argument setting out both limbs of her argument which was filed and served on 17.06.14. However, they continued to deny any wrongdoing until:
    1. On or about 10.11.14 in respect of the unlawful removal;
    2. On or about 14.11.14 in respect of the material non-disclosure. Indeed this was described by Hampshire on 29.07.14 as a ” last minute fishing expedition speculatively raised” [135].
  11. Failure to promote family life
  12. The LA breached the children’s right to family life by failing to set up or maintain regular family or inter-sibling contact during proceedings up until 31 March 2014.
  1. I am also satisfied that FC2 particularly Mrs FC2 became inappropriately attached to the children she was looking after. She allowed herself to become emotionally involved so that she tried to “claim” them for herself. This was not picked up upon by the social workers quickly enough. They were getting reports from FC2 that conflicted with the reports of their own contact supervisors yet this was not properly or timeously investigated. It was this failure to control FC2 that led to no proper inter-sibling contact taking place and E not seeing his parents for a considerable period of time.
  2. As a result of the failures of Hampshire County Council to provide all relevant material and to conduct the matter in an open and fair way, the care plans for A and B as presented to the court for the hearing commencing 31 st March 2014 were particularly distressing in that they provided not only for separation of the siblings but that for B he was to have very restricted contact with his parents and siblings; such care plans were wholly unjustified and were changed by the then Service Manager Lisa Humphreys on or about 1 st April 2014 it being noted that this was without the court or any party having heard any evidence on this issue.
  1. Other failures
  1. The evidence presented to the court in the statement of Sarah Walker-Smart dated 27.6.13 upon issue of the LA’s application and in support of its application for interim care orders was unfair in that it was unbalanced and in parts inaccurate.
  2. As conceded immediately in evidence by Ms Gibson the LA purported to but failed to undertake a full and fair assessment of the parents’ ability to care for the children by way of the assessment by the family centre worker and the social work assessment of Sarah Walker-Smart.
  3. The LA purported to but failed to undertake a full and fair sibling assessment in particular because they were undertaken without sibling contact being observed.



I have read law reports where Local Authorities have got things wrong. I have read law reports where Local Authorities have got things badly wrong. I have read law reports where they have been unfair, or stupid, or failed to act promptly, or acted in a knee-jerk way. I have read law reports where the Court disagreed with their recommendation and told them that they had badly misunderstood the law. But I’ve never read anything like this. It is utterly astonishing.  It is every conspiracy theory about what social workers do, come to life.

It is shocking, it is appalling. It is a damn scandal. It brings the profession into disrepute. The only tiny crumb of saving grace in the whole affair is that those involved were caught and that His Honour Judge Horton has shone a light into this scandal. I can only do my small part by telling my readers about it.


Back to this November 2015 judgment.  (I haven’t read the end of it yet, but I hope it ends in a whacking big cheque being written, or indeed the judgment being sent to the Attorney General)

The Judge had sent everyone away in December to conduct fresh assessments and also for the parents to be given therapy – there were problems with their parenting, but clearly in light of everything above, they had not been given a fair assessment.

There is a bit in the judgment about the mother clandestinely recording meetings with professionals (it is rather hard to blame her for doing that)


During the mother’s evidence she mentioned that she and F had covertly recorded a meeting with the Guardian and some contacts. The M had used her phone and F a digital recorder that looked like a slightly fat pen. He produced the pen recorder and 4 recordings. As the Court security staff had not come across such a device before I took steps to inform HMCTS of the existence of such devices. The recordings provided by F were not listened to by me and no one sought to rely on their contents.



Sadly, the assessment work with Symbol – an independent specialist assessment service had not gone as well as one might have hoped.  Against the backdrop of everything above, it is perhaps no surprise that the parents found it difficult to trust professionals.


         She [The Symbol worker] told me that it became clear that the parents have an absolute antipathy towards the LA and social workers to the extent that they even objected to Ms Hinton being involved in the assessment. In her and Symbol’s opinion it was an impossible task for the parents to work with or trust any professional which was a significant barrier to moving on. She said that whilst professionals were not challenging or agreeing goals, things went fine but when they tried to work with the parents the situation broke down “sharply, remarkably and quickly”. Anyone who attempted to monitor or change their parenting behaviour would she opined, meet great hostility.

