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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.






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




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



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)


(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.



Little end of year quiz (it doesn’t have a legal, or a Xmas theme)

Here are some photographs of famous people, in two batches. I want you to work out the connection between the answers in each batch (i.e what connects all the answers in group one, and what connects all the answers in group two). Hint time – you may be looking for the name of the actress OR the character they are well-known for portraying. Hint two – it may help, when you have your answers, to play around with different orders, because the order might be significant.

Please don’t guess in comments or on Twitter, as it will spoil it for others who are still working it out. You can slide into the DMs if you want. @suesspiciousmin

Batch 1


Are we out of Curly Wurlies again Norris?


Rollin’… rollin’… rollin’
(no, it isn’t Fred Durst out of Limp Bizkit)


Apparently relationships based on really traumatic events never work out


She’s not bad, she’s just drawn that way


Hope you don’t bear a Grudge for my inclusion of this one. Became world famous because of dry cleaning



This one might be tricky. She trod the same path as Schofield, Peters and Crane (and was the first woman I ever used the word ‘fit’ to describe, back in the day)


Frightfully posh English tennis player (also flew about in helicopters for channel 4). And also on my Crush list with the last one…


Famous Dragon. And NOT on my Crush list. Though, that photo….


Don’t be fooled by the rocks that she got. (and yes, girl rewrote the damn Crush list)


And this one time at Band Camp…


Used to make cake-based double entendres, now tells you how to win a Volvo on Sky Atlantic.

That’s your lot. Good luck.

The Tooth, the whole Tooth and nothing but the Tooth

In which the father from the forty tons of Toblerone case (remember, he ‘discreetly’ arranged for his children to see a solicitor in a relocation dispute and paid the solicitors fees of £174,000) made an application for mother’s divorce solicitor to be barred from acting for her.

I don’t usually do divorce blogs, but this is curious.

S v S (Application to stop Solicitor Acting) 2017

The deal apparently is that whilst father was deciding which solicitor to instruct himself, he sent round his representative OE to in effect interview some top-drawer matrimonial hot-shot firms (what is known in the trade as a ‘beauty parade’) to see who he wanted to go with.

OE says that on 30th November 2015, he went to see Mishcon de Reya, Stewarts Law and then our lead player, Mr Raymond Tooth of Sears Tooth.
The father/husband decided to go elsewhere, but objected when mother subsequently instructed Mr Tooth.

Mr Justice Williams was appropriately sniffy about the failure, even in such a big money case with uber-silks, to provide the practice direction documents.

12. I have read the trial bundle. I note in passing that none of the usual practice direction documents, such as an agreed chronology, case summary, reading list, or list of issues was included as required by PD27A. I very much hope I shan’t have to make this observation again to those involved in this case.

The chronology, when it finally emerged, threw up something interesting. Father/husband had signed a letter of retainer with HFC solicitors on 23rd November 2015 – a week before he saw at least two other solicitors and possibly the third, Mr Tooth.

It was the subject of debate whether this was understood practice in big money divorce cases that even after signing on with one lawyer, a client might continue the beauty parade to see if anyone else caught his eye, or whether this actually was a way of conflict blocking any other hot-shot firms to prevent them acting against husband/father.

Williams J sets out the law

8. Supplementing the submissions on the law that I have received, both orally and in writing, I have been referred to the following texts and cases: (a) Passmore on Privilege (3rd ed); (b), Minter v Priest [1929] 1 KB 655, (c) Minter v Priest : [1930] AC 558, (d) In a Little Spanish Town (Francis Day & Hunter v Bron) [1963] Ch 587; (e) Great Atlantic v Home Insurance [1981] 1 WLR 529; (f) HRH Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52.; (g) Davies v Davies [2000] 1 FLR 39; (h) Re T v A, (children, risk of disclosure) ) [2000] 1 FLR 859; (i) B & Others v Auckland District Law Society [2003] UKPC 38; (j) Fulham Leisure v Nicholson, Graham & Jones [2006] EWHC 158; (k) the West London Pipeline case [2008] EWHC 1729; (l) Re Z (restraining solicitors from acting) [2009] EWHC 3621; and (m) G v G (financial remedies, privilege, confidentiality) [2015] EWHC 1512.

9. The law ultimately was largely agreed, although there was a difference between the parties on three issues: firstly, whether the risk of disclosure of confidential or privileged information can come from subconscious or unconscious influence; secondly, whether there can be a partial waiver of privilege and how that might be dealt with; and thirdly, whether making an injunction is mandatory if the grounds are established, or whether the Court still retains a discretion whether to grant the order or not.

10. In summary, the principles I derive from all of those cases and which I apply are as follows.

(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.

(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.

(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.

(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.

(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.

(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.

