RSS Feed

Cloak and dagger threshold

 

The word Kafka-esque crops up a lot when you talk about the family Courts, but here’s one where it is actually apt. Whatever the evidence was against the parents, not only could they not see it, but the social worker wasn’t able to see it either. And nor was the Judge.

 

Re C a child 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3171.html

S015,  Counter Terrorism Command notified the Local Authority that a man who was a father of children was considered to be a significant risk of terrorism activities, radicalisation and possible flight to Syria (possibly with his children).  The Local Authority issued care proceedings.  To make this perfectly plain, if it had not been for the notification from S015, the Local Authority would not have issued care proceedings. They had no evidence, concerns or suspicions of their own. They were reacting to that notification from an organisation who they understood to have credible evidence for that belief.

 

 

"You can't TAKE Command. Command takes YOU"   Okay, so this is B6-13 not SO-15, but you get the idea

“You can’t TAKE Command. Command takes YOU” Okay, so this is B6-13 not SO-15, but you get the idea

This is what S015 told them

 

 

  • Two pieces of material led to the initiation of the application for a care order. The first stemmed from the assessment of HM Passport Office that the father is “an Islamist extremist who has previously travelled to Syria and engaged in terrorism-related activities” and that he is “likely to travel overseas to Syria in the near future … to engage in further terrorism-related activity, including fighting alongside an Islamist terrorist group.”
  • A very similar form of words was provided to the local authority on behalf of SO15 – “information suggests that (the father) holds an Islamist extremist mind-set. Information suggests that (the father) travelled to Syria in 2013 and 2015 where, it is assessed, he was fighting with an Islamist extremist group.

 

That’s sufficient to meet threshold – it is a good concluding paragraph to a threshold document on radicalisation.  The issue of course is that it works as a concluding paragraph, after the preceding paragraphs set out WHY those things are true and WHAT the evidence is to prove it.

 

However, SO15 didn’t provide that. And they didn’t provide it after the Court made an order for disclosure.   They applied to discharge the disclosure orders. At first they said that the order hadn’t been particular enough or that it was necessary to disclose anything at all.  That was a bold claim, given that the Judge who made the order was the one hearing that argument.

 

The arguments advanced on behalf of the SSHD

1. Failure to adhere to the Guidance – inappropriately wide request; insufficient notification as to issues; order made without notice

 

  • Ms Wheeler seeks to argue that the local authority’s approach to disclosure does not accord with the President’s Guidance, particularly paragraphs 10 – 12. She suggests there has been insufficient regard to the highly sensitive nature of the material sought and a failure to respect the differing roles of the public bodies identified within the Guidance. Ms Wheeler submits that the local authority should have informed the body from whom information is sought about the proceedings, including the matters in issue and what material it is minded to seek. In the first instance there should be discussion and if a hearing is required it should be on notice. Here, says Ms Wheeler, there would appear to have been no sound reason why the hearing was not on notice.
  • In relation to the last point, it would have been better, obviously, if the SSHD had been represented at the hearing on 4 October. But, as the terms of the order reflected, there was a need to make progress in the proceedings; and over the following 4 weeks there was no application to discharge or vary the order. At the hearing on 2 November, the indications were that consideration was being given to an application for a closed material procedure.
  • Ms Wheeler emphasises the need for a “coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved” – see paragraph 10 of the Guidance.
  • I pause to reiterate that had it not been for information properly conveyed to the local authority by SO15, the strong likelihood is that local authority would have had no basis for instituting proceedings of any kind. For the SSHD to now contend that the local authority should have identified in discussions what the proceedings were about, the matters in issue and the information it was minded to seek, defies logic. It is a circular argument of the most bewildering kind.
  • In any event, read as a whole the order of 4 October is transparently clear and amply substantiates the requirement for disclosure. Recital 3 identifies that the court is faced with “an application for a care or supervision order;” and the reason the disclosure order has been sought is to “assist the court in determining (that) application.” Critically, recital 4 states that “(t)he court needs information about any extremist or radicalised conduct by adults in the family.” To suggest that the issues in the proceedings were imperfectly or inadequately defined is simply wrong.
  • The local authority was in no position to specify precisely what information is sought (beyond the provisions of paragraph 1 of the order) for the obvious reason that it does not know what is held. Whilst I quite accept that requests for disclosure should be approached with, as Ms Wheeler suggests, “particular care and circumspection” it is difficult to identify what more this local authority could have done in terms of specificity or definition. Whether in this instance it would have been of real benefit to the SSHD to have case summaries and draft threshold documents is extremely dubious. Once more I reiterate that had it not been for the “tip off” from SO15, there would have been no reason for this local authority to initiate proceedings. The notion that the SSHD has insufficient information to respond, other than by seeking discharge of the disclosure order, is to my mind fallacious.

 

2. Failure to comply with FPR r.21.2(3) or have regard to the Guidance – necessity

 

  • The second complaint made on behalf of the SSHD about the disclosure order of 4 October 2016 is closely related to the first. Ms Wheeler relies upon the terms of r.21.2(3) of the Family Procedure Rules 1991 – “disclosure against a third party is only permitted where it is necessary in order to dispose of the proceedings fairly” and paragraph 7(e) of the President’s Guidance – “the need (for judges) to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which would damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is ‘necessary to enable the court to resolve the proceedings justly’.”
  • Ms Wheeler contends that the SSHD and the Passport Office “are almost entirely in the dark about the nature of the local authority’s case and the allegations of significant harm.” She maintains that disclosure was sought on an erroneous basis, namely that it would “assist” the court.
  • I cannot accept that the wrong test was applied to the disclosure request. The face of the 4 October order (recital 4) records that the court “needs” the information. I reject the suggestion that I would have sanctioned a disclosure order against the SSHD, or any other third party, unless satisfied there was a genuine necessity.

 

 

However, SO15, and the SSHD (Secretary of State for the Home Department, or the Home Secretary) had an ace up their sleeve. Counsel representing the SSHD made it clear that if the Court wanted to press ahead with an order for disclosure, the Home Secretary would sign a Public Interest Immunity certificate which would prevent the disclosure of any material.  There’s a process for the PII certificate to be reviewed by the Court, but none of the parties would see the basis on which it was asserted that disclosure would be against the national interest.

 

Rock, I’d like you to meet Hardplace, Hardplace, this is the Rock.  I’ll just stand between the both of you.

 

In a game of Rock Paper Scissors, the Rock wins every round

In a game of Rock Paper Scissors, the Rock wins every round

 

Obviously the family Court don’t want to trample on national security and of course security services don’t want to cough up in detail why they happen to be watching the father and what led them to do so and what they have found out about who he is talking to, because that could jeopardise all sorts of other important and sensitive and possibly life-threatening/life-saving operations.   And given that the family Courts have so far ended all of the radicalisation cases with the children remaining with the parents, one can see why SO15 don’t consider that it is worth taking those risks with sensitive information given the likely final resolution of any individual case.   (At present it rather seems as though you are better off  in care proceedings as a parent being in contact with ISIS members than letting your ten year old child shoot terrorists on Call of Duty, but that’s just my cynical jaded take on it)

On the other hand, there are children here and the Local Authority can’t obtain orders to protect them without having evidence to show why they need to be protected and the parents can’t refute the allegations about them without knowing what they are.

 

The Judge left the disclosure orders in place, indicating that when and if the Home Secretary issued a PII certificate, that would be the time for consideration of whether the reasons on the PII certificate outweighed the need for disclosure.  If there is no disclosure, presumably the application will have to be withdrawn, as the LA have no evidence that could prove threshold.

 

This was always going to be the difficult issue in radicalisation cases and whilst the President’s guidance works very hard to find a solution, I’m just not sure that there is one. If you are a Local Authority who receives that sort of tip-off, what the hell are you supposed to do with it?  If you issue, you’ll hit this road-block and the proceedings will be dropped, and if you don’t and something happens, the Daily Mail will be eating you alive.  It’s a complete hospital pass by the Security Services.

 

What’s the alternative? Amend the Children Act 1989 to allow SO15 to issue care proceedings of their own? Run a family Court equivalent of the Closed Material Procedure Courts that operate in alleged terrorism offences in the criminal Courts?  They are hugely controversial in crime  (and if you’re interested in more about them I recommend Ian Cobain’s book “The History Thieves”  where he describes the AB and CD case, with the jury being told that if they ever discussed any of the evidence in the case they could themselves be punished by two years imprisonment and the incredible stipulations on journalists whose notebooks were taken each day, were prohibited from writing notes outside the Courtroom after hearing the evidence and not being able to tell their readers any of the important details in the case)

 

I certainly can’t claim to have a solution, but it is an obvious problem.

 

 

 

Fire-eating pilot

 

Thank you for coming everyone. As you may know, we have recently been trialling a fire-eating pilot in the Family Courts.  It is very simple – before an advocate addresses the Court on any issue, they must take a stick dipped in oil, set it a light, and plunge it into their throat, extinguishing the fire.  Once that is done, they simply address the Court in the usual way.

 

Q  –  we have some reservations about this scheme

 

That’s disappointing to hear. Have you been to see one of the fire-eating Courts? I’m sure you’d think very differently, if you had.

 

Q – we’re rather puzzled that this scheme seems to have come out of nowhere, with no discussion beforehand or attempts to engage with people who use the Courts to see what they thought

That’s disappointing to hear. Have you been to see one of the fire-eating Courts? I’m sure you’d think very differently, if you had.

 

Q – could you perhaps tell us a little about the safety precautions? For example, what training will we receive in relation to fire-eating?

 

Training is of course essential. I observed some Canadian circus performers undertake fire-eating and it all seems very straightforward. I’m sure you’ll all be able to pick it up

 

Q – did you talk to the Canadians about the safety precautions they used?

 

Oh I didn’t speak to them. I watched a video.  Dip the stick, light it, put flaming stick into mouth. Simple.  None of those circus performers have been injured. That must reassure you all

 

Q – that’s rather dispiriting.  What about fire-extinguishers, for example? First-aid kits in case of burns?  What if the fire catches someone else alight?

 

That’s disappointing to hear. Have you been to see one of the fire-eating Courts? I’m sure you’d think very differently, if you had.

 

Q – could you perhaps tell us the thinking behind the fire-eating Courts? Only, it sort of seems, from the outside, like the intention is to discourage lawyers from doing their job?

 

The pilot has a 70% success rate

 

Q – Could you tell us how you are defining success ?

 

70 per cent. That’s obviously successful, isn’t it? Any number higher than 50 is clearly good, and this is 70. Way above 50.  Wonderful.

 

Q  –  but success as in achieving better outcomes for children? Or running through batteries in Court smoke alarms faster? Or reducing the amount of times lawyers get to their feet? Or thae number of lawyers suffering third degree burns – which I accept many in the wider public would consider a success?

 

70 per cent

 

Listen, all of you seem to just be very negative about this new fire-eating pilot, which is currently being evaluated, but is being rolled out in other Courts whilst we wait for the tedious job of someone sexing up the evaluation to achieve the outcome of it being rolled out nationally.  If you had been to see one of the fire-eating Courts yourselves, you’d feel much more positive. Why, it is almost exactly the same as FDAC, and you all love FDAC, don’t you? Everyone loves FDAC, which is why we’ve designed this to be exactly the same, only with fire.

 

Cue retired District Judge Crichton…

 

 

Brave counsel, asking the Judge on behalf of others whether written submissions might be acceptable in the circumstances

Brave counsel, asking the Judge on behalf of others whether written submissions might be acceptable in the circumstances

 

https://www.judiciary.gov.uk/wp-content/uploads/2016/10/fjc-transcript-of-10th-annual-debate-1-dec-2016-updated.pdf

 

 

It’s coming, it is happening and we almost certainly can’t stop it.  But we must do all we can to make it as safe and fair as possible. Genuine consent – no adverse inferences being drawn from failure to attend one or to reach agreement. No pressure – apparent or unspoken.  Proper adherence to article 6.  Proper judicial reading time.  Clear and easily understood principles about what is confidential and what isn’t  (if we have Judges speaking directly to parents, we need to all know whether the parent can reply in complete confidence or whether their answers are potentially evidence).  We must all speak up when this isn’t happening.   (From my reading into the Canadian model, there are a lot of positive things about it and I think that if it had been introduced here in a careful way with genuine safeguards and protections it could have a lot to offer – but the way this has been imposed without any genuine dialogue about addressing the very real concerns raised by Liz Isaacs QC and Martha Cover and the ALC has to be worrying – as is the obvious underlying motivation that this is a cost-saving device first, foremost and only)

 

 

 

Well, up against quite a lot of competition, here is the worst case of the year (breach of fair trail, HRA damages, scandal)

 

Oh this is a BAD one.  LA social worker, lawyer, and to an extent counsel take a kicking, as do the police.  If you work for Wakefield, I’d skip this one.   Everyone else, I’m afraid this is a must read.

 

GD and BD (Children) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3312.html

 

 

  • There are before the court two linked applications brought under the Human Rights Act 1998. The first application in time (10 December 2015) was filed by two children, namely GD, a girl now aged 9, and BD, a boy now aged 4. The second application (18 December 2015) was filed by their mother (MD). In each case the Claimants seek awards of damages and declarations. The claims arise from the conduct of two public authorities, Wakefield Metropolitan District Council (hereafter “the Local Authority”) and West Yorkshire Police, in the context of public law proceedings under Part IV of the Children Act 1989 between February and November 2015. In each case the claims for damages have been agreed – with the public authorities each agreeing to pay one-half of the agreed sum: £10,000 for the mother, and (subject to the court’s approval) £5,000 for each child. Significant concessions have been made by both authorities since the proceedings began, and these in large measure establish the grounds for the declarations.
  • I have attached to this judgment, as Annex A and Annex B, a composite schedule of the concessions by the respondent authorities.
  • Annex C contains an Executive Summary of this judgment.
  • Additional to the formal concessions, the Local Authority has also sent a full letter of apology to the mother (dated 28 June 2016). In that letter, the Local Authority acknowledges that the allegations which it made in the proceedings against the mother, namely that she was a sexual risk to her children as a result of having perpetrated gross sexual act on her daughter, were “horrendous”; the authority confirms that it accepts “without reservation” that MD did not abuse her daughter or allow her daughter to be abused by the father. I do not regard it as appropriate to annex this letter to the judgment, but note its contents. The Chief Constable of the West Yorkshire Police has openly apologised to the Claimants (see Annex B [11] below).

 

This whole debacle sprang from the police, as part of a wider child pornography investigation, discovered 5000 indecent images of children on the father’s computer in April 2015  and the father was arrested.  One of those images was a 30 second video clip of a woman abusing a child.

The police formed a suspicion that the woman was the mother, and that the child was one of the two children of those two parents. T  Obviously, there were legitimate grounds to believe that the children were at risk from the father (though his arrest removed him from the home).   He later pleaded guilty and was imprisoned. The suspicion that the woman in the video was the mother and that the victim was one of the children was something that had to be properly investigated.

DS Hudson, leading the investigation on behalf of the Child Sexual Exploitation and Abusive Image Unit of the West Yorkshire Police, considered that Woman X bore a striking resemblance to MD, and that Girl Y a remarkable likeness to GD. DS Hudson in liaison with his colleagues in the imaging unit commissioned the creation of a superimposition montage which allowed the picture of Girl Y to be overlaid on a picture of GD; this appeared to confirm their lay view.

 

  • Some ten months later, on 25 February 2015, DS Hudson shared the information which the police had gathered with representatives of children’s services at Wakefield MDC. The social worker who attended the relevant strategy meeting noted that DS Hudson declared himself to be “90%” sure that the woman in the video was MD; he was later to say (same source) that he considered that the child in the still image was GD “to a 99% probability”. This evidence (involving the percentages) infiltrated other discussions, and were attributed to DS Hudson. DS Hudson was later to deny having used percentages as recorded, but having heard from SW1 and DS Hudson, I reject his denial; I am satisfied that this statement, and the percentages referred to, reflected his actual view of the probability of MD and GD being captured in the images, and that he expressed himself in this way. Later that afternoon, DS Hudson and SW1 (social worker) attended the family home; DS Hudson arrested MD and FD on suspicion of assaulting a girl under the age of 13, and of possession of multiple indecent images of children. The West Yorkshire Police exercised powers of protection and the children, GD and BD, were placed in foster care; on the following day, the Local Authority commenced care proceedings under Part IV of the Children Act 1989.
  • The children were to remain in foster care until 13 December 2015.

