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Unlawful killing

 

 

 

A very peculiar case and one in which leading counsel puts self in harms way in order to demonstrate breach of article 6 and succeed in appeal.

 

Re R (Children) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/198.html

 

In this case, the central issue related to

 

On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father

 

The father was arrested and the two children were removed into foster care. The father faced criminal trial and was acquitted of all charges. There was a finding of fact hearing in the High Court and the father was made the subject of a finding that “he had used unreasonable force and unlawfully killed the mother”

 

He appealed that finding, successfully.

 

 

 

5.The mother’s death occurred in the context of an acrimonious relationship between the parents following the father’s discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A’s arm and to the back of the father’s head.

 

 

6.The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.

 

 

7.The father’s account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.

 

 

8.Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father’s Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:

 

 

 

“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother’s) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away. “

9.Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother’s body indicated a single continuous movement rather than two.

 

 

The father’s appeal was based on two major facets. Firstly, that the High Court had become very bogged down in criminal terminology when conducting the fact finding hearing (as a result of the word ‘unlawfully’ in the threshold finding sought, the defences to lawful killing – self-defence and loss of control, played a significant part in the case) and secondly that the timescales set down by the High Court for the preparation of father’s case were so short and unrealistic that it put the father in the position of having his very skilled and experienced representative feeling that she was not in a position to properly put his case.

 

 

(Being fair to the LA here – because threshold requires that a parent’s behaviour which caused the harm was ‘not being what it would be reasonable to expect’, they may well have concluded that the father if asserting that he acted in self-defence which was reasonable might have a basis for concluding threshold was not met and felt that they needed to establish a higher level of culpability on his part. It is very very tricky drafting threshold in a set of circumstances like this. I think I might have tested the water to see if something along the lines of “The children were exposed to an extreme incident of violence leading to the violent death of the mother, which would have been extremely frightening and distressing and which will be likely to have lifelong implications for their mental and emotional wellbeing” might have been accepted, but it is a lot easier to make that call in the benefit of hindsight)

 

The criminal bit first

 

 

 

 

31.For the appellant, Miss Venters’ response to the court’s interjection was to state firmly and clearly that the Family Court should not involve itself in analysis based upon the criminal jurisprudence. In particular, by reference to this case, she submitted that it was unnecessary and impermissible for the Family Court to make findings of “unreasonable force” or “unlawful killing”.

 

 

32.Miss Janet Bazley QC, leading Miss Catherine Jenkins, who both appeared below, pointed to the terms of the local authority’s pleaded case as set out in a “final threshold document and schedule of findings” dated 26 June 2017:

 

 

 

“On 2 June 2016, the father killed the mother by cutting her throat…he used unreasonable force or, alternatively, his actions were reckless in all the circumstances.”

 

Miss Bazley informed the court that the local authority had not intended to establish a link between the findings that it sought and any test within the context of criminal law. Miss Bazley pointed to the formal response to the proposed findings made on behalf of the father which asserted that he had used “reasonable force” and, for the first time, brought in criminal law concepts which, as the trial progressed, lead all the parties to address the issues in the case by reference to the relevant criminal case law.

33.However, in the local authority Opening Note the following appears:

 

 

 

“The local authority’s current position is that the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury. If the court concludes that this is more likely than not to have been the case, the local authority will invite the court to conclude that the father killed the mother deliberately.”

 

Miss Bazley submitted that it is permissible for the Family Court to make a finding that killing was “deliberate”. She is explained that at no time did the local authority seek a finding of “murder”. However, Miss Bazley later accepted that the local authority’s “closing submissions” document includes the following under the heading “conclusion in relation to the other findings sought”:

 

“In relation to the mother’s death, the local authority invites the court to conclude on all the evidence, that this was an unlawful killing, probably pre-meditated or otherwise carr[ied] out in anger. The court is respectfully invited to firmly reject the father’s assertion that he acted either instinctively (an accident), or in self defence, using reasonable force.”

34.More generally, and in response to this court questioning why it was necessary for the Family Court to establish precisely how the mother was killed, Miss Bazley submitted that detailed findings were important because of the difference they might make to the welfare determination that the court would have to make at the end of the family proceedings.

 

 

35.Miss Bazley submitted that it was appropriate for the Family Court to use the word “reasonable” in a non-legal manner. She also asserted that the local authority had not sought a finding that the mother’s killing had been “unlawful”. Such a finding, she submitted, was not necessary in the context of the family proceedings.

 

 

36.On the facts of this case, as found by the judge, any reference to the father acting in “self defence” evaporated as the judge rejected his account. Thus, whilst the local authority accepted their part in the collective error by the advocates in encouraging the judge to consider the criminal case law as to self defence, and accepted that the judge should not have made a finding of “unlawful” killing in the family proceedings, Miss Bazley submitted that the detailed factual findings of the judge should stand. She submitted that the references to criminal law, “unreasonable force” and “unlawful killing” were extraneous for the purposes of the Family Court process and they could be struck out from the judge’s judgment and findings without the need for a re-trial of the factual evidence.

 

 

37.For the children’s guardian Mr Malcolm Chisholm, who also appeared below, argued that, as the father’s case was that he was defending himself from an attack by the mother, a finding as to the degree of force used was important and would heavily influence the determinations about the children’s welfare that the Family Court would, in due course make. Mr Chisholm accepted that it was neither necessary nor helpful for the Family Court to analyse these issues by reference to parallel provisions in the criminal law, or, for that matter, the civil law (as for example in Ashley v Chief Constable of Sussex Police) [2008] UK HL 25). Mr Chisholm accepted the court’s observation that, in contrast to criminal or civil proceedings, the focus of the Family Court is not on the adult, or the need to establish a finding of culpability against him; the Family Court’s focus is upon the children and their future welfare. Put shortly, Mr Chisholm said that the question for the Family Court is “is he safe or is he unsafe?” Detailed findings of fact are therefore necessary to determine, for example, whether an individual has over reacted or whether they have been honest and are reliable.

 

 

38.Like Miss Bazley, Mr Chisholm urged this court to strip out the judge’s extraneous references to criminal law and the attribution of criminal law labels to her specific findings, whilst leaving the detailed findings themselves standing. Mr Chisholm submitted that there was a real integrity to the judge’s fact finding judgment as a whole. The factual findings are supported by a wealth of reliable evidence and were, in his words, “absolutely rock solid”.

 

 

39.In response, Miss Venters submitted that the whole trial before the judge and the resulting judgment were tainted by reference at every point to the need to conduct the analysis of the factual evidence and make findings in a manner compatible with the criminal law. All parties now accept that that approach was wrong and, as a consequence, the judgment as a whole cannot stand.

 

 

Conclusions on that aspect

 

 

61.Although the father’s grounds of appeal implicitly accepted that the judge had been obliged to apply the relevant elements of the criminal law directly within her analysis of the evidence and in drawing factual conclusions, at an early stage of the oral appeal hearing the court questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court. As a result of our intervention, all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court and, to the extent that that had occurred in the present case, the court process and the judge’s evaluation had been conducted in error.

 

 

62.The parties were right to concede the point, and to do so without argument, as they did. The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare. Similarly, where facts fall to be determined in the course of ordinary civil litigation, the purpose of the exercise, which is to establish liability, operates in a wholly different context to a fact-finding process in family proceedings. Reduced to simple basics, in both criminal and civil proceedings the ultimate outcome of the litigation will be binary, either ‘guilty’ or ‘not guilty’, or ‘liable’ or ‘not liable’. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.

 

 

65.The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.

 

 

66.Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge’s detailed self-direction on the law of self-defence, and the resulting appeal asserting that it was misapplied, together with Miss Venters’ late but sound observations about the statutory defence of ‘loss of self-control’, are but two examples of the manner in which proceedings could easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child. It is also likely that the judges chosen to sit on such cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.

 

 

67.There is no need to labour this point further. For the reasons that I have shortly rehearsed, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As my Lord, Hickinbottom LJ, observed during submissions, ‘what matters in a fact-finding hearing are the findings of fact’. Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.

 

 

68.That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.

 

 

69.What is the impact of this error on the overall integrity of the process before Theis J and the judge’s detailed underlying findings? Miss Venters submits that the whole hearing was irrevocably tainted by focus on the criminal law and the need to achieve a finding of ‘unlawful killing’ against the father. The local authority and the guardian, conversely, argue that the high-level findings of ‘unreasonable force’, ‘unlawful killing’ and ‘loss of control’ are extraneous and can be struck out leaving the judge’s discrete factual findings intact.

 

 

70.Given the scale of the hearing before Theis J, in terms of time, endeavour and cost, any rehearing should only be contemplated if there is no alternative available course. As will be apparent from this judgment, this court has not begun to evaluate the soundness of the judge’s underlying findings and, for these purposes, I am prepared to accept that each of the 17 detailed findings made at paragraph 141 may be, as Mr Chisholm cast them, ‘absolutely rock solid’. It remains the case, however, that the court was led into fundamental error in relation to a matter of legal principle. It is clear from the local authority opening statement and from its closing submissions that it was presenting its case on the killing in the terms of the criminal law; that was the case that the father understood he had to meet and that was plainly the mindset of all three legal teams and of the judge. The fact that this appeal was being run, and responded to, as a detailed debate conducted within the criminal law of self-defence is proof enough that the fundamental error that has now been identified (and accepted) was not understood by any of the parties prior to the hearing in this court.

 

 

71.Given the importance, in terms of its scale and the potential impact upon him, I regard the fact that the court was wrongly drawn into making a finding of ‘unlawful killing’ within these family proceedings, and given the manner in which the proceedings were wrongly focused from the start on establishing culpability in the context of the criminal law, I would be minded to accept Miss Venters’ submission that the case as a whole was tainted to such an extent that it is insufficient simply to strike out certain offending words from the judgment. But, before reaching a conclusion on this all-important question, I propose to consider the father’s case more generally in relation to ‘fair trial’.

 

 

The fair trial point

 

 

The father was acquitted on 30th May 2017. The family Court had a directions hearing on 9th June 2017 setting the case down for a finding of fact hearing. The LA produced its schedule of findings sought on 26th June 2017 seeking (for the first time) a finding of ‘unlawful killing’ – the fact finding hearing was due to begin on 11th July – eleven working days later.

 

Eleven working days to effectively prepare a murder trial is obviously compressing realistic timescales considerably. Under protest from the father’s team, the Court granted a five day adjournment, giving effectively three working weeks for father to prepare. For a fact finding hearing involving 42 witnesses, from a standing start.

 

 

 

 

44.In relation to the appellant’s case under Article 6, Miss Venters makes one overarching submission and one very specific submission each pointing to the overall unfairness of the process.

 

 

45.The overarching submission can be recorded shortly. It is that, despite their very best endeavours, the father’s legal team were simply not able adequately to prepare for the fact finding hearing. Although the “criminal bundle” had been disclosed and copied to the father’s legal team in the family proceedings as the criminal process went on, it had not been read by them because the material in it was not, at that time, relevant to any factual issues that were to be litigated before the Family Court. Miss Venters, understandably, states that any time spent working on the criminal papers would, in any event, not have been covered by the father’s Family legal aid certificate at that stage.

 

 

46.In relation to equality of arms, Miss Venters points out that the local authority had taken three weeks after the conclusion of the criminal trial to consider the criminal material before disclosing, for the first time, that they intended to seek findings upon it. Thereafter, in contrast, the father was given just 7 days to file his response.

 

 

47.The specific point relied upon by the appellant under Article 6 which was, again, unfortunately, raised for the first time in oral argument, relates to the reliance placed upon the letter from the father’s criminal defence solicitors dated 2 December 2016 (set out at paragraph 8 above) during the Family Court trial.

 

 

48.I have already explained the significance placed on the 2 December account by the experts, it being the unanimous expert view that the mechanism described in that letter would involve two planes of motion, whereas the injury to the mother was likely to have resulted from one single movement of the blade.

 

 

49.Miss Venters told this court that the 2 December 2016 letter was not provided by the father’s criminal team to the advocates in the family proceedings until 1 August, a week prior to the second part of the hearing when the experts were due to attend and, thereafter, the father was due to give his evidence. During the hearing the terms of the December 2016 letter were taken by all parties, including Miss Venters, as being the father’s account. It is only, Miss Venters reports, as a result of consideration she has been able to give to the case since the conclusion of the Family Court trial, and after the judge’s judgment, that she now understands that the second part of the December 2016 account, namely that the father pushed the mother backwards, has never been an account given by him in police interviews, during the criminal trial or during the family proceedings. The December 2016 letter was put to the father in the witness box before Theis J and he simply accepted that that account had been given.

 

 

50.Miss Venters submits that the fact that she failed to notice that the pushing element in the December 2016 account was not, in fact, a description that her client had ever actually given in evidence, is but one example, albeit a very significant one, of her overall inability to be on top of her client’s case as a result of the wholly unrealistic time afforded to the father’s team for preparation.

 

 

51.Miss Venters offered as a further example, the lack of sufficient time for her to consider whether or not the eldest child, A, should be called to give oral evidence within the family proceedings.

 

 

52.Candidly, Miss Venters told the court that she is not now able to identify other specific aspects of the father’s case which, as a result of the pressure of work, were not presented to the court. Her position was, however, that, as an experienced professional she “simply did not have a grip on the evidence” in order to identify what issues should be raised in cross-examination or otherwise.

 

 

53.Miss Venters reports that, despite expressly raising in detail the many difficulties she faced, and despite taking up a dozen or so pages of her opening Position Statement at the start of the hearing listing the difficulties that were still outstanding, the court pressed on with the hearing with the result that Miss Venters told this court that she felt that she simply “wasn’t being heard in anyway” on these points by the other parties or by the judge.

 

 

And in conclusion

 

 

72.Having set out the key elements in the appellant’s case in relation to the ability of his legal team to meet the case against him in a manner that was fair and proportionate, it is possible to deal with this aspect of the appeal shortly.

 

 

73.An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.

 

 

74.Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father’s lawyers when, for the first time on 26th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.

 

 

75.It is of particular note that it was only in the local authority Opening Note, dated 11th July, that the father will have read for the first time that a finding of ‘deliberate’ killing was being sought against him in the Family Court.

 

 

76.Although no specific example of the father’s case not being correctly or fairly presented to the judge is pleaded in the Grounds or Skeleton Argument, Miss Venters’ late reference to the importance of the 2nd December 2016 criminal solicitor’s letter is of significance. She, as the advocate who was in charge of the father’s case, has told this court that what is said in the second part of the account in that letter has never actually been directly given in evidence by her client. It has simply been taken as read as being his account and, then, dismissed as tenable by the experts in a manner which the judge, understandably, found to be of importance. For my part I did not regard the five references to which we were taken by Miss Bazley as being conclusively against the point that is now being made; they may be or they may not be. Equally, the extract from the transcript of the father’s cross examination, rather than being reassuring that what was said in 2 December document was his accurate memory, seemed to bring the issue yet further into doubt.

 

 

77.The importance of the father’s account on whether there was one motion or two movements with the knife is plainly high. In terms of determining the issue of ‘fair trial’, it is neither necessary nor wise for this court to analyse the matter further. For my part, the fact that the father’s advocate has now raised the issue, and has told this court that, because of the speed of preparation (and the document’s late delivery), she only appreciated its significance after the end of the proceedings, may well establish that, as a result of the undue pressure of time, an important aspect of the father’s case may not have been presented fairly to the court.