(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context “real” means it is not merely fanciful or theoretical, but it does not need to be substantial.

(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.

(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.

(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.

(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.


The issues in the case were, however, mainly factual, rather than legal. Had husband’s representative OE actually met with Mr Tooth at all, and had confidential information been exchanged. This sounds like a peculiar thing to have a factual debate about. But OE said that he had met with Mr Tooth, Mr Tooth disagreed. Both had to give oral evidence.

OE said that another lawyer was present, that Mr Tooth had said that his charging rate was £700 per hour and that Mr Tooth had produced detailed notes and a structured analysis.

However, witnesses from Sears Tooth said this

Laura Broomhall and Kelly Edwards say the following, which is of some relevance. They were the only two solicitors working for Mr Tooth on 30 November. They have no recollection of any meeting. Laura Broomhall has no recall of OE’S face. Ms Broomhall undertook a conflict search and consulted her attendance notes and diary for 30 November and found no records. Kelly Edwards has no notes or record in her diary, or attendances for 30 November. Ms Edwards met the mother in March 2016 and was not prompted to recall the case by that meeting.

39. Both Ms Broomhall and Ms Edwards say Mr Tooth has never charged £700 an hour. Ms Broomhall says she has no Eastern European connection, Kelly Edwards likewise. Laura Broomhall says that she would take a full note and Raymond Tooth a short note. Kelly Edwards says Raymond Tooth’s notes were far from structured; the assistant would take a detailed note, Raymond Tooth would write a few keywords no one could read. Ms Broomhall says Raymond Tooth has never behaved in the way OE suggests. Kelly Edwards agrees that he does not behave in that way.


Judicial findings
Analysis and Conclusions.
40. Issue 1: can the husband prove a meeting took place between Raymond Tooth and OE on 30 November? On balance, yes, I believe there was a meeting of sorts between Raymond Tooth and another member of his staff and OE on that day. The following matters demonstrate this: the appointment in Raymond Tooth’s diary that was put there by him following some contact by OE and not crossed out, a telephone message from some point in the afternoon by OE in which he gave his number, the Google search for the premises of Sears Tooth — I do not consider the time differences to be of any particular significance to OE’S credibility, they may arise from the use of different time zones on his devices — OE’S recollection of the interior of the premises (the piece of artwork, the obtaining of a card and the layout of the conference room) and the combination of OE’S own evidence and Mr Tooth’s evidence persuade me that an appointment was booked and that OE attended for it and some form of meeting took place.

41. The second and third issues: if a meeting did take place, can the husband prove any confidential or privileged material was communicated to Raymond Tooth and his assistant and can the husband prove that such material is or may be relevant to the current dispute or contemplated dispute.

42. Although Mr Marshall QC is right to say that the burden is not a heavy one, it must of course be context specific and be viewed in the light of all the evidence and all the circumstances. I consider the following factors to be significant in determining what is more likely to have occurred at this meeting. Inevitably I cannot refer to every matter that I have considered.

43. In order really to determine these issues as the husband seeks, I must be able to rely on OE’S evidence, together with any independent corroboration. Unfortunately overall I conclude that OE’S evidence is in many ways unreliable.

44. He produced no briefing note setting out the main facts or the principal issues he wanted to deal with, which is a little surprising and suggests someone not very committed to record-keeping or someone not placing much importance on the meeting.

45. He said the meetings were arranged to see a lawyer who would be a good fit for the husband, although he was not sure that he had any exposure to litigation at that time. It seems from the chronology that the overall picture that emerges is this was all part of long-term planning by the husband for possible future litigation in England. If there was something on the horizon though, at the particular time it seems to have been more related to the situation of the children than the divorce, which from the husband’s point of view was done and dusted nine years before. Those circumstances do not suggest that in initial meetings there would be detailed disclosure of confidential information as opposed to some general discussions about the approach of the lawyer and general discussions of jurisdiction.

46. OE did not disclose, in either his statement or in his oral evidence, that in fact he or the husband had seen HFC on 21 October and, more importantly, that the husband had signed a retainer letter with HFC on 23 November, a week before the meetings. As the husband’s representative for these purposes in London, it is inconceivable that OE was not aware of this and indeed more likely than not that he had made the recommendation to the husband to instruct HFC following the meeting they had had on 17 November. Although Mr Marshall QC says that OE could still have been looking for a better fitting lawyer than HFC, I have to say I consider that improbable. If he was, why not say so in his statement, that he retained them for the interim whilst he continued the search? Given it is now known that there were two meetings with HFC, including a second one with the husband’s Russian lawyer, I am not prepared to accept this explanation. I am satisfied that the husband selected HFC because he thought they were the best fit. Indeed he remains with them now, over two years after his initial meeting.