 

Skipping ahead, at the final hearing, the police officer gave evidence over a 3 day period, and in the course of this evidence, counsel instructed by the Local Authority decided that he had to withdraw from the case.

 

  • On 20 November 2015 DS Hudson concluded his evidence, which had been taken over three days, having been questioned by all of the advocates about his pivotal role in the investigation and his account of who knew what and when. At the conclusion of the second day, Mr. Shiels had invited the judge to allow the officer to be treated as a hostile witness; it was increasingly apparent that DS Hudson directly contradicted Mr. Shiels’ personal recollection of events, and was casting blame for the lack of disclosure on others. When the hearing resumed on 23 November, Mr. Shiels indicated his intention to withdraw from the case. He explained his position to HHJ Anderson thus:

 

“I have reflected upon my position as advocate for the Local Authority and taken into account any potential conflict between my duty to present the Local Authority’s case as it ought to be presented and my interesting reflections upon my own professional standing. The way in which DS Hudson gave his evidence created a conflict between those two matters, and it also raises implications which I have thought through and taken consultation on with a senior colleague as of the further presentation of the Local Authority’s case and, in particular, the social worker’s evidence… The Local Authority must be represented by someone who does not face that particular conflict.”

Substitute counsel was instructed and two days later, the Local Authority indicated to the court its intention to undertake a “wholesale amendment” of its threshold Schedule of Facts. On the same day it confirmed its plan for the children to be returned home to the mother’s care, a position endorsed by the Children’s Guardian.

The children returned home on 13 December 2015.

 

 

There then followed this Human Rights Act claim, which is what the judgment chiefly deals with. The case really turns on the point at which the suspicion that the woman in the video was the mother and the victim was the child became not a suspicion that had to be properly investigated, but a ‘hunch’ which the evidence was contradicting, and whether the evidence that undermined that claim was properly shared with the Court and the parents.  The importance of that, of course, is that a case where father was downloading indecent material is a case that could be managed by the mother separating from him, whereas an addition that mother had been abusing one of the children would rule that out as an option. It was an extremely grave and important allegation.

 

Here are the Court findings in relation to that (I’ll come back to some of the important, and shocking detail)

 

Findings: Local Authority:

 

  • In my judgment, this Local Authority has rightly conceded that it unlawfully interfered with the Article 6 and Article 8 rights of the Claimants in a number of material respects. The Local Authority was not swift in acknowledging its faults; the Defence filed in February 2016 makes minimal concessions. However, I have noted and recorded the concessions which are now made, and insofar as is necessary deal with the particulars in the paragraphs which follow.
  • Suspension of contact: For a period of time, all contact between the children and their parents was suspended, and when restored, it was heavily circumscribed. The temporary but total severance of the relationship between the children and their parents was a serious step at the point at which the children were removed from their parents’ care; while there may have been sound reasons for this initially, while the police investigation was at an early stage, the Local Authority is right to concede that it should have done more to test the necessity of this suspension continuing for more than a day or so. The CA 1989 imposes duties on them which were not observed (see section 34(1) and section 22(4) CA 1989; there was limited facility to the authority to refuse contact and only for a time-limited period (7 days) where “they [were] satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare” (section 34(6))). The police were in my judgment slow-paced in deciding whether to conduct ABE interviews of the children, before deciding not to do so. The Local Authority should have been proactive in testing the police’s decision-making at an earlier stage.
  • Disclosure: There were, regrettably, repeated failures on behalf of both public authorities to effect disclosure of relevant documents and information in this case. It is well known that it is the duty of the parties and their legal advisers to give full and frank disclosure of all relevant material unless one of the well-established principles of privilege or public interest immunity apply. It is incumbent on a Local Authority to present its case properly, fairly and with due regard to the principles of Article 6 of the ECHR.
  • My view is that the failures of disclosure in this case largely derive from the conduct of the West Yorkshire Police (see below). However, I am satisfied that the Local Authority solicitor, Ms McMullan failed:

 

i) To disclose to the respondent parents and Guardian the information which she learned in conference on 21 August 2015 namely that the short video was (or was likely to be) of American origin; although I am satisfied that this information was conveyed to the Local Authority team by DS Hudson only in passing, this was nonetheless crucial evidence and its existence had registered sufficiently with Ms McMullan for her to write to Mr. Shiels many weeks later, in November, to ask his view about it;

ii) To respond to the mother’s solicitors’ request for “any other relevant information about the police evidence that would assist me in putting my client’s case” (9 September 2016), with the information that the video had a US provenance (even if she had expressed this only as a possibility);

iii) To ensure that the likely American provenance of the short video was referred to in the Local Authority Opening Note; it is clear that Ms McMullan was conscious of this fact as she had e-mailed Mr. Shiels about it only shortly (10 November) before the hearing;

iv) To respond more fully and generally to the questions (concerning police disclosure) from the mother’s solicitor in September 2015;

v) To disclose the superimposition montage to the respondent parents and children on or shortly after 17 September. This omission is particularly serious given that:

a) There was a court hearing on the day after it had been shown (18 September) and it was not mentioned;

b) Ms McMullan had not responded to the mother’s solicitors’ letter requesting disclosure made only days earlier.

Opportunity was thereby lost for the parties to assess this evidence, and to seek Ms Pestell’s view of the montage. The mother’s case is that the failure to disclose this evidence was “secretive, tactical, and unfair”; I do not accept those particular criticisms. I find that the failure to disclose this information was symptomatic of a lack of coordinated, structured, organised approach to the preparation of the case. It is rightly conceded that this contributed to the breaches of the Claimants’ Article 6 rights (Annex A[1](d) below).

 

  • I find that the failure to make prompt and/or complete disclosure materially compromised the ability of the legal teams for the Claimants to prepare their cases. It seems to me that if a more conscientious approach had been taken and had disclosure been made in a timely and appropriate way, the Claimants’ solicitors would have been able to press for the Local Authority to re-evaluate its case, potentially by restoring the matter before the court for early determination of the appropriateness of continued interim care orders.
  • Evidence: The Local Authority was under a duty to place clear and impartial/balanced evidence before the Court. Two witness statements fell under scrutiny in this hearing: those of DS Hudson and SW1. The preparation of the witness statement of DS Hudson was wholly unbecoming of a serious investigation such as this, fell well below ordinary standards of professionalism in its compilation, and the end result was a document which was neither fair nor balanced. There is no or no material evidence that either Ms McMullan or Mr Shiels really addressed themselves to that issue. The Local Authority cannot escape the fact that the written request of DS Hudson to provide only evidence in his statement which was incriminating of the mother caused his contribution to be distorted and partial. I understand and accept that Mr Shiels had addressed his mind only to reminding Ms McMullan of certain matters which ought to be included in the statement, and that his e-mail was

 

“… intended simply to be a helpful reminder to my instructing solicitor that DS Hudson should include those particular matters when preparing his statement. I was not advising or purporting to advise on the overall content of the statement and I did not advise that anything should be omitted.”

But, as I say, the predictable consequence was that the statement was neither comprehensive nor was it fair to the mother (and children). This materially contributed to the biased picture created by the public authorities, which reinforced and aggravated their other failings. It does not require me to spell out to these experienced lawyers what the statement of DS Hudson should have looked like. Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 at p.772 commented on the importance of:

“… a proper discussion with the relevant witnesses to ensure, so far as possible, that their statements contain a full and proper account of the relevant matters, which include the central matters seen or heard by that witness, the sources of hearsay being recorded by that witness, and the relevant background to and the circumstances in which the matters set out took place; and … a proper consideration of what further information or material should be obtained.”

 

 

With this in mind, the Judge had to consider whether there was bad faith on the part of the Local Authority – in layman’s terms, had they been careless or had they been actively trying to ‘fit up’ this mother?

 

 

  • Generally: The Claimants do not specifically assert that the Local Authority set out to mislead the court, or create a false case against the parents. They pleaded a case based on bias; they assert that the Local Authority was partisan and conducted itself in a way which was incompatible with its role in dispassionately analysing evidence and adopting a child-focused stance in line with the evidence. They have maintained that the Local Authority legal team, Ms McMullan and Mr. Shiels, lost objectivity in their professional conduct in this case, and as a consequence focused on only those aspects of the case which were adverse to, or implicated, the parents, and not those parts which might serve to exonerate them.
  • While I accept that the Local Authority representatives failed dispassionately to analyse the evidence, and tended to focus on those parts which were adverse to the mother, I don’t accept entirely the other criticisms. It seems to me that other factors were in play:

 

i) The Local Authority could only work with the information which they themselves received from the police; this disclosure was made piecemeal, late, and often in an incomplete form; this hampered the proper evaluation and presentation of the case;

ii) The Local Authority solicitor, Ms McMullan failed to take a co-ordinating role in relation to the evidence and/or the structure of the case; I sensed that she reacted to the requirements of the timetable and the demands of her client and never proactively managed the case; she ended up as a fire-fighter and appeared to rely heavily on Mr. Shiels for all decision-making. I do not believe that her conduct fell below an ordinary professional standard (and she did not lose ‘objectivity’ as was alleged), she simply did not rise to the demands of running a complex case, did not challenge decisions, and did not develop a sense of what the case was and where it was going. Had she undertaken her role with more attention to the detail of the case, I am sure that the US provenance of the video would have received greater prominence in her thinking. Her “oversight” in failing to disclose the montage may have been the result of a demanding caseload.

iii) For a complex case, it was regrettable that the key social worker (SW1) was so inexperienced; indeed, she had not dealt with a sexual abuse case before. She gave the appearance (in her evidence to me, which chimed with the transcript of her evidence before HHJ Anderson) of someone who was struggling with the case. I felt that she was probably rather impressionable, and could possibly be (or at least feel) pressurised by her seniors or others; she told HHJ Anderson that she was advised by her manager and the legal department that the Local Authority was going to take a particular line in the case, albeit that it did not accord with her view (see the quote from the e-mail at [33] above). She described herself in that earlier hearing as “just part …I am the social worker part of the process”, and disputed that she had instructed the department “to seek findings”. She said that she had not been party to any conversation about the obtaining of expert evidence to counter the LGC Forensics paper, although would have expected to be so. The Guardian picked up this dynamic; he felt that SW1 had been “instructed” by her legal team to take the line she did in relation to the case, perhaps against her better judgment. I concur with the Guardian’s analysis.

 

  • I do not believe that there was any evidence of professional misconduct or negligence on the part of the Local Authority lawyer or social worker; nor do I consider that there was a loss of objectivity, as alleged. Regrettably I sensed that the Local Authority’s case management was rudderless, lacking in supervision, hampered by a lack of clear information, overly influenced by DS Hudson’s misguided perception of the case, at times incoherent, and (as I indicated above: [91](ii)) almost always reactive rather than proactive.

 

 

 

I said that I would come back to some of the detail, and it is important.

 

Bear in mind that the care proceedings began on 27th February 2015 and the investigation was ongoing.  A key part of that would obviously be the forensic analysis of the video – since whether or not the perpetrator and victim looked like mother and child wasn’t sufficient, there needed to be closer analysis.

On 31 March 2015 Ms Jacqueline Pestell of LGC Forensics contacted DS Hudson, and gave him an oral report of the results of the facial mapping exercise; it is a little unclear precisely what was said. Ms Pestell maintains that she advised DS Hudson over the phone that MD could be “eliminated” as the woman in the video; this indeed was the account given by DS Hudson in his first statement in these proceedings. LGC’s internal note refers to the differences observed in the images, making them “unreconcilable” (sic). DS Hudson was advised in the same call that MD’s sister was a better match. In a later written statement in these proceedings DS Hudson doubted that the word ‘eliminated’ had in fact been used but confirmed that he was advised that the sister was a better suspect, and that in the circumstances there was little if any prospect of pursuing charges against MD. It is in fact formally conceded now that the police treated MD as being ‘eliminated’ from this the time (see Defence filed on behalf of West Yorkshire Police, and see Annex B [2] below)). Interestingly, in oral evidence, DS Hudson repeatedly used the word ‘eliminated’ to describe the effect of the information he had been given at this stage, and on the balance of probabilities I am satisfied that this is indeed what he was told by LGC.

 

Obviously if the Forensic Analysis ‘eliminated’ the mother as the perpetrator in the video, that was a vital piece of information.  (As the Judge says later, these cases are trial by Judge, not trial by expert, but it was a vital piece of information, even if the LA case was ‘the forensic analysis is wrong and we want the Court to test that evidence’)

The police had not properly communicated that to the LA.

 

  • On 7 May 2015, at the next court hearing listed before Moylan J, the Local Authority informed the court (per position statement) that facial mapping analysis “may have led” the police to believe that the images on the short video were not of the mother. West Yorkshire Police concede that by this time, the Local Authority were still not aware that the mother had been ‘eliminated’ on expert analysis, and nor was Moylan J when he made his further order for disclosure.

 

 

The case moved further forward, when the police obtained evidence to show that the video was in fact created in America, and was thus not a video of this child, nor the perpetrator anyone in this family.  Important to keep in mind that it was still a video of child abuse, which had been on father’s computer, so the concerns about father remained very live ones. But realistically, the risk of the mother as a perpetrator had disappeared, but the allegations had not been dropped.

 

  • By 4 June 2015, LGC Forensics had also excluded MD’s sister as Woman X. West Yorkshire Police informed the Local Authority of this. However, when the social worker (SW1) spoke with an officer of the West Yorkshire Police on 8 June, she was advised that the police were still in some doubt about the evidence and could not confirm that no criminal charges would arise as a result of these images; on the following day, DS Hudson wrote to the social worker in these terms: “the results back from the Forensic Company has not been able to confirm the identity of [MD] or [her sister]” as Woman X (this phrase did not in my view faithfully reflect what DS Hudson had been told), adding that the mapping work in relation to GD/Girl Y had not yet concluded. MD recalls that at this point she was simply advised that the facial mapping exercise had proved “inconclusive”, not that she had been eliminated.
  • On 10 June, there was a major development in the police investigation. DFI, one of the experts in the Digital Forensic Department working on an unrelated investigation, located a video recording of approximately eight minutes’ duration, of which the short video of Woman X (which had been the focus of enquiry in this investigation, identified in [12](i) above) was clearly an extract; the longer (eight minute) video showed clearly the identities of those participating in the recorded activity, and revealed beyond question that MD was not Woman X. It was further clear (from incidental detail in the footage) that the video had been recorded in the United States of America, not in West Yorkshire. DFI e-mailed DS Hudson asking him to call, as he has “information about [Woman X]”. DS Hudson was (it is agreed) on leave on that day and it appears that he did not in fact make the call on that day; it is not clear when DS Hudson returned the telephone call to DFI, but I am satisfied (on DS Hudson’s own evidence) that it was not long after DS Hudson’s return from leave on 22 June. In that call, I find that DFI gave DS Hudson sufficient detail about the longer video for him to know that MD was definitively not Woman X. From that point on, he told me that it was “cast iron” that MD was exonerated and he was then fixed with this knowledge.

 

 

This then becomes very difficult reading. I’m squirming even as I cut and paste this in.  This is exactly the sort of stuff that staunch critics of Local Authorities believe happens all the time, and it is genuinely sickening to see it play out for real.  It is awful to read this.   The underlining here is the Judge’s.  I would underline more, for emphasis, but I don’t want to lose those portions.  It is just awful, I’m afraid.

