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Category Archives: judicial spanking

What this judgment is not

Once in a while, I come across a line in a judgment that makes me pull up sharply. Whilst my eyes rove over the screen full of Brussels II and run of the mill sets of care proceedings, every now and then you find a diamond in a sea of coal.
This is one of those.

18.What this judgment is not – Although I realise it may seem somewhat odd to include a paragraph under that heading I consider that it is necessary to do so.

Okay, you had me at hello.

This is a judgment by His Honour Judge Wildblood QC

Re ABC (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B75.html

So, what is this judgment not?
Therefore this judgment is not:

i) A determination by me of the merit of the grandmother’s complaints. The Local Authority, in its submissions, stresses that point whilst, at the same time, having made submissions and filed evidence to suggest that the complaints are not valid (see the submission and the social worker’s statement that were filed for 20th October 2017). I also note that, in the case of re B [2004] EWHC 411 (Fam) the now President, Sir James Munby was in a not dissimilar position (see para 49 of the judgment). As I stressed on 20th October 2017, the issue is not whether the grandmother’s complaints are correct for I am not in a position to decide that. The question is whether the grandmother should have the right to tell her story and now, whether as part of the telling of it, the Local Authority should be named.

ii) A means of stimulating public debate. My job as a Circuit Judge is to apply the law to the facts that are relevant to the issue before me. I have read the whole of the judgment in very recent case of Re B [2017] EWCA Civ 1579 and note, in particular, what is said in paragraph 27.

iii) An attempt by me at setting any sort of precedent or guidance even on a local scale. Not only would general guidance be way beyond my station or pay-grade. It would also be presumptuous and wrong. There is no new point of law or principle that arises in this case and my decision is entirely case specific. The decision that I have to make requires a very careful judgment call. As the President himself said in A v Ward [2010] EWHC 16 (Fam): ‘The present dispute is only part of an on-going debate as to where in the family justice system the lines should be drawn, where the balance should be struck, as between the often starkly opposed arguments, on the one side in favour of preserving the traditional privacy and confidentiality of family proceedings and on the other side in favour of greater ‘transparency’, to use the vogue expression. My duty here is to determine the present case according to law – that is, the law as it is, not the law as some might wish it to be’.

iv) An attempt by me to push or contain the boundaries of transparency. Not only do I have no interest in doing that but it is not for me to do.

Flipping that question round, it appears that what the judgment IS is a decision about whether a grandmother in care proceedings who put herself forward as a carer should be allowed to publish her complaint about her allegations of mistreatment by the Local Authority AND subsequently whether the Local Authority should be named.

2.At a hearing on the 6th October 2017 I made a special guardianship order in favour of a grandmother in relation to her grandchild. At that hearing she expressed profound dissatisfaction about the way in which she had been assessed and treated by the Local Authority during the currency of the proceedings. The parents each supported the grandmother in what she said. The guardian had filed a report supporting some of the points that the grandmother raised also. The Local Authority did not agree with what the grandmother said.

3.The grandmother, who is a litigant in person, stated that she wished to make her story known to others. I explained to her the availability of the complaints procedure under Section 26(3) of The Children Act 1989 but explored with her whether she was seeking to publish an anonymised account of the statement that she read out in court that day. She told (the Court) that she was.

So the complaint, if allowed to be published, must be read in the context that the Court have not resolved one way or the other whether it is a justified complaint. The Court have not had to rule on whether she is right or wrong. The Court did place the child with her, and made a Special Guardianship Order, but did not give a judgment about her specific complaints.

The Judge did rule that the Local Authority in question were wrong in their analysis of the legal position. It’s quite common for Local Authorities to operate under the same misconception (in fact, if you don’t actually have the authorities in front of you to analyse, I’d say that conservatively 95% of Local Authority lawyers (including myself from time to time) would have fallen into exactly the same trap. It is one of those areas where what we all think the law is does not equate with what the law actually is.

19.The law that applies – As the Local Authority submission suggests, the answer to the issues before me do not lie in statute. Although there are statutory restrictions on the publication of information from family proceedings heard in private (e.g. in section 12 of the Administration of Justice Act 1960 and section 97 of The Children Act 1989) those restrictions are, in any event, subject to any specific leave given by the court in a particular case. The same applies to the resultant restrictions that arise under Chapter 7 of Part 12 of Family Procedure Rules 2010 and PD 12G of those rules.

20.Where proceedings have come to an end Section 97 (2) of the 1989 Act does not operate and Section 12 of the 1960 Act does not operate to prevent disclosure of the names of parties to proceedings held in private. In the case of Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142 (which I cite below) there is an analysis of just this very point but I do wish to cite paragraph 24 of the decision of the President, as he now is, in A v Ward [2010] EWHC 16 (Fam) immediately:

‘It is convenient to start with what I said in British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at para [12]: “It was – correctly – common ground between counsel that: (i) The care proceedings in relation to William having come to an end, the restrictions imposed by s 97(2) of the Children Act 1989 no longer operate: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. (ii) The only relevant statutory restrictions are those imposed by s 12 of the Administration of Justice Act 1960. (iii) Section 12, although it … imposes restrictions upon discussion of the facts and evidence in the case, does not prevent publication of the names of the parties, the child or the witnesses: Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. (iv) Accordingly, unless I agree to exercise the ‘disclosure jurisdiction’ (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at [84]) [nothing] … (to the extent that it contains … material the disclosure of which would otherwise constitute a breach of s 12 of the Administration of Justice Act 1960) can be published, and unless I decide to exercise the ‘restraint jurisdiction’ there will be nothing to prevent the public identification of the social workers, the police officer, the treating doctors and the expert witnesses.” [25]. No-one dissents from what I went on to say (at para [13]) namely that: “both the disclosure jurisdiction and the restraint jurisdiction have to be exercised in accordance with the principles explained by Lord Steyn in In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, sub nom Re S (Identification: Restrictions on Publication) [2005] 1 FLR 591, at [17], and by Sir Mark Potter P in A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, at para [53], that is, by a ‘parallel analysis’ of those of the various rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), which are engaged, leading to an ‘ultimate balancing test’ reflecting the Convention principle of proportionality’.
21.I cite that passage (and more, later, from Re B) because the Local Authority’s submission appears to me to be advanced on a fundamental misunderstanding of the law as it applies to the naming of the Local Authority. The Local Authority submitted, on that and the other issues, that ‘these proceedings were brought under The Children Act 1989 and were heard in private. Publication of information relating to the proceedings, unless specifically authorised by a court, is a contempt of court’. The whole of the submission that was written by the Local Authority appears to be based on that erroneous contention and, further, makes no mention of the point that arises from the above passage from A v Ward and the passages that I cite below from Re B and other cases. As was the case in Re B, the boot has been put on the wrong foot by the Local Authority.

And therefore there was no reason why the grandmother could not share her story. The sole issue for litigation was whether she should be prevented from naming the Local Authority concerned.
Why in general should local authorities be named in judgments? The press made the following representations


29.I also find it very helpful that the officers of the press have made the following submission: ‘The case of B: X Council v B is also relevant – see http://www.familylawweek.co.uk/site.aspx?i=ed866 In that case [at para 14 onwards] Mr Justice Munby said as follows:

14 “There will, of course, be cases where a local authority is not identified, even where it has been the subject of stringent judicial criticism. A recent example is Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. But current practice shows that local authorities involved in care cases are increasingly being identified. In addition to the two cases I have already referred to, other recent examples can be found in British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and Re Ward, British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam). No doubt there are others.

15. I propose to adopt the same approach here as that which I set out in Re B. Is there some proper basis for continuing the local authority’s anonymity? In my judgment there is not.

16. In the first place, as the local authority very frankly accepts, whatever anonymity it enjoys is somewhat precarious, given the fact that the solicitors in the case have all been publicly identified. More importantly, however, I cannot see that there is any need to preserve the local authority’s anonymity in order to protect the children’s privacy and identities. Disclosure of the name of the local authority is not of itself going to lead to the identification of the children. In this respect the case is no different from Re B and Re X.
17. The real reason why the local authority seeks to perpetuate its anonymity is more to do with the interests of the local authority itself (and, no doubt, the important interests of its employees) than with the interests of the children. That is not a criticism of the local authority’s stance. It is simply a statement of the realities.

18. I can understand the local authority’s concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [166].

19. Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126, freedom of expression is instrumentally important inasmuch as it “facilitates the exposure of errors in the governance and administration of justice of the country.” How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [174].

20. In my judgment the balance here comes down clearly in favour of the local authority being identified.”
30.Further, they submit as follows: ‘As recognised in section 20 of the President’s Practice Guidance of January 2014 – Publication of Judgments, where a judge gives permission for a judgment to be published the public authority should be named in the judgment unless there are compelling reasons why they should not be so named. We would therefore wish to make the point that in published family judgments, it is highly unusual for a council not to be named’.

31.Finally, there are many other points of assistance from the decision of A v Ward [ibid] but I would wish to make mention of the following:

i) Professionals who give evidence, including social workers, cannot assume that they will do so under a cloak of confidentiality. There are very obvious reasons why that is so. Balcombe LJ said in Re Manda [1993] Fam 183 at p195: “if social workers and others in a like position believe that the evidence they give in child proceedings will in all circumstances remain confidential, then the sooner they are disabused of that belief, the better.”

ii) Proceedings where there are suggestions that a child might be adopted (as there were here) raise issues of exceptional gravity which are of great public interest and concern. ‘It must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever’ – see Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, at para [150].

iii) In Para 133 of the judgment, the President said this: ‘the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Article 6 and Article 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise. And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at page 77: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.

In the particular case, the arguments against naming the LA were as follows:-

The principal arguments that have been advanced are these:

i) Naming the Local Authority will increase the risk of the family being identified. The guardian, without analysing the point at all in any of the submissions, relies on this point. The Local Authority relies on it heavily. On behalf of the guardian it is submitted: ‘The Guardian’s view on balance is that disclosure of the identity of the local authority in this case will increase the risk of so called “jigsaw identification” of the child and its family’. She does not evaluate the risk. Nor does the Local Authority.

ii) The grandmother has a right of complaint under section 26(3) of the 1989 Act. The guardian submits: ‘The Guardian questions the motivation and proportionality of naming the local authority in this case. The grandmother of course has an avenue to complain about specific issues through the complaints procedure under S.26 of the Children Act 1989. She feels that the issue of assessment of Special Guardian’s is an issue of national public interest and that there is a need to open up the dialogue regarding assessment of kinship carers generally in respect of transparency, support and preparation through the assessment process. It is not an issue confined to this local authority’.

iii) On the facts of the case, one of the family members involved, it is said, is unlikely to be able to understand the need for confidentiality and would be likely to respond indiscreetly to press enquiry.

iv) A refusal to allow the Local Authority to be named is a ‘minor interference with Article 10 rights and is consistent with existing legislation’.

v) Disclosure of the identity of the Local Authority would lead to the Local Authority having to issue a response and that, in turn, would lead to ‘an unseemly and unhelpful trial by media’ and an ‘increased risk of jigsaw identification of the child’.

vi) Adverse publicity when no findings have been made against the Local Authority ‘would run the risk of making retention and recruitment of social workers more difficult and, therefore, of damaging the service provided for children in the area’. Although I was not referred to it, I do bear in mind what is said by McFarlane LJ in Re W [2016] EWCA Civ 1140 at paragraph 88 and onwards.

vii) The points of principle of public importance are those that the grandmother wishes to raise in relation to how family members are treated when they seek to care for family children in care proceedings. The naming of the Local Authority is not necessary for those issues to be aired.

And the arguments deployed in favour OF naming the Local Authority


The main arguments advanced are:

i) Those that arise from the authorities that I set out above. I will not repeat them. Within the submissions of the press was this: ‘The clear starting point is that a public body can have no expectation of anonymity in any reports that are permitted unless there is some justification for departure from the default position – it is for the Local Authority to make out a case, not for a journalist to establish a positive public interest in identifying the LA. Local Authorities are routinely identified in judgments’.

ii) The arguments about the suggested risk of jigsaw identification are advanced without analysis of fact or research. The reality is that, in the immediate locality of the grandmother, it will be easy for those who know the family to identify it even on the basis of the anonymised statement; the identification of the Local Authority will add nothing to that. The further reality is that, amongst the grandmother’s close friends and family, her story will already be apparent. For others, living in other areas of the Local Authority (e.g. the north of the Local Authority area) the naming of the Local Authority will not help at all in identifying the family. On a national level, naming the Local Authority area will be a matter of no significance at all to people from other areas (e.g. Birmingham or Newcastle-on-Tyne) and could not be taken as identifying the family. Given the demography, geography and population of the Local Authority identification is unlikely to take place beyond those who are likely already to know the family’s identity. I note this submission of the Press officers (which shows the extent of their researches in my opinion): ‘The fact the infant will be in the care of its grandmother is also not significant enough to identify this family. Such an arrangement is neither unusual, nor unexpected in this country. The 2011 census puts the number of children in England being cared for by a family member at 153,000, and of those, around 76,000 are being looked after by a grandparent (https://www.grandparentsplus.org.uk/kinship-care-state-of-the-nation-2016). In 2017, it was reported in Community Care magazine that since 2010 there had been a 220% rise in special guardianship orders (http://www.communitycare.co.uk/2017/04/27/special-guardianship-orders-used-safely/). It is, we suggest, safe to assume that a good proportion of those being appointed as special guardians are grandparents’.

iii) The difficulty that the member of the family may have in dealing with the issues discreetly will arise whether the Local Authority is named or not. Naming the Local Authority does not increase or decrease the risk that the family member will be identified within the local community.

iv) It is utterly wrong in fact and principle to say that the non-disclosure order sought is only a minor interference with the grandmother’s Article 10 rights. The Local Authority’s approach seems to be based on its misunderstanding of the principles of law (i.e., in Re B language, on which foot the boot is) and also its failure to consider any of the relevant decisions of the President that I have set out above. To say to this grandmother that she was not allowed to name the Local Authority involved would be a very major interference with her right to expression under the Convention.

v) Insofar as there is a risk of identification, that risk is outbalanced by the importance of the freedom of expression enshrined by Article 10 (1). Further, the grandmother (who will be caring for the child and is an intelligent woman) and the mother both support that identification. I consider that their submissions about the Article 8 rights of their own family carry significant weight.

vi) There is a real and genuine interest within the local community in knowing how its Local Authority is acting. That is part of the democratic process. Members of a local community, like this grandmother, should be able to raise their complaints and concerns about local institutions.

vii) It would be quite wrong to try to limit the grandmother to the use of the procedure under Section 26(3) of the 1989 Act or any other complaints procedure. It is for the Local Authority to justify non-disclosure of its name and it is not for the Local Authority to dictate the means by which the grandmother exercises her Article 10 rights. By way of example – could it really be said in the Crown Court that someone who wished to complain about the treatment she had received in a prosecution must exhaust the police complaints procedure first?

viii) The suggestion that naming the Local Authority will result in a trial by media is riddled with errors of principle and fact. First, the press are the eyes and ears of society and press reporting cannot be swept aside on the basis of trial by media. Second, the emotive term ‘trial by media’ is not apposite – the issue is whether a member of the public should be able to voice a complaint against a local and public institution. Third, the extent to which there is a dispute within the public domain will depend on how the Local Authority chooses to conduct any response within the ambit of the law. Fourth, even without naming the Local Authority, it is highly foreseeable that some form of response will be made by the Local Authority and any response that is given should not be conducted by it behind a veil of anonymity.

ix) The court must not be seen to act as a shield for other public institutions.

x) There is no attempt by anyone involved in this case to identify specific social workers in the material that is made public. Naming the Local Authority does not mean that it becomes necessary to name the individual social worker and I have had no requests or suggestions that this should occur.

xi) The issues of importance are not confined to those relating to the treatment of family members in care proceedings. The issues that arise will be of most interest to those who live in the locality of this Local Authority and relate to how the authority is performing. Local issues matter (see the passage in from Re S above).

The Court felt that the case for naming the Local Authority was overwhelming (and having allowed a brief period to allow them to consider whether to appeal) and therefore named them.

36.Opinion on naming the Local Authority – In my opinion the arguments in favour of naming the Local Authority are overwhelming. I do not think that the Local Authority has got anywhere near justifying the non-disclosure of its identity. I accept each of the arguments advanced in support of that disclosure in the terms that I have set out above and consider that the authorities that I have cited point very strongly to it being ordered. I depart from the views of the guardian and of the Local Authority for the reasons stated within the accepted arguments that I have set out above in favour of disclosure. I do not think that the Local Authority or the guardian has given the issues or principles covered by this judgment sufficient or correct analysis.

The grandmother’s statement is appended to the judgment – again, the caveat is that these are the things that she wished to say about how she felt she was treated, and they are not a set of judicial findings.

Contextual statement as drafted by the parties

This statement is written by a capable and educated grandmother who has successfully raised her own family as a single parent and recently put herself forward to be assessed as a Special Guardian for her infant grandchild. The circumstances were such that it was not going to be possible for the parents to care for the baby and the alternative would have been an adoptive placement.

