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Child questioned on FORTY FOUR occasions about alleged abuse by father

Such abuse turning out to have never happened and having been fabricated by the mother.

 

This is an extraordinary case heard by MacDonald J

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)    

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html

It was a private law case, though one threaded through by involvement with social workers, police officers and therapists.  It began when the mother of two children N and S, left TH (the father of S) and moved from Scotland to England.

She then made a series of allegations of abuse by TH, both against her and against the children.

To turn to the paragraph that gave this post its headline

 

78. Namely, that between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS that I will detail later in this judgment, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other and their mother, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N. Five different police officers were involved with interviewing the boys.

 

The Judge notes at the end of the judgment, the comments of the Guardian.

235. The Children’s Guardian attended each day of this fact finding hearing. Having listened to the evidence in this case the Children’s Guardian told the court that she considered this case to be “quite extraordinary“. Surveying the conduct of professionals in this case she concluded that “it is as if a sort of hysteria took over and prevented people from asking certain questions“. I cannot help but agree.

 

To be honest, the case is peppered with judicial despair/horror about what had happened, and I could pluck critical paragraphs from almost anywhere.

But the opening gives you a flavour of where things are going:-

 

  1. This is very troubling case. In Re E (A Minor)(Child Abuse: Evidence) [1991] 1 FLR 420 at 447H Scott- Baker J observed:
      1. “It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of ‘the child must be believed’. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue”.
  2. Seventeen years later Holman J felt compelled to make similar observations in the case of Leeds City Council v YX & ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869 at [143] as follows:
      1. “I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”
  3. Eight years after the decision in Leeds City Council v YX & ZX and nearly 30 years after the Cleveland Inquiry I have found myself during the course of this hearing asking myself the self-same question as that posed by Holman J.

 

 

And the closing

 

  1. 230. I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.
  2. As I stated at the outset of this judgment, this is a very concerning case. In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland. Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal. Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble. Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.
  3. It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm.
  4. Child abuse, including child sexual abuse, exists as a terrible reality in society. Professionals charged with safeguarding the welfare of children must be constantly vigilant. As Ms Lot rightly pointed out to me, professionals are trained to adopt an approach by which they recognise that such abuse can happen anywhere. However, in circumstances where false allegations of abuse are also a reality in society, it is essential that this professional vigilance is allied firmly to the rigorous application of practice and procedure designed to ensure the proper investigation of allegations of abuse if injustices are to be avoided.
  5. Within this context, this case suggests that it is once again necessary to re-iterate the importance of the principles set out at Paragraphs 22 to 52 above. When investigating allegations of child abuse, including allegations of child sexual abuse, it is imperative that all professionals involved adhere to the law and guidance set out in those paragraphs so as to ensure the rigorous and fair investigation of allegations that is the foundation of ensuring the children concerned are safeguarded.
    In terms of detail, the Judge described one of the ABE interviews. Apologies that some of the questions are graphic, but I’m afraid that’s the nature of the allegations. Bear in mind that the ABE guidance is really clear and strong about the need for the account to emerge from the child and the need to avoid leading questions.
      1. 188….DC Hackworthy’s had concluded that S was not suitable for interview. S’s interview on 5 March 2015 took place in the context of him having little notice that it was going to take place, having been removed early from school for the interview, not having eaten and being given snacks prior to the interview, which he consumed during the interview. It is clear from watching the interview that this creates a distraction for S. The items he was given to snack on during the interview were given to him by his mother immediately before the interview commenced and were considered by S to be treats. As with N, at the outset of S’s interview at the outset of the interview DC Glendenning told S that “If you say something really, really interesting she is going to write it down“. DC Glendenning thus, once again, created a cue for S whereby he would know what the “interesting” answers were by watching the officer’s pen.
      2. During the course of his interview S stated that his father had hit him on the arm and had choked him. He said this happened when the mother went to “Nanny S’s” with N but his father said he could not go. S also alleged that his father gave him wine (a new allegation). Later S also alleged that TH punched him in the neck (also a new allegation). Thereafter S repeatedly made clear to DC Glendenning that that is the sum of what had happened he has nothing more to say. From watching the interview it is clear that S is very firm in this regard. Notwithstanding this, DC Glendenning continued to push S to reveal further matters. At this point the interview departed even further from the precepts of the guidance.
      3. After S has stated eight times that nothing else happened DC Glendenning embarked on the following exchange with S:
          1. Q: Right, what about when you are alone with your dad?

A: When I’m alone with my dad he’s been a, he’s been nice but when Grandma was, is here, he’s been nice when, when she isn’t here, she’ he hasn’t been nice.

Q: OK, has your dad ever done anything dirty to you? Dirty, that you didn’t like:

A: Mmm, nothing else.

Q: Nothing else, erm, also its very important today that we find out everything, erm and also we’ve been speaking to your brother and he said some things that your dad did that wasn’t very nice to him, and that were dirty. Had your brother told you about these?

A: No.

Q: As he ever told you anything that your dad did to him?

A: Mmm mmmm, hasn’t seen and I’ve forgot…nothing.

Q: Nothing, are you sure there’s nothing else that’s worrying ye and?

A: There’s nothing else.

Q: Nothing?

A: Mmmmm.

      1. Prior to this point S has not used the word “dirty” at any stage. In seeking to explain why she had introduced this DC Glendenning said in evidence that it was because it was “difficult to get him to open up” and she was trying to put “it” in S’s terms of something possibly sexual. DC Glendenning appeared initially to be unaware of the forensic difficulties created by the interviewer introducing the concept of “dirty” events in the context of S being alone with TH before S had raised the issue in any way. However, ultimately DC Glendenning accepted in cross examination it was wrong to introduce the word. DC Glendenning accepted that S may well have perceived this as her wanting him to say that his father had done something dirty to him.
      2. Notwithstanding that S had again made clear in response to the foregoing questions that nothing else had happened, DC Glendenning still persisted. She next informed S that she was aware that S had said things to Ms Khanom. DC Glendenning conceded in cross examination that she had no note of what it was that S was said to have said to Ms Khanom and, as set out above, that Ms Khanom had no clear recollection. Within this context the following exchange took place:
          1. Q: Can you remember what you told her?

A: I told her the same as I just told you.

Q: Nothing else?

A: I told her a little bit of it but not that much.

Q: I think she says you like to say it in its parts and its part 1 and part 2 when your talking about things.

A: Mmmm.

Q: And that you said that part 1 was dirty, can you, it’s really, really important if you could tell me what part 1 is today and then you don’t need to tell me again, can you tell me what part 1 is? What your dad did?

A: Mmmm, really don’t want to tell that bit.

Q: It’s just.

A: I really I really don’t like telling that bit.

Q: I know you really don’t like telling it but see, N’s been very very brave today and he’s told us part 1 and part 2, what happened to him. And obviously, we want to make sure that your safe and that you’re here safe with your mum so we need to know what [TH] did, so that we can make sure that your nice and safe and make sure if he’s a bad person that nothing else will happen to anybody else, do you understand that? And I know it’s, it’s scary telling strangers about things that happened but it’s very very important that we know, so that we can do the right thing and we can make sure that the bad man is dealt with, do you understand that? And Mihema (sic) told me that you told her, so just, if you just told me just that once, then I can sort, I can make it all sorted.

A: Well mummy told the nurse but I don’t want told her, the nurse parts1.

Q: I know.

A: Mum told that the bad, bad dirty man done it to me.

Q: I know, but it’s good that your mum told us, but we really need you to tell us, so that.

A: Mmmm

Q: So that we know exactly what happened, you only need to tell it once because that’s why the cameras are here cause one you tell it that’s it. And then you can go back and nobody will be annoying you again. Understand it is very very important. Could you just tell me it really, really quickly?

A: Mmm, Mmm, I couldn’t say it that quickly.

Q: Can’t say it that quickly, how about then, we go back, was it, was it in your dad’s house? In the flat?

That pain in your forehead is because you just banged your head on your desk or keyboard, or any solid object close at hand at how terribly leading that interview is. Oh. My. God.

    1. It is difficult to know where to start with respect to summarising what is wrong with the approach by DC Glendenning set out above. Indeed, the passage largely speaks for itself as an example of extremely poor interviewing practice. DC Glendenning’s questions start from the premise that something “dirty” has happened to S, that TH is the perpetrator (pre-cast by the questioning into the role of the “bad person” and the “bad man”), place emotional pressure on S by telling him that N and his mother are “brave” and “good” for telling what happened and that a statement by him is needed to keep others safe and make promises to S that are unjustified (i.e. if he tells it once he will not have to tell it again). In addition, certain of DC Glendenning’s questions were misleading in other respects. In particular, N had not in his interview made his allegations in terms of “part 1” and “part 2”. Finally, it is clear that S has plainly overheard his mother making allegations to a “nurse” that “the bad, bad dirty man done it to me“.
    2. Within this context, DC Glendenning’s was forced to concede during cross examination that she had during this phase of the interview placed grave pressure on a five year old child to make an allegation against his father. DC Glendenning further conceded that following this passage of questioning that S may well have felt he had little choice but to give DC Glendenning what she wanted.

 

And yet, we’re STILL not done with how bad this ABE could get.