47. That fact inevitably affects the analysis of the later meetings. Perhaps they were arranged in advance of 23 November, I have no evidence on when they were booked, and perhaps OE went through with them just to double check his selection of HFC. I consider it more likely than not though that by this stage there was also an element of ejecting those solicitors out of the pool of lawyers who the wife might consult.

[Yeah, that’s my view too….]

48. Turning to some of the evidence about the meeting itself. OE said in his statement at paragraph 5 that his earlier meetings overran, that is his earlier meetings with the firms Mischon de Reya and Stewarts Law. This was not his account in evidence, which put the Stewarts meeting finishing at 1.30 to 2 pm. He dealt with his arrival in both his statements and in neither did he say anything about a gap between the solicitors’ meetings.

49. I thought his account of his movements that day seemed to be made up on the spur of the moment, in particular his trip to the hairdressers after his meeting with Stewarts in Fetter Lane and before his attendance at Sears Tooth. That seemed to me to arise from his realisation that in his evidence he had created a window of time that was inconsistent with his earlier account. Why he would call Sears Tooth to say that he was running late is hard to fathom when on his own account he was not. The haircut story seemed to mirror the new explanation he had given slightly earlier in his evidence of having a manicure to fill the gap between the end of his Sears Tooth meeting and the time on the attendance note.

50. I got the overall impression that despite saying on a number of occasions that he had a clear recollection of the meeting, that actually his recollection was not clear at all. The most obvious example was that he clearly and firmly, but erroneously, asserted that Natasha Slabas was present at the meeting. I think he had simply looked at the Sears Tooth website and identified someone he thought had attended and then embellished his account by making reference to that person having an Eastern European connection.

51. The what I have termed an attendance note at B19 could be capable of corroborating his account, in particular if I was satisfied it was both contemporaneous and accurate. The timing on it at C10 puts it at either 6.02 pm or 7.02 pm GMT. OE said this time may be when it was last amended, but it tells me nothing about when it was started, nor does it, or he, tell me what the amendments were to it. It could be as much some aide memoire, put together after all the meetings concluded with some points he wanted to relay to the husband, as anything else. Curiously the meeting with Raymond Tooth comes second in his note before the single entry for what he said arose from his prior meeting with Stewarts. If these were truly contemporaneous notes that seems odd. Given my general concerns about how reliable and accurate a historian OE is, I cannot even determine whether what he ascribes to Raymond Tooth is accurately ascribed. It could have come from any of the meetings, or indeed nowhere, as the presence of Ms Slabas did.

52. OE’s notes of the meeting are so short as to suggest almost nothing about the content. They do not identify who the other meetings were with, for instance. He said his notes of the meetings on 17 November were much more extensive.

53. Perhaps HFC were indeed selected then whilst OE and the other lawyer, TB, were both present. It would make sense that the selection was made with the input of the husband’s Russian lawyer present. That suggests that these later meetings were indeed subsidiary and what took place was, relatively speaking, unimportant.

54. Even if OE is right in what he ascribes to Mr Tooth, it gives no clear insight into what might have been discussed. Why would a bulletproof jurisdiction be of relevance to the husband? He had his divorce and was not contemplating further divorce jurisdiction. It might be of interest on the children, I suppose, in determining habitual residence and the ability to bring proceedings in England. What does the comment “no generous deed” tell me? It could relate to the wife and children living in England, it might relate to maintenance. But even if OE had said the husband had paid the wife large sums, how could that be confidential?

55. OE gave no evidential context to the comments and what information they related to, it was really speculation as to what they might have related to rather than anything concrete. They could have been phrases conjured from nothing. Given that on balance I do not feel able to rely on the attribution of those comments, it may not matter too much what they actually mean, but it all adds into a very unclear and unreliable picture.

56. OE’S account of the length of the meeting and whether it commenced on time has varied quite significantly from the correspondence to his statements. Whilst this may be relatively minor, in itself it supports a poor not a good recollection. OE is clearly not a person who keeps accurate records, or indeed very many records at all perhaps.

57. His assertion about Raymond Tooth’s strategic notes with a strategic map seems inconsistent with what is said about Raymond Tooth. It is also different to what he said in his statement where he described Raymond Tooth writing well-structured notes. In the letter of 9 March it was said that OE saw Ms Slabas taking notes in the meeting. In his statement he said, “I can’t be sure she took any notes although my recollection is she did”.

58. Neither Kelly Edwards nor Laura Broomhall recall the meeting and the evidence is it was usually one of those who was present.

59. The £700 per hour charging rate figure comes from nowhere. The other solicitors say he has never charged this or said he would. Mr Marshall QC said it might be the figure including VAT. I am not sure whether the husband would be eligible to pay VAT or not where he is resident.

