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Concessions and fact-finding

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

http://www.bailii.org/ew/cases/EWHC/Fam/2014/606.html

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

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

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

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

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

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

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

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

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

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

Mostyn-tacious – a judgment that makes your temples throb

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

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/121.html

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

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

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

 There ended up being three, and only three possibilities

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

Well, you then end up with

 

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

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

 

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

 

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

 

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

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

1. Did the event happen?

2. Who did it?

One compresses that into a one stage process

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

 You can end up with two different answers.

 

That led Mostyn J to form these two conclusions

 

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

 

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

 

But then

 

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

 

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

 

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

 

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

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

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

 

 

What to do in the interim?

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   http://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   http://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   http://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could takeOne would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

“Finding” out the hard way

A discussion of the High Court decision of A London Borough v A and Others 2013, and what it tells us about coming to terms with difficult findings.

 The case does not contain much that is precedent or important for cases other than for these specific facts, but on a human level, it throws up some really interesting issues, which I felt were worthy of a closer look.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/96.html

In this case, the family had had four children and one of them died. A finding of fact hearing was conducted, and the Court concluded that the father had been responsible for the death of that child, having rejected the proposition that one of the other siblings, C, had caused the injuries and hence the death.

At the final hearing, the mother had not come to terms with this finding or accepted it, and the Court were faced with the stark choice of adoption or returning the three surviving children to her care with that risk in place.

The Judge decided, having heard the evidence, that if mother could be assisted, through provision of therapy to move to  a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.”   

And made as a finding that if, at final hearing, she could be demonstrated to have reached that point, this would be sufficient for the children to be placed with her. The Judge therefore adjourned the final hearing for five months, to give mother the chance to get to that point, with help. This was a real second chance, and it was of course imperative for her to grab it with both hands.

Therapy was provided for her, and she was seen again by the psychologist following that therapy, to see if there was any movement

Sadly for her, there was not.

  1. On 19 November 2012, the mother’s therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother “is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn’t there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception.” The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.
  1. On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:

“I can’t know what happens if I wasn’t physically there … but I believe that he did not do it … there is nothing else apart from the Judgment that shows me what happened … Judges have the power to make a Judgment … but the coroner found something different … I wasn’t physically there, so I don’t know what happened.” She added, “it is not fair that I have to say what one person (i.e. the judge) has said”. She repeatedly stated that, as she had “not been there”, “I do not know” what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face: “but you don’t know K… – they don’t know K…” She said she knew K… very well and therefore I know he could not have done it.”

  1. The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.
  1. In his report, Dr Asen concludes that nothing has changed with regard to the mother’s internal understanding and acceptance of the risks posed by the father to the children and herself. “Essentially her current position is no different from how she presented earlier this year when I first assessed her …”

 

This is something which professionals come across quite often with findings of fact hearing, that the findings are made, that there needs to be some movement towards accepting them, but that people remain of the position that the judgment is ‘one person’s opinion’,  ‘they weren’t there, so how can the judge know what really happened’ and ‘they don’t know him/her like I do’

 Those are all pretty natural, understandable, and human reactions; but against the background of a ticking clock (as decisions needs to be made for the children and they can’t wait for the parent who has been found to be not culpable to come to terms with the awful reality).  It is harsh, it is difficult, but from a legal perspective (if not a human one), once the Judge has given that finding of fact judgment, that is now the truth of what happened.  As hard as that must be, once the Judge has made the decision, the time for doubts or uncertainties about what has happened has gone, the truth is now what the Judge said happened.  

In this case, and adding a particular dimension, there was of course the issue that if the mother was not accepting that father caused the injuries, the only other candidate was the child, C.  And how would C growing up in her care, with that in mind, impact on C?

 

  1. He [Dr Asen] advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would “tell him what the judge said …” When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating: “I don’t know what happened — I wasn’t there.”
  1. Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.
  1. Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.
  1. Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

 On a human level it is deeply sad and tragic that mother wasn’t able to reach the stage that the Judge had wanted, even with the help, and although he had lowered the stage from one of total acceptance of the findings.  It is not terribly surprising with a lawyer hat on, that the case was going to conclude with decisions that were adverse to her.

 She wasn’t helped by a decision to file a letter of support from a leading light of her local community / religion, this being more of a nail in a coffin than a letter of support  

The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children

The Judge’s consideration of the mother’s position was measured and careful, and was mindful of the difficult situation she found herself in

 

  1. Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.
  1. The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.
  1. Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.
  1. Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.
  1. Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.
  1. I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.

