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Oversharing

Some of you might be aware of the story that Coronation Street are currently running about Aidan and male mental health, with a view to starting an important dialogue.

I’m going to overshare now, hence the title, in that same spirit. So trigger warning for anyone who may not be in the right place to deal with this – I’m not going to go into any details and I hope that it might be inspiring rather than making people miserable. I’m not doing this for sympathy or because I want comfort or pity, but rather because being ashamed and not able to talk about it is one of the most powerful weapons that mental illness has over people, and I’m taking that weapon away from mine.

I have had problems with depression for my entire adult life. Before I had depression, I thought about it the same as everyone else ‘cheer up, pull yourself together, what have you got to be miserable about’

Which, as it is due to chemical deficiencies, is about as realistic as saying to someone with diabetes ‘just digest sugar better’

I’ve learned to cope with depression, but usually in very unhelpful ways. I’ve learned how to hide it, how to mask it from people, how to keep going and have nobody around me have a clue that inside my head my own thoughts are attacking me relentlessly.

The best description I can give you of the sort of depression I have is that my mind employs the very best ad agencies to come up with and play constant adverts to me, knowing me better than Facebook data mining ever could, to sell me the message that I am an awful human being, worthless and hateful in every way and that the whole world would be remarkably better off without me in it.

Now, this is drivel. And some days, some hours, I’m well aware that it is drivel. I’m a human being who has like everyone else some good qualities and some faults. But when that’s the soundtrack to your life, it’s corrosive.

And a large part of what’s corrosive about it is ‘dont tell anyone, it will just make them hate you’

Well, everyone that I’ve ever been brave enough to talk to has not hated me, or run away. They haven’t always understood and sometimes they’ve been shocked or frightened, but all of them without fail have done their absolute best to help, and it has been a huge help.

The stupid adverts don’t stop, but the more honest I am, the quieter they are and the more loudly I can reply ‘this is just an illness and i don’t have to believe that message’

Sorry everyone, I know you come here for law and 80s pop culture, but telling everyone in one go is the scariest thing I can imagine but now it is out there. Don’t worry about me, the darkest days of it are well behind me. I hope that sharing this might empower someone else to speak out, or helps you to start a difficult but vital conversation with someone you love and care about.

Talking helps. Honesty helps. Friends really do care about you, and you are not alone. If you are able to talk, just to one person, it is one of the most powerful and significant moments in your life and it will help.

Take care

Andrew

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Incompatible

 

I think during one of the many Writers Guild Strikes in America, the hit TV series Moonlighting, which was built around the ridiculous chemistry between its two leads, David Addison (played by a Bruce Willis so young that he had hair and had never got any shards of glass in his feet) and Madelyn Hayes (a never better Cybil Shepherd), instead ran with a whole season without those two in it, and trying to base the show around two minor cast members Herbert Viola and Agnes DiPesto.

 

It did not really fly.  In the words of Douglas Adams ‘it hung in the air in the same way that bricks don’t’

 

It occasionally still makes me wince to think of that dreadful error of thinking.

That portion of Moonlighting, I would be prepared to give a declaration of incompatibility for.

 

All of which is a sprawling and ramshackle opening to Coulibaly v Coulibaly 2018  (which joyously has a “Rev no 1” in its full title, implying that there’s more to come, yes please!)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2018/936.html

 

As far as one can tell, this case began as a private law dispute with the mother becoming very concerned that the father would abduct the children. It is not clear whether that has any basis (we know he DIDN’T, but not whether it was a rational fear that he MIGHT), or what it was that led to a Local Authority obtaining an interim care order and removing the child.

In any event, the bundles for the Court were delivered via wheelbarrow, if not actual dumper truck.  (And yes, I did hover over google images of Big Trak for this moment… )

 

  1. There was listed today, with one day allowed, a number of wide-ranging applications for declarations pursuant to section 4 of the Human Rights Act 1998 that a number of sections of the Children Act 1989, and also the whole of the Child Abduction Act 1984, are incompatible with the European Convention on Human Rights.
  2. There were delivered to my room yesterday afternoon 7 lever arch files of material. I have not counted up the number of pages, but if one were to assume about 300 to 400 pages on average per bundle, then somewhere between about 2,100 and 2,500 pages are involved. Frankly, the bundles are not coherently arranged and presented, and I could not even readily identify the skeleton arguments for this hearing. In any event, the applicant’s series of written submissions themselves total about 70 pages.

 

A number of sections of the Children Act and the whole of the Child Abduction Act? Tell me more, tell me more

 

 

  1. The proposition that certain provisions of the Children Act 1989 are incompatible with the European Convention on Human Rights was first formally raised in the High Court by an appellant’s notice issued by Mrs Coulibaly on 2 May 2017. Since then she has, at various times, filed a considerable number of supplementary documents and submissions, the most recent of which was earlier this week. That procedural history, of course, creates a somewhat confusing moving target, in particular for the Lord Chancellor, who has been named as the respondent to these applications, to meet. However during the oral submissions of Mr Duke this morning it was clarified and confirmed and agreed that, by a combination of her appellant’s notice dated 2 May 2017 and her various subsequent written skeleton arguments or written submissions to the court, and the oral submissions made today, the totality and scope of all the applications for declarations of incompatibility is as follows.
  2. First, that section 2 of the Children Act 1989 is incompatible with Article 3 of the European Convention on Human Rights (ECHR); second, that section 8 of the Children Act 1989 is incompatible with Article 3 of the ECHR; third, that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the ECHR; fourth, that section 50 of the Children Act 1989 is incompatible with Article 3 of the ECHR; fifth, that section 97 of the Children Act 1989 is incompatible with Article 3, read with Article 10, and also with Article 6 of the ECHR; sixth, that section 1 of the Child Abduction Act 1984, and also the whole of that Act, are incompatible with Article 3 of the ECHR.

 

 

Well, if Mrs Coulibaly succeeds in this application and the High Court declare sections 2, 9, 38, 50 and 97 of the Children Act 1989 incompatible with the HRA, there will be champagne corks flying in the household of Ian from Forced Adoption.  But perhaps let’s not get the ice buckets out just yet.

 

Let’s be honest, if I was writing up a law report that junked an entire Act and large chunks of another, I’m burying the lede under all that Moonlighting stuff….

Mrs Coulibaly was not represented and her brother Mr Duke spoke on her behalf as a McKenzie Friend.

We shall observe with interest how he develops this wide-ranging submissions.

 

  1. I now come in turn to the sections of the Children Act 1989 which it is alleged are incompatible with one or more of those various rights under the European Convention on Human Rights, and I will briefly describe and address the arguments. It will emerge that some points and themes, particularly in relation to international child abduction, recur several times in relation to a number of the statutory provisions under challenge. The fundamental and essential point is an assertion by, and on behalf of, Mrs Coulibaly that the statutory provisions simply are not strong enough and effective enough to prevent international child abduction which, she submits, may amount to “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. Without so holding, may I make quite clear for the purposes of this case and this judgment that I fully accept that international child abduction, whether it takes the form of unlawful removal from this country, or unlawful retention of the child abroad after a lawful removal, does, or may, expose the child concerned to a form of inhuman or degrading treatment. So, insofar as child abduction is the fear of Mrs Coulibaly, and insofar as her argument focuses on child abduction, I readily accept, but need not keep on repeating, that Article 3 is engaged.
  2. During the course of his submissions, Mr Duke said that “the Children Act is useless” and that “the entire Act needs to be rewritten.” Part of the context of his argument is that circumstances have changed in the almost 30 years since that Act was enacted. International child abduction has become more prevalent, and some of the safeguards such as strict border controls on exit have tended to be removed or relaxed. Another phrase used a number of times by Mr Duke during the course of his submissions is that “the Children Act is incomplete.” Those points and submissions indicate, to my mind, the flaw or fallacy in the whole, or much, of the argument on these applications. The issue for the court on an application under section 4 of the Human Rights Act is whether or not a provision of the primary, or any subordinate, legislation in point “is compatible” with a Convention right, or whether it “is incompatible” with a Convention right. That is a wholly different question from whether there are gaps in a particular statute, or the whole corpus of legislation generally, and whether or not an Act of Parliament is “incomplete”. I readily accept, for the purposes of this hearing and this judgment, that mechanisms for preventing the scourge of international child abduction may be able to be strengthened; but that is a world apart from saying that such provisions as there are in the legislation, whether specifically directed to child abduction or more generally, are themselves incompatible with Article 3.

