The Independent recently reported that there had been more than 1,200 reported cases of FGM (Female Genital Mutilation) in 3 months. More than 2 per cent – about 24 cases, were on children.
I don’t think the caption under the photograph is correct – I think they could accurately say “no successful prosecution” because we already know about THIS
In the High Court, Holman J had to deal with an application to make 3 children wards of Court and for orders under the Female Genital Mutilation Act 2003.
Buckinghamshire County Council v MA and Another 2016
The parents are both Somali who were brought up in Somalia. The father travelled to Britain as a refugee in 2002 and has lived here ever since. The mother, as his wife, was enabled to join him here in 2005. She also has lived here ever since then. The parents have altogether seven children, of whom five are daughters and two are sons. Three of those children were born here in England after the mother arrived here in 2005. The eldest four were all born in Somalia.
It is a fact that the two eldest daughters have been subjected to female genital mutilation in Somalia. That must necessarily have been over ten years ago. The father says that it took place without his knowledge, let alone his consent, in the period after he had travelled to Britain, whilst the mother and the four eldest children were still living in Somalia.
That leaves three daughters who have not been subject to FGM, and of course everyone wants to ensure that this doesn’t happen. Given that it happened in Somalia to their two older sisters, there’s some sort of risk there.
If the family were intending to visit Somalia on holiday, that’s going to make professionals anxious. Of course one has to properly take into account that (a) The father says the FGM to his two eldest daughters took place without his knowledge or consent, and in fact whilst he was in England, (b) The family were living in Somalia at the time, where FGM does happen and is not viewed in anything like the same way that it is in the UK and (c) It was at least eleven years ago, and the family have been living in the UK since that time and have probably acquired a greater understanding of the cultural norms of the UK and why FGM is considered to be not only abusive but a criminal act.
Over the last several years the family have lived in the area of several different local authorities. There is clearly a history here of different local authorities at various times having acute concerns that the youngest three daughters might similarly become the victims of female genital mutilation. As a result, there were proceedings in 2012 and 2014 and again this year. It is said that the consequence of a rather last minute application by another local authority in 2014 was that the mother and children were unable at the last minute to travel on a planned holiday to Somalia. If that was the necessary and inevitable consequence, it is obviously a matter of the utmost regret; the more so as, before the actual booked date of travel, a judge sitting as a High Court Judge had given permission to go.
What gave rise to the current proceedings was that in early April 2016 Buckinghamshire County Council learned that the mother and two of the daughters, together with one of the sons, had travelled to Somalia without their prior knowledge, even though at that time there was quite considerable engagement between the family and that local authority. This resulted in a without notice order being made on 8th April 2016 and these proceedings ultimately coming before myself on notice here today.
Later in April the mother and children did duly return from Somalia. The two daughters who had been there were medically examined, and there was no evidence or indication of any genital mutilation or other interference with their genitalia. The result is that today Buckinghamshire County Council have proposed and sought that all the proceedings which they commenced last month should be dismissed or otherwise discontinued or brought to an end, and all current orders of a continuing nature discharged. I have been expressly told today by Ms. Mehvish Chaudhry, who appears on behalf of Buckinghamshire County Council, that in the opinion of Buckinghamshire County Council there is currently a low risk of any of the three youngest daughters being subjected to female genital mutilation.
So, what happens the next time the family want to go to Somalia? Are they stopped by Court orders, as happened in 2014? Or do they go without the knowledge of the Local Authority, as happened in 2016 (with no adverse consequences)?
Counsel for the parents was keen for the Court to deliver a judgment on what the future risk of FGM for this family was. Having travelled to Somalia with no incident, was it right for the prospect of Court applications every time they wanted to visit Somalia to see family to be hanging over them? Or conversely, given that two children in the family have been mutilated in Somalia, is it right that the three daughters should have that protection of only going to Somalia if a Court seized of all the facts felt it was safe for them to do so?
Mr Alistair Perkins, who appears on behalf of both parents today, has urged that there should nevertheless be a “fact finding” hearing at which the court should consider and give a suitably detailed and analytical judgment as to whether there is any future risk of any of these three daughters being subjected to female genital mutilation. He stresses that this is now the third set of proceedings in relation to this issue, and that the proceedings in 2014, in particular, had the undesirable consequence (it is claimed) that the planned travel of the mother and children to Somalia was aborted. He submits that unless there is a fully reasoned judgment after hearing oral evidence there is a risk that there will be yet further future sets of proceedings of this kind. Whilst I do have considerable sympathy with these parents and with that argument and submission of Mr Perkins, it seems to me that a so-called “fact finding” hearing cannot really achieve the finality from any future legal proceedings that Mr Perkins seeks.
The issue in this case does not relate essentially to past facts, but to future risk. The headline past facts can be very shortly stated. The two eldest daughters did undergo female genital mutilation in Somalia. The three youngest daughters have now travelled on one occasion to Somalia for a fortnight last month and have not ever been subjected to genital mutilation. It would, of course, be open to a court to hear at a little length from each parent about their attitudes to female genital mutilation and their future intentions. A court might indeed conclude, as the local authority already have done, that there is only “low risk” of future female genital mutilation. But it seems to me that no court could ever responsibly, on the facts and in the circumstances of this case, rule out altogether any risk of female genital mutilation. The inescapable fact is that, whilst in Somalia, two of the daughters in this family were genitally mutilated. So it does not seem to me that the parents could realistically ever achieve some fact finding judgment that rules out altogether any future risk of genital mutilation.
The inescapable fact is that if, on some future date, on some future facts, a local authority with a proper interest in these children (essentially the local authority for the area in which they are from time to time living) had concerns that one or more of these children was at risk of being genitally mutilated, it would be the duty of that local authority to take whatever action seemed to them to be appropriate. It seems to me, therefore, that the proposed future so-called fact finding hearing that Mr Perkins seeks could not achieve the finality or certainty that he and his clients aspire to; and it would, frankly, be a considerable further waste of court time and public money, all parties in these proceedings being publicly funded. For those reasons, I decline to give directions for a future so-called fact finding hearing.
However, as I have already stated, Buckinghamshire County Council, who have clearly displayed proper concern for the wellbeing of these children, are now currently satisfied that there is, at most, a low risk of any of these children being subjected to female genital mutilation. The trigger to the present applications and round of proceedings was, as I have already said, Buckinghamshire learning that two of these daughters had already travelled to Somalia with their mother.
The father himself has said in paragraph 29 of his recent statement in these proceedings that:
“I confirm to the court at this stage that I did not inform Buckinghamshire County Council of the trip as I did not think that I had to. There were no orders in place that required me to inform them of any planned holidays. Further, it had never been discussed during child protection meetings or child in need meetings in either Surrey or Buckinghamshire that they would have to be informed. At no stage did I try to keep the holiday secret from the local authority and if it had been made clear to me that they had to be informed of all trips abroad, I would have shared this information and avoided the need for this matter to come before the court once again.”
Pausing there, one can see from that paragraph that the father himself has said that if he had appreciated the importance of giving to the local authority due warning or notice of a proposed trip abroad, and in particular one to Somalia, then he would have told them in good time. As I understand it, having learned the hard way of the importance of keeping an involved and concerned local authority well aware in good time of a trip of this kind, the father will do so in the future.
The Judge concluded that it was not possible to tie the hands of either Buckinghamshire, or any future Local Authority deciding that the children were at risk of FGM, but did his best to put a clear scheme in place so that the parents would know what was expected of them
That being so, I am very content to record on the face of the order which I will make today:
(1) In the opinion of Buckinghamshire County Council, there is currently a low risk of any of the daughters being subjected to female genital mutilation; and
(2) On the evidence currently available to the court, I (the court) am not satisfied that the parents (whether separately or together) present or are likely to present a risk of female genital mutilation to the youngest three daughters during their minority, or that the parents will fail to prevent others from causing them to undergo female genital mutilation.
I couple that with stating (although it cannot be the subject of any undertaking or order since all proceedings are now coming to an end) that, before any of the children travel again to the continent of Africa, the parents should give to the local authority for the area in which they then reside not less than twelve clear weeks’ notice of the proposed trip, and permit a social worker or similar professional to discuss the risks of female genital mutilation with the parents at that time.
I am further very content to state on the face of the order that if, in the future, the relevant local authority (whose duty and discretion must remain unfettered) consider that there is a risk of female genital mutilation such that they must seek a legal remedy, they should do so without delay and as long as possible in advance of the proposed trip. The words “whose duty and discretion must remain unfettered” in that formulation are very important. I must, and do, make quite clear that if, at some future date, some local authority – whether Buckinghamshire County Council or any other local authority – do have a current concern that any of these children are at risk of female genital mutilation, they are under a very high duty to take whatever steps then appear to them to be necessary and appropriate to protect the child or children concerned.
Equally, it is obviously highly undesirable if there are late or last minute applications, particularly if made without notice, for orders shortly before a proposed trip or, as in this case, whilst a planned holiday is already under way and the children are already abroad. So there is a very clear tie in between the expectation, on the one hand, that the parents will be open and up front with any relevant local authority and give to them very good notice (i.e. not less than twelve clear weeks) of any proposed trip by any of the children to the continent of Africa; and, on the other hand, an expectation that if, having been given that notice, the local authority are sufficiently concerned, they really must bring legal proceedings very promptly and not leave it to the last minute.
I make clear that I simply cannot give a judgment in terms, or to the effect, that there is no risk of these children being genitally mutilated. As two of their older siblings already have been, it is impossible to exclude all future risk. But Buckinghamshire County Council, who have recently been very concerned about these children, have satisfied themselves that any risk now is a low one. I am not myself aware of any evidence or material to suggest that the risk, such as it is, is any higher than that which Buckinghamshire County Council have assessed it to be.
That seems to me a very sensible form of order for such cases, where there is not likely to be a risk of the FGM happening in this country (though it does happen, the procedure is much more likely to happen in an overseas country where the practice is culturally accepted and not illegal). It strikes a good balance of the risks being assessed and the family knowing in advance whether they are able to take the holiday. (Let’s not forget that telling people that they can’t take their children to their country of birth or to see relatives is a significant interference with their family life)
Again the President, again Miss Deidre Fottrell QC, again failure by an IVF clinic to get the paperwork right in an IVF process and meaning that the parents need to go to the High Court to get their legal status as parents sorted out.
And again, a hospital trust being pretty unsympathetic and feeble in how they picked up the pieces. (“Oh parents, there are some pieces. Mind how you go. No, we’re not picking them up.” Actually, that sarky summary seems to be an improvement on the bedside manner employed in this particular case, where a doctor rang them up to tell them that one of them was not the child’s legal parent, and didn’t offer them an appointment or even explain it in more detail in a letter. Cheers for that.)
Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y did not sign a Form WP. Both of them signed a Form IC, though it was not in precisely the same form as the Forms IC I have had to consider in previous cases. The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
I can take the matter quite shortly. The only material difference between the Form IC used in this case and the other Forms IC which I have previously had to consider, is that X’s declaration was in these terms:
“I am not married to [name] but I acknowledge that she and I are being treated together and that I will take appropriate action to become the legal father of any resulting child.”
Below this there was the following Note:
“NOTE: The centre is not required to obtain a partner’s acknowledgement in order to make the treatment lawful, but … it is advisable in the interests of establishing the legal parenthood of the child.”
Whatever might otherwise be the effect of the words “I will take appropriate action …” there is, on the facts of this case, no problem, because X subsequently signed the Form PP.
In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.
And here is what the President said about the emotional strain on the parents and the clinic’s approach
final matter
I have drawn attention in my previous judgments to the devastating impact on parents of being told by their clinic that something has gone ‘wrong’ in relation to the necessary consents (see In re A, para 69, Case G, para 31, and Case I, para 28). I commented (Case G, para 32) that these were situations calling for “empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology.” In both Case G and Case I, I was very critical of those clinic’s behaviour in this respect. Here again, unhappily, the clinic’s response fell far short of what was required.
In the present case, X and Y were similarly affected as had been the parents in other cases. X, who received the initial telephone call from the clinic, says he “cannot describe the shock I felt.” “It is impossible to describe what it feels like to be told so baldly over the telephone that the child you believed you were the legal parent of was not your legal child.” He was initially unable to contact Y. When she got home “I was beside myself; I was not crying but I was distracted, shaking and unable to function at all.” The impact on him was graphically illustrated by the fact that he was unable to remember either the name or the telephone number of the doctor who had telephoned him. Y remembers the “shocking state” X was in when she got home. In her statement, she voiced her anger that “a doctor should think it reasonable to ring someone up and give them such terrible news over the phone and then not back up the news with an offer of an appointment to discuss the issues in person, an offer of counselling and not to confirm the advice in writing.” By the time there was further communication, about a week later, X and Y had lost all confidence in the clinic and decided to seek their own legal advice.
The contrast with other events, before and after, is poignant and telling. X recalls how “I quite literally burst into tears when I found out [Y] was pregnant.” And the intense emotion, the enormous joy, the immense happiness with which X and Y reacted in court as I announced my decision was the most powerful and moving indication which it is possible to imagine of all they had had to go through.
Unhappily, they did not receive from the clinic the support they were entitled to look for. The clinic declined to meet X and Y, as they wished. The clinic was tardy in confirming, though eventually it did, its unqualified assurance that it would pay their reasonable costs. Even worse, and despite earlier correspondence in which they had sought disclosure, the solicitors X and Y instructed had to make an application to the court before the clinic finally disclosed the relevant records.