 

 

 

Conclusion

78.The hearing of this appeal took an unusual course. As a result of the intervention of the court, we have not heard the full appeal. Instead, the advocates responded to and conceded the point of principle raised by the court concerning the relevance of criminal law and we then heard shortly on the ‘fair trial’ issues before adjourning to take stock of the appeal in the light of those submissions.

 

 

79.Having now undertaken the stock-taking exercise, and for the reasons that I have expressed thus far, it is clear, firstly, that a serious error occurred in the trial in relation to the relevance of the criminal law. Secondly, that error may not, of itself, justify ordering a rehearing, but the option of simply striking the offending words from the judgment may not be an adequate remedy given the significance of what had been, wrongly, said. Thirdly, whilst, again, the points made about a lack of a fair process may not establish, as night follows day, that only a rehearing will provide a remedy, what is said about the 2nd December letter, given its importance in the case, is of real concern.

 

 

80.Although an error of law may not necessarily lead to a finding that there has not been a ‘fair trial’, in the present case, when that error goes to the very focus of the fact-finding process and the judge’s analysis, I consider that the point sits squarely within the rights protected by Article 6. The two matters that I have thus far considered separately in this judgment should therefore, properly, be drawn together. If that is done then, albeit with a heavy heart, I am fully persuaded that in combination, looking at the matter overall, and taking both elements into account, this appellant has not been afforded a sufficiently fair trial in the Family Court

 

 

The Court of Appeal then give some specific guidance in relation to family Courts hearing allegations which have been tried in the criminal Court.

 

 

81.Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.

 

 

82.By way of summary, the following points are, in my judgment, clear:

 

 

 

  1. a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court [paragraph 62 above];

 

  1. b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established [paragraph 62];

 

  1. c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court [paragraph 65];

 

  1. d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts [paragraph 67].

83.Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.

 

 

84.The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where ‘domestic abuse’ or other potentially criminal activity is alleged:

 

 

 

 

‘Directions for a fact-finding hearing

 

 

  1. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –

 

 

 

(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;

 

 

 

(b) in order to provide a basis for an accurate assessment of risk;

 

 

 

(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or

 

 

 

(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

 

 

  1. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –

 

 

 

(a) the views of the parties and of Cafcass or CAFCASS Cymru;

 

 

 

(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;

 

 

 

(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;

 

 

 

(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;

 

 

 

(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;

 

 

 

(f) the nature of the evidence required to resolve disputed allegations;

 

 

 

(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and

 

 

 

(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.’

85.In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child:

 

 

 

’36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

 

  1. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –

 

 

(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;

 

 

(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;

 

 

(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

 

 

(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

 

 

(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.’

86.On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.

 

 

87.Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the Family Court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.

 

 

88.For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 at paragraph 56:

 

 

 

‘… we are also of the view that it is in the public interest that children have the right, as they grow up into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.’

89.The potential for future harm to a child where one parent has been directly involved in the circumstances that have led to the death of the other parent, is by no means limited to the risk that the surviving parent may physically injure the child. Indeed, future physical injury may be low on the spectrum of future potential harm. It is the potential for future emotional and psychological harm arising, either directly from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, or indirectly from the way in which the parent will conduct him/herself in the future as a consequence, which is likely to be of far more importance.

 

 

90.Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings) is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case, and avoid the risk that the judge’s words may be misunderstood as expressing a finding based directly upon criminal law principles.

 

 

91.At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge’s task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined

 

The Court of Appeal did disagree as to whether a finding of fact hearing would be necessary at all (in a minority judgment) and how the Court at a re-hearing was to determine whether father’s actions were or were not reasonable (again, in a minority judgment). We may not have had the final word on this sort of thing.    (The minority judgment was suggesting that threshold akin to my earlier formulation – that regardless of culpability for the death of the mother, the emotional harm suffered by the children by witnessing her violent death was the real issue and thus a finding of fact as to culpability for death would not always be necessary. )

 

 

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Cross-examining alleged victim without a lawyer

 

Readers may remember a long-running issue about the fact that in crime, an alleged perpetrator of rape is banned from cross-examining the alleged victim whereas we have ended up in private family law of that being something that is not only not banned but cropping up more and more as an issue, because the Government cut legal aid.  Readers might also remember that following a campaign in the Guardian, the Lord Chancellor at that time declared that legislation would be introduced to fix that problem. The draft legislation was drawn up, and then the Government decided to embark on the Greatest Political Idea of All Time TM, in which in order to increase their working majority, they held an election years early and converted said working majority into a hung Parliament.

I’m afraid that I can’t see the draft legislation now for all of the long grass that it is hiding within. Anyone in the Press want to remind the Government that they promised to fix this mess and haven’t?

 

Apologies in advance for pedants – the law report uses McKenzie Friend and MacKenzie Friend completely interchangeably and nobody in the Court of Appeal seems to have corrected this.  It should be Mc, NOT Mac.  /Furiously checks document

This is an appeal where the father in a set of private law proceedings was accused of having raped the mother and he denied it. He did not have a lawyer, but did have a McKenzie Friend. Should the McKenzie Friend have been given rights of audience and allowed to cross-examine the mother?

 

 

Panini McKenzie Friend stickers album – “Got, got, need, got, oh NEEED”

 

(actually, the sticker should have been one of Duncan’s friends, not Mr McKenzie himself….)

 

Re J (Children) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/115.html

  1. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.
  2. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:
    1. “15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”
  3. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.
  4. The judge refused the application saying:
    1. “19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”

 

 

What ended up happening in the case is that the finding of fact hearing never took place, because of the anxieties the Court had about how the mother could be questioned about these events. By the conclusion of the private law proceedings, the children were expressing very strong views about their father

 

  1. The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:
    1. ‘A gave [NYAS worker] a statement he had prepared and said no-one had read. He would be delighted to give evidence against his father. Despite what he said, it appeared later in the report that the children, which really means A and B, had written at the suggestion of their mother acting on advice from her solicitor. … What I do note is that A’s statement … even assuming that what A was saying factually was true, is a very disturbing document to read. It has the imprint of his mother’ accusations. However, even allowing for the possibility of him imbibing unquestioningly all his mother had said, he nevertheless presents as an intelligent and fiercely independent young man’.

The judgment continues by describing the content of the statement the force of A’s negative opinion of the father that is expressed within it, before recording the judge’s overall opinion that the statement

‘is an extremely distressing read – I am not sure I have seen such a vitriolic condemnation of a parent by a teenager for many a long year.’

  1. The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:
    1. ‘She wrote that she wanted all the bad things dad had caused to go away. She wished they had never gone to the refuge and she wished she did not have nightmares about dad. She did not want to see him EVER (ever in capital letters). No-one could drag her kicking and screaming to see her father. On the second visit she was even more emotional and angry.’

 

At the Court of Appeal, the father had the assistance of his McKenzie Friend and the Court of Appeal were complimentary about the help that the McKenzie Friend had given to the Court.

 

  1. For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.

 

The Court of Appeal recognised the vexed issues that this case threw up.

 

  1. Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:
    1. ’57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).

58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

  1. Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.

 

 

In deciding whether the Judge was wrong to refuse the McKenzie Friend rights of audience to conduct the cross-examination of the mother, the Court of Appeal decided that he was not

 

  1. In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

  1. For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.
  2. If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.

 

The Court of Appeal did, however, find that the Court was wrong not to have resolved the factual dispute between the parties at a finding of fact hearing.  The appeal succeeded on that basis.

 

However, it was a pyrrhic victory, because the Court of Appeal ruled that because the children were still of the same strong views about contact as they had been 18 months earlier they saw no prospect of father re-establishing any contact (the children were now 16 and 11) and did not order a re-hearing.

Words fail me. (But I spend a long time telling you, via words, why) #verywellthenIcontradictmyself

Apply the handkerchief or scarf as directed by these fine gentlemen

Before you start this piece, could you briefly find some cloth? A scarf, or a clean tea-towel or anything of that ilk will do. Please tie it so that the bottom rests under your jaw and there is a knot at the top of your head – much like a cartoon character who is suffering from a toothache.

 

 

 

Why?

 

Because this case is so jaw-dropping I want to be sure that your jaw bone doesn’t actually leave your head.

 

Ready?

 

Here we go.

 

It is the original judgment from the case that went to the Court of Appeal because the social worker and police officer involved considered that the findings made against them by the Judge were career-threatening and that the process of making those findings was unfair.

 

The Court of Appeal said that the social worker and police officer needed to have been placed on notice that such strong findings were going to be made and have the chance to make representations about them beforehand, so THOSE findings were overturned. The social worker later made an application to sue the Lord Chancellor for judicial failings on the basis of vicarious liability.

 

On that basis, and in short, the complaint relates to the judge’s finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her

https://suesspiciousminds.com/2016/11/20/judge-making-findings-about-a-witness-fair-trial/

 

 

This is the judgment, with the most dreadful findings about the social worker and police officer snipped out. Do not for one second think that this makes the judgment dull or removed of any controversy. There’s so much in it, it makes the mind boggle as to what was taken out.

Re W (fact-finding) [2014] EWHC 4347 (Fam) (17 October 2014)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4347.html

 

(I’m not sure why it has taken 3 years to publish this – it was certainly held up until 2016 pending the appeal – I do understand that the Judge has passed away, which probably caused difficulties in editing the previous judgment, since normally the Judge who wrote it would do that)

 

 I thus hope that no court ever again has to see and hear what this court has seen and heard during the past weeks.

 

This was a care case involving five children, the main subject was C, who was a teenager. C had made serious sexual abuse allegations against three of the adults in the family.

 

There was a finding of fact hearing, and the evidence in the finding of fact hearing lasted 19 days. There were ten parties to that hearing, nine of whom were represented by silk and junior counsel.

 

 

 

 

  1. From a conventional beginning in front of HHJ Davies at the Luton County Court, the case has taken unprecedented twists and turns with the intervention of the Court of Appeal, a re-hearing in front of myself, and the collapse of that re-hearing after three days in the most dramatic manner. This occurred when a key social worker in the case contacted me directly by email through the court office to allege ‘corruption and malpractice’ within the local authority in relation to this particular case as well as other cases.

 

Is your jaw bandage still in place? I worry about you all, you know.

 

 

 

 

 

  1. Following what was effectively a whistle-blower email sent to myself, the local authority sought to abandon the fact finding hearing and withdraw all allegations, saying that it could no longer rely on the key social worker as a witness of truth. The local authority’s counsel, Mr. Bain, withdrew from the case for professional reasons. Fresh counsel were then instructed; they withdrew the application by the local authority to abandon the proceedings, and thus these have continued ever since.

 

 

 

 

 

  1. The proceedings have been surrounded by suspicion and mistrust, for reasons which have become obvious. These emotions have been shared, it must be said, at times by the court, and have been exacerbated by serious problems about disclosure. Despite strict orders made by the court for full disclosure by the local authority, these have not been complied with in full. Indeed, more than 1,300 pages of important material were disclosed to the court during the current hearing, and 1,000 pages of these were disclosed only in the second week of this hearing, after Mr Geekie for the local authority organised a search of its premises following a social work assistant’s evidence. This failure to disclose added some three days to the case. Disclosure continued even into the fourth week of this hearing. Furthermore, many important documents have been shredded or are still missing.

 

 

 

  1. According to the lead social worker there were six, not four, ABE interviews of the child, C, as contended by the police and the local authority. Indeed, there is even the suggestion that an alleged meeting on the 30th September 2013, reported by social workers to have happened, may not have taken place at all. The court therefore has the unenviable task – unparalleled in the history of this particular tribunal – of deciding how many ABE interviews there were, and whether one meeting ever occurred.

 

I’ve seen many cases where Courts had to decide whether an ABE interview was conducted properly, where they had to decide whether leading questions were asked, whether it is reliable. I’ve never before heard of a Court having to decide HOW MANY ABE’s there were.

 

So much has gone wrong in this case. In fact, almost everything that could have gone wrong has, almost to the point of defying credulity. In consequence the court has no choice but to undertake the arduous task of scrutinising all aspects of the case very carefully. This judgment will therefore be longer than would normally be the case. This is for several reasons:

 

 

 

  1. a) Reaching the complex truth requires a detailed analysis of all that happened;

 

  1. b) In view of what they have suffered, those accused of serious abuse deserve nothing less;

 

  1. c) The consequences for individuals beyond the parties in the case, for example within the local authority and the police, may be profound;

 

  1. d) It is unlikely that any other will have the time or resources to trawl through the immense body of papers in the way the court has done, and thus what has been uncovered must be recorded fully;

 

  1. e) Lessons need to be learned so that what happened in this case never happens again.

 

  1. I am most grateful for the assistance given by all counsel in the case, both leading and junior, who have ably assisted the court in its unenviable task. I include in this commendation not only all those who appeared in front of me during the current hearing but also Mr. Giles Bain, who appeared for the local authority during the earlier part of these proceedings.

 

 

C had made allegations of physical and sexual abuse. Findings of fact were made by HH J Davies and those were overturned on appeal.

 

The Judge notes, dryly

 

 

 

  1. The reasons for the successful appeal are not relevant in this hearing save in one respect which I shall address shortly. Suffice it to say that the learned judge had before her four ring binders of documents when she heard the case. I have 18 ring binders. More importantly, relevant evidence was not placed before the learned judge and such evidence as was placed in front of her, as I shall determine in due course in this judgment, was highly incomplete and wholly inadequate.

 

So there was then a re-hearing, before His Honour Judge Arthur, sitting in the High Court. Here’s where it begins to go spectacularly wrong (as opposed to merely disastrously wrong)

 

 

33……On 31st January 2014 SW left the local authority employment. In the four months that followed I, who was now seized with the case, was asked by the local authority to give various directions, including directions for SW to provide a statement.

 

 

 

  1. By April, 2014 it became obvious to all that SW was reluctant to give a statement. On 14th May the court asked Mr. Bain, counsel for the local authority, to take instructions as to why that was, and in particular to inform the court whether there was anything in the circumstances in which she had left the local authority employment which had a bearing on the proceedings, and which might affect her credibility. Counsel faithfully relayed his instructions from the social work assistant sitting behind him, namely that SW had left in entirely amicable circumstances. ‘They were all sad to see her go, and asked her to stay working for the local authority.’

 

 

 

  1. In April 2014 the court permitted fresh matters to be included in the schedule of allegations to be proved. These related to evidence not before the court in June 2013. The first was that the mother had hit C with a rolling pin. The second listed general allegations of neglect by the parents of the younger children.

 

 

 

  1. On 27th May 2014 the final hearing began. On the third day of that hearing, on 29th May, the court suddenly received a ‘whistle-blower’ email from SW, directed to myself personally, in which she alleged corruption, malpractice and bad work practices by the local authority in respect of both C and T, and in respect of other matters too.

 

 

 

  1. On 30th May, having taken instructions, counsel for the local authority confirmed that the local authority no longer relied on SW as a witness of truth. It would robustly challenge some of her assertions in her email, and in the circumstances was no longer seeking further findings. It sought leave to withdraw their application for such findings to be determined. Unsurprisingly, the parents consented to this course of action, but the guardian for the younger children, who was absent from court, was not able to give instructions himself. In due course the guardian objected to the course proposed by the local authority.

 

 

The hearing collapsed on day 3 with LA counsel having to withdraw for professional reasons.