 

 

  • At a further court hearing on the following day (11 June 2015), counsel for the local authority, Mr Ian Shiels, reports (and I accept) that when the police representative was asked whether the facial mapping report (not yet disclosed) was required for interviews of the parents, the reply was “probably yes”; this is, as it now transpires, a surprising response given what is now known of the conclusions of the report. On 15 June 2015 the West Yorkshire Police received the written report from LGC Forensics which confirmed beyond question that MD was not Woman X. The report further confirmed that GD was not Girl Y, the child in the still image ([12](ii) above).
  • On 24 June 2015, on his return from leave, DS Hudson e-mailed the Local Authority social worker SW1 confirming that GD had been “eliminated” as Girl Y (the girl captured on the still image); DS Hudson confirmed that he told the social worker that the only active line of enquiry was in relation to the other images captured on the family computer. The contents of the LGC report were not shared with the mother for more than two more weeks (9 July) – see [27] below). On the following day (25 June), DS Hudson sent this important e-mail to the Local Authority solicitor, Ms McMullan:

 

“At this time there is no plan to interview [GD]. Even though the facial mapping has not identified [GD] I would still like to put the image [i.e. the still image] to the parents in interview should one of them id [identify] [GD] then she will need to be interviewed to see if she can recall the incident. I do not want this information giving (sic.) to the parents as stated I am looking to bring them in early next week.” (emphasis by underlining added).

On receipt of this e-mail, Ms McMullan, the Local Authority Solicitor, e-mailed the social work team manager as follows:

“…I’m not confident in what [DS Hudson] is saying is entirely accurate. It may be that they want to trick the parents in interview? I really don’t want to speculate …” (emphasis by underlining added).

 

  • On 9 July, the parents were interviewed by the West Yorkshire Police for the second time; both denied possession of the indecent images, and the mother denied recently destroying the computer hard-drive (per the Kodak photograph). As planned, the still image of Girl Y was put to the parents, who each in turn disputed that it was GD. Following the interview, the mother (MD) was eliminated from the investigation (a point which was confirmed in an e-mail of the same date to the social workers: “[MD] has now been eliminated from the investigation”), whereas the father (FD) was charged with six sample counts of making indecent images of children. On the same day, the West Yorkshire Police provided the 40-page and detailed LGC Forensic report to all parties; this confirmed that there was “no support” for the contention that MD was Woman X, nor that GD was Girl Y. The West Yorkshire Police further disclosed the image of MD allegedly destroying the computer hard drive. At court on the following day, Andrew Garthwaite, solicitor for the West Yorkshire Police recounted that “the Police position that the female in the video was not [MD] was clearly stated…”; he says that he spoke with Ian Shiels at court, who in turn indicated his wish to view the short video. This arose because Mr. Shiels detected some lack of confidence in the expert report among those who had commissioned it; Mr Garthwaite acknowledges that at that time he may well have said to Mr Shiels that he recognised the similarities between Woman X and MD and “couldn’t preclude the possibility that another facial mapping exercise might generate different findings”. Ms McMullan told me that Mr Shiels had reported to her an air of scepticism among the advocates about the reliability of the facial mapping report. In that regard, Mr Shiels followed up the discussions at court with an e-mail to Ms McMullan the following day in these terms:

 

“When I read the facial mapping experts report yesterday my thoughts were that this scuppered any case that the mother had been abusing a child or that [GD] had been abused… But I would like to think about it further…”

Mr. Shiels went on to describe the mother’s account of the dating of the Kodak photograph (i.e. that it was an old photo) as “plainly rubbish” (a view derived I believe from the fact that it had been assumed that all of the images on the computers had been captured when the computers were seized in 2014, and this one had only appeared since that time). His e-mail further alluded to the difference in standard of proof between the criminal and civil processes, and the need to look at the primary evidence and not be “led entirely by expert opinion, which need not necessarily be right”. He acknowledged that the conclusion of the LGC Forensics report was “a problem” but not “necessarily an insuperable one”.

 

  • On 10 July, at court, SW1 recorded that the parents told her that they were separating “out of necessity, not because they want to”, a view which they confirmed on 13 July at a social work home visit. This is relevant to the issue of continuing potential risk posed by the mother to the children, irrespective of her role as possible perpetrator.
  • On or about 14 July, Ms McMullan and Mr Garthwaite spoke by telephone. They plainly discussed the content of LGC Forensics facial mapping report, and the Local Authority’s willingness to consider a second expert opinion; the cost of obtaining such a report (c.£40k) was alluded to. Following this call, Mr Garthwaite sent an e-mail to DS Hudson (21 July) which included the following:

 

“I had a request from the local authority solicitor Annie McMullan last week as to whether or not you would be prepared for the local authority barrister, Ian Shiels, to be allowed to watch the indecent video(s) involving alleged mother and alleged [GD]? The reason for the request is that the local authority are keen to do all they can to secure the children in this case and are prepared to spend £40k+ in order to have the video analysed themselves to try and pin a case against the parents“. (emphasis by underlining added)

Mr Garthwaite apologised at this hearing for his choice of language in this e-mail; he could not be sure that Ms McMullan had not used the phrase ‘pin a case’, and in fairness, she could not rule out the possibility either, although thought it unlikely. Mr Garthwaite wished to emphasise that the language was not designed to give any indication that the Local Authority were in any way engaged in any impropriety by manufacturing a case against the parents.

 

  • On 23 July, DS Hudson replied to Mr. Garthwaite informing him that he was intending to view the second (longer) video which had been located by DFI, the Digital Forensic Investigator, and would be doing so “this morning” (records show that DFI had made a copy of it on 22 July in preparation). DS Hudson told me in evidence that he did not in fact go to the forensics laboratory to view it on that day on account of “operational commitments”, but only viewed the longer video a month later on 24 August. DS Hudson told the court in November 2015 that he believed he had viewed the longer video in or around June or soon after 23 July 2015. The evidence of DFI was that DS Hudson viewed the longer video “around” June/July, but at the latest “the first part of August”. Later, within the evidence filed in these proceedings, DFI went some way to confirming DS Hudson’s account that he did not view the longer video until 24 August (linking it with recalling having e-mailed him in relation to a ‘personal matter’), though acknowledged that he only “vaguely remembers” the events. It is not material to establish precisely when DS Hudson viewed the longer video; I cannot find on the evidence that he did in fact view it before 24 August. As I have said earlier (see [24] above), he was fixed with the knowledge of the mother’s certain innocence by the end of June 2015. On my reading of the e-mail traffic, this is the only e-mail passing between DS Hudson and Mr Garthwaite about the second (longer) video (see also [99] below). Mr. Garthwaite reports that he did not appreciate the significance of the second (longer) video at this time.
  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

 

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

 

  • On 29 July, Ms McMullan chased a response from Mr. Garthwaite by e-mail persisting in her request for disclosure; on 17 August Mr. Shiels chased again (also by e-mail) for the police’s disclosure. This disclosure was said to have been delivered by the police to the Local Authority on or about 20 August.
  • On 31 July, SW1 met with her team manager, and explained to her that she would be concerned about giving evidence in the case as she did not believe that MD was Woman X nor that GD was Girl Y; the expert evidence had, she thought, made this “abundantly clear”. To recap, the Local Authority knew of the conclusions of the LGC Forensics report by this stage, but not of the existence (let alone the significance) of the longer video. The note of the manager reflects inaccurately that “The woman [on the video] is believed to be mum (90% certainty following facial recognition)”; it is not clear to me whether that information had been incorrectly understood by the social work team or whether the note of the conversation is inaccurate. On that day the team manager wrote to the solicitor as follows:

 

“I am just in supervision with [SW1], having an update regarding this case. On consulting the attached schedule, we are not in agreement with the sections numbered 6 & 7. [SW1] is certain that the child in the images concerned is NOT [GD]. Furthermore, she is doubtful that the adult female is mother. Consequently, it would not be appropriate to give evidence to state otherwise… I am aware that the police are not intending to conduct an ABE interview of [GD], so do we need to make a decision at this point as to whether we pursue our own by an ABE trained social worker?” (emphasis in capitals in the original: emphasis by underlining added. Note also that reference to “6 & 7” is an erroneous reference to paragraphs 7 and 8 of the schedule: see above).

Later that day, Ms McMullan telephoned the team manager to seek to reassure her that the Local Authority had proper grounds to proceed on the basis of the video and still image, given that the standard of proof was different in the family court and the criminal court. It appears that a conference was then arranged with counsel in order to discuss the social worker’s concerns. This took place on 13 August. Strangely, none of the notes of the conference record any conversation about the social worker’s concerns. Mr Shiels told me that he recalled no specific conversation about these concerns.

 

 

That schedule of findings is worth going back to :-

 

  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

 

Clearly, if there had been full and transparent sharing of information, the fact that the forensic analysis had indicated that neither of the persons in the video were members of the family and that the footage emerged from America  (there was an 8 minute long video from America, of which this was a 30 second snippet, and the longer video obviously gave more material to work from) meant that the LA could not realistically pursue those findings. The question is, did they know that?

 

 

  • On 21 August, two important events occurred in the history of this case.

 

i) First, at a hearing before HHJ Lynch during the morning the West Yorkshire Police were ordered (for a further time) to disclose information to the parties about the Kodak photograph, including any information about the date of its creation, storage, and assessment. This direction had been anticipated by Mr. Shiels who earlier in the morning had e-mailed DS Hudson requesting information about the Kodak photograph and the date of the folders in which it was stored;

ii) Secondly, in the early afternoon, a conference took place at Mr Shiels’ Chambers; those in attendance were Mr Shiels, Ms McMullan, DS Hudson, and SW1, although SW1 was late in arriving. I deal with the conference in some detail (below).

There is some dispute about precisely what was said at this conference. DS Hudson’s evidence is that he told those present at the meeting that a second (longer) video had been found in a separate investigation and that its country of origin was America; he accepted in evidence before me that he may not have spelled out as clearly as he should that this video ruled MD out as a perpetrator of abuse beyond question. When questioned about this at the hearing before HHJ Anderson in November he accepted that he did not make this clear. On nobody’s account of the meeting was the American origin of the video “discussed” as DS Hudson (misleadingly in my view) told HHJ Anderson during his earlier evidence on no fewer than three occasions. The Local Authority maintains (and the contemporaneous notes of the conference support this) that DS Hudson had indicated in the meeting that there was a possibility that the (shorter) video may have originated from America (“origin might be US”); he was asked to clarify this and he agreed to make further enquiries of DFI.

 

  • During the viewing of the short video at the conference, DS Hudson (and this much is agreed by Ms McMullan and Mr. Shiels), pointed out that Woman X was wearing an unusual blue watch, and informed them that this had not been found during the searches of the family home. Self-evidently it would not have been found in MD’s home, as MD was not Woman X, as DS Hudson well knew. The officer also pointed out that Woman X was wearing a ring on the same finger as MD – again, ostensibly establishing a link between the two, which he knew was merely coincidental.
  • At the conference, DS Hudson apparently described the superimposition process which had been conducted in or about February 2015, and confirmed that the montage (of Girl Y and GD) was still in the possession of the police. DS Hudson’s evidence to me was that by the end of the conference he believed that the Local Authority was proposing:

 

i) to allege within the care proceedings that GD was Girl Y in the still image (and had therefore been directly involved in the abuse), but that

ii) the authority had no intention of seeking to argue that MD was Woman X.

As it happens, he gave different evidence before HHJ Anderson in November 2015, indicating that by the time he prepared his witness statement, he knew/believed that the Local Authority was pursuing a finding that MD was Woman X. He thought that the Local Authority was proposing to argue that MD had destroyed the hard drive and therefore evidence of indecent images. The account he gave before HHJ Anderson was, in my judgment, more plausible.

 

  • SW1 recalls no conversation about, or mention of, America during the conference, which, if she is right, suggests that any such mention may well have occurred before she arrived (which was later than the others), and indeed I so find. Ms McMullan now indicates that she regrets not writing to Mr Garthwaite after the conference to clarify the “throwaway remark” about the origin of the video, and specifically the reference to “America”. Significantly, she is clear that DS Hudson never mentioned then, or indeed at any time up to 18 November at court at the start of the final hearing, the existence of a second (longer) video. She believed that DS Hudson would obtain further information from DFI about the relevance of America, and revert to her. Ms McMullan maintains that had she known, or been advised, that the second video existed, that it originated in America and that MD was certainly not the woman in the short video: (a) the local authority would not have asked to view, let alone actually view, the short video, and (b) the course of the case would have been radically altered.
  • Mr Shiels shares Ms McMullan’s recollection that DS Hudson did not mention the existence of any other or longer video in the conference, and that he only mentioned, as a possibility, that the video which they had watched may have originated in America, though (says Mr. Shiels) DS Hudson did not appear clear about this and laid no great emphasis upon it. Mr Shiels believes that it would have been perfectly plain to DS Hudson from the discussion at the conference that the Local Authority was going to maintain its case (set out in the schedule – see [31] above) that MD was Woman X; accordingly, Mr. Shiels felt that the video was pivotal in being able to prove that fact, notwithstanding the expert report from LGC Forensics. Mr Shiels did not understand from DS Hudson’s comments that the video had actually been filmed in America (as in fact is proven to be the case) but wondered whether the reference to America was to a shared computer file with an American partner. He recalls the reference to the watch, and to DS Hudson confirming that the police search of the family home had not produced the item. At his request, all existing records relating to police searches of the family’s home was sought as disclosure, and were indeed disclosed. At the conclusion of the conference, Mr Shiels asked DS Hudson if he could prepare a witness statement for the CA 1989 proceedings. Mr. Shiels describes the “focus” of the meeting as:

 

“… assessing the strength of the local authority’s case and therefore the focus was on obtaining from DS Hudson information which would or could support and strengthen that case.”.

I underline the passage in the quote above to highlight that it appears that the “focus” was not on collating relevant evidence which went either way.

 

  • Having heard the various accounts of the conference on 21 August, I find that at the conference:

 

i) DS Hudson did not explicitly refer to the existence of a second (longer) video; while it is possible that he and the Local Authority were speaking at cross-purposes about ‘the video’, in fact I find this omission to be deliberate;

ii) DS Hudson did not make clear to the Local Authority representatives as he should have done that the police investigation had established beyond question that MD was not Woman X;

iii) DS Hudson’s observation that the “the video” had an American origin was made only in passing; it was not “discussed” as he told HHJ Anderson. The officer did not – as he should have done, in my view given the importance of the issue – make clear to the Local Authority representatives that the video originated in the USA, and that this therefore contributed to the view that the mother could be ruled out as the perpetrator of the video-recorded abuse;

iv) By stating that the police had not found the unusual watch worn by Woman X in the mother’s home, and by pointing out Woman X wearing the ring in a similar fashion to MD, DS Hudson caused or encouraged the Local Authority to believe that the police believed or suspected that MD was indeed Woman X, or that there was a case to make that MD was Woman X, when in fact (as we now know) they knew that she was not.

 

 

The Judge does not make any criticism of the LA inviting the police officer, who was clearly a witness of fact, to a conference with counsel.  I suppose there was so much else to criticise that this got missed.  It’s not something I would imagine doing.   You can see from the judicial findings that the Judge found that DS Hudson caused or encouraged the LA to believe that the police BELIEVED that the woman in the video was the mother when in fact they KNEW she was not.

 

The lawyers in the care proceedings asked to see the longer video, and this produced a flurry of email correspondence between DS Hudson and the force solicitor, Mr Garthwaite.

 

  • On 15 September, the solicitor for the mother notified Mr. Garthwaite by e-mail that it was her intention to apply to the court for permission to instruct an expert to date the Kodak photograph; she also indicated her intention to ask the court for permission to view the short video.
  • On 17 September, an e-mail ‘conversation’ took place between Mr Garthwaite, DS Hudson and DFI. Mr Garthwaite had passed on the request by the mother’s legal team to view the short video; DFI raised a concern about this to his colleagues, saying:

 

“We’d established from another recent case of mine that it’s neither [MD] nor [GD] in the video – albeit that the female in the video does have a resemblance to [MD]. We’d technically be showing them an indecent video, of which all parties would need to be aware of and its content…”

DS Hudson asked for legal advice about the position from Mr Garthwaite who told me at this hearing that he did not appreciate until 19 November the relevance of the second (longer) video. On the basis that an order would be sought by the parties for permission to view the video, and that disclaimers would be sought, arrangements were made for the mother and her legal team to view the short video. The mother and her legal team viewed the video on 12 October. There later followed a request by the Children’s Guardian to view the video; this provoked an e-mail from DS Hudson to Mr Garthwaite:

“I’m really not happy with this, we have shown the video to [MD] and her counsel… as discussed and arranged. Now we are being asked to show this video to [GD]’s solicitor and her Guardian; we are being asked to show a Level B Child Abuse video to her Guardian. Why? What protection is in place should her Guardian react in a negative way to this abuse video? It was agreed to show the video to [MD] and her counsel on the basis that counsel has dealt with these issues in the past and [MD] had seen the video in interview. Please confirm that the police and officers involved will have no repercussions in this matter.”