 

 

I think the best argument (and I use best in fairly loose sense) is in relation to section 38 – which is interim care orders. Mr Duke argued that the power to remove a child under s38 is a restriction of the child’s liberty (in that the State in the form of the LA get to decide where the child lives), so unless any of the criteria in Article 5 are made out, that’s incompatible with Article 5

 

1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

(a)the lawful detention of a person after conviction by a competent court;

(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

 

I would agree with Mr Dukes that none of those criteria apply to an interim care order – but the problem in his argument is that Article 5 only applies if the Court agree with him that an interim care order is depriving a child of their liberty  [Spoiler alert – the Court do not]

 

  1. I turn, next, to the argument that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the Convention. Section 38 of the Children Act falls within Part IV of the Act, which deals with care and supervision. Section 31 of the Act makes provision for what I will call “full” care or supervision orders. Section 38 makes provision for the making of interim care or supervision orders. Again, it is not necessary to cite any of the express provisions of section 38, for much of the argument of Mr Duke is directed not to what section 38 does contain, but, rather, to what it fails to contain. There is, however, one overarching submission in relation to section 38, namely that it is incompatible with Article 5 of the Convention. I have already quoted the opening words of Article 5 above. The submission is that when an interim care order is made and implemented, it has the effect of depriving the child or young person concerned of his liberty. By Article 5 no one shall be deprived of their liberty save in the cases then listed at paragraphs (a) to (f), and in accordance with a procedure prescribed by law. Clearly, when an interim care order is made there is a procedure prescribed by law, namely the provisions of section 38 itself, but the thrust of the submission of Mr Duke is that the circumstances in which an interim care order is made do not fall within any of paragraphs (a) to (f). I do accept that most of those subparagraphs are clearly not in point at all, but, as Mr Neil Sheldon submits on behalf of the Lord Chancellor, one has to have regard to the content of the subparagraphs in order to understand what is contemplated by the words “deprived of his liberty”, which is proscribed by Article 5, save in the permitted circumstances.
  2. I accept the submission of Mr Sheldon that when a child is taken into care pursuant to the making of an interim care order, he is not thereby “deprived of his liberty” in the manner which Article 5, read as a whole, contemplates. Further, I accept the submission of Mr Sheldon that if, in the particular circumstances of an individual case, there is a deprivation of liberty, then that deprivation of liberty can be the subject of case-specific challenge under the provisions of section 7 of the Human Rights Act. This indeed ties in with an important overarching point. The express effect of section 6 of the Human Rights Act 1998 is that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” That section is binding on all public authorities, including, indeed courts. The provisions of the Children Act 1989, wherever they confer a discretionary power, always have to be read and applied with regard to section 6 of the Human Rights Act 1998 and any relevant provision of the Convention. If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.
  3. Other reasons why it is said that section 38 is incompatible with a range of Articles of the Convention are the following. First, Mr Duke argues that there is nothing in section 38 itself which compels a local authority to provide medical assistance to a child whom they have taken into their care pursuant to an interim care order. This, he says, may involve a breach of Article 3 of the Convention. Just to understand the context in which the submission is made, I have been told (I stress that I have absolutely no independent evidence whatsoever with regard to this) that on 7 February 2018 Mrs Coulibaly’s son was “forcibly removed” from her care by the police. She says that her son later reported that the police had hurt his arms, and they were really painful. The complaint is that it was apparently not for 13 days that the local authority arranged for her son to be seen by a doctor. Mr Duke submits that there should be an added provision within section 38, or elsewhere in the Children Act 1989, to compel a local authority to undertake an immediate, or very early medical examination of every child whom they take into their interim care, both to check that he or she has not been harmed during the process of removal, if forcible, and also to check for such matters as allergies. He submits that the absence of some such express duty in section 38 or elsewhere in the Act infringes the positive obligation on a state to ensure that no one is subjected to inhuman or degrading treatment, as Article 3 of the Convention requires. Again, I make absolutely clear that I express no view whatsoever on whether or not it should be made mandatory for a local authority immediately to arrange a medical examination of a child taken into their care. That, again, is a matter for government and Parliament. But at its highest, in my view, this is another example of the Act being “incomplete”. There is nothing in this regard that renders the Act incompatible with the Convention.
  4. Mr Duke argues also that section 38 of the Act is incompatible with Article 8 of the Convention.  He says, in particular, that in order that the important rights under Article 8 of the Convention are respected (which is what Article 8 requires), there should be express statutory provision for what he calls “a transfer plan” before any child is taken into care. He submits that a local authority can at the moment “just come and grab a child, which disrupts the child’s private life” and that unless there is an express statutory requirement of “a transfer plan”, section 38 is incompatible with Article 8. He further says that often, when a child is taken into care, the child is not enabled immediately to take his own personal belongings with him, and that in order for the Act to be compatible with Article 8 there must be express statutory provision for a child to be able to do so. Again, in my view, these are, at best, matters of good practice, or examples of the legislation being “incomplete”, but the absence of express statutory provisions of the kind that Mr Duke contends for does not render section 38 itself incompatible.

 

I say, that ‘transfer plan’ is a good idea, I wonder if we could call it by a shorter name and have it be a mandatory requirement before the making of an interim care order. We could call it, oh, I don’t know – a care plan?

 

Let us just enjoy the fine work of Holman J once again

 

If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable. 

 

As I’ve suggested above, the article 5 v s38 is very much Mr Duke’s best point.  If you think that this dissection of his best point doesn’t augur well for his less good ones, you are correct.

Surprisingly, Holman J does not grasp the opportunity offered to him by Mr Duke to overturn huge chunks of statute that have been running for thirty odd years.

 

  1. For the reasons I have given, I am crystal clear, even at this short summary hearing today, that none of these applications for declarations of incompatibility are, in the least, arguable. I will accordingly make an order which, first, recites by list all the applications that Mrs Coulibaly has made for declarations of incompatibility as I listed them at the outset of this judgment, and then orders that all the applications for declarations of incompatibility listed under that recital are summarily dismissed.

 

So the law remains intact.  Well, at least until Coulibaly v Coulibaly Rev no 2, which I’m looking forward to. I shall be immensely disappointed if the Act of Union, Magna Carta and  the Licensing Act 1872 (which makes it a criminal offence to be drunk in a pub)

 

 

I’m sorry if the raw charisma and chemistry  of Hubert and Agnes has just burned a hole initially through your screen and now through your retinas.

 

Publication date

The book comes out on Thursday. Here is the unboxing photo of my complementary copies. And a photo of my beautiful spaniel claiming partial authorship.

If you want a paperback copy, I’m delighted to say that Foyles are selling them, so you can get one.

I can’t work out how to copy the link, because I’m doing this on my mobile phone rather than a computer.

http://www.foyles.co.uk/witem/childrens/in-secure,andrew-pack-9781911586944

Hopefully works, otherwise you can get it by Foyles and searching for me or In Secure. You can get the e book at Amazon, but the paperback is proper lovely.

Hope you like it, and if you do, please say so. I’m not going to be a JD Salinger recluse type author, I wrote the story for people to read and enjoy.

Big love,

Andrew

Use of Police Protection – a guide for social workers

 

 

 

 

 

This is intended to be a simple one page guide for social workers as to what to think about when Police Protection is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.

 

The police have powers to remove a child and place the child with the Local Authority, section 46 Police Protection in cases of emergency.

 

The Courts have clarified what ‘emergency’ does and does not mean in this context.

 

The starting point is this:-

 

The separation of a parent and child should usually be a decision for a Court. If it is possible to seek a Court hearing, that should be done.

 

The police should not be asked to use their section 46 powers to bypass the Court and the parent having a fair hearing about removal. Police protection should not be used because it is quicker, easier, less hassle, it is nearly the end of the working day.

 

If a decision is taken to remove a child under Police Protection rather than go to Court, there must be wholly exceptional reasons for this. Those involved would need to show not only that there was a need for separation, but that this need was that no reasonable steps could be taken to keep the child safe WHILST a Court hearing was arranged. The Local Authority have to try very hard to make alternative arrangements so that the decision can be made by the Court.

 

“there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.”

 

It is vital that full and detailed records of the decision-making process are kept, and that those involved set out clearly what efforts were made to obtain a Court hearing and why the risk could not be managed until that hearing.

 

Misuse of Police Protection to remove a child can result in unfairness and human rights breaches, and the Court may hold detailed enquiries as to why this has happened and may award compensation.

 

 

Also, there’s no “O” in Police Protection.   (okay, actually, there are two, but the use of  PPO  as shorthand for removal under Police Protection causes the death of tiny pixies every time it occurs. The “O” in PPO stands for Order, and the absolute thing to remember with Police Protection is that there IS no Order. The Court don’t sanction removal, a police officer does.  I know it is right next to EPO in the statute, and it just sort of feels right in the mouth to say EPO/PPO, but the O stands for Order.  So EPO is right, and Police Protection is right.  PPO is wrong.  Please avoid it!

