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Guardian and Child’s Solicitor get strong (and justified) bashing from High Court

This is a Keehan J decision in the High Court.

It is pretty rare for a Judge to criticise a Guardian, and I can’t recall a case before where a Child’s Solicitor was criticised in a judgment. This is full on judicial dissection. And in my humble opinion, utterly warranted.

The case involved a child who was 13 and had learning difficulties. There was also a sibling, Y. There were serious allegations of abuse made by the child against the father. Achieving Best Evidence interviews had been conducted.

Most of the case is very fact specific, so I won’t go into it, (and the hearing lasted 20 days, so there was a LOT of it) but the part that has wider application is what happened towards the end of the case.

The father, understandably, made an application for the child X to give evidence. The Court set down a Re W hearing to decide whether the child should or should not give evidence. The Court directed the Guardian to meet with the child and to provide a report to the Court as to her view as to whether the child should or should not give evidence.

What actually happened was that the Guardian allowed the child’s solicitor to take the lead during that visit and that rather than exploring the Re W issues, the child’s solicitor actually cross examined the child AT LENGTH about the detail of the disclosures, leading her, challenging her, contradicting her. (In fact it also appears that some of the disclosures made were fresh disclosures not previously made, so it was not only emotionally abusive to the child but contaminated the evidence, and neither the Guardian nor the solicitor made referrals to the social work team about the fresh allegations)
(I’ve used ‘disclosures’ here as a synonym for ‘allegations’ and have rightly been corrected. We should all use allegations for things that are yet to be proved, and disclosures afterwards. Fixxored in edit)

None of this should have happened. Reading the case it appears that the Guardian is the subject of internal disciplinary proceedings through CAFCASS and that there is to be a hearing to decide whether this case should be referred to the Solicitors Regulatory Authority. It will be a very difficult thing for either of them to come back from, professionally. Readers can make up their own mind how sympathetic they are about that.

Wolverhampton City Council v JA and another 2017

The Former Children’s Guardian and the Former Solicitor for the Children
172.On 30 August 2016 the then children’s guardian, AB, and the children’s solicitor, Ms Noel, visited X in her foster placement for the purpose of speaking with her, ostensibly to gain her wishes and feelings about giving evidence at this hearing.

173.During the course of this interview X is recorded as having made a number of disclosures relating to her having been sexually abused.

174.On 6 September 2016 AB and Ms Noel paid a similar visit to Y.

175.At an advocates’ meeting the disclosures made by X in her interview on 30 August were revealed. It became apparent that no referral in respect of those disclosures had been made to the local authority nor to the police. The advocates’ meeting was immediately terminated and an urgent directions hearing was sought before the then allocated judge.

I’ve done at least a thousand advocates meetings and they are universally very dull. This one, however, wasn’t. There must have been an utterly deathly silence as this information came to light.

176.The children’s guardian and the children’s solicitor were ordered to disclose their notes on both interviews with the children and to file and serve witness statements.

177.On 30 September 2016 the appointment of the children’s guardian and the children’s solicitor were terminated and a new guardian and solicitor were appointed for the children. I am, understandably, asked to make clear in this judgment that the current children’s guardian, the current children’s solicitor and counsel instructed by him at this hearing had no part and no involvement, whatsoever, in the events of 30 August or 6 September 2016.

So a whole new team was appointed to represent the child, and that new team were untainted by these failures.

178.The guardian and solicitor’s interview of Y on 6 September 2016 could be the subject of considerable criticism, however, for the purposes of this judgment I focus on the interview with X on 30 August where the most egregious errors occurred.

179.X was subjected to an almost two hour cross examination conducted principally, if not exclusively, by Ms Noel: I stop short of categorising it as an interrogation. I have never seen the like of it before and I hope never to see a repetition of it again. X was asked leading questions on innumerable occasion, she was contradicted repeatedly by Ms Noel and when X denied a particular treatment or abuse by her father the question was put again and again, effectively denying the child the opportunity of being heard.

180.A particularly egregious question was asked by Ms Noel when she asked ‘Did your dad ever push the sponge or his fingers inside your private?’ X replied ‘no I don’t think so but it was painful’. The question was repeated and the answer was the same save hurt replaced painful. Ms Noel then asked ‘did dad ever get into bed with you’. Answer no. Prior to this interview and prior to these questions X had never asserted that the father had inserted his fingers into her vagina nor that he got into bed with her.