Mr Garthwaite sought to offer reassurance to DS Hudson.

 

Of course, what this means is that a set of lawyers ended up watching a video which must have been graphic and dreadful to watch, when in reality, none of them needed to see it at all, because the mother and the child had both been eliminated by police enquiries as being the people in the video.  The lawyers were only watching it because the allegation was that this was the child being abused by the mother.  If there had been honesty that the video had no connection to the mother and child OTHER than it being one of 5,000 indecent matters found on father’s computer, none of them would have had to do that.    {There’s a dreadful discussion in the next paragraph where someone puts their finger on it – the father had probably picked this particular clip BECAUSE the woman in it resembled the mother, his partner.  I’m sorry, that is just truly awful}

 

We’ve had cases reported before about things being added to social work statements, and that happened here too  (I’m not talking about cleaning up typos or polishing, or suggesting a better way to word something, but insertion of things that the social worker didn’t actually agree with. )

 

 

  • On 8 October, SW1 filed her final parenting assessment report on MD with the court. It is a lengthy document extending to over 50 pages. I learned a little of the evolution of the report at the hearing. It passed through at least two editorial hands (the team manager and the Local Authority lawyer) before being filed. Ms McMullan was the final editor and included in the report a number of new sentences. She said that she asked SW1 to check the statement before signing it, having earlier “knocked [it] around a bit”; SW1 told me that she did not check it carefully and only after its filing did she read it thoroughly, and then realised that words had been added with which she was not comfortable, importing views which she did not hold.

 

 

 

The fact that the LA findings sought against mother  – that she had abused the child in that video, were completely unsustainable,  and had not actually been sustainable for about six months by the time of the final hearing, yet this only actually emerged on day one of the final hearing.

 

 

  • The final hearing began before HHJ Anderson on 17 November; no evidence was called on the first day. Following discussions between the advocates, Mr. Shiels drafted questions for LGC Forensics to answer about the superimposition montage, namely (a) whether it had been seen before and (b) whether it caused the expert to alter her analysis. As I discuss later, I find that these questions could and indeed should have been asked much earlier. On 18 November, DS Hudson and DFI attended at court to give evidence. It appears that in the pre-hearing conference outside court, DFI informed Mr Shiels of information he had known since 10 June 2015, namely that the short video had originated in America, and was an extract of a longer video. Mr. Shiels’ account from his witness statement repays rehearsing in full:

 

“I was not told that there was any other version of the video, or a “longer” video … I was very surprised to be told that the origin was clearly in America, rather than merely a possibility. I then asked if they were saying that the woman in the video was in fact probably not [MD]. [DFI] said this was so. I cannot recall if DS Hudson contributed anything to this. If he did, he did not say much. He did not dissent from what [DFI] told me. I immediately communicated this information to the other advocates and then to the court, withdrawing the Local Authority’s case that the mother was the woman in the video…. At no time prior to the 18 November had I been told of the longer video, the origin clearly being in America, and the certainty that the woman was not the mother. If I had known this at an earlier stage, I would immediately have taken the same action that I took at court and withdrawn that allegation against the mother.”

 

  • Ms McMullan’s evidence is that she had a conversation with DS Hudson; she says that she told the officer that she did not know that the video had originated in America, to which DS Hudson replied that he thought that Mr Garthwaite had told them.

 

 

 

Just when you think that things can’t get worse, they do.  It emerges that at the ABE interview of the child (which was conducted by an inexperienced social worker), the child was shown a pixelated photograph of the child in the video  (who the police KNEW was not her)

 

 

  • ABE interview: ABE interviews should always be conducted with reference to the March 2011 Guidance: “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures“. Although this guidance is advisory, and is not a legally enforceable code of conduct, as the Guide makes clear “practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts” (see §1.1). This is not the place for a detailed examination of the guidance, but it is essential reading for any professional conducting such an interview, and for those engaged in the preparation of a case which depends upon interview. It was not followed either explicitly in the work undertaken by SW1 and her colleague on 17 September 2015; the Local Authority properly concede the consequent breaches of the Claimants’ Article 6 and Article 8 rights in this regard (see Annex A[1](e)/[2](c)).
  • In this case, I question why an interview in the ABE format was taking place at all in September 2015, some seven months after the children were received into care; SW1 believed that GD “needed to tell her story”, but what story was it that she “needed” (or was being invited) to tell? Insofar as it was appropriate at all, it was not properly prepared, and the questions asked of GD reveal that the interviewers were at sea; it is to be noted that “[a] well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.” (§2.1). It is clear that there was minimal planning. Recent judicial commentary on ABE interviews is to be found in the Court of Appeal’s decision in Re E [2016] EWCA Civ 473 at [24]-[45], which in turn endorses in large measure what Sir Nicholas Wall P had said in the case of TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597; the following observations are relevant to the facts of this case:

 

a) ABE interviews of children must always be conducted by professionals who have been trained to apply the ABE Guidance;

b) The fundamental principle which underlies the ABE Guidance is that those who elicit evidence from a child must conduct themselves in such a way that the child is given the maximum possible opportunity to recall freely, uninhibited by questions, what he/she is able to say.

c) The ABE Guidance emphasises (at para 3.108) that photographs (or drawings, pictures, symbols, dolls, figures and props) “should be used with caution and never combined with leading questions.”

 

  • The Local Authority is right to concede the inappropriateness of the ABE interview being conducted by inexperienced social workers, contrary to judicial and other guidance. It is further right for the Local Authority to concede that the photograph of Girl Y should never have been shown to GD. SW1 was wrong to mislead GD that the photographs were all from a “family album”; that was manifestly not so in relation to one of the pictures. One of the lowest points of this blighted history was the act of showing GD an edited version of an illegal download of a child abuse victim lying on her back with her legs apart exposing her genital area (albeit pixelated) under an entirely false pretext that the interviewers believed it was her and that the photograph had been located in a family album. I agree with the mother when she argues that it was “fundamentally wrong” for the Local Authority to interview GD in this way. Had the Children’s Guardian been aware that the interview was to be carried out in this way (and I am satisfied that he was not) he says that he would have “objected in the strongest terms”, and rightly so.
  • Showing the pixelated photograph to GD, and misleading her as to its provenance, were blatant breaches of GD’s right to be treated fairly by the Local Authority. There is no doubt that the interview itself would have been distressing to GD; the manner in which it was conducted was designed or intended, it seems to me, to produce evidence which falsely implicated the mother. If GD was “defensive” in interview (a point relied on by the Local Authority as part of its “wide canvas”) this is not entirely surprising. The Local Authority knew that GD was not Girl Y by this time and should never have proceeded in its investigation in this way. I accept the Claimants’ case that it was undignified and demeaning for this eight-year-old girl to be put through a formal interview process which was unnecessary and which sought to inveigle her into providing evidence to support a false allegation.

 

 

 

The Judge has made his findings that there was not bad faith on the part of the Local Authority, and that judicially speaking is that. I’ll keep quiet as to my own views on the matter.

 

 

The findings in relation to the police

 

Findings: West Yorkshire Police:

 

  • Disclosure: The failures of the West Yorkshire Police to comply with its duty of disclosure in this case were extensive; these failures regrettably pervaded the entire course of the case; I consider that it extended the litigation, and ultimately influenced its outcome.
  • I am satisfied that the West Yorkshire Police, and specifically (unless otherwise indicated) DS Hudson:

 

i) Repeatedly failed to comply with court orders for disclosure; those which are obvious from my review of the papers are orders made on the following dates:-

a) 27 February 2015 (this breach is acknowledged in the order of 19 March 2015);

b) 7 May 2015 (in relation to the facial mapping report; this is evident by the order of the 11 June);

c) 10 July 2015 (the order of 21 August 2015 makes clear that the Chief Constable had made only “partial disclosure” of the documents ordered to be disclosed by 17 July);

d) 21 August 2015 (the Police did not disclose by 28 August information relevant to the Kodak photograph);

e) 23 October 2015 (in relation to the Kodak photograph and the origin and date of the short video and the still image of Girl Y: this was not done until trial; although this order was directed to the Local Authority, it was contemplated by the order that the information would be provided by the police, who, indeed, were asked for it; the police e-mailed Ms McMullan indicating that it had no further evidence to submit);

ii) Failed to disclose to the Local Authority and to the mother, on or about 31 March 2015, that the mother had been “eliminated” from suspicion as Woman X, when LGC Forensics advised DS Hudson that this was so; the Police erroneously, in my judgment, initially contended that such non-disclosure was justified as it may “prejudice” the investigation and/or that “piecemeal” disclosure would have been inappropriate. That argument was subsequently abandoned. It surely cannot be justified to withhold evidence from a person accused of a crime which exonerates them. This was not ‘marginal’ evidence. The police engaged in piecemeal disclosure thereafter, thus undermining the very basis of their initial stance;

iii) Failed to make known this information (i.e. that the mother had been eliminated on the basis of the expert assessment) to the parties at court hearings which followed on 7 April, 7 May and 11 June, and which the West Yorkshire Police were legally represented (albeit not by Mr. Mallett who appeared at the hearings before me);

iv) Delayed for one month before they disclosed the LGC Forensics report to the mother and her legal team (the West Yorkshire Police received it on 12 June and only disclosed it after the interview of the mother on 9 July 2015); this report, of course, contained the clear and unequivocal conclusion that MD was not Woman X, and that GD was not Girl Y in the still image;

v) Failed to disclose (after the end of June, or by 23 July 2015 at the latest) that the second (longer) video existed, which indisputably proved that neither MD nor GD featured in the short video; (the mother and her legal team were first made aware of it on or about 18 November);

vi) Failed to disclose (after 17 September 2015, by which time the information was clear) the evidence supportive of the mother’s account that the Kodak photograph had in fact been taken in 2009; this failure was compounded by the fact that the police were in breach of disclosure orders variously made on 10 July and 21 August 2015;

vii) Failed to comply with court orders for disclosure more generally; the representation made by the West Yorkshire Police to the Local Authority after 23 October that it had no further evidence to disclose was false.

 

  • These failures derive from three essential shortcomings in the operations of the West Yorkshire Police in this case:

 

i) A failure to establish or maintain clear lines of accountability in relation to disclosure; Mr. Garthwaite has explained that he had passed on the requests for disclosure to DS Hudson and had received messages from the officer which tended to indicate that the requests had been complied with; DS Hudson believes that responsibility lay with Mr Garthwaite. There was no evidence of any audit of this process;

ii) An indifference which I detected in the evidence and in the conduct of DS Hudson to the importance of disclosure;

iii) An apparent lack of concern about compliance with Court Orders. I turn to this subject in the paragraph which follows.

 

  • Surely no party, or lawyer of any experience, in litigation of this (or any) kind still needs reminding of the importance of compliance with court orders: see what I myself have said in F v M [2015] EWHC 3259 (Fam) ([7] et seq.), and for the most recent example London Borough of Redbridge v A, B and E [2016] EWHC 2627 (Fam), published during this hearing. Case management orders are to be obeyed, to be complied with on time and to the letter, and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see also Re W (Children) [2015] 1 FLR 1092). As is evident from my summary at [93](i)(a)-(e) above, this did not happen in this case. The burden of other work is not an excuse for non-compliance with the directions of the court; whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187). As Macdonald J in Redbridge went on to say at [12]: “Case management directions are not mere administrative pedantry”, adding:

 

“It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.” (emphasis by italics in the original).

Macdonald J’s observations apply, in my judgment, with equal force to the responsibilities of the police.

 

  • Had orders been complied with faithfully and conscientiously, the flaws in this investigation are likely to have been avoided, or at least exposed at an earlier time. Moreover, MD was put to the trouble, and the State was put to the expense, of obtaining independent expert advice about the Kodak photograph showing her destroying a hard disk drive; her expert in due course confirmed the date of creation of the photograph as 11 March 2009 – a fact known to the police for several months (March 2015), but not disclosed by them. Had the police revealed its knowledge earlier an important plank of the Local Authority’s case would have been removed, for the authority had sought to use this evidence that the mother had been, or was likely to have been, recently engaged in the business of destroying evidence (i.e. in the period between the first search of the family home and the arrest of the parents in reliance on the photograph which (it maintained) was not visible on the computer system before 2014) as part of its “wide canvas” of evidence implicating her in the abuse (see [82] above).
  • Second (longer) video: I find that DS Hudson did not inform the Local Authority (or indeed any of the other parties) of the existence of the second (longer) video until 18 November. He had multiple opportunities to do so:

 

i) As soon as he was told by the Digital Forensic Investigator, DFI, about it, which was probably by the end of June, but certainly by no later than 23 July;

ii) At Court at the hearing on the morning of 21 August 2015;

iii) At the conference with Mr. Shiels, Ms McMullan and SW1 in the afternoon of 21 August 2015;

iv) As soon as he had seen the video himself, which was at the latest on 24 August.

It is apparent, and I so find, that as at 21 July 2015 when Mr. Garthwaite sent the e-mail referred to at [29], the West Yorkshire Police were aware that (in spite of the expert evidence from LGC Forensics) the Local Authority was continuing to pursue the allegation within the care proceedings that MD was in fact Woman X in the short video.

 

  • In his evidence before HHJ Anderson and before me DS Hudson sought to divert responsibility for the failure to disclose the second (longer) video onto Mr. Garthwaite, with whom, he said, he had corresponded on the subject. I have seen no correspondence from DS Hudson to Mr. Garthwaite in which he requests that the existence of the second (longer) video be disclosed to the Local Authority, let alone the respondent parents. I reject his case about this. Regrettably, as I mention elsewhere, Mr. Garthwaite knew of the existence of the second video, but did not appreciate its significance (see [30] above).
  • The short video / the superimposition montage: It is obvious from the internal e-mails passing within the West Yorkshire Police at the material time that serious misgivings were expressed by DFI, and separately indeed by DS Hudson, to Mr. Garthwaite about the appropriateness of facilitating the viewing by the lay parties and their lawyers of the short video; this was particularly in light of the fact that it was known that this had no relevance to the investigation of, or the public law proceedings concerning, this family. The situation which arose in relation to this highlights vividly the lack of strategic leadership in the management of the joint investigation and in its relationship with the Local Authority, and the failure of Mr. Garthwaite (as the solicitor for the force) to gain an understanding of the significance of the evidence.
  • Misled the Local Authority: I am satisfied that DS Hudson caused or encouraged the Local Authority to believe that Woman X could be the mother. This is evidenced by the fact that at the conference on 21 August 2015,

 

i) He showed the short video to the Local Authority representatives (inferentially he was holding out that it had probative value in the CA 1989 proceedings):

ii) He drew attention (during the showing of the video) to the existence of the ring on the same finger on Woman X as that worn by the mother;

iii) He pointed out (during the showing of the video) the watch worn by Woman X, which – he said – was not found in the search of the house.

At that time, he knew that the mother had been definitively excluded from consideration as Woman X. Of course the watch was not found in the search of MD’s house: the woman wearing the watch was not MD. There was no significance to be attached to the ring worn by Woman X. DS Hudson knew that.

 

  • DS Hudson showed the Local Authority lawyers the superimposition montage on 17 September; the only plausible explanation for the officer presenting this evidence to the Local Authority at that time is that he was encouraging the authority to pursue a case that Girl Y was indeed GD in the still image, even though he knew that this was, on the evidence of the expert not so (and when he knew also, on his viewing of the longer video, that GD was not the girl in the video either).
  • Witness statement of DS Hudson (dated 22 September 2015): The West Yorkshire Police rightly concede that the witness statement of DS Hudson (22.9.15) was seriously misleading in both what it contains and in what it does not contain (see the concession at Annex B [6] below). I was unconvinced by DS Hudson’s protestations that he did not realise that by providing such a limited statement, and indeed by providing only the material he did, a wholly distorted view would be given of the investigation and its outcomes. It is well-established now that by the time he provided the statement, he knew that MD was not Woman X, yet the statement tended to point to the contrary conclusion. For instance, his statement includes this paragraph:

 

“The footage of the images and videos recovered from the forensic examination identified a video containing footage of a women (sic.) with the facial appearance of [MD], the face of the women (sic.) in the footage can be seen, not a common factor as those abusing children do not want to be identified, also the woman wore a ring on her right hand finger which is the same hand [MD] wears a ring as seen in other family footage of her”.