 

As we wind our clock ever more tightly and make the hands turn faster, how compressed will the time period for a parent to come to terms with an awful finding against their loved one be?  You can’t hurry love, as they say, but you can’t necessarily hurry dismantling that love in the light of an awful finding  either…

Is there a meaningful right to silence in care cases?

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.

 

The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)

 

Children Act 1989, section 98(1):

“In any proceedings in which a court is hearing an application for an order under

Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving

evidence,

on the ground that doing so might incriminate him or his spouse of an offence.”

 

 

And

 

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [or civil partner] in proceedings for an offence other than perjury.

 

 

 

So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]

 

There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”

 

The Court of Appeal clarified this in Re Y and K (Children) 2003

 

35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

 

 

And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.

 

 

As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.

 

That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.

 

They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.

 

Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.

 

But how true is that, in reality?  

 

 

There were a swathe of cases in the mid 1990’s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).

 

So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)

 

 

The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161

 

 

 

But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.

 

 

In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.

 

The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)

 

 

In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place.

 

http://www.familylawweek.co.uk/site.aspx?i=ed60575 

 

 

Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement

 

“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”

 

Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”

 

 

I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.

 

For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.

 

I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.

 

 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]

 

 

Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 

 

I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 

 

That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.

 

 

 

You can’t hurry issues of disclosure of anonymous referrers

 

Tenuous title, based on nothing more than it being a Supreme Court decision – and it didn’t fit my “Chicken Supreme” headline, which will be saved for a decision which deserves it. Big important case though.

I’d previously blogged about the Court of Appeal decision in this case, but now the Supreme Court have decided it once and for all.  In RE A (a Child) 2012    (which is weird, because the appeal case was re j, and we all anticipated this being re x)

The judgment is here

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0193_Judgment.pdf

 

You may recall, that the case involved an allegation of  a sexual nature being made against a father by a person who wished to remain anonymous. The father wanted to know the details of the referrer, with a view to establishing  a case of why this person might make ghastly and untrue allegations against him; and the Court of  Appeal had to grapple with the twin concepts of article 6 right to a fair trial, and the broad public interest immunity in people being able to make referrals about child abuse in an anonymous capacity, to remove the risk that proper referrals might not be made if the person wishing to make one was fearful of reprisals, both in and out of Court.

I have put that in a very clumsy manner, let’s see how genuinely clever and articulate people do it

1.We are asked in this case to reconcile the irreconcilable. On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. These interests are not only private to the people involved. There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm.

Much better.

 

The issues in this case of course go much broader and deeper than the case itself, and cut to the heart of how the Court is to tackle allegations which on the face of it are serious and grave but where the primary evidence is from someone who wishes to remain anonymous and does not want to come before the Court and have the primary evidence tested by cross-examination.

From the ‘public interest in anonymity’ standpoint, a better case could not have come before the Court – the allegations were not to be determined at a fact-finding, the identity of the referrer was known to the Local Authority who were able to notify her and she was able to secure intervenor status and undertake psychological assessments showing how devastating and harmful revealing her identity might be. It must be at the high watermark of cases where the concern about disclosure is significant and real, rather than theoretical and about the principle in a wider sense.

The Supreme Court helpfully set out the positions of the respective parties

13.The positions of the parties are as follows:
(i) Sarah Morgan QC, on behalf of X, resists disclosure on the primary ground that this will violate her right not to be subjected to inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights. Alternatively, the balance between her right to respect for her private life and the rights of the other parties should be struck by the court adopting some form of closed material procedure which would enable the allegations to be tested by a special advocate appointed to protect the parents’ interests but without disclosure to the father.
(ii) Paul Storey QC, on behalf of the Children’s Guardian, supports disclosure in the interests of A. A’s right to respect for her private and family life is engaged, as potentially is her article 3 right to protection from abuse: see Z v United Kingdom (2001) 34 EHRR 97. The allegations cannot be ignored but they cannot be taken into account unless they can be properly investigated.
(iii) The mother is in the same position, but with the additional feature that she knows who X is and believes the principal thrust of her allegations to be true. She understands that it will not be possible to rely upon these unless they can be properly investigated but she will have great difficulty in agreeing that the father should resume unsupervised contact with A unless they are.
(iv) The father also supports disclosure. He might instead have relied on the mother’s inability to pursue the allegations without disclosure but he wishes to have them resolved. Not having seen the history of how and when X’s allegations were made, he does not accept the judge’s conclusion that they were not prompted by the mother.
(v) The local authority now adopt a completely neutral stance as to disclosure. Roger McCarthy QC on their behalf accepts that if the material is not disclosed in these proceedings it would not be possible for the local authority to bring care proceedings to remove A from her mother unless the material could be disclosed in those proceedings. In other words, they accept that they cannot have it both ways and put all the burden of protecting A upon the mother without giving her the material with which to do so.