It can be seen that she felt unsupported through the assessment and that it was a difficult and protracted process. While rigorous assessment is of course important in the process of considering family members as prospective special guardians, what this grandmother writes raises important questions about whether there needs to be a re-evaluation by local authorities nationally of how family members putting themselves forward in these situations can be better prepared, informed and supported through the process.

The grandmother’s statement

These are the facts that I would like to disclose to the press, concerning my experiences during the assessments for a Special Guardianship Application and the events that have followed.

This has been an extraordinary experience to me, even though in the course of my life I have previously had to face some remarkably difficult challenges .It is important to me that some good should come from what has happened in this case, to this baby, her parents and to me.

It has seemed that the local authority is unused to being questioned or called to account for their conduct, decisions or even their misinformation. Emails are frequently not acknowledged, questions not answered most of the time. When false information or advice is given it leads to a great deal of anxiety and sometimes extra costs. This has happened throughout this process. Yet no one takes responsibility for their actions. It struck me that social workers are unused to the clients they work with demanding to be treated with respect, honesty and efficiency. There is a reliance on procedure without examining the particulars of a situation.

The reasoning which led to the local authority initial decision to contradict their very positive first report about me was a very narrow interpretation of my character and behaviour. It seemed there was only one way to show commitment and as I had expressed it a different way I was not committed. It was put to me that I had failed because I had not wanted to take the baby straight home from hospital. That I ought to be expressing that I wanted her. I reason that this is a vast decision for anyone to make, and that to respond purely emotionally or instinctively would be a less appropriate way to decide. I have been very open about my deliberations and judged negatively for that. Instead of helping to explore and understand, pejorative notes were taken and not discussed with me to further understand. I was even required to sort out all the typo errors in the first report which is most unprofessional.

I have responded robustly to the addendum report. I would add, however, that I was shocked by the references to identity and attachment, which do not bear examination. Indeed, I felt obliged to explain the meaning of a smile in small babies to the independent social worker such was the degree of her misunderstanding of this. As a final flourish, it was put to me by her that I ought to express commitment in the absence of clear health understanding or a financial assessment, which I felt was an outrageous transfer of responsibility from the local authority to me for their failings.

A complex issue which I feel has been inappropriately dealt with is the baby’s health. Both her parents have health difficulties which may complicate her future health. They may also have a huge impact on my capacity to cope in the future. The local authority followed their set routines in this area and failed completely to respond to my concerns that I needed to have as much knowledge as possible. This desire to have information was to guide my decision but also to ensure the best care now for this vulnerable child. Early investigations would have led to greater understanding. For example, a simple blood test could have been informative on one aspect of this. I fail to believe that this is not possible in complex cases.

A financial assessment is an integral part of this process. I have been given numerous accounts of how this works, how no finance would be offered, that I was ineligible even for assessment. I had to use voluntary agencies and research on line for the facts. The first social worker simply failed to turn up for an appointment to assess me. The baby’s social worker took a few notes and didn’t tell me the outcome though indirectly I was informed I was ineligible as I have some savings, which is completely incorrect. Ultimately, after explaining the process to the uncommunicative unit responsible, I have been offered some support. Following further unacknowledged emails to add information to my case, which explained my understanding of the assessment guidelines, further support has been offered. Is this an acceptable way for this to be conducted? It has led me to have to delay giving notice to my employer until I had discussed the outcome with a solicitor, leaving the baby in care for weeks longer.

There have been unexplained delays, which cannot be helpful for a baby awaiting a permanent placement. Weeks would pass without explanation, or even communication. Was this a suitable case for a newly qualified social worker who would move on, to be followed, by a part time person who would be away on leave without informing those concerned?

I have wondered how this would have ended if I had been a less vocal, expressive or determined person. I am under no doubt that this baby may have been adopted, that others may be, because many people who find themselves in this position do not have the personal resources to cope effectively. It has left me utterly exhausted and feeling shattered by the lack of kindness and understanding I experienced in such a painful context. To add insult to injury, I am accused of being problematically subject to stress by the social worker for the baby in her final statement.

I need to put this process behind me. I will, but I would hope that by airing these facts that those concerned might improve their practice. The central cog in this process needs to be well informed, efficient and dare I say kind, in such a sensitive situation. Their actions have cost me around £700 in legal fees which ought not to have been needed. I could have left this court with no financial support if I had not undertaken to investigate independently and share my knowledge with the local authority, to press for adherence to the D of E guidelines.

Ultimately, and above all, this baby has remained far longer than was justifiable, in foster care. Her parents have experienced a protracted agony of uncertainty. And, we go forward without full medical understanding. I would like to pay tribute to the exemplary care of the foster mother who has loved and cared for this baby and to the Guardian for her faith in my integrity.

The Order of Special Guardianship has now been made. I will love and care for this baby in every way. She will enjoy contact with her parents and develop a positive sense of Identity, drawing on the love of her family and our wonderful friends.

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Someone had blundered

 

I’ve written many times about how unusual it is for a Court to revoke an adoption order. If memory serves, I have only found four examples before – one last year where the adopters physically abused the child who returned to birth mother and who felt very strongly about wanting the order revoked, one where a step-parent adoption was made where the mother had not told the birth father that she was terminally ill and if he had known that he would not have consented and I can’t remember the details of the other two – they were both from the 1970s.

 

This is the fifth one.  Which also, bizarrely, became the sixth one as well. This child may well, in due course, have the unusual and unique history of being adopted twice by the same people.

 

RE J (A Minor: Revocation of Adoption) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/2704.html

And it is just frankly, a mistake.

It seems that there was a hearing before a Circuit Judge. The mother attended, wanting to oppose the adoption. There was no social worker present, and it appeared that the Judge became muddled as to what application she was dealing with.

 

  1. The appropriate course might have been to impress on the mother the complexity of her application and her need to seek legal advice and/or representation. In any event, given the emphasis on ‘due process’ which operates, by definition, reciprocally between the parties, the mother ought to have been required to file evidence and directions given accordingly. From this, would have stemmed further directions for a statement in response by the Local Authority, appointment of a CAFCASS guardian and an inter partes re-listed hearing.

 

  1. It is abundantly clear, I regret to say, that the Judge became confused as to what application she was hearing and what procedure she was following. The Judge adjourned to consider her decision, handing down a written judgment on 3 October 2017. Very properly the Judge addressed the criteria in Section 47(5), concluding that the mother had failed to demonstrate sufficient change to justify ‘reopening the issue of the plan for [J]’. She observed that J was happily placed with devoted carers and that his placement ‘has offered a boost to his positive development’ and that ‘with every week that passes he is progressing well’. The Judge went on to note that the mother’s own assertion that she had stopped drinking alcohol (one of the causes of her parenting deficits) for a period of three months was insufficient to establish the first element of the test in Section 47. Judge Penna noted ‘there is a substantial risk that I would be setting her up to fail’. The Judge went on to consider the benefits of J’s placement in the context of the wider discretionary exercise and concluded that J’s mother had ‘not shown sufficient change for me to grant her leave to oppose the adoption’.
  2. Had the Judge stopped there all might have been well but, inexplicably she proceeded to grant an adoption order to the applicants, at this first directions hearing. She manifestly had insufficient material before her to make the Order which is perhaps the most draconian in the Family law canon. This was a complete aberration and plainly flawed. The Judgment was handed down on the 9 October 2017, circulated both to the parties and to the Registrar General, in order to make an entry in the Adopted Children Register in the form specified by regulations. It must be stated unambiguously that the Order provided that ‘the child is adopted by [K] and [N], the applicants.’ Finally, the Court directed that the entry in the Register of Live Births be marked with the word Adopted. As I understand it, J’s carers now believe him to be their adopted son.

 

 

When the Local Authority legal department received the order, they immediately realised that something had gone wrong. They contacted the Judge, who realised her mistake, but compounded the error by revoking the Adoption Order (which she did not have power to do. She perhaps had not realised that she was exceeding her power and also that this was only the fifth time that an adoption order had been revoked)

 

  1. A number of basic principles need reiteration. Once a child is adopted this entirely severs all legal ties with the birth family and introduces a new legal parental relationship with the adopter’s family. The Court does not make an adoption order unless it is satisfied both that nothing else will do and, for the particular child, nothing else is better. It follows, that the Court will be similarly cautious when contemplating a revocation of an adoption order which is intended to be final and lifelong. Such revocations were described by Pauffley J in PK the Mr & Mrs K [2015] EWHC 2316 (Fam) as ‘highly exceptional and very particular’. Their ‘exceptional’ nature has been repeatedly emphasised see Re. B (Adoption: Jurisdiction to set aside) [1995] Fam 239, Re. Webster v Norfolk County Council and the Children (by their children’s guardian) [2009] EWCA Civ 59, Re. W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609. I draw the inference that Judge Penna revoked the Order in recognition of her error on the basis of the facts and chronology that I have outlined. They permit of no other interpretation. The Judge did not set out her reasoning in any additional judgment.
  2. More problematically, the process of revocation requires the High Court to invoke its inherent jurisdiction. This signals both the rarity of the Order and, inevitably, its unavailability to Judge Penna sitting in the County Court. As it transpired, before the Order was drafted, or sealed, the matter came to the attention of HHJ Newton, the Designated Family Judge. Judge Newton informed me of the situation and transferred the case to me on 23 October 2017. Judge Newton’s prompt action was doubtless driven by her recognition of the real potential for distress to both the birth parents and the adopters in consequence of what has occurred. An equally swift response is therefore required from me. I have not requested the attendance of the parties and have been able properly to deal with this case administratively,
  3. It strikes me that there are two equally legitimate alternatives here, either to refer the matter to the Court of Appeal or to address it myself in this Court. The latter course has the obvious attraction of avoiding delay. Primarily however, I have come to the conclusion that as Judge Penna’s purported Revocation Order was outside her powers, thus plainly void and as it was intercepted before being drawn or sealed, consideration of revocation may properly be addressed in the High Court. On the facts of this case, probably uniquely, I am also satisfied that the Court can and indeed should consider revoking the Order of its own motion.
  4. For the reasons which are set out above, I consider the circumstances in which this adoption order was made are ‘highly exceptional and very particular’ to use Pauffley J’s elegant and succinct phase. Whilst the Law Reports do not reveal this situation as having occurred before, there are some similarities with Re. K (Adoption & Wardship) [1997] 2 FLR 221. There the Court of Appeal indicated that where an adoption procedure had been fatally flawed, an application to revoke should be made to the High Court. Here there was, in short, a complete absence of due process and a wholesale abandonment of correct procedure and guidance. That is a clear basis upon which to consider whether the Order should be revoked.
  5. I am profoundly conscious of the impact of my decision on both the birth parents and the prospective adopters both of whom will be distressed and unsettled by this uncertainty. I would however, emphasise one important and, in my judgment, inalienable right, namely, that of J to know in the future that the process by which he may have been permanently separated from his family was characterised by fairness, detailed scrutiny and integrity.

 

 

So, this was not the finest hour of the family Court.  But by way of scant consolation, I will tell you all about an Australian Court, where the Court was deciding whether a fall from a horse constituted a “motor accident”  (the horse was startled by a car horn and bolted).  The judgment in the case was 138 pages long, which seems long, but perhaps it was warranted. What was NOT warranted, was the Judge reading the whole thing aloud to the parties, a process which took 17 HOURS.

FOUR FULL DAYS of listening to a judgment.

 

And the Judge in question, to keep the suspense going, didn’t hint at the result until part way through day three.

I appreciate that I am a sad legal geek, and there are many judgments that I really enjoy reading. But even I would baulk at sitting and listening to someone read out a judgment over 17 hours.

If Mr Justice Peter Jackson was delivering a judgment on conjoined twins, one of whom was a Jehovah’s Witness and one who was Plymouth Brethern and there were allegations of Fabricated or Induced Illness, AND the Judge had managed to deliver the judgment via séance with Richard Burton reading it out loud on his behalf (with occasional bursts of Peter Sellers doing voices of any witness who was quoted verbatim), I’d still have had enough after a day. Four days would be excessive even for that.

https://loweringthebar.net/2017/10/judge-read-138-page-opinion.html

 

And oh, by the way, the Judge in that case was overturned on appeal, so a complete waste of four days.

 

https://www.caselaw.nsw.gov.au/decision/58ec7f40e4b0e71e17f58abe

 

It is also of concern, as Payne JA has pointed out, that the primary judge made, at best, minor reference in his reasons to the framework within which the legal questions posed for consideration fell

 

If you’ve made me sit and listen for four full days, I don’t expect the legal framework to have only been given MINOR REFERENCE….

 

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

This is a Keehan J decision in the High Court.

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

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

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

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

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

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

Wolverhampton City Council v JA and another 2017

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/62.html

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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


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

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

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


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


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


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

a) she was inappropriately questioned by Ms Noel;

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

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

d) she was repeatedly asked leading questions;

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

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

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

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

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

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

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


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


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

Well, up against quite a lot of competition, here is the worst case of the year (breach of fair trail, HRA damages, scandal)

 

Oh this is a BAD one.  LA social worker, lawyer, and to an extent counsel take a kicking, as do the police.  If you work for Wakefield, I’d skip this one.   Everyone else, I’m afraid this is a must read.

 

GD and BD (Children) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3312.html

 

 

  • There are before the court two linked applications brought under the Human Rights Act 1998. The first application in time (10 December 2015) was filed by two children, namely GD, a girl now aged 9, and BD, a boy now aged 4. The second application (18 December 2015) was filed by their mother (MD). In each case the Claimants seek awards of damages and declarations. The claims arise from the conduct of two public authorities, Wakefield Metropolitan District Council (hereafter “the Local Authority”) and West Yorkshire Police, in the context of public law proceedings under Part IV of the Children Act 1989 between February and November 2015. In each case the claims for damages have been agreed – with the public authorities each agreeing to pay one-half of the agreed sum: £10,000 for the mother, and (subject to the court’s approval) £5,000 for each child. Significant concessions have been made by both authorities since the proceedings began, and these in large measure establish the grounds for the declarations.
  • I have attached to this judgment, as Annex A and Annex B, a composite schedule of the concessions by the respondent authorities.
  • Annex C contains an Executive Summary of this judgment.
  • Additional to the formal concessions, the Local Authority has also sent a full letter of apology to the mother (dated 28 June 2016). In that letter, the Local Authority acknowledges that the allegations which it made in the proceedings against the mother, namely that she was a sexual risk to her children as a result of having perpetrated gross sexual act on her daughter, were “horrendous”; the authority confirms that it accepts “without reservation” that MD did not abuse her daughter or allow her daughter to be abused by the father. I do not regard it as appropriate to annex this letter to the judgment, but note its contents. The Chief Constable of the West Yorkshire Police has openly apologised to the Claimants (see Annex B [11] below).

 

This whole debacle sprang from the police, as part of a wider child pornography investigation, discovered 5000 indecent images of children on the father’s computer in April 2015  and the father was arrested.  One of those images was a 30 second video clip of a woman abusing a child.

The police formed a suspicion that the woman was the mother, and that the child was one of the two children of those two parents. T  Obviously, there were legitimate grounds to believe that the children were at risk from the father (though his arrest removed him from the home).   He later pleaded guilty and was imprisoned. The suspicion that the woman in the video was the mother and that the victim was one of the children was something that had to be properly investigated.

DS Hudson, leading the investigation on behalf of the Child Sexual Exploitation and Abusive Image Unit of the West Yorkshire Police, considered that Woman X bore a striking resemblance to MD, and that Girl Y a remarkable likeness to GD. DS Hudson in liaison with his colleagues in the imaging unit commissioned the creation of a superimposition montage which allowed the picture of Girl Y to be overlaid on a picture of GD; this appeared to confirm their lay view.

 

  • Some ten months later, on 25 February 2015, DS Hudson shared the information which the police had gathered with representatives of children’s services at Wakefield MDC. The social worker who attended the relevant strategy meeting noted that DS Hudson declared himself to be “90%” sure that the woman in the video was MD; he was later to say (same source) that he considered that the child in the still image was GD “to a 99% probability”. This evidence (involving the percentages) infiltrated other discussions, and were attributed to DS Hudson. DS Hudson was later to deny having used percentages as recorded, but having heard from SW1 and DS Hudson, I reject his denial; I am satisfied that this statement, and the percentages referred to, reflected his actual view of the probability of MD and GD being captured in the images, and that he expressed himself in this way. Later that afternoon, DS Hudson and SW1 (social worker) attended the family home; DS Hudson arrested MD and FD on suspicion of assaulting a girl under the age of 13, and of possession of multiple indecent images of children. The West Yorkshire Police exercised powers of protection and the children, GD and BD, were placed in foster care; on the following day, the Local Authority commenced care proceedings under Part IV of the Children Act 1989.
  • The children were to remain in foster care until 13 December 2015.