The statement further referred to DS Hudson’s belief that Girl Y bore a striking resemblance to GD. This statement drew attention only to those pieces of evidence which implicated the mother; he failed to refer to the following crucial facts:

i) By the time he signed the statement, he had undoubtedly received information that the short video was an extract of a longer video which demonstrated beyond peradventure that Woman X was not MD;

ii) The video undoubtedly originated in the USA;

iii) No watch had been found in a search of the mother’s home which matched the watch in the video;

and

iv) The police had clear evidence from LGC Forensics, which they had accepted that MD and GD had been eliminated as a match for Woman X and Girl Y respectively.

 

  • DS Hudson told HHJ Anderson that he understood the purpose of the statement was “to outline my involvement with the family”, and separately “to provide a snapshot of my investigation into [MD]”. He conceded at that hearing that he had been in “error” in providing the statement which he did. He further told HHJ Anderson that he knew at the time of providing the statement that the Local Authority was continuing to pursue the finding that MD was Woman X, a contradiction from the evidence placed before me. There was the occasional sign in his oral evidence before HHJ Anderson (of which I have the transcript) of his confused thinking, for instance posing the rhetorical question (when probed about his knowledge of the video originating in the US): “who am I to know that she has not been on holiday to America?” (later dismissed by him as a “throwaway remark” for which he apologised). It was that confused thinking, coupled with an unworthy desire to see MD proven to be Woman X, which I believe permeated his dealings with the Local Authority. At this hearing he has acknowledged that:

 

“… in providing such a limited statement, without expressly confirming the use to which it would be put, I afforded the opportunity for the Local Authority case to be progressed in the way that it was… I can see now that I was overly-reliant on the Local Authority legal representatives in dictating the content and scope of my statement…”

 

  • Failure of recording: It has been important to my investigation to know when DS Hudson viewed the second (longer) video; although I am satisfied that from 23 July at the latest he was aware from DFI that MD was not Woman X, he had not seen this with his own eyes. It is therefore a source of forensic frustration, and not inconsiderable consternation, that the evidence adduced before me revealed such lax arrangements for the recording of viewing or distribution of such highly sensitive materials. DFI made no note of when he found or viewed the second (longer) video, nor when DS Hudson viewed the second (longer) video; yet more concerning is that DS Hudson was provided with a copy of the short video and/or the longer video, but no record was made of when he was provided with them, or their ultimate whereabouts. After his retirement, the second (longer) video was found in the secure safe of his office; no steps had been taken to return it to the Digital Forensic Unit.
  • Generally: DS Hudson appeared affronted that his investigation and his conduct of it was being called into question in this enquiry. DS Hudson had, I have found (see [13] above), declared himself at the strategy meeting in February 2015 to be 90% sure that MD was Woman X, and 99% sure that GD was Girl Y. In my judgment he struggled to shake off those beliefs; the social worker had the sense that he still thought it could be the mother when he met with the Local Authority representatives on 21 August 2015. The mother recorded in her written evidence that she felt that DS Hudson strongly believed throughout the investigation that she was Woman X. When Mr. Marshall gave his evidence to HHJ Anderson in November he described DS Hudson’s reaction to seeing the longer video in July/August thus:

 

“I’d given him clear proof that it wasn’t what he thought from the start but then from there, there was also… He was still convinced of the likeness that was there…” (my emphasis by underlining)

His evidence frankly gave me the same impression.

 

  • As I say, DS Hudson believed that the Local Authority was “looking to pursue” the allegation that MD was Woman X in the care proceedings even when he knew that she was not that woman; at no time did he challenge the Local Authority as to the appropriateness of this pursuit. This belief in the mother’s likely guilt (alternatively his wish to see her proven as the perpetrator of abuse) is consistent with, and provides a unifying explanation for, his conduct in:

 

i) Failing to make clear to the Local Authority and/or to the mother at once, following his conversation with LGC Forensics on 31 March, that MD had been “eliminated” as Woman X; I have found (see [20] above) that he was given this specific information on that date;

ii) Presenting the image of Girl Y to the parents in interview in an effort to trick them (as I find) into believing that it was GD (see [26]) in an attempt to see if an incriminating response may be given;

iii) Showing the Local Authority representatives, the short video of Woman X at the conference on 21 August 2015 when he knew that it did not feature MD, and that it was made in the USA;

iv) During that presentation, on 21 August pointing up the presence of the ring on the finger of Woman X as being similar to that worn by MD;

v) Informing the Local Authority representatives at the conference that a trawl of the family home had not revealed the presence of the unusual blue watch worn by Woman X;

vi) Signing and submitting a witness statement in September 2015 which was highly selective in content and unacceptably partisan;

vii) Failing to tell the Local Authority representatives of the existence of the longer video at that or any subsequent time prior to 18 November (second day of the hearing before HHJ Anderson);

viii) Volunteering in his evidence at the hearing before HHJ Anderson that he could not confirm that the mother “hasn’t been on holiday to America” (implying that she could have been involved in the creation of the video); his later apology and dismissal of the remark as “throwaway” does not expunge the record.

I find that by his conduct and words said and not said, DS Hudson allowed or encouraged the Local Authority to pursue the finding that MD was Woman X. I reject the explanation he gave for showing all parties the short video during the autumn of 2015 prior to the final hearing that he simply thought that “they should know what … the background to the case was”.

 

  • DS Hudson as officer in the case carried much sway with the Local Authority. In his sharing of information, he did not faithfully observe the ‘Golden Principles’ discussed at [71] above (viz. “Necessary, proportionate, relevant, adequate, accurate, timely and secure”). His less than professional approach regrettably contaminated the family proceedings. He was not, in my judgment, effectively supervised by DI Walker during the months under review. She concedes as much. This was a failing on her part, which I consider contributed to the unchecked mischief in this investigation.
  • I note that Head of Legal Services at West Yorkshire Police has made a referral to the Professional Standards Department of the police in relation to the conduct of DS Hudson; the Professional Standards Department has indicated that it intends to await the outcome of this hearing.
  • It was Mr. Garthwaite’s clear role as Legal Adviser to the force to take responsibility for the force’s compliance with the disclosure orders, to be proactive over the disclosure of material more generally, and to have a hand in (or oversight over) the preparation of DS Hudson’s witness statement. My impression was that he was rather detached from these processes, dipping in when unavoidably required to do so, and otherwise placing reliance and responsibility, to an unwarranted extent, on the actions and judgment of the investigating officer. His e-mail to DS Hudson of 21 July (see [29] above), shows a lack of discipline in communication; regrettably, the use of the vernacular (“pin a case”) may well have given a false impression to the officer about the intentions, the judgment and indeed the integrity, of the Local Authority in the prosecution of its case. His lack of appreciation of the significance of the second (longer) video (which would have been apparent on minimal enquiry) contributed to the failings of his department, and of the investigation.

 

 

 

Findings in relation to counsel instructed by the Local Authority

Findings: Intervener:

 

  • There is no doubt that the Local Authority legal team was under joint and several duties to observe essential principles of fairness, and comply with orders of the court; each owed a duty to the court in the administration of justice. Each had a duty not to mislead the court, knowingly or recklessly, and to provide a competent standard of work. In that regard, what I have said about the Local Authority team above in some respects applies to Mr. Shiels.
  • Mr Shiels, an experienced family practitioner, was instructed as counsel on 16 March 2015, receiving his instructions from time to time from a solicitor whom he regarded as “very able and experienced” and with whom he described enjoying a “good working relationship”. There was, apparently, no formal brief or instructions as such; Mr Shiels received his instructions relatively informally through e-mails and telephone conversations. He attended altogether seven directions hearings in the case prior to the final hearing listed in November 2015.
  • There are clear duties imposed on counsel to observe a duty to the court in the administration of justice, to act with honesty and integrity, and not to behave in a way which is likely to diminish the trust and confidence which the public places in the individual barrister and/or in the profession (see the Bar Standards Board Handbook, Core Duties).
  • I have, in reviewing Mr. Shiels’ role, as I have with others, endeavoured not to apply too exacting a standard by viewing the conduct through the lens of hindsight. Mr. Shiels’ approach to the case he was instructed to present, reflected in his advice to his instructing solicitor, appears to me to have been more bullish than it was cautious; that is not a criticism as such, nor a mark of professional irregularity. He was of course evaluating the case in the context (to which I have alluded above) of serious criminal offending within the family home; I consider that this backdrop may have influenced (perhaps to a disproportionate extent) his intention to seek serious findings against the mother which on the evidence were, objectively viewed, likely to be beyond his reach. Central to Mr. Shiels’ advice was that the LGC Forensics report may be wrong, and that there was much extraneous evidence (including the superimposition montage) which could knit together to establish a finding that MD was Woman X and that GD was Girl Y on the preponderance of probabilities. While Mr. Shiels was entitled to the view that the expert evidence may indeed be wrong, and that it was in any event only part of the forensic picture, I discerned limited if any evidence on the papers before me that he had properly thought through how this might be presented to the court. I say so for the following reasons:

 

i) There is no indication in what I have seen that he conducted any detailed evaluation of the strength of the expert evidence of LGC Forensics; the report contained much technical and specialist information and assessment, even if ultimately based on a subjective view of the material; Mr. Shiels had no equivalent expert evidence to rebut it; I remind myself of his e-mail to Ms McMullan on 23 July (see [31] above): “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.”

ii) It seems that he had not appreciated the limitations of the superimposition montage; he described this montage as revealing a “remarkable match” in his opening note, yet had not taken the precaution of sending the montage to LGC Forensics and specifically to the expert for her comment. He has no expertise, or knowledge or skill in the area of facial mapping and I apprehend from his cross-examination of the expert at the hearing before HHJ Anderson, that he had limited understanding of the techniques used in compiling such a video (Ms Pestell describes a range of applicable tests including ‘the flicker test’, the ‘half-image’ approach, the ‘transparency overlay’). Ms Pestell was clear that the video superimposition montage compiled here was not just one which would be unsafe to place before a jury, it was in fact potentially misleading. (see [58] above);

iii) Mr. Shiels wrongly described to HHJ Anderson (and may well therefore have treated) the superimposition montage as expert evidence; it was not;

and

iv) It was at least questionable whether the other matters which he wished to bring onto the ‘wide canvas’ were truly probative of the principal contention that MD was Woman X (see [82]).

His e-mail to Ms McMullan on the 23 July (“to me, it just looks like mother and [GD]”: see (i) above, and [31]) does not, as I say, reveal any analysis or reasoning. Professional “instinct” is useful, but it is not a fool-proof or objective measure of evidential reliability. Mr. Shiels’ ready (and I may add appropriate) acknowledgement of the strength of the expert opinion once the author of the report (Ms Pestell) had completed her oral evidence before HHJ Anderson served to highlight the insecure basis on which his original view was formed.

 

  • Mr Shiels’s failure to mention in his detailed Opening Note the possible (as he knew it to be) US origin of the video recording, and/or the failure of the police to locate the watch worn by Woman X in the search of the family home, is harder to understand or explain. I am not satisfied that these omissions were deliberate (in the sense that he sought to paint a misleading picture), but I am concerned that he was “focused” (see [38]) rather too firmly on constructing a case against the mother, encouraged perhaps by the police, rather than in presenting a truly balanced account. Mr. Shiels’ failure to mention these facts contributed to the Article 6 breaches conceded by the Local Authority (see Annex A[1](a)/(b)/(h)).
  • I found Mr. Shiels to be a straightforward and honest witness. I do not view his conduct in this case as falling below the standards of a practising barrister. The opinions he formed were, I am satisfied, genuinely held and fashioned by the information he was given. He was unlikely to have been unaffected by DS Hudson’s zeal. It turns out that in a number of respects his judgment turned out to be wrong; but exercise of judgment is after all in the realms of art not science, and it is easy to view decisions in hindsight:

 

“Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent” Saif Ali v Sidney Mitchell [1980] AC 198 at 231.

Finally, lessons to be learned

  • What follows is not a comprehensive guide to good practice, but some points which require specific attention as lessons to be learned from the experiences of this case:

Collaboration between agencies and inter-agency working:

i) I have set out the duties of joint working at [68-72] above. The courts expect a high level of co-operation and collaboration between the various agencies conducting joint investigations in relation to safeguarding cases; this was a point I recently made in Rotherham MDC v M & others [2016] EWHC 2660 (Fam) at [10] (“These bodies have a collective responsibility to work in partnership in the discharge of their respective duties, to share information conscientiously, and to maintain clear focus throughout their investigations about their common objectives”); there should be an ongoing dialogue in ‘real time’ between the agencies, and these should be properly recorded – (see below);

ii) Informal discussions (including e-mail ‘discussions’) between professionals conducting joint investigations should be avoided; proper records should be kept of discussions had, and information shared, when and how;

iii) E-mail or other written communications between operational professionals (the Officer in the case, and the social worker) should be copied in to, or pass through, lawyers for each of the agencies, so that there is a clear understanding and record of what information is being shared;

iv) Where meetings take place between the representatives of the safeguarding agencies, a written record should be made of the meeting; that written record should ideally be agreed between the participants.

Disclosure issues

v) Where issues arise as to disclosure of material or information between the police and social services, it is incumbent on the parties rigorously and faithfully to apply and comply with the Protocol and Good Practice Model (October 2013); this identifies as one of its principal Aims and Objectives the “timely and consistent disclosure of information and documents from the police, and the CPS, into the Family Justice System” (3.4).

vi) Where orders are made for disclosure affecting the Police, they must be complied with, or application made to have the order varied or set aside. Orders are Orders (per Re W [2013] EWCA Civ 1177, and specifically in this regard §7.4 of the 2013 Protocol and Good Practice Model). It is not for the Police to apply their own judgement as to the relevance or otherwise (in their eyes) of what they have been required to disclose; it is the plain and unqualified obligation of every person or body against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is varied or discharged;

vii) If the Police consider that the material disclosed requires an explanation/clarification (for example, if the Police consider that it may be misunderstood or given a significance that it does not merit) the Police can make this clear, in the first instance, with a letter accompanying the disclosure and, if need be, by providing a written statement to that effect;

viii) Where information or documentation which is relevant to the public law proceedings is provided by the police to a local authority, that material shall be disclosed to the other parties unless the court, on application by either the local authority or the police, has granted permission for non-disclosure (see for instance Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, and Durham County Council v Dunn [2012] EWCA Civ 1654, [2013] LGR 315);

ix) It is recognised that there may be occasions when the Police seek to delay disclosure on the grounds of prejudice to an ongoing criminal investigation, and this may indeed be merited for a limited period of time (see §6.4 of the 2013 Protocol and Good Practice Model). However, should the police wish to withhold material for this purpose, it should raise the matter with the Local Authority and/or the court (see §7.2); if presented to the court, it will be incumbent on the judge to balance the Police’s desire to delay disclosure against fairness to the parties within the care proceedings and the prejudicial effect of delay upon the children.

x) Furthermore, the Police must always be able to justify any claim of prejudice. Reasons should be provided to the Court. ‘Prejudice to the investigation’ is not to be used as a generic objection to disclosure. Any assertion of prejudice must be scrutinised rigorously and must be kept under constant review. It is to be expected that such analysis and review will involving meaningful input from the investigating officer, his/her supervising officer and/or Police Force Legal Services.

xi) If/when any claim to prejudice is withdrawn by the Police or no longer sanctioned by the Court, the Police and Local Authority should disclose to all parties any information which had previously been withheld as directed by court order.

xii) DI Walker advised me that procedures are now in place within West Yorkshire Police to ensure that disclosure to local authorities engaged in care proceedings is overseen by Information Management and that every disclosure is individually itemised, with page numbers, to ensure absolute clarity about the documentation/information provided and the timing of such disclosures. These logs will then be made available for reference by the Courts as and when required. It is important that this standard of record keeping is adhered to.