    1. Following the exchange set out above DC Glendenning then proceeded to question S in detail starting, as can be seen, from the premise that something has happened. S told DC Glendenning that what occurred had occurred in Scotland, that he was wearing the pirate costume that he was wearing in the interview (which seems unlikely) and that N was not present. S said that his father did “a naughty thing“. When asked what this was S again limited his allegation to “He. He choked me and he hit me and, and he punched me, and and he, he made me drink that wine“.
    2. DC Glendenning tried yet again. Finally, after telling DC Glendenning that he only wanted to talk to one person, after it was proposed that the other officer leaves the room, and after DC Glendenning said “And you can quickly tell me what happened and then that’s it, would that be OK” S stated that TH “asked me to put his willy in my bum“. S went on to state that “he, he only asked though” and “He didn’t try he just asked“. When DC Glendenning asked “did he ever try and put his willy in your bum” S was adamant that he had not.
    3. Still DC Glendenning refused to accept that as the final position and re-introduces Ms Khanom, asking (again without having access to any recording of what S actually said to Ms Khanom) “Right, erm, when you speaking to Mihema (sic) earlier on, she says that your told her that your dad [TH] put his willy in your bum“. DC Glendenning did not seek to explore with S different versions he had given to Dr Haji and Ms Ille. When, at the end of this exchange, DC Glendenning askes S “Have you ever touched his willy?” S replies “Mmmm of course not“. Later in the interview S states that TH “didn’t do anything to mum“.
    4. Following the interview of S DC Glendenning completed an additional comments form. On that form DC Glendenning recorded her impression of S during the interview as being one of child who “appeared nervous, frightened and confused over what was right or wrong“. Within this context, during cross examination regarding the interviews of S and N on 5 March 2015 DC Glendenning conceded that she was concerned during the interviews that both the children had been coached and that that concern never fully left her during the course of those interviews.

 

 

The social work interview with the children took place WHILST the mother was present and in front of EACH OTHER. I apologise if you now have another blinding pain in the head. Sorry.  Pause for a moment, and pop a pillow in front of you. You will still feel the head-desk urge, but you will now have a softer landing.

 

On 8 December 2014 both children were seen by a social worker from Westminster, a Ms Ille. The records demonstrate that the children were repeatedly questioned by the social worker together and in the presence of the mother and in a highly leading manner that paid no heed at all to proper practice.

 

Once again, I am entirely unclear why Ms Ille, a qualified social worker, saw fit to question the children in company of each other and in front of their mother and to allow the mother to participate in that questioning and to reveal her worries and concerns in the presence of the children. Efforts to secure the attendance of Ms Ille for cross examination proved unsuccessful.

 

Have you got that pillow or soft object handy? If not, get it now. Because we’re going back to a bit about the ABE interview that I didn’t dare tell you before.  DEPLOY your pillow now.  Actually, get a second pillow. Use that too. You are seriously not going to believe this.

 

  1. Further, DC Glendenning stated that she realised straight away that N had notes with him. She further stated that she was concerned that it was possible someone had helped him write those notes. In evidence the mother claimed that N compiled these the night before the interview by himself upstairs. She denied that she talked to him about what he should say in the interview. DC Glendenning was clear in her view that the mother had seen the notes prior to the interview and said as much. DC Glendenning was also certain that the mother had known N was writing the notes and had read the notes prior to the start of the interview. DC Glendenning said she was concerned that N had been prepared for the interview.
  2. Notwithstanding her concerns that N had been prepared for the interview, DC Glendenning proceeded to interview N with his notes available to him. DC Glendenning justified this course of action by reason of N being “desperate” to have access to the notes. N’s desperation to have the notes is clear from the DVD of the interview which I have seen. In particular, it is significant that when it became apparent to N that his notes may be removed, N became flustered and gave a confused answer which indicated that his recollection was not firm.

 

You say notes, I say script, let’s call the whole thing off. Yes, let’s…..

 

There’s another social work investigation, but the social worker doesn’t speak to anyone other than mum and the children, having been told by mum that it is too dangerous for the family for anyone who knows dad to be approached. The social worker had to accept that she had approached the case as though all of the allegations were true, and commended mum for taking protective action when closing the case.

 

  1. I have made reference above to the social worker, Ms Salamant. The refuge made a referral to Hackney Children’s Services on 8 September 2014. Hackney commenced a s 47 investigation on 9 September 2015, which assessment was concluded on 23 October 2014. Ms Salamant was the allocated social worker. There were patent deficiencies in her assessment.
  2. The assessment was completed solely based on information from the mother or information for which the mother was the only source and, latterly, on information gleaned from the children at a series of meetings and, in respect of N, an ABE interview. During her evidence Ms Salamant conceded that, in complete disregard of the principles of good practice that I have set out above, she at no point contacted either father of the children or any member of the children’s extended maternal or paternal families and at no point contacted the children’s previous schools or the health services previously engaged with the children. Ms Salamant further conceded that she did not speak to the mother’s new partner, ER, nor sought to carry out police checks with respect to him (notwithstanding that the refuge expressed concern regarding this relationship).[2] Indeed, until told in the witness box Ms Salamant did not know his address or that he too had children.
  3. Ms Salamant’s omissions were grounded in an apparent unquestioning acceptance of the mother’s claim that it was too dangerous to contact the fathers, the maternal and paternal extended families, the children’s former schools and doctors or the local authorities from whose area they had moved for fear that TH would locate the family. Ms Salamant accepted without question the allegations made by the mother that that TH and BC had “colluded” to find the mother’s address in England, that TH was linked to drug dealers, that “someone” may be sent to England to find the family, that TH was seeking to kidnap the children and that her own mother might accept money from TH to disclose the family’s whereabouts. Ms Salamant made no efforts to investigate whether these matters that the mother claimed prevented a full assessment were, in fact, credible. As I have already set out above, each of the assertions by the mother were, it transpires, entirely un-evidenced and, I am satisfied, untrue.
  4. Finally, and as a consequence perhaps of her one dimensional assessment, it was plain to me having heard her in the witness box that Ms Salamant had proceeded at all times on the basis that the allegations made by the mother and the children regarding domestic and sexual abuse were, without question, true. At no point did Ms Salamant interrogate this assumption.
  5. In light of the findings I set out in the Schedule at the conclusion of this judgment, it is sobering to note that when she closed the case on 23 October 2014 Ms Salamant stated that the mother:
      1. “…has taken all the necessary steps to ensure that N and S are safe from harm and has demonstrated a capacity to reflect on her experiences and provide the children with a sense of stability and safety during this uncertain time.”

On behalf of the mother, Ms Krish concedes, very properly, that Ms Salamant’s assessment, when viewed, as it must be, through the prism of the guidance set out in the Cleveland Report and Working Together to Safeguard Children 2015, was fundamentally flawed and lacked even the basic information upon which to base judgments regarding the welfare of the children or the credibility of their and their mother’s allegations.

 

There was a pre ABE meeting in October 2014, and unfortunately, the recollections of the social worker and police officer as to what happened at that meeting do not only fail to match but they are diametrically opposed.

 

  1. As a result of the mother’s report of what N and S had said on 11 September 2014 the children were seen at the refuge by two Police Officers, DC Card and DC Bishop, and Ms Salamant. The account of DC Bishop and that of Ms Salamant as to what N said on this occasion are diametrically opposed. Neither DC Bishop nor Ms Salamant took contemporaneous, or near contemporaneous notes of their conversation with the children. S refused to speak despite encouragement from his mother in the presence of the two Police Officers and Ms Salamant.
  2. Ms Salamant stated in evidence that upon arrival there was a brief discussion between the adults present in the presence of the children. Ms Salamant stated that this was a “general conversation” at which it was explained to the children that police officers present to ensure they were safe and well. Ms Salamant could not however recall the full conversation. DC Bishop said the mother was with the children for the whole of the introductory conversation during which DC Bishop was talking to the children. In contrast to Ms Salamant, DC Bishop estimated that that conversation lasted 15 to 20 minutes. No record of that conversation was made.
  3. With respect to the allegations said to have been made by N, Ms Salamant could not recall what N had actually said nor the context in which he said it. After returning to the office and nearly three hours after the meeting had begun Ms Salamant made an entry in her records, namely that (a) TH had played with S’s privates, (b) TH tried to drown me and gave me “Chinese” burns and (c) he witnessed TH hit his mother. Ms Salamant also recorded that “N made a disclosure stating that [the mother] is isolated and is not in touch with friend and family“. She conceded that N would not have used the form of language in the record she completed and accepted that her recording was wholly inadequate. She further recalled that the mother had made the same allegations as those she ascribed to N and appeared, ultimately, to be uncertain as to whether that which is recorded in her record came from N or from the mother.
  4. Within this context DC Bishop, having also participated in the conversation with N, recorded in her pocket book only that N “stated that his brother’s dad had hurt him when he dropped food on the floor.DC Bishop readily conceded that her notes were very poor. DC Bishop was however very clear in her oral evidence that N made only one allegation. DC Bishop said that she did not hear N say anything about the matters recorded by Ms Salamant in the social work records. In my assessment, DC Bishop was a more reliable historian that Ms Salamant

 

 

Interview by GP

 

(vii) Appointment with Dr Haji on 8 October 2014

  1. On 8 October 2014 N and S were taken to see Dr Haji, a general practitioner. It would appear that at the outset of the appointment the mother gave Dr Haji an account of the family’s background and of the allegations of sexual abuse in the presence of both N and S. The social work entry records that, in front of S, Dr Haji asked N to describe what he had seen TH doing to S and that (in another slightly different account) N is recorded stated that TH “touched S down below and entered him.”
  2. Dr Haji records that S was “unfortunately present” when N pointed to his penis and said he tried to put this into S’s back passage. Within this context, the social work record of this appointment states that at this point, and several times thereafter, S interjected forcefully and said “that’s a lie, that didn’t happen“. Dr Haji’s note records that S shouted that “this had not happened“. Within this context Dr Haji is recorded as having contacted children’s services to express his initial concern that S (given the context I suspect the recording is mistaken and Dr Haji in fact said N) may have been asked to disclose the sexual assault allegation.
  3. I am entirely unclear why Dr Haji saw fit to take a history from the mother of the family’s issues in front of the children. Notwithstanding that it produced several forceful, and forensically significant, denials from S, I am equally unclear why Dr Haji considered it to be proper to permit N recite his allegation concerning the sexual abuse of S in S’s presence

 

 

There were allegations at school, and the procedures there too were not followed

 

  1. The most recent safeguarding training at the school, a copy of which I have also seen, makes clear under that the ‘Cause for Concern Form’ must include exact information, the name of the child and the date. The training makes clear that the teacher receiving the allegation must not ask questions and should not tell carers of concerns unless part of an agreed strategy.
  2. Both Ms Lot and Ms Duggan appear to have failed comprehensively to follow their own school’s safeguarding guidance and training and the accepted good practice with regard to the recording of allegations made by children. In the case of Ms Lot, in addition to not making any written record, she proceeded to question N and informed the mother (apparently in N’s presence) of what he had said. These are in my judgment serious omissions on the part of a teacher fulfilling a child protection role. As a result, the court is left with no accurate record of what N said and no clear idea of when he said it.