Use of section 20 – a guide for social workers

 

There is a blog post coming about the Hereford case, discussed in this Guardian article

https://www.theguardian.com/society/2018/mar/16/council-kept-boy-9-in-care-for-whole-of-his-life-judge-reveals?CMP=share_btn_link

but following Twitter discussions, I thought it might be helpful to share the guidance I prepared for my own social work department with others.  Be warned that there’s a Supreme Court decision on section 20 coming soon, in the Hackney case, and all bets are off as to what they might say.  (I think Hackney’s spirits probably sank when they saw the Hereford case whilst waiting for their own judgment)

 

This is intended to be a simple short guide for social workers as to what to think about when section 20 is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.

 

Obtaining consent

 

Before using section 20, the social worker must be sure that :-

 

  1. The parent has the capacity to agree
  2. The parent understands what it is they are being asked to agree to
  3. The parent has been told that they are able to say no and their right to later object and seek return of the child AT ANY TIME
  4. The consent is given freely and not under duress
  5. The prospect of Court proceedings is not being used as a threat to compel a parent to agree to section 20 (you can inform them of the possibility, if it is a genuine one, but not in a way that is directly or indirectly threatening. Social workers should never talk about Court in a way that suggests that the order is inevitable or certain)
  6. AND REALLY IMPORTANTLY that even if the parent is consenting, that the Social worker specifically considers whether it is proportionate and necessary for the child to be placed in foster care AND whether the case should be before a Court rather than by agreement

 

 

All of this MUST be recorded in the social work case notes, which should be done contemporaneously – if for some reason they cannot be done contemporaneously they should be done at the shortest possible interval thereafter with a note made on the record as to when they were made and why they were not made at the time.

 

This recording element is vital.

 

The social worker should obtain this consent from each of the persons who have parental responsibility. IF one parent consents and the other cannot be contacted for good reason, a short period of s20 whilst efforts are made to locate and contact that other parent is probably satisfactory.   (Note that the Courts have not yet specifically decided this point). A careful note should be made as to the efforts made to contact the other parent and why they were not successful – a non-resident parent who is local and has active involvement in the child’s life will need very compelling reasons not to have had this conversation about consent.

 

The Court has also made it plain that the practice of having a police officer present or nearby during discussions about section 20, with the explicit or implied threat of “if you don’t agree, the police officer will remove the child” is completely unacceptable. Don’t do it, don’t do it, don’t do it.

Don’t.

 

On the issue of capacity to agree

 

  1. i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity;
  2. ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 *and in particular the parent’s capacity to use and weigh all the relevant information;

iii)         if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.

 

If there is any doubt about a parent’s functioning, capacity to understand, mental health issues impairing their judgment, learning difficulties or disabilities, language issues, then section 20 should not be used without seeking legal advice.

 

If section 20 is used as a result of a child protection concern, very urgent consideration should be given to holding a swift Meeting Before Action in order that the parents can have the benefit of free legal advice and to avoid drift and delay.

 

 

*Section 3 of the Mental Capacity Act 2005

 

 

A person is unable to make a decision for himself on section 20 if he is unable to :-

 

Understand the information relevant to the decision   (that the child will not be with them, that the child will be in a foster placement, what foster care means, that they have the right to say yes or no, and that they have the right to change their mind, how long it would be for, what might happen next – what would happen if they say no, what would happen if they say yes)

To retain that information (for a long enough period to make the decision properly)

To use or weigh that information as part of the decision-making process   (a person can make a BAD decision or one that seems foolish, but they need to be having a process of deciding)

To communicate the decision

 

A person is entitled to have help and an explanation given in a way that is appropriate for them.

 

Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2729.html

 

sets out that the specific things that a parent has to understand in order to have capacity to agree section 20 are these:-

a) That the child will be staying with someone chosen by the local authority, probably a foster carer;

b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time;

c) That the parent will be able to see the child

 

Removal from section 20

 

 

A person who has Parental Responsibility is legally able to remove a child from section 20 accommodation at any time. They can be ASKED to give a notice period or a pause to allow a Court order to be obtained, but they do not HAVE to.

 

The social worker should be aware that the issue of whether a parent should give a notice period at the time of signing section 20 is contentious and that even if they agreed to give the notice period at the time, they are not bound by it at a later point. A parent agreeing to give seven days notice before removal is not a guarantee.

 

 

Section 20(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

 

The fact that the LA think that the child would come to harm if the child was removed does not block that power to remove – the LA would need, in that circumstance, to seek an urgent order from the Court which would give the LA a share of PR.  They cannot simply refuse to give the child back or ignore the request.  (see the Hereford judgment for how badly that can go wrong)

 

This power to remove does not apply if another person has an SGO or Child Arrangements Order and that person agrees to the s20 continuing, OR where the child is over 16 and agrees to accommodation continuing.

 

 

Objection to section 20

 

A parent is able to object to section 20 if THEY are able to provide the child with accommodation or arrange for someone else to do so.

 

The LA cannot ignore that objection just because they consider that the accommodation being put forward is unsuitable, lacking or even dangerous (that might be a trigger for an application to Court to obtain an order instead) but it does not block the objection.

 

What MIGHT block an objection is that the parent has bail conditions that prevent them caring for the child (if they are offering to provide accommodation themselves, not via a third party).  But I would not rely on that at the moment. The High Court said no, you’d still need consent. The Court of Appeal said you wouldn’t, and the Supreme Court are dealing with it at the moment – in the Hackney case. I would still go with valid section 20 consent or a Court order, and not rely on the bail conditions blocking an objection.

 

 

 

Section 20 drift

 

 

Social workers, managers and IROs must be very alive to the issue of drift within section 20 – consent having been given, the child remains accommodated without a clear and time-sensitive plan for the child’s longer term future being implemented. The questions should be asked, answered and recorded on the file :-

 

Should this child be going home or to other relatives?

What would need to happen in order to make that work?

What assessments / information are needed if we can’t make those decisions yet, how are we going to get them and when?

Is this a case that is suitable for section 20 or should it be before the Court?

 

Where a child is expressing strong views about being uncertain or fearful about their status, even more careful thought must be given to the final question above.

Just because a child has been in section 20 for a long time, doesn’t mean that you shouldn’t revisit and ask those questions again.  Failure to properly think about these things is what leads to drift.

 

Unaccompanied children

 

 

For many unaccompanied children, locating and communicating with their parents to conduct the consent exercise in this document will not always be possible or easy. Clear recording must be made of the efforts to do so.

 

A Local Authority can place a child in section 20 if the child is abandoned, which would generally be the case here. Reasonable efforts ought to be made to trace the parents and to communicate with them – that may not always be possible at all and may not be possible in a short period of time.

 

If, in considering the case, the social worker, manager or IRO are of the view that this perhaps ought to be a case which is put before the Court, a Legal Planning Meeting request should be made.

 

The High Court have now ruled that threshold can be satisfied for such children, as a result of them being abandoned (even though the parent has made efforts to move the child to a safer place/country), so the matter needs serious and careful thought as to whether section 20 or court proceedings are the correct route.

The Impostress Rabbet

 

 

I haven’t done a completely non-law piece for a while, and this true story of deception, medical minds being baffled and the strange theory of maternal impression is one of my favourite things.

 

So if you read the blog purely for law, you may skip this one. If you enjoy the digressions more than the law bits, this may be right up your street.   (Someone more erudite than me might be able to develop an argument that this was an early example of what later became called Munchausen Syndrome and later FII, but I don’t know enough to claim that)

 

On 27th September 1726, a woman named Mary Toft went into labour. That was not terribly unusual. What was unusual is that she gave birth to a rabbit. Or in the parlance of the time, a rabbet.

Mary was not done there, however. The next day, a local obstetrician, Dr Howard, was called and Mary gave birth to another rabbet. Over the next month, she delivered nine more rabbets. All dead.

Dr Howard was much impressed by this, and more so once he heard Mary’s account that during her pregnancy, she had seen a rabbet in a field and desired to catch it and chased it but failed and that she had spent her pregnancy dreaming of rabbets.

In a theory that persisted at the time (and indeed wasn’t disproved until the early part of the 20th century), it was considered that things women were exposed to during pregnancy could account for characteristics or failings of their offspring – a timid child might be because the mother had been scared during pregnancy, a child with disabilities because mother had seen someone in the street with similar ailments and so forth. If you are thinking that sounds an awful lot like the Patriarchy just blaming the mother for things that were outside of her control, then, yes, it does.

The most famous example of this theory, maternal impression, was John Merrick, the Elephant Man, who told stories of how his mother had been startled by an elephant during her pregnancy and hence his unusual appearance.

Mary’s rabbets seemed conclusive proof of this theory, and Dr Howard wrote to a number of other doctors stressing the importance of this case and inviting them to come and observe. He even wrote to Nathaniel St. André, Swiss surgeon-anatomist to the King and Samuel Molyneux, secretary to the Prince of Wales. They both came to attend on Mary, who was still popping out rabbets.