116. She was criticised by the parents for not acknowledging properly or at all the enormity of the emotional toll and distress on the parents and the children caused by the events of the summer of 2013. In particular Symbol were criticised for not going through the judgment with the parents and not recording any discussion about these topics. If they had it was submitted, the parents could have ‘moved on’ and the assessment would not have stopped

The Judge spends several pages discussing the assessments and the evidence, and that I’m afraid would make an already long article too long. Sadly, he reaches this conclusion

 In my judgment it has not been evidenced that the parents have made the necessary changes that could allow them to make sustained improvements to their parenting styles or allow them to co-operate with professionals. Whilst they have demonstrated some ability to engage with therapy and have attended a parenting course they have not demonstrated that their fundamental attitude towards professionals has changed. Indeed I saw evidence during their oral evidence of their continued, deep seated mistrust and their tendency to accuse professionals of lying when challenged or disagreed with. Furthermore, I am satisfied that the failure of the Symbol assessment has reinforced in their minds that professionals cannot be trusted and this will make it even more difficult than before for professionals to work with them.

One can quite see how it would be extremely difficult for any parent to trust professionals after that December hearing – even with wholly fresh professionals to work with and therapeutic help, there was just too much damage done for the relationship to be repaired.

406. I am therefore satisfied that I must make care orders with respect to all five children to Hampshire County Council. I approve the plans for their placements as they are the plans that will promote the children’s welfare throughout their minority and protect them from significant harm. I am satisfied that no lesser intervention or order can achieve this aim due to the parents’ inability to work with professionals, in particular the LA.

It is very hard to feel comfortable about this. The Judge was clearly a Judge who was prepared to take on the Local Authority when they had been unfair and dishonest and who set up fresh and independent assessments and ensured that the parents got therapeutic help. So the parents got a fair hearing from the Court. But weren’t they just screwed by a system that says “you’ve got to work with professionals” and condemned them for not being able to, even though almost anyone in the same position would not have been able to trust again after the most shocking breaches of trust?  Very hard.

Even though I’ve had nothing at all to do with this case, or any of the sort of things that have happened in it and I never would, today is one of those days where I feel ashamed to even be part of the Family Justice system.

The damages bit hasn’t yet been dealt with. When I see the report of that, I will share it.

I was reminded by the parties that the parents and children have outstanding damages claims for the breaches of their Human Rights. As I indicated at the beginning of the hearing I have agreed with Hampshire’s DFJ that he should hear this part of the case. I will direct as part of the order arising from my judgment that a directions hearing be listed before him at his convenience.

417. I was concerned to learn that the three social workers who I previously criticised had not apparently been subject to disciplinary proceedings. I direct that my December judgment and this one be sent by the Director for Children’s Services to the Director of Social Services, Ofsted and those social workers’ supervisory bodies with a view to them considering whether further action against them is required.

I know that my commenters will want to talk about this case, and will probably be very cross about it. Please try to stay away from defamatory remarks (what the workers did in this case and what you think about it is fair game, what you think of them as people is for somewhere else, not here)

I also know that some of you will be wondering about perjury.  It is true that lying under oath is a criminal offence.  The police aren’t able to investigate perjury unless directed to do so by a Judge and a prosecution for perjury can only take place if the Attorney General authorises it

The Perjury Act 1911

1 (1)If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine

section 13 of the Perjury Act 1911, which sets out the corroboration needed to prove perjury can sometimes be difficult

A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.


[I.e Victoria saying that Colin is lying is not sufficient, there needs to be something more. Here of course, there were the computer records and emails in addition. The criminal standard of proof is high, and perjury prosecutions are very rare. And I am no expert in criminal law, so the furthest I can go is to say that it is a possible case where the Atttorney General might have a decision to make if asked]


Misfeasance in a public office is the other one that comes up from time to time. Not a criminal offence, but a civil tort.  That’s probably not much use because the compensation for that would be something that could be awarded under the Human Rights Act for the breaches already found in any event.  Though it is possible that the damages would be higher.