In F v M and the Herts and Essex Fertility Centre[2015] EWHC 3601 (Fam), Pauffley J was, as it seems to me with every justification, unsparingly critical of the behaviour of the clinic in that case after their mistakes had been discovered. Referring to guidance issued by the HFEA following the judgment of Cobb J in AB v CD and the Z Fertility Clinic[2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, Pauffley J observed (para 14):
“The underlying message was clear. Clinics should have been supporting and assisting parents. Theyhave an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern.”
I repeat what I said I have said previously (Case G, para 33), I agree with every word of that. Pauffley J went on to criticise in particular the tardiness of the clinic in that case in disclosing the relevant patient files to the parents.
What is required in all these cases, I emphasise, is immediate, full and frank disclosure by the clinic of all the relevant files as soon as they are requested by the parents. Legal professional privilege apart, which can hardly apply to the original medical files, there can be absolutely no justification for refusing such a request.
I have now had the experience of watching too many parents in these cases sitting in court, as they wait, daring to hope for a happy outcome. The strain on them is immense. If the process is delayed because of obstruction on the part of the clinic, that is shocking. The original administrative incompetence in these cases is bad enough; to have it aggravated by subsequent delay, prevarication or obstruction on the part of the clinic merely adds insult to injury. Ms Fottrell, on instructions, tells me that her clients were shocked and upset by the clinic’s conduct and experienced great distress and anguish in the weeks and months following the initial telephone call. I am not surprised. The only mitigation is that when the clinic came to file its evidence, the “person responsible” who made the statement adopted a more seemly and appropriate stance, expressing “sincere apologies” for the clinic’s error and for its effect on X and Y.
And hooray, this time there were consequences
The clinic must pay X and Y’s reasonable costs in full: both the costs of the solicitors they originally instructed and who obtained the order for disclosure of the documents, and the costs of the solicitors they subsequently instructed to bring their substantive claim to court.
Another one of the cases where due to failures in completing the paperwork with IVF treatment, one of the parents did not acquire the legal parental responsibility that they should have acquired, leading to painful and possibly expensive Court proceedings. The failure in this particular case, leading to the parents to have to make an application in the High Court and get Deidre Fottrell QC to represent them, is that the Clinic failed to make sure that the form when completed had shown a tick in the right box to indicate consent.
So, in this case, whilst a tick in a box may be quite continental, double-checking is a mum’s best friend. I’m here all week, try the chicken.
The President identified these problems first in
A and Others (Human Fertilisation and Embryology Act 2008) 2015
The individual cases have kept rumbling on, and the High Court has been rather scathing from time to time of the mess that the Hospital management / legal department have been handling things.
Following IVF treatment provided by a clinic at Guy’s and St Thomas’ NHS Foundation Trust, which is and was regulated by the HFEA, Y gave birth to their child. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that he is, in accordance with section 36 of the 2008 Act, the legal parent of the child. Y is wholeheartedly supportive of X’s application.
In this case, the failure was not a failure to use the right forms, or indeed to ensure that the parents had signed them, but here, that the parents had failed to put what the judgment calls a “v” (but I think must be a tick) in the right box.
The issue
Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y signed a Form WP. There is no problem with the Form PP. The problem arises because when Y signed the Form WP, which otherwise was properly completed, she omitted to place a v in the box in section 3 opposite the text “I consent to my partner (named in section two) being the legal parent of any child born from my treatment.” The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
I can take the matter quite shortly. This case is not unlike Case I where, as I said (para 21):
“a v was inserted in the wrong place and, as it were, against the wrong piece of text. It was, as [counsel] submits, a simple undetected clerical error. In the circumstances, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.”
That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a v in the relevant box. And it is plain what was meant. After all, Form WP is headed “Your consent to your partner being the legal parent.” What didY think she was doing when she completed and signed the Form WP, if not to give her “consent to [her] partner being the legal parent”? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is, as was the defect in Case I, a simple undetected clerical error. In the present case, as in Case I, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.
In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.
A final matter
On the same day as she signed the defective Form WP to which I have referred, Y, at the invitation of the clinic, also signed another Form WP to ‘correct’ an error which, she was told, had been made in the Form WP she had signed some years before in connection with earlier successful IVF treatment. The earlier Form WP had been wrongly dated. What ensued was quite remarkable, as the clinic committed itself to – blundered into – what, were these matters not so sensitive and grave, one might be tempted to call a comedy of errors. First, the suggested ‘error’ in the earlier Form WP was quite immaterial for, as I noted in In re A (para 78), “the precise date is not material; what is vital is that the form was signed … before the treatment.” Secondly, it is quite clear that a mistake in a Form WP (or for that matter a Form PP) cannot be corrected retrospectively after the treatment by the signing of a substitute form. Thirdly, precisely the same error (the omission of the v in the box in section 3) appears in each of the two Forms WP signed by Y on this occasion. Fourthly, one might have thought that the clinic, having, as it thought, detected an error in the earlier Form WP, would have been more than careful to ensure that each of the new Forms WP was correctly completed. Not a bit of it!
The lack of understanding of the critically important legal framework with which it had to comply, and its seemingly lackadaisical failure to ensure proper completion of the new Forms WP in the face of what it believed to be its previous error, cast a sadly revealing light on the managerial and administrative failings of a clinic which one really might have thought would have been able to do better.
Not for the first time I am left with the feeling that the medical staff in these clinics, who seem to have been given the responsible for ensuring that all the necessary medical and legal consent forms were properly completed, wholly failed to appreciate the critical need to ensure that the legal consent forms were properly, indeed meticulously, completed. I repeat what I said in In re A (para 111):
“the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.”
These administrative failures, which have been so characteristic a feature of every one of the cases I have had to consider, unhappily seem indicative of systemic failings both of management and of regulation across the sector. I can only hope that what all this litigation has revealed will by now have led to very significant improvements in understanding and practice.
Sadly, I suspect that it is only going to be when the Hospitals are hit with compensation claims or costs orders that things will improve.
I had to research this issue for a real case last week, and because it was quirky and hard to winkle out, I thought I’d share it.
It does happen from time to time that a party to Court proceedings is too ill to participate in a key hearing, perhaps even the final hearing, and seeks an adjournment. Sometimes they really are ill, sometimes they are pulling a Ferris Bueller.
“You fake a stomach cramp, and when you’re bent over moaning and wailing, you lick your palms. It’s a little childish and stupid, but so is the Family Court….”
What is needed is a doctor’s note. No doctor’s note, no adjournment. But what if there is a doctor’s note? How is the Court supposed to decide whether to grant the adjournment or not.
Oddly, I couldn’t find any reported family law cases saying how bad the illness has to be, or what test the Court has to apply. It turned out the relevant case law was a Probate case, and not a very old one either. Levy v Ellis-Carr and others 2012
We’ll come back to it. I’d like to share with you my story of the worst ever application for an adjournment I had to make. It was a private law case, my client was going down like the Hindenberg, and it was the final hearing. Two days before, my client rings me and says that he can’t come to the final hearing, it needs to be put off. For a few months. I explain that I’ll need a doctor’s note, and he gives me a sigh which is intended to convey to me how utterly unreasonable I am being.
I receive the doctor’s letter minutes before I need to set off to Court, so I slap it on the photocopier, do 3 copies and start walking down to Court with my bundle.
The first paragraph of the letter reads like this, in type
“I saw Mr J on 12th March 2009. He had a headache.”
[I’m thinking that this probably doesn’t cut it, but wait. In handwriting, familiar handwriting, the same handwriting as I’ve got in my bundle on the various threatening letters sent by my client to the children’s mother, there’s an annotation”]
“and a broken leg”
Next paragraph, in type :- I recommended aspirin for his headache.
Handwriting floating above the sentence, as though the doctor had forgotten this and added it afterwards, silly doctor.
Handwriting “And I put his leg in plaster”
Type :- As the headache was very minor, he would be perfectly able to attend Court.
Handwriting “But not with his broken leg, which means that he can’t come”
I had to hand this in to the other side, who had the decency to do all of their laughter in another room, and then later to the Judge.
I was not successful in my application. My client rang later that day to ask if his contact for the weekend was still on. He lived a four hour drive from the children.
“But Mr J, ” I said, “How will you drive all that way with your broken leg?”
In this case, the appellant wanted an adjournment of a hearing, and produced a doctor’s letter
First, there is a letter from a Doctor dated 24 May 2011 (the date of the hearing before Registrar Derrett) which says :
“The above named saw me today very distressed and upset with multiple problems. My diagnosis is that he is suffering from anxiety depression. And he is prescribed medication for it. If his problem persist or get worse I will refer him to a Consultant Psychiatrist.”
The Court refused the adjournment, and he appealed it.
The High Court, in the form of Norris J, dealt with this aspect of the appeal like this.
32. I will deal first with the ground of appeal which asserts that the Registrar erred in law in failing to grant an adjournment. This ground is directly related to the Appellant’s failure to attend the trial. The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the “overriding objective” in CPR 1. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task: see Khudados v Hayden [2007] EWCA Civ 1316. In Fitzroy Robinson v Mentmore Towers [2009] EWHC 3870 (TCC) Coulson J at paragraph [8] set out some of the factors that might be relevant to an 11th hour application to adjourn a trial. But each case must turn on its own facts (and in particular upon how late the application is made).
Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge. The decision must of course be a principled one. The judge will want to have in mind CPR1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J Fitzroy or Neuberger J in Fox v Graham (“Times” 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight. For my own part, bearing in mind the material upon which and the circumstances in which decisions about adjournments fall to be made (and in particular because the decision must be reached quickly lest it occupy the time listed for the hearing of the substantive matter and thereby in practice give a party relief to which he is not justly entitled) I do not think an appeal court should be overcritical of the language in which the decision about an adjournment has been expressed by a conscientious judge. An experienced judge may not always articulate all of the factors which have borne upon the decision. That is not an encouragement to laxity: it is intended as a recognition of the realities of busy lists.
In the instant case the Appellant has to demonstrate that on the material then before her the Registrar exercised her discretion wrongly as a matter of law, and he has also to demonstrate that in fact he had a good reason not to attend the trial.
In my judgment there were ample grounds upon which the Registrar could properly refuse the adjournment (whether she expressly referred to them or not). There was a history of making applications for adjournments at each stage. The hearing before her was itself a re-listed hearing. There was evident non-cooperation in preparing for the trial. Even on the Appellant’s own case he had made his application for an adjournment at the last possible moment. He adduced no medical evidence. His solicitor deliberately withdrew instructions from Counsel and told Counsel not to attend the hearing. The solicitor on the record made a conscious decision not to attend the hearing. The application was already a year old (partly because the Appellant had sought adjournments to put in evidence and had then not done so) and related to a bankruptcy that had commenced in 1994. The Court could if the hearing proceeded take into account such evidence as he had adduced (even if it did not have the benefit of the criticisms he wanted to make of the trustee’s case all the benefit of any argument he wanted to advance in support of his own). The Appellant would always have available the opportunity afforded by CPR 39.3.
Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.
The Appellant complains that the failure to grant the adjournment is a breach of his human rights. The complaint is misconceived. The Appellant’s right to a fair trial means that he must have a reasonable opportunity to put his case. He had that right on 9 February 2011 (but asked the Court to postpone it). He was urged to exercise that right by the trustee’s solicitors on 23rd May 2011: but he and his legal representatives chose not to avail themselves of it.
This ground of appeal fails.
The medical evidence which the person seeking an adjournment relies upon is to be treated as a piece of expert evidence. The Court does not HAVE to accept its conclusions. It has to contain with particularity (details) what the medical condition is, why that prevents participation in the court process, provide a future prognosis, and set out that the author of the report (a) has examined the person (b) has made the diagnosis of the medical condition and on what basis and (c) is qualified to do so.
If the medical evidence comes up to those standards, the Court will then consider the adjournment based on the over-riding objectives set out in the Family Procedure Rules
1.1.—(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable—
(a)ensuring that it is dealt with expeditiously and fairly;
(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c)ensuring that the parties are on an equal footing;
(d)saving expense; and
(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Obviously with a genuine medical complaint, there’s a tension between resolving the case ‘expeditiously’ and resolving it ‘fairly’ and it will be for the Judge to decide on which side of the scales the particular application for an adjournment falls.
In Care proceedings, an application for adjournment that would take the case beyond 26 weeks has the additional hurdle of the revised section 31 following the Children and Families Act 2014 which set the duration of care proceedings as 26 weeks, and that a party seeking to extend the proceedings beyond that has to show that it is NECESSARY
5)A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
(6)When deciding whether to grant an extension under subsection (5), a court must in particular have regard to—
(a)the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and
(b)the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;
No, the Isle of Wight isn’t full of these blue-eyed fiends. Different sort of Wight
I don’t normally do Education law here, but this case was a major news item when it was decided, and it has taken quite a while to get the judgment to be able to see what the Court ACTUALLY said. [Also, as it relates to non school attendance, that’s something that does come up within care proceedings from time to time, so has relevance]
Mr Platt took his daughter on a holiday from 13th April 2015 to 21st April 2015. This was in school term times. He had asked the head teacher of the school for permission and the head teacher had refused. Head teachers have been advised as part of Government policy to only allow parents to take children out of school for holidays in exceptional cases.