They were much impressed with this peculiar medical condition and took some of the rabbets back to show the King.

The King was more sceptical, and sent another doctor down to Mary, who had been moved by then from Godalming to Guildford.

Cyriacus Ahlers was the doctor sent, a German surgeon. He dissected some of the rabbets that Mary had given birth to. He found pellets in the rabbit’s digestive tract. Pellets containing undigested straw and corn. Unless Mary’s womb was full of corn, it seemed very likely that these rabbits had been born elsewhere…

A William Hogarth print of the hare-raising affair

Members of the public were flocking to see Mary, and paying an admission fee to do so. Ahlers and others kept Mary under observation. The supply of rabbits dried up.

And then, the case broke. A hospital porter was caught trying to smuggle a dead rabbit into Mary’s room, having been paid to do so by Mary’s sister-in-law, who had asked him to purchase ‘the smallest rabbit he could find’

Enquiries then revealed that Mary’s husband had been buying a suspicious amount of small rabbits from local sources.

The great medical mystery was solved. Mary had just been (there’s no delicate way to put this), installing dead rabbits into her nether regions whilst nobody was around, and then delivering them in front of a crowd or host of medical gullible fools.

The King’s surgeon, Dr Richard Manningham, devised a plan to get Mary to confess this. He went to her and explained that because there were so many rabbits being born to her (I think the count was 15 at that point), that they would have to operate to remove her womb.

 

That wasn’t something Mary wanted anyway, and at that particular time the risk of death in surgery was extremely high (It is said that Dr Robert Liston once removed a patient’s leg in lightning fast surgery, working so fast that he accidentally cut off the patient’s testicles, his assistant’s fingers and nicked the abdomen of a member of the audience watching – all three died, making it a piece of surgery that had a 300% mortality rate.  This is possibly apocryphal, but it is a great story anyway.)

 

To avoid the surgery, Mary confessed. She was to stand trial, but the case was dropped due to the embarrassment it caused the medical profession and those who had swallowed the story of the miracles. When Mary died, her name was published in the great newspapers of the day along with dignitaries and Dukes, with the annotation “Impostress Rabbet”

Words fail me. (But I spend a long time telling you, via words, why) #verywellthenIcontradictmyself

Apply the handkerchief or scarf as directed by these fine gentlemen

Before you start this piece, could you briefly find some cloth? A scarf, or a clean tea-towel or anything of that ilk will do. Please tie it so that the bottom rests under your jaw and there is a knot at the top of your head – much like a cartoon character who is suffering from a toothache.

 

 

 

Why?

 

Because this case is so jaw-dropping I want to be sure that your jaw bone doesn’t actually leave your head.

 

Ready?

 

Here we go.

 

It is the original judgment from the case that went to the Court of Appeal because the social worker and police officer involved considered that the findings made against them by the Judge were career-threatening and that the process of making those findings was unfair.

 

The Court of Appeal said that the social worker and police officer needed to have been placed on notice that such strong findings were going to be made and have the chance to make representations about them beforehand, so THOSE findings were overturned. The social worker later made an application to sue the Lord Chancellor for judicial failings on the basis of vicarious liability.

 

On that basis, and in short, the complaint relates to the judge’s finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her

https://suesspiciousminds.com/2016/11/20/judge-making-findings-about-a-witness-fair-trial/

 

 

This is the judgment, with the most dreadful findings about the social worker and police officer snipped out. Do not for one second think that this makes the judgment dull or removed of any controversy. There’s so much in it, it makes the mind boggle as to what was taken out.

Re W (fact-finding) [2014] EWHC 4347 (Fam) (17 October 2014)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4347.html

 

(I’m not sure why it has taken 3 years to publish this – it was certainly held up until 2016 pending the appeal – I do understand that the Judge has passed away, which probably caused difficulties in editing the previous judgment, since normally the Judge who wrote it would do that)

 

 I thus hope that no court ever again has to see and hear what this court has seen and heard during the past weeks.

 

This was a care case involving five children, the main subject was C, who was a teenager. C had made serious sexual abuse allegations against three of the adults in the family.

 

There was a finding of fact hearing, and the evidence in the finding of fact hearing lasted 19 days. There were ten parties to that hearing, nine of whom were represented by silk and junior counsel.

 

 

 

 

  1. From a conventional beginning in front of HHJ Davies at the Luton County Court, the case has taken unprecedented twists and turns with the intervention of the Court of Appeal, a re-hearing in front of myself, and the collapse of that re-hearing after three days in the most dramatic manner. This occurred when a key social worker in the case contacted me directly by email through the court office to allege ‘corruption and malpractice’ within the local authority in relation to this particular case as well as other cases.

 

Is your jaw bandage still in place? I worry about you all, you know.

 

 

 

 

 

  1. Following what was effectively a whistle-blower email sent to myself, the local authority sought to abandon the fact finding hearing and withdraw all allegations, saying that it could no longer rely on the key social worker as a witness of truth. The local authority’s counsel, Mr. Bain, withdrew from the case for professional reasons. Fresh counsel were then instructed; they withdrew the application by the local authority to abandon the proceedings, and thus these have continued ever since.

 

 

 

 

 

  1. The proceedings have been surrounded by suspicion and mistrust, for reasons which have become obvious. These emotions have been shared, it must be said, at times by the court, and have been exacerbated by serious problems about disclosure. Despite strict orders made by the court for full disclosure by the local authority, these have not been complied with in full. Indeed, more than 1,300 pages of important material were disclosed to the court during the current hearing, and 1,000 pages of these were disclosed only in the second week of this hearing, after Mr Geekie for the local authority organised a search of its premises following a social work assistant’s evidence. This failure to disclose added some three days to the case. Disclosure continued even into the fourth week of this hearing. Furthermore, many important documents have been shredded or are still missing.

 

 

 

  1. According to the lead social worker there were six, not four, ABE interviews of the child, C, as contended by the police and the local authority. Indeed, there is even the suggestion that an alleged meeting on the 30th September 2013, reported by social workers to have happened, may not have taken place at all. The court therefore has the unenviable task – unparalleled in the history of this particular tribunal – of deciding how many ABE interviews there were, and whether one meeting ever occurred.

 

I’ve seen many cases where Courts had to decide whether an ABE interview was conducted properly, where they had to decide whether leading questions were asked, whether it is reliable. I’ve never before heard of a Court having to decide HOW MANY ABE’s there were.

 

So much has gone wrong in this case. In fact, almost everything that could have gone wrong has, almost to the point of defying credulity. In consequence the court has no choice but to undertake the arduous task of scrutinising all aspects of the case very carefully. This judgment will therefore be longer than would normally be the case. This is for several reasons:

 

 

 

  1. a) Reaching the complex truth requires a detailed analysis of all that happened;

 

  1. b) In view of what they have suffered, those accused of serious abuse deserve nothing less;

 

  1. c) The consequences for individuals beyond the parties in the case, for example within the local authority and the police, may be profound;

 

  1. d) It is unlikely that any other will have the time or resources to trawl through the immense body of papers in the way the court has done, and thus what has been uncovered must be recorded fully;

 

  1. e) Lessons need to be learned so that what happened in this case never happens again.

 

  1. I am most grateful for the assistance given by all counsel in the case, both leading and junior, who have ably assisted the court in its unenviable task. I include in this commendation not only all those who appeared in front of me during the current hearing but also Mr. Giles Bain, who appeared for the local authority during the earlier part of these proceedings.

 

 

C had made allegations of physical and sexual abuse. Findings of fact were made by HH J Davies and those were overturned on appeal.

 

The Judge notes, dryly

 

 

 

  1. The reasons for the successful appeal are not relevant in this hearing save in one respect which I shall address shortly. Suffice it to say that the learned judge had before her four ring binders of documents when she heard the case. I have 18 ring binders. More importantly, relevant evidence was not placed before the learned judge and such evidence as was placed in front of her, as I shall determine in due course in this judgment, was highly incomplete and wholly inadequate.

 

So there was then a re-hearing, before His Honour Judge Arthur, sitting in the High Court. Here’s where it begins to go spectacularly wrong (as opposed to merely disastrously wrong)

 

 

33……On 31st January 2014 SW left the local authority employment. In the four months that followed I, who was now seized with the case, was asked by the local authority to give various directions, including directions for SW to provide a statement.

 

 

 

  1. By April, 2014 it became obvious to all that SW was reluctant to give a statement. On 14th May the court asked Mr. Bain, counsel for the local authority, to take instructions as to why that was, and in particular to inform the court whether there was anything in the circumstances in which she had left the local authority employment which had a bearing on the proceedings, and which might affect her credibility. Counsel faithfully relayed his instructions from the social work assistant sitting behind him, namely that SW had left in entirely amicable circumstances. ‘They were all sad to see her go, and asked her to stay working for the local authority.’