 

Skipping ahead, at the final hearing, the police officer gave evidence over a 3 day period, and in the course of this evidence, counsel instructed by the Local Authority decided that he had to withdraw from the case.

 

  • On 20 November 2015 DS Hudson concluded his evidence, which had been taken over three days, having been questioned by all of the advocates about his pivotal role in the investigation and his account of who knew what and when. At the conclusion of the second day, Mr. Shiels had invited the judge to allow the officer to be treated as a hostile witness; it was increasingly apparent that DS Hudson directly contradicted Mr. Shiels’ personal recollection of events, and was casting blame for the lack of disclosure on others. When the hearing resumed on 23 November, Mr. Shiels indicated his intention to withdraw from the case. He explained his position to HHJ Anderson thus:

 

“I have reflected upon my position as advocate for the Local Authority and taken into account any potential conflict between my duty to present the Local Authority’s case as it ought to be presented and my interesting reflections upon my own professional standing. The way in which DS Hudson gave his evidence created a conflict between those two matters, and it also raises implications which I have thought through and taken consultation on with a senior colleague as of the further presentation of the Local Authority’s case and, in particular, the social worker’s evidence… The Local Authority must be represented by someone who does not face that particular conflict.”

Substitute counsel was instructed and two days later, the Local Authority indicated to the court its intention to undertake a “wholesale amendment” of its threshold Schedule of Facts. On the same day it confirmed its plan for the children to be returned home to the mother’s care, a position endorsed by the Children’s Guardian.

The children returned home on 13 December 2015.

 

 

There then followed this Human Rights Act claim, which is what the judgment chiefly deals with. The case really turns on the point at which the suspicion that the woman in the video was the mother and the victim was the child became not a suspicion that had to be properly investigated, but a ‘hunch’ which the evidence was contradicting, and whether the evidence that undermined that claim was properly shared with the Court and the parents.  The importance of that, of course, is that a case where father was downloading indecent material is a case that could be managed by the mother separating from him, whereas an addition that mother had been abusing one of the children would rule that out as an option. It was an extremely grave and important allegation.

 

Here are the Court findings in relation to that (I’ll come back to some of the important, and shocking detail)

 

Findings: Local Authority:

 

  • In my judgment, this Local Authority has rightly conceded that it unlawfully interfered with the Article 6 and Article 8 rights of the Claimants in a number of material respects. The Local Authority was not swift in acknowledging its faults; the Defence filed in February 2016 makes minimal concessions. However, I have noted and recorded the concessions which are now made, and insofar as is necessary deal with the particulars in the paragraphs which follow.
  • Suspension of contact: For a period of time, all contact between the children and their parents was suspended, and when restored, it was heavily circumscribed. The temporary but total severance of the relationship between the children and their parents was a serious step at the point at which the children were removed from their parents’ care; while there may have been sound reasons for this initially, while the police investigation was at an early stage, the Local Authority is right to concede that it should have done more to test the necessity of this suspension continuing for more than a day or so. The CA 1989 imposes duties on them which were not observed (see section 34(1) and section 22(4) CA 1989; there was limited facility to the authority to refuse contact and only for a time-limited period (7 days) where “they [were] satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare” (section 34(6))). The police were in my judgment slow-paced in deciding whether to conduct ABE interviews of the children, before deciding not to do so. The Local Authority should have been proactive in testing the police’s decision-making at an earlier stage.
  • Disclosure: There were, regrettably, repeated failures on behalf of both public authorities to effect disclosure of relevant documents and information in this case. It is well known that it is the duty of the parties and their legal advisers to give full and frank disclosure of all relevant material unless one of the well-established principles of privilege or public interest immunity apply. It is incumbent on a Local Authority to present its case properly, fairly and with due regard to the principles of Article 6 of the ECHR.
  • My view is that the failures of disclosure in this case largely derive from the conduct of the West Yorkshire Police (see below). However, I am satisfied that the Local Authority solicitor, Ms McMullan failed:

 

i) To disclose to the respondent parents and Guardian the information which she learned in conference on 21 August 2015 namely that the short video was (or was likely to be) of American origin; although I am satisfied that this information was conveyed to the Local Authority team by DS Hudson only in passing, this was nonetheless crucial evidence and its existence had registered sufficiently with Ms McMullan for her to write to Mr. Shiels many weeks later, in November, to ask his view about it;

ii) To respond to the mother’s solicitors’ request for “any other relevant information about the police evidence that would assist me in putting my client’s case” (9 September 2016), with the information that the video had a US provenance (even if she had expressed this only as a possibility);

iii) To ensure that the likely American provenance of the short video was referred to in the Local Authority Opening Note; it is clear that Ms McMullan was conscious of this fact as she had e-mailed Mr. Shiels about it only shortly (10 November) before the hearing;

iv) To respond more fully and generally to the questions (concerning police disclosure) from the mother’s solicitor in September 2015;

v) To disclose the superimposition montage to the respondent parents and children on or shortly after 17 September. This omission is particularly serious given that:

a) There was a court hearing on the day after it had been shown (18 September) and it was not mentioned;

b) Ms McMullan had not responded to the mother’s solicitors’ letter requesting disclosure made only days earlier.

Opportunity was thereby lost for the parties to assess this evidence, and to seek Ms Pestell’s view of the montage. The mother’s case is that the failure to disclose this evidence was “secretive, tactical, and unfair”; I do not accept those particular criticisms. I find that the failure to disclose this information was symptomatic of a lack of coordinated, structured, organised approach to the preparation of the case. It is rightly conceded that this contributed to the breaches of the Claimants’ Article 6 rights (Annex A[1](d) below).

 

  • I find that the failure to make prompt and/or complete disclosure materially compromised the ability of the legal teams for the Claimants to prepare their cases. It seems to me that if a more conscientious approach had been taken and had disclosure been made in a timely and appropriate way, the Claimants’ solicitors would have been able to press for the Local Authority to re-evaluate its case, potentially by restoring the matter before the court for early determination of the appropriateness of continued interim care orders.
  • Evidence: The Local Authority was under a duty to place clear and impartial/balanced evidence before the Court. Two witness statements fell under scrutiny in this hearing: those of DS Hudson and SW1. The preparation of the witness statement of DS Hudson was wholly unbecoming of a serious investigation such as this, fell well below ordinary standards of professionalism in its compilation, and the end result was a document which was neither fair nor balanced. There is no or no material evidence that either Ms McMullan or Mr Shiels really addressed themselves to that issue. The Local Authority cannot escape the fact that the written request of DS Hudson to provide only evidence in his statement which was incriminating of the mother caused his contribution to be distorted and partial. I understand and accept that Mr Shiels had addressed his mind only to reminding Ms McMullan of certain matters which ought to be included in the statement, and that his e-mail was

 

“… intended simply to be a helpful reminder to my instructing solicitor that DS Hudson should include those particular matters when preparing his statement. I was not advising or purporting to advise on the overall content of the statement and I did not advise that anything should be omitted.”

But, as I say, the predictable consequence was that the statement was neither comprehensive nor was it fair to the mother (and children). This materially contributed to the biased picture created by the public authorities, which reinforced and aggravated their other failings. It does not require me to spell out to these experienced lawyers what the statement of DS Hudson should have looked like. Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 at p.772 commented on the importance of:

“… a proper discussion with the relevant witnesses to ensure, so far as possible, that their statements contain a full and proper account of the relevant matters, which include the central matters seen or heard by that witness, the sources of hearsay being recorded by that witness, and the relevant background to and the circumstances in which the matters set out took place; and … a proper consideration of what further information or material should be obtained.”

 

 

With this in mind, the Judge had to consider whether there was bad faith on the part of the Local Authority – in layman’s terms, had they been careless or had they been actively trying to ‘fit up’ this mother?

 

 

  • Generally: The Claimants do not specifically assert that the Local Authority set out to mislead the court, or create a false case against the parents. They pleaded a case based on bias; they assert that the Local Authority was partisan and conducted itself in a way which was incompatible with its role in dispassionately analysing evidence and adopting a child-focused stance in line with the evidence. They have maintained that the Local Authority legal team, Ms McMullan and Mr. Shiels, lost objectivity in their professional conduct in this case, and as a consequence focused on only those aspects of the case which were adverse to, or implicated, the parents, and not those parts which might serve to exonerate them.
  • While I accept that the Local Authority representatives failed dispassionately to analyse the evidence, and tended to focus on those parts which were adverse to the mother, I don’t accept entirely the other criticisms. It seems to me that other factors were in play:

 

i) The Local Authority could only work with the information which they themselves received from the police; this disclosure was made piecemeal, late, and often in an incomplete form; this hampered the proper evaluation and presentation of the case;

ii) The Local Authority solicitor, Ms McMullan failed to take a co-ordinating role in relation to the evidence and/or the structure of the case; I sensed that she reacted to the requirements of the timetable and the demands of her client and never proactively managed the case; she ended up as a fire-fighter and appeared to rely heavily on Mr. Shiels for all decision-making. I do not believe that her conduct fell below an ordinary professional standard (and she did not lose ‘objectivity’ as was alleged), she simply did not rise to the demands of running a complex case, did not challenge decisions, and did not develop a sense of what the case was and where it was going. Had she undertaken her role with more attention to the detail of the case, I am sure that the US provenance of the video would have received greater prominence in her thinking. Her “oversight” in failing to disclose the montage may have been the result of a demanding caseload.

iii) For a complex case, it was regrettable that the key social worker (SW1) was so inexperienced; indeed, she had not dealt with a sexual abuse case before. She gave the appearance (in her evidence to me, which chimed with the transcript of her evidence before HHJ Anderson) of someone who was struggling with the case. I felt that she was probably rather impressionable, and could possibly be (or at least feel) pressurised by her seniors or others; she told HHJ Anderson that she was advised by her manager and the legal department that the Local Authority was going to take a particular line in the case, albeit that it did not accord with her view (see the quote from the e-mail at [33] above). She described herself in that earlier hearing as “just part …I am the social worker part of the process”, and disputed that she had instructed the department “to seek findings”. She said that she had not been party to any conversation about the obtaining of expert evidence to counter the LGC Forensics paper, although would have expected to be so. The Guardian picked up this dynamic; he felt that SW1 had been “instructed” by her legal team to take the line she did in relation to the case, perhaps against her better judgment. I concur with the Guardian’s analysis.

 

  • I do not believe that there was any evidence of professional misconduct or negligence on the part of the Local Authority lawyer or social worker; nor do I consider that there was a loss of objectivity, as alleged. Regrettably I sensed that the Local Authority’s case management was rudderless, lacking in supervision, hampered by a lack of clear information, overly influenced by DS Hudson’s misguided perception of the case, at times incoherent, and (as I indicated above: [91](ii)) almost always reactive rather than proactive.

 

 

 

I said that I would come back to some of the detail, and it is important.

 

Bear in mind that the care proceedings began on 27th February 2015 and the investigation was ongoing.  A key part of that would obviously be the forensic analysis of the video – since whether or not the perpetrator and victim looked like mother and child wasn’t sufficient, there needed to be closer analysis.

On 31 March 2015 Ms Jacqueline Pestell of LGC Forensics contacted DS Hudson, and gave him an oral report of the results of the facial mapping exercise; it is a little unclear precisely what was said. Ms Pestell maintains that she advised DS Hudson over the phone that MD could be “eliminated” as the woman in the video; this indeed was the account given by DS Hudson in his first statement in these proceedings. LGC’s internal note refers to the differences observed in the images, making them “unreconcilable” (sic). DS Hudson was advised in the same call that MD’s sister was a better match. In a later written statement in these proceedings DS Hudson doubted that the word ‘eliminated’ had in fact been used but confirmed that he was advised that the sister was a better suspect, and that in the circumstances there was little if any prospect of pursuing charges against MD. It is in fact formally conceded now that the police treated MD as being ‘eliminated’ from this the time (see Defence filed on behalf of West Yorkshire Police, and see Annex B [2] below)). Interestingly, in oral evidence, DS Hudson repeatedly used the word ‘eliminated’ to describe the effect of the information he had been given at this stage, and on the balance of probabilities I am satisfied that this is indeed what he was told by LGC.

 

Obviously if the Forensic Analysis ‘eliminated’ the mother as the perpetrator in the video, that was a vital piece of information.  (As the Judge says later, these cases are trial by Judge, not trial by expert, but it was a vital piece of information, even if the LA case was ‘the forensic analysis is wrong and we want the Court to test that evidence’)

The police had not properly communicated that to the LA.

 

  • On 7 May 2015, at the next court hearing listed before Moylan J, the Local Authority informed the court (per position statement) that facial mapping analysis “may have led” the police to believe that the images on the short video were not of the mother. West Yorkshire Police concede that by this time, the Local Authority were still not aware that the mother had been ‘eliminated’ on expert analysis, and nor was Moylan J when he made his further order for disclosure.

 

 

The case moved further forward, when the police obtained evidence to show that the video was in fact created in America, and was thus not a video of this child, nor the perpetrator anyone in this family.  Important to keep in mind that it was still a video of child abuse, which had been on father’s computer, so the concerns about father remained very live ones. But realistically, the risk of the mother as a perpetrator had disappeared, but the allegations had not been dropped.

 

  • By 4 June 2015, LGC Forensics had also excluded MD’s sister as Woman X. West Yorkshire Police informed the Local Authority of this. However, when the social worker (SW1) spoke with an officer of the West Yorkshire Police on 8 June, she was advised that the police were still in some doubt about the evidence and could not confirm that no criminal charges would arise as a result of these images; on the following day, DS Hudson wrote to the social worker in these terms: “the results back from the Forensic Company has not been able to confirm the identity of [MD] or [her sister]” as Woman X (this phrase did not in my view faithfully reflect what DS Hudson had been told), adding that the mapping work in relation to GD/Girl Y had not yet concluded. MD recalls that at this point she was simply advised that the facial mapping exercise had proved “inconclusive”, not that she had been eliminated.
  • On 10 June, there was a major development in the police investigation. DFI, one of the experts in the Digital Forensic Department working on an unrelated investigation, located a video recording of approximately eight minutes’ duration, of which the short video of Woman X (which had been the focus of enquiry in this investigation, identified in [12](i) above) was clearly an extract; the longer (eight minute) video showed clearly the identities of those participating in the recorded activity, and revealed beyond question that MD was not Woman X. It was further clear (from incidental detail in the footage) that the video had been recorded in the United States of America, not in West Yorkshire. DFI e-mailed DS Hudson asking him to call, as he has “information about [Woman X]”. DS Hudson was (it is agreed) on leave on that day and it appears that he did not in fact make the call on that day; it is not clear when DS Hudson returned the telephone call to DFI, but I am satisfied (on DS Hudson’s own evidence) that it was not long after DS Hudson’s return from leave on 22 June. In that call, I find that DFI gave DS Hudson sufficient detail about the longer video for him to know that MD was definitively not Woman X. From that point on, he told me that it was “cast iron” that MD was exonerated and he was then fixed with this knowledge.

 

 

This then becomes very difficult reading. I’m squirming even as I cut and paste this in.  This is exactly the sort of stuff that staunch critics of Local Authorities believe happens all the time, and it is genuinely sickening to see it play out for real.  It is awful to read this.   The underlining here is the Judge’s.  I would underline more, for emphasis, but I don’t want to lose those portions.  It is just awful, I’m afraid.

 

 

  • At a further court hearing on the following day (11 June 2015), counsel for the local authority, Mr Ian Shiels, reports (and I accept) that when the police representative was asked whether the facial mapping report (not yet disclosed) was required for interviews of the parents, the reply was “probably yes”; this is, as it now transpires, a surprising response given what is now known of the conclusions of the report. On 15 June 2015 the West Yorkshire Police received the written report from LGC Forensics which confirmed beyond question that MD was not Woman X. The report further confirmed that GD was not Girl Y, the child in the still image ([12](ii) above).
  • On 24 June 2015, on his return from leave, DS Hudson e-mailed the Local Authority social worker SW1 confirming that GD had been “eliminated” as Girl Y (the girl captured on the still image); DS Hudson confirmed that he told the social worker that the only active line of enquiry was in relation to the other images captured on the family computer. The contents of the LGC report were not shared with the mother for more than two more weeks (9 July) – see [27] below). On the following day (25 June), DS Hudson sent this important e-mail to the Local Authority solicitor, Ms McMullan:

 

“At this time there is no plan to interview [GD]. Even though the facial mapping has not identified [GD] I would still like to put the image [i.e. the still image] to the parents in interview should one of them id [identify] [GD] then she will need to be interviewed to see if she can recall the incident. I do not want this information giving (sic.) to the parents as stated I am looking to bring them in early next week.” (emphasis by underlining added).

On receipt of this e-mail, Ms McMullan, the Local Authority Solicitor, e-mailed the social work team manager as follows:

“…I’m not confident in what [DS Hudson] is saying is entirely accurate. It may be that they want to trick the parents in interview? I really don’t want to speculate …” (emphasis by underlining added).