The Government policy is based on the idea that children missing school is bad for their education, and disruptive for classes generally as missed lessons mean the teacher having to spend time in later classes bringing that child up to speed with what has been missed.
On the other side of the coin, many parents are unable to afford the hike in prices for holidays set by travel companies during school holidays. (That’s not just because travel companies are evil and exploitative, it is also economics – all prices are set by supply and demand – if supply is limited and demand is high prices will go up. With summer holidays, more people want to go on holiday in July and August, so the prices are more because demand has increased without the supply increasing)
The Isle of Wight Council sent Mr Platt a notice of the fine he would have to pay for unauthorised absence. (Some parents have found that the fine is less than the savings they make by going on holiday in term time, so again economically it makes sense to take the holiday and pay the fine)
Mr Platt decided that he did not want to pay the fine, so the Council took him to Court, prosecuting him for non school attendance
The relevant provisions of section 444, Education Act 1996 are as follows:
“(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.
(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—
(a) with leave,
(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or
(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.
…
(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
…
(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.”
With regard to the school’s power to give leave of absence, Regulation 2 of the Education (Pupil Registration) (England) (Amendment) Regulations 2013, SI 2013/756, amended Regulation 7 of the Education (Pupil Registration) (England) Regulations 2006, SI 2006/1751, so as to provide that leave must not be granted unless the school considers that leave of absence should be granted due to the exceptional circumstances relating to that application.
The legal argument hinged (as many legal arguments do) on interpretation of a single word
If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
The Council said that for the prosecution, the period of time covered is that in the indictment. I.e, between 13th April 2015 and 21st April 2015 had Mr Platt sent his child to school regularly? Well, no, because she hadn’t been at school at all during that period.
Mr Platt argued that ‘regularly’ should be taken to cover the school year as a whole. I.e that someone whose child was at school nearly all the time, but then missed a week, was still at school ‘regularly’
The Magistrates who originally heard the case decided in favour of Mr Platt and that he had not committed the offence. The case went to the High Court on appeal.
The High Court also agreed with Mr Platt, and refused the appeal.
Now, it is not quite as clear as the Press reports have said. This case is not authority for
You can’t be prosecuted for taking an unauthorised term-time holiday
It is okay to take an unauthorised term-time holiday
Those things are okay IF your child’s school attendance is above X amount
The Government Regulations about term-time holidays only being approved in exceptional circumstances are no more
or Anyone who has been refused permission to go on holiday can go
or Anyone who has been fined is okay to just tear it up
or Anyone who has paid a fine is entitled to their money back
All of those things are possible implications, but the High Court did not decide on any of them.
It is, however, authority for – when deciding whether a parent has failed to ensure that their child attended school, the Court is entitled and should consider the issue of regular attendance in light of overall attendance
In this case, the question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in a wider context of attendance. The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school’s record of attendance. In this case, I note that the education authority placed before the court M’s record of attendance from 1 September 2014 to 7 July 2015. I consider that the magistrates correctly had regard to that wider picture. Moreover in all the circumstances of this case I am unable to say that their conclusion was not one reasonably open to them.
It is also authority for, simple unauthorised absence during term time does not automatically mean that the offence is committed
I am unable to accept Mr Jackson’s submission that consideration of Regulation 2 of the 2013 Regulations makes the intention of Parliament clear. He submits that its effect is that parents cannot simply take their children out of school to take them on holiday or for any other unauthorised reason, and such application should only be granted by the school in exceptional circumstances. First, the regulation is, of course, secondary legislation. Secondly, the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).
The Court were invited to go down a path of “without a clear definition of what regular means, the offence is too vague and thus unfair to prosecute any parent for non school attendance” – presumably more with a view to the High Court attempting a definition of ‘regular’ rather than saying there’s no such thing as truancy any longer. The High Court did NOT fall into this trap, and made it clear that any Court contemplating such a thing would have to have representatives from the Department for Education in Court.
I should record that in his wider case, set out in his outline submissions, Mr Greatorex points to the absence of a definition of “regular” and submits that the provision is far too vague to be the basis of a criminal offence, let alone an offence of strict liability. He submits that section 444(1) is not sufficiently clear and certain for a parent to know before taking a child out of school whether he or she is committing a criminal offence, and in this regard he draws attention to the observations of Elias J, as he then was, in Barnfather v London Borough of Islington[2003] 1 WLR 2318, at paragraph 57:
“I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted.”
I draw attention to these submissions by Mr Greatorex without expressing any concluded view on them. It is not necessary for the court to consider these issues in order to dispose fairly of this case. Had the court considered it necessary to do so, in my view we should have had to consider whether the Department of Education should be served as an interested party in order that it might have the opportunity to make submissions on these wider issues. I would therefore answer the question posed by the magistrates in the case stated as follows:
The magistrates did not err in law in taking into account attendance outside the offence dates 13 April to 24 April 2015 as particularised in the summons when determining the percentage attendance of the child.
Where the unauthorised term time holiday falls against a backdrop of otherwise good or average school attendance, Platt certainly makes it HARDER for a Council to go to Court to prosecute a parent who refuses to pay a fine. [And if there’s less of a risk – there’s certainly not NO risk, then a parent may well be less inclined to pay the fine, and schools and Councils may be less inclined to send out fine notices not wanting to take their chances in Court if the fine isn’t paid]
But just because in this individual case, the Court were reasonable in deciding that there had been regular attendance because the overall school attendance was just above 90% does not mean that another Court could not decide that school attendance of 90.3% for the school year was NOT regular attendance.
That’s important. There isn’t some clear interpretation of ‘regular’ here that says “If the child has been absent less than X, then it is fine to have a term time holiday, if not then it would be a valid prosecution”
The High Court have not set parameters or definitions for what is, or is not regular attendance. They have just ruled that the Magistrates were right to take the whole context of school attendance into account, not just the unauthorised holiday period, and that it was then within their discretion to decide whether there was ‘regular’ school attendance or not. Another Magistrates Court could consider exactly the same facts and reach a different conclusion without Platt meaning that they were wrong (they would be wrong not to take ACCOUNT of school attendance overall, and I expect Platt would be waved under their nose and there would be heavy hints of an appeal if the Magistrates decided that 95% attendance wasn’t ‘regular’)
I suspect that we will see an amendment to s444 of the Education Act 1996, to put into statute the Government’s aim that holidays should not be taken within term time. (They could say for example that ‘regular school attendance for the purpose of the Act can mean either (i) ensuring that the child attends school regularly throughout the school year or (ii) does not have an unauthorised absence of longer than 5 school days in any period of 31 days without a medical certificate or (iii) both.’ )
That probably won’t happen before this summer holiday, however.
What is hard to fathom, of course, is why a parent living in the Isle of Wight would want to take their child away on holiday when the Isle of Wight is Earth’s greatest holiday destination anyway?
[This post sponsored by the Isle of Wight Slightly Overstated Tourist Board]
Well, obviously, if the answer to this was “Yes, of course”, it wouldn’t be a very interesting case to write about. So the fact that the Judge in this case said no to a 16 year old giving evidence, twice, is worth reading about. It’s quite long, I’m afraid, but there’s some good stuff in here.
It involves five judgments, all of which were published today. Yes, five.
When this popped up on the feeds, it was nearly a Seven Brides for Seven Brothers moment, but we did eventually stop at five.
Kent CC v D and Others (1) (2) (3) (4) (5) 2015
The Court were dealing with care proceedings involving three families, which they linked together. When you read the list of counsel that were in the case, it must have been an absolute nightmare to coordinate hearings so that they could all do them, and how even the advocates meetings worked is beyond me.
They are always horrendous when you’ve only got four advocates to get together (one person always forgets whether it is 5 or half 5, or has a phone line that drops out, or has a hacking cough). Doing it with EIGHTEEN counsel…. Just doing the introductions must have felt like the “Goodnight ma, goodnight pa, goodnightJim Bob” schtick from the Waltons.
[It was practically mandatory at any camping trip or sleepover that someone had to start doing this when it was finally time to go to sleep. There would be a few moments of unsupressable giggles, then someone would take it far too far and you’d have to get out of your sleeping bag and give said person a dead arm to make them shut up. Apologies if I have rekindled that tradition]
By the time all 18 counsel had introduced themselves on day one of the final hearing, it was probably time to go to lunch.
Anyway, most of the broader interest in this case comes from one child, named Z. Z was at the time of the original hearings 16 years old, and was making allegations that various adults had sexually abused her and involved her in sexual exploitation, trafficking her and selling her for sex. Those allegations had an impact on all three cases (there were other allegations but these I think were the major ones).
Some of the parents in the linked care proceedings wanted Z to be called to give evidence.
Z was giving evidence in the criminal proceedings, so there was no issue about her CAPACITY to give evidence. However, she did not WANT to give evidence in the care proceedings.
Z was first informed about these family proceedings in early October by one of the police officers, who she is said to have a good relationship with. The officer explained to Z about these proceedings and the possibility of her giving oral evidence using an explanation that had been agreed by the parties in this case. Her response was to say ‘No way I’m not. That means I’d have to go two times and remembering about them makes me sick’. She asked whether the family case concerned her siblings, when she was told it didn’t she repeated her refusal to give evidence in more explicit terms. The police officer reports that she discussed with Z the special measures that could be put in place for her to give evidence, but she stated she could not put her mind to it. Z telephoned her mother to ask for her advice and was heard to say that she felt too much was being asked of her.
Shortly afterwards Z was assessed by a psychologist. One of the matters the psychologist was asked to assess was whether Z was able to give evidence in the family case and then again in the criminal case. The report describes Z as ‘an extremely suspicious person who attempts to gain control of situations’ and described her engagement with the assessment as ‘negative and variable’. It is clear from the assessment she is deeply distrustful of social services and sees them as the reason why she is separated from her parents against her wishes.
The psychologist was not able to complete the psychological tests she wished to undertake, due to Z’s refusal to answer the questions. From her assessment she stated ‘Psychologically Z presents as a person who has a limited ability to concentrate and attend within situations, especially in situations that she does not find rewarding or does not see the necessity of, and of course, situations that she wishes to avoid psychologically because of distress that the memories potentially cause to her. Z appears to be psychologically a person who does not necessarily comply easily with authority and there is a possibility that she could, in my opinion, present as angry and disinterested in a trial situation if she is faced with the recollection of trauma…..I consider that it is highly likely that when Z is distressed she is more likely to respond in an antagonistic way and it is likely that she would in such a situation withdraw or become aggressive or antagonistic, rather than cope with underlying distress and psychological difficulties. This psychological aspect of her functioning, in my opinion, would affect her ability to give evidence and deal with a Court situation. Furthermore, she does have a history of emotional and behavioural difficulties described within her records and if Z is under a situation of acute pressure or distress her behaviour may become inappropriate and disruptive. Such a situation would clearly be detrimental to Z psychological functioning and detrimental in terms of her ability to deal with the Court case.’
In answer to the question about whether Z is able to give evidence initially in the family court and then in the criminal court she states ‘This again is difficult to answer given the information that is available to me both from the background papers and from this assessment. However, I am of the opinion tentatively that Z, with support, is strong enough to give evidence in both courts, but close monitoring of her psychological stability will be needed. I am of this opinion because Z presents as extremely determined to see justice done in relation to her alleged abusers. In my opinion she needs to be enabled to keep her focus on the issue of her receiving a degree of justice in order to facilitate her continued co-operation.’ It is of note that she did not discuss giving evidence in both cases directly with Z during the assessment.
The social worker’s intention had been to meet with Z for two periods of 3 hours to assess her, however due to Z’s volatile behaviour she only managed to spend 1 hour in her company in total over the two sessions. She said ‘Although Z is sixteen years old, and can present as being a mature young lady, this behaviour is short lived and she will quickly display behaviour which is characteristic of a much younger child if she deems she is not getting her own way’. She said the second visit was more ‘successful’ in that she ‘had a full conversation about her role and what was being asked of her, this too quickly deteriorated and she refused to speak to me becoming rude and aggressive. I am not confident she fully understands the court process and what it means for her, nor am I confident that she will be able to withstand the rigours of cross examination.’
In her conclusions she states ‘Z is currently experiencing a high level of stress. She admits to being very angry and has stated, in no uncertain terms, that she will not give evidence in the family hearing….Z is vehemently opposed to giving evidence in the family case. If Z gives evidence in the family law hearing, prior to the criminal case, it is the view of the local authority with responsibility for Z, that this puts her in grave danger and at risk of significant harm, it is felt that the risk to Z and potentially others is extremely significant and could lead to her being seriously harmed or worse.’ She refers to the concerns about risk of Z absconding, particularly if there is some distance to travel to enable her to give evidence. She continues ‘Z is an emotionally traumatised young girl. Her level of volatility and challenging behaviour evidences this. She has previously received treatment for psychiatric difficulties and she is especially vulnerable in this area….In my professional opinion Z presents as one of the most severely abused children I have met within the area of Child Sexual Exploitation. The majority of the trauma which she has experienced is currently unknown to professionals and the potential for re-traumatising her by placing her as a witness is significantly high and could have lifelong emotional consequences for her…I am of the view that Z should not give evidence in the family hearing and that to call, her as a witness would place emotional stress upon her which would be significantly detrimental to her mental health and could potentially destabilise the current placement.’