Something peculiar happened late (in week four) into the second attempt at it (this actually being the third attempt at the fact finding overall, as HH J Davies had already done one, overturned on appeal)

 

 

 

 

 

  1. In September 2014, in the fourth week of the hearing, to the surprise of all, counsel for the local authority suddenly put two very serious, entirely new allegations to the father in cross-examination. The first was that the father had been grooming “another child” A for sex, and secondly that C had conceived two babies while living at home. As the determination of these allegations would add little or no extra time to the proceedings, because they were so serious, and because the court believed they might assist in the assessment of the credibility of the witnesses, the court insisted the allegations should be articulated in the correct form and added formally to the schedule of allegations to be proved.

 

 

 

  1. At the conclusion of the evidence I invited all parties to set out, prior to written submissions, any concessions made by any party in relation to the evidence. In respect of the local authority, I asked them to set out any concessions about whether allegations were being pursued or not. The local authority was the only party to respond and did so with the following concessions:

 

 

 

  1. a) The local authority no longer sought to rely on any statement made by C in the three ABE interviews held in January 2014. This was subsequently clarified to include anything she said at the police station before or after the interviews, or in breaks, save, astonishingly, for comments about pregnancies and babies she may have made during a break in, or after, the interview on the 31st January, 2014.

 

  1. b) The local authority no longer pursued the allegations that the mother was aware of the abuse of T and chose to ignore it, and that the mother remonstrated with T on the 13th March, 2013. The local authority also abandoned the allegations of neglect of the three younger children.

 

  1. c) The local authority had already put in train preparations for a Serious Case Review of their conduct of the case. This would take place regardless of what findings were made.

 

I have not seen that Serious Case Review. I imagine that Luton are going to be receiving many many telephone calls from the Press wanting to see it.

 

There had been retractions from another child, T about the allegations. A LOT of retractions. Ten in all.

 

The Court of Appeal (in the appeal from HH J Davies) had given this advice about retractions

 

Re W (Fact-Finding Hearing: Hearsay Evidence) (2013) EWCA Civ 1374, (2014) 2FLR 703 at paragraph 25.

 

  1. Furthermore:

“The retraction of a complaint normally requires careful and specific consideration and this case was no exception. Obviously the fact that a complaint is subsequently retracted does not prevent a judge from accepting that it is in fact true but it gives rise to questions which must be addressed sufficiently fully and directly in the judge’s reasons so that one can be confident that the fact of the retraction has been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation” [para 28].

 

 

The Judge comments on the SW evidence about the retractions (including the retractions made by another child, T)

 

 

 

  1. She was reminded that by 8th March T had retracted her supposed allegation. SW’s response was instant and dismissive, “It’s perfectly normal for victims to retract. We know it is common from victims”. Later she said, “I agree with the Court of Appeal that we should take retractions seriously”. From her demeanour, however, the court did not infer that she was in any way convinced by what she was saying. She further accepted that she had asked C whether she was worried about what had happened to T also happening to her. She saw nothing wrong with this question:

 

 

 

 

“It was in accordance with social worker practice… It is a practice all good social workers use… The fact that the court sometimes does not catch up with research is very unfortunate.”

 

 

The Court made these general comments about the SW evidence

 

 

 

 

 

 

 

Credibility of SW – court’s findings

 

  1. She was at times truculent and downright rude to counsel and to the court and sometimes quite threatening and menacing. She variously accused counsel for B of raising his eyebrows at her in an inappropriate manner (he was in fact doing no such thing), loudly demanded to know the names of all the counsel in court, said that she had ‘clocked what you lot are up to’, and accused the court and counsel of trying to prevent her having her say when, in fact, wholly proper efforts were being made to curtail seemingly unquenchable outpourings. She was dismissive and disdainful of correct social work practice and the way the court operated. She was liberal in blaming others for things that had gone wrong. Apart from blaming the court (by inference both HHJ Davies and the Court of Appeal), she blamed the police, other members of the local authority, teachers at C’s school, the school itself for obstructing her, (this was wholly unfounded), counsel for the parents and counsel for the guardian.

 

In the light of that, it is rather commendable that counsel for B was able to control his eyebrows. Mine would have been on the ceiling.

 

SW’s evidence – general matters

 

 

Her current memory of events

 

  1. She explained that she had been very reluctant to give evidence. In her tenth and last statement she had said that she could not trust the local authority case notes in view of the time lapse. She had resisted making that statement as she did not think she could usefully add anything, for now she could no longer recollect any details but, as the case had progressed, some matters had come back to her as she was questioned and shown documents, and so things had become more alive for her. Even so, she said that all the events with which the court was concerned took place over two years ago and she had not retained memories of the case in the same way she would have done if she was still the social worker. This is something she repeated many times during her evidence.

 

 

 

 

 

Disclosure of her own notes

 

  1. She was referred to the email of the local authority’s in-house counsel, Miss Manassi, on 28th February of this year which asked for her notes and said that a comprehensive statement would be needed from her. She was referred to the current President of the Family Division’s words twelve years ago, “Professionals should keep comprehensive notes. Social workers should routinely exhibit notes to statements”. SW said that, contrary to this, she had shredded all her notes. In fact, she had tried to shred all her notes on a daily basis when she worked for the local authority. She could not keep them because they might be stolen from her car or lost and she had no desk in the office where they could be kept. “I shredded notes because I did not need them”.

 

 

 

  1. Furthermore, in February 2014, Dawn Smith, her supervisor at Luton Borough Council, had told her to delete all her own records including all texts and emails from T. She deleted, she thought in all, about 500 texts to and from T. She was ordered to delete or shred all this material. She did so, she accepted, knowing that the proceedings were still underway and that a retrial of the sexual abuse allegation for C had been ordered, and that in relation to these T’s own allegations of sexual abuse against the father were relevant.

 

 

 

  1. She was reminded of one text in particular. T had alleged that SW had sent her a text telling her not to be in denial. Ms Lynne Jackson, the psychologist, had reported that this text had, in fact, been read out to her by T. SW said this:

 

 

 

 

“I knew all about this allegation of unprofessionalism and that T was saying this and other things too. I remember thinking whether I should delete this trail but I was told to”.

 

  1. In any event, she said she had never sent T this text.

 

 

 

  1. We have not heard from Dawn Smith. So whether or not SW was generally ordered to delete all her records, texts and emails still remains to be decided. Further investigation is needed. But the court notes that it seems very surprising that SW should have deleted a trail of texts which would have exculpated her from this particular accusation. (For the avoidance of doubt, I make no findings that any member of staff obstructed the Local Authority.)

 

[So I should make it clear that SW was alleging that she had destroyed all her emails and texts because the manager had told her to, but the Court didn’t hear evidence from the manager about this and didn’t make any findings. I have a little bit of sympathy about the handwritten notes- social workers don’t have paper files any more, and most of them don’t have their own desks any longer. Everything is on computer and workers hot-desk. Whilst the President did say 12 years ago that handwritten notes should routinely be exhibited to SW statements, there are not many Judges who would thank social workers for doing that. There’s no way that one can do that and comply with the 350 page limit. I would suggest that handwritten notes, particularly of conversations with children or adults about allegations ought to be scanned and kept, if they are not contemporaneously typed up]

 

Interviewing a child

 

  1. She was aware that, with a child who has learning difficulties, the interviewer has to be very careful of suggestibility. She said she herself would have been outraged if anyone had asked C leading questions, “One should be sensitive of this” she said emphatically. She was reminded that, according to Miss G, she had hundreds of conversations with C, some of which referred to sexual abuse or abuse allegations. SW assumed that Miss G would have had the appropriate training about how to talk to children who had made allegations. The school should have given her advice about this. The social workers were quite disappointed with the school about a lack of training and had to discuss giving general training to the staff at the school or arranging for that to take place.

 

 

 

  1. SW was very strident when giving evidence about how allegations of child abuse should be dealt with. She said, “Research shows that we must be more direct with children in abuse cases”. This was accepted in her social work team at the local authority. Dr. Van Rooyen, a psychiatrist in the instant case, too had said they have to be ‘more direct’ with the child. She said, “I suspected that she meant we had to talk to C and perhaps initiate conversations”. She then seemed to contradict this by saying, “We had to wait for C to speak, we know”.

 

 

 

  1. She repeatedly referred to research by Keir Starmer, a former Director of Public Prosecutions. “His work should be accepted by the court”, she said. Her tone and demeanour made it clear that she was very critical of the courts. Later she said the social worker should keep an open mind in investigations like this. She hoped that she herself had kept an open mind. When asked whether it was her working hypothesis that C and T were sexually abused, she said that C’s behaviour especially was indicative of abuse but she repeated, she hoped she had kept an open mind. Her actual words which follow are important. Her tone was distinctly barbed as she uttered them:

 

 

 

 

“I do not know whether C was abused or not. As her voice in social care I am directed by our research at the local authority even though the court may not be… C’s behaviour led to a very strong correlation with sexual abuse. The first time she presented as a victim of sexual abuse was on 17th December.”

 

  1. When asked what was indicative of sexual abuse on that occasion she answered:

 

 

 

 

“C’s behaviour. I was hearing all sorts of things from the school and what she had done… It’s the skill of a social worker to ascertain what is the likely cause of her behaviours.’

 

 

 

Use of the word “disclosure”

 

  1. She said:

 

 

 

 

“I was told this judge doesn’t like the use of the word ‘disclosure’ for allegations by children. I understand that courts in general don’t like the use of the word ‘disclosure’.” She had not read the Cleveland report of 1987 and did not know if it criticised the use of the word “disclosure” by professionals.

 

(It does disappoint me that a social worker dealing with a sexual abuse investigation would never have read the Cleveland report, but I can’t say hand on heart that I’m astounded by it. I do think there’s a general lack of understanding that ‘allegation’ should be used instead of ‘disclosure’ and why that is – broadly that disclosure as a word is perjorative – it implies truth. I can disclose that I ate your Jaffa Cakes (because it is true), I can’t disclose that I walked on the surface of Mars. So if I say that Mr X punched me, you don’t know whether it is true until the Court have decided it – it is an allegation at that point, not a disclosure. )

 

There was a very peculiar exchange about SW’s first meeting with C.

17th December 2012

 

  1. I must examine the events of this day very carefully, for they set the tone for what was to follow and go to heart of the case. This was the day of SW’s first meeting with C. The case had been closed by the local authority a couple of weeks before following earlier complaints by C. On the 14th December, as we know, the school told the local authority that C was still unhappy and did not want to go home. When she was allocated the case, probably on Friday 14th, SW skimmed through the electronic file provided to her by the local authority. She would have done this as quickly as possible, she said. (The court notes that this file was in fact just seven pages – a very short file indeed, and would not have taken long to read fully.) Part of this short file comprised the handover notes of Fiona Johnson, the previous social worker. These were reported as follows:

 

 

 

 

  1. a) C had alleged being hit, though the school believed there were no marks ever left on her. According to her, everyone seemed to cause her upset. The family upset her and all the family hurt her, except for D. Her brothers, especially B, beat her up.

 

  1. b) Other children had all been spoken to and all had said that they had never been hit by the parents.

 

  1. c) C had reported no major health issues.

 

  1. d) There were no concerns about A.

 

  1. e) All the other children were happy at home.

 

  1. SW appears not to have accepted this. ‘I wondered if C was unhappy, did it mean that the other children were unhappy.’ On skim-reading the notes, ‘I wondered if something was going on.’ Although, she accepted that there was nothing in the notes to this effect, it was her impression on reading them that this was Mrs Johnson’s impression too. So she had gone to the meeting believing that there was more she needed to understand about C’s self-harm, and about the pictures and drawings which she had drawn and made at the school. She had no idea of what this might be. She was asked whether she had any suspicions and there was a noticeable pause before she answered, “No” but she then added, “But we can partner certain behaviours with certain types of abuse”.

 

 

 

  1. On the second page of the seven pages of files notes handed on from Mrs Johnson, there is mention that, “The child has a bit of a fixation with Miss G”. The note also referred to Facebook entries which needed to be dealt with. SW said she did not recall this entry or how she had dealt with it. At any rate she had not known whether the fixation comment was correct or not. She was quite dismissive in giving evidence about this topic, the court noted from her demeanour. It is obvious that she did not think, and has never thought, it to be of any relevance whatsoever.

 

 

 

  1. SW duly met C at school in the presence of Miss Z on the 17th December, 2012. The child was anxious and ‘difficult to engage in so many ways”, she elaborated. She found the meeting very difficult. Sometimes her head was down, she was kicking the chair, her head was behind her ‘hoodie’, she was challenging and unwilling to talk about anything. Most of the time she was ‘a shrinking violet’. She seemed frightened and anxious and unwilling to talk and engage. There were very long silences. Nonetheless SW that she wanted to engage. In spite of this, the meeting took what the court considers a quite extraordinarily long time. According to SW, it started at 12 noon and ended at 3:30 or 4 p.m. (The note she wrote in her car afterwards was timed at 3:30 p.m.) During those 3½ hours she had left the room to contact the child abuse unit at Luton Borough Council and in particular Mr Graham Cole, the head of legal services there. And of course a lot of time, she repeated, there was, silence. As her evidence progressed, the court’s impression was that she trying to row back from her original time estimate. Eventually she said that the interview was perhaps ‘1½ hours, maybe shorter, maybe longer’. C had been given the chance to leave the meeting several times. Once she did leave but returned of her own volition. In this meeting it was difficult to understand what C said. Miss Z would say what C had said and C would either nod or shake her head. She soon realised that C hated to be asked to repeat what she had said. Neither she nor Miss Z took a note during the meeting, “It would be an abnormal thing for a social worker to take notes when interviewing a child other than during an ABE interview.’

 

 

 

  1. At 3.30pm, in her car, she made notes of the meeting. It was her practice to note down as soon as possible the important points of an interview note, which appears to two pages, is one of the few handwritten notes by her before the court:

 

 

 

 

“Very difficult meeting”, “Comes in when no one is there”, “Does stuff, bad stuff”, “Really bad things”, “Secrets”, “Where’s mum? Downstairs, out”, “Have you tried to talk to her about it? No point”, “Not allowed to talk about it”, “Couldn’t expand”, “Hits me. Kicks”, “Notice leg was sore, limping a little. Said dad had kicked/hit her last Sunday”, “Wouldn’t show me”, “Appeared very frightened/frozen”, “Didn’t want anyone to know what she’d said”, “Wanted to go into foster care”, “Hate family, hate mum, hate him”, “Gets beaten up at home – brothers, dad”, “Doesn’t feel safe at home”, “Does not feel there is anyone she could turn/talk to at home”, “Said she wanted to die”, “Does stuff he shouldn’t”, “Happened more than once”.

 

  1. A crucial element in this case revolves around what SW said in her statement of 20th December, 2012 about the interview three days before. The relevant part of the statement reads as follows:

 

 

 

 

“[C] disclosed sexual abuse by her father during this meeting. She told me that her father comes up to her room and does really bad things. Through discussion it was established that she clearly understood that there were areas of her body that no one should touch and this is where her father touched her. [C] found it extremely hard to expand on this although did manage to share that her father told her that she must not tell anyone and that the bad things would happen if she did. It was also established that [C] knew about her body, her sexual organs and other people’s. After ensuring I was confident [C] knew what sexual abuse was, she confirmed that this is what had been happening to her.”

 

  1. When it was pointed out to her that the handwritten notes make no mention of sexual abuse, SW caused, it must be said, considerable consternation in court in all quarters by asserting that there was a page missing from her notes. There was definitely a third page, she remembered. She remembered the Local Authority solicitor, Ms Abana Sarma’s collecting this document. She was most concerned that this page was missing because this page dealt with the sexual abuse allegations made by C on 17th December. Furthermore, this page had been before HHJ Davies at her fact finding hearing in June, 2013.