 

 

 

  1. In April 2014 the court permitted fresh matters to be included in the schedule of allegations to be proved. These related to evidence not before the court in June 2013. The first was that the mother had hit C with a rolling pin. The second listed general allegations of neglect by the parents of the younger children.

 

 

 

  1. On 27th May 2014 the final hearing began. On the third day of that hearing, on 29th May, the court suddenly received a ‘whistle-blower’ email from SW, directed to myself personally, in which she alleged corruption, malpractice and bad work practices by the local authority in respect of both C and T, and in respect of other matters too.

 

 

 

  1. On 30th May, having taken instructions, counsel for the local authority confirmed that the local authority no longer relied on SW as a witness of truth. It would robustly challenge some of her assertions in her email, and in the circumstances was no longer seeking further findings. It sought leave to withdraw their application for such findings to be determined. Unsurprisingly, the parents consented to this course of action, but the guardian for the younger children, who was absent from court, was not able to give instructions himself. In due course the guardian objected to the course proposed by the local authority.

 

 

The hearing collapsed on day 3 with LA counsel having to withdraw for professional reasons.

Something peculiar happened late (in week four) into the second attempt at it (this actually being the third attempt at the fact finding overall, as HH J Davies had already done one, overturned on appeal)

 

 

 

 

 

  1. In September 2014, in the fourth week of the hearing, to the surprise of all, counsel for the local authority suddenly put two very serious, entirely new allegations to the father in cross-examination. The first was that the father had been grooming “another child” A for sex, and secondly that C had conceived two babies while living at home. As the determination of these allegations would add little or no extra time to the proceedings, because they were so serious, and because the court believed they might assist in the assessment of the credibility of the witnesses, the court insisted the allegations should be articulated in the correct form and added formally to the schedule of allegations to be proved.

 

 

 

  1. At the conclusion of the evidence I invited all parties to set out, prior to written submissions, any concessions made by any party in relation to the evidence. In respect of the local authority, I asked them to set out any concessions about whether allegations were being pursued or not. The local authority was the only party to respond and did so with the following concessions:

 

 

 

  1. a) The local authority no longer sought to rely on any statement made by C in the three ABE interviews held in January 2014. This was subsequently clarified to include anything she said at the police station before or after the interviews, or in breaks, save, astonishingly, for comments about pregnancies and babies she may have made during a break in, or after, the interview on the 31st January, 2014.

 

  1. b) The local authority no longer pursued the allegations that the mother was aware of the abuse of T and chose to ignore it, and that the mother remonstrated with T on the 13th March, 2013. The local authority also abandoned the allegations of neglect of the three younger children.

 

  1. c) The local authority had already put in train preparations for a Serious Case Review of their conduct of the case. This would take place regardless of what findings were made.

 

I have not seen that Serious Case Review. I imagine that Luton are going to be receiving many many telephone calls from the Press wanting to see it.

 

There had been retractions from another child, T about the allegations. A LOT of retractions. Ten in all.

 

The Court of Appeal (in the appeal from HH J Davies) had given this advice about retractions

 

Re W (Fact-Finding Hearing: Hearsay Evidence) (2013) EWCA Civ 1374, (2014) 2FLR 703 at paragraph 25.

 

  1. Furthermore:

“The retraction of a complaint normally requires careful and specific consideration and this case was no exception. Obviously the fact that a complaint is subsequently retracted does not prevent a judge from accepting that it is in fact true but it gives rise to questions which must be addressed sufficiently fully and directly in the judge’s reasons so that one can be confident that the fact of the retraction has been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation” [para 28].

 

 

The Judge comments on the SW evidence about the retractions (including the retractions made by another child, T)

 

 

 

  1. She was reminded that by 8th March T had retracted her supposed allegation. SW’s response was instant and dismissive, “It’s perfectly normal for victims to retract. We know it is common from victims”. Later she said, “I agree with the Court of Appeal that we should take retractions seriously”. From her demeanour, however, the court did not infer that she was in any way convinced by what she was saying. She further accepted that she had asked C whether she was worried about what had happened to T also happening to her. She saw nothing wrong with this question:

 

 

 

 

“It was in accordance with social worker practice… It is a practice all good social workers use… The fact that the court sometimes does not catch up with research is very unfortunate.”

 

 

The Court made these general comments about the SW evidence

 

 

 

 

 

 

 

Credibility of SW – court’s findings

 

  1. She was at times truculent and downright rude to counsel and to the court and sometimes quite threatening and menacing. She variously accused counsel for B of raising his eyebrows at her in an inappropriate manner (he was in fact doing no such thing), loudly demanded to know the names of all the counsel in court, said that she had ‘clocked what you lot are up to’, and accused the court and counsel of trying to prevent her having her say when, in fact, wholly proper efforts were being made to curtail seemingly unquenchable outpourings. She was dismissive and disdainful of correct social work practice and the way the court operated. She was liberal in blaming others for things that had gone wrong. Apart from blaming the court (by inference both HHJ Davies and the Court of Appeal), she blamed the police, other members of the local authority, teachers at C’s school, the school itself for obstructing her, (this was wholly unfounded), counsel for the parents and counsel for the guardian.

 

In the light of that, it is rather commendable that counsel for B was able to control his eyebrows. Mine would have been on the ceiling.

 

SW’s evidence – general matters

 

 

Her current memory of events

 

  1. She explained that she had been very reluctant to give evidence. In her tenth and last statement she had said that she could not trust the local authority case notes in view of the time lapse. She had resisted making that statement as she did not think she could usefully add anything, for now she could no longer recollect any details but, as the case had progressed, some matters had come back to her as she was questioned and shown documents, and so things had become more alive for her. Even so, she said that all the events with which the court was concerned took place over two years ago and she had not retained memories of the case in the same way she would have done if she was still the social worker. This is something she repeated many times during her evidence.

 

 

 

 

 

Disclosure of her own notes

 

  1. She was referred to the email of the local authority’s in-house counsel, Miss Manassi, on 28th February of this year which asked for her notes and said that a comprehensive statement would be needed from her. She was referred to the current President of the Family Division’s words twelve years ago, “Professionals should keep comprehensive notes. Social workers should routinely exhibit notes to statements”. SW said that, contrary to this, she had shredded all her notes. In fact, she had tried to shred all her notes on a daily basis when she worked for the local authority. She could not keep them because they might be stolen from her car or lost and she had no desk in the office where they could be kept. “I shredded notes because I did not need them”.

 

 

 

  1. Furthermore, in February 2014, Dawn Smith, her supervisor at Luton Borough Council, had told her to delete all her own records including all texts and emails from T. She deleted, she thought in all, about 500 texts to and from T. She was ordered to delete or shred all this material. She did so, she accepted, knowing that the proceedings were still underway and that a retrial of the sexual abuse allegation for C had been ordered, and that in relation to these T’s own allegations of sexual abuse against the father were relevant.

 

 

 

  1. She was reminded of one text in particular. T had alleged that SW had sent her a text telling her not to be in denial. Ms Lynne Jackson, the psychologist, had reported that this text had, in fact, been read out to her by T. SW said this:

 

 

 

 

“I knew all about this allegation of unprofessionalism and that T was saying this and other things too. I remember thinking whether I should delete this trail but I was told to”.

 

  1. In any event, she said she had never sent T this text.

 

 

 

  1. We have not heard from Dawn Smith. So whether or not SW was generally ordered to delete all her records, texts and emails still remains to be decided. Further investigation is needed. But the court notes that it seems very surprising that SW should have deleted a trail of texts which would have exculpated her from this particular accusation. (For the avoidance of doubt, I make no findings that any member of staff obstructed the Local Authority.)

 

[So I should make it clear that SW was alleging that she had destroyed all her emails and texts because the manager had told her to, but the Court didn’t hear evidence from the manager about this and didn’t make any findings. I have a little bit of sympathy about the handwritten notes- social workers don’t have paper files any more, and most of them don’t have their own desks any longer. Everything is on computer and workers hot-desk. Whilst the President did say 12 years ago that handwritten notes should routinely be exhibited to SW statements, there are not many Judges who would thank social workers for doing that. There’s no way that one can do that and comply with the 350 page limit. I would suggest that handwritten notes, particularly of conversations with children or adults about allegations ought to be scanned and kept, if they are not contemporaneously typed up]

 

Interviewing a child

 

  1. She was aware that, with a child who has learning difficulties, the interviewer has to be very careful of suggestibility. She said she herself would have been outraged if anyone had asked C leading questions, “One should be sensitive of this” she said emphatically. She was reminded that, according to Miss G, she had hundreds of conversations with C, some of which referred to sexual abuse or abuse allegations. SW assumed that Miss G would have had the appropriate training about how to talk to children who had made allegations. The school should have given her advice about this. The social workers were quite disappointed with the school about a lack of training and had to discuss giving general training to the staff at the school or arranging for that to take place.