The Judge, Theis J, in the first judgment in November 2014
decided that the child, Z, would not be called to give evidence.
In considering how I should exercise my discretion it is important that I remind myself that it is being considered against the backdrop of the court’s objective to achieve a fair trial of the issues in dispute between the parties as to the threshold criteria (see Lady Hale Re W (Children) UKSC 12 paragraph 23:
“The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.”
Having undertaken the balancing exercise that I am required to do in accordance with the guidance laid down in Re W, I have reached the conclusion that Z should not be required to give oral evidence in these proceedings, as I consider it more likely than not the harm that such a course is likely to cause her outweighs the advantages of her giving oral evidence.
I have reached that conclusion for the following reasons:
(1) There is considerable evidence about Z’s vulnerability; emotionally, physically and psychologically. She has been receipt of psychiatric care in the past and has displayed severe emotional vulnerability about her current situation. She is considered to be at risk of absconding and that risk is said to increase if she was required to leave where she currently resides to join a link for video evidence against her wishes. Whilst it is likely the risk of absconding could be managed, the adverse risk to her emotional and psychological health is more likely than not to beconsiderable by requiring her on two occasions to recall the details of what she has said took place.
(2) I have evidence from a number of sources about her wishes about giving evidence in the family proceedings. Z has made it clear she does not want to give evidence in these proceedings, and it is more likely than not that she would refuse to co-operate with directions to do so by the court. I have carefully considered the context in which she has expressed her wishes; namely to the officer in the case and the social worker. She is reported to have a trusting relationship with the officer, but in their discussions was unable to countenance the prospect of giving oral evidence twice and an important feature from her perspective is that these proceedings did not concern her siblings. As regards the views she expressed to the social worker I have borne in mind her negative views about social services, but the social worker who went to see her was not her allocated social worker, she is an experienced social worker and she saw her on two occasions so was able to assess her views and reactions over a period of time. Her written and oral evidence was clear; Z is unwilling to give evidence in these proceedings. I have carefully considered whether when faced with a direction by this court to give evidence she would, in fact, actually comply. Whilst that is a possibility it is more likely that she would not and, in fact, such a direction is likely to cause her more distress and increase her level of anxiety.
(3) The ‘tentative’ view expressed by the psychologist of Z’s ability to give evidence in the family and the criminal case was done without the information this court has as to Z’s wishes about giving evidence in the family proceedings. In addition this was not an issue that was not discussed directly with Z by the psychologist. Therefore, whilst I take it into account I do not give it the same weight as the direct evidence I have about her wishes not to give evidence in these proceedings and her emotional vulnerability if required to do so.
(4) It goes without saying that providing her welfare needs could be properly safeguarded the Convention rights of all the parties in these family proceedings would be protected if Z could give oral evidence. In principle special measures could be put in place to ensure her evidence is given in a way to protect her welfare. However, that is only one aspect of the discretion the court has to exercise, albeit it is an important one.
(5) I have carefully considered whether any more steps can, or should, be taken to explain to Z the purpose of these proceedings and the need for her to give oral evidence. The LA in their oral submissions suggested that I could undertake that task. Whilst superficially attractive I cannot ignore the points made by the intermediary, who has probably had the most consistent involvement with Z. In her reports she is very clear of the need for there to be consistent support for Z. In the light of the experience of others (in particular the psychologist who could not be seen to be connected to social services) it seems very unlikely that Z will easily be able to comprehend the alternative view of something she is so vehemently against in just one meeting. It is only likely to be considered by her, if at all, if explained by someone with whom she has an established trusting relationship with over a period of time. That is likely to take some time and may not succeed. As the intermediary observed there is a real risk of overloading Z with demands if she is required to give evidence in these proceedings in the context of the situation she is in, namely in the build up to preparing to give evidence in the criminal proceedings. In my judgment the same applies, in the context of her situation now, to any further assessment of her understanding of the purpose of these family proceedings with a view to seeking her agreement to give evidence in these proceedings too.
(6) I have also factored into my considerations the fact that this is not a single issue case. There is a complex background, which even with sensitive oversight by the court would need to be explored in oral evidence.
(7) An important consideration is that it is accepted there is other material the court can consider, both to support and undermine what Z has said. The court will be able to observe the DVDs of Z and all parties will have the opportunity to challenge or support the accounts give by her on the other available evidence. The court will be able to direct itself in advance of making the appropriate factual conclusions. It is acknowledged in the skeleton argument on behalf of the mother in the D case that ‘this may be an increasingly attractive option in the light of the recent evidence filed by XLA.’
[I’ll pause for a moment – the Judge was clearly very mindful here that Z would not cooperate with giving evidence, and as we now know, whilst a Court CAN compel a child to give evidence and to issue a witness summons, they can’t actually do anything if the child doesn’t come to Court, won’t get in the box or won’t answer questions. They can’t lock the child up.
Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.
Judgment number 2 is the fact finding hearing, where some findings were made – the Judge gave Z’s evidence less weight than if she had been able to be cross-examined and as a result not all of the allegations Z made were found to be proven.
That was compounded because there were flaws in the ABE video interviewing process. (Sounds depressingly familiar)
As has been made clear in a number of cases the ABE guidelines are important and should be followed. I have been referred to the relevant extracts and have those parts very much in mind. It is quite apparent the Guidelines have not been followed in this case in a number of important respects, in particular:
(1) Pre interview meetings being properly recorded (ABE Guidelines paragraph 2.6)
(2) Avoiding leading questions (ABE Guidelines paragraph 3.61)
(3) The importance of remaining neutral (ABE Guidelines paragraph 2.229)
The breach of these guidelines are serious, they have the effect of undermining the reliability of the account being given which I must carefully balance in my assessment of the evidence. This has made my task in this already complex case particularly difficult in the context where I have not heard Z give oral evidence.
Judgment number 3 is an application for a re-hearing. In large part, that was as a result of the criminal proceedings mentioned earlier. Z did give evidence, and her evidence was not good.
Following the conclusion of the fact finding hearing the parallel criminal proceedings started on 12 January. Two of the mothers in the care proceedings, AK and JE, were defendants in those proceedings together with 5 male defendants facing charges of sexual exploitation concerning Z. Z gave oral evidence in those proceedings over a period of 12 days. In addition prior to giving oral evidence she was able to view her ABE interviews and read her section 9 statements. The memory refreshing procedure was video recorded. The criminal proceedings concluded on 6 March 2015 when HHJ O’Mahony acceded to the application at the end of the prosecution case that there was insufficient evidence for the case to continue on the basis of the inherent unreliability of Z’s evidence.
Theis J considered that application for a re-hearing.
All parties agree the framework governing applications for re-hearing is set out by the President in ZZ and Others [2014] EWFC 9. At paragraph 33 he endorsed the words of Hale J in Re B [1997] 1 FLE 286 ‘Above all, the court is going to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasion reach different conclusions on the same evidence….the court will want to know….whether there is any new evidence or information casting doubt on the accuracy of the original finding.’ There must be what the President called ‘solid grounds for challenge’.
In considering such applications there are three stages: (1) Whether the court will permit any reconsideration or review or challenge to the earlier finding. (2) If it does, to consider the extent of the investigations and evidence concerning the review. (3) The review hearing where the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.
In summary, it is submitted that new evidence, not previously before the family court, requires this court to re-consider the findings founded in whole or part on the evidence of Z in the schedule dated 6 January. There is no serious opposition to this course by the Local Authority in the case of AK, JE, JC or LF; or by the respective Children’s Guardians or DF (who is now separately represented).
That was the legal background to the decision. The factual background was set out in this way.
New Material
The new material relied upon to re-open the findings can be summarised as follows:
(1) Z’s oral evidence in the criminal trial (together with the recorded memory refreshing sessions beforehand when she viewed the ABE interviews) which resulted in the conclusion by the trial judge not to allow the case to go before the jury on the basis of the second ground in Galbraith, due to what he considered were the ‘extreme flaws in the reliability and credibility of Z’s evidence’. Z gave oral evidence over 12 days with careful consideration having been given to appropriate safeguards and the use of an intermediary. HHJ O’Mahony’s conclusion was founded on a number of grounds, which included
(i) 8 men being wrongly put in the frame in allegations of rape and trafficking, 2 of whom were defendants in the criminal proceedings. HHJ O’Mahony stated when giving his ruling ‘it is clear from the cross examination based on sound and undisputed disclosure that by mistake, confusion or sheer lies, Z has implicated eight men of serious crime and then in evidence withdrawn the allegations or robustly rejected them as being wholly wrong’.The detailed analysis in the ruling in the criminal proceedings includes some evidence available at the family hearing, although the further inconsistencies, retractions and reasons for retractions in Z’s oral evidence in the criminal proceedings is clearly new.
(ii) The lack of corroborative evidence to support the two weeks Z had said she spent in hospital. That position was largely known at the family hearing although in the memory refreshing stage Z stated that the hospital stay was not true.
(iii) The different accounts Z had given of her return from Town C to Town A, 3 of which were known to the family court, but a further account was given in oral evidence.
(iv) The differing accounts of times she was taken to Town C, she gave a different account in her ABE interview (known about at the time of the family hearing) and in her oral evidence (both in her examination in chief (30 – 40 times) and her cross examination (‘I made a mistake’)). The accounts in the oral evidence are new.
(v) The events when Z was in town A. The documents disclosed Z had been seen by the police, told them her parents were selling her for sex and then Z denied to the police having said that (this was all known in the family proceedings). In her oral evidence she rejected any of the events disclosed in the town A documents had occurred and that all was well throughout her time in town A. In a lunch break during cross examination she was seen on the phone to her mother writing notes which she tried to tear up when the police tried to take them from her. She refused to answer any more questions about town A. When her mother gave oral evidence about the phone call she said Z had told her on the phone that she, Z, had lied about it in evidence before the jury. The account in Z’s oral evidence, and her mother’s evidence about the phone call are new.
(vi) Inconsistent accounts by Z as to whether she had taken drugs voluntarily or not, when the prosecution case was she was forced to take drugs. In her 13 February interview (which was known to the family court) she said she was addicted to drugs. In her oral evidence she said she did not know or remember if she brought drugs or was addicted to drugs. There is reference to a facebook conversation concerning drugs and a video of Z expertly rolling a joint. The oral evidence, facebook conversation and video are new.
(vii) Inconsistent accounts concerning sex with JDI, which were described by HHJ O’Mahony as ‘remarkable’; alleging that in the 6 March interview, denying it in the 24 October interview (both of which were known in the family proceedings) and in her examination in chief and cross examination stating that he had raped her. The content of her oral evidence is new.
(viii) False complaint by Z against her father, she admitted this in her oral evidence. This was not before the family court although her mother gave evidence in the family proceedings that she thought Z had done this as the father had stopped her going out to a nightclub.
(2) Further details emerged in the criminal proceedings about the evidence gathering of DC Verier that puts into question the neutrality of the investigation, which I had already been critical of. It emerged during the criminal trial that DC Verier had been instructed to pre-prepare a statement in section 9 form and turn up at the address with it and present it to Z. This was not disclosed in her evidence during the hearing before me, although it was raised as an issue in cross examination.
(3) The evidence available in the criminal proceedings (notably the evidence of DC Brightman in the voir dire) regarding the circumstances surrounding the ABE interview of CC such that HHJ O’Mahony excluded it under section 78 PACE as having been obtained in circumstances which he considered as oppressive bearing in mind the vulnerability of the witness. The full detail about the circumstances of this ABE interview appears to be new.
The courts overriding objective is to deal with cases justly having regard to the welfare issues involved. The factual and welfare issues in this case could not be more serious or complex. The threshold findings relied upon by the Local Authority are the only basis upon which they are justified, by law, in seeking to interfere with the Article 8 rights of each of the adults and children.
Although the Local Authority submits that the family court was aware of and alive to the significant emotional, psychological and intellectual difficulties of Z and the inconsistencies in her evidence at the time of the family hearing it acknowledges the procedural bind the court is in.
You will see that the criminal trial condemnation of the ABE interview went further than the Family Court, indeed excluding the ABE as evidence at all. [The “voir dire” reference is to a hearing or part of a hearing where argument took place in the absence of a jury as to whether certain evidence could be seen be a jury or had to be excluded. If the Prosecution loses the voir dire hearing to decide whether the jury can see the ABE interview, that would be a massive – if not fatal – blow to the Prosecution case. ]
Decision
I have reached the conclusion that in the somewhat unique circumstances of this case that justice requires the applications for a rehearing should be permitted on behalf of AK, JE, JC and LF in relation to the findings identified above. In reaching this decision I have taken into account the following considerations:
(i) The need to balance the public interest in finality in proceedings and minimising delay to a child against the importance of ensuring findings of fact have been correctly determined to ensure matters are justly determined.
(ii) Whilst any further delay is inevitably inimical to the welfare of each of these children in differentways, due to their varying ages and needs, the importance of the court’s findings in each of the cases as to any welfare decisions is clear, and weigh the balance in favour of ensuring the findings are correctly determined.
(iii) It is clearly important for each of these children to know the truth.
(iv) Any findings that involve Z will have an impact on the risk assessments that are undertaken and are likely in each of these cases play a key part in the welfare decisions made by the court, which include whether the children are rehabilitated and/or decisions as to contact.