 

 

 

  1. She was referred to a number of documents from the court bundle. First was a police note of 17th December which states, ” [C] did not disclose sexual abuse”. Then she was referred to the transcript of HHJ Davies’s judgment at the end of the 13th June, 2013 hearing, which made mention of the content of the two pages long since disclosed, but none of the contents of the apparently now missing third page. Furthermore, the transcript of that hearing shows that the father’s counsel cross-examined SW on the discrepancy between the note of 17th December interview which did not record sexual abuse being mentioned and her later assertion that C had alleged sexual abuse at the interview. Indeed, when SW was specifically questioned about the fact that her notes did not include any mention of sexual abuse, she did not refer to any missing page. She was again referred to the transcript of evidence given at the earlier hearing when she was specifically herself asked under oath whether in the discussion of 17th December C had elaborated on “bad things” and she had answered, “No, not at this point”. Nonetheless, she said, she would not agree that C only went as far as saying “bad things”, although she did not recall what other words C had used. It was two years ago.

 

 

 

  1. Mr. Geekie, for the local authority now rose and said that the local authority was totally unaware of any missing third page of notes. Indeed, he said the whole of the fact finding trial was conducted on the basis of the two pages of notes only. This accorded with the memory of all those counsel for the other parties who had been present at that earlier hearing. If that was not enough, it was pointed out by the Local Authority’s solicitor, and agreed by counsel who had been present at the earlier hearing before HHJ Davies, that the bundles that the court was using at the current hearing were those used then, merely brought up to date by the addition of further documents. The court bundles then and now, did and do not include any third page of notes.

 

 

 

  1. In spite of being faced with what might have been thought an especially daunting body of evidence, SW was not to be budged. She repeated that she had given the third page of notes to Ms Abana Sarma of the local authority, that it was definitely referred to during HHJ Davies’s hearing, and that the missing page had stated that C had alleged sexual abuse. She could see the second page in her mind’s eye. There were several entries on it. Furthermore, it was shown to the police at the strategy meeting shortly after 17th December 2012, even though the police record of what happened on that date says that no sexual abuse was alleged by the child.

 

 

 

  1. When further questioned, she accepted that pages one and two of the notes before the court were consecutive, and were a complete document, so the third page could not have been the middle page of the three. The missing page was, she said, a second note written at a different time in the interview. This was despite her earlier evidence that she had not taken notes during the interview, and that it was her practice never to do so during interviews. She said she had discussed the contents of the third page with the police and her team manager. She then said belligerently, “I want to know why the second page is missing”.

 

 

 

  1. She then added that, apart from words, she relied on the non-verbal signals from C; the self-harm, the fact that she walked out of the interview, the hiding behind the hoodie, the fact that she started and stopped saying things and the fact that she wanted to go into care. She said this:

 

 

 

 

“Because of her words, in my professional opinion I felt she was the victim or at risk of sexual abuse. It is important that a social worker should be brave enough to say this.”

 

  1. She was then rude to counsel saying, “I’ve clocked where you’re going a long time ago” and then to me, “I hope this court does this case justice”.

 

 

The Judge had to make findings about this

 

Findings about the 17th December interview

 

  1. As for SW’s contention that C alleged sexual abuse to a total stranger on this occasion, this is plainly mistaken. The police note of the same date specifically records that no sexual abuse was alleged. The application for an Emergency Protection Order dated the 20th December and signed by the Local Authority’s Head of Legal services does not say that sexual abuse was actually alleged, only that C’s remarks ‘were suggestive of sexual abuse’. The notes made by SW after the conversation make no mention of sexual abuse. Her contention that a page of notes is missing, and that this page was before HHJ Davies in the earlier hearing, is simply ludicrous, for this would have meant that all counsel and solicitors, not to mention HHJ Davies, must have, unless through quite startling collective amnesia, willfully colluded in ignoring vital evidence during the hearing, and that the learned judge deliberately omitted mention of it in her judgment. It is also ludicrous to suppose that, when writing her notes in her car, SW wrote down relatively trivial allegations, but omitted to record the infinitely more serious accusation of sexual abuse.

 

 

 

  1. The reality is that when one stands back and looks at what happened, one can see just how serious this situation was and is. Based in part on, the Local Authority now sought and obtained the peremptory removal of C from her family on the 20th December 2012, and the following day sought and obtained an Interim Care Order. In each case the tribunal notes show that the decision was made, in part, on the basis that C had alleged sexual abuse. The removal of children from their parents, especially without notice, is one of the most draconian actions any court can take. It strikes right at the heart of basic human rights, on family life; it is frightening and traumatic for the children involved, and profoundly distressing for parents and other family. Sadly, the courts are required from time to time to sanction such removal, but only when safety and urgency requires it. In making such urgent orders, the courts must rely on the accuracy of Local Authority evidence. Whilst they cannot know whether any allegation is true or false, the courts are entitled to be told the truth by Local Authorities as to whether such an allegation has been made at all. The Family Court and the child-care justice system cannot function if Local Authorities do not tell the truth about this, for justice will inevitably be perverted.

 

 

 

  1. Responsibility for this cannot be laid wholly at the feet of one social worker. Others in the Local Authority must share responsibility, although, as I have said, on the evidence before it, the Court cannot and will not apportion this to particular individuals. The court freely acknowledges that all Local Authorities’ resources are over-stretched, and that social-work professionals are often alarmingly over-worked and under time pressures. Nonetheless, there should have been proper, efficient supervision of SW. Furthermore, the application for an EPO did not record an actual allegation of sexual abuse, whilst an application of the same date for an ICO did. With proper supervision and scrutiny this discrepancy should surely have been picked up by senior professionals at Luton Borough Council

 

 

After the first finding of fact hearing, and knowing that there was an appeal pending, the SW went to see the child to talk about the findings that had been made. It gets worse

 

Telling C about HHJ Davies’s findings of the 22nd June 2013

 

  1. SW visited C immediately afterwards to tell her of the findings. This was on the advice of CAMHS. C said that ‘he did it to A too’. SW had known then that there was going to be an appeal, but C was desperate to know what had happened and she was worried that C was at risk of suicide. The note of that meeting reads as follows:

 

 

 

 

“I then began by telling her that the local authority, us, had, as she knew, concerns about a number of things but we had asked the court to make a judgment/decision on these. I asked C whether she knew what those concerns were, she nodded but I decided to go through these. I said from what you have told me so far and from what I have learned from working with you and your family, I have been concerned that you are a victim and have suffered sexual abuse. C looked at me eyes moist but intently listening, she nodded. I said the concerns were also that the person who caused this to you was your father. C starred very intently at me nodding again and I carried on. I said the judge decided that after hearing all of the information that it was mostly likely to have been him. C remained staring at me, eyes a little more moist and said, ‘It was’. I then said the judge also found/decided that this had happened to T. I clarified this and said that the judge decided it was more likely than not that your father had also sexually abused T. C remained looking intently at me. C then said, ‘He did it to A too. She told me and I promised to keep it a secret, you need to talk to A. I said that we would and could she tell me a bit more. C said, ‘I promised I would keep it a secret'”.

 

 

  1. She herself has always been adamant that it never happened. The court is wholly satisfied that she was never abused by her father. It follows, therefore, that either C herself was making up the allegation to please SW in the light of the learned judge’s findings, or SW was making it up. On the balance of probabilities, the court is satisfied that SW was, as usual, putting words in the child’s mouth and then pretending they had come from the child.

 

That’s an incredibly damning finding, and one that clearly survived the Court of Appeal decision. The SW was, as usual, putting words in the child’s mouth and then pretending they had come from the child. Incredibly damning.

 

On the total number of ABEs

How many ABE interviews were there in January 2014?

 

  1. SW’s initial evidence was that there were six ABE interviews of C in all. One was on 4th October when “C said nothing” and another five in January 2014. When she returned to complete her evidence a few days later, she disclosed further documentation she said she had found at home, as well as her mobile phone she brought to court her 2014 diary and some loose sheets of paper she said she had found in the 2013 diary. She had not brought her 2013 diary with her to court as she did not think it was necessary.

 

 

 

  1. It was interesting that some of the loose pages of typed notes do not appear in or are cross-referenced to the documents previously disclosed by the local authority. She was asked how she had typed these notes. She said she would ‘audibly’ type notes on the local authority’s Care First system and sometimes this would go down and so she would type the notes on a standard word document format and transfer them later onto the system. Many times she was asked by the local authority to type up her documents on her own computer. She complained about being required to do this by the local authority to their legal department. When she did type documents at home, she never saved them. She would scan them and then ask someone else to scan them into the system back in the office. She would have expected all the loose pages found by her to be on the local authority’s Care First system. She typed up the notes of every substantial meeting with C and would expect them all to be on the system. She did not know why these notes were not on the system.

 

 

 

  1. She referred to her 2014 diary and to a number of entries in it. These contain the words, “C ABE on…” and then five dates …’ 23rd 27th, 28th, 29th and 31st January’. There are question marks next to the 27th, 28th and 29th January. She explained that the question marks were because the social workers were not sure whether C wanted to go through with the interviews. She still believed that C had done five ABE interviews in January, and six in all if the October ABE interview was counted, for that was what her records showed. She said, “My memory was that it went on for several days in January… I am ‘sure’ it was six interviews in all”. For the avoidance of doubt, there were no times when they took C to a police station and an interview did not take place.

 

 

 

  1. She later was referred in due course to her a file note of 12th December, 2013 which reads as follows, “C has now completed five ABE interviews, disclosed rape by father and V. She has also said she has been pregnant twice”. The date of 12th December 2013 does not make sense in the context of the timescale, the court notes. As to the substance of the note, SW commented that the reference here to five ABE interviews, “accords with my recollection. I recall five that week”. She then changed her evidence, something she did very frequently whenever she was in the witness box, saying that there had been, in fact, one attempted ABE interview that week in January and one aborted ABE interview. Added to those ABE interviews for which we have recordings and transcripts, that made six ABE interviews in all.

 

 

 

  1. It shows the extraordinary nature of this case that the court has had to consider whether C was ABE interviewed three or five times in January 2014. The evidence of the police officers, SWA ‘Y’ and Miss G collectively suggest that were but three. SW believes there were five. I prefer their collective memory. Accordingly I find that there were four ABE interviews only

 

It won’t surprise any reader to know that that the ABEs were very flawed – with leading questions, pressure, questions about things that weren’t alleged, the child being praised for giving answers that the questioners wanted to hear, disappointment from professionals where the child wasn’t making allegations (those being described as ‘failed ABEs)

 

And on the number of times C was interviewed about her allegations

Findings about the January ABE Interviews

 

  1. Save with one exception, the local authority does not rely on anything said in these interviews.

 

 

 

  1. It is submitted by Mr. Storey that C underwent literally hundreds of interviews. This is partly based on Miss G’s agreement that she had hundreds of interviews/discussions herself with C. The court is satisfied that this is, in fact, an exaggeration. The court must be cautious not to confuse spontaneous remarks made by a child or short informal chats with formal questioning. Nonetheless, doing its best, the court is satisfied that the child has had no fewer than 33 interviews about abuse with one or other social worker between 17th December 2012 and 31st January 2014. By “interviews” I mean either formal interviews or detailed question and answer discussions which went beyond the odd throwaway mark, or the odd question and reply. In addition, there appear to have been five similar discussions of a detailed nature with school teachers, seven with a foster carer and, of course, with Dr. van Rooyen and one with PO. On top of this, there were four ABE interviews. This makes, if the court’s mathematics is correct, an alarming total of 51. 12 of them were conducted wholly by untrained interlocutors in the form of the foster carer and the school teachers, and the rest were professionals whose ability to follow guidelines seems to have been non-existent. In addition, there can be no doubt that there were many, many other informal unreported conversations at school, in the foster home and when social workers brought C to and from school, which happened ’99 per cent of the time’.

 

 

 

  1. Furthermore, the court’s criticism is directed not only to those who conducted the interviews, but to those who sat outside and saw and listened to what happened: the social workers and teachers in the room next door. As professionals working in the field of childcare, they should have intervened to stop the 28th and 31st January interviews. They did not.

 

 

 

  1. Quite apart from the content of the interviews which were recorded, it is thoroughly reprehensible what was said before, during breaks and after the recorded parts was either inadequately noted, or not noted at all. The court is wholly satisfied that relevant matters were discussed at the police station at these times. All the professionals seemed to have operated on the false premise that what was said outside the interview room did not count.

 

 

As has been mentioned earlier, at around week four of the finding of fact hearing, an allegation was made that C had been pregnant twice. By the end of the hearing, the Local Authority were not relying on anything said by C in her ABE or other interviews other than this.

 

Findings about the 31st January pregnancy allegations

 

  1. It is incomprehensible to the court that the local authority, having conceded that no reliance should be placed on what was said by C during the three January ABE interviews, in the talks before it, in breaks or afterwards, should seek to rely on one short interchange about pregnancies, which took place during or immediately after the 31st January interview. How can a few words only, during or at the end of one of them, be exempted? It seems to the court illogical and perverse.

 

 

 

 

  1. The evidence about this episode is far from complete. Nonetheless, the court is satisfied that either during a break or at the end of the 31st January ABE interview, C made drawings and said things which led the police and the social workers to believe that she was alleging that she had been pregnant twice when she was much younger, and had either born two babies or lost them for one reason or another. Their names were Jack and Rose. She had also been given the morning-after pill. We do not know precisely what C said because the note-taking was hopelessly inadequate. The allegations were and have been taken seriously, for allegations that C conceived twice were added to the schedule of findings to be sought during the currency of the present hearing. Yet these allegations seemed, as was put to IO ‘W’, to have disappeared into the ether until they were unearthed late in the day.

 

 

 

  1. These allegations were very, very serious. So why was it that the first the court and the parties knew of this issue was during the hearing? Why did no social worker or police officer ever mention it? Why does it appear in no statements? The answer, regrettably, must be, not because the allegations were made outside a formal ABE interview, but because the local authority and the police realised only too well that they were ludicrous. They simply could not be true. They did not fit in with C’s medical records or the age when she attained puberty.

 

One of the other children, T, gave evidence

 

 

 

 

  1. T in her oral evidence disputed much of SW’s evidence about this meeting. She was particularly adamant that on 1st February 2013 she had never mentioned sexual abuse by the father. They had not really talked about this at all. Furthermore, she had never told SW that she had reported the abuse to her mother. “This was wrong!” Nor had she ever said that her mother had sent her off to live with her Aunt B, because of the abuse, nor was SW’s note accurate when it recorded that T had said that Aunt B had not believed her until she caught it out actually happening. “I did not say these things”.

 

 

 

  1. T then denied that she had ever told SW that the sexual abuse was the reason why she did not get on with her parents and why she would not leave her children with them. The reason she did not get on with her parents was, “because they always have a go at me’. She clarified this by explaining that her parents had not approved of her sleeping with a boyfriend from school. When she had left home she did it not because she was forced to and because she wanted to. Furthermore, she had, indeed, left her children in the mother and father’s care on many occasions. Indeed, she had not had a conversation with SW about her own children at all.

 

 

 

  1. During this part of her evidence, the court noted that T spoke with particular conviction. The court accepts her version of what was said, not least because the pattern here is similar to what happened on the 17th December.