When you have a High Court Judge driven to say “I have never seen the like of it before and I hope never to see a repetition of it again” things are really bad. This is painful to read.

181.Prior to this ‘interview’ X had not said that she had told her mother of the father’s alleged sexual abuse of her.

182.At the time of both X’s and Y’s interviews the children’s guardian and the children’s solicitor knew that there was an ongoing police investigation into these allegations of sexual abuse and ongoing enquiries by the local authority.

183.Both AB and Ms Noel accepted their respective contemporaneous notes of the two interviews were not a verbatim transcript of the interviews. As the lead questioner Ms Noel’s notes were more comprehensive than AB’s but neither recorded all questions asked nor all the answers given.

The impact on the Guardian of these failings was so pronounced that the Judge was actually very concerned about her well-being when giving evidence.

184.AB is a very experienced children’s guardian of longstanding. I was very concerned about her welfare and well being when she came to give evidence.

185.My order of 6 December 2016 was received by Cafcass. She was the subject of internal disciplinary procedures of which it is not necessary for the purposes of this judgment to say any more. She has since been reinstated.

186.The guardian had just returned from holiday. She knew the purpose of the visit was at my request to establish X’s views about giving evidence. She met Ms Noel outside the foster carer’s home and there was a limited discussion about how the interview should proceed. She told me, and I accept, she agreed Ms Noel should take the lead in asking questions as she had not been present at the last court hearing. It was she said, and I accept, the one and only time she had allowed a children’s solicitor to take the lead in asking questions of a child. She had not, at that time, viewed the children’s ABE interviews nor had Ms Noel.

187.When asked why she had not referred the disclosures made by X to the police, she said Ms Noel advised her that she needed to consult with counsel then instructed on behalf of the children.

188.AB conceded her note taking of the interview was not as thorough as it should have been. She readily acknowledged that she should have stopped the questioning as soon as disclosures had been made. She candidly told me that X wanted to talk and because AB believed the children had not been listened to she was open to let X, and then Y on 6 September, talk. She said she was uneasy at some of the questions the girls were asked by Ms Noel and now realised she should have stopped it.

189.It was immediately obvious from the moment AB stepped into the witness box that she was racked with guilt and remorse. Only a few minutes into her evidence she became distressed and I adjourned for a short period to enable her to compose herself. She readily acknowledged the grave and serious professional errors she had committed in allowing these interviews to progress as they did – most especially in respect of X – and for not terminating them at an early stage.

190.I accept the guardian’s errors and professional misjudgement in this case were grave and serious. Nevertheless I accept her regret and remorse at her actions and omission are entirely genuine and sincere.

It is obviously very dreadful that a children’s solicitor would cross-examine a child with learning difficulties about sexual abuse allegations for 2 hours – that’s made worse still when you realise that she had not even seen the ABE interviews – so effectively cross-examining without properly looking at the source material.

If you think things were bad for the Guardian, they are about to get very much worse

191.I only wish I could make the same observations in respect of Ms Noel: I regret I cannot.

192.Ms Noel has been a solicitor for 11 years. She has been on the Children’s Panel for 6 years but this was the first case of sexual abuse in which she had acted for the children. I do not understand why a solicitor so inexperienced in acting for children should have come to be appointed in as complex and serious case as this one.

193.I was moved to comment during the course of Ms Noel’s evidence that by her actions during the interview with X she had run a coach and horses through 20 years plus of child abuse inquiries and of the approach to interviewing children in cases of alleged sexual abuse. I see no reason, on reflection, to withdraw those comments.

194.At the conclusion of Ms Noel’s evidence, in very marked contrast to that of the former children’s guardian, I had no sense that Ms Noel had any real appreciation of what she had done or of the extremely serious professional errors she had committed. She appeared to be almost a naïve innocent who had little or no idea of what she had done.

That’s the stuff of anxiety nightmares, having that sort of thing said about you.

195.It is right that I set out with particularity her evidence, most especially to highlight those matters which cause me to make the foregoing observations.