(v) The credibility of Z was at the core of the Local Authority’s case. It is an issue that has already received careful consideration by this court but the new information from the evidence in the criminal proceedings provides a ‘solid ground’ upon which the findings I made should be reconsidered. It will be necessary for this court to consider again the reliability of Z’s evidence in the light of the new material that is now available.
(vi) Although the outcome of a further hearing cannot be predicted it is possible that the court may reach a different conclusion; a review of the new material may lead to different findings, it may not. The new material raises serious issues for the court to consider.
(vii) The findings that are sought to be re-considered are inextricably linked and should be considered together.
So there would be a re-hearing (there were some findings that would be untouched by the issues over Z’s credibility, and those matters would not be re-heard)
Judgment 4 (nearly there) was the decision as to whether Z should be called as a witness at the re-hearing of the fact finding in the care proceedings.
Understandably, the parents, given that litany of complaints about Z’s credibility arising from the criminal trial, were keen for Z to be compelled to give evidence and have the opportunity to demonstrate that her allegations were false.
Complicating things still further, Z had gone to live in another unconnected Local Authority in foster care, and had told them that she wanted to go back to live in Slovakia with her maternal family, which she duly did. So by the time Theis J was dealing with this, Z was not in the UK and her precise whereabouts were not known.
Submissions
An order is sought on behalf of AK and JE requiring Z to give oral evidence, although the difficulties that are presented to the court are acknowledged. They seek an order, in principle, that Z should be required to give oral evidence. They recognise there may be difficulties in effectively enforcing any order as Z is out of the jurisdiction. They submit the court should make that decision requiring her to give oral evidence for the following reasons:
(1) Z should not be permitted to pick and chose which proceedings she participates in. This is particularly so when considering the observations of HHJ O’Mahony regarding the false allegations she has made before and during the criminal proceedings.
(2) By not requiring Z to give evidence this court is depriving itself of the advantage the judge had in the criminal proceedings of being able to observe her oral evidence over a number of days.
(3) There are relevant issues that they seek to explore with Z that were not fully dealt with in the criminal proceedings.
(4) It is acknowledged Z would suffer emotional harm if she was required to give evidence, although the information available to the court is out of date, due to Z’s failure to co-operate with any Re W assessment. It is submitted that Z was able to give evidence over a number of days within the criminal proceedings, and there is no reason why she should not be able to do so if carefully and sensitively handled within these proceedings. It is submitted there is no evidence of grave harm suffered during the criminal process.
The LA does not support the Re W application. They submit
(1) There is no evidence that would indicate a change in Z’s vulnerability and ability to engage with the court to give evidence.
(2) The evidence the court has from Z LA sets out Z’s extreme stress during the criminal proceedings, exacerbated by her frequent attendance and the conclusion of the trial; her extreme stress regarding her previous experiences and her family leaving the country without her; her anger at being placed in secure accommodation and her reluctance to provide any evidence in relation to any more proceedings; her intention to kill herself if she was not allowed to join her family in Slovakia.
(3) In the updated statement dated 8.7.15 XLA state that since their previous statement on 22.5.15 Z has continued to experience high levels of stress in relation to her experiences of having to provide evidence in the previous proceedings and her family returning to Slovakia.
(4) The most recent statement from XLA details Z’s views were sought on three separate occasions in respect of giving evidence in the family proceedings. On each occasion she has been clear she did not want to participate in the proceedings or give evidence.
(5) Although Z has not engaged in an up to date assessment XLA report that in any event the psychological aspect of Z’s functioning would affect her ability to give evidence and deal with a court situation.
(6) The court has significant additional material to consider in its evaluation of Z’s accounts; video recording and notes from the memory refreshing exercise and transcripts of all of her evidence in the criminal proceedings.
The Judge decided not to make orders compelling Z’s attendance as a witness
Discussion and Decision
The inherent difficulties in dealing with family proceedings that involve vulnerable witnesses have, once again, come into sharp focus in this case. At each stage this court has had to conduct the difficult balancing exercise of seeking to ensure the court has the best evidence available, so that any decision reached is on a secure foundation, against the welfare considerations of the individual witness.
In November last year, faced with a similar application, I determined that the welfare considerations of the witness outweighed the other considerations, and Z should not be required to give oral evidence.
This court is reconsidering this issue in the light of the fact that Z was able to give oral evidence over a number of days in the criminal proceedings, the adverse conclusions reached regarding her credibility by HHJ O’Mahony and that this court has listed a re-hearing of the findings made previously, that were in large part founded on Z’s evidence.
Having now considered this issue again, in the light of the recent events and evidence, I have reached the conclusion on the information available to the court that Z should not be required to give oral evidence, as on analysis of that information such a course would be contrary to her welfare and this outweighs the benefits of her giving oral evidence. I have reached that decision for the following reasons:
(1) If Z were able to give oral evidence undoubtedly this court would have the best opportunity of assessing her evidence. It has rightly been referred to as the ‘gold standard’ and it fully protects the Article 6 and 8 rights of the parties, which include the adults and the children. Reliance is placed on what took place within the criminal proceedings where the reliability of Z’s evidence was tested through the forensic process.
(2) However this court cannot ignore the evidence it has concerning Z’s welfare. In November I concluded that a combination of her express wishes and the evidence the court had about her psychological vulnerability resulted in the court determining she should not be required to give oral evidence. Since Z concluded her oral evidence in the criminal proceedings her psychological position has deteriorated to the extent that XLA sought and obtained orders to place her in secure accommodation to protect her. In the two statements the court has from Z LA it is clear Z was suffering extreme stress through a combination of events. Her expressed wishes have not changed; on each occasion she was asked about giving evidence in these proceedings it was clear she did not want to participate in them.
(3) Whilst this court does not have detailed updated information regarding her psychological state it is clear from what is available that her current functioning would inevitably affect her ability to give evidence and deal with the court situation. Forcing her to give oral evidence, even if that was possible, would undoubtedly be contrary to her welfare.
(4) In conducting the re-hearing the court does have significant additional material to re-evaluate Z’s accounts by way of the video recorded memory refreshing exercise, together with the notes taken and full transcripts of her oral evidence within the criminal proceedings.
I have reached this conclusion on the information available to the court now.
Some criticism has been made of the fact that XLA took steps to facilitate Z leaving the jurisdiction without notifying this court or the LA of the steps they were taking. The effect of the Z leaving the jurisdiction has curtailed this court’s ability to take any further steps to assess Z’s ability to give oral evidence. XLA state that they were not formally aware of Z’s position until the morning of 9 June, the next hearing was two days later. It was a fast moving situation which they state did not give them sufficient opportunity to inform this court or the LA of the developing position. Whilst it is regrettable this court and the LA were not kept updated about the developing position regarding Z’s status here, the reality is there would have been limited, if any, steps this court could have taken to prevent Z leaving the jurisdiction.
I have directed the LA to continue its efforts through the Central Authority to get updated information about Z’s whereabouts and her current circumstances.
Finally then, part 5, was the judgment from the re-hearing, which took place without Z’s evidence.
I have to say, as a prelude to this, a key witness who had admitted to having made false allegations and whose evidence in the criminal Court led a Judge to conclude that the prosecution could not safely continue, who doesn’t want to give evidence in the family Court and who leaves the country, that’s evidence that it is hard to give any weight at all to. One can only speculate as to what view the Court would take of a parent’s evidence if those features applied.
There was fresh criticism of the police investigation
Criticisms regarding the police investigation
In the January judgment I made a number of criticisms of the police investigation (see in particular paras 432 – 435). In his ruling in March HHJ O’Mahony agreed with those concerns and expressed his own concerns about the investigation in trenchant terms. I hope that any review of the police investigation will take on board what has been said in both sets of proceedings about the investigation. Like HHJ O’Mahony I appreciate that this investigation was a difficult and challenging process for all those involved dealing with a young, vulnerable person as Z.
This hearing has done little to improve the position regarding the investigation. Whilst this court recognises the enormous sensitivities involved in this type of investigation, it is clear that some of the decision decisions taken have seriously undermined the evidence. For example, the decision made not to challenge Z in relation to possible inconsistencies, the methods used to put her at ease and gain her trust seriously risked being seen by her as encouragement, with the consequence of undermining the quality of her evidence. When looked at in the context of her low IQ and the information regarding her tendency to confabulate (which information was only available after all the interviews and discussions with her had concluded) made the task for this court challenging when evaluating the reliability of the evidence to support any of the findings sought in January. The events since January, has undoubtedly made that task significantly more challenging.
and later in the judgment here
Further criticisms of the police investigation
In addition to the criticism this court made in the January judgment and HHJ O’Mahony in his 6 March ruling, further matters have emerged to the forefront during this hearing. They can be summarised as follows:
(1) The failure to follow up any further enquiries relating to SA. He is the neighbour who lived next door to AK against whom cross allegations had been made. Z alleged AK sold her own daughter AD to him, which AK and AD deny. AK alleged that it was Z who used to visit him, have sex with him. In his oral evidence in this hearing DI Cooper said this man was interviewed, denied the allegations and it was not taken any further. Very recent disclosure from the CPS confirmed this man was seen by the police in August 2014. He denied having sex with any of the occupants of AKs address and described an isolated occasion when he smoked cannabis and was offered sex for money by a woman who visits AK who he described as being ‘in her late twenties, slim build, blond hair and who always wears sexy clothes’.
(2) The very recent disclosure of the s9 statements of LS. His existence was not known during the previous family hearing and was only noted as being referred to in the written submissions in the criminal proceedings. He is the former boyfriend of AD who described Z being a regular visitor to AK’s home, but makes no reference to Z being there against her will. This disclosure was made on the last day of this hearing; no party sought this witness to attend to give oral evidence.
(3) The failure to interview AD who would have been able to shed light on what was going on. This was raised in the previous hearing. Z had alleged that AK prostituted AD and that she and AD had spent the night in bed with a Pakistani man. It is submitted that this gap in the information available has to be seen in the context of the frequent meetings with AD’s much younger sister, KD. This, it is submitted, supports the lack of balance in the investigation.
(4) The failure to challenge Z (for example, in relation to the hospital stay), the deliberate departures from the best practice outlined in the ABE guidelines, the failure to properly record key events (in the drive round and the meetings with potential witnesses where there were incomplete records regarding the questions asked). Most of this was known at the previous hearing but need to re-evaluated in the context where this court has not had the advantage of Z giving oral evidence.
(5) KV’s evidence in the criminal proceedings about the pre-prepared s 9 statement she took to the meeting with Z on 7 May. This was not disclosed in the previous hearing before me, although it raised as an issue in cross examination by Mr Larizadeh. In her evidence in this hearing KV said she ‘forgot’ that was what happened when she previously gave evidence before me. She said she had more time to prepare for her evidence in the criminal proceedings. Although I accept at face value what KV says I do find it very surprising that such an important detail was forgotten when she gave evidence in the previous hearing. It was, as HHJ O’Mahony described, an usual step to take in such an investigation, especially with such a vulnerable witness. It was based on information given two months previously and KV accepted the way it was presented to Z risked limiting her ability to say what she disagreed with.
(6) There was much debate during this hearing about when the police were made aware of the information from Slovakia, which included information about Z’s tendency to confabulate. The evidence very recently disclosed now shows DI Cooper received this on 28 October 2014, considered it and circulated a note about it on 30 October 2014 attached to an email that was copied to KV. KV said in evidence at the previous hearing (which is now known to be after receipt of the email from DI Cooper) that she was seeing the information from the Slovakian psychiatrist for the first time. That was clearly not the complete position as in her very recent s 9 statement she states ‘I can confirm that looking back through my email records, I received an email on 30/10/2014 titled ‘CONCERNS REGARDING 3rd PARTY MATERIAL FROM SLOVAKIA.DOCZ’. This email contained a report ‘outlining’ the points made about Z by a Psychiatrist in Slovakia including as per DI COOPER’s statement on 24/09/15
• She has tendencies to distort reality
• has tendency to confabulation
Looking at DI COOPER’s statement and the email he sent to me on the 30/10/!4, I have only now remembered receiving this. I can state that I did read DI COOPER’s chronology on Z’s 3rd party records but did not read the translated Psychologist report itself as believed his chronology to contain all necessary points of concern.‘
(7) KJ was closely questioned about how the investigation proceeded. Although it was clear all decisions regarding the investigation were being led by the police, it appears that there was no effective contribution by the LA to the strategic decisions being taken (eg the conduct of ABE interviews, non compliance with ABE guidelines, meetings not fully recorded in writing or by video etc). KJ was questioned about leading questions in some of the ABE interviews and it became clear that she, like KV, believed what Z was saying and as a result risked remaining neutral in gathering the relevant information. As with the police, the LA in this type of situation should have early access to specialist legal advice to enable them to fulfil their statutory obligations, particularly in circumstances where there are likely to be care proceedings based on the evidence gathered during the police investigation.
There’s also an interesting nugget about “police intelligence” (insert your own joke here, if you like)
Police Intelligence reports
Much criticism has been made of these reports. They are, as Mr Storey puts it, as the bottom of the evidential food chain to such an extent that they are no more than ‘tittle tattle’ and should not be used to prop up an already weak case. He makes the obvious points that the reporter is not known, no attempt has been made by the LA to identify them, produce a statement from them and call them to give evidence. As a result, he submits, they barely amount to evidence.
Mr Feehan recognises they are hearsay accounts and the court should treat them with caution. However, he relies on the accuracy of many of the details given in them to lend support to other evidence, particularly that of Z, who was very unlikely to have known about the content of them.