 

 

 

  1. T did not like this. SW was aware of that. On 5th February 2013 she rang T, “To tell her that she did not have to do anything she did not want to”. This was in response to a telephone call from the mother to the Local Authority earlier that day. The next day, 6th February, the Local Authority received a typed letter signed by T. The key passage of that letter is as follows:

 

 

 

 

“SW from the children’s social services department in Luton keeps ringing me and keeps trying to contact me regarding me to make a statement about my dad, F, saying he had molested me at a young age to which of my knowledge none of this has happened. I am not willing to make a statement as it would be a false allegation. In my eye SW is dealing with my sister’s case, C, as she has no success in that one she is trying to manipulate and intimidate me to make a statement which I will not do. I would like SW to have no contact with me.”

 

  1. For reasons I shall give later, I am satisfied that this letter did genuinely reflect T’s feelings. Furthermore, I am wholly satisfied that T did not make any allegations of sexual abuse on the 1st February 2013.

 

 

 

I could do an entire post about the flaws in the ABEs, to be honest, but there’s just so much in this judgment. I will end with the concluding remarks

 

 

 

 

Concluding observations

 

  1. One can only pray that the adults, and children, may recover from their unimaginable ordeal, though I fear that they will carry the scars of their suffering for the rest of their lives. As for C, with her underlying problems, the damage may well be irreparable. So much now needs to be done to see what damage can be repaired and how family relationships can be restored.

 

 

 

  1. This court has no jurisdiction over C beyond this fact-finding. But that cannot prevent my emphasising how urgent it is that her case be re-opened. The existing care order was made on the basis of incomplete evidence. The parents’ approach in not opposing the order was adopted in ignorance of the true facts. This injustice must be rectified.

 

 

 

  1. The court cannot entrust the care of children to those who abuse or fail to protect them. That applies to local authorities as much as to family members. Parties must have faith in those who care for their children.

 

 

 

  1. The local authority have already undertaken to commence forthwith a Serious Case Review, and rightly so. But it must go further.

 

 

 

  1. This situation poses grave dangers for family justice. Valuable court time is taken up weighing such breaches against the evidence and of course, there is the risk that not only may false information be garnered in interview, but that genuine allegations may be so contaminated that they cannot be relied upon. Those who permit their employees to question children and vulnerable witness must therefore be certain that not only have they received the standard training but they understand what it means in practice.

 

 

 

  1. This case has taken up an inordinate amount of the court’s time, but rightly so in the circumstances. Yet the cost to the public purse in one form or another will be immense. There has been a significant disruption of court lists, with other cases being delayed. Family justice cannot perform the vital task it does in protecting children without honesty, objectivity, transparency and fairness. I thus hope that no court ever again has to see and hear what this court has seen and heard during the past weeks.

 

 

All is not well with child protection in North Wales

That’s an intriguing hook for a judgment. It comes from a decision of His Honour Judge Jones, sitting in Prestatyn. (For the benefit of David B – not precedent, not binding )

There are two judgments. The first

Re E (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B101.html

discusses a scenario in which a Local Authority sought, and obtained, an Emergency Protection Order on the basis of a medical report that said that a baby had a rib fracture (and a bruise to the face – it being accepted by father that he caused the bruise). The child was removed into care (luckily placed with grandparents) and 13 weeks later a second opinion concluded that the rib fracture was the result of a birth trauma. The child was returned to the parents and the proceedings withdrawn. The judgment explores what went wrong and why the first medical report had not said that birth trauma was a possibility.

The second (annoyingly named) case

Is Re E (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B100.html

in which, because of the complaints made against third parties in the first judgment, those third parties were represented to make their own representations as to whether those complaints were fair.

So,let’s go to the first judgment and look at the full quotation from the headline

 

 

53. All is not well with child protection in North Wales. I believe there have been significant deficiencies in the joint agency working this case. Where the responsibility for each and every omission lies is a moot point, but there are systemic improvements which are required as a matter of urgency. A copy of this judgment should be made available at public expense to the parties (including the Guardian in this case) and the Local Authority should distribute the same to the local Safeguarding Board, to the appropriate agencies who have responded to potential criticism, and if necessary to the Welsh Government in Cardiff.

54. Practice requires improvement to try and avoid any repetition of the circumstances which led to the removal of E from parental care, with the understandable anguish this caused to his parents (for which I have apologised already) and I repeat the apology publicly at the conclusion of this judgment.

 

I would like to pause now, and just consider for a moment what you take “all is not well with child protection in North Wales” to mean. I know that I had a fairly immediate reaction to the sense of the scale of the problem that the Judge saying that was seeking to convey.

We’ll skip now to the second judgment, where this particular phrase was pecked at by lawyers and the Judge clarified it. The “Third Intervenor” is the hospital where the original doctors were based.

 

59. Accordingly, the first sentence of paragraph 53 is not an exclusive reference to the Third Intervenor. ‘All is not well with child protection in North Wales’ means no more than that. E’s case demonstrated that things could be better. Were it otherwise, no improvements would be required at all. ‘All is not well’ does not mean that ‘everything is bad’. It is not intended to lead to an unnecessary lack of public confidence, and I do not believe that any careful and intelligent member of the public would ascribe to this sentence such a meaning. I have no idea whether anyone will pay any attention whatsoever to the judgments delivered, despite my request in paragraph 53. However, I do not propose to withdraw that first sentence which, at the time it was delivered, was no more than an accurate and measured indication of my honest conclusion at the time.

 

 

My reading of the clarification is something more akin to “There has been a significant problem in this case which needs careful attention to be sure as to whether there is a systemic problem” whereas my original reading of “all is not well with child protection in North Wales” is much more serious.

If I was attributing a scale whereby 0 was perfection and 10 was utterly meltdown disaster, I would say that the “all is not well with child protection in North Wales” would be a 7 or 8, and the clarification would suggest it was more a 4 or 5. So I would, have ascribed to the original remark that the Judge had a lack of confidence in the system’s ability to act properly – I like to think of myself as a careful and intelligent member of the public.

Would be interested to see where readers would place the ‘all is not well with child protection in North Wales” on that 0-10 crisis scale – and where they place the facts of the case too.

 

On my crisis scale, for example,  3 is “I’m at Jurassic Park and the air conditioning doesn’t seem to be functioning as it should”  and 9 is “I’m at Jurassic Park and a beast that is intended to be able to eat a T-Rex has got loose and wants to eat me, also that volcano that I assumed was just a photogenic backdrop is exploding”.   If you don’t know this about me, I would TOTALLY go to a real Jurassic Park, even if there was a sign above the entrance that said  “Four hours since last fatal incident to a guest”.  If you’ve got to go, I want it to be via being impaled on the horns of a Triceratops.    So, is this a glitch in the air con, a gap in a fence, a velociraptor’s claw jiggling the doorhandle from the other side of the door, or the volcano getting jiggy with it?

 

 

The triceratops totally wins this fight. Also, Hammerhead can beat up Chewbacca. And Batman is way way way cooler than Superman (c) most of my childhood

 

Back to the facts.

Dr B,a consultant paediatrician

13. Dr B, in the Child Protection Report dated 21st September 2016, identified the bruising evident upon examination, and he noted also the history. Under the heading “opinion” he indicated:

“… it is possible that the bruise was caused by the father’s over-enthusiastic manipulation of the baby’s cheeks”

as explained by the father, and as noted from an early stage by Dr B in his report.

14. I am puzzled, however, by some aspects of this report. Under its heading it is stated:

“This report does not constitute a witness statement”

and it is described as being:

“Private and confidential – not to be disclosed without the permission of the author”.

It is perfectly true that this report does not comply with the requirements of the Family Procedure Rules for the preparation of witness statements. No permission under Part 25 of the Family Procedure Rules could be given at this early stage of the child protection investigation, because proceedings had not been commenced.

15. However, local authorities inevitably use (and are usually obliged to use) the reports of investigating clinicians, when children are routinely presented at the casualty department of a local general hospital. These reports are often used as the basis of applications for protective Orders at the initial stages of proceedings, under the Children Act 1989.

16. Such a report is not in these circumstances “private nor confidential”. While it may not be a witness statement, it is certainly relied upon by the Court as evidence which may be supportive of the Local Authority’s initial application, which may include an application for a removal of a child from parental care.

17. It may be necessary to clarify this position with the Third Intervenor and its clinicians as a matter of urgency. Child protection is a difficult task but it is a critically necessary task. Medical clinicians are required to provide the relevant medical evidence so that a child may be protected and avoid harm. This may involve the use of reports provided by examining clinicians in Court proceedings. Privacy and confidentiality simply cannot be guaranteed in these circumstances. If clinicians refuse to provide medical reports in these circumstances, then it is up to the Third Intervenor to make the necessary contractual modifications to ensure that this critical medical service is afforded to vulnerable children in North Wales.

 

There was then an internal second opinion, by Dr A, a paediatric radiologist (from a different hospital). Note the passage of time between the two reports – around 3 weeks. It SEEMS that this was intended to be an internal memo from Dr A to another doctor, Dr F, but it was the document produced to the Court at the EPO hearing.

 

18. Dr A’s second opinion, dated 13th October 2016, confirmed:

(i) a radiologically normal bone density;

(ii) a fracture between two to four weeks of age at the time of the skeletal survey;

(iii) that rib fractures resulted from abnormal, excessive squeezing/compressive forces applied to the chest;

(iv) “… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

19. Dr A was subsequently asked to clarify this last opinion. She was “unsure as to what has caused confusion” on 26th October 2016 (see E9). She continued:

“If a satisfactory account of the mechanism of injury has not been offered and there is no evidence of an underlying medical cause for the fracture (as determined by the clinicians) this fracture may have been caused by inflicted or non-accidental injury (interchangeable terms) and this must be excluded by other investigations – not just imaging”.

20. By this stage, the possibility of a birth trauma was evident and had been raised. E was four weeks and four days old at the time of the skeletal survey. Whereas E’s age must have been known to Dr A as part of the background information supplied by Dr F for the review, (it is noted specifically at the head of her report under E’s name) there was no mention of this birth related causation in the initial report dated 13th October 2016. It was this report which led to the granting of the Emergency Protection Order on 19th October 2016.

 

So those were the reports from effectively the treating medics. The Court directed for court-appointed experts to consider the case and give a second opinion. Dr M, a paediatrician and Dr C a radiologist

 

21. Dr C in the report dated 12th December 2016, has confirmed:

(i) E was a heavy baby;

(ii) shoulder dystocia (obstruction by the shoulders) occurred during E’s delivery;

(iii) compression and distortion of the infant chest by the McRoberts manoeuvre ensued.

At paragraph 15:

“Thus the radiological evidence is consistent with a fracture three to five weeks old on a date when E was nearly five weeks old. From a radiological perspective alone it is not possible to exclude an injury sustained at birth”.

22. Dr M, from paragraph 49 of his report of 19th December 2016, stated:

“… there would be little doubt that there is potential for birth to have caused E’s fracture”.

In relation to the facial bruising at paragraph 76 Dr M indicated:

“… it would have been possible for (the father) to have caused bruising to E’s face but I would not imagine that this could have been done without E experiencing pain and becoming distressed if forces sufficient to cause bruising had been involved”.

23. The father has always admitted this injury, which would of itself probably not have merited the removal of E from parental care.

 

Having received those reports, the Local Authority accepted the medical consensus which emerged which was that the rib fracture was caused during birth, and thus was not the fault of either parent, and withdrew their application.

 

The Court identified several matters arising

Matters arising

(a) Photographic evidence

28. I shall provide a summary of Dr W’s reply, on behalf of the Third Intervenor, and then I shall provide my response thereto:

(i) The reply

29. Cameras are available for doctors to take photographs of injuries as “good practice”.

My response

30. I do not know whether these cameras are available at all Third Intervenor hospitals when child protection medicals take place. I have received no confirmation of this by the Third Intervenor.

(ii) The reply

31. Photographs taken by medical practitioners should not be relied upon for evidential purposes.

My response

32. Why not? In children’s cases this evidence would be potentially admissible and it would be relevant. It might be technically preferable for the Police forensic photographer to take good quality photographs, but where this has not occurred I do not understand the basis of Dr W’s assertion, at least in children’s proceedings before the Family Court.

(iii) The reply

33. Doctors need the consent of parents/from the holder of parental responsibility to take photographs. Where this is not forthcoming the Police should have insisted and the photographs should then be taken by the Scenes of Crime Police Officer.

My response

34. There is no indication in the Police chronology that in this instance (since there was a question mark over parental consent) that the Police were alerted, nor did they take photographs as part of their Police investigation. This should, in my judgment, be a matter of routine. Photographs of suspected inflicted child injuries should be taken at the hospital, either by the hospital itself, or alternatively with the assistance of X Police Authority, and if consent is not forthcoming Police involvement is required as a routine procedure. Evidentially these photographs (with any diagrammatic and written recording) is critical for both the Criminal and the Family Courts. The failure to provide this facility potentially compromises the safety of children.

(iv) The reply

35. Body/facial diagrams of relevant injuries must also be included as standard, and routine for the Court and for expert usage.

My response

36. I have no response to make with regard to that reply.

(b) The initial medical evidence

37. I shall summarise the reply given by the Medical Director of Y Hospital [hospital identified] and my response thereto:

38. The reply

(i) The second opinion/review provided by Dr A was a letter between clinicians and not an expert report for the Court;

(ii) The letter of request for this review did not include any clinical information;

(iii) The second opinion reporting service is offered in order to ensure that injuries are not missed by less experienced radiologists. The information provided is included in the patient’s notes, and is available to the parties in the proceedings;

(iv) Dr A was not asked about the possibility of birth trauma in the letter by social workers;

(v) It was acknowledged that while it might be helpful for Dr A to have mentioned the possibility of birth trauma, by giving a dating range for the fracture that included birth, it was expected that the clinicians (presumably locally and not at Y Hospital [hospital identified]) would consider birth trauma as a possible mechanism for injury.

My response

39. If Dr A’s report/review dated 13th October 2016, was intended to be used solely as an intra-medical document confirming the presence/absence of bony injury, then that should have been clarified at the outset. The document went further than merely confirming the existence or absence of a fracture, because it provided an opinion about causation.

40. Reviews sought in the context of an ongoing child protection investigation should be clearly identified as such, so that there is absolute clarity about:

(i) the purpose for which the review document is sought;

(ii) the potential usage (including Court usage) of the document seeking the review and the review document itself provided by the clinician concerned;

(iii) the background information which is provided for the review, and who is responsible for providing the same;

(iv) the precise information sought from the reviewing doctor, and who ultimately is responsible for “joining the dots” and reaching a conclusion about any possible different methods of causation; and

(v) why (since Dr A had been provided with E’s date of birth and it is included in her report) did she not herself consider birth trauma as a possibility, and mention that expressly to Dr F in her reply? Nothing surely could have been more straightforward.

(c) The wording of Dr A’s initial review

(i) The reply

41. Again it is asserted that the 13th October 2016, document was intended solely for a fellow clinician.

My response

42. Greater clarity about this aspect must be secured by the Third Intervenor, the Local Authorities of X region [geographical region identified] and Y Hospital [hospital identified].

43. In child protection terms these documents are of limited benefit if they are not intended for potential Court use, so that protective Orders can be sought in those cases where such Orders are required. A letter restricted to the use of a fellow medical clinician is of little forensic use to the Court in considering the statutory threshold. This issue needs to be resolved as speedily as possible by the relevant agencies. The Court needs to be able to rely upon the relevant medical expertise in order to safeguard vulnerable children.

44. I have referred already to Dr A’s statement in the second paragraph at page two of her report of 13th October 2016. I believe “excluded” to be a typographical error for “included”. The sentence makes no sense otherwise and is, I believe, the only reasonable interpretation of it.