 

  • On 9 July, the parents were interviewed by the West Yorkshire Police for the second time; both denied possession of the indecent images, and the mother denied recently destroying the computer hard-drive (per the Kodak photograph). As planned, the still image of Girl Y was put to the parents, who each in turn disputed that it was GD. Following the interview, the mother (MD) was eliminated from the investigation (a point which was confirmed in an e-mail of the same date to the social workers: “[MD] has now been eliminated from the investigation”), whereas the father (FD) was charged with six sample counts of making indecent images of children. On the same day, the West Yorkshire Police provided the 40-page and detailed LGC Forensic report to all parties; this confirmed that there was “no support” for the contention that MD was Woman X, nor that GD was Girl Y. The West Yorkshire Police further disclosed the image of MD allegedly destroying the computer hard drive. At court on the following day, Andrew Garthwaite, solicitor for the West Yorkshire Police recounted that “the Police position that the female in the video was not [MD] was clearly stated…”; he says that he spoke with Ian Shiels at court, who in turn indicated his wish to view the short video. This arose because Mr. Shiels detected some lack of confidence in the expert report among those who had commissioned it; Mr Garthwaite acknowledges that at that time he may well have said to Mr Shiels that he recognised the similarities between Woman X and MD and “couldn’t preclude the possibility that another facial mapping exercise might generate different findings”. Ms McMullan told me that Mr Shiels had reported to her an air of scepticism among the advocates about the reliability of the facial mapping report. In that regard, Mr Shiels followed up the discussions at court with an e-mail to Ms McMullan the following day in these terms:

 

“When I read the facial mapping experts report yesterday my thoughts were that this scuppered any case that the mother had been abusing a child or that [GD] had been abused… But I would like to think about it further…”

Mr. Shiels went on to describe the mother’s account of the dating of the Kodak photograph (i.e. that it was an old photo) as “plainly rubbish” (a view derived I believe from the fact that it had been assumed that all of the images on the computers had been captured when the computers were seized in 2014, and this one had only appeared since that time). His e-mail further alluded to the difference in standard of proof between the criminal and civil processes, and the need to look at the primary evidence and not be “led entirely by expert opinion, which need not necessarily be right”. He acknowledged that the conclusion of the LGC Forensics report was “a problem” but not “necessarily an insuperable one”.

 

  • On 10 July, at court, SW1 recorded that the parents told her that they were separating “out of necessity, not because they want to”, a view which they confirmed on 13 July at a social work home visit. This is relevant to the issue of continuing potential risk posed by the mother to the children, irrespective of her role as possible perpetrator.
  • On or about 14 July, Ms McMullan and Mr Garthwaite spoke by telephone. They plainly discussed the content of LGC Forensics facial mapping report, and the Local Authority’s willingness to consider a second expert opinion; the cost of obtaining such a report (c.£40k) was alluded to. Following this call, Mr Garthwaite sent an e-mail to DS Hudson (21 July) which included the following:

 

“I had a request from the local authority solicitor Annie McMullan last week as to whether or not you would be prepared for the local authority barrister, Ian Shiels, to be allowed to watch the indecent video(s) involving alleged mother and alleged [GD]? The reason for the request is that the local authority are keen to do all they can to secure the children in this case and are prepared to spend £40k+ in order to have the video analysed themselves to try and pin a case against the parents“. (emphasis by underlining added)

Mr Garthwaite apologised at this hearing for his choice of language in this e-mail; he could not be sure that Ms McMullan had not used the phrase ‘pin a case’, and in fairness, she could not rule out the possibility either, although thought it unlikely. Mr Garthwaite wished to emphasise that the language was not designed to give any indication that the Local Authority were in any way engaged in any impropriety by manufacturing a case against the parents.

 

  • On 23 July, DS Hudson replied to Mr. Garthwaite informing him that he was intending to view the second (longer) video which had been located by DFI, the Digital Forensic Investigator, and would be doing so “this morning” (records show that DFI had made a copy of it on 22 July in preparation). DS Hudson told me in evidence that he did not in fact go to the forensics laboratory to view it on that day on account of “operational commitments”, but only viewed the longer video a month later on 24 August. DS Hudson told the court in November 2015 that he believed he had viewed the longer video in or around June or soon after 23 July 2015. The evidence of DFI was that DS Hudson viewed the longer video “around” June/July, but at the latest “the first part of August”. Later, within the evidence filed in these proceedings, DFI went some way to confirming DS Hudson’s account that he did not view the longer video until 24 August (linking it with recalling having e-mailed him in relation to a ‘personal matter’), though acknowledged that he only “vaguely remembers” the events. It is not material to establish precisely when DS Hudson viewed the longer video; I cannot find on the evidence that he did in fact view it before 24 August. As I have said earlier (see [24] above), he was fixed with the knowledge of the mother’s certain innocence by the end of June 2015. On my reading of the e-mail traffic, this is the only e-mail passing between DS Hudson and Mr Garthwaite about the second (longer) video (see also [99] below). Mr. Garthwaite reports that he did not appreciate the significance of the second (longer) video at this time.
  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

 

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

 

  • On 29 July, Ms McMullan chased a response from Mr. Garthwaite by e-mail persisting in her request for disclosure; on 17 August Mr. Shiels chased again (also by e-mail) for the police’s disclosure. This disclosure was said to have been delivered by the police to the Local Authority on or about 20 August.
  • On 31 July, SW1 met with her team manager, and explained to her that she would be concerned about giving evidence in the case as she did not believe that MD was Woman X nor that GD was Girl Y; the expert evidence had, she thought, made this “abundantly clear”. To recap, the Local Authority knew of the conclusions of the LGC Forensics report by this stage, but not of the existence (let alone the significance) of the longer video. The note of the manager reflects inaccurately that “The woman [on the video] is believed to be mum (90% certainty following facial recognition)”; it is not clear to me whether that information had been incorrectly understood by the social work team or whether the note of the conversation is inaccurate. On that day the team manager wrote to the solicitor as follows:

 

“I am just in supervision with [SW1], having an update regarding this case. On consulting the attached schedule, we are not in agreement with the sections numbered 6 & 7. [SW1] is certain that the child in the images concerned is NOT [GD]. Furthermore, she is doubtful that the adult female is mother. Consequently, it would not be appropriate to give evidence to state otherwise… I am aware that the police are not intending to conduct an ABE interview of [GD], so do we need to make a decision at this point as to whether we pursue our own by an ABE trained social worker?” (emphasis in capitals in the original: emphasis by underlining added. Note also that reference to “6 & 7” is an erroneous reference to paragraphs 7 and 8 of the schedule: see above).

Later that day, Ms McMullan telephoned the team manager to seek to reassure her that the Local Authority had proper grounds to proceed on the basis of the video and still image, given that the standard of proof was different in the family court and the criminal court. It appears that a conference was then arranged with counsel in order to discuss the social worker’s concerns. This took place on 13 August. Strangely, none of the notes of the conference record any conversation about the social worker’s concerns. Mr Shiels told me that he recalled no specific conversation about these concerns.

 

 

That schedule of findings is worth going back to :-

 

  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

 

Clearly, if there had been full and transparent sharing of information, the fact that the forensic analysis had indicated that neither of the persons in the video were members of the family and that the footage emerged from America  (there was an 8 minute long video from America, of which this was a 30 second snippet, and the longer video obviously gave more material to work from) meant that the LA could not realistically pursue those findings. The question is, did they know that?

 

 

  • On 21 August, two important events occurred in the history of this case.

 

i) First, at a hearing before HHJ Lynch during the morning the West Yorkshire Police were ordered (for a further time) to disclose information to the parties about the Kodak photograph, including any information about the date of its creation, storage, and assessment. This direction had been anticipated by Mr. Shiels who earlier in the morning had e-mailed DS Hudson requesting information about the Kodak photograph and the date of the folders in which it was stored;

ii) Secondly, in the early afternoon, a conference took place at Mr Shiels’ Chambers; those in attendance were Mr Shiels, Ms McMullan, DS Hudson, and SW1, although SW1 was late in arriving. I deal with the conference in some detail (below).

There is some dispute about precisely what was said at this conference. DS Hudson’s evidence is that he told those present at the meeting that a second (longer) video had been found in a separate investigation and that its country of origin was America; he accepted in evidence before me that he may not have spelled out as clearly as he should that this video ruled MD out as a perpetrator of abuse beyond question. When questioned about this at the hearing before HHJ Anderson in November he accepted that he did not make this clear. On nobody’s account of the meeting was the American origin of the video “discussed” as DS Hudson (misleadingly in my view) told HHJ Anderson during his earlier evidence on no fewer than three occasions. The Local Authority maintains (and the contemporaneous notes of the conference support this) that DS Hudson had indicated in the meeting that there was a possibility that the (shorter) video may have originated from America (“origin might be US”); he was asked to clarify this and he agreed to make further enquiries of DFI.

 

  • During the viewing of the short video at the conference, DS Hudson (and this much is agreed by Ms McMullan and Mr. Shiels), pointed out that Woman X was wearing an unusual blue watch, and informed them that this had not been found during the searches of the family home. Self-evidently it would not have been found in MD’s home, as MD was not Woman X, as DS Hudson well knew. The officer also pointed out that Woman X was wearing a ring on the same finger as MD – again, ostensibly establishing a link between the two, which he knew was merely coincidental.
  • At the conference, DS Hudson apparently described the superimposition process which had been conducted in or about February 2015, and confirmed that the montage (of Girl Y and GD) was still in the possession of the police. DS Hudson’s evidence to me was that by the end of the conference he believed that the Local Authority was proposing:

 

i) to allege within the care proceedings that GD was Girl Y in the still image (and had therefore been directly involved in the abuse), but that

ii) the authority had no intention of seeking to argue that MD was Woman X.

As it happens, he gave different evidence before HHJ Anderson in November 2015, indicating that by the time he prepared his witness statement, he knew/believed that the Local Authority was pursuing a finding that MD was Woman X. He thought that the Local Authority was proposing to argue that MD had destroyed the hard drive and therefore evidence of indecent images. The account he gave before HHJ Anderson was, in my judgment, more plausible.

 

  • SW1 recalls no conversation about, or mention of, America during the conference, which, if she is right, suggests that any such mention may well have occurred before she arrived (which was later than the others), and indeed I so find. Ms McMullan now indicates that she regrets not writing to Mr Garthwaite after the conference to clarify the “throwaway remark” about the origin of the video, and specifically the reference to “America”. Significantly, she is clear that DS Hudson never mentioned then, or indeed at any time up to 18 November at court at the start of the final hearing, the existence of a second (longer) video. She believed that DS Hudson would obtain further information from DFI about the relevance of America, and revert to her. Ms McMullan maintains that had she known, or been advised, that the second video existed, that it originated in America and that MD was certainly not the woman in the short video: (a) the local authority would not have asked to view, let alone actually view, the short video, and (b) the course of the case would have been radically altered.
  • Mr Shiels shares Ms McMullan’s recollection that DS Hudson did not mention the existence of any other or longer video in the conference, and that he only mentioned, as a possibility, that the video which they had watched may have originated in America, though (says Mr. Shiels) DS Hudson did not appear clear about this and laid no great emphasis upon it. Mr Shiels believes that it would have been perfectly plain to DS Hudson from the discussion at the conference that the Local Authority was going to maintain its case (set out in the schedule – see [31] above) that MD was Woman X; accordingly, Mr. Shiels felt that the video was pivotal in being able to prove that fact, notwithstanding the expert report from LGC Forensics. Mr Shiels did not understand from DS Hudson’s comments that the video had actually been filmed in America (as in fact is proven to be the case) but wondered whether the reference to America was to a shared computer file with an American partner. He recalls the reference to the watch, and to DS Hudson confirming that the police search of the family home had not produced the item. At his request, all existing records relating to police searches of the family’s home was sought as disclosure, and were indeed disclosed. At the conclusion of the conference, Mr Shiels asked DS Hudson if he could prepare a witness statement for the CA 1989 proceedings. Mr. Shiels describes the “focus” of the meeting as:

 

“… assessing the strength of the local authority’s case and therefore the focus was on obtaining from DS Hudson information which would or could support and strengthen that case.”.

I underline the passage in the quote above to highlight that it appears that the “focus” was not on collating relevant evidence which went either way.

 

  • Having heard the various accounts of the conference on 21 August, I find that at the conference:

 

i) DS Hudson did not explicitly refer to the existence of a second (longer) video; while it is possible that he and the Local Authority were speaking at cross-purposes about ‘the video’, in fact I find this omission to be deliberate;

ii) DS Hudson did not make clear to the Local Authority representatives as he should have done that the police investigation had established beyond question that MD was not Woman X;

iii) DS Hudson’s observation that the “the video” had an American origin was made only in passing; it was not “discussed” as he told HHJ Anderson. The officer did not – as he should have done, in my view given the importance of the issue – make clear to the Local Authority representatives that the video originated in the USA, and that this therefore contributed to the view that the mother could be ruled out as the perpetrator of the video-recorded abuse;

iv) By stating that the police had not found the unusual watch worn by Woman X in the mother’s home, and by pointing out Woman X wearing the ring in a similar fashion to MD, DS Hudson caused or encouraged the Local Authority to believe that the police believed or suspected that MD was indeed Woman X, or that there was a case to make that MD was Woman X, when in fact (as we now know) they knew that she was not.

 

 

The Judge does not make any criticism of the LA inviting the police officer, who was clearly a witness of fact, to a conference with counsel.  I suppose there was so much else to criticise that this got missed.  It’s not something I would imagine doing.   You can see from the judicial findings that the Judge found that DS Hudson caused or encouraged the LA to believe that the police BELIEVED that the woman in the video was the mother when in fact they KNEW she was not.

 

The lawyers in the care proceedings asked to see the longer video, and this produced a flurry of email correspondence between DS Hudson and the force solicitor, Mr Garthwaite.

 

  • On 15 September, the solicitor for the mother notified Mr. Garthwaite by e-mail that it was her intention to apply to the court for permission to instruct an expert to date the Kodak photograph; she also indicated her intention to ask the court for permission to view the short video.
  • On 17 September, an e-mail ‘conversation’ took place between Mr Garthwaite, DS Hudson and DFI. Mr Garthwaite had passed on the request by the mother’s legal team to view the short video; DFI raised a concern about this to his colleagues, saying:

 

“We’d established from another recent case of mine that it’s neither [MD] nor [GD] in the video – albeit that the female in the video does have a resemblance to [MD]. We’d technically be showing them an indecent video, of which all parties would need to be aware of and its content…”

DS Hudson asked for legal advice about the position from Mr Garthwaite who told me at this hearing that he did not appreciate until 19 November the relevance of the second (longer) video. On the basis that an order would be sought by the parties for permission to view the video, and that disclaimers would be sought, arrangements were made for the mother and her legal team to view the short video. The mother and her legal team viewed the video on 12 October. There later followed a request by the Children’s Guardian to view the video; this provoked an e-mail from DS Hudson to Mr Garthwaite:

“I’m really not happy with this, we have shown the video to [MD] and her counsel… as discussed and arranged. Now we are being asked to show this video to [GD]’s solicitor and her Guardian; we are being asked to show a Level B Child Abuse video to her Guardian. Why? What protection is in place should her Guardian react in a negative way to this abuse video? It was agreed to show the video to [MD] and her counsel on the basis that counsel has dealt with these issues in the past and [MD] had seen the video in interview. Please confirm that the police and officers involved will have no repercussions in this matter.”

Mr Garthwaite sought to offer reassurance to DS Hudson.

 

Of course, what this means is that a set of lawyers ended up watching a video which must have been graphic and dreadful to watch, when in reality, none of them needed to see it at all, because the mother and the child had both been eliminated by police enquiries as being the people in the video.  The lawyers were only watching it because the allegation was that this was the child being abused by the mother.  If there had been honesty that the video had no connection to the mother and child OTHER than it being one of 5,000 indecent matters found on father’s computer, none of them would have had to do that.    {There’s a dreadful discussion in the next paragraph where someone puts their finger on it – the father had probably picked this particular clip BECAUSE the woman in it resembled the mother, his partner.  I’m sorry, that is just truly awful}

 

We’ve had cases reported before about things being added to social work statements, and that happened here too  (I’m not talking about cleaning up typos or polishing, or suggesting a better way to word something, but insertion of things that the social worker didn’t actually agree with. )

 

 

  • On 8 October, SW1 filed her final parenting assessment report on MD with the court. It is a lengthy document extending to over 50 pages. I learned a little of the evolution of the report at the hearing. It passed through at least two editorial hands (the team manager and the Local Authority lawyer) before being filed. Ms McMullan was the final editor and included in the report a number of new sentences. She said that she asked SW1 to check the statement before signing it, having earlier “knocked [it] around a bit”; SW1 told me that she did not check it carefully and only after its filing did she read it thoroughly, and then realised that words had been added with which she was not comfortable, importing views which she did not hold.