[Watkins v Home Office 2006

There is great force in the respondent’s submission that if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity.[1]

[1] [2006] UKHL 17, paragraph 8.  ]


And there’s the social work regulatory bodies who could be asked to take action. Social workers can and have been disciplined for bad conduct.

Barking up the wrong tree


Sometimes a case comes along that I just can’t resist, although it is not really family law.


Moosun and Others v HSBC (T/A First Direct) 2015


This is a case where there had been a quarrel between Ms Moosun and her bank (or rather former bank) and just about every form of litigation that could be issued by her had been issued. The bank responded by asking for a civil restraint order to prevent her issuing any more hopeless litigation.


Why I am I writing about this? Well, because of these paragraphs.


  1. The second application is dated 19th October 2015 and seeks to strike out the claim in action HC-2015-004041 which was issued on 21 September 2015. That claim is sought to be brought by Mrs. Moosun, her two infant children, and two dogs who are identified as Goldie, aged 18 months, and Diamond, aged 2 years. Again, Miss Wilmot-Smith takes the point that the claims by the children should be struck out as they are brought in circumstances where no litigation friend has been appointed on behalf of the children and no order has been made permitting the children to bring proceedings. That is right, and for the same reasons as in relation to the first claim, I shall strike out the claims by the children.
  2. Miss Wilmot-Smith also makes the obvious point that dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) defines “claimant” as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void, and accordingly I am satisfied that in so far as the claim purports to be made on behalf of the two dogs it should also be struck out.


Yes, the dogs were also suing the bank.


I also note that in previous litigation


For her part, Mrs. Moosun raised a considerable number of points concerning the actions by the bank, both as a matter of contract and in relation to an alleged denial of her rights under the European Human Rights Convention, among other things by reason of the fact that the original order made by District Judge Banks had been made in her absence. She also alleged that what was happening to her involved “satanic freemasons”.


Well, now we all definitively know (for those of us who had any doubt at all) that dogs cannot bring Court proceedings. That is merciful to me, because otherwise my dog would be bringing claims under the Canine Rights Act because I made him return from his holiday in Cornwall, where he was spending his days playing on beaches, swimming in the sea and eating Cornish pasties.

They’re a page right out of history


The family Courts are now able to accept service of documents (like statements and applications) by email, thanks to the new change to the Family Procedures Rules


The Family Procedure (Amendment number 3) 2015

I’ll just point out that this amendment actually amends the Rules made in 2010, which the keen-eyed technophile will note was a time when email already actually existed. Email is not something that has only come into popular use in the last five years.

Why it wasn’t in the 2010 Rules is a complete mystery. I’m pretty sure that everyone involved in writing the Rules was actually aware of the existence of email at that time and were probably even sending emails from time to time.

The previous version of the Rules governing all of these things was drawn up in 1991,  so you can understand why there wasn’t a specific provision for emails, (although that was the same year that the first email was sent from space, it wasn’t the common everyday form of communication that it became later that decade). But in 2010, providing a series of Rules for the way Courts would be managed that completely ignored the existence of emails looks not just backward but downright contrary.

But nevermind, in 2015, we now can lawfully file documents with the Court by email, thanks to these new Rules.

Well, don’t get too excited yet, because all that the Rules say is that it is now permissable for Courts to issue a Practice Direction saying that they will accept documents sent in by email.


4. After rule 5.4 (where to start proceedings) insert

Filing documents with and sending documents to the court by e-mail

5.5.(1) A practice direction may make provision for documents to be filed with or sent to the court by e-mail.

(2) Any such practice direction may

(a)provide that only particular categories of documents may be filed with or sent to the court by such means;

(b)provide that particular provisions only apply in specified courts or court offices; and

(c)specify the requirements that must be fulfilled for any document filed with or sent to the court by such means.


So until the Practice Direction comes out, we really shouldn’t send stuff to the Court by email.