 

The law is then set out

 

14. It is convenient first to look at the principles governing the issue at common law, before considering how these may have been affected by the implementation of the Human Rights Act 1998.

15. The local authority claim public interest immunity for their records relating to X and her allegations. They are doing so because of the public interest in maintaining the confidentiality of information given to the authorities responsible for protecting children from abuse. That this is a class of information to which public interest immunity attaches has been established since the decision of the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. That case accorded to people who informed the authorities of allegations of child abuse the same protection as informants to the police and the gaming authorities. It is not the fact that the information is communicated in confidence which attracts the immunity, but the public interest in encouraging members of the public to come forward to help the authorities to protect children. That this may also protect an untruthful or malicious informant is the necessary price to be paid. Although D v National Society for the Prevention of Cruelty to Children was concerned with a neighbour who claimed to have witnessed the alleged abuse, rather than a victim, I can see no reason why the same rationale should not also apply to the victims of alleged abuse.

16.That is not, of course, the whole story. The immunity is only the starting point, for without it there is no question that all documentation relevant to the proceedings must be disclosed. Public interest immunity is not absolute. The public interest in maintaining confidentiality must be balanced against the public interest in a fair trial, according to principles which have developed since the landmark case of Conway v Rimmer [1968] AC 910 required the court to strike that balance.

17.If the public interest against disclosure prevails, the decision-maker, whether judge or jury, is not entitled to take the information into account in deciding the result of the litigation. There is no hard and fast rule as to whether the same judge can continue to hear the case. It is well-established that a judge may do so in a criminal case, but then the jury and not the judge are the finders of fact. It may also be possible to do so in a civil case: see Berg v IML London Ltd [2002] 1 WLR 3271. The well-established test of apparent bias will apply: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357.

18.Are cases about the future care and upbringing of children any different? The whole purpose of such cases is to protect and promote the welfare of any child or children involved. So there are circumstances in which it is possible for the decision-maker to take into account material which has not been disclosed to the parties. As Lord Devlin put it in In re K (Infants) [1965] AC 201, 238, “a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed”. He went on, at p 240, to approve the words of Ungoed Thomas J at first instance [1963] Ch 381, at p 387:
“However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose. . . . In general publicity is vital to the administration of justice. Disclosure to the parties not only enables them to present their case fully but it provides in some degree the advantages of publicity; and it further ensures that the court has the assistance of those parties in arriving at the right decision. So when full disclosure is not made, it should be limited only to the extent necessary to achieve the object of the jurisdiction and no further.”
Thus, while there was no absolute right for the mother to see the report made by the Official Solicitor as guardian ad litem for a ward of court, the discretion to refuse it was to be exercised “occasionally and with great caution”. Lord Evershed had earlier set the bar extremely high when he said (at p 219) that “a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant must otherwise ensue” (emphasis supplied).

19. In In re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593, referred to by the Court of Appeal in this case as the “starting point”, Lord Mustill, at p 611, did not accept that Lord Evershed intended those words to be read literally as a standard applicable in every wardship case, let alone in adoption cases which were governed by the Adoption Rules. These then provided that all reports were confidential, but that an individual could inspect any part of such report which referred to him, subject to the court’s power to direct otherwise. In Children Act proceedings, Lord Mustill preferred the broader principle enunciated by Glidewell LJ in In re B (A Minor)(Disclosure of Evidence) [1993] Fam 142 at p 155:
“Before ordering that any such evidence be not disclosed to another party, the court will have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it.”