 

 

 

The fact that the LA findings sought against mother  – that she had abused the child in that video, were completely unsustainable,  and had not actually been sustainable for about six months by the time of the final hearing, yet this only actually emerged on day one of the final hearing.

 

 

  • The final hearing began before HHJ Anderson on 17 November; no evidence was called on the first day. Following discussions between the advocates, Mr. Shiels drafted questions for LGC Forensics to answer about the superimposition montage, namely (a) whether it had been seen before and (b) whether it caused the expert to alter her analysis. As I discuss later, I find that these questions could and indeed should have been asked much earlier. On 18 November, DS Hudson and DFI attended at court to give evidence. It appears that in the pre-hearing conference outside court, DFI informed Mr Shiels of information he had known since 10 June 2015, namely that the short video had originated in America, and was an extract of a longer video. Mr. Shiels’ account from his witness statement repays rehearsing in full:

 

“I was not told that there was any other version of the video, or a “longer” video … I was very surprised to be told that the origin was clearly in America, rather than merely a possibility. I then asked if they were saying that the woman in the video was in fact probably not [MD]. [DFI] said this was so. I cannot recall if DS Hudson contributed anything to this. If he did, he did not say much. He did not dissent from what [DFI] told me. I immediately communicated this information to the other advocates and then to the court, withdrawing the Local Authority’s case that the mother was the woman in the video…. At no time prior to the 18 November had I been told of the longer video, the origin clearly being in America, and the certainty that the woman was not the mother. If I had known this at an earlier stage, I would immediately have taken the same action that I took at court and withdrawn that allegation against the mother.”

 

  • Ms McMullan’s evidence is that she had a conversation with DS Hudson; she says that she told the officer that she did not know that the video had originated in America, to which DS Hudson replied that he thought that Mr Garthwaite had told them.

 

 

 

Just when you think that things can’t get worse, they do.  It emerges that at the ABE interview of the child (which was conducted by an inexperienced social worker), the child was shown a pixelated photograph of the child in the video  (who the police KNEW was not her)

 

 

  • ABE interview: ABE interviews should always be conducted with reference to the March 2011 Guidance: “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures“. Although this guidance is advisory, and is not a legally enforceable code of conduct, as the Guide makes clear “practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts” (see §1.1). This is not the place for a detailed examination of the guidance, but it is essential reading for any professional conducting such an interview, and for those engaged in the preparation of a case which depends upon interview. It was not followed either explicitly in the work undertaken by SW1 and her colleague on 17 September 2015; the Local Authority properly concede the consequent breaches of the Claimants’ Article 6 and Article 8 rights in this regard (see Annex A[1](e)/[2](c)).
  • In this case, I question why an interview in the ABE format was taking place at all in September 2015, some seven months after the children were received into care; SW1 believed that GD “needed to tell her story”, but what story was it that she “needed” (or was being invited) to tell? Insofar as it was appropriate at all, it was not properly prepared, and the questions asked of GD reveal that the interviewers were at sea; it is to be noted that “[a] well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.” (§2.1). It is clear that there was minimal planning. Recent judicial commentary on ABE interviews is to be found in the Court of Appeal’s decision in Re E [2016] EWCA Civ 473 at [24]-[45], which in turn endorses in large measure what Sir Nicholas Wall P had said in the case of TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597; the following observations are relevant to the facts of this case:

 

a) ABE interviews of children must always be conducted by professionals who have been trained to apply the ABE Guidance;

b) The fundamental principle which underlies the ABE Guidance is that those who elicit evidence from a child must conduct themselves in such a way that the child is given the maximum possible opportunity to recall freely, uninhibited by questions, what he/she is able to say.

c) The ABE Guidance emphasises (at para 3.108) that photographs (or drawings, pictures, symbols, dolls, figures and props) “should be used with caution and never combined with leading questions.”

 

  • The Local Authority is right to concede the inappropriateness of the ABE interview being conducted by inexperienced social workers, contrary to judicial and other guidance. It is further right for the Local Authority to concede that the photograph of Girl Y should never have been shown to GD. SW1 was wrong to mislead GD that the photographs were all from a “family album”; that was manifestly not so in relation to one of the pictures. One of the lowest points of this blighted history was the act of showing GD an edited version of an illegal download of a child abuse victim lying on her back with her legs apart exposing her genital area (albeit pixelated) under an entirely false pretext that the interviewers believed it was her and that the photograph had been located in a family album. I agree with the mother when she argues that it was “fundamentally wrong” for the Local Authority to interview GD in this way. Had the Children’s Guardian been aware that the interview was to be carried out in this way (and I am satisfied that he was not) he says that he would have “objected in the strongest terms”, and rightly so.
  • Showing the pixelated photograph to GD, and misleading her as to its provenance, were blatant breaches of GD’s right to be treated fairly by the Local Authority. There is no doubt that the interview itself would have been distressing to GD; the manner in which it was conducted was designed or intended, it seems to me, to produce evidence which falsely implicated the mother. If GD was “defensive” in interview (a point relied on by the Local Authority as part of its “wide canvas”) this is not entirely surprising. The Local Authority knew that GD was not Girl Y by this time and should never have proceeded in its investigation in this way. I accept the Claimants’ case that it was undignified and demeaning for this eight-year-old girl to be put through a formal interview process which was unnecessary and which sought to inveigle her into providing evidence to support a false allegation.

 

 

 

The Judge has made his findings that there was not bad faith on the part of the Local Authority, and that judicially speaking is that. I’ll keep quiet as to my own views on the matter.

 

 

The findings in relation to the police

 

Findings: West Yorkshire Police:

 

  • Disclosure: The failures of the West Yorkshire Police to comply with its duty of disclosure in this case were extensive; these failures regrettably pervaded the entire course of the case; I consider that it extended the litigation, and ultimately influenced its outcome.
  • I am satisfied that the West Yorkshire Police, and specifically (unless otherwise indicated) DS Hudson:

 

i) Repeatedly failed to comply with court orders for disclosure; those which are obvious from my review of the papers are orders made on the following dates:-

a) 27 February 2015 (this breach is acknowledged in the order of 19 March 2015);

b) 7 May 2015 (in relation to the facial mapping report; this is evident by the order of the 11 June);

c) 10 July 2015 (the order of 21 August 2015 makes clear that the Chief Constable had made only “partial disclosure” of the documents ordered to be disclosed by 17 July);

d) 21 August 2015 (the Police did not disclose by 28 August information relevant to the Kodak photograph);

e) 23 October 2015 (in relation to the Kodak photograph and the origin and date of the short video and the still image of Girl Y: this was not done until trial; although this order was directed to the Local Authority, it was contemplated by the order that the information would be provided by the police, who, indeed, were asked for it; the police e-mailed Ms McMullan indicating that it had no further evidence to submit);

ii) Failed to disclose to the Local Authority and to the mother, on or about 31 March 2015, that the mother had been “eliminated” from suspicion as Woman X, when LGC Forensics advised DS Hudson that this was so; the Police erroneously, in my judgment, initially contended that such non-disclosure was justified as it may “prejudice” the investigation and/or that “piecemeal” disclosure would have been inappropriate. That argument was subsequently abandoned. It surely cannot be justified to withhold evidence from a person accused of a crime which exonerates them. This was not ‘marginal’ evidence. The police engaged in piecemeal disclosure thereafter, thus undermining the very basis of their initial stance;

iii) Failed to make known this information (i.e. that the mother had been eliminated on the basis of the expert assessment) to the parties at court hearings which followed on 7 April, 7 May and 11 June, and which the West Yorkshire Police were legally represented (albeit not by Mr. Mallett who appeared at the hearings before me);

iv) Delayed for one month before they disclosed the LGC Forensics report to the mother and her legal team (the West Yorkshire Police received it on 12 June and only disclosed it after the interview of the mother on 9 July 2015); this report, of course, contained the clear and unequivocal conclusion that MD was not Woman X, and that GD was not Girl Y in the still image;

v) Failed to disclose (after the end of June, or by 23 July 2015 at the latest) that the second (longer) video existed, which indisputably proved that neither MD nor GD featured in the short video; (the mother and her legal team were first made aware of it on or about 18 November);

vi) Failed to disclose (after 17 September 2015, by which time the information was clear) the evidence supportive of the mother’s account that the Kodak photograph had in fact been taken in 2009; this failure was compounded by the fact that the police were in breach of disclosure orders variously made on 10 July and 21 August 2015;

vii) Failed to comply with court orders for disclosure more generally; the representation made by the West Yorkshire Police to the Local Authority after 23 October that it had no further evidence to disclose was false.

 

  • These failures derive from three essential shortcomings in the operations of the West Yorkshire Police in this case:

 

i) A failure to establish or maintain clear lines of accountability in relation to disclosure; Mr. Garthwaite has explained that he had passed on the requests for disclosure to DS Hudson and had received messages from the officer which tended to indicate that the requests had been complied with; DS Hudson believes that responsibility lay with Mr Garthwaite. There was no evidence of any audit of this process;

ii) An indifference which I detected in the evidence and in the conduct of DS Hudson to the importance of disclosure;

iii) An apparent lack of concern about compliance with Court Orders. I turn to this subject in the paragraph which follows.

 

  • Surely no party, or lawyer of any experience, in litigation of this (or any) kind still needs reminding of the importance of compliance with court orders: see what I myself have said in F v M [2015] EWHC 3259 (Fam) ([7] et seq.), and for the most recent example London Borough of Redbridge v A, B and E [2016] EWHC 2627 (Fam), published during this hearing. Case management orders are to be obeyed, to be complied with on time and to the letter, and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see also Re W (Children) [2015] 1 FLR 1092). As is evident from my summary at [93](i)(a)-(e) above, this did not happen in this case. The burden of other work is not an excuse for non-compliance with the directions of the court; whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187). As Macdonald J in Redbridge went on to say at [12]: “Case management directions are not mere administrative pedantry”, adding:

 

“It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.” (emphasis by italics in the original).

Macdonald J’s observations apply, in my judgment, with equal force to the responsibilities of the police.

 

  • Had orders been complied with faithfully and conscientiously, the flaws in this investigation are likely to have been avoided, or at least exposed at an earlier time. Moreover, MD was put to the trouble, and the State was put to the expense, of obtaining independent expert advice about the Kodak photograph showing her destroying a hard disk drive; her expert in due course confirmed the date of creation of the photograph as 11 March 2009 – a fact known to the police for several months (March 2015), but not disclosed by them. Had the police revealed its knowledge earlier an important plank of the Local Authority’s case would have been removed, for the authority had sought to use this evidence that the mother had been, or was likely to have been, recently engaged in the business of destroying evidence (i.e. in the period between the first search of the family home and the arrest of the parents in reliance on the photograph which (it maintained) was not visible on the computer system before 2014) as part of its “wide canvas” of evidence implicating her in the abuse (see [82] above).
  • Second (longer) video: I find that DS Hudson did not inform the Local Authority (or indeed any of the other parties) of the existence of the second (longer) video until 18 November. He had multiple opportunities to do so:

 

i) As soon as he was told by the Digital Forensic Investigator, DFI, about it, which was probably by the end of June, but certainly by no later than 23 July;

ii) At Court at the hearing on the morning of 21 August 2015;

iii) At the conference with Mr. Shiels, Ms McMullan and SW1 in the afternoon of 21 August 2015;

iv) As soon as he had seen the video himself, which was at the latest on 24 August.

It is apparent, and I so find, that as at 21 July 2015 when Mr. Garthwaite sent the e-mail referred to at [29], the West Yorkshire Police were aware that (in spite of the expert evidence from LGC Forensics) the Local Authority was continuing to pursue the allegation within the care proceedings that MD was in fact Woman X in the short video.

 

  • In his evidence before HHJ Anderson and before me DS Hudson sought to divert responsibility for the failure to disclose the second (longer) video onto Mr. Garthwaite, with whom, he said, he had corresponded on the subject. I have seen no correspondence from DS Hudson to Mr. Garthwaite in which he requests that the existence of the second (longer) video be disclosed to the Local Authority, let alone the respondent parents. I reject his case about this. Regrettably, as I mention elsewhere, Mr. Garthwaite knew of the existence of the second video, but did not appreciate its significance (see [30] above).
  • The short video / the superimposition montage: It is obvious from the internal e-mails passing within the West Yorkshire Police at the material time that serious misgivings were expressed by DFI, and separately indeed by DS Hudson, to Mr. Garthwaite about the appropriateness of facilitating the viewing by the lay parties and their lawyers of the short video; this was particularly in light of the fact that it was known that this had no relevance to the investigation of, or the public law proceedings concerning, this family. The situation which arose in relation to this highlights vividly the lack of strategic leadership in the management of the joint investigation and in its relationship with the Local Authority, and the failure of Mr. Garthwaite (as the solicitor for the force) to gain an understanding of the significance of the evidence.
  • Misled the Local Authority: I am satisfied that DS Hudson caused or encouraged the Local Authority to believe that Woman X could be the mother. This is evidenced by the fact that at the conference on 21 August 2015,

 

i) He showed the short video to the Local Authority representatives (inferentially he was holding out that it had probative value in the CA 1989 proceedings):

ii) He drew attention (during the showing of the video) to the existence of the ring on the same finger on Woman X as that worn by the mother;

iii) He pointed out (during the showing of the video) the watch worn by Woman X, which – he said – was not found in the search of the house.

At that time, he knew that the mother had been definitively excluded from consideration as Woman X. Of course the watch was not found in the search of MD’s house: the woman wearing the watch was not MD. There was no significance to be attached to the ring worn by Woman X. DS Hudson knew that.

 

  • DS Hudson showed the Local Authority lawyers the superimposition montage on 17 September; the only plausible explanation for the officer presenting this evidence to the Local Authority at that time is that he was encouraging the authority to pursue a case that Girl Y was indeed GD in the still image, even though he knew that this was, on the evidence of the expert not so (and when he knew also, on his viewing of the longer video, that GD was not the girl in the video either).
  • Witness statement of DS Hudson (dated 22 September 2015): The West Yorkshire Police rightly concede that the witness statement of DS Hudson (22.9.15) was seriously misleading in both what it contains and in what it does not contain (see the concession at Annex B [6] below). I was unconvinced by DS Hudson’s protestations that he did not realise that by providing such a limited statement, and indeed by providing only the material he did, a wholly distorted view would be given of the investigation and its outcomes. It is well-established now that by the time he provided the statement, he knew that MD was not Woman X, yet the statement tended to point to the contrary conclusion. For instance, his statement includes this paragraph:

 

“The footage of the images and videos recovered from the forensic examination identified a video containing footage of a women (sic.) with the facial appearance of [MD], the face of the women (sic.) in the footage can be seen, not a common factor as those abusing children do not want to be identified, also the woman wore a ring on her right hand finger which is the same hand [MD] wears a ring as seen in other family footage of her”.

The statement further referred to DS Hudson’s belief that Girl Y bore a striking resemblance to GD. This statement drew attention only to those pieces of evidence which implicated the mother; he failed to refer to the following crucial facts:

i) By the time he signed the statement, he had undoubtedly received information that the short video was an extract of a longer video which demonstrated beyond peradventure that Woman X was not MD;

ii) The video undoubtedly originated in the USA;

iii) No watch had been found in a search of the mother’s home which matched the watch in the video;

and

iv) The police had clear evidence from LGC Forensics, which they had accepted that MD and GD had been eliminated as a match for Woman X and Girl Y respectively.

 

  • DS Hudson told HHJ Anderson that he understood the purpose of the statement was “to outline my involvement with the family”, and separately “to provide a snapshot of my investigation into [MD]”. He conceded at that hearing that he had been in “error” in providing the statement which he did. He further told HHJ Anderson that he knew at the time of providing the statement that the Local Authority was continuing to pursue the finding that MD was Woman X, a contradiction from the evidence placed before me. There was the occasional sign in his oral evidence before HHJ Anderson (of which I have the transcript) of his confused thinking, for instance posing the rhetorical question (when probed about his knowledge of the video originating in the US): “who am I to know that she has not been on holiday to America?” (later dismissed by him as a “throwaway remark” for which he apologised). It was that confused thinking, coupled with an unworthy desire to see MD proven to be Woman X, which I believe permeated his dealings with the Local Authority. At this hearing he has acknowledged that:

 

“… in providing such a limited statement, without expressly confirming the use to which it would be put, I afforded the opportunity for the Local Authority case to be progressed in the way that it was… I can see now that I was overly-reliant on the Local Authority legal representatives in dictating the content and scope of my statement…”

 

  • Failure of recording: It has been important to my investigation to know when DS Hudson viewed the second (longer) video; although I am satisfied that from 23 July at the latest he was aware from DFI that MD was not Woman X, he had not seen this with his own eyes. It is therefore a source of forensic frustration, and not inconsiderable consternation, that the evidence adduced before me revealed such lax arrangements for the recording of viewing or distribution of such highly sensitive materials. DFI made no note of when he found or viewed the second (longer) video, nor when DS Hudson viewed the second (longer) video; yet more concerning is that DS Hudson was provided with a copy of the short video and/or the longer video, but no record was made of when he was provided with them, or their ultimate whereabouts. After his retirement, the second (longer) video was found in the secure safe of his office; no steps had been taken to return it to the Digital Forensic Unit.
  • Generally: DS Hudson appeared affronted that his investigation and his conduct of it was being called into question in this enquiry. DS Hudson had, I have found (see [13] above), declared himself at the strategy meeting in February 2015 to be 90% sure that MD was Woman X, and 99% sure that GD was Girl Y. In my judgment he struggled to shake off those beliefs; the social worker had the sense that he still thought it could be the mother when he met with the Local Authority representatives on 21 August 2015. The mother recorded in her written evidence that she felt that DS Hudson strongly believed throughout the investigation that she was Woman X. When Mr. Marshall gave his evidence to HHJ Anderson in November he described DS Hudson’s reaction to seeing the longer video in July/August thus:

 

“I’d given him clear proof that it wasn’t what he thought from the start but then from there, there was also… He was still convinced of the likeness that was there…” (my emphasis by underlining)

His evidence frankly gave me the same impression.