[In reality, most Courts have been doing this for several years or at least we’ve all been sending them stuff by email in the hope that something happens the other end, but there was no provision in the Rules to allow them to do it, and an ornery Court could have told its users at any time that it didn’t accept service by email]


Sadly, there aren’t other provisions within the Family Procedure (amendment no 3) Rules 2015 that allow the Courts to recognise the existence of things that first became widely known in the mid 90s. So to this day, it is still impermissable to make a reference in Court to “Rachel out of Friends”, or that  something “smells like teen spirit”, or that a person can play music on an “ipod”.



Under FPR rule 29.2(j) (b) these men are to be referred to as "PJ and Duncan"

Under FPR rule 29.2(j) (b) these men are to be referred to as “PJ and Duncan”



I was reading recently in Tom Holland’s marvellous book, Persian Fires, the story of how a Persian general Histiaeus in 499 BC who wanted to send messages but not have them intercepted, would shave the head of a slave, tattoo the message onto the slave’s head, wait for the slave’s hair to grow back, then send them to run to the intended recipient, who would know to shave the hair off and see the message.  This method of filing documents on the Court was, I think, finally removed in the Family Procedure Rules 2010.


Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…


Readers of the blog may be familiar with Mostyn J’s continuing battle to have the Supreme Court change their mind about the deprivation of liberty test set down in Cheshire West, and failing that to simply disagree with their decision at every opportunity.

In this particular case, Rochdale had asked Mostyn J to authorise a care plan for a person lacking capacity that clearly amounted, on the Cheshire West test to a deprivation of liberty.

At the first hearing, Mostyn J told everyone that Cheshire West was nonsense (politely and judicially and intellectually, but that was the gist) and that the person was not being deprived of their liberty and thus there was no need to authorise it.

The case was appealed, and rather unusually, by the time that it got to the Court of Appeal EVERYONE agreed that the Mostyn J judgment should be overturned and that the person was being deprived of their liberty. The Court of Appeal approved a consent order to that effect but did not give a judgment explaining why Mostyn J had been wrong  (perhaps wrongly thinking that where everyone agreed the Judge was wrong and that he had gone against a clear Supreme Court decision with which he did not agree but was not able to distinguish the instant case from, that it was somewhat plain)



It went back to Mostyn J to authorise or not, the deprivation of liberty. However, he declined and took everyone, including the Court of Appeal to task and said that a consent order without a judgment was not binding on him. And thus did not reach the point of authorising the deprivation, but instead set down a hearing to be conducted by himself as to whether there was a deprivation of liberty at all.

Incredibly bravely (but rightly), the parties appealed THAT, and the Court of Appeal determined it.

[Previous blog on Round 3 of this peculiar litigation is here  ]


So, by way of catch-up here, in this one case, Mostyn J disagreed with the Supreme Court, then when the Court of Appeal disagreed with him, he disagreed with them. And now the Court of Appeal disagree with him again.

In the midst of all of this, are some real people with real problems to resolve, and a lot of taxpayers money being spent.

KW and Others v Rochdale MBC 2015


The Court of Appeal pull no punches whatsoever. In fact I understand that this was very much what it looked like when the Master of the Rolls removed his gloves after the judgment



The Master of the Rolls does not have to go through the metal detectors en route to the Court room

The Master of the Rolls does not have to go through the metal detectors en route to the Court room


But first, the technical part of the appeal – if the Court of Appeal approve a consent order overturning the decision of the original Judge but don’t give a judgment, is the case actually overturned? (I understand that this is actually one of the lesser known and unpopular Zen koans)