20. Thus Lord Mustill concluded, at p 614, that “the presumption in favour of disclosure is strong indeed, but not so strong that it can be withheld only if the judge is satisfied that real harm to the child must otherwise ensue”. He went on, at p 615, to enunciate the principles which have been recited ever since:
(i) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.
(ii) When deciding whether to direct that a party referred to in a confidential report in adoption proceedings should not be able to inspect the part which refers to him or her, the court should first consider whether disclosure of the material “would involve a real possibility of significant harm to the child”.
(iii) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.
(iv) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

21.It will thus be seen that these principles are designed to protect the welfare of the child who is the subject of the proceedings, to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child. If they were to be applied in this case, it is clear that there is little or no risk of harm to A if the material is disclosed. The risk is if the material is not disclosed and a wrong decision is reached as a result.

22. The principles enunciated by Lord Mustill do not address whether it might be possible in Children Act proceedings to withhold information which is to be taken into account by the court from any of the parties on the ground that disclosure might cause harm to someone other than the subject child. In In re B, above, the proceedings were about a father’s contact with his 12-year-old son. His 15-year-old half-sister had made serious allegations of sexual abuse against her stepfather which the mother wanted the court to take into account without
disclosing them to the father. As Glidewell LJ pointed out, at p 156, the order was sought, mainly if not entirely, for the protection of the half-sister and it was the son’s welfare which was the court’s paramount consideration. Even if it were suggested that in some way the son might be harmed by disclosure (though the suggestion was rather that having to keep his sister’s allegations secret would be harmful to him), that possibility had to be weighed against the grave injustice which would result from non-disclosure. So even in a case where the third party was a child, it was the interests of the subject child which might have justified non-disclosure.

23.We therefore have to look outside those authorities for the source of any power to withhold such information in the interests of a third party. As the common law stands at present, in the absence of a statutory power to do so, the choice is between the case going ahead without the court taking account of this material at all and disclosing it to the parties.

 

The Court went on to consider the human rights implications, and chief amonst these was whether there were article 3 and article 8 rights attaching to the referrer who wished to be anonymous, to be weighed against the article 6 rights of the parents facing allegations about which they did not have full information

24.To what extent, if at all, are these principles affected by the Human Rights Act 1998? In A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, the Court of Appeal accepted that the principles of non-disclosure might now have to be extended to other people whose Convention rights might be violated by disclosure.

25.It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

26.However, Miss Morgan on behalf of X has relied principally (as did the mother in A Local Authority v A) upon her article 3 right not to be subjected to inhuman or degrading treatment. Requiring X to give evidence in person would, she argues, amount to treatment for this purpose, but so too would the act of disclosure because of the effect that it would have upon X. Dr W was specifically asked to distinguish between the effect of disclosure and the effect of giving evidence (see para 6(vi) above). She replied that disclosure alone would potentially be detrimental to her health. She pointed out that her condition had deteriorated considerably recently, to such an extent as to be life-threatening. Disclosure would
inevitably subject her to further stress. There was therefore a significant risk that exposure to further psychological stress would put her at risk of further episodes of illness. That, argues Miss Morgan, is sufficient to bring the effects of the treatment up to the high threshold of severity required by article 3. X has therefore an absolute right not to be subjected to it.

27.The other parties to these proceedings question whether mere disclosure can amount to treatment within the meaning of article 3. They also support the conclusion of the Court of Appeal that the effects of disclosure alone would not reach the minimum level of severity required to violate article 3. Indeed, Peter Jackson J, while concluding that requiring X to give evidence would probably reach that high threshold, did not hold that disclosure alone would do so. He did not say that it would not, but it is clear, not least from the questions he asked of Dr W, that he was fully alive to the distinction between the effects of disclosure and the effects of giving evidence.

28.If her argument on article 3 is not accepted, Miss Morgan’s secondary case on behalf of X is that the invasion of her private life which would result from disclosure of this material in these proceedings is so grave that it would be disproportionate to disclose it. The court should therefore contemplate some form of closed material procedure, which would enable the material to be put before the court and tested, without disclosing either her identity or the details to the other parties.

 

That suggestion is broadly what had happened in the original High Court case, the Judge had seen the information and determined that it was not something on which a finding of fact hearing was required, and put it out of his mind – one major issue for the Court of Appeal was whether the Judge who had undertaken that process and set the information out of his mind could genuinely do so and was in a position to conduct the remainder of the case without the parties having the impression that evidence not seen by them might be influencing him in some way.

29.If we were dealing with the common law principles alone, the answer would be clear. There is an important public interest in preserving the confidence of people who come forward with allegations of child abuse. The system depends upon the public as its eyes and ears. The social workers cannot be everywhere. The public should be encouraged to take an interest in the welfare of the children in their neighbourhoods. It is part of responsible citizenship to do so. And that includes victims of historic child abuse who have information about the risks to which other children may now be exposed.