 

  • As I say, DS Hudson believed that the Local Authority was “looking to pursue” the allegation that MD was Woman X in the care proceedings even when he knew that she was not that woman; at no time did he challenge the Local Authority as to the appropriateness of this pursuit. This belief in the mother’s likely guilt (alternatively his wish to see her proven as the perpetrator of abuse) is consistent with, and provides a unifying explanation for, his conduct in:

 

i) Failing to make clear to the Local Authority and/or to the mother at once, following his conversation with LGC Forensics on 31 March, that MD had been “eliminated” as Woman X; I have found (see [20] above) that he was given this specific information on that date;

ii) Presenting the image of Girl Y to the parents in interview in an effort to trick them (as I find) into believing that it was GD (see [26]) in an attempt to see if an incriminating response may be given;

iii) Showing the Local Authority representatives, the short video of Woman X at the conference on 21 August 2015 when he knew that it did not feature MD, and that it was made in the USA;

iv) During that presentation, on 21 August pointing up the presence of the ring on the finger of Woman X as being similar to that worn by MD;

v) Informing the Local Authority representatives at the conference that a trawl of the family home had not revealed the presence of the unusual blue watch worn by Woman X;

vi) Signing and submitting a witness statement in September 2015 which was highly selective in content and unacceptably partisan;

vii) Failing to tell the Local Authority representatives of the existence of the longer video at that or any subsequent time prior to 18 November (second day of the hearing before HHJ Anderson);

viii) Volunteering in his evidence at the hearing before HHJ Anderson that he could not confirm that the mother “hasn’t been on holiday to America” (implying that she could have been involved in the creation of the video); his later apology and dismissal of the remark as “throwaway” does not expunge the record.

I find that by his conduct and words said and not said, DS Hudson allowed or encouraged the Local Authority to pursue the finding that MD was Woman X. I reject the explanation he gave for showing all parties the short video during the autumn of 2015 prior to the final hearing that he simply thought that “they should know what … the background to the case was”.

 

  • DS Hudson as officer in the case carried much sway with the Local Authority. In his sharing of information, he did not faithfully observe the ‘Golden Principles’ discussed at [71] above (viz. “Necessary, proportionate, relevant, adequate, accurate, timely and secure”). His less than professional approach regrettably contaminated the family proceedings. He was not, in my judgment, effectively supervised by DI Walker during the months under review. She concedes as much. This was a failing on her part, which I consider contributed to the unchecked mischief in this investigation.
  • I note that Head of Legal Services at West Yorkshire Police has made a referral to the Professional Standards Department of the police in relation to the conduct of DS Hudson; the Professional Standards Department has indicated that it intends to await the outcome of this hearing.
  • It was Mr. Garthwaite’s clear role as Legal Adviser to the force to take responsibility for the force’s compliance with the disclosure orders, to be proactive over the disclosure of material more generally, and to have a hand in (or oversight over) the preparation of DS Hudson’s witness statement. My impression was that he was rather detached from these processes, dipping in when unavoidably required to do so, and otherwise placing reliance and responsibility, to an unwarranted extent, on the actions and judgment of the investigating officer. His e-mail to DS Hudson of 21 July (see [29] above), shows a lack of discipline in communication; regrettably, the use of the vernacular (“pin a case”) may well have given a false impression to the officer about the intentions, the judgment and indeed the integrity, of the Local Authority in the prosecution of its case. His lack of appreciation of the significance of the second (longer) video (which would have been apparent on minimal enquiry) contributed to the failings of his department, and of the investigation.

 

 

 

Findings in relation to counsel instructed by the Local Authority

Findings: Intervener:

 

  • There is no doubt that the Local Authority legal team was under joint and several duties to observe essential principles of fairness, and comply with orders of the court; each owed a duty to the court in the administration of justice. Each had a duty not to mislead the court, knowingly or recklessly, and to provide a competent standard of work. In that regard, what I have said about the Local Authority team above in some respects applies to Mr. Shiels.
  • Mr Shiels, an experienced family practitioner, was instructed as counsel on 16 March 2015, receiving his instructions from time to time from a solicitor whom he regarded as “very able and experienced” and with whom he described enjoying a “good working relationship”. There was, apparently, no formal brief or instructions as such; Mr Shiels received his instructions relatively informally through e-mails and telephone conversations. He attended altogether seven directions hearings in the case prior to the final hearing listed in November 2015.
  • There are clear duties imposed on counsel to observe a duty to the court in the administration of justice, to act with honesty and integrity, and not to behave in a way which is likely to diminish the trust and confidence which the public places in the individual barrister and/or in the profession (see the Bar Standards Board Handbook, Core Duties).
  • I have, in reviewing Mr. Shiels’ role, as I have with others, endeavoured not to apply too exacting a standard by viewing the conduct through the lens of hindsight. Mr. Shiels’ approach to the case he was instructed to present, reflected in his advice to his instructing solicitor, appears to me to have been more bullish than it was cautious; that is not a criticism as such, nor a mark of professional irregularity. He was of course evaluating the case in the context (to which I have alluded above) of serious criminal offending within the family home; I consider that this backdrop may have influenced (perhaps to a disproportionate extent) his intention to seek serious findings against the mother which on the evidence were, objectively viewed, likely to be beyond his reach. Central to Mr. Shiels’ advice was that the LGC Forensics report may be wrong, and that there was much extraneous evidence (including the superimposition montage) which could knit together to establish a finding that MD was Woman X and that GD was Girl Y on the preponderance of probabilities. While Mr. Shiels was entitled to the view that the expert evidence may indeed be wrong, and that it was in any event only part of the forensic picture, I discerned limited if any evidence on the papers before me that he had properly thought through how this might be presented to the court. I say so for the following reasons:

 

i) There is no indication in what I have seen that he conducted any detailed evaluation of the strength of the expert evidence of LGC Forensics; the report contained much technical and specialist information and assessment, even if ultimately based on a subjective view of the material; Mr. Shiels had no equivalent expert evidence to rebut it; I remind myself of his e-mail to Ms McMullan on 23 July (see [31] above): “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.”

ii) It seems that he had not appreciated the limitations of the superimposition montage; he described this montage as revealing a “remarkable match” in his opening note, yet had not taken the precaution of sending the montage to LGC Forensics and specifically to the expert for her comment. He has no expertise, or knowledge or skill in the area of facial mapping and I apprehend from his cross-examination of the expert at the hearing before HHJ Anderson, that he had limited understanding of the techniques used in compiling such a video (Ms Pestell describes a range of applicable tests including ‘the flicker test’, the ‘half-image’ approach, the ‘transparency overlay’). Ms Pestell was clear that the video superimposition montage compiled here was not just one which would be unsafe to place before a jury, it was in fact potentially misleading. (see [58] above);

iii) Mr. Shiels wrongly described to HHJ Anderson (and may well therefore have treated) the superimposition montage as expert evidence; it was not;

and

iv) It was at least questionable whether the other matters which he wished to bring onto the ‘wide canvas’ were truly probative of the principal contention that MD was Woman X (see [82]).

His e-mail to Ms McMullan on the 23 July (“to me, it just looks like mother and [GD]”: see (i) above, and [31]) does not, as I say, reveal any analysis or reasoning. Professional “instinct” is useful, but it is not a fool-proof or objective measure of evidential reliability. Mr. Shiels’ ready (and I may add appropriate) acknowledgement of the strength of the expert opinion once the author of the report (Ms Pestell) had completed her oral evidence before HHJ Anderson served to highlight the insecure basis on which his original view was formed.

 

  • Mr Shiels’s failure to mention in his detailed Opening Note the possible (as he knew it to be) US origin of the video recording, and/or the failure of the police to locate the watch worn by Woman X in the search of the family home, is harder to understand or explain. I am not satisfied that these omissions were deliberate (in the sense that he sought to paint a misleading picture), but I am concerned that he was “focused” (see [38]) rather too firmly on constructing a case against the mother, encouraged perhaps by the police, rather than in presenting a truly balanced account. Mr. Shiels’ failure to mention these facts contributed to the Article 6 breaches conceded by the Local Authority (see Annex A[1](a)/(b)/(h)).
  • I found Mr. Shiels to be a straightforward and honest witness. I do not view his conduct in this case as falling below the standards of a practising barrister. The opinions he formed were, I am satisfied, genuinely held and fashioned by the information he was given. He was unlikely to have been unaffected by DS Hudson’s zeal. It turns out that in a number of respects his judgment turned out to be wrong; but exercise of judgment is after all in the realms of art not science, and it is easy to view decisions in hindsight:

 

“Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent” Saif Ali v Sidney Mitchell [1980] AC 198 at 231.

Finally, lessons to be learned

  • What follows is not a comprehensive guide to good practice, but some points which require specific attention as lessons to be learned from the experiences of this case:

Collaboration between agencies and inter-agency working:

i) I have set out the duties of joint working at [68-72] above. The courts expect a high level of co-operation and collaboration between the various agencies conducting joint investigations in relation to safeguarding cases; this was a point I recently made in Rotherham MDC v M & others [2016] EWHC 2660 (Fam) at [10] (“These bodies have a collective responsibility to work in partnership in the discharge of their respective duties, to share information conscientiously, and to maintain clear focus throughout their investigations about their common objectives”); there should be an ongoing dialogue in ‘real time’ between the agencies, and these should be properly recorded – (see below);

ii) Informal discussions (including e-mail ‘discussions’) between professionals conducting joint investigations should be avoided; proper records should be kept of discussions had, and information shared, when and how;

iii) E-mail or other written communications between operational professionals (the Officer in the case, and the social worker) should be copied in to, or pass through, lawyers for each of the agencies, so that there is a clear understanding and record of what information is being shared;

iv) Where meetings take place between the representatives of the safeguarding agencies, a written record should be made of the meeting; that written record should ideally be agreed between the participants.

Disclosure issues

v) Where issues arise as to disclosure of material or information between the police and social services, it is incumbent on the parties rigorously and faithfully to apply and comply with the Protocol and Good Practice Model (October 2013); this identifies as one of its principal Aims and Objectives the “timely and consistent disclosure of information and documents from the police, and the CPS, into the Family Justice System” (3.4).

vi) Where orders are made for disclosure affecting the Police, they must be complied with, or application made to have the order varied or set aside. Orders are Orders (per Re W [2013] EWCA Civ 1177, and specifically in this regard §7.4 of the 2013 Protocol and Good Practice Model). It is not for the Police to apply their own judgement as to the relevance or otherwise (in their eyes) of what they have been required to disclose; it is the plain and unqualified obligation of every person or body against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is varied or discharged;

vii) If the Police consider that the material disclosed requires an explanation/clarification (for example, if the Police consider that it may be misunderstood or given a significance that it does not merit) the Police can make this clear, in the first instance, with a letter accompanying the disclosure and, if need be, by providing a written statement to that effect;

viii) Where information or documentation which is relevant to the public law proceedings is provided by the police to a local authority, that material shall be disclosed to the other parties unless the court, on application by either the local authority or the police, has granted permission for non-disclosure (see for instance Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, and Durham County Council v Dunn [2012] EWCA Civ 1654, [2013] LGR 315);

ix) It is recognised that there may be occasions when the Police seek to delay disclosure on the grounds of prejudice to an ongoing criminal investigation, and this may indeed be merited for a limited period of time (see §6.4 of the 2013 Protocol and Good Practice Model). However, should the police wish to withhold material for this purpose, it should raise the matter with the Local Authority and/or the court (see §7.2); if presented to the court, it will be incumbent on the judge to balance the Police’s desire to delay disclosure against fairness to the parties within the care proceedings and the prejudicial effect of delay upon the children.

x) Furthermore, the Police must always be able to justify any claim of prejudice. Reasons should be provided to the Court. ‘Prejudice to the investigation’ is not to be used as a generic objection to disclosure. Any assertion of prejudice must be scrutinised rigorously and must be kept under constant review. It is to be expected that such analysis and review will involving meaningful input from the investigating officer, his/her supervising officer and/or Police Force Legal Services.

xi) If/when any claim to prejudice is withdrawn by the Police or no longer sanctioned by the Court, the Police and Local Authority should disclose to all parties any information which had previously been withheld as directed by court order.

xii) DI Walker advised me that procedures are now in place within West Yorkshire Police to ensure that disclosure to local authorities engaged in care proceedings is overseen by Information Management and that every disclosure is individually itemised, with page numbers, to ensure absolute clarity about the documentation/information provided and the timing of such disclosures. These logs will then be made available for reference by the Courts as and when required. It is important that this standard of record keeping is adhered to.

ABE Interviewing

xiii) ABE interviewing is a skilled exercise, which should only be conducted by trained professionals. It is not acceptable under any circumstances to provide false or misleading information to a child; after all, there is a high expectation that the child will be encouraged to provide accurate information to the interviewers.

Evidence

xiv) Witness statements:

a) A witness statement is the equivalent of the oral evidence which the maker would, if called, give in evidence (PD22A para.6 FPR 2010). It follows that all witnesses who provide written statements should therefore carefully check the contents of those witness statements before they are signed, and should only confirm the truth and accuracy of the same when they have undertaken that careful check. Local authority lawyers should be scrupulous in ensuring that social workers are aware of any editorial changes made to draft statements; the written statements have particular significance at interim hearings given that “the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise” (rule 22.7 FPR 2010) and in which a “fact which needs to be proved by the evidence of witnesses is to be proved … by their evidence in writing” (rule 22.2 FPR 2010); at a final hearing, of course, “The witness statement of a witness called to give oral evidence … is to stand as the evidence in chief of that witness unless the court directs otherwise” (rule 22.6(2) FPR 2010);

b) Where a statement of evidence is sought by a Local Authority from a police officer involved in a parallel investigation, such a request should be in the first instance to the District Safeguarding Inspector, and it should be made in writing. If contentious issues arise, then Legal Services of the Police should be involved. It should be clear in any request, and understood as a matter of common practice, that any statement of evidence must provide balanced and accurate information and not mislead by matters either included or omitted; any statement should include all matters which in the view of the District Safeguarding Inspector (and/or Legal Services, if involved) will assist the Family Court in reaching decisions in the best interests of a child, whether that is helpful or adverse to the particular case being advanced by the Local Authority; the statement should be prepared by the Local Authority solicitor. The current policy of the West Yorkshire Police provides for the officer to be interviewed by a Local Authority representative (I would propose that this be a lawyer) in the presence of an Inspector (or higher ranking officer). This makes good sense. It appears that DS Hudson was unaware of the policy at the time he prepared his statement; I understand that DI Walker has referred the matter to the Safeguarding Central Governance Unit in order that all officers involved in safeguarding work can be reminded of its contents;

xv) Different rules, procedures and expectations arise in the instruction of experts in criminal and family proceedings; there are material differences between Part 25 (and PD25) of the FPR 2010 and Part 19 of the Criminal Procedure Rules 2015. Where an expert has been instructed in the criminal process on whose evidence the Local Authority wishes to rely, the Local Authority should take steps to ensure that the evidence conforms to the requirements of Part 25 and the associated Practice Direction 25B. Any further approach to the expert should conform to the requirements of Part 25;

xvi) The procedure for submitting questions to experts should be used promptly and in accordance with Rule 25.10 FPR 2010.

Repeat medical examination

xvii) GD was subjected to two medical examinations within a few days of each other in March 2015; the first was an intimate medical examination. The repetition of investigation of this kind is highly regrettable, and I suggest was wholly avoidable. The Local Authority social work team manager explains that the police medical was undertaken by a police forensics surgeon “who would not have been able to undertake a LAC medical. The LAC medical was undertaken by LAC nurses”. This still does not explain why the exercise could not have been conducted collaboratively with the sharing of information and findings. I therefore recommend that:

a) There is a duty on the investigating authority to satisfy itself that there is a proper basis for an intimate medical examination – either, for example, a disclosure of abuse by the child, or a direct allegation of abuse which would be clarified by the intrusive examination;

b) The Police and Local Authority should co-ordinate their enquiries so that a child is not subjected to repeated medical examinations (required for different purposes), particularly within a short space of time;

c) By the time of the medical examination, the Local Authority had parental responsibility for the child under an ICO and gave consent. However, the parents (also with parental responsibility) should have been consulted; in the absence of agreement, a court order should have been sought authorising the medical examination;

d) A report of the examination should be made available to those with parental responsibility, and, where relevant, the court.