The grounds of appeal from the second judgment


  • The principal ground of appeal is that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided that KW was being deprived of her liberty.
  • We accept that (i) nowhere does the order explicitly state that there was a deprivation of liberty; and (ii) the use in para 2 of the order of the words “to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such liberty is hereby authorised” might suggest that the court was not deciding that the restrictions were in fact a deprivation of liberty. But read in their context, that is clearly not the correct interpretation for at least two reasons. First, para 2 must be read in the light of para 1, which governs the whole order. Para 1 states that the appeal is allowed. The remaining paragraphs set out the court’s directions consequential upon the allowing of the appeal. When read together with section 6 of the notice of appeal, the order that the appeal was allowed necessarily involved the court deciding that KW’s care package does involve a deprivation of liberty. The words “to the extent that” etc are perhaps unfortunate, but they cannot detract from what allowing the appeal necessarily entailed. These words were derived from para 11 of the Model Re X Order which had been published on the Court of Protection website and which practitioners had been encouraged to use. We were told by counsel that this form of words is not universally used. We understand that the form of words more often used is along the lines of: “P is deprived of his or her liberty as a result of arrangements in the Care Plan and these are lawful”. This is undoubtedly preferable to the earlier version.
  • Secondly, para 2 must also be read in the light of the consequential orders set out at paras 3 to 5 of the consent order. The reviews there provided for are clearly reviews of the kind contemplated where there is a deprivation of liberty.
  • It follows that the judge was wrong to hold that it had not been decided by this court that KW was being detained by the state within the terms of article 5. The appeal must, therefore, be allowed.


Was the consent order made ultra vires?


  • Was the judge right to say that the Court of Appeal took “a procedurally impermissible route” so that its decision was “ultra vires”? It is important that we comment on this statement in view of the general importance of the point and the fact that the judge’s comments have apparently given rise to considerable degree of public interest. We acknowledge that, despite these comments, the judge did say that the rule of law depends on first instance judges “complying scrupulously with decisions and orders from appellate courts”. And, as we have said, that is what he purported to do.
  • An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1993] UKHL 5; [1994] 1 AC 377 at 423; Isaacs v Robertson [1985] AC 97 at 101-103. It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.
  • In any event, the judge was wrong to say that the consent order was ultra vires because it was made by a procedurally impermissible route.
  • The issue turns on the true construction of para 6.4 of PD 52A. Rule 52.11 provides that the appeal court will allow an appeal where the decision of the lower court (a) was wrong or (b) was unjust because of a serious procedural or other irregularity in the proceedings of the lower court. It is concerned with the “hearing of appeals” which is done by way of a review or, in certain circumstances, a re-hearing. What is envisaged by rule 52.11 is a hearing which leads to a decision on the merits. To use the language of the first sentence of para 6.4 of the practice direction, this is what an appellate court normally does when allowing an appeal.
  • The use of the word “normally” in this sentence presages a departure from rule 52.11 in specified circumstances. The word “normally” followed by the use of the word “however” in the following sentence makes it clear that what follows specifies the circumstances in which the court may depart from the norm. The second sentence states that the court may set aside or vary the order of the lower court without determining the merits of the appeal, but only if (i) the parties consent and (ii) the court is satisfied that there are good and sufficient reasons for taking this course. That such a decision will be made on paper is clear from the heading to para 6.4 and the words of the third sentence. It is true that the second sentence speaks of setting aside or varying the order under appeal, whereas the first sentence (faithful to rule 52.11) speaks of allowing an appeal. But we do not consider that there is any significance in this difference of language. Rule 52.10 provides inter alia that the appeal court has power to “(2)(a) affirm, set aside or vary any order or judgment made or given by the lower court”. These words are picked up precisely in para 6.4 which sets out the powers that the appeal court has when allowing an appeal.
  • The appeal court, therefore, has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. What are good and sufficient reasons? The answer will depend on the circumstances of the case, but we think that it would be helpful to provide some guidance. If the appeal court is satisfied that (i) the parties’ consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point.
  • At para 14 of his judgment, the judge said that, where a merits based decision has been reached at first instance which all parties agree should be set aside on appeal, para 6.4 requires there to be a hearing and a judgment. He added: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise”. We disagree. Para 6.4 does not require a decision on the merits in every case where there has been a decision on the merits in the lower court. There is no reason to restrict in this way the wide discretion conferred by para 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words “good and sufficient reasons” are very wide. Further, we reject the notion that the judge whose decision is under appeal has any entitlement to a decision on the merits. In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant.
  • We accept, however, that there will be cases where it may be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agree that the appeal should be allowed. Mostyn J referred to cases in the field of family law. For example, in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 27, [2009] 2 FLR 922, the parties by consent asked the court to allow an appeal, set aside the order below and make a revised order. Thorpe LJ said:


“5. A short disposal might have followed but for our concerns that the judgment below had already been reported …..and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.