ABE Interviewing

xiii) ABE interviewing is a skilled exercise, which should only be conducted by trained professionals. It is not acceptable under any circumstances to provide false or misleading information to a child; after all, there is a high expectation that the child will be encouraged to provide accurate information to the interviewers.

Evidence

xiv) Witness statements:

a) A witness statement is the equivalent of the oral evidence which the maker would, if called, give in evidence (PD22A para.6 FPR 2010). It follows that all witnesses who provide written statements should therefore carefully check the contents of those witness statements before they are signed, and should only confirm the truth and accuracy of the same when they have undertaken that careful check. Local authority lawyers should be scrupulous in ensuring that social workers are aware of any editorial changes made to draft statements; the written statements have particular significance at interim hearings given that “the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise” (rule 22.7 FPR 2010) and in which a “fact which needs to be proved by the evidence of witnesses is to be proved … by their evidence in writing” (rule 22.2 FPR 2010); at a final hearing, of course, “The witness statement of a witness called to give oral evidence … is to stand as the evidence in chief of that witness unless the court directs otherwise” (rule 22.6(2) FPR 2010);

b) Where a statement of evidence is sought by a Local Authority from a police officer involved in a parallel investigation, such a request should be in the first instance to the District Safeguarding Inspector, and it should be made in writing. If contentious issues arise, then Legal Services of the Police should be involved. It should be clear in any request, and understood as a matter of common practice, that any statement of evidence must provide balanced and accurate information and not mislead by matters either included or omitted; any statement should include all matters which in the view of the District Safeguarding Inspector (and/or Legal Services, if involved) will assist the Family Court in reaching decisions in the best interests of a child, whether that is helpful or adverse to the particular case being advanced by the Local Authority; the statement should be prepared by the Local Authority solicitor. The current policy of the West Yorkshire Police provides for the officer to be interviewed by a Local Authority representative (I would propose that this be a lawyer) in the presence of an Inspector (or higher ranking officer). This makes good sense. It appears that DS Hudson was unaware of the policy at the time he prepared his statement; I understand that DI Walker has referred the matter to the Safeguarding Central Governance Unit in order that all officers involved in safeguarding work can be reminded of its contents;

xv) Different rules, procedures and expectations arise in the instruction of experts in criminal and family proceedings; there are material differences between Part 25 (and PD25) of the FPR 2010 and Part 19 of the Criminal Procedure Rules 2015. Where an expert has been instructed in the criminal process on whose evidence the Local Authority wishes to rely, the Local Authority should take steps to ensure that the evidence conforms to the requirements of Part 25 and the associated Practice Direction 25B. Any further approach to the expert should conform to the requirements of Part 25;

xvi) The procedure for submitting questions to experts should be used promptly and in accordance with Rule 25.10 FPR 2010.

Repeat medical examination

xvii) GD was subjected to two medical examinations within a few days of each other in March 2015; the first was an intimate medical examination. The repetition of investigation of this kind is highly regrettable, and I suggest was wholly avoidable. The Local Authority social work team manager explains that the police medical was undertaken by a police forensics surgeon “who would not have been able to undertake a LAC medical. The LAC medical was undertaken by LAC nurses”. This still does not explain why the exercise could not have been conducted collaboratively with the sharing of information and findings. I therefore recommend that:

a) There is a duty on the investigating authority to satisfy itself that there is a proper basis for an intimate medical examination – either, for example, a disclosure of abuse by the child, or a direct allegation of abuse which would be clarified by the intrusive examination;

b) The Police and Local Authority should co-ordinate their enquiries so that a child is not subjected to repeated medical examinations (required for different purposes), particularly within a short space of time;

c) By the time of the medical examination, the Local Authority had parental responsibility for the child under an ICO and gave consent. However, the parents (also with parental responsibility) should have been consulted; in the absence of agreement, a court order should have been sought authorising the medical examination;

d) A report of the examination should be made available to those with parental responsibility, and, where relevant, the court.

These observations coincide with the clear guidance offered in the ACPO Guidance at section 4.4, the College of Policing: Major Investigation and Public Protection; Child Abuse; Further Investigation (first published 21.01.14; last modified 16.11.15), section 3; and the ABE Guidance at para 2.41.

 

 

 

Building Redbridge to your heart

 

 

Readers may remember the London Borough of Redbridge getting a hard time recently in this case

https://suesspiciousminds.com/2016/10/25/like-redbridge-under-troubled-water-a-local-authority-takes-a-kicking-case/

 

And you might remember that the case hadn’t finished there –  MacDonald J had effectively put the Local Authority in special measures, with them having to write to him each and every week to say if the case was still on track to an adjourned final hearing.  So this is the judgment from the final hearing, and if Redbridge’s bruises were healing up, they just got some new ones.

 

But first, here’s  photo of a muppet.   (this is foreshadowing, y’all… )

 

No, it's not Honey G out of X-Factor

No, it’s not Honey G out of X-Factor

Re  E (A child : Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/59.html

 

The final hearing was conducted by Mr Justice Moor, and he opened with this King Punch

 

  • Following the Family Justice Review, it was recognised that care proceedings were taking far too long. At the time, the average length of a care case was around 57 weeks. This was unacceptable. The Review recommended a maximum of 26 weeks. The Government accepted the recommendation and the Children and Families Act 2014 was enacted. Section 14 imposes a statutory limit on care proceedings of 26 weeks, albeit that the period can be extended but only if it is necessary to resolve the proceedings justly. Extensions are not to be granted routinely and each extension is to be for no more than eight weeks.
  • The care proceedings in relation to E. commenced on 12th January 2014. By my calculations, that is some 148 weeks ago. I am dismayed by this. It is completely wrong. E. has been let down in a quite unacceptable way. The strain on E.’s mother has been huge. She has been let down as well. Everything that could go wrong in this case has gone wrong. E. and her family are due an apology for this unacceptable state of affairs.

 

 

Awful situation.  When I look at the history of litigation set out by the Judge though, I see SEVEN different Judges have dealt with substantive matters where issues were contested and determined, and who knows how many others have done directions hearing.  What price judicial continuity? The Courts have to look at themselves for some of this. The case could not have got up to 148 weeks if the Courts weren’t granting extensions, and though many of them were due to faults from the parties, there was still a failure to properly grip the case right up until Mr Justice MacDonald’s fearsome judgment.

 

Having said that, it was still quite astonishing that a case with the history of this one (two appeals, case falling apart at final hearing, the LA within a short space of time going from a plan of no order, to Supervision Order to Care Order to Care Order and removal) that the LA got to the final hearing with a social worker who seemed very nice, but for whom this was their second ever case in Court.  It also wasn’t ideal that his first ever interaction with the mother was one where he had to tell her that the LA care plan was adoption.

 

The Judge did make some criticisms of the LA (though compared to the  withering and blistering MacDonald J judgment, these criticisms must have almost felt like praise)

 

 

  • I have already dealt with the failures of the Local Authority to comply with the directions of this court in the run up to this hearing as set out in the judgment of MacDonald J dated 17th October 2016. In the context of what had happened before, I am of the view that this case should have been given absolute priority. It was not.
  • I am equally satisfied that there have been many operational failings by the Local Authority in performing its duties as to its social work function. These have occurred at a significant number of points in the case but were particularly evident at the time that rehabilitation to the Mother was ordered by Mr Recorder Bedingfield. For example, the order of the Recorder dated 20th November 2015 required the Local Authority to convene a professionals meeting by 4pm on 7th December 2015. It did not do so. It did attempt to arrange a meeting but gave Ms CT such little notice that she could not attend. The Local Authority did not, therefore, comply with the next order, namely to file a new care plan setting out the detail of the rehabilitation plan within seven days of the meeting.
  • The Mother’s benefits had been stopped. Whilst the Mother may have carried some of the responsibly for this, I am satisfied that the Local Authority did not assist in the way that it should. Correspondence from the Mother’s solicitors was not responded to such that judicial review had to be threatened. Eventually, the Local Authority agreed to provide the Mother with £234.31 per week in a recital to an order dated 25th January 2016 but I am satisfied that even that did not go smoothly. Moreover, there was difficulty with the Mother getting her travel warrants to attend KCA for her drug and anger management therapy. Later, she was unable to attend this therapy as only one hour of child care was provided via PKS. As the KCA appointment was also for one-hour and she had to travel to and from the venue, it made it virtually impossible for her to continue with the work.
  • I further accept that the Mother did not find her leaving care worker, Ms T to be remotely supportive of her. The Local Authority knew that. Mr Recorder Bedingfield had made criticisms of Ms T in his judgment. I accept Ms Maclachlan’s submission that Ms T should not have been invited to the contact review meeting in January 2016, although I do not accept that this was a deliberate attempt by the Local Authority to get the Mother to lose her cool. I do recognise that, for example, the issue of the Mother’s leaving care grant, which I have been told is some £2,000, was very much in issue and needed to be dealt with. However, given the Mother’s opposition, the Local Authority should have respected that. It was another unnecessary failing.
  • Finally, the position of the Local Authority throughout this period left much to be desired. At one point in February/March 2016, it was inviting the court to make no order at all. At another, it sought only a supervision order. It then changed tack completely in later March 2016 to ask for a full care order. On 14th March 2016, it had been indicating it would be withdrawing the PKS workers. I accept that they could not continue to go into the home for ever, let alone daily but it is in stark contrast to a care plan only eight days later for removal. The way in which the Mother was told of the change in the care plan in the child protection conference on 22nd March 2016 was very insensitive, particularly as E. was present in the building, albeit with a PKS worker. I accept that it was always going to be difficult to tell the Mother. Is it better to do it in her home or with her solicitor or in the Local Authority offices? It was not, however, right to do it in the meeting. It was bound to distress the Mother enormously.

 

 

 

Very sadly, and despite an independent social worker lobbying very hard on her behalf, the Court concluded that the mother was not able to care for her child and the Care Order and Placement Orders were made.  Her representatives asked the Court to make human rights declarations but the Court declined to do so.  (I have seen reported cases with far less failings than this one which ended up with HRA declarations and claims, but of course, I didn’t hear or see the evidence)

 

But why the picture of the muppet earlier?

Well, part of the evidence involved whether the mother had been smoking cannabis, and one word rather leapt off the page at me when I was reading it

 

 

  • Another real and genuine concern is the Mother’s increased use of cannabis since March 2016. She has gone from one zoot per day to three zoots. This is a clear indication of her increased anxiety and fragility. She told the Guardian that she had ceased taking cannabis on 10th October 2016 but it lasted one day, as the Guardian predicted. She has told me she has reduced her cannabis intake recently but I am not satisfied as to this without far more information. She told the Guardian that she was using skunk, which is a significantly stronger version of the drug. She told me that she did not know the difference between ordinary cannabis and skunk, which I did find surprising although she seemed to be genuine when she told me. Having said that, she did accept that it was skunk she was buying and the Guardian told me that this is now the normal way in which cannabis is sold.
  • The use of cannabis can be very serious for the mental health of the user. I accept that different people react in different ways. This Mother has been using cannabis since she was aged thirteen. It does not appear to have affected her as badly as some. It has not prevented her getting to contact on time even early in the morning. It has not stopped her providing a good level of care for her daughter but I simply do not know what damage it is really doing. I strongly suspect that, in the long term, it is making her anxiety worse rather than better even though it does deal with the symptoms at the time. Moreover, the Mother accepts that the cost is some £10 per day or £70 per week. Given the enormous squeeze on benefits, I simply do not know how someone can spend that amount of money without a really serious effect on their standard of living. All this would have a real effect on E. too if it was to continue notwithstanding what the Mother said about prioritising E.
  • Ms CT appeared to accept the seriousness of this in her evidence. She said to me on more than one occasion that this did concern her, particularly if the Mother was taking skunk. She said she did not know of the increase in usage and there was no disagreement as to the seriousness of the risk if she was using three zoots per day. She accepted that the Mother would have to deal with this before E. could be safely returned and she was not advocating an immediate return to that Mother’s care. She reminded me that the Mother had managed to achieve periods of abstinence in the past (on one occasion of some four months) but she has always returned to the drug. I find that, without professional help, there is no chance of her being able to cease its use. In due course, it may start to have severely adverse effects upon her mental health.

 

 

 

Urban dictionary confirms that ‘zoot’ as we would take from the context, is indeed a joint or a spliff, and as the first time it appears in the judgment it is in quotes, it must be the term that mother herself used

It is right that the Mother continued to smoke one “zoot” of cannabis every evening after E. had gone to bed.

 

We’ve all rightly praised Mr Justice Peter Jackson for his judgment where he wrote directly for the children, using language that they would follow. So we should also commend this Judge for using the language that the mother herself was using.  And after all, joint and spliff are both slang words  (and if the Judge had said ‘reefer’ it would have seemed very dated.  So I think it is a good thing.  I just wonder how it sounded, coming from a High Court Judge.

 

If you do wonder what it is like when someone wearing a tie is talking very street language, you might be glad to know that Chicken Connoisseur has dropped a new review.   (And yes, I’ve been wanting an excuse to crowbar in a reference to the Pengest Munch. Enjoy.   The burger was not peng at all, it was just hench)

 

 

 

 

Adoption law illustrated by way of passive-aggressive post-it notes on a student fridge

 

 

  1. You can take cheese out of this communal fridge if your best interests require it.   Yours, Act

 

2.Taking the cheese out of this fridge is a draconian resort and one that should only be done as a last resort. Having said that, if your best interests mean that you NEED to take the cheese, that’s fine.  Just, y’know, think about it first. Yours,  Caselaw

 

3.  But everyone, please remember that if you ARE going to take any cheese, you must be sure that it is proportionate and necessary.  Yours, HRA

 

4.  What the hell are you students doing with the cheese? If you don’t behave yourself with the way you take cheese or decide to take cheese or how much cheese, then we’ll have to come and put a bloody lock on the fridge.   Also, what’s with your fascination with cheddar?  Why not try some brie, or parmesan or Edam? Yours,  Y v UK

5.  Everyone, for goodness sake, you’ve seen what Y v UK said, but everyone’s ignoring it.  This is not cool. We are not being cool here.  Oh yes, ha ha, fridge related pun there, very funny. This is really really serious everyone.  Listen! The fridge is going to be locked if everyone doesn’t learn to be responsible about the cheese. We think the best thing is to have a snappy easy to remember sentence, then everyone can be really clear about when it is OKAY to take cheese and when it is very much not okay to take cheese.  Nothing ever goes wrong with snappy catchphrases (like, for example  “no return to boom and bust”  – that had literally no downside at all)  …. So from now on, just remember,  “Only take cheese from the communal fridge if NOTHING ELSE WILL DO”  .  Yours, Re B

6.  You all heard what Re B said, and we agree. And also, if you are going to take any cheese out of the fridge, you must leave a really detailed note explaining exactly why nothing else will do, and setting out all the other options that you considered  (going down the shops, going hungry, ordering takeway, taking hummus instead) and what the pros and cons are of each of those options and why if you DO decide to take any cheese, why NOTHING ELSE WILL DO”  Yours Re BS

7.  Why the hell is this fridge full of cheese? There’s no room for anything else.  We aren’t going to be able to close the fridge door soon if nobody takes any of this damn cheese out of it. We need to be getting much more of this cheese out of the fridge and into sandwiches, or grated onto pizzas.   We don’t understand this developing cheese mountain. What the actual heck, people? Who has been telling people not to take the cheese?   Yours,  The Government.