60. Sears Tooth have retained no records at all. There is no copy identification, which OE did not mention providing in his first statement but referred to in evidence: “I may have given him a passport copy of the client”. There is no dictated or handwritten file notes, no bill. Mr Tooth described the process of making up a file and how it would be retained.

61. Much of what OE said about Mr Tooth’s attitude could derive simply from his public image. It is not consistent with what Mr Tooth or his assistants say about his attitude with clients, it is more caricature that a person who has not known him as a client might have.

62. OE says he has no notes or feedback or summary in written form about the firms which he provided to the husband. He said he had a telephone call with him. He said, “I did a verbal report, I read them out to him”, but he did not say why he had recommended HFC.

63. He also said at one point that he had the other appointments confirmed in his laptop, but he had not confirmed the one with Sears Tooth. I am not sure whether he was simply saying that he had not got email confirmation in that respect.

64. The evidence overall of Mr Tooth of the requirement for passport identification to be brought, of how files are made up with the handwritten and dictated notes and their storage is consistent with a brief and non-specific meeting at which little, probably not even the name of the principal, was disclosed. I very much doubt that the husband would want detailed disclosure of highly confidential information to a significant number of firms, in particular I doubt it would be authorised after he had retained his first choice firm. I very much doubt that OE was given free rein to disclose the husband’s highly sensitive financial and other dealings. Anything he was authorised to disclose would have been carefully vetted, particularly at this stage. The absence of a briefing note suggests to me that not much would have been disclosed.

65. The clear impression of strategising and manoeuvring emerges from the judgment of Mr Justice Peter Jackson, all designed to further the husband’s goals, often involving the deception of the wife and designed to strengthen the husband’s position in any future litigation and weaken the wife’s. The timing of the meetings with the six firms fits in with the later manoeuvring over the children being put in touch with lawyers early in 2016. The way the situation with the children was created suggests very careful planning and manoeuvring by the husband. The failure to be frank about the meetings with HFC mirrors the incomplete disclosure about the involvement with Dawson Cornwall in the children’s case.

66. I am led to conclude that the meetings with at least some of the six firms, probably all of those seen on 30 November; given the first three seen on the 17th or earlier clearly involved more serious consideration by OE and the Russian lawyer, the later ones were at least in part motivated not by a genuine consultation but a conflicting exercise.

67. I cannot conclude the whole process was. Indeed if it had been there are some other obvious names that would have been seen. Indeed, even by 30 November there may still have been some lingering or vestigial genuine reason for completing the survey of firms, but by 3 o’clock on 30 November 2017 I am satisfied that OE was not seriously considering instructing Sears Tooth and this undoubtedly influenced the nature of the meeting and the information given.

68. It is probably self-evident by now that I thought that OE was rather blasé about the need for accuracy in matters evidential. He seemed very relaxed about the fact that he had got it wrong about Natasha Slabas. He later said in his evidence he did not think it mattered much about being accurate. He said he was unaware of the need to be 100 per cent careful. I think that attitude generally infects his evidence. He is rather casual about details and seemed quite prepared to elaborate to suit the point he is trying to sell. I do not believe I can rely on the accuracy of his account.

69. Of course there are aspects of it which are true. There are aspects which are patently false. The latter does not mean the rest is false. The former does not mean the rest is true. He has of course a potential motive to exaggerate or fabricate because part of the purpose in seeing Sears Tooth may have been to conflict them out. In any event, his boss certainly did not want Sears Tooth acting and so as his head of his family office he has an obvious motive to do his boss’ bidding. The failure to disclose the earlier instruction of HFC and their retention simply adds to the picture of OE as being a witness who cannot be relied upon. To maintain he saw Sears Tooth with a genuine intent to consider instructions when he knew HFC had been retained and not to disclose that shows a lamentable attitude to the affirmation that he took to tell the truth, the whole truth and nothing but the truth. In saying what I have about OE I do not believe it was done with anything other than the Husband’s approval – this was not an agent going rogue but an agent doing his master’s bidding.

70. Overall Mr Tooth I conclude was the better witness. He conceded points which supported the meeting likely having taken place. He remains adamant he cannot recall anything about the meeting, which would be consistent with a short but uninformative meeting. I find it hard to ascertain why Mr Tooth would say he could not recall it if he could and why he would not have declined to act. As a solicitor with 50 years’ practice and with the reputation he has, what is one client more or less, why risk your reputation, indeed potentially more, if he was found to have misled the Court over the matter?