30.But many of these informants will not be required to give evidence in order to prove a case, whether in criminal or care proceedings, against the perpetrators of any abuse. Their information will simply trigger an investigation from which other evidence will emerge. Their confidence can be preserved without harming others. In this case, however, that is simply not possible. We do not know whether A is at risk of harm from her father. But we do know of allegations, which some professionals think credible and which would, at the very least, raise the serious
possibility of such a risk. Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which her father may present to her or can resume her normal relationship with him. That simply cannot be done without disclosing to the parents and to the Children’s Guardian the identity of X and the detail and history of the allegations which she has made. The mother can have no basis for seeking to vary the arrangements for A to have contact with her father unless this is done. If this were an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie.

31.It is, of course, possible that the harm done to an informant by disclosing her identity and the details of her allegations may be so severe as to amount to inhuman or degrading treatment within the meaning of article 3. The evidence is that X suffers from a physical illness which is at times life-threatening and that her condition deteriorates in response to stress. The father does himself no credit by belittling this. There was some discussion about whether we were here concerned with the duty of the state to take positive steps to protect her from harm (under the principles explained in Osman v United Kingdom (1998) 29 EHRR 245) or with the duty of the state to refrain from subjecting her to harm. As we are here considering the actions of the state – whether the state should disclose to others information which she gave it in confidence and, in future, whether the state should compel her to give evidence in these proceedings – I have no doubt that we are here concerned with the primary, negative, duty of the state to avoid subjecting her to inhuman treatment.

32.However, when considering what treatment is sufficiently severe to reach the high threshold required for a violation of article 3, the European Court of Human Rights has consistently said that this “depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim”: see, for example, Kudla v Poland (2000) 35 EHRR 198, para 91. The court has also stressed that it must go beyond “that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment”: para 92. Thus the legitimate objective of the state in subjecting a person to a particular form of treatment is relevant. A well-known example is medical treatment, which may well be experienced as degrading by a patient who is subjected to it against his will. However, “A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading”: Juhnke v Turkey (2008) 49 EHRR 534, para 71, citing Herczegfalvy v Austria (1992) 15 EHRR 437, para 82. Obviously, the ends do not justify the means. But the context in which treatment takes place affects the severity of its impact. The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a
consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her. I conclude therefore, in agreement with the Court of Appeal, that to disclose these records to the parties in this case will not violate her rights under article 3 of the Convention.

33.However, that may not be the end of the matter, for to order disclosure in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?

 

The Supreme Court here are agonising with the irresistable force of not wanting to cause harm to a vulnerable individual who made an allegation in an expectation of anonymity, and the immovable object of article 6 and the right to a fair trial. They have a quick look at whether they can avoid the irresistable force hitting the immovable object by digging a hole to divert the path. Will it work?

 

34.It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a “gist” of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case.

35.The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference
with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.

No.

And they therefore have to conclude that the immovable object of article 6 is indeed immovable, and the irresistable force of articles 3 and 8 and PII will just have to be resisted. The parents have a right to see the details of the referrer.

 

They do go on to assess how the article 3 and 8 rights might be massaged a bit, and that disclosure of the referral and identity of the referrer does not necessarily mean the referrer giving evidence, that would be a separate issue as to whether she was fit to do so.

 

The cynic in me suggests that we might well see an end to the days when the Local Authority took the names of the referrer who wished to be anonymous. That obviously sidesteps any issue of disclosure of their identity. But Local Authorities will certainly need to arrive at a proper script in the light of this case for what is told to people who ring up wanting to make a referral and who wish to be anonymous.

Because if they are told now “It’s okay, your name will be kept out of it and the family won’t know it was you” then it seems to me that there’s a prospect of satellite litigation about whether the LA properly informed them of the consequences of their action.

Additionally, it is not clear to me whether the LA are supposed to cough up the name and just waive PII (which poses some, but not insurmountable problems in PII law), or whether they place the matter before the Court and for the Court to order that the interest of justice override PII, or whether the procedure here where the referrer get intervenor status and a chance to argue article 3 and article 8 is the right one.

 

One thing is for sure, seeing the words “Anonymous referral” in a social work chronology is now not the end of the story, but the start of a whole new diverting chapter of litigation.