 

 

The Judge was satisfied that the father had not abused the children and that the mother had fabricated the allegations. There’s a lot of detail in the judgment about this, if you are sceptical, I’d point you towards reading that. (Being fair, just because the investigative process was flawed does not mean that the allegations were untrue, so you would need to read those passages to be sure).

 

  1. Standing back to survey the broad canvas of the evidence, I am satisfied for the reasons I have given that not only were the allegations made by the mother and the children false, but further that the allegations made by the children were generated by the mother placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
  2. In the case of Re W (A Child) [2014] EWCA Civ 772 Ryder LJ (as he then was) observed as follows with respect to the significance of parents who make or cause to be made false allegations of physical and sexual abuse:
      1. “Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”
  3. Within this context, and having regard to the extensive matters set out above, I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.

 

The Judge also outlined that the failure of all of the professionals to follow proper procedures had harmed the children and compounded the emotional harm that the mother was causing them.

 

  1. I am further satisfied on the evidence that the actions of certain professionals in this case breached well-established principles of good practice, actively contributed to the difficulties that I have set out above and materially prejudiced the welfare of both children:
    1. i) Almost all the professionals and agencies involved with the children proceeded on the unquestioning basis that the mother was telling the truth and failed to interrogate that assumption by carrying out basic enquiries. The most acute example of this was the assessment of Ms Salamant. Ms Krish properly concedes that the social worker never really challenged the mother’s account and that the most basic independent professional enquiries were not undertaken. Ms Salamant’s failure to challenge the mother’s account and accept it at face value meant that she permitted the mother to dictate completely the frame of reference for the actions of the local authority and other agencies and meant that mother succeeded in portraying herself and the children as victims of serious physical and sexual abuse when in fact they were not. Ms Salamant’s failure to make enquiries of the fathers, the children’s extended families, the children’s schools, doctors and previous local authorities was particularly egregious in circumstances where such enquiries would have revealed a fundamentally different picture to that being painted by the mother.

ii) A number of professionals failed in their duty to keep accurate records of what the mother and the children were saying. This failure was particularly acute (a) on 12 September 2014 where neither DC Bishop nor Ms Salamant kept accurate records of their meeting with the family, resulting in accounts of what the children said that were diametrically opposed, (b) at N’s school in September and October 2014 where Ms Duggan and Ms Lot failed to make any record at all of the allegations made by N in breach of the schools own safeguarding policy, Ms Lot attempting to pass this failure off as a feature of the case being open to social services and (c) on 29 October 2014 when DS Hackworthy took no notes at all of his pre-ABE interview with N and S. Outside the interviews of the children, not one professional recorded a contemporaneous or near contemporaneous account of what the children said to them.

iii) A number of professionals took it upon themselves to question the children with respect to the allegations outside the regulated confines of an ABE interview. There was a particular failure to follow the guidelines by (a) Dr Haji on 8 October 2014 who proceeded to elicit an account from N in front of S, (b) Ms Lot at N’s school between September and October 2015, who took it upon herself to ask multiple questions of N, (b) Ms Ille on 8 December 2014 who repeatedly questioned both children in a highly leading manner (having never met the children) and (d) Ms Khanom who likewise proceeded to question the children in a leading manner.

iv) There was an apparent failure of agencies to co-ordinate their interventions in respect of the children. The most extreme symptom of this was the number of professionals the children were spoken to by in respect of the allegations. As set out above, between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N with five different police officers were involved with interviewing the boys.

v) For the reasons I have set out above both DC Bishop and DC Glendenning failed to apply, in the case of DC Bishop, Achieving Best Evidence, and in the case of DC Glendenning, the Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland. The results of this failure are plain from the passages of the interviews set out above. DC Glendenning conceded that the sole purpose of the interviews on 5 March 2014 was “to get evidence of sexual abuse“. DC Glendenning’s conduct of the interviews on 5 March 2014 with N and S represent in my judgment particularly serious examples of poor interviewing practice.

vi) Finally, ahead of any findings of fact being made or criminal conviction in respect of the allegations, CAMHS intervention in this case extended to therapeutic intervention for N by three psychiatric and psychological specialists in addition to group therapy over 29 sessions and for S over six Play Therapy sessions on the basis that both children had been abused in the manner alleged by the mother.

 

 

 

FGM and future risk

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.

http://www.independent.co.uk/life-style/health-and-families/health-news/more-than-1200-cases-of-fgm-recorded-in-england-in-just-three-months-a7069901.html

 

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

http://www.theguardian.com/society/2015/feb/04/first-female-genital-mutilation-prosecution-dhanuson-dharmasena-fgm

 

 

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

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1338.html

 

 

  • 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)

 

 

 

A child found to be lying in criminal court, should she give evidence in family Court?

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.

 

  1. 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.
  2. 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.
  3. 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.’
  4. 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.

 

 

  1. 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.’
  2. 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

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/59.html

 

decided that the child, Z, would not be called to give evidence.

 

  1. 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:
    1. “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.”
  1. 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.
  2. I have reached that conclusion for the following reasons:
  1. (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 be considerable 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.

https://suesspiciousminds.com/2016/02/11/can-you-compel-a-child-to-give-evidence/     ]

 

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)

 

  1. 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. (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)

(4) Repeated interviews (ABE Guidelines paragraph 3.130)

  1. 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.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/93.html

 

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.

 

  1. 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’.
  2. 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.
  3. 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

  1. The new material relied upon to re-open the findings can be summarised as follows:
  1. (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.

  1. 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.
  2. 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.  ]

 

 

  1. Decision
  1. 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:
  1. (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 different ways, 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.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/95.html

 

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

  1. 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:
  2. (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.

  1. The LA does not support the Re W application. They submit
  1. (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

  1. 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.
  2. 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.
  3. 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.
  4. 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. (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.

  1. I have reached this conclusion on the information available to the court now.
  2. 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.
  3. 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.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/96.html

 

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

  1. 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.
  2. 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

  1. 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. (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

  1. 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.
  2. 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

  1. The evidence from Z has been put under renewed scrutiny in this hearing.
  2. 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.
  3. 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.
  4. 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.
  5. 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?]

 

 

  1. 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.
  2. 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.
  3. 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

  1. In considering these findings afresh I remind myself of a number of key matters:
  1. (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.

  1. 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.
  2. 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.
  3. 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:
  4. (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.

  1. I have reached those conclusions for the following reasons:
  1. (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.

 

Snug as a bug in a rug

 

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"

“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.

 

Cumbria County Council v M and Others 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/27.html

 

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

  1. 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.
  2. 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.
  3. 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.
  4. 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?”

 

 

Low level falls and head injuries

 

This is a case decided by Recorder Howe QC, and it is not binding precedent, and also of course it turns on the individual facts of the case, but it does seem to me to have wider interest and implications on what the medical professionals said about whether a fall from a low level height could cause the sort of bleeding on the brain (subdural haematomas) which are often linked with non-accidental shaking injury.  There was also a skull fracture about a month later.

In this case, the parents account was that the only incident of note was the child, 11 months old, had been standing, holding onto the back of a chair for support and had fallen backwards and banged his head on a laminate floor. The skull fracture they say was caused when the child fell and hit his head on a kerb.

Could that have caused the serious injuries that he sustained?

 

Re N (A child: Low level falls) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B29.html

Regulars may have picked up that there is a lot of controversy about subdural haematomas and how they might be caused and whether there can, in some cases, be a more benign explanation. The subject even made the national news when Dr Waney Squier was struck off by the GMC for having a view that they considered to be out of step with mainstream thinking.

Here is what the experts said on this case, and I think it is very candid about the limitations of medical science and that the field develops and moves on.  As indicated earlier, much of what is said relates to the very particular set of circumstances of this particular case, but some passages have potential wider interest. I’ve tried to underline these.