 

 

 

  1. SW was very strident when giving evidence about how allegations of child abuse should be dealt with. She said, “Research shows that we must be more direct with children in abuse cases”. This was accepted in her social work team at the local authority. Dr. Van Rooyen, a psychiatrist in the instant case, too had said they have to be ‘more direct’ with the child. She said, “I suspected that she meant we had to talk to C and perhaps initiate conversations”. She then seemed to contradict this by saying, “We had to wait for C to speak, we know”.

 

 

 

  1. She repeatedly referred to research by Keir Starmer, a former Director of Public Prosecutions. “His work should be accepted by the court”, she said. Her tone and demeanour made it clear that she was very critical of the courts. Later she said the social worker should keep an open mind in investigations like this. She hoped that she herself had kept an open mind. When asked whether it was her working hypothesis that C and T were sexually abused, she said that C’s behaviour especially was indicative of abuse but she repeated, she hoped she had kept an open mind. Her actual words which follow are important. Her tone was distinctly barbed as she uttered them:

 

 

 

 

“I do not know whether C was abused or not. As her voice in social care I am directed by our research at the local authority even though the court may not be… C’s behaviour led to a very strong correlation with sexual abuse. The first time she presented as a victim of sexual abuse was on 17th December.”

 

  1. When asked what was indicative of sexual abuse on that occasion she answered:

 

 

 

 

“C’s behaviour. I was hearing all sorts of things from the school and what she had done… It’s the skill of a social worker to ascertain what is the likely cause of her behaviours.’

 

 

 

Use of the word “disclosure”

 

  1. She said:

 

 

 

 

“I was told this judge doesn’t like the use of the word ‘disclosure’ for allegations by children. I understand that courts in general don’t like the use of the word ‘disclosure’.” She had not read the Cleveland report of 1987 and did not know if it criticised the use of the word “disclosure” by professionals.

 

(It does disappoint me that a social worker dealing with a sexual abuse investigation would never have read the Cleveland report, but I can’t say hand on heart that I’m astounded by it. I do think there’s a general lack of understanding that ‘allegation’ should be used instead of ‘disclosure’ and why that is – broadly that disclosure as a word is perjorative – it implies truth. I can disclose that I ate your Jaffa Cakes (because it is true), I can’t disclose that I walked on the surface of Mars. So if I say that Mr X punched me, you don’t know whether it is true until the Court have decided it – it is an allegation at that point, not a disclosure. )

 

There was a very peculiar exchange about SW’s first meeting with C.

17th December 2012

 

  1. I must examine the events of this day very carefully, for they set the tone for what was to follow and go to heart of the case. This was the day of SW’s first meeting with C. The case had been closed by the local authority a couple of weeks before following earlier complaints by C. On the 14th December, as we know, the school told the local authority that C was still unhappy and did not want to go home. When she was allocated the case, probably on Friday 14th, SW skimmed through the electronic file provided to her by the local authority. She would have done this as quickly as possible, she said. (The court notes that this file was in fact just seven pages – a very short file indeed, and would not have taken long to read fully.) Part of this short file comprised the handover notes of Fiona Johnson, the previous social worker. These were reported as follows:

 

 

 

 

  1. a) C had alleged being hit, though the school believed there were no marks ever left on her. According to her, everyone seemed to cause her upset. The family upset her and all the family hurt her, except for D. Her brothers, especially B, beat her up.

 

  1. b) Other children had all been spoken to and all had said that they had never been hit by the parents.

 

  1. c) C had reported no major health issues.

 

  1. d) There were no concerns about A.

 

  1. e) All the other children were happy at home.

 

  1. SW appears not to have accepted this. ‘I wondered if C was unhappy, did it mean that the other children were unhappy.’ On skim-reading the notes, ‘I wondered if something was going on.’ Although, she accepted that there was nothing in the notes to this effect, it was her impression on reading them that this was Mrs Johnson’s impression too. So she had gone to the meeting believing that there was more she needed to understand about C’s self-harm, and about the pictures and drawings which she had drawn and made at the school. She had no idea of what this might be. She was asked whether she had any suspicions and there was a noticeable pause before she answered, “No” but she then added, “But we can partner certain behaviours with certain types of abuse”.

 

 

 

  1. On the second page of the seven pages of files notes handed on from Mrs Johnson, there is mention that, “The child has a bit of a fixation with Miss G”. The note also referred to Facebook entries which needed to be dealt with. SW said she did not recall this entry or how she had dealt with it. At any rate she had not known whether the fixation comment was correct or not. She was quite dismissive in giving evidence about this topic, the court noted from her demeanour. It is obvious that she did not think, and has never thought, it to be of any relevance whatsoever.

 

 

 

  1. SW duly met C at school in the presence of Miss Z on the 17th December, 2012. The child was anxious and ‘difficult to engage in so many ways”, she elaborated. She found the meeting very difficult. Sometimes her head was down, she was kicking the chair, her head was behind her ‘hoodie’, she was challenging and unwilling to talk about anything. Most of the time she was ‘a shrinking violet’. She seemed frightened and anxious and unwilling to talk and engage. There were very long silences. Nonetheless SW that she wanted to engage. In spite of this, the meeting took what the court considers a quite extraordinarily long time. According to SW, it started at 12 noon and ended at 3:30 or 4 p.m. (The note she wrote in her car afterwards was timed at 3:30 p.m.) During those 3½ hours she had left the room to contact the child abuse unit at Luton Borough Council and in particular Mr Graham Cole, the head of legal services there. And of course a lot of time, she repeated, there was, silence. As her evidence progressed, the court’s impression was that she trying to row back from her original time estimate. Eventually she said that the interview was perhaps ‘1½ hours, maybe shorter, maybe longer’. C had been given the chance to leave the meeting several times. Once she did leave but returned of her own volition. In this meeting it was difficult to understand what C said. Miss Z would say what C had said and C would either nod or shake her head. She soon realised that C hated to be asked to repeat what she had said. Neither she nor Miss Z took a note during the meeting, “It would be an abnormal thing for a social worker to take notes when interviewing a child other than during an ABE interview.’

 

 

 

  1. At 3.30pm, in her car, she made notes of the meeting. It was her practice to note down as soon as possible the important points of an interview note, which appears to two pages, is one of the few handwritten notes by her before the court:

 

 

 

 

“Very difficult meeting”, “Comes in when no one is there”, “Does stuff, bad stuff”, “Really bad things”, “Secrets”, “Where’s mum? Downstairs, out”, “Have you tried to talk to her about it? No point”, “Not allowed to talk about it”, “Couldn’t expand”, “Hits me. Kicks”, “Notice leg was sore, limping a little. Said dad had kicked/hit her last Sunday”, “Wouldn’t show me”, “Appeared very frightened/frozen”, “Didn’t want anyone to know what she’d said”, “Wanted to go into foster care”, “Hate family, hate mum, hate him”, “Gets beaten up at home – brothers, dad”, “Doesn’t feel safe at home”, “Does not feel there is anyone she could turn/talk to at home”, “Said she wanted to die”, “Does stuff he shouldn’t”, “Happened more than once”.

 

  1. A crucial element in this case revolves around what SW said in her statement of 20th December, 2012 about the interview three days before. The relevant part of the statement reads as follows:

 

 

 

 

“[C] disclosed sexual abuse by her father during this meeting. She told me that her father comes up to her room and does really bad things. Through discussion it was established that she clearly understood that there were areas of her body that no one should touch and this is where her father touched her. [C] found it extremely hard to expand on this although did manage to share that her father told her that she must not tell anyone and that the bad things would happen if she did. It was also established that [C] knew about her body, her sexual organs and other people’s. After ensuring I was confident [C] knew what sexual abuse was, she confirmed that this is what had been happening to her.”

 

  1. When it was pointed out to her that the handwritten notes make no mention of sexual abuse, SW caused, it must be said, considerable consternation in court in all quarters by asserting that there was a page missing from her notes. There was definitely a third page, she remembered. She remembered the Local Authority solicitor, Ms Abana Sarma’s collecting this document. She was most concerned that this page was missing because this page dealt with the sexual abuse allegations made by C on 17th December. Furthermore, this page had been before HHJ Davies at her fact finding hearing in June, 2013.

 

 

 

  1. She was referred to a number of documents from the court bundle. First was a police note of 17th December which states, ” [C] did not disclose sexual abuse”. Then she was referred to the transcript of HHJ Davies’s judgment at the end of the 13th June, 2013 hearing, which made mention of the content of the two pages long since disclosed, but none of the contents of the apparently now missing third page. Furthermore, the transcript of that hearing shows that the father’s counsel cross-examined SW on the discrepancy between the note of 17th December interview which did not record sexual abuse being mentioned and her later assertion that C had alleged sexual abuse at the interview. Indeed, when SW was specifically questioned about the fact that her notes did not include any mention of sexual abuse, she did not refer to any missing page. She was again referred to the transcript of evidence given at the earlier hearing when she was specifically herself asked under oath whether in the discussion of 17th December C had elaborated on “bad things” and she had answered, “No, not at this point”. Nonetheless, she said, she would not agree that C only went as far as saying “bad things”, although she did not recall what other words C had used. It was two years ago.