The Judge dealt with Z’s evidence and the issues with it
Z’s evidence
The evidence from Z has been put under renewed scrutiny in this hearing.
It is right that the main reason why the re-hearing was sought was the collapse of the criminal trial and the reasons that underpinned that. Obviously this court is not bound by any conclusions reached by HHJ O’Mahony in his ruling, but the evidential position that brought about that conclusion is clearly very relevant.
The first matter is that prior to her first ABE interview on 6 March 2014 Z had made serious allegations against a number of individuals, including two people who were defendants in the criminal proceedings. In the meetings Z had with DC Verier (KV) and Kayleigh Jones (KJ) on 13 and 20 February Z implicated a number of people as causing sexual harm to her. In the first meeting JDI, MC, and A. In the second S, T, RK and RF. In her the memory refreshing exercise and her oral evidence in the criminal proceedings she withdrew her allegations against a number of men including A, S, RF, T and U.
Two of these men, RK and A, she had described in her oral evidence as having been very kind to her; RK was a former boyfriend. She went further in her oral evidence in that she denied she had ever said to KV in her meeting on 13 February anything unpleasant about A.
It is submitted that the importance of this is that it is now known that prior to the first ABE interview Z had already told untruths about a number of men regarding serious sexual offences. As Mr Storey submits, this was also at a time when those who were speaking to Z were ignorant of the information that subsequently became available about Z’s low IQ and suggestibility.
That is of course, a pretty major issue – if it was already known before the first ABE that Z had made up serious sexual allegations about a number of men that proved to be untrue, then surely the police investigation into the next batch of investigations had to bear that in mind. It didn’t automatically mean that she was lying this time, but you surely don’t go into the investigation assuming that what is emerging is automatically true. You have to bring some sort of sceptical eye to bear on what is being said. The police in this case would be pointing fingers at the villagers in the Boy Who Cried Wolf story, saying, “Well, I simply can’t understand why they didn’t evacuate the village the fifth time that he Cried Wolf, it was OBVIOUS that there was a wolf on the way”
[*Of course there might be a wolf, and you have to be alive to that possibility, but there’s another possibility to take into account, surely?]
It is submitted that this behaviour by Z supports the suggestion that Z has the capacity to make up allegations against people for little or no reason. Two of the people she had made up allegations about, RK and A, she subsequently described as having been very kind to her. In other instances, when she has given a reason it has been a slender one (such as the allegation of assault against her father when she stated she wanted him to be in prison, to then subsequently state she had made the allegation as he had refused to allow her to attend a disco). This behaviour, it is submitted, supports the evidence given by Z’s mother, ZM, in the previous family proceedings that Z was someone who would ‘make up stories, someone who made up allegations of sexual abuse against people’. ZM said something similar in her oral evidence in the criminal proceedings.
Feeding into this is the further inconsistent oral evidence given by Z about a number of other matters. For example, the times she was allegedly taken to Town C. In her ABE interview it was twice, in examination in chief in the criminal court it was 30 – 40 times and in cross examination she said it was a mistake. The rest are set out in HHJ O’Mahony’s ruling.
Another feature of Z’s evidence is the additional information regarding what occurred in City A. It is suggested to have been missed by all the parties in the family proceedings that buried within the papers was a separate reference by Z to her family selling her for sex. This arises from a question put in the criminal proceedings by Mr Saxby Q.C. (leading counsel for RB). At the time of the first family hearing it was thought this had only been said by her once (to PC Swift, which she subsequently denied). It now appears that the records show this was possibly done on two separate occasions, to two separate people. The second occasion was two days prior to the time with PC Swift to someone called N (although the records available do not specifically record her saying to this person she was sold for sex but that question was put in the criminal case without objection being raised). It is pointed out that this now lends more support to such behaviour by her own family, further supported by her reaction recorded in her meeting with KV on 26 March 2014 when asked if her parents had ever received money for her she ‘looked extremely sad and refused to provide an answer or make eye contact’. This additional information resulted in both KV and KJ agreeing with Mr Storey in cross examination in this hearing that if they had known about these reports from City A they would have considered removing Z from her parents care, both for her own protection and so she was in a neutral environment.
The Judge did eventually conclude that some of the matters of concern relating to Z were proven (it is very difficult, from the outside, having not seen the undoubtedly huge volumes of paper and detail or heard the evidence, to know whether that is a fair decision or not – the Judge must certainly have been very worried about placing any credence on accounts given by Z that could not be independently corroborated and evidenced by other sources)
Discussion and Findings
In considering these findings afresh I remind myself of a number of key matters:
(1) That the burden of proof remains on the LA throughout. The parents do not have to prove anything.
(2) It is critical that I keep an open mind when considering the evidence again, which I do.
(3) I have not had the benefit of hearing and observing the oral evidence of Z whose evidence is such an integral part of the LA’s case.
(4) In considering the Lucas direction and in the event the court concludes a witness has lied the court may factor in the circumstances of the witness (including social and cultural) in considering why that witness may have told untruths.
(5) Whilst hearsay evidence is admissible the court must be careful to assessing the relevant considerations as to what weight it should be given.
(6) I must be careful when considering the wide canvas of evidence that this court is required to do that the burden of proof not reversed.
Mr Storey was careful, in his well crafted submissions, not to make what was in effect a submission of no case to answer (recognising what is set out in cases such as Re Z [2009] 2 FLE 877). What he submits is that Z’s evidence is now so undermined and unreliable that it cannot be supported by what is, in effect, hearsay evidence that there has not been adequate or proper opportunity to challenge.
Mr Feehan on behalf of the LA recognises the difficulties there is with the reliability of the evidence from Z, but submits that when looked at in the context of the corroboration that is available, albeit from mainly hearsay evidence, demonstrates that some aspects of her account is in fact credible to the extent that it is more likely than not that it occurred. He fully recognises there is no burden on the Respondents, but submits the court is entitled, when considering the wide canvas, to take into account in evaluating the evidence the Respondents evidence too. That must be correct although the court must be alive to ensuring that a weak case is not bolstered by evidence other than that called by the LA with the result that the burden of proof is reversed.
This court in the previous hearing analysed and evaluated the evidence then available. On a fresh analysis and evaluation, in the light of the new material outlined above, I have reached the following conclusions in place of the findings set out at paragraph 4 above:
(1) AK, JE and JC had much more contact with and knowledge of Z than each of them has revealed in their evidence in these proceedings.
(2) They were each aware Z was being sold for sex and that she was under 16 years.
(3) LF knew Z was being sold for sex and that she was under 16 years.
I have reached those conclusions for the following reasons:
(1) Whilst I acknowledge that within the criminal proceedings Z did not back down in her allegations about AK, no one has suggested that I should revisit my earlier conclusions about the ABE interviews after 6 March. There is no basis to do so.
(2) The findings I made concerning AK’s involvement in the arrangements for Z being sold for sex and that she kept Z in her home against her will were founded in large part on the first part of the ABE interview on 6 March. That now has to be looked at in the light of the further retractions and inconsistencies made by Z within the memory refreshing exercise, her oral evidence in the criminal proceedings and the fact hat this court has not had the advantage of hearing her give oral evidence. Whilst I was aware of and took into account the retractions and inconsistencies known about before the previous hearing, they are now of such a scale and extent in relation to allegations of serious sexual abuse that her account of her allegations regarding AK’s involvement in her exploitation has been very seriously undermined. The schedule of inconsistencies and lies produced on behalf of JE accurately sets out the position. The withdrawal by Z of the allegations against the two defendants in the criminal proceedings, are clearly very important. As set out in para 253 of the January judgment Z’s credibility is a central issue; in the light of the new material her credibility is now even more seriously undermined.
(3) Another factor that has to be considered and re-evaluated are the significant criticisms about the way the investigation was conducted, the numerous breaches of the ABE guidelines, the failure to challenge inconsistencies and the worrying lack of neutrality in the way Z was dealt with and the lack of balance in evidence gathering (for example not speaking to AD). These failures further seriously hinder the reliance the court can place on Z’s evidence.
(4) I have had to re-evaluate the consideration of motive for Z to lie in relation to AK. In the light of the fresh information the submission that she lies for the sake of it cannot now be readily ignored. There can be little doubt that Z has had the most difficult background, and has been grossly let down by those adults who have had responsibility for her care. I agree with the analysis by the LA in their closing submissions ‘that everything we know about Z, her background and experiences lend support to the fact that she has been sexually exploited. These experiences left her with little chance that she would be able to fortify herself against it’. The involvement of her own family in her difficulties also has to be re-evaluated in the light of the evidence about what occurred in City A. Her wholesale denial of any difficulties in City A in her oral evidence, together with her subsequent admission to her mother that she told untruths in evidence about City A, illustrates the extent of her vulnerability and unreliability. She has made up serious allegations about her father as she was not allowed to go out and about a former boyfriend due to jealousy about his new relationship.
(5) I have carefully considered what the LA submits is the corroborative evidence to support such a finding against AK as to her direct involvement in Z being sold for sex. It consists of hearsay accounts, unattributable intelligence records or inferences to be drawn from such evidence. Whilst this evidence leaves the court very suspicious of AK’s role in Z’s exploitation, supported by the court’s assessment of AK’s lack of credibility (which this hearing has not changed), I agree with the submissions made by Mr Storey that none of the witnesses that have been called to give evidence have directly implicated AK. The burden of proof is on the LA which, in my judgment, they have not discharged. Mr Storey also makes the point that the intelligence reports could arguably support AK in that over this period (2012/2013) her accommodation was being watched and monitored by the police, there were two police raids in 2012 yet no direct evidence has been called to support her involvement in prostitution or exploitation.
(6) The conclusion I reached previously regarding the enmeshed nature of the relationships between AK, JE and JC and their contact with Z remains secure for the reasons I set out in the January judgment. It is more likely than not they were each aware Z was being sold for sex, and that she was under 16 years. That conclusion is not fatally undermined by the unreliability of Z’s allegations concerning AK. In her interviews Z was able to give details about AK, JE and JC that were consistent with her having had more contact with them than they suggest. For example, she was able to identify AK and JE’s addresses, their children and she attended JC’s address for a bath all of which supports far more contact between Z and each of these women. Mr Larizadeh places reliance on the inconsistency of Z’s descriptions of JE (e.g as being Albanian) but that has to be balanced with other evidence which supports JE’s contact with Z. Z’s account of her contact with them is supported by evidence from a number of different sources; for example the detail AK was able to give in her interview about what Z had alleged (i.e. injections in her back and gang rape allegations) and the meeting with KD on 3.7.14. Whilst I have carefully considered again the criticisms of this meeting and record, in my judgment it provides a coherent account to support the much closer relationship of these women to each other and Z than they have each accounted for. KD was able to give good descriptions and distinguish when she did not know anyone named. Further support is provided by the telephone records of contact between AK and Z, which AK had no explanation for other than a generalised suggestion that others used her phone. It is of note that this phone contact was during one of Z’s missing periods and AK’s number was noted to be stored on Z’s phone when she was seen at school. The evidence supports Z being closely associated with IE and SS, both of whom were respectively visitors to JC and AK’s homes and IE is JE’s daughter.
(7) I have carefully considered why AK, JE and JC would lie about their relationship with each other and Z and am satisfied that it is to seek to distance themselves from Z and their involvement with her in order to undermine Z’s reliability.
(8) It is clear it is more likely than not Z was sold for sex, even if the court cannot make a positive finding who sold her. In her interviews Z said she was sold. Whilst there are some references to Z selling herself I reject that. The weight of the evidence clearly points to her being sold by others. CC in her interviews gives a detailed account of what took place, which corroborates the core of what Z describes. Whilst it is right that there were breaches of the ABE guidelines in the interviews with CC (such as not dealing with truth and lies at the start of the interview and a lack of neutrality in some of the questions) she had the opportunity the day before she gave oral evidence to view her ABE interviews again. She did not detract from the detailed descriptions she gave in those interviews of Z being sold for sex, she maintained that evidence despite being pressed about allegations made by Z about her which she denied. This conclusion is further supported by what JC told the social worker on 11 April (when an interpreter was present). JC’s denials of this record were not credible. The reference in SS’s interview to ‘whoever was (Z’s) boss or like that..they was using her’ further supports Z being sold. It inconceivable bearing in mind my conclusions about the nature of the relationship and contact between AK, JE, JC and Z that they were not aware of Z’s age and that she was being sold for sex. It was something Z did not seek to hide and had clearly been reported by others (such as JC, IE and SS).
(9) I can’t reach any conclusion as to the extent, if at all, Z’s family may have been implicated in some way in her exploitation. There is evidence that points both ways. ZM appropriately reported Z missing and took steps to secure appropriate medical help for her. However there is also evidence of Z saying she was selling herself to help her family, she was picked up by men from the family home and her reaction when asked by social workers whether her family were involved in her abuse.
(10) The further evidence since January 2015 doesn’t in reality affect the finding under re-consideration regarding LF. All those in his household and with whom he had contact with knew of the sexual exploitation of Z by individuals. The evidence still supports the conclusion that she was being sold for sex and that LF knew that, although not specifically of Z being exploited by JE. Those around him and in his household knew or suspected that about Z, and it is inconceivable that he was not aware of that too. I reject his oral evidence that he remained ignorant of this.