 

The Evidence Presented at the Hearing

The Expert Evidence

  1. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  2. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  3. The 3 experts participated in an experts’ meeting on 11 th February 2016 and the transcript of that meeting is found at E152 of the court bundle. The transcript records a very large measure of agreement between the experts that can be summarized in relatively short form. All 3 experts accepted that the fall described by the parents on 9 th August 2015 could cause the intracranial injuries discovered [the August injury], although such significant injury from a fall from standing would be very unusual. Mr Richards was of the opinion that the significant interference with the functioning of the brain was also very unusual from such a low fall. Despite the unusual features, the experts would accept the account given for the August injury to be a credible explanation.
  4. Concerning the September injury, the experts agreed that no convincing explanation had been given as to how N had suffered this fracture. They were all of the opinion that the explanations offered by the parents were very unlikely to cause a skull fracture and, in the absence of a credible explanation, this was likely to be an inflicted injury. They were all of the view that, as the September injury was more likely to have been non-accidental, when taken together with the unusual features of the August injury, this increased the likelihood of the August injury also being caused by an inflicted event.
  5. When giving their oral evidence, what had appeared to be a large measure of agreement between the experts did, due to the well targeted and effective questions put to them by all 4 advocates, fall away with respect to a number of important matters. This was not, in my judgment, wholly unsurprising given that each expert answered the questions from the perspective of their own particular specialisms and their own clinical and medico-legal experience. However, the divergence of views produced an additional element of complexity to the determination of the local authority’s allegations against the parents in this already complex case.

 

Head Injuries Caused by Low Level Fall

  1. For the local authority to succeed on the primary threshold findings it seeks, it has to prove on the balance of probabilities that the explanations provided by the parents are not how these injuries were caused. It is not for the parents to prove that the injuries were caused by the low level falls that they have described.
  2. When he gave his oral evidence, Mr Richards said the following [my note]: “This is a debate [whether low level falls can cause intracranial injury] that is lively at the moment. I was recently in a telephone conference involving a number of experts. Dr Cartlidge was involved and making a point about these cases and there were some rather heated exchanges about the possibility of low level falls causing serious injury. The vast majority of low level falls are not imaged. Of those that are, neuro-radiologists will say that low level falls, of the type N had, cannot cause multi-compartment bleeding and, therefore, the story given by the parents must be untrue. I, like Dr Cartlidge, say ‘can you say that on the data we have’? I say we don’t know.

A decade ago, apart from the babies that died, it was said that birth did not cause subdural haemorrhages. 3 research projects have now demonstrated that it does and it is now universally accepted that birth causes subdural haemorrhages in about 50% of babies. The medical profession were wrong before. Low-level falls may be similar. We can’t do routine MRI scans of children of this age as they have to be given anaesthetic to keep them still. The reason that these children are not imaged is because the majority just get up from a fall and have no injury. Very few have any disturbance for 1 or 2 days and even fewer for a longer period”.

  1. At paragraph 23 of his report dated 16 th December 2015, Mr Richards said “patients with such low level falls are rarely imaged on the grounds that there is no neurological disturbance from such falls, so we do not really know the number of low level falls which do cause fresh subdural bleeding. In those that are imaged it is extremely rare to identify fresh subdural bleeding.”
  2. In his report to the court, Dr Cartlidge said, at page 19, ” It is probably very unusual for such a short-distance fall to cause subdural bleeding, although I agree with Mr Richards that it could be more common than currently appreciated since neuro-imaging might not be undertaken in such cases. I have professional experience of a similar low-distance fall causing subdural bleeding in two infants (findings of Family Courts). Initial symptoms in my experience are often akin to those seen in reflex­ anoxic episodes.
  3. When he gave his oral evidence, Dr Cartlidge said that children would usually stand with soft knees and if he did have that typical stance, and he had some saving reflexes, he would not perform what Dr Cartlidge described as a ‘matchstick fall’ (a straight fall backwards with a stiff body). Dr Cartlidge was of the opinion that by far the most likely response from a child of this age would be a bending of the knees and a fall onto his bottom. However, Dr Cartlidge went onto describe the circumstances of 3 cases he has encountered in his medico-legal work where the family court accepted that an injury had been caused by an accident or had not found the allegation of non-accidental injury to be proved. The detail given by Dr Cartlidge in his oral evidence was supplemented by a later e-mail that all advocates agreed I should consider. The details of the low-level fall cases referred to by Dr Cartlidge included the following:

1 case involved a 42-week old who fell about 65 cm from a bed. There was a brief acute encephalopathy (interference with the functioning of the brain), subdural bleeding over a cerebral hemisphere and in the posterior fossa (the part of the brain at the top of the brain stem underneath the cerebral hemispheres) and acute traumatic effusion (an acute effusion appears similar to chronic subdural haemorrhage on the initial CT scan (as black fluid) but is due to an acute tear/rent in the arachnoid membrane allowing normal cerebrospinal fluid (seen as black on CT scans) from the subarachnoid space to cross into the potential subdural space. This causes a black fluid collection of cerebrospinal fluid (CSF) in the subdural space due to recent trauma that mimics the appearance of an old subdural haemorrhage from a prior injury). There was subdural blood in the thoracic, lumbar and sacral spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

A second case involved a 35-week old who fell from standing (about 70 cm). There was acute encephalopathy after initial crying for some 2 minutes and a large subdural haematoma (space-occupying). There were also retinal haemorrhages. The Family Court found the injuries to be accidental.

In the 3 rd case a 52-week old fell from standing (about 70-75 cm). There was mild or possibly absent acute encephalopathy. Subdural bleeding was present over a cerebral hemisphere and in the posterior fossa. Acute traumatic effusion was present. There was subdural blood in the lumbar spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

  1. I must decide the facts in this case on the evidence that I have heard about this child and not be swayed by comparisons to other cases involving different children and different facts. However, Dr Cartlidge’s purpose in highlighting these other cases was to provide clear examples to support his opinion that children can suffer what he described as ‘nasty intracranial injuries’ when falling from standing.
  2. At page 21 of his report, Dr Sprigg says “Subdural haemorrhages may occur following a known traumatic event involving a significant impact, e.g. being dropped forcibly onto the baby’s head from a significant height or hitting a hard object at speed. In older children they can occur during accidents -eg getting knocked over by a car. They are exceptionally rare from low-level domestic falls in infants. The site of bleed in accidental injury is usually physically related to the site of impact over the cerebral hemisphere. Subdural bleeds in non-accidental injury are more often over both hemispheres and may also be seen in the posterior fossa near the cerebellum near to the craniocervical junction. This is a rare site for accidental trauma”.
  3. At page 13 of his report, Dr Sprigg sets out “the finding of posterior fossa bleeding is more commonly seen in non-accidental head injury (NAHI) but it is recognised in significant accidental impact to the back of the head”.
  4. In his oral evidence, Dr Sprigg told me that the bleeding seen on the scans was consistent with a shake or an acceleration/deceleration event. He said that there was bleeding over both sides of brain and at the base of the brain. His evidence was that this is a pattern that is commonly seen in shaking cases but it can also occur if there is a significant bang to the back of the head.
  5. It was Dr Sprigg’s opinion that the bleeds found on 11 th August 2016 [the August injury] could have happened by a short fall but it would be uncommon. When cross-examined by Ms McFadyen, Dr Sprigg told me [my note]

“A fall to the floor as described is acknowledged as a mechanism that can cause this intracranial injury. Most children would not suffer any injury from such a fall. Some may suffer a skull fracture. It is uncommon to find bleeding over both hemispheres and at the cerebellum but it is possible. If the history had been that he fell on his forehead, I wouldn’t agree that the explanation was consistent but as he fell onto the back of his head, where all the veins gather and is an area vulnerable to injury, it is a credible account. Had this occurred at our hospital, it would have been said that this was feasible”.

  1. Having heard all 3 experts give their oral evidence, I formed the clear impression that they were each open to the real possibility of such low level falls, of the kind described by M and F as occurring on 9 th August 2015, causing the intracranial injuries seen on the 11 th August scans. Indeed, Mr Richards and Dr Cartlidge were more open to this kind of mechanism being an accurate account for the causation of such significant bleeding than they would have been in years past. There was no hint of dogmatism from any of the 3 experts; they were open to considering both the rare and the unusual.
  2. Mr Richards, Dr Cartlidge and Dr Sprigg carried this openness to considering the unusual and rare through to their consideration of the potential causes of the skull fracture discovered on 14 th September.
  3. In his report dated 24 th November 2015, Dr Sprigg provides a detailed account of the possible causes of skull fractures. He describes:

“A skull fracture is commonly due to a forceful impact. This may be due to the head hitting something hard, or a hard object hitting the head with significant force. An infant may have an accidental skull fracture but this depends on its level of mobility. For example, a two month old baby is not sufficiently mobile to self inflict a skull fracture, but a ten-month old that is crawling and falls downstairs might self inflict a skull fracture. An infant’s skull is flexible and tends to bend rather than fracture. It takes significant force to fracture an infant’s skull. As a generalisation under 1-2% of infants will sustain a skull fracture if they are dropped from below adult waist height. However, if the fall is from a greater height this is more likely to produce a fracture than a low level fall. When the fall is onto a hard surface (eg concrete or laminate flooring) versus a more compliant surface (eg carpet with under-felt over floorboards) then the harder surface increases the chance of fracture. A free fall (drop) involves less force of impact than if a baby is thrown down. Occasionally skull fractures occur related to birth. They are uncommon, but have a higher incidence in a difficult forceps delivery than ventouse or than in normal vaginal delivery of a normal sized baby”.