45. In the reply by the Medical Director (on behalf of Dr A) an attempt is made to distinguish between the understanding of clinicians and “non-medics”. In this context I am afraid I do not understand the distinction. Clinicians and non-medics use the English language. The words used have an ordinary meaning, intelligible to both medics and non-medics alike. If Dr A wished to restrict the disclosure of her letter to clinicians only, then it might have been better not to have sought an opinion from her in a child protection investigation, which involved the possibility of proceedings in the Court arena, where inevitably her letter would be considered by “non-medics”.

46. If alternatively, Dr A understood the purpose of the enquiry and the potential use to which her reply might be put (namely as the basis of a Court Order which ultimately led to the removal of a child from parental care for thirteen weeks) then it was incumbent upon her to communicate her opinion in a manner which was capable of being understood clearly by those having recourse to her letter in those proceedings. If, as asserted, she had ten years’ experience as a Consultant Radiologist, and “expert witness” then I would not have expected this to have caused her any difficulty whatsoever.

The other matters raised and replied to by the appropriate agencies

(a) The delay in obtaining the review from 22nd September 2016 (the date of the skeletal survey) and 12th to 13th October 2016

The reply

47. “It is unclear why there was a delay of two weeks between the first and second internal review of the skeletal survey. It is also unclear why the skeletal survey was not routinely reported on (sic) by Y Hospital [hospital identified]”.

My response

48. This situation merits urgent improvement.

(b) The lack of skeletal survey

The reply

49. The Guidance for Radiological Investigation of Suspected Non-accidental Injury, published in 2008, suggests a full skeletal survey should be repeated, save for skull fractures. The risk of radiation to the child must also be considered. The above standards are being reviewed by the Third Intervenor in considering its own standard operating procedures. The Consultant involved in this case believed that a repeat skeletal survey should have been obtained.

My response

50. This situation again merits further urgent review and improvement.

 

I found the second judgment a bit hard-going, not least because the identities of the various Intervenors are not terribly clear – but I’ve linked to it if people want to read that. Nothing within it really alters the first judgment although the thrust of it seems to be that the radiologist, Dr B, had not written the report to be used in court proceedings and the intended recipient was another doctor, Dr F, not lawyers and social workers and Judges.

Under the heading ‘The Second Intervenor’s Involvement’, Mr Sheldon says that the Second Intervenor’ involvement in E’s case was limited to the sending of one letter and one email, in the context of a second opinion service. I have referred to these documents already. This refers to the document of 13th October and 26th October 2016, and the former was relevant to the hearing conducted by me for an application for an emergency protection order. The second was not relevant to a hearing conducted by me.

45. It is asserted: ‘There was no indication that the Second Intervenor’s second opinion would be put to any use, other than assisting Dr F in his assessment of the case’. This is referable of course to the 13th October report. Then, at paragraph 17 of the skeleton, the following appears:

‘On a date unknown to the Second Intervenor, her letter to Dr F was passed to the representatives of the Local Authority, who determined that it should be used as part of the material in support of an application for an emergency protection order. The Second Intervenor was not informed that this was to be done. She was not given an opportunity to consider the terms of her letter, for the purposes of determining whether she would wish to clarify or amplify its terms in light of the use to which it was now to be put, and she was not contacted by the Local Authority to obtain her assistance as to the correct interpretation of her letter, before the application was made. The Second Intervenor was not called as a witness at the application for the emergency protection order, and she has no idea what was said to the court on that occasion about her letter’.

Dr B says that she has learned from this of the need to be clearer in her use of language.

It appears that everyone at the initial hearing had taken the radiologist’s meaning to be that there was a diagnosis that the injury had occurred non-accidentally (or deliberately to use Ryder LJ’s preferred terminology) whereas the radiologist was intending to convey that there was investigation to be carried out to see if a deliberate / non-accidental cause could be EXCLUDED.

(just to refresh our memories, this is the line from the original report – the word ‘excluded’ was used and I believe people read it to be a typo to mean ‘not excluded’ or ‘included’ (hence the (sic).) It was not in fact a typo, and it was meaning excluded in more of a verb sense – ‘to carry out further investigations with a view to whether deliberate injury could be excluded’ – you can see why that was confusing. I lose my grip of understanding this every couple of seconds, it slips out like a bar of soap through wet hands.  Sidebar to this sidebar – that image reminded me of the Lewis Carroll lines

 

He thought he saw a Argument; That proved he was the Pope: He looked again, and found it was; A Bar of Mottled Soap. ‘A fact so dread,’ he faintly said,; ‘Extinguishes all hope!’ )

 

“… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

 

Judgment 2 explanation

 

In paragraph 18(iv) of my March judgment, I quoted from a section of the Second Intervenor’s 13th October report. I am informed, and I accept, that she intended the word ‘excluded’ and that there was no error by her. What was intended to be conveyed was this: ‘If there is no satisfactory account of the mechanism of the injury, and if there is no underlying medical cause, the exclusion of these explanations then dictates the next stage, namely to exclude a non-accidental injury’. I am told, and I accept, that medical clinicians would perfectly well understand this comment by her. However, I repeat that the report of 13th October, whether rightly or wrongly, was being relied upon by the Local Authority as part of its application for removal, and legal requirements were under consideration as well as medical.

53. The Second Intervenor indicated in her 24th January reply “…this statement was included in a letter intended for a fellow clinician”. She is referring there, of course, to Dr F. Later, and I quote her: “However, I have reflected on this case, and I am sorry that my use of language has caused difficulties. In future, I intend to avoid the phrase “must be excluded”, and replace it with “must be considered”’.

54. I understood that Ms Cavanagh on behalf of the First Intervenor accepted, at paragraph 33(h) of her skeleton argument, “that the wording served to create ambiguity in the mind of the non‑clinical reader, and as such, given the use put to such documentation in early stages of court proceedings, clearer words will be used hereafter”.

55. Mr Sheldon, at paragraph 45 of his skeleton argument, indicated that the Second Intervenor ‘now ensures that she does not use the terminology of exclusion when drafting documents which may come to form part of court proceedings. She has also advised her colleagues to do the same’. With that assurance, I am content.

 

 

The Judge is clear that his judgments were not about apportioning individual blame or responsibility, but to explore the systemic problems.

Firstly, I have invited, and I have received, the further submissions after my 6th March judgment. Secondly, this judgment does provide clarification and amplification for that March judgment, which can be supplemented with the publication of any additional appendices. Thirdly, I would be exceeding my remit if I sought to give general guidance with regard to the provision of second opinion evidence in child protection cases. That is a matter either for the High Court or for the Court of Appeal, and for the president of the Family Division. I am only a foot soldier, the designated Family Judge for North Wales, without any further and wider responsibility than that. Cumulatively, these two judgments are designed to alert local agencies to what happened in E’s case, so as to improve practice, and to provide some explanation to E’s parents as well. Silence would not be an option in these unhappy circumstances, as I have said already.

 

  1. Fourthly, neither judgment is intended to attribute individual blame or responsibility. I make it clear I am not dealing with a case of professional negligence or misconduct. I make a plea for systemic improvements (as indicated in paragraph 50 of my original judgment). No more, and no less, than that. If the improvements have all taken place, so much the better. Time, of course, will tell. Fifthly, I will reserve the issue of extended anonymity until I have heard further argument in the light of the President’s Guidance. A combination of different things led to E’s removal from parental care. It was not exclusively referable to the Second Intervenor, as asserted in paragraph 26 of Mr Sheldon’s skeleton argument. Indeed, as I made the emergency protection order, I am ultimately responsible, and I acknowledged that in my apology to the parents, which I have made already. I do not shy away from my responsibility in the least.

 

Runaway train, never going back

The British Association of Social Workers, BASW, commissioned an independent report to look at adoption. The report has just been published.

There’s a summary piece at the Guardian about it

https://www.theguardian.com/society/2018/jan/18/adoption-has-become-runaway-train-social-workers-cannot-stop

In summary of the summary, concerns about a lack of ethics and human rights approach, concerns that adoption has been politically pushed and dominates thinking, concerns about lack of support for families and adopters, concerns that there’s rigidity in thinking about contact (and the report compares the English approach of an assumption of no direct contact with Northern Ireland where the assumption is that there should be direct contact four to six times per year) and critically that there’s not enough attention being paid to poverty (and austerity) being the driving force behind children being removed from families.

The impact of austerity was raised by all respondents to different extents but was a particular
concern for social workers. Cuts to family support and social work services were a recurring
theme, with the decreasing availability of early help highlighted. Very costly resources are being
used in care proceedings. As a result, less is available for earlier interventions that could support
children to stay at home safely.
Most respondents wanted a better balance between support and assessment, with families
currently too often subject to repeated assessments rather than actually helped. A number felt
social work had become increasingly risk averse and fearful of blame, with the high rates of care
applications one key example given of the impact this has on practice.
A lack of resources once children had come into care or been adopted was similarly seen as
impacting on the effectiveness of services. There were many observations about decision-making
being impacted by the lack of resources and examples given of the results, such as siblings not
being placed together.

Having read the report, I think the summary is a fair one – the report does raise all of those issues. The report is careful to say that just as treating adoption as a perfect solution for all families is not realistic or helpful, demonising all social workers is not realistic or helpful either. Adoption is the right outcome for some children, and some adoptive families thrive and prosper. But there needs to be a genuine debate about whether it is being sought too frequently.

The report is here
http://cdn.basw.co.uk/upload/basw_55841-1.pdf

I’m not going to attempt to critique it or deconstruct it – it’s a long and thoughtful piece, taking on board views of a wide variety of people involved in the process, notably hearing from both birth parents and adoptive parents who had very similar viewpoints on some issues. I have had the opportunity to read it twice, but I honestly feel I want more time with it and to reflect on it. So I don’t know whether I agree with it all, but it says things that I genuinely think needed to be said and need to be discussed and thought about. And I wanted to alert people to its existence and hopefully get people to read it and have those conversations.

Nothing in family justice ever exists in a vacuum though – for every person who reads the report and agrees with it, there will be ten who think it doesn’t go far enough and that adoption should be burned to the ground, and ten who think it is ridiculously anti-adoption and goes far too far. That polarisation about adoption is, itself, part of the problem. The stakes are so high, the emotional devastation caused to those on the wrong side of adoption so great, the political capital invested in it, that it is hard to have the conversations that need to be had.

A particular issue that comes up within the report is the self-labelling by the social work system of social workers being ‘the social worker for the child’ rather than a social worker for the family.

The definition of the social worker role as being ‘the social worker for the child’ was a source of
concern, as it often led to a lack of support for birth parents:
‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)

A lot of the respondents talked about the importance of the relationship that existed between the social worker and the family – and how the quality of that relationship can transform cases (for good or ill)

Repeatedly, across the range of family members, the importance of the relationship that was
developed with a social worker was stressed.
Birth family members gave accounts of both poor and good relationships. They related experiences of feeling deceived by social workers who they considered had not been honest with them. They described not understanding or being helped to understand why their child(ren) were
permanently removed; being unfairly judged/ labelled (‘the report said I was ‘hostile’ so he could not stay, but I was not hostile – I am ‘loud’’ – birth grandmother from a traveller background); and
generally being treated in what they perceived were inhumane ways.
Birth family members emphasised the importance of social workers listening to their views, being
respectful and honest, recognising strengths and displaying acts of kindness. It was considered
that the nature of the relationship could influence what happened with the child. Examples were
given of differing outcomes for children in the same family (i.e. adoption or remaining with the
parents) and these were, at least in part, attributed to the quality of the relationship with the
individual social worker. It was considered vital that social workers have the time to get to know
and work with the family in non-judgmental ways.

Many of the responses from adoptive parents repeated the themes found in the birth parents’
accounts. The relationship between the social worker and adoptive parents was considered to be
key, with the importance of professional but caring social workers highlighted. Adoptive parents
and adopted people also spoke about the importance of good communication, honesty, being
listened to and treated as an individual human being.

The use and misuse of power was a key issue

Families stressed that social workers have a great deal of power in relation to assessment, the
provision of help and decision-making. There were many examples given by birth families,
adoptive parents and adopted people of how they had experienced the exercise of social workers’
power, both positive and negative.
Birth family members repeatedly mentioned the lack of attention by social workers to the social
contexts in which they lived. A number of respondents reported that housing, or the lack of it,
was used as evidence against them in assessments.
The importance of practical support was stressed; ‘a washing machine for example would have made a big difference’ (birth parent). One birth mother spoke of the lack of adequate interpreting facilities in her contact with social workers and legal professionals. Other birth family members also felt discriminated against because of their cultural practices (e.g. a traveller background) or for being working class or having a lack of secure immigration status.
There were many examples provided by birth parents of feeling powerless in a climate that was
seen as very risk averse. Risk of future emotional harm was described as being frequently used,
and was seen as a particularly unjust basis for permanent separation. Birth mothers reported high
levels of domestic abuse and suggested they were being punished for having a violent partner
and/or having experienced domestic abuse in childhood.
Fear of an unsympathetic and punitive response was seen as inhibiting families from asking for
help when it was needed. Parents with mental and physical health problems and learning
difficulties all reported concerns about asking for help because of the emphasis on risk. They
reported receiving an assessment rather than support and feeling they were being scrutinised
rather than helped.
Being judged and stigmatised simply for having a history of care and/or abuse was an issue. Care
proceedings, involving newborn babies, were identified as being particularly traumatic, with a
lack of attention, in particular, to the impact of having just given birth on the mother. Residential
settings were described as being too often focused on monitoring risk rather than providing help
or therapeutic support. Women with disabilities highlighted the disabling environments in which
assessments were carried out.


The report concludes with recommendations (I suggest reading them in detail, but I’ll just put the bullet points here, for reasons of space)

Recommendation 1: The use of adoption needs to be located and discussed in the context
of wider social policies relating to poverty and inequality
Recommendation 2: UK governments should collect and publish data on the economic
and social circumstances of families affected by adoption
Recommendation 3: The current model of adoption should be reviewed, and the
potential for a more open approach considered
Recommendation 4: There needs to be further debate about the status of adoption and
its relationship to other permanence options.
Recommendation 5: BASW should develop further work on the role of the social worker
in adoption and the human rights and ethics involved

I saw the best minds of my generation utterly baffled by nothing else will do – developments

It has been fourteen months since we last had a perplexing piece of adoption case law which scrambled the brains – which in the context of what’s been going on in adoption law since 2013 represents an almost One Hundred Years of Solitude rest from mind-f**kery.

In the words of Ser Arthur Dayne, the Sword of the Morning “now it begins”

(we are not going to hear from young Ned Stark yet, saying “no, now it ends” – we may never hear that)

Clearly everything from Re B onwards is the fault of Bran Stark and his Three Eyed Raven powers. Great job, Bran.


Re B (A child) (Care Proceedings) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/20.html

I will stress at the outset that nothing in this case says “A Court should ALWAYS do this”, it says instead that the Court, if they give good reasons for it and a careful judgment “CAN do this”

Basically, little girl B, born in spring 2016. She has a biological brother, H who was born in 2015 and adopted in 2016. Birth parents ruled out in care proceedings on B. H’s adopters wanted to adopt B.

There were family members, paternal cousins I and R, who were a realistic and viable option to care for B.

I’ll make it clear that the judgment we have gives us ABSOLUTELY NO INFORMATION about why the parents were considered not suitable to care for B or why H was adopted. We don’t have any information that would allow us to even speculate about that. Mother and father were both represented, and they were both at the appeal supporting a placement with I and R, rather than seeking to care themselves for B.