196.Ms Noel told me that her visit to X was the first time she had met X.
She said that the language she used when asking questions of X and the length of the interview – some 2 hours – was “possibly” inappropriate for a child with learning difficulties. On repeated occasion Ms Noel had told X how brave she was being in answering the questions. On reflection, she said, such comments could have been seen by X as a clue as to what she was expected to say and to talk about. She said that ‘it may appear but was not my intention.’

197.Ms Noel had had no training in how to speak with children involved in court proceedings. She knew X had made disclosures to the police and to her foster carers. Why, therefore, she was asked did she embark on this lengthy questioning of X? She replied that at the time she wanted to clarify what X was saying. With the benefit of hindsight, she accepted she should not have done so and should have stopped asking questions. She said she did not know she had asked X directed or leading questions. When it was put to her that she was cross examining X, Ms Noel replied ‘I suppose so, yes’.

Now, perhaps it is an omission of Children Panel training that she did not have training in how to ask children questions, but as an ADVOCATE you really should know whether or not you are asking someone directed or leading questions – that’s a catastrophic failing to admit that you didn’t know whether you were or not. And note that this 2 hour cross-examination was the first time she had ever met the child.

198.She confirmed her notes were not a verbatim record and that she had not noted X’s demeanour during the course of the interview. She accepted she had probably got some questions and answers missing from her notes and in that sense her notes could be misleading.

199.Ms Noel asserted she had only seen the DVDs of the girls’ interviews after she had seen X on 30 August and Y on 6 September. She had not reported X’s disclosures to the local authority because counsel then instructed by her had advised her to wait until after counsel had met with her and the guardian in conference.

(The Judge doesn’t pass any comment as to whether counsel was right or wrong there. I might have my own view, but the Judge had all of the facts and was in a far better position to say so if there was fault)

200.Ms Noel accepted that in acting as she did she had badly let the children down. She accepted there was a risk of the children, especially X, being ‘set up’ to make fake allegations. She accepted there were not insignificant differences between her contemporaneous notes of her meetings with X and with Y and those set out in her statement which she had prepared and signed in December.

201.Ms Noel was specifically asked if she had approved and authorised the contents of a position statement provided to the court for hearing on 16 September 2016. She said she could not remember. When reminded that she had emailed the same to the court, she replied ‘I would have read it’. The position baldly states that in the interview with the guardian and the solicitor X had made disclosures of a sexual nature against her father and had made disclosures in relation to the state of knowledge of the mother and the maternal grandmother. At no point is any reference made to the circumstances in which X said these things, namely that she had been subjected to an intense and prolonged period of cross examination.

202.I am sorry to observe that Ms Noel’s many acknowledgments of error and of professional misjudgement were made, in my judgment, very begrudgingly.

203.In conclusion I find that in relation to interview undertaken with X on 30 August 2016:

a) she was inappropriately questioned by Ms Noel;

b) the interview lasted for a wholly excessive length of time;

c) the conduct of the interview took no account that X suffered from learning difficulties;

d) she was repeatedly asked leading questions;

e) frequently leading questions were repeated even after X had answered in the negative to the proposition implicit in the question;

f) there was absolutely no justification for embarking on this sustained questioning of X;

g) the exercise was wholly detrimental to X’s welfare and seriously imperilled a police investigation;

h) the conduct of the interview led to a real possibility that X would be led into making false allegations;

i) the conduct of the interview was wholly contrary to the intended purpose of the visit, namely to establish X’s wishes and feelings about giving evidence in this fact finding hearing; and

j) the record keeping of AB and Ms Noel was very poor. Not all questions and answers were recorded or accurately recorded. No reference is made to X’s demeanour during the interview or to any perceived change in her demeanour.

204.The breaches of good practice were so legion in the interview conducted with X that I have concluded that it would be unwise and unsafe for me to rely on any comments made by X
. I will have to consider later in this judgment the extent, if at all, to which this interview with X on 30 August tainted the subsequent ABE interview undertaken by the police with X on 30 September 2016.

205.One of the worst examples of these very poorly conducted interviews arose in Y’s interview on 6 September. She alleged for the very first time that she told her grandmother of the sexual abuse she had suffered. For the reasons I have given in relation to X’s interview, I pay no regard to this comment at all. To the extent that I find, if at all, that the grandmother knew about the sexual abuse of both girls, I shall rely on the other evidence before me.