6. Accordingly, we decided to state shortly why we had reached a preliminary conclusion that the appeal, had it not been compromised, would in any event have been allowed.”


  • The fact that the decision of the lower court in that case was causing difficulty led the appellate court to conclude that there were not “good and sufficient reasons” for departing from the normal procedure of conducting a hearing and giving a decision on the merits.
  • An example from a different area of law is Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] [EWCA] Civ 185. The lower court had held that a certain patent was invalid. Following the issue of appeal proceedings, the case was settled. The Court of Appeal was asked to make a consent order for the restoration of the patent to the register without deciding the merits of the appeal. The court decided that it had to hear the merits on the grounds that, for a patent to be restored to the register, what was needed was a decision reversing the order for revocation and showing that the previous decision was wrong. Here too (but for a very different reason), the appellate court considered that a decision on the merits was needed.




But you aren’t here for the technicalities. You want to see what happened with that boxing glove and the horseshoes.



  • Mostyn J’s first judgment did not raise any issue of law. It is true that his criticism of Cheshire West (what he describes in para 20 of the second judgment as his “jurisprudential analysis”) raised a question of law. But this question has been settled by the Supreme Court relatively recently. The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to apply Cheshire West to the facts properly. The public interest in the first judgment has focused on his criticisms of Cheshire West. Unlike Bokor-Ingram, the decision of the lower court in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal must have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In our view, it was clearly right to do so.
  • This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.
  • In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge,
  • For the reasons that we have given, this appeal is allowed.



I am sailing, I am sailing – judicial recusal


Given how much fun the last case about judicial recusal was to write about, I was pleased to see a new one.


This one, Mackay v Mackay 2015, relates to what is presumably a big money divorce. As the amounts of money are discussed as £X million and £Y million, we can’t be sure exactly how much money, but a decent estimate is that it is at least two million, and probably quite a bit more.


In this case, Holman J was made aware of a situation.


I personally have had no prior involvement in this case whatsoever prior to today. Very early in the hearing today, Mr Valentine Le Grice QC, who appears today on behalf of the husband (but does not act for him generally in these proceedings), said that there were certain facts that he, Mr Le Grice, had been informed about that required to be drawn to my attention in case they impacted upon the appropriateness of my dealing with this case at the substantive hearings. There has been no suggestion, nor could there be, that I should not deal with this directions stage of this case today. I was somewhat surprised to hear that, since the full names of the husband simply do not impact upon me at all and, to put it bluntly but colloquially, I have simply never ever heard of him before. Further, when the husband came into court, he is not somebody who, frankly, I have the least recognition of, or the slightest recollection of ever having met; nor, indeed, do I have the slightest recognition of the wife, who is also in court.


My interest was massively piqued here. If the Judge doesn’t know the names of the parties, and doesn’t recognise their faces, under what scenario could there possibly be a suggestion that the Judge might have to consider whether it was appropriate for him to continue?   (I have to confess that the idea of some sort of Eyes Wide Shut masked ball scenario came to mind, but of course it isn’t that)

I am a very open judge and I have never concealed, for instance by entries in “Who’s Who” and Debrett’s “People of Today”, that one of my recreations is sailing. I was told that the husband is also keen on sailing. I have been told that he thinks that in the more distant past he has competed in boats racing against boats in which I myself was also racing. Whether or not that is so is, frankly, completely irrelevant to the situation with which I am now faced. However, I was also informed that the husband knew that I am a member (as I am) of a certain sailing club. He is not a member of that club. He is a member of another sailing club of which I am not a member, but the question was raised whether, through my membership of the sailing club, I might know or have friendship with certain sailing friends of the husband.


Certainly the fact that at some point in the past, the husband might have seen Holman J’s catamaran, or what have you, either sail off into the distance or whistle past it at a rate of knots during a race is neither here nor there.

Whether they might, as fellow afficiandos of the sail, have some mutual friends, is a possibility.