 

 

 

  1. Mr. Geekie, for the local authority now rose and said that the local authority was totally unaware of any missing third page of notes. Indeed, he said the whole of the fact finding trial was conducted on the basis of the two pages of notes only. This accorded with the memory of all those counsel for the other parties who had been present at that earlier hearing. If that was not enough, it was pointed out by the Local Authority’s solicitor, and agreed by counsel who had been present at the earlier hearing before HHJ Davies, that the bundles that the court was using at the current hearing were those used then, merely brought up to date by the addition of further documents. The court bundles then and now, did and do not include any third page of notes.

 

 

 

  1. In spite of being faced with what might have been thought an especially daunting body of evidence, SW was not to be budged. She repeated that she had given the third page of notes to Ms Abana Sarma of the local authority, that it was definitely referred to during HHJ Davies’s hearing, and that the missing page had stated that C had alleged sexual abuse. She could see the second page in her mind’s eye. There were several entries on it. Furthermore, it was shown to the police at the strategy meeting shortly after 17th December 2012, even though the police record of what happened on that date says that no sexual abuse was alleged by the child.

 

 

 

  1. When further questioned, she accepted that pages one and two of the notes before the court were consecutive, and were a complete document, so the third page could not have been the middle page of the three. The missing page was, she said, a second note written at a different time in the interview. This was despite her earlier evidence that she had not taken notes during the interview, and that it was her practice never to do so during interviews. She said she had discussed the contents of the third page with the police and her team manager. She then said belligerently, “I want to know why the second page is missing”.

 

 

 

  1. She then added that, apart from words, she relied on the non-verbal signals from C; the self-harm, the fact that she walked out of the interview, the hiding behind the hoodie, the fact that she started and stopped saying things and the fact that she wanted to go into care. She said this:

 

 

 

 

“Because of her words, in my professional opinion I felt she was the victim or at risk of sexual abuse. It is important that a social worker should be brave enough to say this.”

 

  1. She was then rude to counsel saying, “I’ve clocked where you’re going a long time ago” and then to me, “I hope this court does this case justice”.

 

 

The Judge had to make findings about this

 

Findings about the 17th December interview

 

  1. As for SW’s contention that C alleged sexual abuse to a total stranger on this occasion, this is plainly mistaken. The police note of the same date specifically records that no sexual abuse was alleged. The application for an Emergency Protection Order dated the 20th December and signed by the Local Authority’s Head of Legal services does not say that sexual abuse was actually alleged, only that C’s remarks ‘were suggestive of sexual abuse’. The notes made by SW after the conversation make no mention of sexual abuse. Her contention that a page of notes is missing, and that this page was before HHJ Davies in the earlier hearing, is simply ludicrous, for this would have meant that all counsel and solicitors, not to mention HHJ Davies, must have, unless through quite startling collective amnesia, willfully colluded in ignoring vital evidence during the hearing, and that the learned judge deliberately omitted mention of it in her judgment. It is also ludicrous to suppose that, when writing her notes in her car, SW wrote down relatively trivial allegations, but omitted to record the infinitely more serious accusation of sexual abuse.

 

 

 

  1. The reality is that when one stands back and looks at what happened, one can see just how serious this situation was and is. Based in part on, the Local Authority now sought and obtained the peremptory removal of C from her family on the 20th December 2012, and the following day sought and obtained an Interim Care Order. In each case the tribunal notes show that the decision was made, in part, on the basis that C had alleged sexual abuse. The removal of children from their parents, especially without notice, is one of the most draconian actions any court can take. It strikes right at the heart of basic human rights, on family life; it is frightening and traumatic for the children involved, and profoundly distressing for parents and other family. Sadly, the courts are required from time to time to sanction such removal, but only when safety and urgency requires it. In making such urgent orders, the courts must rely on the accuracy of Local Authority evidence. Whilst they cannot know whether any allegation is true or false, the courts are entitled to be told the truth by Local Authorities as to whether such an allegation has been made at all. The Family Court and the child-care justice system cannot function if Local Authorities do not tell the truth about this, for justice will inevitably be perverted.

 

 

 

  1. Responsibility for this cannot be laid wholly at the feet of one social worker. Others in the Local Authority must share responsibility, although, as I have said, on the evidence before it, the Court cannot and will not apportion this to particular individuals. The court freely acknowledges that all Local Authorities’ resources are over-stretched, and that social-work professionals are often alarmingly over-worked and under time pressures. Nonetheless, there should have been proper, efficient supervision of SW. Furthermore, the application for an EPO did not record an actual allegation of sexual abuse, whilst an application of the same date for an ICO did. With proper supervision and scrutiny this discrepancy should surely have been picked up by senior professionals at Luton Borough Council

 

 

After the first finding of fact hearing, and knowing that there was an appeal pending, the SW went to see the child to talk about the findings that had been made. It gets worse

 

Telling C about HHJ Davies’s findings of the 22nd June 2013

 

  1. SW visited C immediately afterwards to tell her of the findings. This was on the advice of CAMHS. C said that ‘he did it to A too’. SW had known then that there was going to be an appeal, but C was desperate to know what had happened and she was worried that C was at risk of suicide. The note of that meeting reads as follows:

 

 

 

 

“I then began by telling her that the local authority, us, had, as she knew, concerns about a number of things but we had asked the court to make a judgment/decision on these. I asked C whether she knew what those concerns were, she nodded but I decided to go through these. I said from what you have told me so far and from what I have learned from working with you and your family, I have been concerned that you are a victim and have suffered sexual abuse. C looked at me eyes moist but intently listening, she nodded. I said the concerns were also that the person who caused this to you was your father. C starred very intently at me nodding again and I carried on. I said the judge decided that after hearing all of the information that it was mostly likely to have been him. C remained staring at me, eyes a little more moist and said, ‘It was’. I then said the judge also found/decided that this had happened to T. I clarified this and said that the judge decided it was more likely than not that your father had also sexually abused T. C remained looking intently at me. C then said, ‘He did it to A too. She told me and I promised to keep it a secret, you need to talk to A. I said that we would and could she tell me a bit more. C said, ‘I promised I would keep it a secret'”.

 

 

  1. She herself has always been adamant that it never happened. The court is wholly satisfied that she was never abused by her father. It follows, therefore, that either C herself was making up the allegation to please SW in the light of the learned judge’s findings, or SW was making it up. On the balance of probabilities, the court is satisfied that SW was, as usual, putting words in the child’s mouth and then pretending they had come from the child.

 

That’s an incredibly damning finding, and one that clearly survived the Court of Appeal decision. The SW was, as usual, putting words in the child’s mouth and then pretending they had come from the child. Incredibly damning.

 

On the total number of ABEs

How many ABE interviews were there in January 2014?

 

  1. SW’s initial evidence was that there were six ABE interviews of C in all. One was on 4th October when “C said nothing” and another five in January 2014. When she returned to complete her evidence a few days later, she disclosed further documentation she said she had found at home, as well as her mobile phone she brought to court her 2014 diary and some loose sheets of paper she said she had found in the 2013 diary. She had not brought her 2013 diary with her to court as she did not think it was necessary.

 

 

 

  1. It was interesting that some of the loose pages of typed notes do not appear in or are cross-referenced to the documents previously disclosed by the local authority. She was asked how she had typed these notes. She said she would ‘audibly’ type notes on the local authority’s Care First system and sometimes this would go down and so she would type the notes on a standard word document format and transfer them later onto the system. Many times she was asked by the local authority to type up her documents on her own computer. She complained about being required to do this by the local authority to their legal department. When she did type documents at home, she never saved them. She would scan them and then ask someone else to scan them into the system back in the office. She would have expected all the loose pages found by her to be on the local authority’s Care First system. She typed up the notes of every substantial meeting with C and would expect them all to be on the system. She did not know why these notes were not on the system.

 

 

 

  1. She referred to her 2014 diary and to a number of entries in it. These contain the words, “C ABE on…” and then five dates …’ 23rd 27th, 28th, 29th and 31st January’. There are question marks next to the 27th, 28th and 29th January. She explained that the question marks were because the social workers were not sure whether C wanted to go through with the interviews. She still believed that C had done five ABE interviews in January, and six in all if the October ABE interview was counted, for that was what her records showed. She said, “My memory was that it went on for several days in January… I am ‘sure’ it was six interviews in all”. For the avoidance of doubt, there were no times when they took C to a police station and an interview did not take place.