  1. When he gave his oral evidence, Dr Sprigg was of the opinion that either fall described by M (from sitting or from standing) [the September injury] would be unlikely to cause this skull fracture but could not be excluded as impossible. When answering questions from Ms McFadyen, he told me “If this was an isolated event and the history was that he had fallen over to the right and had come straight into casualty, it would be accepted as an accidental event. There is a skull fracture rate of below 1 to 2 % if a fall is from below adult waist height but had he been presented quickly with a consistent history, the explanation might have been accepted”.
  2. Mr Richards’ mind was similarly open to the possibility of the fall as described by M being a possible cause of the skull fracture. He told me that a low level fall would be unusual for causing a skull fracture and a drop of about 82 cm is usually required to cause a fracture from research undertaken with deceased infants. However, he would not rule it out as impossible but it would be a very rare event.
  3. Similarly, Dr Cartlidge would not rule-out any event as being impossible but was more sceptical that the simple fall, of either type described by the mother, would cause a skull fracture. It was put to him that it may have been that N fell and hit his head on the kerb. When considering this scenario, Dr Cartlidge said [my note] “the right side of the head is the site of the fracture. The shoulder is in the way and for the shoulder not to be in the way, I struggle to see how the right side of head would bear the full brunt of the force of the fall but if you get over that and the head pivots over his neck and hits the edge of the kerb, that could cause the fracture”. That was about as close as Dr Cartlidge would be drawn toward accepting that the fall described was, of itself, a possible mechanism.
  4. Having considered the fall proposed for the September injury in isolation, each expert relied on important contextual facts as indicating that the fall described on 6 th September 2015 would not have caused the fracture to N’s skull.
  5. Establishing a timeframe for the causation of the skull fracture and identifying whether the evidence reasonably excludes the 6 th September, a date some 8 days before the fracture was discovered on the scans as a day within that timescale, is a crucial matter for the court to consider when determining whether the local authority has proved that this alleged fall was not responsible for the skull fracture.
  6. When looking at the timing of skull fractures, there was no dispute between the experts as to limits of radiological evidence. Dr Sprigg described in his oral evidence that once a skull fracture is present, it can be seen for 3 to 6 months on the x ray, as there is no healing periosteal reaction. He said that the fracture can only be said to be recent if there is swelling present over it and that swelling is present for around 7 to a maximum of 10 days. The identification of scalp swelling, what type of scalp swelling was present and how long a swelling would be present became an issue between the experts upon which they did not agree.
  7. In addition to the identification of swelling, all 3 experts agreed that the clinical presentation and the clinical history was crucial in identifying a reliable timescale for the causation of a skull fracture. The immediate pain reaction of a child was a matter upon which the experts agreed however, the duration of a visible pain reaction when touching the site of injury, and its relevance to the timeframe for the injury, was not a matter upon which Mr Richards and Dr Cartlidge agreed.

 

In this case, the threshold was found to be satisfied in relation to the skull fracture in September 2015 (changed from previous inaccurate year on my part), the evidence of the parents being a relevant factor and the lies that they were found to have told about various matters.

 

There was not a finding that they had caused an injury in August by shaking the child and the Judge was satisfied by the parents explanation for this injury.

141.                      As already described, N was admitted to hospital on 9 th August 2015. M and F gave an account of him falling and hitting his head. The treating doctors at Birmingham Children’s Hospital accepted that the fall described was an acceptable explanation for N’s presentation.

  1. I have heard evidence from Mr Richards, Dr Cartlidge and Dr Sprigg and all 3 experts would accept that the fall described could account for the subdural bleeding found.
  2. Mr Richards says at §2.4 on E66 that there was no evidence of impact either clinically or on neurological imaging and he thought that unusual given that N’s behaviour was disturbed for so many days. He also thought it very unusual that such a low fall would, of itself, cause such significant symptoms. In his oral evidence he said subdural haemorrhages can have no symptoms at all and those seen on N’s scans were very thin and not compressing the brain. He said there was no other brain injury so, would not expect the haemorrhages to cause any symptoms at all, the symptoms have come from the way the brain was functioning and it was not functioning right with for 5 or 6 days. It was Mr Richard’s opinion that such a level of disturbance would require a harder bang on the head. He said that he would only expect to see disturbance of brain function of 24 to 48 hours so disturbance for longer would be consistent with a harder level of force. He said it was very very unusual if this was caused by this the low level fall.
  3. Dr Cartlidge and Dr Sprigg in the expert’s meeting on 11 th February and in their oral evidence acknowledged the unusual features of the case as outlined by Mr Richards but all 3 experts accepted the fall described as a possible mechanism for N’s presentation.

 

 

       I understand the approach taken by the experts that the unsatisfactory nature of the explanation given by the parents for September injury increases the likelihood of the August injury being an inflicted event. However, I have had the advantage of seeing MK give evidence. This was a witnessed fall and not, in my judgment, an event that has been invented. I find that there is no evidence of any other intervening event that has caused this injury and the local authority is simply speculating that M must have injured N at some point overnight or during the day on 10 th August. N’s presentation was consistent with a pattern recognised by Dr Cartlidge and although the experts could not exclude a 2 nd event, they were of opinion that one event was the most likely explanation. I accept their expert opinion and find that the one event that was witnessed by MK caused this August injury.

 

Can you compel a child to give evidence?

 

The Court of Appeal in Re S (children) 2016 consider this point of law, and whilst they say that they are explicitly not ruling on it, they do give the answer

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/83.html

During the appeal hearing, the question arose as to whether the judge could have compelled K to give evidence if she remained unwilling to do so. I am grateful to counsel for efficiently providing an agreed note of the legal position immediately following the hearing. As that note recognised, the question of whether a court can/should use its powers to issue a witness summons in relation to a reluctant child in family proceedings has not been considered by the Court of Appeal or the Supreme Court since the Supreme Court’s decision in Re W (supra). The present case was not one in which we needed to hear oral argument on the subject and I would not wish to be thought to be expressing any view about it. However, it may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. 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.

 

So

  1. If the child is competent  (rule of thumb here is going to be functioning at about the level of an average 13 year old, but there may be other factors which make an older child not competent or a younger one competent), then they are a compellable witness.
  2. A compellable witness can be made to attend Court to give evidence under a witness summons
  3. The protection against self-incrimination in s98 Children Act 1989  doesn’t apply to a child – so they would have to be warned about the risk of possible criminal proceedings arising from their evidence.
  4. However, the punishment for a person not obeying a witness summons (i.e what you do if they don’t turn up) are imprisonment or a fine.
  5. You can’t imprison a witness under 18 for not obeying a witness summons.
  6. That leaves you with a fine.  Unless the child witness is Richie Rich or Mustafa Millions, that doesn’t really help.
  7. So you CAN compel them, but you can’t actually do anything if they call your bluff.

 

That’s the legal interest in the case. Other than that, it is always worthy of note when the Court of Appeal split. The main issue here was that a 15 year old K, made allegations of sexual abuse and reported them to the police. There was then something of a backtracking when the police wanted to press charges. K did not want to press charges, she had wanted the abuse to stop. She said to the police that she was not retracting the allegations, but didn’t want charges to be pressed.  However, one police note of a conversation with K recorded that K said she had made the allegations up.  K then wrote two letters saying that she had made the allegations up and that things had got out of hand.

Those representing the alleged perpetrator in the family Court proceedings about K and her siblings understandably wanted K to be produced as a witness. A judicial decision was taken not to compel her attendance, and the Judge went on to make findings (including one which was supported by a medical but was explicitly not an allegation that K had ever made herself).  The findings and the case management decision were appealed.

All three of the Court of Appeal Judges said that the finding which was suggested by medical examination but had never been a claim that K had made had to be overturned. Two of the Judges held that the other findings were safe and should not be overturned. The third took the opposite view.

 

I will set out the minority view, which was not the decision of the Court of Appeal, because I think it contains some powerful arguments (even though they were not successful). For my part, I think it is very difficult to make findings of such a serious nature as sexual abuse when there are changes of position by the complainant, and letters of retraction, without hearing some direct evidence from the complainant. I think that the Judge worked very hard to make it as fair and balanced a judgment as possible, but I would have been with Lady Justice Gloster on this, I just don’t think that the findings can be considered safe in this context. The burden of proof is on the LA to prove that the abuse happened, not on the accused person to prove their innocence.  [Sometimes you do end up with cases where there are very strong suspicions but also doubts, and what tips the balance either way is the credibility of the complainant. If the accused person cannot properly test the complainant’s evidence, the right to fair trial is questionable, for me.]

 

Lady Justice Gloster:

 

  • It is with considerable diffidence that I disagree with views expressed by such experienced family judges as Lady Justice Black and HHJ Moir. This court is rightly very cautious about interfering with case management decisions and second-guessing findings of fact made at first instance by careful family judges. However this case has left me with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment dated 15 October 2014 (the order in relation to which is inappropriately described as a “case management order”) in which she held that the Appellant had indeed sexually abused his sister, K. That concern is aggravated by the fact that, as my Lady, Lady Justice Black, has held (and as I agree) there was no basis for HHJ Moir’s finding that the Appellant had anally abused K.
  • The critical features of this case may, in my judgment, be summarised as follows:

 

i) The single issue was whether the Appellant had abused K.ii) The case against the Appellant depended entirely on the veracity of K’s allegations.

iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred.

iv) There was no medical evidence of vaginal penetration, despite K’s repeated allegations that she had had full penetrative sex and that she was “no longer a virgin”. In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that “penetration through the hymen can occur without leaving any physical signs”; see paragraph 30 of the judgment.

v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions.

vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a “mature young person who had the capacity and competence to give instructions.” The social worker who assessed described her as a “determined and strong willed individual who speaks her mind”, and also observed K as being “quite fragile in her presentation and lacking in self-esteem.”

vii) In deciding whether K should give evidence, the judge relied upon the opinion of K’s guardian and the social worker to the effect that:

“I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling.

….

