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

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

Re V (A child) 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why God, why? Why have you forsaken me?

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

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

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

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

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

a. This father had parental responsibility for V;

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

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

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

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

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

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

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

Don’t skate over them!