71. On the balance of probabilities, I do not find that any confidential material was imparted to Raymond Tooth or that any privileged information or advice arises. On balance I do not accept that the meeting was anything like that described by OE. I conclude that it was a very brief meeting which perhaps OE was attending to complete the job of going around the firms he had been instructed to with the parallel intention to conflict them. Whilst I cannot determine precisely, or even fairly closely, what was said and how the meeting developed, I conclude at most it may have been more in the nature of a brief and theoretical discussion, rather than the detailed, fact heavy, assets discussed, advice heavy meeting that OE seeks to portray. Mr Tooth described how some meetings were more general, about the law and how his position might depend on how the client put matters to him. It might of course have been far less than that, a perfunctory and very brief meeting which contained nothing of substance.

72. That being my conclusion on issues 2 and 3, I do not need to go on to consider issue 4, whether there is any risk of disclosure, nor do I need to consider my discretion in relation to whether an injunction should be granted or not. The application for an injunction is dismissed.

A bunch of stuff I’ve liked this year (part 2)



Music this time.

These aren’t in particular order, save for the last one which is my album of the year. Big shout out to Resident Music of Brighton, where I bought all this stuff (and about another 150 albums).


If you live in Brighton or travel to Brighton, stop off at Resident and have a browse. It’s an amazing record store and the staff are just the best. And they sell online too, so you don’t need to be Brighton-based to share the love.


(I’m not paid to plug them, I just love them.  Have been points over the last few years when music has really saved me, so they’ve made my life better.)

Here goes.


Nadine Shah – Holiday Destination.    She’s got a rich voice, throws ideas around,  writes really edgy songs and lays it all down over a really strong groove.


Jamie Lenman – Devolver –  this album starts off with very quiet and gentle vocals, but it turns into an absolute banger – driving tracks, more hooks than Ernest Hemingway’s tackle-box and the sort of album that makes your heart beat faster and your smile broader. Ace.


Baby Driver Original Soundtrack  –   I would have edited the hell out of the last third of this movie (even before the Kevin Spacey farago, he needs taking out of the last third), but I wouldn’t change a bar of the music. Anything that opens with Bellbottoms you know is going to be gangbusters, and indeed it is. Loads of songs where you think it’s going to be something you know really well and it turns out to be the source material that was sampled.  And Unsquare Dance is the song that used to make me jig about the front room when I was about five and I heard it on TV, and I’ve always loved it.


Royal Blood – How did we get so dark?

The first album was so good, it was always going to be difficult to follow (Algiers had the same issue this year), but I think Royal Blood pulled it off.  Dark, crunchy, pounding, rocky. You just want to turn it up louder, louder, louder, till you run out of volume on the dial.


Ride – Weather Diaries


Who would have thought that the indie shoegazers would come back twenty years later with an album that sounds so fresh and modern and full of swagger?  It’s straight-out great.  It is like someone managed to make a whole album out of the brief moment in the best Cure songs where you feel that absolutely everything is going to be right with the world.


The National – Sleep Well Beast

This is like someone spooning up to you in the night, when you’re hovering between sleep and wakefulness and you think mmm, lovely. And then they whisper something terrible in your ear. Warm, but unsettling, if that makes sense. Great songs, as always from the National. A band that just never let you down.


Flo Morrissey and Matthew E White – Gentlewoman, Ruby Man


An album of cover songs wouldn’t normally be my bag. But these are a great set of songs, and the voices are just delicious, and blend perfectly together. It’s an insane version of Grease that feels like a sexy anthem. A very close thing to being my album of the year.


Courtney Barnett and Kurt Vile – Whole lotta sea lice


If the names alone don’t make you go, oh god I must hear that, then I assume that’s because you don’t know either of them. And you should solve that, right now. Two great artists, coming together and delivering an album packed with luscious songs and ideas. Also a great Belly cover, which left me unable to breathe for a moment when I first heard it.


Kasabian  – For Crying out loud


Historically the problem with Kasabian has been that (other than West Ryder Pauper Lunatic Asylum) their albums divide too starkly into Bangers and Fillers. The Bangers have always been exceptional, but the Fillers are meh.  This album solves that by dividing into Uber Bangers and Bangers.  Job done.  Also, get the 2 CD version, because it has the live show from King Power Stadium, just after Leicester won the Premier League, and it is just an amazing gig where the band are clearly having the best time ever, and it plays all of their best songs with even more force and oomph than usual.