I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]”.

viii) On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge.

ix) As a result of the judge’s ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called “vulnerability, a fragile presentation and her lack of self-esteem”, the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K’s case.

x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights (“the ECHR”) to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.

 

  • In my judgment HHJ Moir’s case management decision dated 15 October 2014, in which she decided that K should not be called as a witness, failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12 namely: the advantages that a child giving evidence will bring to the determination of the truth; and the damage which it might do to the welfare of the child witness. In my judgment, there was no adequate medical, or indeed other, evidence, apart from the vague and dubious views of K’s guardian and the social worker, to support the conclusion that it would be so harmful for K to give evidence that she should not be asked to do so. Nor was there any adequate analysis by the judge as to why those concerns trumped the entitlement of the Appellant to question why she had retracted, or, at the least, to some extent resiled from, her previous allegations.
  • As to the first consideration, K was at the time of the fact-finding hearing 13 years and 10 months old and had no cognitive impairment. There was no reason on age and maturity grounds why she should not have been called as a witness. She had displayed as a person who was at least to some extent prepared to exert pressure on the authorities to force the outcome of the criminal proceedings. She clearly had differing attitudes at different times as to whether she wanted, or was prepared, to give evidence. She was a mature young person who had been described as a “determined and strong willed individual who speaks her mind”; see above. Her allegations were extremely serious. There was, in my judgment, no adequate consideration by the judge as to whether K should be required – and indeed whether it would be in K’s interests for her to be required – to give evidence, which either stood by her previous allegations, or which explained the circumstances in which she had resiled from them. Whilst, whether her allegations were true or false, it might well have been distressing or demanding for her to have given evidence, there was no psychiatric or psychological evidence to support the idea that it would have been mentally damaging for her to have given evidence. There was no consideration by the judge as to the advantages to K personally of facing up to the consequences of the allegations which she had made, whether they were true or false, or as to the disadvantages to her of being allowed to avoid responsibility for the consequences of her allegations by not being required to attend trial.
  • Moreover, it was extremely unclear whether K was an unwilling witness or not. She changed her mind frequently about wishing to give evidence in the months leading up to the judge’s ruling and had not been asked in the weeks prior to the ruling whether she would, in fact be prepared to give evidence (whether with or without special measures). Indeed it is significant that the final order dated 8 December 2014 recites the fact that K “would like to meet with the judge”, although the judge ruled that this could not take place until the proceedings were over.
  • In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others. The fact that counsel for the Appellant did not raise the possibility of the judge questioning K in the presence of counsel, but in the absence of the parties, by reference to questions agreed in advance, does not seem to me to be a reason why the judge should not have given consideration to such an option or other alternative options. This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.
  • As to the second consideration, in my judgment there was no adequate consideration by the judge of the impact on the Appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the Appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the ABE interviews conducted before K sought to retract, or sought not to proceed with, her allegations.
  • For the above reasons, I would have allowed the appeal against the judge’s case management decision dated 16 September 2014. In my judgment the judge failed to appreciate that the critical issue was whether or not the Appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way. In my judgment the judge failed properly to apply the guidelines set down in Re W, which reflect the paramount consideration that a party should have a fair trial.
  • I should say that, so far as the evidence of the K’s two friends are concerned, such evidence was clearly hearsay and should have been afforded very little evidential weight, since, in all the circumstances, it could have provided very little corroborative support for K’s own evidence.
  • Likewise, for the above reasons, it seems to me that the judge’s conclusions in her fact-finding judgment dated 15 October 2014 are clearly open to serious doubt. I do not see how, in the absence of up-to-date evidence directly from K herself, as to the retraction and/or reluctance to proceed with her allegations, the judge was able to conclude that she could rely so heavily on the ABE interviews, or come to the conclusion, as set out in paragraphs 38-39 of the judgment, that K’s allegations were true and that her retraction had arisen partly because of pressure from her family, but largely because of her own feeling of responsibility for breaking up her family and her own strong desire to see her nephews. The inferences which the judge drew from the documentary evidence in my judgment cannot be supported in the absence of up-to-date direct evidence from K herself.
  • I also regard the judge’s analysis of the evidence of the Appellant as inadequate. There is no, or no adequate, explanation by the judge as to why she felt able to reject his evidence that the alleged abuse never took place.
  • In my judgment the judge failed to give proper consideration to the fact that the burden of proof lay on the Local Authority. She had no basis for concluding on the balance of probabilities that K’s serious allegations against the Appellant had been proved. In the absence of any opportunity afforded to the Appellant to challenge K’s evidence that was not a conclusion which I consider she was entitled to reach. In my judgment, the Appellant did not have a fair trial in accordance with his rights under Article 6 of the ECHR and, as a result, his Article 8 rights and those of his infant sons, have been seriously infringed.
  • I would allow the appeal and set aside the findings of HHJ Moir. I would rule that no findings adverse to the Appellant in relation to the allegations of sexual abuse could properly be made on the evidence available to the judge. But since Black and Vos LJJ consider that the appeal should be dismissed, that will be the order of this court.

 

Guardian neutrality at fact finding hearing – is it right, wrong, or are you neutral about that?

A twitter follower, @dilettantevoice put this one in front of me.

Cumbria County Council v KW 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/26.html

It is a case of a suspected head injury, with the usual classic triumvirate signs.  The case is interesting, from a legal perspective, because of paragraph 58

Having considered the legal framework and surveyed the broad landscape of the evidence I turn now to my findings. I record that the Guardian has thought it appropriate not to advance any submissions on the findings sought by the Local Authority. This is a wide spread practice which I would, for my part, strongly deprecate, in most cases. The importance of strong, intellectually rigorous representation on behalf of the child’s lawyer and his Guardian, has been emphasised regularly see: GW and PW v Oldham MBC [2005] EWCA Civ 1247; Re U (A Child) [2005] 2 FLR 444; Islington LBC v Al-Alas and Rway [2012] 2 FLR 1239. These principles apply just as vigorously, in my judgement, to the fact finding process. A position of neutrality motivated solely by desire to appear independent and objective in the eyes of the parents loses sight of the primary professional obligation to the child. I am aware that others take a different view

 

That isn’t part of the ratio, so isn’t a binding proposition, and you can see that Hayden J even says at the end that he knows that others take a different view.  It is a tricky issue. I’m firmly of the view that the Guardian has an important part to play in a fact-finding hearing, and it isn’t (as some think) a “Deckchair brief” – the Guardian and their representatives have to make sure that they do whatever they can to assist the Court in establishing the truth of what happened to the child – to make sure that the right documents are obtained, that the right experts are asked the right questions, and that all of the proper issues are investigated by the Court. It can, therefore, be a very tough brief, since rather than having a set of questions prepared in advance, the lawyer has to be flexible and fluid and extremely on top of all the detail and attentive to how the evidence develops.

It is vitally important for the child, and their siblings, that the Court comes to the right conclusion – either because the child has been harmed and needs to be kept safe OR because the allegations are not correct and the parents don’t pose a risk and there’s a danger of the child being wrongly separated from a parent. In representing the child, you obviously want that decision to be right and for all the important evidence to be drawn out.

Whether at the conclusion of all of the evidence and in making submissions,  as the Guardian here felt the Guardian should stay neutral, or whether as Hayden J thought the Guardian should pin their colours to the mast, is very difficult.

Looking at things logically, if the Guardian hasn’t played a part in the direct collection of evidence (i.e is not a witness of fact, but of opinion), then is his or her view actually significant? On causation, I mean. Clearly on what risks flow if the allegation is proven, and what should happen next, the Guardian’s opinion is vital. But if all the Guardian is doing is saying, having heard all of the evidence, I believe that mother didn’t do it, or that mother did it, how does that really help the Judge?  So, I’d tend to agree with the Guardian here. I’m sure if the Guardian had very strong views either way and wanted to put them in submissions, that would be okay too, but just of limited evidential value.  Is it wrong to remain neutral though, if that’s the Guardian’s preference?   At a fact finding stage, I’d say that it isn’t wrong.  You can follow the professional obligation to be the voice of the child without making your own quasi-judicial view of the evidence.

 

[If the Guardian is a witness of fact – i.e he or she has some factual information to provide about parental presentation or the relationship observed between parent and child or inconsistencies in accounts they gave to the Guardian, then I think it is more incumbent to come off the fence]

 

In broader terms, this is a case where the medical opinion was that the medical evidence alone would not determine the case. The medical evidence alone could not rule out non-accidental injury, nor could it rule out a benign explanation.  (As the Judge later explained, that did not mean that each of those possibilities was equally possible just that neither was impossible)

 

“All counsel agree that the Court should approach any findings it may make in this case by having regard to the broad canvass of the evidence i.e. the medical evidence; the lay evidence; the social work assessments etc.

In this exercise the Court is entitled to conclude that the medical evidence from each of the disciplines involved may, both individually or collectively, support either of the findings contended for by the parties ( i.e. accident or non accidental head injury).”

There have been quite a few reported cases where the medical evidence points to non-accidental injury but the Court is satisfied from the parents explanation that the parents did not injure the child and makes no finding of abuse. This one is the other way, where the parental evidence  particularly the mother’s evidence and the text messages that she was sending, led the Judge to conclude that the child had been injured by the mother.

An unusual element is the raising of the Japanese Aoki research on head injuries. This is research suggesting that the classic triumvirate can present in an accidental fall from a fairly small height and is thus generally accidental.  This research is not accepted by experts outside of Japan (even the many doctors who suggest that shaking injuries are caused by less trauma than commonly supposed don’t subscribe to it.)