These observations coincide with the clear guidance offered in the ACPO Guidance at section 4.4, the College of Policing: Major Investigation and Public Protection; Child Abuse; Further Investigation (first published 21.01.14; last modified 16.11.15), section 3; and the ABE Guidance at para 2.41.

 

 

 

Building Redbridge to your heart

 

 

Readers may remember the London Borough of Redbridge getting a hard time recently in this case

https://suesspiciousminds.com/2016/10/25/like-redbridge-under-troubled-water-a-local-authority-takes-a-kicking-case/

 

And you might remember that the case hadn’t finished there –  MacDonald J had effectively put the Local Authority in special measures, with them having to write to him each and every week to say if the case was still on track to an adjourned final hearing.  So this is the judgment from the final hearing, and if Redbridge’s bruises were healing up, they just got some new ones.

 

But first, here’s  photo of a muppet.   (this is foreshadowing, y’all… )

 

No, it's not Honey G out of X-Factor

No, it’s not Honey G out of X-Factor

Re  E (A child : Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/59.html

 

The final hearing was conducted by Mr Justice Moor, and he opened with this King Punch

 

  • Following the Family Justice Review, it was recognised that care proceedings were taking far too long. At the time, the average length of a care case was around 57 weeks. This was unacceptable. The Review recommended a maximum of 26 weeks. The Government accepted the recommendation and the Children and Families Act 2014 was enacted. Section 14 imposes a statutory limit on care proceedings of 26 weeks, albeit that the period can be extended but only if it is necessary to resolve the proceedings justly. Extensions are not to be granted routinely and each extension is to be for no more than eight weeks.
  • The care proceedings in relation to E. commenced on 12th January 2014. By my calculations, that is some 148 weeks ago. I am dismayed by this. It is completely wrong. E. has been let down in a quite unacceptable way. The strain on E.’s mother has been huge. She has been let down as well. Everything that could go wrong in this case has gone wrong. E. and her family are due an apology for this unacceptable state of affairs.

 

 

Awful situation.  When I look at the history of litigation set out by the Judge though, I see SEVEN different Judges have dealt with substantive matters where issues were contested and determined, and who knows how many others have done directions hearing.  What price judicial continuity? The Courts have to look at themselves for some of this. The case could not have got up to 148 weeks if the Courts weren’t granting extensions, and though many of them were due to faults from the parties, there was still a failure to properly grip the case right up until Mr Justice MacDonald’s fearsome judgment.

 

Having said that, it was still quite astonishing that a case with the history of this one (two appeals, case falling apart at final hearing, the LA within a short space of time going from a plan of no order, to Supervision Order to Care Order to Care Order and removal) that the LA got to the final hearing with a social worker who seemed very nice, but for whom this was their second ever case in Court.  It also wasn’t ideal that his first ever interaction with the mother was one where he had to tell her that the LA care plan was adoption.

 

The Judge did make some criticisms of the LA (though compared to the  withering and blistering MacDonald J judgment, these criticisms must have almost felt like praise)

 

 

  • I have already dealt with the failures of the Local Authority to comply with the directions of this court in the run up to this hearing as set out in the judgment of MacDonald J dated 17th October 2016. In the context of what had happened before, I am of the view that this case should have been given absolute priority. It was not.
  • I am equally satisfied that there have been many operational failings by the Local Authority in performing its duties as to its social work function. These have occurred at a significant number of points in the case but were particularly evident at the time that rehabilitation to the Mother was ordered by Mr Recorder Bedingfield. For example, the order of the Recorder dated 20th November 2015 required the Local Authority to convene a professionals meeting by 4pm on 7th December 2015. It did not do so. It did attempt to arrange a meeting but gave Ms CT such little notice that she could not attend. The Local Authority did not, therefore, comply with the next order, namely to file a new care plan setting out the detail of the rehabilitation plan within seven days of the meeting.
  • The Mother’s benefits had been stopped. Whilst the Mother may have carried some of the responsibly for this, I am satisfied that the Local Authority did not assist in the way that it should. Correspondence from the Mother’s solicitors was not responded to such that judicial review had to be threatened. Eventually, the Local Authority agreed to provide the Mother with £234.31 per week in a recital to an order dated 25th January 2016 but I am satisfied that even that did not go smoothly. Moreover, there was difficulty with the Mother getting her travel warrants to attend KCA for her drug and anger management therapy. Later, she was unable to attend this therapy as only one hour of child care was provided via PKS. As the KCA appointment was also for one-hour and she had to travel to and from the venue, it made it virtually impossible for her to continue with the work.
  • I further accept that the Mother did not find her leaving care worker, Ms T to be remotely supportive of her. The Local Authority knew that. Mr Recorder Bedingfield had made criticisms of Ms T in his judgment. I accept Ms Maclachlan’s submission that Ms T should not have been invited to the contact review meeting in January 2016, although I do not accept that this was a deliberate attempt by the Local Authority to get the Mother to lose her cool. I do recognise that, for example, the issue of the Mother’s leaving care grant, which I have been told is some £2,000, was very much in issue and needed to be dealt with. However, given the Mother’s opposition, the Local Authority should have respected that. It was another unnecessary failing.
  • Finally, the position of the Local Authority throughout this period left much to be desired. At one point in February/March 2016, it was inviting the court to make no order at all. At another, it sought only a supervision order. It then changed tack completely in later March 2016 to ask for a full care order. On 14th March 2016, it had been indicating it would be withdrawing the PKS workers. I accept that they could not continue to go into the home for ever, let alone daily but it is in stark contrast to a care plan only eight days later for removal. The way in which the Mother was told of the change in the care plan in the child protection conference on 22nd March 2016 was very insensitive, particularly as E. was present in the building, albeit with a PKS worker. I accept that it was always going to be difficult to tell the Mother. Is it better to do it in her home or with her solicitor or in the Local Authority offices? It was not, however, right to do it in the meeting. It was bound to distress the Mother enormously.

 

 

 

Very sadly, and despite an independent social worker lobbying very hard on her behalf, the Court concluded that the mother was not able to care for her child and the Care Order and Placement Orders were made.  Her representatives asked the Court to make human rights declarations but the Court declined to do so.  (I have seen reported cases with far less failings than this one which ended up with HRA declarations and claims, but of course, I didn’t hear or see the evidence)

 

But why the picture of the muppet earlier?

Well, part of the evidence involved whether the mother had been smoking cannabis, and one word rather leapt off the page at me when I was reading it

 

 

  • Another real and genuine concern is the Mother’s increased use of cannabis since March 2016. She has gone from one zoot per day to three zoots. This is a clear indication of her increased anxiety and fragility. She told the Guardian that she had ceased taking cannabis on 10th October 2016 but it lasted one day, as the Guardian predicted. She has told me she has reduced her cannabis intake recently but I am not satisfied as to this without far more information. She told the Guardian that she was using skunk, which is a significantly stronger version of the drug. She told me that she did not know the difference between ordinary cannabis and skunk, which I did find surprising although she seemed to be genuine when she told me. Having said that, she did accept that it was skunk she was buying and the Guardian told me that this is now the normal way in which cannabis is sold.
  • The use of cannabis can be very serious for the mental health of the user. I accept that different people react in different ways. This Mother has been using cannabis since she was aged thirteen. It does not appear to have affected her as badly as some. It has not prevented her getting to contact on time even early in the morning. It has not stopped her providing a good level of care for her daughter but I simply do not know what damage it is really doing. I strongly suspect that, in the long term, it is making her anxiety worse rather than better even though it does deal with the symptoms at the time. Moreover, the Mother accepts that the cost is some £10 per day or £70 per week. Given the enormous squeeze on benefits, I simply do not know how someone can spend that amount of money without a really serious effect on their standard of living. All this would have a real effect on E. too if it was to continue notwithstanding what the Mother said about prioritising E.
  • Ms CT appeared to accept the seriousness of this in her evidence. She said to me on more than one occasion that this did concern her, particularly if the Mother was taking skunk. She said she did not know of the increase in usage and there was no disagreement as to the seriousness of the risk if she was using three zoots per day. She accepted that the Mother would have to deal with this before E. could be safely returned and she was not advocating an immediate return to that Mother’s care. She reminded me that the Mother had managed to achieve periods of abstinence in the past (on one occasion of some four months) but she has always returned to the drug. I find that, without professional help, there is no chance of her being able to cease its use. In due course, it may start to have severely adverse effects upon her mental health.

 

 

 

Urban dictionary confirms that ‘zoot’ as we would take from the context, is indeed a joint or a spliff, and as the first time it appears in the judgment it is in quotes, it must be the term that mother herself used

It is right that the Mother continued to smoke one “zoot” of cannabis every evening after E. had gone to bed.

 

We’ve all rightly praised Mr Justice Peter Jackson for his judgment where he wrote directly for the children, using language that they would follow. So we should also commend this Judge for using the language that the mother herself was using.  And after all, joint and spliff are both slang words  (and if the Judge had said ‘reefer’ it would have seemed very dated.  So I think it is a good thing.  I just wonder how it sounded, coming from a High Court Judge.

 

If you do wonder what it is like when someone wearing a tie is talking very street language, you might be glad to know that Chicken Connoisseur has dropped a new review.   (And yes, I’ve been wanting an excuse to crowbar in a reference to the Pengest Munch. Enjoy.   The burger was not peng at all, it was just hench)

 

 

 

 

Legal aid, Court of Protection and ‘contrivance’

 

This is a Court of Protection case, and it is a Charles J judgment, which means that although it is important, it is complicated and challenging. If you aren’t working in the COP field, you can probably skip most of it and just go to the bits where Charles J is erm direct in his views about the Legal Aid Agency and the Secretary of State, who were both joined as parties.  That’s towards the bottom – and it is good stuff so worth a read purely for schadenfreude about those two massively popular bodies being taken down a peg or two.

The case involved a man who as a result of a road traffic accident in July 2015 had been unconscious since that time, and whether he should continue to have Clinically Assisted Nutrition and Hydration (CANH)

Clearly the man lacked capacity, so an argument about this would have to be dealt with under the Mental Capacity Act 2005 and in the Court of Protection. There’s absolutely and undoubtedly a valid argument to be had about whether the continuation of this treatment is in his best interests or not.

The case isn’t really about THAT argument, it is about a preliminary argument.

Is the application before the Court for :-

 

(a) section 5 and section 16 of the MCA  which allows the Court to consider all of the welfare issues set out in the MCA and make a best interests declaration ;

 

or

(b)  A challenge under s21A of the MCA – which relates to the Court’s powers to consider any aspect of P’s life or plans or arrangements for P if his liberty is being deprived.  I.e is it a DOLS case?

 

That seems to be sterile and academic, but actually it isn’t.  Because answer (b) can potentially attract non-means legal aid and answer (a) cannot.  So if the Legal Aid Agency granted legal aid on the basis of (b) it would be free to P’s wife to make the challenge and be represented in Court, and if they granted it on the basis of (a)  she would have to make a contribution, and in this case the level of those contributions would be at a level where she could not afford it and thus have to represent herself in proceedings about whether in effect her husband should be allowed to die.  (P’s wife and his family would like the CANH to be withdrawn and P provided with palliative care, the hospital would wish to continue the feeding treatment)

 

I have to say that my immediate view on this was that whilst P is not free to get up and leave the hospital, and he does not enjoy the same liberty as you and I, it is EXTREMELY hard to argue that the restrictions on his liberty is imposed on him by the State. They are surely a natural consequence of his medical condition.

Briggs v Briggs and Others 2016  EWCOP 48

http://www.bailii.org/ew/cases/EWCOP/2016/48.html

Charles J says this:-

 

 

  • The case has been argued before me on the premise that:

 

i) applying the decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] AC 896 (“Cheshire West”) Mr Briggs is being deprived of his liberty at the Walton Centre, andii) the Deprivation of Liberty Safeguards (the DOLS) apply to Mr Briggs (and so the point referred to in paragraph 101 of my judgment in LF v HM Coroner [2015] EWHC 2990 (Admin); [2016] WLR 2385 was not advanced).

One of the reasons for this was that the LF case is listed to be heard in the Court of Appeal before Christmas.

 

  • In any event, if I am right in AM v South London & Maudsley NHS & Secretary of State for Health [2013] UKUT 365 (AAC); [2013] COPLR 510 the DOLS may well continue to apply for some time to the circumstances in which Mr Briggs finds himself in the hospital (and on any move to another hospital) on the basis that he may be being deprived of his liberty.
  • I accept that this approach is a sensible one but record that it was made for and limited to the preliminary issue before me in this case. At least one of the parties indicated that it was not accepted that Mr Briggs was being deprived of his liberty and all parties reserved their right to argue that one or both of the underlying premises is incorrect.
  • I also make the general comments that:

 

i) the circumstances in which Mr Briggs finds himself flow inexorably from his accident, the damage that caused to his brain and body and the package of care and treatment that damage necessitated on and after his admission to hospital, and soii) to my mind, it follows that it cannot be said that his deprivation of liberty in hospital is imposed by others as, for example might be said in respect of the consequence of decisions made to admit and detain a person in hospital under s. 3 of the Mental Health Act 1983.

 

 

  • A standard authorisation under the DOLS in respect of Mr Briggs has been granted by the relevant supervisory body at the request of the Walton Centre. It expires in December.

 

I will cut to the chase – Charles J did decide to treat this case as a s21A case, and thus has found that Mr Briggs (P) is being deprived of his liberty and is entitled to make use (through his family) of the Deprivation of Liberty Safeguards.

 

  • 74. So if the result of the CANH issue is that it should be part of Mr Briggs’ treatment, I consider that:

 

i) pending a move to a rehabilitation centre, the authorisation of his deprivation of liberty at the hospital should no longer be governed by the standard authorisation (continued if necessary by the COP) but by the welfare order made by the COP although a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A (6) and (7) may need to be considered, and

iv) how the deprivation of liberty at the rehabilitation centre is to be authorised should be addressed by the COP and it may be that any court order should end on the transfer and that reliance should then be placed on s. 5 of the MCA and a DOLS authorisation.

 

  • 75. Alternatively, if the conclusion of the COP on the CANH issue is that it should not be part of Mr Briggs’ treatment I consider that:

 

i) the position relating to Mr Briggs’ deprivation of liberty pending a move to another placement where Mr Briggs receives palliative care should be covered by a court order although if the treating team change their position authorisation under a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct result of the best interests decision as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A(6) and (7) will need to be considered, and

iv) how the deprivation of liberty at the new placement (probably a hospice) is to be authorised should be addressed by the COP.

 

  •  So I agree that the determinative or central issue is whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2). But, in my view the consequences set out in the last two paragraphs mean that the determination of that issue by the COP founds and so is directly relevant to its consideration of its exercise of its functions under s. 21A (which it can exercise whether or not proceedings above have been issued under s. 21A).

 

 

{I’m very glad that I don’t work in a hospital legal department, because it is now very unclear to me whether every patient they have in an unconscious state or coma requires a DOLS authorisation. It is certainly a possible interpretation of this case}

 

Mrs Briggs argued in the case that s21A did apply . The Official Solicitor, the Secretary of State and the Legal Aid Agency argued that it didn’t, and that even if this WERE a DOLS case, there should be one non-means certificate to deal specifically with the issue of whether P’s liberty should be deprived, and another to deal with best interests decision about his care plan and treatment. The Hospital Trust were entirely neutral. It seems rather odd to me that nobody argued before the Court that the s21A issue is a contrivance using complicated legal finesse to attract non-means public funding to a situation where it doesn’t really apply.  (Perhaps they didn’t argue it because it appears that the idea emerged from decisions made by Charles J himself in other cases…)

 

 

  • It was not argued the proceedings issued by Mrs Briggs were an abuse or a contrivance. Indeed it was accepted that:

 

i) they were not,ii) the COP can grant relief under other sections of the MCA (and so under ss. 15 and 16) in an application under s. 21A (see Re UF [2013] 4289 at paragraph 11 and CC v KK [2012] EWHC 2136 (COP)), and so

iii) the COP could have granted relief in this case under ss. 15 and 16 if the only application before it had been that made by Mrs Briggs in reliance on s. 21A, and it could do this without directing that a further application be made,

iv) Practice Direction 9E, and no other Rule or provision, provided that an application “relating to” a best interests decision about serious medical treatment should be commenced in any particular way,

v) there was no difficulty in complying with Practice Direction 9E in proceedings issued in reliance on s. 21A and, in any event, Rule 26 of the COP Rules 2007 enables the COP to depart from it,

vi) whatever the result on the CANH issue Mr Briggs will continue to be deprived of his liberty and so when the COP determines that issue it will need to address how that deprivation of liberty is authorised, and

vii) on the approach taken in Re UF the authorisation under the DOLS (or a replacement) would remain in existence until the COP had decided the CANH issue and a decision about it under ss. 21A (3), (6) and (7) would or may be needed.