The Court at first instance was grappling with the competing arguments

(a) It is better for B to grow up with her full biological sibling for life, even if that means adoption OR
(b) It is better for B to grow up within her biological extended family, even if that means not growing up with her sibling

The prospective adopters sought to be made parties to the proceedings, but that was refused. The Courts have given guidance on this, notably in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2017] 1 FLR 330
http://www.bailii.org/ew/cases/EWCA/Civ/2015/983.html

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”
7.I went on to recognise (Re T, para 51) that there might be “an exceptional case justifying [a] departure from the general approach”, echoing in this respect what Wilson LJ had said in Re A, para 35:

“To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”

In effect, the Court isn’t carrying out a beauty contest between what prospective adopters can offer and what the alternatives are – the Court has to look at the issue of whether adoption is necessary without considering the particular merits that adopters bring to bear.

In this case, however, making it different to Re T, the prospective adopters were caring for a biological sibling H. So the issue wasn’t about what the qualities of the ADOPTERS were, but what the benefits to B might be of growing up with a sibling.

The relevant parts of the welfare checklist from the Adoption and Children Act 2002 are set out below

11.Those sections provide as follows:

“The court … must have regard to the following matters (among others) –

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

So the Court HAS to consider all of the family relationships that might continue for B and the value of them doing so – the parents, I and R AND H.

The Local Authority and the Guardian both urged the Court to consider that the benefits for B of growing up with a full sibling were considerable and tipped the balance towards this being a plan of adoption.

The Judge recognised the last seismic adoption authority, Re W

12.The judge next embarked upon a careful analysis of the evidence (judgment, paras 28-35). It requires to be read in full, but for present purposes I can concentrate on the evidence of the children’s guardian, which the judge described (para 34) as “very thoughtful”. She continued (paras 34-35):

“34 … She said that placement with [R] and [I] is a realistic option, they are an open and generous couple, but her professional judgment is that the advantages for [B] of a full sibling relationship outweigh the advantages of a placement with [R] and [I].

35 She was careful to point out that her recommendation did not turn on an assessment of [I] and [R], but the weight to be attached to the two competing factors set out in Sections 1(4)(c) and (f) of the 2002 Act. She had balanced on the one hand the effect of [B] having ceased to be a member of her original birth family mitigated in this case by the big plus of a lifelong relationship with her full sibling and closest relative and, on the other hand, the relationships she has with her relatives, the likelihood of those relationships continuing and the value to the child in them doing so. If [H] had not already been placed for adoption in a placement willing to take [B], the Guardian would support a placement with [I] and [R]. It would have been under a Care Order because currently the placement is untested. That would result in a period of uncertainty for [B]. Taking into account the research on the importance of the sibling bond and all the circumstances of this case she attached more weight to the sibling relationship, which led her to conclude that adoption was necessary.”
13.The judge thus correctly recognised (paras 26, 34) that a family placement with I and R was a viable and realistic option. In that context, it is important to appreciate the point made by McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793, paras 70-71:

“70 With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.

71 The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. 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.”

(The Court of Appeal judgment doesn’t get into the ‘fulcrum’ metaphor which permeated Re W, in particular where the balance falls in a case BEFORE placement order is made and child placed – remember that in Re W, the child by that stage had been placed with prospective adopters.
https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/ )

The trial Judge decided that it was in B’s interests to make the Care Order and Placement Order, so that B could grow up with H.

15.The judge then set out (paras 56-62) her analysis of the “pros and cons of an adoptive placement.” She began with this (paras 56-57):


“56 One advantage of adoption is that [B] will be brought up with her nearest relative, a full sibling. This would mean that she would never be alone, she would have the shared experiences of being brought up in the same household, which will promote identity and self-esteem. The research which I have been referred to suggests that the sibling relationship is emotionally powerful and critically important, not only in childhood but over the course of a lifetime. People spend more time with their siblings than anyone else. Growing up with a sibling enables one to learn social skills, sharing and managing conflict and negotiating. The relationship can provide a significant source of continuity throughout a child’s lifetime and is likely to be the longest relationship most people experience.

57 For children going into care it is generally accepted that siblings should be placed together unless it is contrary to an individual child’s welfare needs. A shared history and experiences help self-identity and self-esteem because siblings provide support and companionship. An adoptive placement with her brother would mitigate against the loss of the relationship with her parents. This would be a lifelong relationship with her brother which would be promoted. The impact of becoming an adopted person, with the severance of legal and emotional ties with her parents and family, would also be mitigated by the shared experience of being with her brother.”
16.As against that (para 61):

“The disadvantages of an adoption placement include severance of the links with the biological family. This can mean a real sense of loss, particularly to children when they get older and realise that they have not brought up within their biological family. It can also have a negative impact on their sense of identity and belonging. It will result in a loss of [B]’s relationship with her parents because there would be no direct contact with them. There would be a probable loss of contact with the extended family because it is unlikely that [B] will have contact with her half-siblings or with [I] and [R] and their family.”
17.The judge concluded with a section (paras 63-69) headed “Decision.” She began (paras 63-64):

“63 In the final analysis the court must decide whether the advantages associated with the sibling relationship outweigh the relationship with other family members: the parents, half-siblings, [I] and the wider family. This is the balancing exercise between the factors set out in Sections 1(4)(c) and (f) of the 2002 Act. I have already set out the benefits of the sibling relationship. Although there is no existing relationship between the siblings once the children are living in the same household one is likely to develop rapidly, given their closeness in age. I acknowledge the argument that to prioritise the relationship with a brother will be at the expense of all other family relationships. They do not have an existing relationship which can currently be given weight to, but rather the potential for a unique relationship lasting throughout their lives which the Guardian and social worker say should be prioritised.

64 The reality and quality of a continuing relationship with other family members is very relevant here therefore. As I have identified already, the relationship with her parents is likely to be very limited. [Her father] is likely to be in [Africa], so contact will be indirect with possible occasional visits to [Africa] … Contact with the mother is likely to be either non-existent or problematic and potentially disruptive and unsettling. [B] has no existing relationship with her half-siblings, but only the potential for one. That is likely to be very limited. Those children are all quite a bit older than her and may or may not develop a bond.”
18.She continued (paras 66-67):

“66 When considering [B]’s welfare throughout her life the scales tip in favour of prioritising the relationship with her brother for all the positive advantages that will bring her set out above. What makes this case particularly difficult and finely balanced is the cultural dimension. However, a close examination of what benefits [B] would actually derive from a placement with [I] and [R] reveals that [and she then set out various matters which I do not propose to repeat as they might lead to the identification of the family. She went on:] The practicalities and financial cost of frequent visits to [Africa] may prove problematic.

67 Whilst a placement with [H] does not provide the cultural match which a placement with [I] could offer, the adopters have some cultural similarities and living with her brother would boost her identity because of growing up with her closest relative. His heritage and identity and early childhood experience of a foster placement at birth and then one stable placement afterwards, exactly mirrors her own. All this has led me to conclude that this is the over-riding requirement pertaining to [B]’s best interests throughout her life. Having reached that conclusion, I am satisfied that an adoption order is necessary to meet [B]’s needs and proportionate in all the circumstances of the case.”
19.The judge concluded as follows (paras 68-69):

“68 Whilst this is more interventionist than a placement with [I] and [R], it has the benefit of permanency now. There will be no further delay. It will avoid the testing out of a placement with [I] and [R] and reduce the risks and uncertainties for [B] all of which adds weight to the decision that I have come to.

The father and I and R appealed – understandably on the basis that the Court had not squared the case with the “nothing else will do” principle – but rather had decided that Placement Order was the better of two choices.

The Court of Appeal, lead judgment by the President, praised the careful and analytical approach of the trial Judge and upheld the decision. It was permissible for a Judge to give more weight to the option of B being placed with a sibling than B being placed within the family (even where there was a viable and realistic alternative family placement)

23.The central core of the father’s complaint relates to the judge’s application – in his counsel’s submissions, her misapplication – of the principles in Re T, the essence of the complaint being that the judge had, in conflict with those principles, treated the matter as a competition between the adopters and the kinship carers and, illegitimately, been drawn into an inquiry as to which would be the ‘better’ placement. As the passages from her judgment (judgment, paras 20, 21 and 25) which I have set out demonstrate, that is not what the judge said she was doing or what she thought she was doing. Nor, in my judgment, is that what she was in fact doing. On the contrary, she was carefully, conscientiously and, in my judgment, correctly applying the learning in Re T.

24.How else was the judge to proceed? She was confronted with the fact – the reality – that B’s only full sibling, H, a sibling close to her in age, had been adopted and that H’s adoptive parents were willing to adopt B. That was not something the judge could ignore, as it were put out of her mind, if she was to comply with her statutory duty under section 1(4) and in particular section 1(4)(f) of the 2002 Act. And in having regard to that objective, factual, reality, the judge was doing nothing inconsistent with the learning in Re T and the earlier authorities to which I have referred.

25.As Mr Tyler and Ms James pointedly observe, there is nothing in Re T to say that the court can ignore a crucial factor which is necessarily concomitant with a particular placement. The presence of H in B’s life must fall in the credit side of the balance sheet in relation to placement with H’s adopters, just as the loss of H must fall in the debit side in relation to the kinship placement; to ignore this would, they say, be a nonsense. I agree.

26.Complaint is also made, in particular by Ms Fottrell and Ms MacLynn, that the judge never grappled with the question of whether adoption per se was required for B and, in consequence, that she truncated the adoption process and, in effect, approached the case as if she was deciding an adoption application and on the assumption that, immediately following the making of the placement order, B would be placed for adoption by H’s adoptive parents. I do not agree. The judge was well aware that she was considering only the making (if appropriate) of care and placement orders as a prelude to the entirely separate adoption proceedings which, if she made those orders, would no doubt follow in due course. And, in circumstances where the fact and reality was that H had been adopted by those who were offering a similar placement for B, the distinction between adoption per se and adoption by H’s adoptive parents is more apparent than real.

27.The father complains that the process adopted by the judge meant that she ended up weighing the ‘known’ uncertainties in respect of the proposed kinship carers against the certainties of the adoptive placement. That, it is said, was an unfair half-way house; the judge, on this approach, should have embarked upon a full welfare evaluation and comparison of each prospective placement. I do not agree. The judge knew all that she needed to know about the possible placement with H’s adoptive parents to be able properly to carry out, and in a manner compatible with Re T, the task she was embarked upon. Indeed, to go further into that aspect of the matter than she did would have risked offending against the principle in Re T.

28.In relation to the other grounds of appeal I can be quite brief. The father complains that the judge erred in prioritising B’s relationship with H over her relationships with her wider family, in placing too much emphasis on the sibling relationship, and in attaching too little weight to ‘nothing else will do’. I do not agree. The judge did not prioritise either of these placements – both, it is to be noted, family placements – over the other. She treated each as being viable and realistic and carefully evaluated the competing evidence and arguments before coming to her conclusion. The fact that her conclusion favoured X rather than Y does not mean that the judge was prioritising X over Y. Her conclusion that, in all the circumstances, B’s future relationship with H throughout their lives tipped the balance and was determinative of the outcome, was, in my judgment, securely founded in the evidence the judge had heard and, as I have already said, was plainly open to her.

29.I can take the two remaining grounds – that the judge placed too much weight on the ‘untested’ nature of the placement with I and R while failing to acknowledge that the placement with H’s adopters was equally untested; and that she was too focused on avoiding the potential delay and failed to balance the purpose of such delay to B’s best interests – together. The judge, in my judgment, was entitled to have regard to these factors, and it was for her to determine how much weight to attach to them. In fact, as we have seen, she did not attribute determinative weight to other of them. As her judgment makes clear (judgment, para 68) their impact was merely to “add … weight to the decision that I have come to.”

This is a very difficult one. I have no doubt that prior to 2013, the decision to place B with her sibling (having ruled out her parents for reasons that we don’t know about) would have been an arguably correct decision both on the facts and the law. I don’t see how it does square with Re B.

Let’s remind ourselves what the test for making a Placement Order is, as set down by the Supreme Court

“only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

But also the apparent dilution of that by the Court of Appeal in Re W 2016 that welfare analysis and evaluation is actually the be-all and end-all

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons

I think that it is POSSIBLE for a Court to decide that, for B, her overriding requirement is to be placed with her sibling, and no other placement option is able to deliver that and therefore that nothing else but adoption will do. But neither the Trial Judge nor the Court of Appeal actually spell that out.

The case reads like a straight welfare shootout (a well-considered and thoughtful shootout, but one nonetheless which doesn’t really engage with the spirit or the letter of Re B)
And of course, there’s a counter argument to that. If the Courts are saying that placement with a sibling is such a powerful factor that it can override other factors, then what happens with all those cases where the LA care plan is to split a sibling group and the only way they can stay together is to be with a parent – even where the quality of care would fall below ‘good enough’

If having the sibling relationship endure is a reason to discount ‘viable and realistic’ family members on the one hand, then why is it not a reason for preferring a family placement to a placement in care where the family placement would keep them together?

OR, as happens frequently – one child is young enough to be adopted, but another is to be placed in foster care – and the parents understandably would want both children placed together. In those scenarios, unlike B and H, the sibling group will actually have met and have a relationship.

[These are all cases where the well-known authority of Sauce for Goose v Sauce4Ganda 1621 may be deployed]

(I’ll stress again that the Court of Appeal are not saying here that the sibling placement MUST triumph over family placement or that it MUST be given greater weight – they are saying that the Judge in this case was ABLE to decide this the way she did, because she had very carefully thought about the evidence and the law. Another Judge could decide the reverse in a similar set of facts, provided they very carefully think about the evidence and the law. It is NOT sibling rights beat family rights. It is NOT that. )

I think the treatment of ‘nothing else will do’ is a bit of a Jedi hand-wave here. We are getting closer and closer to the old state of play – which was ‘what decision is the best for the child’s welfare’ and farther away from what the Supreme Court were talking about with adoption and placement orders being a very high bar that the State have to meet.

In the meantime, expect any case where a sibling has previously been adopted to have urgent enquiries being prompted by the social worker or Guardian as to whether those adopters put themselves forward for this child. The Court CAN take account of it if there’s a definite commitment to do so (even though they might not be matched by Panel). What is the Court going to do if the adopters of the siblings say that they are ‘open to it’ or ‘thinking it over’? Can they give that any weight at all?

Put paid to what you say, and put your money where your mouth is

That’s a line from one of my favourite Wonder Stuff songs, “Unbearable”, where the chorus goes “I didn’t like you very much when I met you / I didn’t like you very much when I met you / I didn’t like you very much when I met you / and now I like you even less”

And now, in a crunching change of gears, here’s a case in which every Local Authority Court of Protection lawyer has either said, or is about to say, “You know what, I’ve always loved Charles J”

Y’all don’t need to read this one unless you do Court of Protection work OR if you just enjoy watching a High Court Judge smack a Secretary of State upside the head, in a very respectful way of course.

Basically, as a result of the Supreme Court decision in Cheshire West (which I think was legally correct), there was an explosion in the number of Court cases coming before the Court of Protection to get legal authorisation for deprivation of liberty for P, which before Cheshire West were just being dealt with on the basis of ‘this isn’t really a detention, because that’s just what we do with people like P’.

That explosion in the number of cases was never accompanied by an explosion of additional resources, and the first major pressure point was the Official Solicitor, who had been able to give a voice for P in cases when there were about a hundred a year, but not in the thousands that were now coming at them. So a scheme was devised where the non-contentious authorisations could be done without P being represented – but then the Court of Appeal didn’t like that.