  1. A list containing 14 names was then produced to me. It is right to say that I recognised as names every name on that list. The majority of the people named I do not personally know at all. One or two of the others on the list I know very slightly or have met at some stage in the past. None of that, frankly, impacts on me at all. However, there is one name on the list which for the purposes of this judgment I will call “AB” (although those are not the person’s actual initials). I was told that he is somebody whom the husband knows well. I was told that, in the past, there have been business dealings between, or involving, the husband and AB. I was told that the husband currently meets AB about once a month and met him as recently as about two weeks ago. I was told that in the past AB has stayed at these parties’ villa in the south of France whilst participating in a sailing event.
  2. On behalf of the wife, Mr Nigel Dyer QC said on instructions that she did not appreciate that, and doubts whether, the true strength and extent of the connection between the husband and AB is as great as has been described by Mr Le Grice. Without hearing oral evidence on the point, which would be disproportionate and extraordinarily invidious, I have to take the state of affairs as being as described by Mr Le Grice.
  3. AB is not someone whom I would describe as a close personal friend of mine. He is, however, someone whom I have known for many years. There is, undoubtedly, friendship between us, friendship also between him and my wife, and friendship between me and his wife. He and his wife are people whom I and/or my wife meet from time to time in the sailing social context, and we and AB have numerous other mutual friends in common.
  4. The question that arises is whether that connection of a shared mutual relationship with AB is such that I should not have further involvement in this case. The expressed position of Mr Le Grice on behalf of the husband was that he was merely drawing these facts to my attention so that I should be aware of them. There was no application by Mr Le Grice that I should recuse myself as a result of them.
  5. The position of the wife, after Mr Dyer had had an opportunity privately to discuss the matter and take instructions from her, was that she was not concerned about this mutual relationship and that she did not apply that I should recuse myself


Well, that’s that then. The father knows AB fairly well, and AB also knows Holman J fairly well. Neither father nor mother say that this intersection would make Holman J unsuitable to hear the case. That’s that.


Aha! Not quite.  If you’ve been following the Appleton v Gallagher divorce case, you may have picked up that there is something of a schism in the High Court about divorce and publicity.   On the one hand, represented by Mostyn J, is the school of thought that there should be no publicity in divorce proceedings unless the case itself represents case law and that divorcing celebrities or millionaires should not have their innermost financial affairs set out by the Press just because they are getting divorced. On the other hand, represented so far chiefly by Holman J, is the transparency camp, which is publishing the details in judgments and thus the Press have access to it.   The Appleton v Gallagher case is going up to the Court of Appeal to see who might be right.


If you are a millionaire or celebrity who wants privacy then, at the moment, you might well prefer that your divorce is not dealt with by a pro-transparency  Judge, or one who you think might be pro-transparency.


The Wife makes this implied motivation explicit.


  1. The position of the wife did, however, go further than that. One of the applications that was issued by the husband on 11th September 2015 and returnable today was for orders to do with privacy. He sought orders that the hearings in October and February should be heard not only in private, but with the press and media excluded; and, further (most unusually in my experience) some advance order as to the terms in which any judgment might ultimately be couched. To exclude the press even from a hearing held in private is these days a strong step, and one which can only be taken in tightly circumscribed circumstances provided for in the relevant rules and practice direction; but it is known at the Bar that I am a judge who favours as much openness as possible in all court proceedings. Mr Dyer, frankly, speculated that the purpose of the husband in even referring to the possibility of overlapping friendships was a device deliberately aimed at causing me to recuse myself.
  2. It is, indeed, of the utmost importance that judges are very astute to spot, and not be trapped by, attempts to manipulate the identity of a judge for whatever purpose. Obviously, there may be judges who are believed to make high awards or low awards, and it is only too easy for a party who is seeking a low or a high award respectively to try to manipulate the position so that that judge is unable to hear the case. Similarly, it would, indeed, be intolerable if parties could manipulate the position so as to obtain or avoid, according to where their interests lay, a judge who favours openness in legal proceedings as opposed to secrecy. I am very alive to that risk.
  3. Unquestionably, if nothing had been said today about this shared interest in sailing and the possibility that there may be some overlapping friendships, then I would have continued to deal with this case and there could not have been the slightest difficulty. The fact is that the point has been raised. The fact is that it has been identified that amongst the friends or associates of the husband is this person, AB, who is also a friend of mine.