206.The issues of whether I should name Ms Noel in this judgment and/or she should be referred to her professional disciplinary body is to be determined at separate hearing. None of the parties to these proceedings wish to be heard on these issues: the matter is left to the court. I will, however, hear submissions on behalf of Ms Noel at that hearing. At the hearing on 18 August I read and heard submissions from counsel on behalf of Ms Noel. I was asked to show compassion to Ms Noel and not name her in the judgment. A number of personal and professional reasons were advanced. I do not propose to set them out in this judgment. I took account of all those submissions but concluded that the public interest and the need for transparency overwhelmingly required me to name Ms Noel. Accordingly her name appears in the published version of this judgment.

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

24 responses

  1. Absolutely shocking. Were I Ms Noel’s manager she would be well down the disciplinary process by now. And at the end of it she’d be lucky to get a job in McDonalds.

  2. I am interested to know why, when an adult says someone has sexually assaulted/abused them it is termed an * allegation * (still to be proven). But when a child says an adult has sexually abused them, it is termed * disclosure * (automatically accepted as true from the outset) and this is most especially the case when the accused is a parent, yet it is most definitely always the case when the accused is a professional person or authority figure it is termed * allegation *. Exeedingly telling.

    It’s especially important to question this, because there are cases where children have lied about abuse, some children with learning difficulties which are particular autism subtypes such as PDA, because of their condition are prone to lying and shocking behaviour which is documented to be part of the profile. Bearing in mind the autism ignorance and tick-box working in the authorities this makes it very dangerous for falsely accused parents.

    Not saying I believe this parent was falsely accused or that the child lied, I have no idea, but these possibilities need bearing in mind and exploring in the absence of evidence.

    • Yes, Lucy Reed and I have written about this before. Allegations is the correct term. Disclosure carries a presumption of truth which is perjorative. You can say disclosure after admission, conviction or finding but shouldn’t say it before

      • Allegation/disclosure? Fact/Fiction? Most parents would prefer disclosure and fact, Not change the childs birth certified name to come up with False Allegation and fiction, further leading to completely unsurvivable injuries for an adult to survive, let alone a child, without medical intervention
        B (A Minor), Re (1997) EWCA Civ 2190 (25 July 1997)
        A child registered into a hospital to investigate (on family doctors orders) the many, many reported, development faults, from birth (Breech, starved of oxygen through cord wrapped around his neck) obviously covered up through out case by using a name of a child that has never existed?

      • The Appeal to the court of appeal was to change the false childs name to his birth certified name QC Focke instructions, this was refused, the false name stays, and the judges stated they would do us a favour, join the split case together NO further appeal to change the name to birth certified name, this part is not published on the BAILLE SITE? Neither is his adoption case, in which his name was changed to his birth certified name without any court permission?

      • My Grandsons appeal
        Google. Barely 8 weeks old,
        Impossible to survive, Not a bruise, Not a Mark, Not 1 week of his life without a child expert examining him, Not One of these experts allowed to be called or their written reports allowed as evidence?????

    • Given that ‘disclosure’ is a technical term in court proceedings, it is a pity children lawyers use it in this context at all. ‘Sharing’ (see eg ‘Working Together’) suggets that a breach of confidentiality may be round the corner. What about providing evidence (as in Achieving Best Evidence): this decides nothing at the stage it is provided by the child, as to its truthfulness or not.

      • I think the language comes from social work reports and seeps in,. But lawyers could and should do more to stamp it out. (I’m now dreading to check whether I stupidly did it in the opening of this post. I bet I did. It is pernicious

      • I have fixed it in a transparent edit and given an explanation.

      • Do we ever learn from past mistakes? The argument between “Disclosure” and “Allegations” in child abuse still prevails. I have heard many social workers ( I was one) use the word disclosure in hushed and reverential terms setting it apart from allegations and giving the term a specific purpose in child protection inquiries.

        Lets go back to 1988 to the Cleveland child sexual abuse scandal, and see what Elizabeth Butler Sloss had to say in her report

        In fact, the preference for the word ‘disclosure’ rather than the word ‘allegation’ implies that the task is to help the child to disclose things that have happened, without there being also a duty to test the truth. For this reason the Butler Sloss Report (1988) recommended we cease to use the word in this context. Even when it is accepted, as is often the case, that the child is basically telling the truth, there are problems about whether to accept everything the child says at face value, or (at the other extreme) to sift out the kernel of truth from possible confusions, misconceptions and exaggerations. Clearly, the balance will shift from case to case.