40.I repeat that I acknowledge that the decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. This goes well beyond the resource implications of cases of the type before me. But, as appears below, they have significant resource implications.

If you haven’t read a newspaper since 2008, we don’t actually have a spare £2 billion a year sloshing around just waiting for someone to come and make good use of it. Whatever magic money trees can be shaken, their branches are now bare.

So in Re JM, Charles J posed the question directly to the MOJ and DoH – what’s your solution for having P represented? And where is the funding coming from? And he stayed some test cases to get an answer to that.

In Re KT, Charles J examines the answers given by the MOJ and DoH and finds them wanting.

Re KT (and Others) 2018

http://www.bailii.org/ew/cases/EWCOP/2018/1.html

2.In JM, I concluded that applications made for welfare orders to authorise a deprivation of their liberty on the basis that they are not contentious should be stayed when no family member or friend is available for appointment as P’s Rule 3A representative. I also concluded that the Crown should be joined as a Respondent. This was because I concluded that central government, and in particular the Ministry of Justice (the MoJ), is primarily responsible for providing the resources needed to enable the Court of Protection (the COP) to adopt an Article 5 compliant and fair procedure. Also, that joinder enabled the MoJ (and the Department of Health – the DoH) to “put their money where their mouth was” by identifying professionals ready willing and able to act as Rule 3A representatives in the stayed cases and thereby establish the solution they had maintained local authority (and other) applicants could provide, but I had concluded was not practically available.

3.The number of stayed cases has grown steadily. There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P’s Rule 3A representative.

4.The JM judgment is dated 10 March 2016. Over a year later, in letters sent in late March and early April 2017 to applicants in stayed cases the Government Legal Department (the GLD) indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP.

5.Such letters prompted the applications in these four test cases to lift the stays imposed on the basis that a visitor was to report.

These bits are helpful to the LA, and arrive from documents filed by the Secretary of State early on in the proceedings

87 The answer in the note provided by Counsel for the Secretary of State at the beginning of that hearing was as follows (with my emphasis):

22. [The deponent] referred to the local authorities existing statutory duties in paragraph 4 of his second witness statement. This was a reference to local authorities’ statutory duties in respect of DoLs generally under the Mental Capacity Act 2005. For the avoidance of doubt, it is not suggested that there is any specific statutory obligation that requires a local authority to arrange or fund the appointment of rule 3A representatives.

23. The Department’s position is that rule 3A representation is one of the potential methods for the Court to consider, so as to ensure that the process meets the Article 5 minimum requirements in a particular case, but the Department does not seek to impose any new obligation on local authorities or any other bodies.

24. The Department does not say that the obligation to provide the resources to meet the minimal procedural requirements necessarily falls on local authorities. But that local authorities are public authorities who have responsibility for compliance with Article 5, in the same way as other public authorities have such responsibility. Which public authority is required to take steps to comply with Article 5 will depend on the facts of each case. For example, a local authority would not be obliged to provide resources if the Article 5 minimum procedural requirements were met by the appointment of a family member or friend as a rule 3A representative.

25. For the avoidance of doubt, it is not asserted that the local authorities responsible for funding the appointment of any litigation friend.

If you are thinking to yourself, that sounds good, then hello and welcome to the blog, dear first-time reader.

If you are instead thinking to yourself, I bet having given those assurances very clearly and cogently I bet the Secretary of State later filed documents completely and utterly resiling from that reasonable and proper concession and probably did so at the last possible minute and tried to sneak it in under the radar, then hello darkness my old friend, I’ve come to talk with you again. OF COURSE, that’s what the Secretary of State did, because that’s exactly what they always do.

If you are in Court with any Secretary of State and they offer in a document a perfectly sensible and appropriate concession that would spare everyone huge time and effort litigating a position that they would lose ultimately if they decided to fight it, don’t believe it unless the Minister is actually prepared to have the words tattooed on their face for all to see. And probably not even then.

[I’m reminded of Hoftstadter’s Politicians Syllogism – (a) Politicians lie (b) Cast Iron sinks therefore (c) Politicians lie in cast iron sinks]

14.The volte face is that for the first time, the Secretary of State asserts that local authority applicants owe a duty under section 6 of the Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary”. In the very last sentence it is then asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council”. This is a radical departure from the position taken by the Secretary of State in JM in connection with the New Burdens Doctrine (see paragraph 93 of JM cited above).

Charles J didn’t like that much, and ruled that EVEN if the Secretary of State was right (and he may not be), then the buck ultimately stops with the Secretary of State to provide FUNDING for LA’s in order that they can do that. Yay!

17.I agree with the submission made by counsel for the applicant authorities in his further submissions dated 27 October 2017 (the last of the exchanged evidence and submissions) that the introduction of an argument that the local authority applicants owe a HRA s. 6 duty, to circumvent:

i) the previously agreed position that they owed no such statutory duty, and

ii) the flaws in the earlier evidence and argument of the Secretary of State in these cases,

is potentially significant and would warrant oral argument if it is to be relied on as the basis for any part of my decision.
18.My preliminary view is that this new argument of the Secretary of State is wrong and runs counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.

19.However, I have concluded that it is not necessary for me to hear oral argument on whether local authority (and other) applicants owe any such duty because on the assumption (contrary to my provisional view) that they do then:

i) the Secretary of State for Justice remains the Minister responsible for the administration and resourcing of the COP and so the Minister with the statutory duty to take the necessary steps to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure,

ii) this statutory duty is not based on the HRA, rather is central to one of his functions, and so much more akin to the duties imposed on local authorities under the DoLS,

iii) as accepted in JM, he or the MoJ would inevitably be a defendant to any action for breach of Convention rights founded on a failure by the
COP to adopt an Article 5 compliant procedure even if applicants also owe an Article 6 duty as now asserted by the Secretary of State,

iv) this acceptance confirms the point that it is the Secretary of State who owes the relevant primary duty and so the COP can and should rely on him to take the necessary steps to ensure that the necessary resources to enable the COP to act lawfully, by applying a Convention compliant and fair procedure in the stayed cases, are provided by one or more public authorities in central or local government, and

v) if applicant authorities have an HRA duty it would be owed to individuals and not to the COP whereas in contrast, and as accepted in JM, the Secretary of State has a statutory duty to take steps to enable the COP to act lawfully as a public authority

That’s exactly the way to despatch the cheap shot from the Secretary of State – which was the equivalent in a game of tennis of the opponent saying “oh, hold on, can I just tie my shoelaces?” and responding “Sure, that’s fine” and THEN SERVING THE BALL anyway and trying to claim the point. (My friend Scott once broke his ankle during a tennis match and his opponent wandered over to peer down at him writhing in agony on the turf and just said quietly “I’m afraid that’s game, if you can’t continue”)

Conclusions on the evidence
45.The evidence in these cases shows that the budgetary battles referred to in JM continue. Naturally, I recognise that we live in times of austerity but, like the evidence in JM and NRA, this round of evidence makes depressing and annoying reading for anyone with any compassion and knowledge of the position of Ps, and their families and carers, who are in similar circumstances to those that exist in these test cases.

46.Sadly, the evidence and submissions put in and relied on by the Secretary of State are a continuation of the avoidant approach referred to in JM and they fail to properly address many of the issues raised in my directions.

47.The Secretary of State filed and relies on evidence from a civil servant employed at the MoJ as a policy manager with responsibility for the Mental Capacity Act. Much of her evidence is unconvincing. I do not seek to blame her for this because I recognise that all she is doing is reflecting the stance of the Secretary of State which I have concluded is driven by budgetary issues.

48.As in JM, the evidence filed by and the submissions of the applicant authorities is more helpful and constructive.

Stop all the clocks, cut off the telephone, prevent the dog from barking with a juicy bone. Yes, you read that correctly. A Judge just praised a Local Authority for helpful and constructive evidence. Let aeroplanes circle moaning overhead.

(You don’t often get Auden, Simon and Garfunkel and Miles Hunt in the same piece of legal writing. You’re welcome.)

The Secretary of State did not provide any information as to the volumes of people affected or the costs of any such scheme.

A startling omission from the evidence served by the Secretary of State is any estimate of the likely number of applications and reviews that will be or should be made of welfare orders to authorise a DoL of Ps who do not have a family member or friend who can act as their Rule 3A representative.

61.Such an estimate is obviously central to any sensible consideration of:

i) the number of professional Rule 3A representatives that would be needed to enable those or a significant number of those cases to proceed on the basis that they were appointed, and so whether or not this is a practical option,

ii) the number of those cases in which a visitor would need to be appointed for the same purpose, and

iii) how the COP will manage the stayed cases and others that are brought and need review, which involves a consideration of the judicial and administrative resources of the COP.
62.As appears below, any such estimate shows that the possibility that the existing backlog of stayed cases falls well short of the number of cases in which welfare orders should and would be sought if they could proceed cannot sensibly be ignored. And so, neither can a consideration of:

i) how significantly increased numbers of applications and reviews would be dealt with and funded, and so

ii) whether the potentially high total of fee income that these and other DoL applications would generate (and would be paid by applicant authorities) could or should be used to provide or assist in providing resources (judicial, administrative and through visitors) to enable the COP to adopt a Convention compliant and fair procedure.
63.The omission of any such estimate or consideration points to the conclusion, which I reach on the totality of the evidence, that the Secretary of State’s position is based on the following:

i) A failure to identify an evidential base for the existence of what the Secretary of State continues to assert to be the preferred and so available option to address the growing backlog of stayed cases (namely the appointment of a professional Rule 3A representative in a significant number of them).

ii) An approach focused on the existing backlog that excludes the need for reviews and the likelihood or possibility that the existence of a procedure that allows cases to proceed to an order will increase the number of applications made and reviews that are needed.

iii) A wish to end the practice of joining the Crown to cases of this type based on an assertion that the provision of unparticularised resources to provide visitors will be reviewed.
64. It is understandable that a commitment to an open-ended provision of resources to provide visitors cannot be given but:

i) the continued advancement of a solution that is not a practically available option, and in any event

ii) the advancement of a solution that contains no adequate assessment of the resources that are likely to be needed to enable the COP to deal with cases of this type other than in the short term,

coupled with the history of the approach taken by the Secretary of State, lead inexorably to the conclusion that it would be very unwise to proceed on the basis that as and when the present backlog, or part of it is cleared, and problems about the representation of P in new applications for or in reviews of welfare orders arise, that the Secretary of State will, through the promised review of the resources, address them promptly or constructively.
65.Rather, I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing “pass the parcel” approach to the problems which he has a statutory duty to resolve alone or through a constructive approach with the local and other public authority applicants.

Foolish, because the LA’s did…

66.In contrast, the local authorities do address the likely need for resources to provide visitors. They submit and I accept that:

i) The four individuals involved in these proceedings are among the estimated 53,000 people deprived of liberty outside hospitals and care homes which, the Law Commission calculates, would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.

ii) It is not known how many of the 53,000 people would fall within the non-contentious class of cases identified in JM. But it is known that the number of deprivation of liberty applications to the COP has risen from 109 in 2013 to 3,143 in 2016, and

iii) Between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications. And according to the Court’s order of 26 May 2017, approximately 230 cases were stayed pursuant to Re JM. (There are now about 330).

Charles J looked at the sticking plaster solution that the DoH/ MoJ were proposing

71.However, in my view, the possibility that the existing backlog falls significantly short of the number of applications and reviews that should and would be made if they could proceed cannot sensibly be ignored and so the approach of the Secretary of State which:

i) is expressed to provide resources to fund an additional 200 reports a year (and so 200 cases a year) taken with the ability of the existing visitors to clear a backlog of 230 cases (the figure mentioned in the evidence served by the Secretary of State, which has now increased), and

ii) does not include any contingency planning for (or even any recognition of) significantly more applications and reviews

falls well short of an approach that properly addresses the problems.
72.Accordingly, the present resources that the Secretary of State has indicated will be provided is based on an inadequate assessment and it is highly likely that those resources:

i) will at best only provide a short-term fix,

ii) will not to provide an ongoing resource that will enable the COP, to apply a fair and Convention compliant procedure in the applications and reviews that should and would be made and reviewed each year in cases such as those that have been stayed pursuant to JM, and so

iii) absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP
73.I repeat the warning that further judicial and administrative resources would be needed to enable the COP to deal with a significant increase in the number of such applications and reviews each year.

Charles J had to consider whether a professional independent Rule 3A representative would be better than a visitor doing their best. It isn’t a surprising analysis

81.In my view, the appointment of a professional who could act independently as a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor.

82.As I have said the Secretary of State does not address the issues referred to in paragraphs 57 and 77 above and paragraph 150 of JM and so has not provided any evidence to support an argument that such a resource is likely to be available as a preferred option in a significant number of cases.

83.Also, I have concluded that even if applicant local authorities owe an HRA duty:

i) the COP should look to the Secretary of State to provide the relevant resources to enable it to act lawfully, and

ii) the appointment of professional Rule 3A representatives is still an option that is not practically available in significant numbers of cases.
84.The points made in the last four paragraphs mean that if I had to choose an order of preference as between the appointment of a professional Rule 3A representative and a visitor I would select that advanced by the local authorities.

85.However, this does not mean that the COP in exercising its best interests jurisdiction should not be informed about the availability of a professional Rule 3A representative in each case so that it can assess whether that person (who by definition agrees to act) would be a better option, for example, because of his continuing connection with P and the reliance the COP can place on his independence and expertise. Indeed, the need for this information arises from my preliminary observation that a presumptive approach is inappropriate.

86.The Secretary of State sensibly accepts in his evidence that generally the COP can and should accept an assertion from an applicant authority that a professional Rule 3A representative is not available for appointment at face value. I say sensibly because as recognised in the evidence of the Secretary of State (in different terms) it would be folly for the COP to require evidence about and to investigate such availability and so turn what is presented as an uncontroversial application into one that has a dispute which the COP probably could not resolve without hearing oral evidence and does not have the investigatory resources to conduct without having evidence called and cross examined.

87.This approach of the Secretary of State, like the letter dated 18 April 2017 referred to in my directions, supports the conclusion that in practice such professionals are not available for appointment in a significant number of cases and so the view that the disagreement about the order of preference is based on a wish to keep the budgetary issues, and so what central and local government should provide, alive.

88.The result of the COP proceeding on the basis that it will generally accept an assertion by an applicant authority that a professional Rule 3A representative is not available at face value is that in most cases the COP will appoint a visitor for so long as that remains a practically available option.

So, IF you can have a professional Rule 3A representative, you should have one, if the LA says there isn’t one the Court should accept their word for it rather than carrying out a long, painstaking and expensive enquiry into that, and if there isn’t one, we’ll have to make do with the COP appointing a visitor to do it.

The way ahead
94.I suggest that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. It seems to me that in cases in which local authorities in reaction to invitations made in the standard letter, or as a result of updates (see the quotes in paragraphs 7 and 9 above), or otherwise have not sought to lift the stay an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. But I acknowledge that a different approach may be more convenient and enable the COP to clear the backlog more efficiently having regard to its available judicial and administrative resources and the availability of visitors.

As Charles J indicated earlier, even this is just a sticking-plaster solution – just to be in place until something is properly worked out


37.As appears below, I have concluded that the present offer of resource is not likely to provide anything but a short-term solution. However, in my view this prospect and so a return to the present and very unfortunate situation that the COP has to stay applications that should be determined because it cannot determine them lawfully does not mean that it should not utilise this resource and the lawful procedure it provides for as long as it is available in practice.