Whilst the Court did not make all of the findings that it had made first time round, enough were made to have still crossed the threshold. So the parents of those three families were really no better off after all of this litigation.
The first is that the mother in the case had made threats to kill the social worker and was in fact arrested for doing so.
The matter was listed for final hearing before a District Judge sitting in Birmingham on 13 January 2016. Shortly prior thereto the mother was arrested for threatening to kill the current social worker. Ultimately the police did not proceed to charge her with any offence. At the hearing on 13 January the mother was extremely volatile and making threats of harm to the extent that the social workers and the advocates felt very vulnerable. The District Judge made contact with me and she allocated the case to me.
On 19 January 2016 I gave the mother due warning that her conduct would not be tolerated. I made injunctive orders against her and warned her of the consequences if she were found to have breached the same.
During the initial final hearing of this matter before me in February 2016 the mother made no threats to anyone but she was clearly agitated. On occasions she could not control her emotions, despite the best endeavours of her brother, G, who had moved to sit next to her in court. She left court in temper on a number of occasions.
Without my permission, the mother chose not to attend any of the three days of this hearing. I am satisfied that she did so because she would not have been able to contain her anger or her emotions or would have been likely to threaten people involved in this hearing.
I note when Mr Eyles visited the mother and X on 24 February 2016 the mother accepted she had threatened to kill the social worker but claimed she had not meant it. In the same conversation the mother said about the current social worker ‘I am going to get her’.
The second was that the Local Authority involved had conducted an assessment of family members, the child’s uncle and aunt. The Judge criticised that assessment and directed a fresh one
At the hearing before me on 4 February 2016 I heard evidence from the social worker, Claire Ashby and from a social worker who had undertaken an assessment of G and K. It quickly became apparent in the course of the evidence of the latter that that assessment was seriously and fundamentally flawed. It could not support the exclusion of G and K as potential carers for the children and most especially when the local authority’s plan was to place the children for adoption.
One of the most glaring omissions was that none of the identified criticisms, which led to a negative assessment, had been discussed with G and K. It followed that their responses or accounts in answer to the same were neither recorded nor taken into account when coming to a conclusion on the merits of their request to be considered as carers.
In light of the foregoing the parties agreed, and I approved, the instruction of Mr Gary Eyles to undertake an independent social work assessment of G and K. Mr Eyles is an immensely experienced and well qualified former social worker and children’s guardian. His report, dated 21 March 2016, is a thorough and comprehensive assessment.
As it turned out, the independent assessment reached the same conclusion, but had been done in a way that allowed the uncle and aunt to respond to the criticisms about them before reaching a conclusion. This may be a useful authority in other cases for that principle, which is simple fairness. Of course, from time to time, the time-constraints put upon the filing of an assessment might not allow this step to happen – in those case, this authority may also be useful for Local Authorities to explain why there are solid article 6 reasons for the report to be filed late, rather than filing it on time but without the potential carers having the chance to respond to any worries, criticisms or fears about them as carers. The same also applies to viability assessments.
Well, you write up one case about bugging, and then another one comes along. If I get a third, it is going to have to be entitled “Mind the bugs don’t bite” (which is what my parents used to say to me when I was a tiny tot before I went to sleep. I’m sure there weren’t actually bugs… They used to say ‘snug as a bug in a rug’ if I was tucked up in bed under the covers. Perhaps my father had been Gregor Samsa before changing his name)
“As Gregor SAMOSA awoke one morning from uneasy dreams, HE found that he was very delicious, but that his bedsheets were somewhat greasy”
You see, here you can get updates about the law, literary references, and information about tasty snacks. It is a one-stop shop for those things.
This case is actually the same Judge, who is probably being very careful about what he says on the telephone at the moment, but this time it is the police doing the bugging of parents, not a parent bugging their child.
In this case, the police were investigating the death of a baby. There were also care proceedings about the baby’s siblings, and the family Court had to consider how that baby had died and whether either of the parents were responsible and whether there were any risks to the siblings. Within the care proceedings, as is usual, there was an order that the police provide ALL of the material from their investigation.
The police provided material, confiming that they had sent everything. That hadn’t gone that smoothly, a witness summons was issued and a representative of the police had to come to Court and confirm that everything had been provided.
Within the care proceedings, a finding of fact hearing took place and the family Court ruled that the father was responsible. The police later charged the father with manslaughter. As part of the criminal proceedings, it emerged that the police had bugged the family home, hoping to hear conversations between father and mother which might incriminate either one of them.
When the Guardian learned of this, they went back to the family Court to inform the Court that there was potentially valuable evidence that had not been disclosed into the family Court case.
his is the second and final published judgment in these family proceedings. The first is reported at [2014] EWFC 18.
The proceedings, which concern child A, were thought to have ended in July 2014 when this court determined that her father was responsible for the death of her baby brother K. However, in January 2016, the matter was rightly restored for further consideration by A’s Children’s Guardian in the circumstances described below.
This was necessary because of the admitted failure of Cumbria Constabulary to comply fully with orders requiring the disclosure of all material arising from the police investigation into K’s death. A great deal of material was in fact supplied in late 2013 and early 2014, albeit the process was not as smooth as it ought to have been. On one occasion, the second most senior investigating officer attended a hearing before me with a legal adviser and on a later occasion a witness summons had to be issued to ensure that (so it was then thought) all information had been supplied.
However one piece of information had not been supplied and did not come to the attention of the parties to these proceedings until September 2015. This was a covert recording made by the police in the parents’ home on 27/28 September 2013, immediately after their release on bail following their arrest. The recording had been authorised under the Regulation of Investigatory Powers Act 2000. It is of poor quality but it includes a conversation involving the mother that on one interpretation might conceivably have been relevant to the accounts given by the parents about K’s death.
After the 2014 family court hearing, the police reinvestigated and the father was charged with manslaughter. It was only at an advanced stage in the criminal disclosure process that the Crown Prosecution Service, having itself become aware of the recording, advised that it should be disclosed to the defence. Prosecution counsel also appreciated that it should have been disclosed to this court in 2013 and so advised. At that point the parties to the family proceedings and the court were informed and in due course the Guardian made his application.
In November 2015, the father stood trial and, having exercised his right not to give evidence, was acquitted by the jury. In the meantime, the 2014 judgment had not been published so as to avoid prejudicing the criminal trial and, latterly, to await the resolution of the issues surrounding the recording.
The Guardian’s application has had three purposes: to make the court aware of what had occurred; to raise the possibility that this court’s findings may need to be reopened; and to establish whether there were any safeguarding issues affecting A.
Directions were given, joining the police as a party and directing the filing of evidence by it and by the local authority. In response the Constabulary has filed a full account of events from seven witnesses: two officers involved in the 2013 investigation (including the senior officer who appeared before me), two officers who were respectively concerned with the quality of the covert recording and with record-keeping, one very senior officer who was responsible for the reinvestigation, and two legal advisers.
There were two issues in the case – firstly, did anything from the tape recording within the home justify re-opening the finding of fact hearing or considering amending those findings? And secondly the practice issues of something so important having been kept back from the family Court despite assurances that EVERYTHING had been provided.
The first issue is whether the findings of the family court should be revisited in light of the disclosure of the recording. The threshold for reopening is that there is a real reason, based on solid grounds, for believing that a different outcome might result. Having studied the issue closely, none of the parties applies for this to happen. For my own part, I am independently satisfied that the further information falls far short of crossing the threshold for reopening the case. In particular, the confused and partially audible recording does not cast significant doubt upon the mother’s evidence or supply any plausible alternative explanation for K’s injuries. True it is that the father has not been convicted of any offence and continues to deny responsibility for K’s death, but that is no reason for this court to reconsider its conclusions.
There will therefore be no further hearing in this court in relation to these matters.
Practice issues
Turning to the non-disclosure, I find that the nub of the matter is as follows. The existence of the recording was known to the three investigating officers in 2013, but they did not consider that it had any evidential value. It should have been obvious, in particular to the officer who appeared before me just four weeks after the recording was made, that it had to be disclosed, but it was not. Because of its special status, it was not held on the case file. The Constabulary’s lawyers and the officers who were not involved in the investigation process were therefore not aware of its existence until a much later stage.
The efficient process of disclosure between the criminal and family jurisdictions is essential to the proper administration of justice. It is governed by protocols and on occasions reinforced by court orders. The criminal and family courts must be able to rely on assurances that all relevant material has been disclosed, though in some cases they may have to resolve claims of public interest immunity.
In this case, the process took place against a background where concerns had already been expressed about the investigation into K’s death. Moreover, there was an unusually drawn-out sequence of events surrounding police disclosure. In those circumstances, the failure of Cumbria Constabulary to disclose the recording was particularly regrettable. It has led to further anxiety for the mother and significant extra expense for the public.
However, it is important to record that there is no evidence to suggest that the recording was withheld from the court deliberately or that there was any bad faith on the part of the officers who were responsible. I also note the expression of regret made on behalf of the Chief Constable, reflected in the attendance of the Assistant Chief Constable at this hearing, and the assurances that lessons have been learned from this unhappy episode. In the circumstances, there is in my view nothing to be gained from any further action by the family court. These proceedings are accordingly concluded.
The lesson may be that simple acceptance of an assurance that all documentation has been provided might not be sufficient – there may be a need to go back with particularised questions “Do the police have X?” “Did the police carry out Y?”
Mr Justice Peter Jackson, in the High Court, dealing with a case where a parent in a custody dispute made clandestine recordings of the child – and because the father wanted to know what the child was saying during meetings with the social worker and Guardian, he placed bugs on the child’s clothing.
It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’’s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way.
Let us have a look at the recording that was done
The dispute between the parents was bad enough for the local authority to have become involved and for the court to have appointed a Children’’s Guardian for Tara. All in all, the proceedings ran for 18 months and during that time there were a number of meetings between Tara and her social worker, a family support worker and the Guardian. Unfortunately, the father and his partner were determined to know what the child was saying at these meetings and also to record what the professionals were saying. As a result they embarked on a plan of action described in this extract from the original judgment:
“”The father’’s recordings19. At a core group meeting with the social workers in late January 2016, the father disclosed that he had been making covert recordings since the end of 2014. In a statement dated 21 February, he produced a number of transcripts dating back to November 2014.
20. At the outset of the hearing, I was asked to rule on whether the father’’s recordings should be admitted in evidence.
21. The first task was to establish the facts, and I heard from the father in evidence on this point specifically. Having done so, it emerges that the facts are these:
(1) The father produces transcripts of 16 conversations running to over a hundred pages(2) All but one of these are conversations involving Tara
(3) The exception was a local authority pre-proceedings meeting (see below)
(4) A significant number of recordings have not been transcribed or produced
(5) The first recording was made in November 2014, the last in March 2016
(6) The proceedings had been ongoing for well over a year before the existence of the recordings was revealed
(7) At least four devices were used
(8) At least two of these were small recording devices (bluntly, bugs – the one I was shown was no larger than 3 x 1.5 cm and can be bought on the internet for a few pounds)
(9) The other devices were iPhones or iPads belonging to the father and his partner
(10) The bugs were bought by the partner
(11) She sewed them into to a false bottom to the breast pocket of Tara’’s school blazer
(12) On some occasions a second bug was sewn into Tara’’s school raincoat and used at the same time to maximise the chance of picking up conversations
(13) On a day when a meeting was happening, the partner sewed the bug(s) into Tara’’s clothing just before she left for school – any earlier and the battery would have run out by the time a meeting took place at the end of the school day
(14) The bug would therefore be running all day, recording everything that Tara did
(15) Tara was therefore recorded at school, when with her teachers and friends, and at the contact centre when she went to meet her mother or speak to her on FaceTime
(16) Recordings were also made at home, when the social workers and Guardian visited
(17) At the end of the day, the bug(s) would be removed from the clothing so the contents could be downloaded
(18) The partner would make transcripts of what she and the father regarded as relevant conversations
(19) Other conversations were recorded by the father using his iPhone as a recording device
(20) He would leave it running in the breast pocket of his shirt or hold it, apparently innocently, in his hand
(21) At other times, when professionals were visiting the home, the father or his partner would leave an iPad or iPhone running in the top of the partner’’s handbag in the room where the conversation was likely to occur
(22) In February 2016, the father attended a pre-proceedings meeting with the social workers. They challenged him about his recently revealed use of recordings and he turned his phone off. He did not tell them that he had a second device running, with which he continued to record the meeting.
(23) Importantly, the father and his partner state that Tara has never been aware that she has been bugged
22. The father said that he had done all this to protect his daughter, but had not considered the consequences. Initially, he had not intended to disclose the fact that he had been making the recordings. His motivation was to find out about abuse and to hear Tara saying things to social workers that she might not say to him. He and his partner wanted to know what she was saying to them. They wanted to understand why she was so reluctant to see her mother. As matters developed, he wanted to be able to show that Tara was saying things to professionals that they were not reporting or acting on. Although the partner took most of the practical steps, it was planned together and he was responsible.
23. The father accepted that at an earlier stage he had carried out surveillance on the mother, including by using a private detective and by monitoring the in-car tracker device. He gave “”no comment”” answers to questions about accessing her private emails or iPad location service, but he admitted to accessing and making a screenshot of her private Facebook page when it was open on Tara’’s iPad. He had also taken hundreds of photographs in and of her home during the financial proceedings in order to substantiate his claim that she had a live-in boyfriend.