(In short, is this sailing issue, a well-disguised attempt at forum shopping?)


  1. The leading authority on the circumstances in which a judge should recuse himself probably remains Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004, a judgment of the court consisting of the then Lord Chief Justice, Master of the Rolls and Vice-Chancellor. The situation with which I am faced today is not one that falls within the principles which are the focus of that judgment. There is no question in this case of my having any kind of interest in the outcome of these proceedings and, in my view, no question in this case of any possible objective or apparent bias. Indeed, at paragraph 25 of their judgment in that case, the Court of Appeal were at pains to list many circumstances upon which, at any rate ordinarily, no objection could soundly be based. But at paragraph 21 of the judgment there is reference, albeit passing, to a judge recusing himself, “If, for solid reasons, the judge feels personally embarrassed in hearing the case.” Further, the broad approach at paragraph 25 is as follows:

    “In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.”

  2. I have given very careful consideration indeed to this matter. Apart from some obvious situations where I actually knew a party concerned, I can only recall one occasion in the over 20 years in which I have been a full-time judge, in which I have felt the slightest need to recuse myself for considerations of this kind. In that case, I had a long-term friendship dating back to university with the brother of the husband in the case. Although the brother did not feature at all in the case, it did not seem to me appropriate that I should hear it. This case is more remote than those facts, but I have decided that I do, or might, “feel personally embarrassed” in hearing this case.
  3. I wish to stress that I believe myself to be an independent-minded and fearless judge. I do not doubt my ability to be detached and objective in decision-making. But the context of this case, as I have outlined above, does, or may, involve making a judgment about the integrity or probity, and possibly the very honesty, of this husband. I do not yet know much about the facts, nor, of course, how the evidence may turn out. But, at any rate at its highest, the wife’s case will involve a proposition that the husband deliberately failed to disclose the discussions that he was having for the sale of his company at that much greater value, and may well involve the proposition that, at some stage or another, he deliberately lied or, certainly, deliberately suppressed the truth. If there is a common friendship with AB, I do feel that it could be a source of personal embarrassment to me in my relationship with AB if I had to find that another friend of his had acted in a fraudulent, devious or untruthful way.
  4. There is the further consideration in this case that, currently, a two-stage hearing is envisaged, with some months between the first and second stage. Undoubtedly, during that interval, there will be occasions upon which I will be meeting AB, since, as I have said, he is a friend whom I do meet from time to time.
  5. It seems to me that what I have described does amount in this case to “solid reasons” why I personally, as I do, feel personally embarrassed about further involvement in this case. For those reasons, I must, as I now do, recuse myself from any further involvement in the case after today.


It seems a shame to me that we may be moving towards a scenario where a Judge can’t have interests, hobbies or pastimes outside of the law, for fear that they may bring them into a position where someone they met at “Jam Club”,  “Abseilers Anonymous” or simply someone who shares their love of “Yacht Rock” might be a friend of a future Party.


mmmm.... smoooth

mmmm…. smoooth



[I know, I had a perfect opportunity to crowbar in a photo of Nicole Appleton, and I decided instead to use a photo of people pretending to be Hall and Oates.  I did really want to use the Nicole Appleton photo, but then a voice in my head said  “I can’t go for that (no can do)” ]


The weakest recusal I’ve ever seen in real life was a Judge who recused himself from what was going to be a really desperately boring hearing on the basis that one of the parties had a job as an insurance salesman for Norwich Union (you can feel the dullness of this case seep out) and the Judge concluded that he would be potentially embarassed as he had once received an unsolicited telephone call from someone trying to sell him Norwich Union insurance and had put the phone down “more abruptly than perhaps was reasonable”, and it could not be excluded as a possibility that it was the Party in question.  If you can suitably anonymise them, I’d love to hear weak recusal decisions or even applications…


Get every new post delivered to your Inbox.

Join 4,002 other followers