  • as the medical profession has also impressed upon me in the past, if low level falls in infants were associated with SDH, retinal haemorrhages and/or transient cerebral irritation or encephalothopy then such might be seen clinically, they are not. This is the primary basis, as I understand it, upon which the medical profession considers it unlikely that low level falls cause fresh subdural and retinal haemorrhaging. Moreover, as Mr Richards identifies, the scanning of children following relatively minor trauma supports the opposite view, i.e. that such is unlikely to cause retinal or subdural bleeding. Mr Richards develops his analysis thus:

“On the basis of the appearances of the subdural haemorrhage, the acute traumatic effusion and, although I would defer to an ophthalmologist, the retinal haemorrhages, I do not from a neurosurgical perspective think it is possible to determine which is the correct answer. Infants cannot be experimented on in laboratories to determine what forces are required to cause subdural haemorrhaging, acute traumatic effusion and retinal haemorrhaging. Studies where infants are routinely scanned even if there is no clinical indication to do so have not been carried out. It is therefore possible that acute subdural haemorrhage and retinal haemorrhaging following very minor trauma is more common than we think. Nobody knows. On the basis of those children who are scanned following relatively minor trauma it is thought unlikely to cause fresh subdural bleeding, acute traumatic effusion and retinal haemorrhages. However, we do not know this with scientific certainty.

2.8 There has been some publications from Japan where children who are alleged to have fallen backwards from Japanese floor-based changing mats have suffered significant head injury with severe brain disturbance, seizures, subdural haemorrhages and retinal haemorrhages being identified (Aoki 1984). Many outside of Japan consider these publications as indicative of a cultural resistance to accepting the concept of non-accidental inflicted injury and that the cases described as occurring as a result of low level falls were, in fact, missed cases of non-accidental injury. However, the Japanese authors maintain their position that the significant injuries were caused by low level falls. Similar publications have not been generated outside of Japan.”

  • It is my understanding that the Aoki (1984) research is regarded by mainstream medical practitioners as deficient in its technique, methodology and professional objectivity. I can think of no case in the last 20 years (in the UK) where this research has been relied on. Mr Richards articulates the central criticism made of the research as a cultural resistance, in Japan, to the very concept of non accidental injury. He does not, however, directly associate himself with those criticisms. Indeed he asserts that the Japanese authors maintain their position. I am surprised that this paragraph has been included within the report neither can I understand what it is intended to establish by scientific reasoning.

 

I haven’t seen the Aoki research cited in any shaking injury or head injury case either, so it was new to me.  It didn’t go down very well.

 

Whilst there is undoubtedly a place to stimulate dialectical argument on these challenging issues, it is not in an expert report, in proceedings where the welfare of children is the paramount consideration. Whilst the Court must review the differential diagnostic process in order to reach its own conclusion i.e. ‘diagnosis by exclusion’ based on ‘the complete clinical scenario and all the evidence’ (see Dr. Newman, para 14 above) and though it is important to recognise the inevitable ‘unknowns’ in professional understanding, these important points are weakened, not reinforced, by elliptical references to controversial research. In addition, there is a danger that social work professionals and others might misinterpret the information in such a way as to grant it greater significance than it can support. Ms. Heaton QC, on behalf of the mother, distances herself from this paragraph entirely and places no reliance on it. She is right to do so.

 

 

Though the Judge made the findings of fact against mother, he declined to make final orders in this case, allowing instead a window of opportunity for work to be done with the parents and specifically for mother to have the chance to reflect and potentially make admissions that would reduce the risks to a manageable level. I think that’s the right approach – I worry about the rigidity of 26 week limits being applied in these cases, just as I worry about Judges rigidly following Ryder LJ’s Court of Appeal line about not having fact finding hearings separately to final decision in all but the most serious of injuries. A reflective space can make a significant difference for families in such cases.

Poppi Worthington – the Judge publishes his decision about what happened to her

 

I think I’ve written nearly as many blog posts about Poppi Worthington’s case as I have about Re D, yesterday’s case.

The most recent Poppi Worthington piece is here

https://suesspiciousminds.com/2015/11/26/poppi-worthington-the-long-awaited-judgment/

 

For those who don’t know, Poppi died in December 2012.  The Judge in care proceedings made findings about the causation of her injuries, and what also raised media attention was the Guardian’s list of lessons that ought to be learned or failings by professionals.  Those were all finally aired in the judgment above.  The Coroner  considered the case  in October 2014 and left the causes of the child’s death blank. The police decided not to charge anyone. Father as a result of some of the medical evidence obtained in the police investigation asked the family Court to reopen their findings and look at it again.  And all the way through this, the Press have been asking to be able to publish the judgments, and have had to wait until this.

I have to say that the November judgment contained a peculiar line, that the police took a forensic swab from father’s penis, which led to some obvious worries about what it might have been suspected had happened to poor Poppi, but I didn’t want to speculate about it given that the family were going through a re-run of the family Court fact finding hearing.

The father had obviously hoped and believed that the re-run of the finding of fact hearing would clear his name.

I’m afraid that for me, the detail of the case is too grim for me to want to rake over here. For those who want to read it, it is here.

F v Cumbria County Council and M (fact-finding no 2) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/14.html

 

The conclusion of the fact finding was this:-

  1. For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for the bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.
  2. In conclusion, stepping back and reviewing the evidence as a whole, I arrive at the same view as I expressed at paragraph 142 of the previous judgment: Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
  3. My finding at paragraph 152 was that the father perpetrated a penetrative anal assault on Poppi, either using his penis or some other unidentified object. That remains my conclusion. Some witnesses at this hearing have expressed the view that penetration with a penis would have been expected to cause more obvious injuries. That may be so, but the evidence does not exclude any one of a number of distressing possibilities. As I said before, it is not possible to reconstruct the exact sequence of events that led to Poppi’s collapse without a truthful account from the father.

 

Reporting restrictions still apply on naming Poppi’s siblings. The Press access to this particular hearing was unprecedented, giving them access to documents and reports and even allowing for daily reporting and tweeting about the ongoing case provided it was done after the end of the Court day. The Judge thanked the Press for their responsible behaviour.

 

  1. The ability of the media to report a hearing of this kind on a day-to-day basis is unusual and the arrangements here are probably unprecedented. At the outset, ground rules were discussed and established, as follows:

    1. The reporting restriction order made on 11 July 2014 and varied on 14 January 2015 remains in effect. Copies have been provided.

    2. The hearing is taking place in private. Accredited media representatives may attend and are asked to sign in on a daily basis.

    3. Any media representative who attends will be provided with the full 2014 judgment, the medical reports, the minutes of the experts’ meetings, the schedules of agreement and disagreement and the summary of medical evidence. These documents are for information, to assist with understanding the course of the hearing, and they are not for publication. They can be removed from court but they are to be kept safe and are not to be copied or given to others.

    4. The media may report daily on the proceedings on these conditions:

    (1) Such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing.

    (2) Reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, so that the court has had an opportunity to consider whether any additional directions are required.

    (3) Until the publication of the final judgment, nothing is to be reported that might directly or indirectly indicate the findings that the court made in March 2014.

    5. The final judgment, when available, will be published. At that point the full 2014 judgment will also be published.

    6. Any queries about the ground rules should be addressed to court staff who will consult with the parties and with the court as necessary.

  2. A copy of these rules was placed in the civil jury box where, as it happens, the media sat during the hearing. On the first two days, eight media representatives attended, with the number reducing on subsequent days. On a few occasions, issues about what could or could not be published were raised by a party or a journalist, and these were easily resolved. The opening of the hearing was extensively reported, with less coverage thereafter.
  3. I repeat what I said at the outset of the hearing:“I would like to emphasise that the unusual package of arrangements for this hearing arises from the application of existing law to the exceptionally unusual circumstances of this case. These arrangements do not establish new law or practice in the Family Court and they are not intended to set a precedent for other family cases.”
  4. I nonetheless record that the conduct of the journalists in court was entirely professional and their presence did not adversely affect the hearing; on the contrary, their attendance may be said to have reflected the seriousness of the occasion. The media’s ability to observe the court going about its work in this particular case, and to report and comment on the outcome and the process, has in my view been a valid exercise.

 

Where does that leave things (assuming there’s no appeal)?  Well, almost all of the national press are reporting that the Judge found that Poppi died having been molested in a vile way, and that the person who molested her was her father.

The police have made a decision not to prosecute  (that could potentially be reviewed by the CPS  – though given the press reporting, there might be issues of fair trial now, and of course there are the flaws identified in the last judgment about the process. ).

This particular father, because the child’s full and real  name is in the public domain and the Press took such an interest in the case, is probably now known to everyone in his local community and all of them will have a view about the case, yet he has not been convicted in a criminal court or even charged.  His name is actually within the judgment and naming him is not prohibited.

It is hard, of course, to have any sympathy for someone found to have done what this father was found to have done. It is a very tough test of transparency though – it does feel right that the Press were able to dig into this case and report it accurately and properly, but we do end up with a father who the police did not think it was right to charge being named and shamed in the Press as having done something that every person reading it would think was truly monstrous.

 

The Reporting Restriction Order is plain, and will apply to this blog and commentators. Don’t put anything in your comments that would breach it.