Harry Styles –  Harry Styles

I wasn’t really expecting the pretty one from a boy band to do one of my favourite records this year, but he has. It would have been really easy for him to make a pop record, or a George Michael record, but this is altogether more interesting. It isn’t perfect, it sometimes tries things that don’t come off, but I like it because it is flawed in interesting ways, it fails in interesting ways. To quote Samuel Beckett “Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.”  – this album gives me a lot of hope for the future career – because it is a great listen now, but you can see him grow and the potential to improve – by trying something hard rather than just pushing out something easy. Really good songs on here, and as a massive Nilsson fan, I really enjoyed what he was doing with his voice. This was hard to budge from my regular playlist, and I’ve kept going back to it throughout the year. A real surprise

Idles-  Brutalism


Angry, dark, punchy, but often laugh out loud funny too.  You’ve just got to love a band who deliver a song that is working around comparing the listener/subject of the song unfavourably to imagined accomplishments of Mary Berry  and some imaginary posh cousin, Tarquin- “Why don’t you get a medal? Even Tarquin’s got a medal. Mary Berry’s got a medal – so why don’t you get a medal?”


And my album of the year


The Horrors – V


They are always great, and they never stand still – the sound always changes, moves on. This time the feel I got from it is exhuberant dance music for Goths.  There’s a dash of Human League, New Order, Depeche Mode, Cure, but pushed through a very modern filter.  Something to Remember me by is the song of the year – it is just a complete joy. Loved it.

A bunch of stuff I’ve liked this year (Part 1)


It’s a bit early for a grand review of the year, but as Resident Music are doing their albums of the year annual at the end of this week, and I want to pick my own before they launch that, this post is going to be November, not December.


Not all of you will like all of the stuff here – maybe you’ll know some of it and we can bond, maybe some of it will be unfamiliar and intrigue you and maybe some of it you’ll think yuck, hell no. It’s okay, we’re still cool.


So music will be part 2, because I am stalling for time.

Here’s a bunch of stuff that I really enjoyed this year, and my quick thoughts as to why.




I went to see a LOT of films this year, because I signed up to one of of those all-you-can-eat movie cards. Money well spent. It meant that I went to see stuff I might not otherwise have gotten around to.

I rated Detroit as my favourite film this year – Kathryn Bigelow (who just flat-out doesn’t make bad films – she doesn’t make ENOUGH films, but everything she does is great) telling the story of the Detroit race riots, through the prism of the experience of a handful of people at the Algiers Hotel. It begins very cinematically with broad sweeps over what’s happening in the City, before zeroing in on a select group of characters and then it is almost just theatrical. It is a small cast, in essentially two rooms and a corridor, and it is intense and claustrophobic and troubling and brooding and you feel bruised but better for the experience.

I was very intrigued by Death of Stalin – and oddly, the thing that nearly put me off seeing it – Jason Isaacs playing a Russian general with a broad Yorkshire dialect actually was one of my favourite things when I saw it. There’s dark comedy and there’s comedy where you’re in the middle of laughing when someone on screen gets casually murdered and makes you feel appalled for laughing – but then you’re laughing again a minute later and appalled all over again. It won’t be for everyone, but again Armando Ianucci is someone who for me doesn’t ever do a lot wrong, and this is in my opinion his best work  (I feel guilty for even typing that, because of Alan Partridge and the Day Today, but I’ll stand by it).

In terms of big dumb action movies, it was a refreshing delight to see DC remember that superheroes are allowed to be fun in Wonder Woman and I’m delighted to see Gal Gadot (who I majorly crushed on when she had her breakout role in Fast and Furious.. five, I think? ) getting the acclaim that she deserves. Logan was everything that I hoped it might be – pensive and bloody and sparse and with great chemistry between the three leads – the bad guys were meh, but that’s become a major problem for superhero movies – it always is. How do you make a villain (a) threatening to protagonists with superpowers, (b) credible as someone who goes out to pick a fight with superpowered adversaries and (c) with some actual motivation?

That remains a problem, pretty much the only problem with Thor Ragnarok, which sets out to be a big dumb and funny action movie and delivers on that big time. Cate Blanchett (hooray for her first genuine mention on the blog rather than being the carte blanche gag) does her best with Hela as the villain, but the character is underwritten and you never actually feel like she might triumph.  Maybe a superhero movie needs to be brave and have the Empire Strikes Back style downbeat ending.  Avengers 2 hinted at flirting with that, when you felt sure that Hawkeye was going to die in the final act, but he was always the most disposable of the Avengers anyway, and they duck out of it.  Anyway, Thor is pacey, genuinely funny, everyone seems to be having a blast and the director gives himself all the best lines in his cameo as a remarkably chilled-out gladiator made out of rock.




I’ve been getting into podcasts a lot this year. I listen to Stuff you Should Know pretty relentlessly – Josh and Chuck have really comforting voices to listen to and are very welcoming – they just pick a topic and tell you lots and lots about it. I love learning new stuff, and even when the topic sounds like something that isn’t going to grab me, I’m genuinely into it just minutes in. It’s also very eclectic – I’ve learned about sunscreen, restaurant hygiene and inspections, spy camp training in World War II, Amelia Earheart, how headhunters make shrunken heads, truth serums, handwriting analysis, and so much more.