 

 

 

One of these nights you’re gonna get caught, It’ll give you a pregnant pause for thought

 

 (Always nice to sneak a bit of Billy Bragg into the blog.  My favourite Billy Bragg line is, of course, from Sexuality  “I had an uncle who once played / for Red Star Belgrade”)

This is a discussion of the extraordinary case of A Local Authority v S & O [2011] EWHC 3764 (Fam)

 

http://www.familylawweek.co.uk/site.aspx?i=ed102837

 

You know that something is peculiar when a High Court Judge begins with Even by the standards of the Family Court this is a strange tale.. 

 

And he is not wrong.

 

 

Mr and Mrs S were a Nigerian couple, living in England. They wanted to have a baby, and heard of a fertility clinic in Nigeria, Port Harcourt.  They paid a lot of money to this clinic, and the mother had treatment there. She returned to the UK and had tests and scans with her GP, which confirmed that she was not pregnant. She rang the Port Harcourt Clinic, who told her that this was not unusual with the process and that she should come over.  She visited Port Harcourt and was sedated and then presented with a baby.

 

Mr and Mrs S returned to the UK with the baby.  On visiting their GP, the GP considered that the care of the baby was very good, but having determined that Mrs S had not been pregnant, was deeply troubled by the story of the delivery and contacted the Local Authority.

 

A DNA test was done, showing that the child had no biological connection to either Mr or Mrs S.

 

Care proceedings were commenced, it being apparent to the Local Authority that this child had been removed from birth parents and brought into the country and was living with people who had no parental responsibility.

 

The issue that fell to be determined by the Court was whether Mr and Mrs S had been deceived and hoodwinked by the Port Harcourt clinic, or whether (as the LA asserted) it was inconceivable (pardon the accidental pun) that they had fallen for this and that they had either fully known or simply turned a blind eye to the obvious truth that this had never been their baby.

 

 

Here are the contentious findings sought

 

“(vii)  Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.

(viii)  Mr. S knew or ought to have known that O was not their biological child.

(ix)  On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.

(x)  At the relevant date, O’s care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties.”

 

 

 

Now, this is the bit I find significant, and appalling. As the DNA test had shown that this was not their child, Mr and Mrs S had no PR, and received no public funding. So, they were fighting to defend themselves against these highly damaging allegations and also seeking to care for a child who they had formed an emotional connection though not a biological one.   Whilst my gut instinct view of the allegations was that the LA were probably right, it seems to me manifestly wrong that Mr and Mrs S had no legal representation to fight this case, and it is one of those bureaucratic idiocies which makes me slightly ashamed to be British.

 

As luck would have it, a pro bono barrister came forward, Mr Nicholas Paul, and he clearly did an admirable job for his clients.

 

 

I think it is worth setting out the history of the matter given by the mother, as it is important in trying to establish whether this was a nod and a wink  “Oh, I’ll pay for ‘fertility treatment’ but we both know I’m actually buying a baby”  or whether the clinic was actually seeking to deceive naïve and desperate couples.

 

“I have been married to Simon S since 2002.  On 8 January 2011 I gave birth to O at God’s Gift Clinic Maternity in Port Harcourt, Nigeria.  The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.

4.  In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight.  I returned to Nigeria in April upon Dr. Chineri Emica Precious’s request for a medical check-up and she confirmed that I was pregnant. 

5.  I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010.  I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant.  At this stage, my symptoms of pregnancy persisted.  I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.

6.  On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby.  This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant.  I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan.  Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).

7.  I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication.  I assumed that this continued treatment was in order to maintain the pregnancy.  I had no reason to doubt her sincerity or expertise in this regard.

8.  In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.

23  She continued at paragraph 13:

“In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.

14.  Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage.  I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding.  However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.

15.  In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room.  I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described.  Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O.  I had named her as was customary and obtained a birth certificate for her.”

24  Paragraph 19:

“Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E’s bereavement all over again.  In short, I have been depressed and traumatised.  We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain.  I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment.  I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.

21.  I have cooperated fully with the police and the Applicant in the course of their investigations into this matter.  As a family, we coped fully with E’s serious disability and maintained our composure and dignity throughout.  The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family.  I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim.”

25  That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April.  In that they said this.  It was a joint statement produced by both Mr. and Mrs. S.  I read from it because it is of crucial significance:

“O was not deliberately removed from her parents in Nigeria.  She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009.  During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O.  My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise.  The strong belief in the pregnancy and birth experience led to O’s birth registration.  All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.