  3. Ouch – strong case for reviving W v Egdell [1989] EWCA Civ 13, [1990] Ch 359, [1990] 2 WLR 471 ( especially the judgment of Bingham LJ. Note to follow…

  4. Two forms of privilege may be in issue here as far as the children’s solicitor (SN) is concerned: legal professional privilege (LPP) and self-incrimination privilege. Of the latter: she may have been compelled to produce evidence to the court where she should have been warned of her rights not to (R v K (A) [2009] EWCA Crim 1640, [2010] QB 343, [2010] 1 FLR 807). That is between her and any future enquiry into her conduct. Plainly what she revealed to the court was very troubling; but should she have been required to do so? That raises questions of LPP (see Re E (A Child)(Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675, [2016] 4 WLR 105).

    It would be difficult to conceive of an interview like this – solicitors cannot be ‘part of the forensic process’ – which was not ‘in a legal context’ (per Taylor LJ (later Lord T) in Balabel v Air India [1988] Ch 317, CA); and which therefore was NOT covered by LPP. If it was so covered then (see eg R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513, cited by McFarlane LJ in Re E) the client’s absolute right to privilege applies.

    Because the client is highly vulnerable only heightens that client’s right to confidentiality, surely (Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224)? As the Derby Justices’ case and Re E shows, courts must be very wary of overriding privilege.

    SN shot herself in the foot by revealing what her clients had said to her. The children’s guardian was bound to do so (Working Together); but SN, in a case like this, needed express authority to release to other parties her clients ‘secrets’. Perhaps she had that authority; but this is not clear from the report of Keehan J’s judgement and no reference is made by the judge to any question of privilege – LPP or self-incrimination privilege.

    For further info see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 14 (LPP) and 18 (self-incrim privilege)

  5. Btw – on ‘disclosure’: worth noting MacDonald J’s comment on the term in AH v TH (also cited by Keehan J in the Wolves case: ‘[30] I have in this case heard extensive evidence from those professionals to whom the children made allegations and from those professionals who subsequently assessed the children and/or investigated those allegations (I pause to note that despite the fact that the use of the term “disclosure” to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term “disclosure” to describe what the children had said to them).’

    I’ll try to shut up now…

  6. ashamedtobebritish

    It’s striking that the solicitor was ‘named and shamed’ yet the guardian anonymised. Hmm

  7. No surprises there then since this sort of behaviour is routine for guadians and family court solicitors when children are interviewed re allégations of sexual abuse.Pressure is put on them to give the answers required by repeating the same (often leading) question again and again until the “right answer” is obtained.

  8. I have come across it often enough in cases like the Musas and that of Marie Black to know that it is commonplace

    • Forgive me if I don’t consider Marie Black to be a credible source

      • Marie herself is NOT the credible source . It was agreed by all parties at the trial that approx 268 alterations were made by a social worker to the records of the child interviews in order to delete the leading questions and also anything that might incriminate the fostercarers ! The social worker “did a runner” and nobody was prosecuted !


    A social worker made more than 250 alterations to the accounts of children making sexual abuse allegations against 10 people, a court has heard.

    Norwich Crown Court was told Malcolm Blissett changed a foster carer’s records over a two-year period.

    He had been told to remove any material that “incriminated carers”.

    Leia Dowsing, of Suffolk Police, said most changes were in fact to spelling, grammar and punctuation but documents should not have been altered.

    She told jurors words had also been changed, chunks of test were missing and questions to the children had been removed from the record.

    Entirely wrong’

    The court heard Mr Blissett had been told to ensure all reports were “grammatically correct with no spelling mistakes and there was nothing that incriminated the carers”.

    “That is what he told me,” said Miss Dowsing, who added that making such changes was “entirely wrong”.

    Ann Cotcher QC, defending one of the accused, Michael Rogers, said: “The majority of changes were not really relevant.

    “Some were punctuation, some were spelling; changes or restructuring of sentences; removal of words; addition of words, and there was removal of leading questions.”

    250 Alterations,”questions removed” “ensured that nothing incriminated the carers”,”removal of leading questions”

    Is that ehough for you Andrew??

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