I’m currently jonesing for more My Dad Wrote a Porno, because I’ve finished series 3 and there isn’t new content until Christmas. If you don’t know it, the premise is simple. James’ dad, who is in his late 60s, has written and self-published a series of erotic novels, under the magnificent psuedonym Rocky Flintstone. They tell the story of Belinda Blumenthal, who works in the pots and pans industry, which turns out to be a hotbed of sexual shenanigans and bizarre business deals. James reads a chapter of the book aloud each week, interrupted by his two friends Alice and Jamie, who interject every time the text says something baffling, ridiculous, appalling or just downright impossible – which is every other sentence.  Rocky is either the worst writer in existence, or some form of unusual genius, and you often change your mind as to which mid-sentence.  The book is filth, and you will obsessively check that your headphones haven’t come out whilst you’re listening to it, but it is not and has never been and will never be, erotic.  It is, however, screamingly funny.  People often talk about things being laugh out loud funny, but Dad Wrote a Porno has made me regularly laugh until I cried, and I have to quite often pause because I’m laughing too much to go on. The characters are all utterly deranged. It’s ace.


I also like And that’s Why we Drink – which is two friends, Christine and Em, who live in LA. Christine tells a murder story each week, and Em tells a ghost story usually around a haunted house. They make you feel like you not only want to be friends with them, but that you sort of are.




I just read Matthew Weiner’s  “Heather, the totality” and that’s probably going to be my favourite piece of fiction of the year.  Matthew Weiner is the man who created Mad Men.  The book is slim, clocking in at only 135 pages, but I wouldn’t have wanted it to be any longer – and it is one for re-reading, more than once. So it’s still value for money.  It is a story about an ostensibly perfect family intersecting with a very damaged young man. The prose style is journalistic – stripped back, clean, sharp. Almost if you think Hemingway is too flowery sometimes, this is a response.  With that in mind, a single paragraph of the book can cover a single moment, or a period of change covering months or years.

The tension in the book is almost unbearable as you get closer and closer to the end (which is why I said I was content that it wasn’t longer).

Here’s a one sentence taste

“Having Bobby did little to alter his Mother’s belief that heroin was the best thing in her life”



I also really enjoyed J T LeRoy’s Sarah – a hallucinatory story about a girl who lives in a trailer at a truck stop and who wants to become a Lot Lizard, a hooker who entertains truckers principally to spite her mother. You feel like the world is real and that you are in it from page one, and though there’s some grimness it is laced with invention and humour and detail and a skewed look at the world. It is full of surprises, just like the lead character (and indeed the author, who has her own interesting backstory)

Becky Chambers The Long Way to a Small Angry Planet was beautiful sci-fi, not hard sci-fi in terms of the science, but lovely world-building, characters that you want to spend time with and lots and lots of heart. I wish THIS book had been a thousand pages longer. I never wanted to leave the world.

Non-fiction the one that has stayed with me is Svetlana Alexievich’s Chernobyl Prayer – a documentary collection of essays from people who came into the Chernobyl story, from firefighters, soldiers, scientists, politicians and widows, a lot of widows. It opened my eyes not just to the tragedy but how a completely different approach and mindset about nuclear power and a country’s own mindset of showing that we are not afraid caused far more loss of life than was necessary.  Not a cheery read, but still an inspirational one.





This year has just been dominated by one creative partnership – Tom King (writing) and Mitch Gerads (art).  Their main book is Batman, which has had a great run of writers, Grant Morrison and Scott Synder, and that would be a tough pair of writers for anyone to follow. Tom King hasn’t just followed them, he’s taken writing Batman to a whole new level. He’s hitting the characters perfectly, making them think and sound and react like people with real weight and showing sides of them that we haven’t encountered before but that are in keeping with everything we knew about them whilst still surprising us. His dialogue is snappy and crunchy, and utterly quotable, and his plots are interesting and unpredictable and pacey. And the best thing is that he just keeps getting better.


When Batman reminds Catwoman of their first encounter, when she stole a diamond and jumped off a rooftop, and he recovered the diamond but let her go, that’s a lovely callback to history. But then Tom King has Batman say something extraordinary. He kept the diamond. He never returned it. He knew that he would need it. He always knew he’d need it some day.



And I don’t need to tell you what a great artist Mitch is. You can see it.

The next storyline was the War of Jokes and Riddles, flashing back to Batman’s early days, when the Joker and Riddler went to war with one another, roping in all the other villains of Gotham to pick a side. Batman wants to stop the loss of innocent life, but the way he goes about this is intriguing, shocking and develops the character in ways you couldn’t predict. The arc also uses one of the gag-villains of all gag-villains, Kite-Man, and makes him not only human and tragic, but someone that you want to actually cheer for.  Kite-Man, hell yeah.