 

  • The points listed in the last paragraph are important because they mean that:

 

i) Mrs Briggs’ proceedings are proceedings under s. 21A and that applying Re UF until this case is decided by the COP an authorisation under the DOLS will remain in existence and so on any view those proceedings have an authorisation to bite on, and in my viewii) the COP can grant relief under s. 21A in an application brought for orders under ss. 15 and 16 of the MCA (the mirror image of Re UF and CC v KK).

 

  • Re UF addressed the same Legal Aid Regulation and identified a route (accepted by the LAA) that:

 

i) continued eligibility for non means tested legal aid although the COP (rather than the supervisory body) took the relevant decisions, andii) meant that what happened to that authorisation was a live issue at the end of the case.

 

  • My understanding is that the approach set out in Re UF has been applied in a number of proceedings brought under s. 21A which have turned on a detailed assessment of the relevant package of care, support and treatment, possible alternatives and which of them the COP has concluded will best promote P’s best interests.
  • So Re UF identified a route that the LAA accepted was not a contrivance by which non means tested legal aid was available albeit that the COP took over all decision making and could make decisions under ss. 15, 16 and 21A. Here Mrs Briggs’ proceedings came first and in Re UF separate proceedings seeking a welfare order and/or declarations had not been issued. Whether proceedings under s. 21A could be issued second to trigger eligibility to non means tested legal aid was not argued before me, but it would be surprising if the order of issue affected the application of Re UF and so the availability of non means tested legal aid. Also, it was not argued before me whether applying Regulation 5 non means tested legal aid could be given to both P and an RPR or only to one of them. I expressed the preliminary view that it could be given to both.
  • Experience indicates that many if not most cases brought under s. 21A in respect of a DOLS authorisation turn on the best interests assessment made by the COP and many lead to changes in the package of care, support and treatment to make it less restrictive rather than a change of circumstances that result in P no longer being deprived of his physical liberty and that these are implemented by or reflected in orders made under s. 21A varying the DOLS authorisation directly or by reference to the care plan it is based on or imposing conditions as a direct result of the best interests conclusion reached by the COP.

 

Charles J had THIS to say about the legal aid agency

 

 

  • The positions of the Secretary of State, the LAA and the Official Solicitor varied on the availability of non means tested legal aid for representation to present arguments on issues relating to the care, support or treatment of a P and so his care plan and needs assessment, and so on what the COP could properly consider and grant relief in respect of under or applying s. 21A:

 

i) the Official Solicitor submitted that non means tested funding for such representation was not available for any of such issues because they all related to the conditions of a detention and so were outside the ambit of the DOLS and s. 21A,ii) the Secretary of State submitted that such funding was available for representation on such issues if they related to “physical liberty”. As I understand the Secretary of State’s position that includes an examination of less restrictive conditions relating to physical liberty even though they also create a deprivation of liberty within Article 5 in the same or a different placement (e.g. a change from locked doors to door sensors and greater freedom of movement within a Care Home). But if that understanding is wrong, it is clear that the Secretary of State distinguishes between conditions that relate to physical liberty and those that do not – which, in the context of alternative regimes at the only available Care Home, it was submitted include the availability of en suite bathrooms or food choices or things of that nature. That distinction flows from the way in which the Secretary of State advanced his argument by reference to what is and is not covered by and so justiciable under Article 5, and

iii) although at the hearing it adopted the arguments of the Secretary of State on the meaning and effect of s. 21A and Regulation 5, the LAA was not prepared to commit to any circumstances in which it accepted that such funding was available for representation on such issues.

 

  • That stance of the LAA and experience of its general approach founds the conclusion that there is a real risk that:

 

i) it will seek to advance any point it considers to be arguable to avoid paying legal aid on a non means tested basis in respect of issues relevant to the circumstances of a P who is the subject of a DOLS authorisation,ii) in doing so, it will change its existing approach in such cases and so challenge Re UF and/or change the stance it adopted in that case,

iii) in doing so, it will adopt the position of the Official Solicitor and not that of the Secretary of State set out in paragraph 36 (i) and (ii) respectively.

 

  • After the hearing I was helpfully provided with further information by counsel for the LAA about its approach in the past and the future. This refers to the reliance placed on what the LAA is told and indicates that the approach in Re UF is being and will continue to be accepted and applied with the result that if the COP continues the DOLS authorisation non means tested legal aid will continue to be available in respect of applications about it. But it asserts that non means tested legal aid is (and has only been made) available in respect of matters that “relate directly to the discharge or variation of the standard or urgent authorisation” and that providers should always apply for a separate certificate to carry out non means tested services as and when these arise alongside a non means tested matter. This does not fully accord with the understanding of the solicitors acting for Mrs Briggs on the existing approach of the LAA and, more importantly it does not explain:

 

i) what matters the LAA says are directly related to the discharge or variation of a continuing DOLS authorisation, andii) whether it adopts the position of the Secretary of State or the Official Solicitor.

To my mind, although it seems to show that Re UF will continue to be applied this further information perpetuates uncertainty and so compounds the risk that the approach of the LAA will give rise to serious and possibly insurmountable hurdles being put in the way of challenges being made by Ps and/or their RPRs to a DOLS authorisation, and so the lawfulness of P’s deprivation of liberty, with the benefit of representation or at all because of the difficulties they would face in respect of contributions and as litigants in person.

 

 

Charles J also had this to say about the Secretary of State and the failure to provide proper scheme for legal representation in the avalanche of DOLS cases since the Supreme Court’s decision in Cheshire West opened the scope of such cases far wider than they had historically been.

 

 

  • The representation of P has been an issue in a line cases that do not fall within the DOLS but in which, applying Cheshire West, P is being deprived of his liberty and so that detention should be authorised by an order made by the COP. The last in the line is Re JM [2016] EWCOP 15. Those cases show the limitations on the availability of legal aid in such cases if they are not disputed. After the JM case, the Secretary of State has acknowledged in correspondence that, contrary to his stance in that case, a resource of people and/or of resources to provide people to act as representatives for Ps who are deprived of their liberty in such cases is not readily available. This means that:

 

i) in that type of case the COP cannot lawfully authorise the deprivations of liberty, and soii) such cases are being stayed, and

iii) many (probably in the thousands rather than the hundreds) of such cases are not being brought in part because they will be stayed and the costs of issuing them can be better spent.

 

  • We are all only too aware of problems flowing from austerity. But assessed through my eyes as Vice President of the Court of Protection the stance being taken by the Secretary of State in this case, and in and after Re JM, demonstrates the existence of a continuing failure by the Secretary of State to address an urgent need to take steps to provide resources that would enable the COP to deal with cases relating to probably thousands of Ps in a lawful way, and so in accordance with the procedural requirements of Article 5 and the requirements of Article 6. The result of this sorry state of affairs is that in probably thousands of cases not covered by the DOLS deprivations of liberty are not being authorised under the amendments made to the MCA by the MHA 2007 to comply with Article 5.

 

I think that most people practising in this area of work know that this is what is happening on the ground, but damn, it is nice to see the Secretary of State being told it in such clear terms.

 

For my part, I think legally that this is a pure device to get around the much loathed LASPO and it is a contrivance; but that it is surely the right outcome in terms of fairness. If anyone found themselves in the dreadful position that Mrs Briggs was in, surely they should have legal representation to help with the Court’s decision as to whether her husband should be fed via artificial means to keep him alive or whether he should be allowed to die with dignity in accordance with his family’s wishes.  Whatever stance you take on the right to die issue, surely it is unacceptable for the State to expect someone to have those difficult arguments without the benefit of legal representation.

 

 

Like Redbridge under troubled water (a Local Authority takes a kicking case)

 

I know that my readership tends to like a case where a Local Authority gets a good going over from the Judge – some of my readers don’t like social workers (and some with good cause), some are lawyers who represent parents and get exasperated by LA failings (some with good cause) and some are Local Authority lawyers and social workers who need to know what pitfalls might be awaiting them in Court – and some people just frankly enjoy a bit of “thank goodness that wasn’t me”.

If you are one of my readers who works for the London Borough of Redbridge, good morning, and thanks for your support, but you might want to skip this particular blog. It will spoil your coffee and possibly your day.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2627.html

 

London Borough of Redbridge v A B and E (Failure to comply with directions) 2016

 

This was a High Court case heard by MacDonald J.  (By way of context, the LA could have had many far worse High Court Judges for this case, there are some where I would have feared for their survival)

 

Also by way of context, this was going to be the re-hearing of a final hearing, because at the first hearing the LA had filed their placement order late/not at all, and the Recorder had messed it up. At the Court of Appeal hearing, Redbridge had been sternly admonished for their failure to comply with directions or to seek court leave where they were going out of time. So there had already been cock-ups in this case which the LA had been told off for by the Court of Appeal – specifically about late filing of evidence and very very specifically about filing an application for a Placement Order very late.

 

With that context in mind, at an early directions hearing in the re-hearing, MacDonald J made this direction

 

  1. The matter having been remitted to the Family Division, on 28 July 2016 I made a series of directions designed to case manage this matter to a further and third final hearing on 17 October 2016, including:
  1. i) Directions for the filing of (i) the minutes of the LAC Reviews held since March 2016 by 11 August 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 by 4pm on 22 August 2016;
  2. ii) A direction that the local authority file and serve (i) a final care plan, (ii) a final witness statement, (iii) a Scott Schedule of facts the court is invited to find and (iv) Schedule of Issues by 4pm on 12 September 2016;

iii) A direction that the local authority issues any placement application by 4pm on 12 September 2016 together with directions consequent thereon;

  1. iv) A direction that the mother file and serve her final evidence and response to the Scott Schedule by 4pm on 26 September 2016;
  2. v) A direction that the Children’s Guardian file and serve her final analysis and recommendations by 4pm on 10 October 2016;
  3. vi) A direction listing the matter for a further Case Management Hearing on 1 September 2016.
  1. On the face of my order of 28 July 2016 I required a recital to be included to the effect that, in light of the history of this matter, it was vital that the local authority adhered to the letter of the regulations and procedural rules that govern its conduct as between the date of that order and the final hearing. A further recital recorded that “All parties are reminded that should any issue arise that may affect the timetabling of this case then they are under a duty to inform the court of the issue and, if necessary, make an application to bring the matter back to court.”
  1. Pursuant to my order of 28 July 2016, the matter again came before me on 1 September 2016 for a further Case Management Hearing. On that date it was apparent that the local authority had failed to comply with parts of the order of 28 July 2016. In particular, the local authority had failed to comply with a number of the case management directions, including a failure to file and serve the minutes of any LAC Reviews that had occurred since March 2016 and a witness statement from any Police officer who attended the alleged incident on 27 December 2015. A further feature of the local authority’s conduct brought to the Court’s attention on 1 September 2016 was the alleged persistent failure by the local authority solicitor with conduct of the case to reply to correspondence from the solicitors instructed by the mother.

 

Despite this litany of non-compliance, no application had been made by the local authority to amend the directions in respect of the above matters prior to the expiry of the time for complying with those directions. Beyond the failures of the local authority articulated in the foregoing paragraph, the trial bundle is in what can only be described as a state of disarray, with key documents missing.

 

There was a directions hearing where the Judge describes himself as ‘expressing himself in excoriating terms’ about the failings, the case came BACK to Court for an explanation and the LA counsel had received no instructions in advance of that hearing….

 

Even today, and after I had expressed myself in what, I have no doubt, can fairly be described as excoriating terms at the compliance hearing last Wednesday, Mr Pavlou attended court this morning without having been able to secure instructions from the local authority as to when the matter would be ready for an adjourned final hearing. In particular, he had been unable even to achieve instructions as to the timetable for a further decision by the ADM. This was notwithstanding the fact that on 1 September 2016 I had directed the local authority to file and serve by 4pm on 14 October 2016 a further decision of the ADM to be taken in light of additional evidence to be filed ahead of the final hearing and not available when the initial decision was made by the ADM

 

Mr Pavlou deserves a very good bottle of Scotch from this Local Authority, it must have been a brief that kept him up at night.

 

In relation to the LA solicitor’s actions, read this and wince.  (I have anonymised the solicitor’s name, the Judge did not)

 

Finally, with respect to the allegation that the local authority solicitor with conduct of this matter has failed to reply to correspondence from the solicitors representing the mother, at the compliance hearing last Wednesday Ms E instructed Mr Pavlou (in a manner audible to the court) that she had responded to each and every email sent and Mr Pavlou advised the court accordingly. However, the signed statement that I have this morning received from Ms E concedes that she has replied to only a little more than 50% of the correspondence sent to the local authority by the mother’s solicitor.

 

(Being fair to Ms E, both of those things are actually possible – if someone sends 2 chasing emails to you saying the same thing and you answer it, you have answered all the correspondence but you have also only responded to half of the individual emails. But still, ouch)

 

Compounding all of this, when the ADM decision WAS produced, it was apparent that the ADM had taken it upon themselves to make decisions about the truth of allegations when those allegations had not been the subject of findings or even sought as findings…

 

Further, and within this context, with respect to the proposed application for a placement order, Ms Maclachlan had little difficulty at the compliance hearing demonstrating that the initial decision of the Agency Decision Maker was flawed to the extent that any application issued on the basis of the ADM decision would readily be open to attack and the decision of the ADM will have to be re-taken. In short, the ADM had taken it upon herself to make findings about the cause and provenance of the aforementioned injuries notwithstanding that the same have not been the subject of forensic investigation or findings within these proceedings. The late service of the ADM’s decision had prevented this fundamental issue being identified earlier and at a time it was still capable of remedy without impacting on the final hearing.

 

{This aspect is a little tricky – as the Court of Appeal have almost banned fact finding hearings, there are many cases where the ADM is charged with making a decision about whether adoption is the plan for the child when there is no Court finding yet about threshold or allegations. The ADM has to take a view on whether they personally are satisfied about threshold, because obviously if they DON’T think threshold is crossed,  how could they possibly decide that adoption is the plan? They must, however, avoid in their analysis and decision making specific comments as to threshold. The best way to think of it, in my mind, is that the ADM is deciding on what the plan for the child should be IF the Court is satisfied that the child has suffered significant harm. Because if the Court don’t find threshold, adoption won’t be the plan anyway. My reading is that in this case, the ADM and the social worker had gone further than just making that assumption that threshold was capable of being proven and in to dealing with specific allegations which were in dispute}

 

It won’t surprise anyone to learn that a costs order hearing is pending, with Redbridge having to show cause why they should NOT pay the costs.

 

Additionally, however,

 

 

  1. Ms Tara Vindis on behalf of the E submitted that this case is one that requires to now be put into ‘special measures‘. That is an apt analogy. Within this context, it is my intention that the local authority will provide a written report to me each Friday morning at 10.00am by way of email to my Clerk confirming the continued compliance with the timetable the court intends to impose. In the event of default on the part of the local authority, the matter will be brought back into the list for a compliance hearing. It is my expectation that the local authority will comply with its heavy duty to obey the directions of the court.

 

 

The Court also made it clear that the parties are forbidden to agree their own timetable and simply notify the Court of it, they actively need permission of the Court to change the timetable. (this approach works if the Court in question are very responsive to communications, not always the case everywhere in the country.  This is not me having a go at Court staff, who would have found it next to impossible to cope with a 40% increase in demand over the last two years even at full staffing, and we know that as a result of austerity, Court staffing levels were cut to the bone way before this surge in demand.  However, you can’t get an application in to adjust the timetable unless you’ve got very speedy communication at every step of the chain. If LA’s actually did what the President suggested and applied for extensions when they thought they were going to be half an hour late in filing a document, they would BREAK THE COURT system. And as LA’s need the Court system NOT TO BE BROKEN – you know, so that the Court can do their job of listing emergency applications, most of them have not followed the ‘apply if half an hour late’ principle)

 

  1. The courts have repeatedly reminded local authorities and those representing them of the following cardinal principles applicable to complying with case management directions made by the court in public law cases:
  2. i) Case management orders are to be obeyed, to be complied with on time and to the letter and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see Re W (Children) [2015] 1 FLR 1092).
  3. ii) Agreements between the parties to amend the timetable set by the Family Court are forbidden by FPR 2010, r 4.5(3). The parties are categorically not permitted to amend the timetable fixed by the court without the court’s prior approval and every party is under a duty to inform the court of non-compliance with the timetable set (see Re W (Children) [2015] 1 FLR 1092). Within this context, writing to the court to inform the court that the timetable has been altered does not amount to seeking the court’s permission. A specific request for prior approval must be made.

iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

  1. iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).
  2. v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199(Fam)).