8.  Our fridge is full of cheese. It is very bad for cheese to continue to be sitting in the fridge, languishing there, when it could be forming meaningful happy relationships on top of a spag bol.  Listen, I know some of you mistakenly believe that recent passive-aggressive post it notes on the fridge have changed the rules and that it has become much harder to take cheese out of the communal fridge, but all of you are wrong. You fools.  Just go back and read the very first note, by Act, and do that.  And remember that the Government wants much more of this cheese gone, and they are weighing it once a month now to see if you’re managing.  If you don’t get it sorted, then the Government will get Capita to come in and run the fridge services for a lucrative fee.  Yours, Mythbusters  (oh also, the President agrees with this)

9.  I agree with all of that, only I don’t actually agree with it and I will undermine it subtly throughout this note.  However, if people are taking literally the test as being “NOTHING ELSE WILL DO” they are mistaken, because they simply didn’t understand that post-it notes 3, 4, 5 and 6 said.  I hope that’s all clear now. Sometimes it is the best thing for the cheese to be taken out of the fridge, and if so, people must not be afraid of doing it. But they should only do it if nothing else will do.   Yours The President Re R

10.  Once the fridge door has been open and the cheese is in your hand, there is no presumption that the cheese OUGHT to go back in the fridge rather than be grated onto spag bol. We have to start from a neutral position and consider what is really best for the cheese at that point.  Also, we slightly regret the “Nothing else will do” shorthand label referred to in post it note 5, but because Re B has been in the house longer than us, we can’t actually say they’re wrong.  Ignore it though once the cheese is actually in your hand, even if the fridge door is still open. It doesn’t count then. But more generally, of course “nothing else will do” applies. But, you know, just take it with a pinch of salt. (Not the cheese, the guidance)   Yours, Re W

 

 

 

(Oh man, researching google image for passive aggressive fridge notes turns up some shockers.  Here are just four – because the first is more about dishes, I think)

 

 

I like on this both the neat triangular one and 'disapproving mum face'

I like on this both the neat triangular one and ‘disapproving mum face’

 

 

That's a strong retaliatory position. Though I would place smoked kippers in the fridge and sit back to watch the show

That’s a strong retaliatory position. Though I would place smoked kippers in the fridge and sit back to watch the show

 

I  don't know about you, but if I worked there, Tina from HR would be going hungry EVERY single lunchtime.

I don’t know about you, but if I worked there, Tina from HR would be going hungry EVERY single lunchtime.

 

 

Let's hope when the threats to maim co-workers goes to HR, it isn't Tina investigating it

Let’s hope when the threats to maim co-workers goes to HR, it isn’t Tina investigating it

The Re W rehearing (placement with grandparents versus adoption order)

 

You might remember the Re W case – in which the Court of Appeal surprised most family lawyers by saying that in care/adoption there was no presumption in favour of the birth family – maybe you remember the situation in which some of the brightest minds in the country talked vividly about see-saws for what seemed like an eternity.  You might also remember it as the case where one of the plans for moving the child from prospective adopters to grandparents was to engineer a chance meeting in a park and just have the grandparents leave the park with the child and the adopter leave without the child ?  Oh yeah, that one.

 

https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/

 

This time round it is  Re Adoption : Contact 2016    (which is a pithy title, but it is rather like Orson Welles calling his film “Citizen Kane – it’s a sledge”  or  M Night Shyamalan calling his  “The Sixth Sense – Bruce is a ghost”.    I mean, it’s really obviously not called Re A : Return to grandparents 2016, so the judgment lacks that vital component of suspense)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3118.html

 

 

 

The fulcrum is positioned dead centre   – no party starts with any advantage before the evidence is heard  (either the family on “nothing else will do”  OR the prospective adopters on “status quo”)      [At least, that’s the position in law TODAY….  over the last three years adoption law has developed a habit of tilting this way and that like well a see-saw]

 

 

18.There is no presumption in this case one way or the other; the fulcrum is positioned dead centre. I apply a straight welfare test. Significantly, I note that there is no right or presumption in favour of a placement of A within her natural family; at [71] of [2016] EWCA Civ 793 McFarlane LJ said:

 

 

 

 

“The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.”

 

He added at [73] that the phrase “nothing else will do” (from Re B [2013] UKSC 33):

 

 

“… does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs”.

19.Equally, there is no presumption in favour of a ‘status quo’, notwithstanding the powerful words of Ormrod LJ in D v M (Minor: Custody Appeal) [1982] 3 All ER 897, recently cited in Re M’P-P [2015] EWCA Civ 584 at [67]. That said, important in the welfare evaluation is the fact that A has been in her prospective adoptive home for approximately 4/5ths of her life. As the Court of Appeal said at [65] ([2016] EWCA Civ 793), the welfare balance to be struck must inevitably reflect these particular circumstances, which of course are different from the circumstances when the placement order was made. The balance at the placement stage naturally would have tilted towards a family placement if relatives had been assessed, as these grandparents would probably have been, as being able to provide good, long term care for a child within their family.

 

 

 

 

You may recall that this was the case where the Court of Appeal expressed hope that the case might not be an ‘all or nothing’ and that the child might have a relationship with both sets of important people, so contact was an important aspect  (again you’ve guessed that from the  “Rocky – he wins in the end” title   *     – actually Rocky doesn’t win at the end of the first movie, common misconception.  Even now, many of you are saying  “Of course he does, he wins the title”  – nope, he wins in Rocky 2. All he really wanted to do was go the distance with Apollo Creed – the Master of Disaster, which nobody else had ever done. And he did that. But lost on points. Nobody remembers that)

 

Okay, so THIS guy also remembers the result of the fight.

Okay, so THIS guy also remembers the result of the fight.

 

From the first four Rocky movies  (I cannot accept the later ones as part of canon), the fights we actually see Rocky have, his record is Loss, Win, Draw (with Hulk Hogan), Loss (Clubber Lang), Win (Clubber Lang), Win (Ivan Drago).  It’s not that great.  His win rate is 1:1.  He won 1 fight for every fight that he didn’t win.  To put that in context, Herbie Hide won ELEVEN times as many fights as he lost.  Yes, I am claiming here that Herbie Hide would have had a chance against Rocky.  Even Audley Harrison had a win rate of 5:1.

 

I’ve digressed.  Back to law.

46.Direct and indirect contact: When they first made their application, Mr. and Mrs X had agreed to indirect contact taking place between A and the birth parents once per year, albeit not to include photographs, gifts or celebration cards. This stance was, at least in part, attributed to the standard preparatory pre-adoption training which they had received, where this is described (according to Mrs. Gaskin) as the ‘norm’. Over the course of this protracted litigation, and particularly recently, their position has changed in significant respects. They told the adoption social worker:

 

 

 

 

“When we first thought about the adoption process, we did not envisage direct contact with any birth family. However, with circumstances as they are, we see the advantages of contact with siblings. We think the challenges are the emotional aspect but in time [this] will get easier”.

 

And more recently still in their written evidence:

 

 

“We are also very aware of the importance of [A] having some knowledge of her birth family and importantly some relationship with her siblings. Whilst we have acknowledged to the experts our commitment to some level of direct contact if that is felt in the best interests of [A], we do not wish such contact to be disruptive to her continued placement with us, or confusing to her in her development and security. The purpose of the direct contact needs to be carefully considered and the contact tailored to that end”.

 

Mr. X augmented this in his oral evidence, speaking for himself and his wife:

 

 

“We would like A to have contact with the [birth] family if possible… We do genuinely understand the pain… If the chance of contact is available, then this needs to be explored for us and for A so that she can have the right to know her birth family and have a good life.… It’s not about the adults, it is about the children. We have to put her needs first. Happy to do the contact; it would be great for A and her brothers; hopefully we can have a bond (with the paternal grandparents); we can ask them for advice and go to birthday parties…”.

47.I was quite particular in my attempts to establish whether Mr. and Mrs. X felt pressurised by their rather vulnerable situation to agree an arrangement with which they did not feel entirely comfortable; having listened to Mr. X in his oral evidence, and having read and heard the evidence of those with whom they have spoken frankly about this issue away from the court room, I was satisfied that he and his wife genuinely had come to appreciate the benefit to A in there being direct contact between A and her birth family. Mrs. Gaskin spoke of them as people with integrity (see below); from all that I could see and read of them, I concur.

 

 

The ISW, Ms Gaskin said this on the issue of contact :-

 

 

“Mr. and Mrs. X have suggested that initially they feel they could cope with four times per year, rising to six times in the light of positive progress. Of course in time, Mr. and Mrs. X would be the final arbiters of the frequency and duration of contact, and they would make this decision on the basis of [A]’s needs. I am of the view that they are people of integrity and truly want what is best for [A]. They are very clear that they believe that [A] should have a relationship with her birth family and this is something that they have always considered to be the case… They believe that it is important for [A]’s emotional well-being in the long term that she has a relationship with her brothers and paternal family.”

 

61.The obligation on me to consider “whether there should be arrangements for allowing any person contact with the child” (section 46(6) of ACA 2002) is accentuated in this case by the real prospect (accepted by the prospective adopters, as in A’s interests) of direct contact between A and her birth family post-adoption. This indeed adds a new and important dimension to this difficult case. The proposal to introduce a relationship between an adopted child and her birth family after adoption by way of direct contact is in my own experience unique. I was not at all surprised to hear from the adoption team manager that it was unprecedented in this authority’s experience, and in the experience of Barnardo’s (with their wealth of adoption knowledge) whom they consulted on the issue. This proposal reflects the resourcefulness of all those involved – coupled with the creativity of the professionals, and the selflessness of the proposed adopters – to divine an outcome for A which best meets her needs. As I have indicated above, if contact were to happen in the way proposed, it would be likely to play a highly material part in neutralising A’s possible sense of rejection by her birth family, while remaining in the Xs care, at the stage of her development when she is considering more maturely the difficult issues around her identity.

 

 

That is a very unusual amount of contact for prospective adopters to be proposing, and it was clear that everyone had taken on board the hope of the Court of Appeal, which is good to see.  (

 

 

 

 

Discussion and Conclusion

52.No one can doubt the colossal pressure which this litigation has heaped on the prospective adopters and the paternal grandparents over a sustained period of time, and through two rounds of litigation; while commendably uncomplaining about the legal process, it is reasonable to conclude that they have found the repeated forensic scrutiny of their lives unacceptably intrusive, and the uncertainty as to the outcome unbearable. Doubtless each of them has had to develop strategies of self-preservation to protect themselves from the outcome that A is not ultimately to be in their care. All the adults will have found it hard to be assessed and reassessed, but I sensed that each recognised why this needed to happen; to their great credit, and I believe A’s ultimate benefit, they have all engaged fully.

 

 

53.I have listened with great care to the evidence. I was impressed by the ability of Mr. X and the paternal grandmother to reflect generously and sincerely their concern for the other in these difficult circumstances; they all strike me as people of integrity with a deep respect for family. I have been struck by the thoughtfulness of those professionals who have endeavoured to chart these very uncertain waters. I was greatly assisted by the high quality of professional expertise in this case, in a way which, it is clear, Bodey J was not. Mrs. Gaskin described how she had “agonised” over the assessment – “this has been one of the most difficult cases I have had to deal with”. Dr. Young offered appropriate and helpful expert advice; the Children’s Guardian’s report was one of the best of its kind I have seen. She for her part observed that “this has been one of the most testing and difficult cases that I have been asked to report on in my 29 years of practice as a Social Worker…”.

 

 

54.A is, and has been, at the centre of my decision-making. I do not propose to repeat my description of her set out above; it is sufficient for me to record at this point that she has in my judgment had her global needs met in a safe and secure way for the whole of her life thus far; her security and her attachments have enabled her to explore, socialise, and master developmental stages confidently and appropriately. A has attached to Mr. and Mrs. X whom, according to Dr. Young, she identifies as her secure attachment figures.

 

 

55.I am satisfied that both sets of applicants have something genuine and valuable to offer A now and throughout her life. I am of course influenced in reaching my conclusion by the fact that A is securely attached to Mr. and Mrs. X, whom she regards as her parents, and is embedded in their family whom she has come to know as her natural relations. She will have little knowledge or recollection of any life which is different; the continuity and high level of care which she has received has nurtured a strong sense of security with these primary attachment figures. I am influenced too by the knowledge that the paternal grandparents, rightly described by the Guardian as “child-centred people”, are currently raising their grandson with evident love and skill; that they would – I accept – have been more than likely to have been favourably assessed to care for A had they been considered over two years ago, and had that been so, then A would be living with them now. Their belief that A would be best placed in their care is both sincere and passionately held. If A is placed with the grandparents, she would have the considerable additional benefit of being raised in a household with one of her siblings, and in close proximity to the other.

 

 

56.I am equally satisfied that risks are attached to each outcome for A. In evaluating the respective cases, it has been necessary to make some informed predictions about the future, conscious of my obligations to consider the issues by reference to A’s whole future life. In the home of the Xs, there is a clear and identifiable risk that A will feel, perhaps strongly, a sense of rejection when she comes in due course to realise that her brothers are cared for within the birth family, and she is not. This may have significant implications for her sense of identity and self-esteem. This risk, if it materialises, will not arise for a number of years. If it does, it is likely to be moderated by a number of factors, including:

 

 

 

  1. i) That A and the Xs have developed a secure attachment over the last 24 months, which it is reasonable to expect will continue to grow and consolidate; this will operate as an inherent protective defence against disruption of placement;

 

  1. ii) The ability and willingness of the Xs to be open with A about her adoptive status as she is growing up; Dr Young believed that the “key” is in how Mr. and Mrs. X support A to make sense of her status, and advocated adoption ‘talk’ with her from an early age;

 

and

 

iii) The introduction and maintenance of a direct relationship between A and her birth family, namely siblings and other relatives, through contact.

 

57.The risks of medium-term or long-term damage to A by her making her primary home with the paternal grandparents flow directly from the consequences of a move. No question is raised about short-term harm; it is assessed as being inevitable. The professionals spoke of the serious possibility of medium-term and long-term emotional and psychological damage to A by the traumatic severing of the secure attachments which she has formed with the Xs, with the consequent risk of disruption to her placement if these risks materialise and are not adequately addressed. Dr. Young opined that “a significant move such as this at this stage of her development will have a significant detrimental impact on her, of which the long term consequences would be uncertain, and thus any decision must proceed with this knowledge in mind” (emphasis by underlining added). While I am satisfied that there would be no shortage of love, and willingness on the part of the paternal grandparents to assuage the evident hurt for A in the event of a move, which may help A to some extent, the ability (or inability) of the adults around A to address the risk of deeper damage would be affected by a combination of the following factors:

 

 

 

  1. i) A real possibility that A simply does not forge attachments, let alone secure attachments, with new carers, having suffered the traumatic severance of secure attachments with the Xs; there is limited optimism that she will be able to deploy her “an internalised blueprint” (see [27] above);

 

  1. ii) Helplessness on the part of any of the adults around her to explain, in language which a 2½ year old will understand, why this change has been foisted upon her;

 

iii) The lack of experience on the part of the paternal grandparents to deal with the sophisticated and complex challenges facing A in these circumstances, and the evidence, which I accept, that they somewhat underestimate those challenges;

 

and

 

  1. iv) A possible adverse reaction by J to the arrival into the family home of A, and by A who would no longer be an only child in placement, and the risk that the grandparents may be overwhelmed by having to cope with challenging behaviour from A and/or J, or that A will become withdrawn and this will not be detected.

 

The risks of long-term damage are likely to be exacerbated (though in what ways, and to what extent it is difficult to assess confidently) by the fact that none of the transition plans are deemed by the experts to be in A’s best interests. The least bad alternative, which the experts reluctantly favoured among them, would involve summary (and so far as A is concerned unplanned) removal from the Xs care. It is hard to imagine, as Mr. Richardson emphasised, how an infant will react to having lost all her emotional and practical reference points overnight.

58.I should say at this stage, that I was extremely impressed with the way in which the Xs have already displayed many of the qualities which the professionals would advocate in order to mitigate the risk of harm if A were to remain with them; they have prepared a thoughtful, child-friendly, life-story book for A which I have seen, which identifies honestly and in age-appropriate terms who are the key people in her life – birth parents, foster parents and prospective adopters all featuring with explanations of their roles and importance to A. They have maintained contact with the foster carers who looked after A for her first seven months, allowing A to develop a real appreciation of her life-journey; I felt that this ability to embrace wider aspects of A’s life would be likely to carry through into an ability to involve the birth family in A’s life. They have developed in their own adoption ‘journey’ to a position of accepting direct contact between A and her birth family. The risk that A may develop a sense of rejection may be further mitigated by it being explained to her as she grows older – when the language would then be available to explain what has happened to her in a way which an adolescent will understand – that the difference between her situation and her brothers is not about her, but about the context and circumstances in which they each respectively began their lives.