The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results.  We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us.  However, it was the DNA results that caused us to see ourselves as victims of crime or error.”

26  They carry on in similar vein, concluding in this way at paragraph six:

“Regardless of the DNA results, we genuinely love O as we would love our own child.  S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child.  We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system.”

 

 

If what she says is right, and the clinic sedated her and gave her medical treatment intended to make her believe that she was in labour, and then presented her with a baby, then her ‘crime’ is really to have believed the clinic rather than her GP who was saying that she wasn’t pregnant.  You may think that she was gullible, foolish, perhaps even stupid; but that’s a distance from deceit and complicity.

 

 

The story seems utterly fanciful, however. A fertility clinic that goes to all the trouble of trying to make women believe that they have given birth as a charade for what is actually a straightforward sale of a baby? However…

 

35  Could this be a true story or is it an elaborate piece of invention?  On the face of it, the court’s first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence.  It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011.  This is also available in fact on the internet.  Under the headline, “Baby Factories: how pregnancies/deliveries are framed”: “Vanguard’s investigation reveals more baby factories.”  There  appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother.  I shall read two sections from the article.  I have already read the banner headlines about baby factories and it contains a number of black and white photographs.  These passages are to be found in the article:

“Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby.  We gather that twins go for about N1.5 million or more.  The delivery date depends on the baby seekers.  While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources.  Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given.  The delivery date can be postponed indiscriminately based on the availability of the baby.  Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands.  Most of these centres are found in …”

36  It mentions three towns including Port Harcourt.  Then under the heading, “How Pregnancy and Deliveries are Framed” it reads:

“Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant.  Occasionally, a movement is caused in the belly making it look as if a baby is kicking.  The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process.”

37  It goes on in similar vein and it contains this passage further on:

“Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour.  Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery.  A baby is then sneaked in and made to cry.  The woman is also made to believe she has been delivered of a baby.  In Precious Ogbana’s case, she told the reporter that when she had one of the babies it was recorded to a friend’s cell phone but she deleted the video a few days later.  She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids.”

38  There are a number of case studies set out in the course of that lengthy, double page article.  Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria.  I have described the process as a baby exchange.

39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant? 

 

 

 

The Judge then had to grapple with that central question, and reached these conclusions

 

50 How do I analyse the evidence to arrive at a conclusion in this mysterious case?  The following factors have guided my decision:

51  The mother is an intelligent woman who teaches at an adult literary college in London.  She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema.  This factor has to count for something even in these cynical days in which we live.

52  The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters.  In all important respects, her versions both in writing and to the police have remained consistent.  In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.

53  By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness.  I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court. 

54  Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed.  They willingly took part in the two DNA tests. 

55  When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called “smoking guns”.  That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side’s version of the possible truth.  In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth.  What are these factors?

56  The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake.  I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England.  To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later.  But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth.  In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.

57  By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention?  She would merely have gone out there in December, around the time of her expected delivery, and collected the child.

58  By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal.  She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong.  Miss Watson, having to overcome this telling point, says that she took a calculated risk.  That, if I may say so, is a gross understatement.  It would have been sheer lunacy.  As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.

59  Then there is the short video clip arranged by the mother.  If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth.  In fact, it does nothing of the kind.  It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta.  There is in fact no sign or real attempt to link the baby with the mother.  There is no sign of blood on the mother or indeed any sign that she had just given birth.  It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered.  Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth.  The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother’s involvement.

60  I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged.  In fact, the mother did not do so.  She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.

61 All the mother’s actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents.  Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.

62 What are the findings that I make based on this assessment of the evidence?  Firstly, most of the primary facts are agreed and not challenged.  Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009.  She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible.  Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money.  Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned.  They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country. 

63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting. 

64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother’s mental health any more than the general practitioner does or did.  It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.

65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death. 

 

 

The Judge then invited the Local Authority to reconsider their view of the case and specifically whether Mr and Mrs S could be considered as carers. They declined to do so and an Independent Social Work assessment was therefore commissioned.

 

The mainstream media seem, to me, to have reported this case as being that Mr and Mrs S got the child back, and not that they had won the right to an independent assessment of whether they should.

 

A fascinating case, and one that I hope will be unique, although as our world gets smaller, the chances of unscrupulous practices playing a part in UK care proceedings must increase.

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