A REPORTING RESTRICTION ORDER IS IN FORCE. IT PROHIBITS THE IDENTIFICATION OF THE SURVIVING CHILDREN OR THE MOTHER, OR THEIR HOMES, SCHOOLS OR NURSERIES. IT DOES NOT PREVENT THE NAMING OF POPPI, OR HER FATHER, OR THE REPORTING OF THE CIRCUMSTANCES OF HER DEATH. THE JUDGE HAS GIVEN PERMISSION FOR THE JUDGMENT (AND ANY OF THE FACTS AND MATTERS CONTAINED IN IT) TO BE PUBLISHED ON CONDITION THAT ALL PERSONS, INCLUDING REPRESENTATIVES OF THE MEDIA, MUST ENSURE THAT THE REPORTING RESTRICTION ORDER IS STRICTLY COMPLIED WITH. FAILURE TO DO SO MAY BE A CONTEMPT OF COURT.

 

High Court Judges have no magic wand

 

 

NOT Mr Justice Holman and friend

Absolutely NOT Mr Justice Holman and friend  (I don’t like the look of New Sooty here – he is frankly quite disturbing, but I wanted a wand picture with Sweep in it to please my Twitter followers)

 

 

 

In Re D (Children) 2015 , Mr Justice Holman made some very important observations about the importance of judicial continuity, particularly in cases where there are intractable difficulties about contact. He also expressed some exasperation that cases often reach a point where the Judges just give up trying and transfer the case to the High Court in the hope that somehow the High Court can magically fix everything.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/85.html

 

  1. Cases concerning intractable contact, probably more than any other case within the field of family law, require judicial continuity. There tends to be a need for a number of hearings, and it is of the utmost importance that one single judge deals with such a case from first to last so that he or she becomes very familiar with the dynamics of the a case, and the parties, in turn, become familiar with the judge who is dealing with their case. This makes it particularly inappropriate and unsuitable that a case of this kind is ever listed before an occasional visiting High Court judge unless that judge is known to be making repeated return visits to the area in question.
  2. I myself am currently sitting here in Leeds for about three weeks. I am not scheduled to be sitting again in Leeds or anywhere in Yorkshire throughout 2016, and I have no idea where I will be sitting after that. In other words, I cannot give to this case any judicial continuity whatsoever. I am merely, as it were, passing through it. For the reasons I have indicated, that is highly undesirable, and listing officers should take great care to ensure that it does not happen in relation to a case of this kind.
  3. I am aware that in some cases involving intractable contact judges of a lower tier sometimes believe that in some way a High Court judge can bring a new insight to the case, or bring about change which the lower tier judge has been unable to achieve. The fact of the matter is that I do not have any power in relation to this case which is not possessed also by a local circuit judge. I have no “magic wand”, and any advantage in the case being heard by a High Court judge is more than outweighed by the disadvantage that there can be no judicial continuity.

 

This case bizarrely turned on an alleged telephone conversation between mother and the CAFCASS officer, who records in the very short “initial safeguarding enquiries”

 

“[The mother] stated that whilst she was in a relationship with [the father] he once threw [the elder son] across the bedroom on to a mattress whilst he was angry. She stated that he had never been physically violent towards her or the children but he had bullied her through verbal taunts during their relationship. [The mother] stated that [the father] has sleep problems and this has led to him on occasions wrapping blankets around [the elder son’s] head whilst they shared a bed. She also stated that [the father] has also made unwanted sexual advances towards her whilst he has been asleep and she fears that the children would be at risk if he were to be in the sole care of the children at night time.”

 

The mother instead says that she did not say that the father had not been violent to herself or the children and that there were very substantial allegations of domestic violence to be determined.

She had contacted four solicitors, each of whom she says told her that she would be unable to get legal aid because the CAFCASS report said that there was no violence.  [I think there might be more to this than meets the eye, as I’d expect at least one of them to have said “But if you dispute that you said that, and you do say there was Domestic violence, lets have a look at how you evidence it”, but the Judge was satisfied that this is what had happened]

 

When she raised the issues before the Family Court in person, the Judge there relied substantially on the passage quoted above to show that there was no violence, but did not contact the CAFCASS officer to ask for clarification as to why the report says that but mother disputed it, or call the CAFCASS officer to give evidence. Instead, the passage was rather taken as gospel.  Also rather oddly, when hearing the disputed evidence, rather than having the parents in the witness box giving evidence and cross-examining each other, it proceeded more on the basis of a conversation going backwards and forward.

 

  1. The reality of the matter is that the mother makes very considerable allegations of serious aggression and violence by the father towards her, and separately the children, including her daughter. This case is a very serious one. There are very serious allegations and issues at stake; and, subject to means (but she says she is entirely dependent on state benefits), this mother desperately needs proper legal representation and the court desperately needs the mother (and ideally also the father) to be properly legally represented if it is to get to the bottom of the truth of the matter. To date, however, neither parent has had any legal representation.
  2. So it came about that the case was listed for a fact finding hearing before a district judge which took place on 30th and 31st March 2015. Both parents represented themselves. I wish to make crystal clear that in what I am about to say I do not intend any criticism whatsoever of the district judge concerned (whom I do not know) who obviously did his very best in a difficult situation.
  3. The unsatisfactory nature of the hearing perhaps emerges from paragraph 15 of the transcript of his ex tempore judgment in which he says:

    “Because both parties were unrepresented, as opposed to cross-examination I allowed both parties to have their say and move the matter backwards and forwards and I heard at length from both the parties who confirmed the contents of their written documentation and gave oral evidence. I am satisfied I heard sufficient yesterday to enable me to reach some conclusions.”

    Importantly, he went on to say:

    “I do not doubt that mother genuinely wants what is best for her children and the views she expresses are her genuinely held views.”

  4. However, I have to say that the judgment as a whole contains little account of the detail or content of the evidence that was given, or any real analysis of it. The judge said at the end of paragraph 16 of his judgment:

    “At the end of the day what this court has to grapple with is whether this father is a risk to his children.”

    He then referred to that initial safeguarding report by CAFCASS and the fact that within it the mother is reported as having:

    “…stated that he had never been physically violent towards her or the children…”

    Shortly after that he says in his judgment:

    “I cannot ignore the fact that that is what it is said that mother is reporting, but other than those matters specifically referred to he had never been physically violent towards her or the children.”

  5. I have been told by the mother yesterday, and this was confirmed by the CAFCASS officer who is now the children’s guardian and was present at the hearing on 30th March 2015, that the mother strongly said then, as she says now, that she did not say to that first CAFCASS officer what he recorded her as having said. Deeply regrettably, the officer was never contacted. He was never asked to come to court. Whatever notes he may have made of the telephone conversation have never been produced or examined.
  6. The upshot is that this case has been very decisively affected by a few challenged lines in that initial safeguarding report, which are themselves based purely on a single telephone conversation of which no original record has been produced. They appear to have had the effect that the solicitors whom the mother approached thought that it was forlorn even to apply for legal aid. They appear clearly to have decisively influenced the district judge in the decisions that he reached on the facts.
  7. The upshot is that so far as any allegations of aggressive or violent behaviour towards the children are concerned, the district judge was not satisfied that anything had happened except for one incident, which became known as the “bedroom incident”, in which he concluded that the facts lay somewhere in the middle of what the mother alleged and the father admitted.
  8. In relation to the mother’s allegations of aggression and violence towards herself, the district judge simply said at paragraph 28:

    “Insofar as allegations of behaviour directed against the mother are concerned, again I hear what mother says. I make no specific findings one way or the other, but these are allegations relating to the mother. Mother is not suggesting to her credit that the behaviour was such that she is living in fear of father. They are now separated. If there had been incidents, they are not going to re-occur because the parties are not together. Again, I am not satisfied that anything I have heard satisfies me that this father is a risk to his children.”

    When I say that the allegations made by the mother (I stress very clearly that I have no position whatsoever as to the truth or otherwise of them) include an allegation of raping her, it can be seen that that particular paragraph fails adequately to analyse the evidence and reach conclusions in a situation where conclusions were required.

  9. At all events, the thrust of the judgment and decision of the district judge was that there was nothing in the past behaviour or attitudes of the father which represented any risk to the two boys in having contact, including unsupervised and ultimately staying contact with him. The district judge then made an order dated 31st March 2015 which provided that the children shall live with their mother and should have specified periods of contact with their father, initially supervised and later unsupervised but based on a specified contact centre.

 

 

Holman J determined that the only real approach here was to treat the mother’s case as application for permission to appeal, he granted that permission, and he set the findings aside and directed that there must be a re-hearing of the evidence.  That wasn’t to say that he was ruling that mother’s allegations were correct, rather that they needed to be properly heard and tested, and not to simply place reliance on one sentence of a CAFCASS officer’s recollection of a telephone conversation when that recollection was disputed.

 

  1. For those reasons I have concluded, however unusually, that I should treat the mother’s strongly stated position that the district judge made mistaken findings, as representing an oral application for permission to appeal and permission to appeal out of time from those findings of fact. I propose to grant her permission to appeal. I propose to allow the appeal and set aside the findings of fact reached by the district judge. I will give detailed orders and directions, in terms that have already been fully discussed, for this whole matter to be allocated with a fresh start to a local circuit judge who must now deal with the case with maximum judicial continuity. There will be directions designed to achieve that there is a satisfactory complete re-consideration of the true facts.
  2. I strongly hope that the mother, who in my view is clearly entitled to it in view of the serious allegations she makes, can obtain legal aid. I regret that the father is unlikely himself to be able to obtain legal aid, both because he is the respondent rather than the maker of the allegations of violence and abuse, and because his income may make him financially ineligible. The rest of the detailed orders and directions are, I think, self-explanatory and do not require further reference in this judgment.

 

Even without his wand, Holman J can still work magic and ‘get busy’ …

Sweep being rather startled by the facts of this case

Sweep being rather startled by the facts of this case

Court proceedings were a shambles

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

https://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  2. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  3. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  4. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  5. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.