 

 

 

 

 

64.In reviewing the competing options for A I have of course considered the proportionality of the outcomes proposed, particularly where one outcome, namely adoption, involves the creation of a new legal identity for A, and the court’s affirmation of a permanent, enduring relationship between her and a couple with whom she has no blood ties. Drawing all of these powerful factors together, I have reached the clear conclusion that it is in A’s best interests that she should live with Mr. and Mrs. X, where she has established solid, loving, and secure emotional foundations; from that ‘secure base’ she will be able in a wider and more general sense (as she did in a more limited and specific sense when Dr. Young visited her home earlier this year) to explore the world, and importantly with confidence explore and embrace new relationships, including those with her birth family. This outcome is the one which, looked at in the round, is most likely to contain and mitigate the risk of harm which is feared (section 1(4)(e)), and permit A to preserve and enjoy all of the important relationships in her life, including those with the people who she has come to know as her parents, and her birth grandparents and siblings. This outcome most faithfully promotes “the likelihood of” the continuation of important relationships for A and the “value to [A] of [them] doing so” (section 1(4)(f)(i) ACA 2002).

 

 

The Judge decided that there should be contact at least twice per year but that given that the prospective adopters were in agreement, there should not be an order.

“The father is to have no contact while the investigation is ongoing”

 

This is an interesting case, decided by Recorder Baker.  It was a private law case, which had considerable Local Authority involvement.  Many of the issues may seem familiar to practitioners, but the Recorder has grabbed the facts and issues and put them together in a very pleasing and digestible way.  And produced some useful guidance for other similar cases.

 

Re V (A child) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/58.html

 

The facts are painfully familiar.  [Not how ALL cases go, by any stretch of the imagination, but we’ve all seen ones pretty much like this before.]

Man and woman meet each other. Love each other very much. When a man and a woman love each other very much they have a special cuddle, and lo a baby is born. Man and woman fall out of love.  Man and woman stop living together.  Quarrels ensue. Woman makes allegation about man. Man’s contact with child stops.

Here the allegation was that the man had been ‘massaging’ the child, who was about six.  Eueeww, creepy, you’re all thinking. Massaging a child. Creepy.

Well not so much when you know that the child has a medical condition that requires massage as a treatment and the dad is a physician. Not quite so creepy.

 

Let’s make it very plain at the start that the Judge in this case did not find that the father had done ANYTHING wrong to the child. Nor did he find that the mother had made up the allegations or been malicious or deliberate in any way.  It is just a series of events that got out of control, and a series of failings from professionals to look at the evidence for the mother’s suspicions and tell her frankly and plainly that there was nothing in them.  As a result of which, a father lost contact with his son for 42 weeks.

 

 

  • On a day in January 2016 the mother and V were at home with a family friend who was visiting. The family friend heard V make some comments about the time he lived with his father including comments about massages that he and his father had given each other. The family friend, who asserts experience in child protection matters, spoke to the mother on the telephone after her visit and informed the mother that she was going to make enquiries with respect to “intervention” with V on the basis that she was concerned by what she had heard. On the same day she telephoned the child’s school and told them about her concerns.
  • The school initiated safeguarding procedures and 6 days later V was seen in school by the Investigating Police Officer and a Social Worker. Prior to speaking to V they spoke to V’s school teacher. Amongst other things the teacher told them the school did not have any particular concern about V, that they had witnessed a good relationship between V and his father and that they had observed him to look forward to his father picking him up from school. The school were aware that V was awaiting a corrective medical procedure and that they were aware that V’s father, a medical professional, did massage V in connection with this condition. They confirmed that V had made no allegations of sexually inappropriate behaviour to them.
  • When the Investigating Police Officer and the Social Worker spoke to V, he made no allegations against his father and told them that there were no bad things about living with his dad or mum. When asked if his father ever did anything that makes him feel confused, upset or angry, he said that his father did not.
  • The Social Worker and the Investigating Police Officer communicated the contents of their conversation with V. It is recorded that the mother was not happy and was asking about stopping “contact” between V and his father. V was due to return to live with his father in the next few days. At that time it is recorded that she was advised that she would “struggle” to justify preventing V seeing his father and would be in breach of the extant court order. It is recorded that the mother was advised that she should not question V further.
  • The following day the mother attended at the local police station with a relative. She was initially spoken to by a police officer who was staffing the front desk. That police officer made a record of her attendance and sent a note to the Investigating Police Officer relating the encounter. It records that the mother was asking V to tell the police officer what he had told her. It records that the mother was asking V leading questions to elicit answers from V. She was asked to return later in the day when the Investigating Police Officer (who had attended the school the day before) would be on duty.
  • When the relative, mother and V returned to the police station the same day the Investigating Police Officer spoke to them. The Investigating Police Officer’s note records that during discussions with the mother, she reported that she had been undertaking research on the internet about how to speak to a child and that she had been asking V questions about what his dad had done. It is noted that it appeared to the Investigating Police Officer that the mother had been asking leading questions of V but when this was raised with the mother the relative became angry and aggressive and was asked to leave.
  • V was then video interviewed. I will return to the contents of that interview below.
  • After the interview the Investigating Police Officer noted that the mother “was keen to contact her solicitor and appeared to be checking that [V] had stated everything he needed to”. Thereafter the Investigating Police Officer advised the mother that the matter would be passed to a different police station for further investigation.
  • The transcript of the video interview of V makes for interesting reading. It can be asserted that he makes a number of allegations about his father massaging him, possibly involving the child and the father’s private parts. However, in a letter from a Detective Inspector written to the father’s solicitors 6 months later the contents of the interview are described thus:

 

“[V] did provide an account on video interview, and it was noted by officers that he did present in a very different manner compared to the previous [the school visit]. His account changed numerous times and he failed to make any clear or concise disclosures.”

 

  • That brief description is accurate and encapsulates the fact that the interview of V, even taking into account his age, is muddled and inconsistent. It does not provide a strong foundation for assertions of sexually inappropriate behaviour by the father. In the end it was the only evidence that could possibly have been taken as any evidence of inappropriate behaviour by the father.
  • On the same day (i.e. the day that the mother attended the police station in the morning and those events summarised at paragraphs 13 and 14 above occurred) the mother applied to court for a prohibited steps order preventing the father from removing V from her care. That application was made without notice to the father and was granted.

 

Despite there being not a grain of truth in the allegations, and pretty much every professional who looked at the evidence reaching that conclusion, it still took 43 weeks for this father, who had been having shared care of this child, to have any contact with his son again.

 

Here is the bit that is troubling, yet still sadly familiar

 

  • At some time after Day 6 and before the completion of the section 47 investigation the local authority had presented the mother with a written agreement. That was not in the Court Bundle so when I invited the local authority to attend the final hearing I also asked them to bring a copy of the written agreement. It is undated so it is only possible to estimate when it was signed by the mother. It asks the mother to ensure that:

 

“[The Father] is to have no contact with [V] whilst the investigation is ongoing.”

 

The Judge notes that of course the mother placed reliance on that written agreement – even if I WANTED to allow contact, I can’t, because the social workers have made me sign a written agreement not to allow any contact.

 

Even after both the Local Authority AND the police had closed their case, nobody tore up that Written Agreement, so it was being relied upon by mother months after any investigation was done and dusted. There being no evidence whatsoever of abuse, of course the investigation was going to fizzle out. Nobody took steps to revoke it though.  (And cynically, one might say that its existence rather suited the mother)

 

 

  • The decision to have an Initial Child Protection Case Conference having been rescinded, the local authority continued a ‘Child and Families Single Continuous Assessment’ as it is referred to in the document. The use of the word ‘continuous’ is ironic in the circumstances, because it turned out to be anything but. The assessment document itself makes it difficult to determine when it actually concluded, however I suspect it was within 3 ½ weeks of the initial phone call to the school. The decision to close the case was reviewed and ratified by a social worker manager one month after its’ conclusion.
  • The assessment recounts a number of things. It repeats the account of V’s video interview in the same terms as identified at paragraph 25 above. It notes however that when V is seen by the social worker 2 ½ weeks after his video interview, he again expresses no concern about being in the care of either parent. It records some of the things I have related above that might have at least alerted the writer or the manager to the possibility that this was not simply a case of child sexual abuse and that there were other risk factors to consider. However, it recommends no further action is taken by the local authority. When that decision is ratified by the Social Work Manager it is recorded in the following terms:

 

“I agree with the social workers (sic) recommendations to close this case… From the information collated during the assessment process, it is considered that the likelihood of significant harm posed to [V] is considerably reduced given that [the mother] has obtained a Prohibited Steps Order as well as agreed via a working agreement to ensure that he does not maintain contact with his father… if [the mother] were to breach this agreement such would undoubtedly increase the risk posed to [V] and, in turn, impact upon his developmental needs.”

 

  • It is difficult to read that paragraph as anything other than a conclusion that (i) in the view of the local authority V had been sexually abused by his father and (ii) that if he were to have contact with his father he would be at risk.

 

The Judge is quite right – of course you can’t read that as being anything other than a professional assessment that this child was safe because mum had agreed to stop contact and would be at risk if contact resumed.  Which would be a solid assessment IF it were based on an analysis that was supported by the actual evidence in the case. But it wasn’t.

 

 

  • The local authority did not become involved with V again until the Court made a section 37 direction, some 7 months later. That section 37 report, which was completed by a social worker who had not previously been involved, concluded that there was little or no evidence to substantiate any allegations of sexual abuse. The writer also observed that there was considerable evidence of a hardening of V’s views against the father, contrary to the situation that existed when he was living with the father and mother jointly and indeed contrary to the situation when his relationship with his father had only been interrupted for a few weeks. The writer concludes that V has suffered significant harm but that harm emanates from the acrimonious dispute between the parents rather than any form of direct sexual or physical abuse. The analysis of the factual matrix is compelling and thorough. Whilst neither I nor the parties entirely accepted all of the recommendations made within the report, that does not detract from the value of the work undertaken. It is right that I acknowledge that the author was employed by the same local authority that this judgment criticises.

 

The Judge goes on to discuss the role of Local Authorities in private law proceedings.  And it is right that when I receive notification that I myself am dragged (as an LA lawyer) into private law proceedings my reaction is much like THIS

 

Why God, why? Why have you forsaken me?

Why God, why? Why have you forsaken me?

 

 

  • I have every sympathy for and understand only too well the limited resources available to local authorities. Some local authorities, in my experience, display considerable reluctance to become involved in private law disputes and it is possible that there is an instinctive wish to withdraw from meaningful involvement as soon as possible, believing that private law disputes will ultimately be resolved by the courts. Local authorities do, after all, have many children whose welfare they are charged with protecting. However, local authorities have statutory duties and the way in which those duties are carried out have significant and lasting ramifications even if they do not become directly involved in any court proceedings that follow.

 

The Judge then goes on to give some very careful, thoughtful, measured and helpful guidance for Local Authorities in this situation, and decries the approach of “Allegation against dad >  get mum to stop contact > so no risk = close the case”  without a proper consideration of the allegation.

 

 

  • In any dispute between two parents where an allegation of abuse of any nature is made, instigated or supported by one parent against the other it is, in my view, incumbent upon a local authority receiving a referral to have in mind all the possible risks that may be inherent in any such allegation.
  • There is of course the risk that the allegation, whatever its nature, is true. There is the risk that that the allegation is not true. There are also the risks that the allegation is in some way mistaken, mistakenly encouraged or deliberately fabricated.
  • There are of course very serious welfare consequences for a child if allegations of, for example, sexual abuse are true. However, there are also serious welfare consequences if the allegations are not true. Those consequences include the possible temporary or permanent cessation of a relationship between a child and a parent. They include the inculcation of false events within a child’s memory and belief system. They include one parent portraying a negative and inaccurate view of another parent, with possible long term consequential psychological damage to a child who is led to believe that part of his or her genetic make-up is in some way ‘bad’ or unworthy.
  • It strikes me that in circumstances where the backdrop is a dispute between parents, the words of Baroness Hale in Re B [2008] UKHL 35 at [29] should be at the forefront not only of the Court’s mind but also of any investigative authority:

 

“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”

 

  • It is notable that Baroness Hale refers to the local authority as being “neutral and expert”. In my view and with respect, in this context it seems to me that ‘neutral and expert’ implies a professional detachment that is alive to all the risks and weighs all the evidence in a balanced way bearing in mind all the reasonable possibilities. It does not imply an abandonment of a precautionary approach to child protection but acknowledges that ‘child protection’ encompasses protection for children from mistaken and false allegations as well as those that may be true.
  • It also occurs to me that where local authorities act in a way that purports to restrict the relationship between a parent and a child, under pain of legal action (as in this case, condensed into the written agreement) they must bear in mind that they may be interfering as a public body in a relationship that has, for want of a better term, special status. That ‘special status’ is reflected in the following observations about this case, which I doubt are exhaustive:

 

a. This father had parental responsibility for V;

b. This father had a court order that ensured that V lived with him and the mother;

c. This father had an ongoing relationship with his son about which there was ample evidence of a positive nature;

d. V had an Article 8 right to family life with his father that should only be interfered with if justified and proportionate; and

e. The father had an Article 8 right to family life with his son that should only be interfered with if justified and proportionate.

 

  • When interfering with such powerful imperatives it, in my view, behoves the local authority to record the situation carefully and accurately, formulating an assessment of the risks on all the evidence reasonably available, even if that assessment still concludes that for the time being the child should not see the accused parent. Simply to say ‘the child will not see the alleged perpetrating parent and is therefore safe’ and thereafter close the case, is an abrogation of the responsibility placed on local authorities by Parliament.
  • Failure to assess the circumstances properly has far reaching effects, even if the local authority do not themselves initiate protective court proceedings. In this case alone there are two obvious examples. First, when a private law case comes before the court Cafcass complete a ‘Safeguarding’ letter, a process that involves a Family Court Reporter quite literally telephoning the local authority to find out if they have had any involvement with the child or their family. Someone at the local authority looks on the computer and relates the contents of the information contained therein. The conclusions and nuance of that information informs the contents of the Safeguarding Letter which then informs the judge at a First Hearing Dispute Resolution Appointment. Decisions taken at the early stages of a case are of vital importance and can determine the direction of travel for the court process. Re-visiting the conclusion of the local authority assessment set out at paragraphs 33 and 34 above, it is not difficult to imagine the message that would be conveyed to the court by such a conclusion. Neither is it difficult to imagine the different approach that might have been taken by a court had that conclusion recorded a more balanced examination of the risks in this case.
  • Secondly, I have already alluded to the possible effect of the Written Agreement entered into between the mother and the local authority (paragraph 31). Again it is not difficult to imagine how a court, bereft of the complete picture, would approach a situation where it is informed that the local authority have told the mother that she must not allow the child to see his father. The impact was doubtless magnified by the lack of an end or review date in the agreement, allowing it to be said quite accurately that the agreement apparently still applied.
  • In addition, an approach that lacks balance and objectivity allows a parent who is more than willing to believe, subjectively and possibly inappropriately, that the other parent has sexually abused their child, to invest in that belief. It prevents them coming to terms with the possibility that the other parent may not have sexually abused their child. It reinforces both parents’ negative belief about the other parent which in turn is likely to impact adversely upon the child. Ultimately it increases the difficulty of putting the situation right and allows parents to get ‘stuck’ in a conflict that could have been defused much earlier.

 

You know that bit in figure skating competitions where bouquets of flowers get thrown onto the ice?  The extract above is deserving of similar treatment. It is important, fair and easy to follow.  If someone had given this passage to me and said “Which Judge wrote that?”  I’d have said unhesitatingly Mr Justice Peter Jackson. This Recorder is one to watch.

 

If you work in a social work team, particularly a duty team or one that does section 7 or 37 investigations, please share this judgment. If you represent parents, print it out and put a big post it note on it that says  “Helpful stuff”

 

Don't skate over them!

Don’t skate over them!