 

 

 

  1. She later was referred in due course to her a file note of 12th December, 2013 which reads as follows, “C has now completed five ABE interviews, disclosed rape by father and V. She has also said she has been pregnant twice”. The date of 12th December 2013 does not make sense in the context of the timescale, the court notes. As to the substance of the note, SW commented that the reference here to five ABE interviews, “accords with my recollection. I recall five that week”. She then changed her evidence, something she did very frequently whenever she was in the witness box, saying that there had been, in fact, one attempted ABE interview that week in January and one aborted ABE interview. Added to those ABE interviews for which we have recordings and transcripts, that made six ABE interviews in all.

 

 

 

  1. It shows the extraordinary nature of this case that the court has had to consider whether C was ABE interviewed three or five times in January 2014. The evidence of the police officers, SWA ‘Y’ and Miss G collectively suggest that were but three. SW believes there were five. I prefer their collective memory. Accordingly I find that there were four ABE interviews only

 

It won’t surprise any reader to know that that the ABEs were very flawed – with leading questions, pressure, questions about things that weren’t alleged, the child being praised for giving answers that the questioners wanted to hear, disappointment from professionals where the child wasn’t making allegations (those being described as ‘failed ABEs)

 

And on the number of times C was interviewed about her allegations

Findings about the January ABE Interviews

 

  1. Save with one exception, the local authority does not rely on anything said in these interviews.

 

 

 

  1. It is submitted by Mr. Storey that C underwent literally hundreds of interviews. This is partly based on Miss G’s agreement that she had hundreds of interviews/discussions herself with C. The court is satisfied that this is, in fact, an exaggeration. The court must be cautious not to confuse spontaneous remarks made by a child or short informal chats with formal questioning. Nonetheless, doing its best, the court is satisfied that the child has had no fewer than 33 interviews about abuse with one or other social worker between 17th December 2012 and 31st January 2014. By “interviews” I mean either formal interviews or detailed question and answer discussions which went beyond the odd throwaway mark, or the odd question and reply. In addition, there appear to have been five similar discussions of a detailed nature with school teachers, seven with a foster carer and, of course, with Dr. van Rooyen and one with PO. On top of this, there were four ABE interviews. This makes, if the court’s mathematics is correct, an alarming total of 51. 12 of them were conducted wholly by untrained interlocutors in the form of the foster carer and the school teachers, and the rest were professionals whose ability to follow guidelines seems to have been non-existent. In addition, there can be no doubt that there were many, many other informal unreported conversations at school, in the foster home and when social workers brought C to and from school, which happened ’99 per cent of the time’.

 

 

 

  1. Furthermore, the court’s criticism is directed not only to those who conducted the interviews, but to those who sat outside and saw and listened to what happened: the social workers and teachers in the room next door. As professionals working in the field of childcare, they should have intervened to stop the 28th and 31st January interviews. They did not.

 

 

 

  1. Quite apart from the content of the interviews which were recorded, it is thoroughly reprehensible what was said before, during breaks and after the recorded parts was either inadequately noted, or not noted at all. The court is wholly satisfied that relevant matters were discussed at the police station at these times. All the professionals seemed to have operated on the false premise that what was said outside the interview room did not count.

 

 

As has been mentioned earlier, at around week four of the finding of fact hearing, an allegation was made that C had been pregnant twice. By the end of the hearing, the Local Authority were not relying on anything said by C in her ABE or other interviews other than this.

 

Findings about the 31st January pregnancy allegations

 

  1. It is incomprehensible to the court that the local authority, having conceded that no reliance should be placed on what was said by C during the three January ABE interviews, in the talks before it, in breaks or afterwards, should seek to rely on one short interchange about pregnancies, which took place during or immediately after the 31st January interview. How can a few words only, during or at the end of one of them, be exempted? It seems to the court illogical and perverse.

 

 

 

 

  1. The evidence about this episode is far from complete. Nonetheless, the court is satisfied that either during a break or at the end of the 31st January ABE interview, C made drawings and said things which led the police and the social workers to believe that she was alleging that she had been pregnant twice when she was much younger, and had either born two babies or lost them for one reason or another. Their names were Jack and Rose. She had also been given the morning-after pill. We do not know precisely what C said because the note-taking was hopelessly inadequate. The allegations were and have been taken seriously, for allegations that C conceived twice were added to the schedule of findings to be sought during the currency of the present hearing. Yet these allegations seemed, as was put to IO ‘W’, to have disappeared into the ether until they were unearthed late in the day.

 

 

 

  1. These allegations were very, very serious. So why was it that the first the court and the parties knew of this issue was during the hearing? Why did no social worker or police officer ever mention it? Why does it appear in no statements? The answer, regrettably, must be, not because the allegations were made outside a formal ABE interview, but because the local authority and the police realised only too well that they were ludicrous. They simply could not be true. They did not fit in with C’s medical records or the age when she attained puberty.

 

One of the other children, T, gave evidence

 

 

 

 

  1. T in her oral evidence disputed much of SW’s evidence about this meeting. She was particularly adamant that on 1st February 2013 she had never mentioned sexual abuse by the father. They had not really talked about this at all. Furthermore, she had never told SW that she had reported the abuse to her mother. “This was wrong!” Nor had she ever said that her mother had sent her off to live with her Aunt B, because of the abuse, nor was SW’s note accurate when it recorded that T had said that Aunt B had not believed her until she caught it out actually happening. “I did not say these things”.

 

 

 

  1. T then denied that she had ever told SW that the sexual abuse was the reason why she did not get on with her parents and why she would not leave her children with them. The reason she did not get on with her parents was, “because they always have a go at me’. She clarified this by explaining that her parents had not approved of her sleeping with a boyfriend from school. When she had left home she did it not because she was forced to and because she wanted to. Furthermore, she had, indeed, left her children in the mother and father’s care on many occasions. Indeed, she had not had a conversation with SW about her own children at all.

 

 

 

  1. During this part of her evidence, the court noted that T spoke with particular conviction. The court accepts her version of what was said, not least because the pattern here is similar to what happened on the 17th December.

 

 

 

  1. T did not like this. SW was aware of that. On 5th February 2013 she rang T, “To tell her that she did not have to do anything she did not want to”. This was in response to a telephone call from the mother to the Local Authority earlier that day. The next day, 6th February, the Local Authority received a typed letter signed by T. The key passage of that letter is as follows:

 

 

 

 

“SW from the children’s social services department in Luton keeps ringing me and keeps trying to contact me regarding me to make a statement about my dad, F, saying he had molested me at a young age to which of my knowledge none of this has happened. I am not willing to make a statement as it would be a false allegation. In my eye SW is dealing with my sister’s case, C, as she has no success in that one she is trying to manipulate and intimidate me to make a statement which I will not do. I would like SW to have no contact with me.”

 

  1. For reasons I shall give later, I am satisfied that this letter did genuinely reflect T’s feelings. Furthermore, I am wholly satisfied that T did not make any allegations of sexual abuse on the 1st February 2013.

 

 

 

I could do an entire post about the flaws in the ABEs, to be honest, but there’s just so much in this judgment. I will end with the concluding remarks

 

 

 

 

Concluding observations

 

  1. One can only pray that the adults, and children, may recover from their unimaginable ordeal, though I fear that they will carry the scars of their suffering for the rest of their lives. As for C, with her underlying problems, the damage may well be irreparable. So much now needs to be done to see what damage can be repaired and how family relationships can be restored.

 

 

 

  1. This court has no jurisdiction over C beyond this fact-finding. But that cannot prevent my emphasising how urgent it is that her case be re-opened. The existing care order was made on the basis of incomplete evidence. The parents’ approach in not opposing the order was adopted in ignorance of the true facts. This injustice must be rectified.

 

 

 

  1. The court cannot entrust the care of children to those who abuse or fail to protect them. That applies to local authorities as much as to family members. Parties must have faith in those who care for their children.

 

 

 

  1. The local authority have already undertaken to commence forthwith a Serious Case Review, and rightly so. But it must go further.

 

 

 

  1. This situation poses grave dangers for family justice. Valuable court time is taken up weighing such breaches against the evidence and of course, there is the risk that not only may false information be garnered in interview, but that genuine allegations may be so contaminated that they cannot be relied upon. Those who permit their employees to question children and vulnerable witness must therefore be certain that not only have they received the standard training but they understand what it means in practice.

 

 

 

  1. This case has taken up an inordinate amount of the court’s time, but rightly so in the circumstances. Yet the cost to the public purse in one form or another will be immense. There has been a significant disruption of court lists, with other cases being delayed. Family justice cannot perform the vital task it does in protecting children without honesty, objectivity, transparency and fairness. I thus hope that no court ever again has to see and hear what this court has seen and heard during the past weeks.