24. Having heard the father’’s evidence, I ruled that the recordings should be admitted and deferred explanation until now, so that the possible relevance of these actions to Tara’’s welfare could be considered in the wider context.
25. The mother did not oppose the admission of the recordings. Counsel on behalf of Tara drew attention to the court’’s powers under FPR 22.1 to control the evidence it receives. This includes the power to exclude evidence that would otherwise be admissible. She urged that as a matter of public policy conduct of this kind should be discouraged and that the resulting evidence should only be admitted in exceptional circumstances. Moreover, the material that the father wished to file was selective. If the court did not exclude the evidence obtained in this way, it would send the wrong message to other parents. At the same time, she contended that the fact that the recordings were made is in itself relevant and, indeed, important when considering Tara’’s welfare. She submitted that the recordings were not unlawful and do not constitute a breach of the Data Protection Act 1998 because they fall within the ‘’domestic purposes’’ exemption provided by s.36:
36 Domestic purposes.
Personal data processed by an individual only for the purposes of that individual’’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.
26. I have not heard further argument about this, and it is unnecessary to determine whether the father’’s actions were illegal. That said, I believe that there may be good arguments for saying that the covert recording of individuals, and particularly children, for the purpose of evidence-gathering in family proceedings would not benefit from the domestic purposes exemption. Uneducated, I would assume that the exemption is intended to protect normal domestic use, which this is not.
27. In this case, I am in no doubt that the recordings were rightly admitted. The manner in which they were made is directly relevant to an assessment of the parenting offered by the father and his partner. They are so extensive that it would be unreal to exclude them, particularly after I had heard evidence from the father about their creation. It would be theoretically possible for the court to receive evidence of the making of the recordings but not their contents, but this would risk unbalancing the evidence if the contents were in fact of any value.
28. This case is a striking example of the acute difficulties that can be caused by adults recording children for the purposes of litigation. From the time the recording programme was revealed, everyone involved in these proceedings, except the father and his partner, immediately realised that it was wrong. The mother, rightly in my view, described it as “”unbelievable””. Even so, the full extent of the deeply concerning ramifications for Tara’’s welfare only became apparent as the hearing progressed. By the final day, even the father appeared to be beginning to understand the difficulties that he had created not just for his case but for his child.
29. This issue has also meant that the difficult question of whether Tara should be told that she has been recorded must be faced. It has also compounded the costs of the proceedings.””
Moving on, were the recordings useful to the Court?
The main reason for changing Tara’’s home base was the conclusion that the father and his partner could not meet her emotional needs as main carers. The recording programme was not the only indicator of this, but it was a prominent one. The mother was entitled to say that she objected to her daughter being brought up by someone who sewed recording devices into her clothing, something she described as “”really disturbing””.
Next to consider are the consequences for the proceedings of a large mass of material being produced at a late stage. The recordings put forward were selective and were not at first professionally transcribed. In the end, the issue increased the length and cost of the hearing, yet it did not produce a single piece of useful information. Instead:
i) It further damaged relationships between the adults in Tara’’s life.ii) It showed the father’’s inability to trust professionals.
iii) It created a secret that may well affect Tara’’s relationship with her father and step-mother when she comes to understand what has happened. As I said:
“”She is also at risk of harm arising from the recordings. I accept the Guardian’’s compelling assessment that it would be extremely damaging for Tara if the information comes to her in future in some uncontrolled way, something that is likely to cause her confusion or distress and seriously affect her ability to trust people.
I also accept the Guardian’’s analysis that the safer course is for Tara to be informed of the facts in a sensitive way in the relatively near future, once the immediate aftermath of this hearing has passed. There then needs to be a concerted effort by the family and the professionals to make sure that the information is contained within the group of people who will need to know it in order to carry out their statutory responsibilities. The consequences for Tara and her whole family of the father’’s behaviour coming to wider knowledge could be very serious, with unpredictable social and legal outcomes. However, the alternative – a conspiracy between those in court and the court itself to keep the matter secret from Tara and everyone else – is unacceptable in principle and unworkable in practice. It is a problem that needs to be faced and that is best done at a time when Tara is surrounded by professionals who know her situation and are well placed to help her make sense of it.””
iv) As indicated, the family’’s standing in the community has been put at risk. It is not hard to imagine the reaction of other parents at the school if they learn that their children were being recorded as a result of talking to Tara or even being near her, and the consequences of that for the father and most of all for Tara.
v) It involved an enormous waste of time on the part of the father and his partner in setting up the recordings and in transcribing them.
vi) It significantly escalated the cost of the proceedings. The father had to pay to have the recordings transcribed (£1,500) and on top of that I ordered him to pay the proportion of the mother’’s costs attributable to time spent on the recordings (£9,240). At the same time, there is an issue about whether the family can afford to pay Tara’’s school fees.
Anyone who is considering doing something similar should therefore first think carefully about the consequences.
Given that for large parts of Tara’s school day, every single thing she said (and was said to her) was recorded, these actions have invaded the privacy of every other child that she came into contact with. If the parents of those children learn that father did this, I should imagine they’d take an exceptionally dim view of it.
The Judge made some general observations about clandestine recording
This judgment does not relate to the practice of recording adults covertly for the purposes of family proceedings, or of recording children in other ways. Experience suggests that such activities normally say more about the recorder than the recorded (as in Re C [2015] EWCA Civ 1096), but there are so many possible circumstances that it is not possible to generalise. I note that the Cafcass Operating Framework (at 2.27) says that its officers should have nothing to fear from covert recording, but should bring it to the court’’s attention if they become aware of it, and ensure that it is dealt with methodically. That is no encouragement to the production of recordings, merely a reflection of situations that sometimes arise.
The Cafcass framework also mentions (at 2.29) that one form of covert recording may be the concealing of a device on a child, but makes no comment about that. In my view, that scenario does deserve comment of the kind that appears in the first sentence of this judgment.
The judgment is NOT authority for parents not being able to openly request to tape meetings with social workers – this is about covert recording of the child.
The Court of Appeal in Re E (A Child) 2016 were addressing an appeal from findings of fact that the father had sexually abused all of the children, including making them have sex with a dog, and of having taken them to hotels given them drugs and pills and allowed other men to abuse them or watch them. (I apologise for that graphic opening, I will try to keep the graphic content out of the rest of the post)
Quick history lesson – ABE, or Achieving Best Evidence, is the guidelines that were drawn up (and occasionally refreshed and honed) as to the police interviewing of children where allegations of abuse are being investigated. They came about as a result of the Cleveland scandal, where many children were removed into care for allegations of sexual abuse and the investigation process was flawed and nearly all of those children had been wrongly removed. When you think of the “Show us on this dolly where daddy touched you?” style of interviewing, that’s what ABE was aimed to stamp out. The interviews are video-recorded and can be used as evidence in criminal proceedings and care proceedings – with the idea being that if the guidance is followed in spirit and to the letter, the chance of the child’s evidence having been contaminated or influenced by the person asking questions is reduced to a minimum. It’s really important. I’m glad that the Court of Appeal are looking at this.
Let us start with the delay between the allegations being made and an ABE interview being conducted.
On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers.
All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court.
I have scoured the remainder of the judgment, but it does not seem to me that the delay forms part of the Court of Appeal’s criticism – there are MANY many others. It might, as a practitioner, have been helpful for the Court of Appeal to have been firm about the passage of time that ABE’s are taking – this one, in my experience, proceeded at rocket-lightning pace compared to the average ABE. Sometimes, that passage of time reduces the chances of an accurate and reliable account being obtained – sometimes that account would rightly exonerate a parent and remove restrictions that are impacting on their family life, sometimes it would point strongly that there’s a case to be answered.
When should the Judge in the case see the ABE interviews?
In this case, the Judge had not watched the ABE interviews prior to the trial beginning. That, the Court of Appeal suggest, made the decisions she made at the start of the trial less solid (whether police officers should be called, whether the children should be called etc)
Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.
It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
‘(f) whether the case depends on the child’s allegations alone;
(g) corroborative evidence;
(h) the quality and reliability of the existing evidence;
(i) the quality and reliability of any ABE interview.’
So the Judge needs to see the ABE interviews before the trial, in order to have a properly informed view as to whether the children should give evidence.
Fast-track interviews
Within this police investigation, the police officers went to see the children AFTER the ABE interviews were made, and conducted interviews with them to obtain more detail / to check their account. Those fast-track interviews were not recorded.
In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”
Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s).
(Whilst I haven’t come across “fast-track interviews” taking place AFTER the ABEs, it has become common and in my view sloppy practice, that they happen beforehand, often as a sifting or viability assessment to see if the child will make any disclosures at the ABE. They are often labelled as Q and A’s. And I think that they are wrong, for all of the reasons above)
However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:
c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.
d) The short summary note of what each child may have said during the fast track process is wholly inadequate.
[We’ll come back to the many other flaws. Again, I wish that the Court of Appeal had condemned the process of police interviewing children either before OR after the ABE process, but one can read between the lines]
Phase one of the interview not being filmed
Phase one is of course a very critical part of the interview – it is where rapport is built, and any observer can see how it established that the child understands things and understands the difference between truth and lies. I have never heard of this not being filmed before.
Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded.
The Court of Appeal add that to the list of findings about flaws in the ABE process.
a) The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.
What came across as the purpose of the ABE
Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’
D is unresponsive to this and similar requests, which then leads the interviewer to add:
‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’
This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.
Mr Tyler took us to TW v A City Council[2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
‘As we have already pointed out, the [ABE] Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we are left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.’ [Emphasis in original]
It is a very easy trap to fall into during an ABE interview, which is precisely why there is so much guidance in Achieving Best Evidence, and why it requires specific training to be able to do it properly, and why sloppiness and deviation from the Achieving Best Evidence guidelines is so important. This is classic Cleveland Enquiry stuff.
I am not attacking these individual officers, I think it is a national malaise that Achieving Best Evidence isn’t as integral to the process as it needs to be. And of course, police officers are fundamentally trained to investigate a crime and get the evidence of it happening. In an ABE, the fact that there may have been no crime and there may be evidence from the children of that, is just as important.
The hour-long break in the interview
For one of the children, the interview paused in the middle for an hour. When it resumed, the child was substantially more forthcoming. The obvious question is, what EXACTLY happened in the interim?
As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”.
The Court of Appeal accepted this as a significant flaw
b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.
The Judge’s refusal to call the police officer
Given the identified flaws, the Court of Appeal felt that the Judge was wrong to have refused the application by the parents to have the police officer attend Court to give evidence. And of course she made that decision not having seen the ABE interviews themselves.
The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).
Judicial analysis of the ABE interviews
The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of thenumerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
a) The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.
b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.
c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.
d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.
e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.
Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly.
Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
i) each child gave a different account to that given by his or her siblings;
ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and
iii) B effectively made no allegations of sexual abuse in his ABE interview.
The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.
Later, at paragraph 28, she states:
‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’
Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:
‘The inconsistencies in the children’s ABE interviews are addressed.’
I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.
The children giving oral evidence – the Judge’s decision
The question of whether or not any of the children should be called to give live evidence was considered bythe judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79).
The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
“[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decisionthat I made earlier.” (Transcript page 7).
“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”
Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:
“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’.
MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.
JUDGE WATSON: Yes.
MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence.
JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-
MS STEELE: I of course-
JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.
MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.
JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.
MS STEELE: No.
JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.
MS STEELE: My Lady I don’t think there’s very much else that I can add-
JUDGE WATSON: No.
MS STEELE: -with what I’ve already said in there and what I’ve said to you.
JUDGE WATSON: Yes.
MS STEELE: There’s really nothing else I can add.
JUDGE WATSON: No.
MS STEELE: Unless you would like me to attempt to-
JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”
I found the underlined exchange quite extraordinary. Of course a great deal of care needs to be taken in asking questions of a young child and of course a “gloves-off” attack on inconsistencies that just muddles and mixes up the child is going to be abusive and not advance the case, but the judicial suggestion here that this would be counsel’s agenda is extraordinary. Just my personal view.
The Court of Appeal’s view
Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;
b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;
c) In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.
Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.
Note particularly this paragraph of the judgment
It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.
In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.
It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
i) the possible advantages that the child being called will bring to the determination of truth balanced against;
ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’
Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.
Child’s article 6 rights
In this case, one of the children, A was 15 although with some learning difficulties – he was not capable of instructing a solicitor and was so represented by the Guardian and the child’s solicitor. When the Guardian and solicitor met with him, the allegations were discussed. The Judge directed that a note of those discussions be filed and served.
A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
The statement goes on to state that the solicitor explained to A that only A knew if anything sexual hadhappened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
“I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.
When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …
G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.
[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.
I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”
The Court of Appeal point out that A had legal professional privilege relating to that visit and had not been asked to waive it. His lawyer was present, rather than just the Guardian.
The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B[1996] AC 487:
‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.
[This all VERY important for children’s solicitors] The Court of Appeal actually found that A’s article 6 rights had been breached by this procedure.
Obviously with all of these flaws, the findings were overturned, and the case sent back for re-hearing.
In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.
ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).
iii) The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.
iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.
v) A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.
vi) The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.
Given that all of the police investigations came up with no corroborative evidence and the case was based almost entirely on the children’s allegations and the ABE interviews, the LA will have an uphill struggle at that re-hearing.
suesspiciousminds 