Joker is more terrifying than he’s ever been in this arc – he has a horrible stillness about him – he’s lost his sense of humour and that makes him much more frightening.  He’s saying this to a room full of mobsters, by the way…




And whilst the Riddler often comes off like the Cyberman to the Joker’s Dalek (you know, he’s supposed to be menacing and dangerous but he often ends up being badly written and a joke and clearly inferior to the number one adversary) in this arc, he’s powerful and whip-smart and manipulative.

It’s a fantastic story.  Is it the best Batman story since Hush? Absolutely.  Is it maybe better than Hush? I think it is. Time will tell.


And in case that isn’t enough, the same creative team produce what’s either the second best comic series of the year or the best – Mister Miracle.  Mister Miracle isn’t a character that’s ever really grabbed me –  Scott Free is an escapologist, from another world.  The hook is that two powerful beings – the Highfather (sort of God) and Darkseid (sort of the Devil but worse) have fought for centuries – an uneasy peace is brokered when each swaps their son as a hostage to honour the truce.  Darkseid’s son Orion goes to live with the Highfather, and The Highfather’s son Scott goes to live with Darkseid where he is brutalised and mistreated.  What’s more powerful, nature or nurture?  That’s the old Jack Kirby take on it.

The King/Gerads take on it is to treat Scott like a person. What’s the impact on him of a childhood like that? Of an adulthood of fighting wars that you didn’t start and don’t understand? What’s the human cost to him of his experiences.  It’s a dark series, have no doubt about that, but it makes you connect with Scott in a way that I’ve never done before, and you just can’t take your eyes off the page and as soon as you finish an issue you are craving the next one.  They are half-way through an 8 issue run on Mister Miracle at the moment, and we’ll have to judge it when we see the full story (but the Batman arcs have left us in no doubt that King can finish a story – he’s not just setting up a fascinating premise and then running out of steam – he delivers on the premise.)


So in terms of art and creativity this year, I’d say that the best piece of art I’ve enjoyed this year has definitely been written by Tom King and drawn by Mitch Gerads. Whether it is Batman or Mister Miracle, I don’t yet know. We are very blessed to have both.

Parents can consent to restriction of liberty for children under 18, Court of Appeal rules

This appeal overturns Keehan J’s decision that whilst a parent could consent to a foster care arrangement that involves a restriction of liberty for a child under 16 (which thus means that it does not require either Secure Accommodation or court authorisation), they cannot do so for a child aged 16-17 and 363 days.

Re D (A child) 2017

The Court of Appeal considered things very carefully and in huge detail. I don’t have time for the detailed analysis that the case merits, but it is an important decision, so people need to know it. The Court of Appeal felt, looking at things closely, that there was no magic in the age 16 when dealing with young people who lack capacity.

84.This has an important corollary. Given that there is no longer any ‘magic’ in the age of 16, given the principle that ‘Gillick capacity’ is ‘child-specific’, the reality is that, in any particular context, one child may have ‘Gillick capacity’ at the age of 15, while another may not have acquired ‘Gillick capacity’ at the age of 16 and another may not have acquired ‘Gillick capacity’ even by the time he or she reaches the age of 18: cf, In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11, pages 24, 26.

128.In my judgment, in the context with which we are here concerned (see paragraphs 84-85 above), parental responsibility is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks ‘Gillick capacity’.

Consider a dentist, who is deciding whether to treat someone who is not an adult. If a 7 year old says “I don’t want you to take my teeth out” the dentist will of course look to the parent to say yes or no, and won’t take the child’s views as being final. If a 15 year old says that, the dentist may try to encourage and persuade, but can’t really just operate against the 15 year old’s will, and nor can they just take parental consent. The 16 year old with capacity has autonomy over their own body and mouth. BUT if the parents come with a 16 year old and explain that as a result of special needs, the young person lacks capacity, the dentist would probably be able to take the parental consent as being valid. The parents are exercising parental responsibility for a young person who does not have Gillick competence to make their own decisions (even though they are of an age where most young people would be)

I’m not sure that I agree with this conclusion, and I feel that it has some issues with Lord Kerr’s formulation in Cheshire West.

“77 The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

78 All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.

79 Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”

And later

157.The ECHR enshrines the rights of the citizen, but its principal purpose and function is the protection of rights by engaging the State. The Convention is not an academic exercise. Key questions in every case where the Convention is invoked are: on the facts, is there an obligation for the State to become involved? Are the domestic laws and procedures apt to engage the State when necessary, and to protect the citizen’s rights? But these are questions to be asked and answered of the domestic law, for our purposes the common law.

158.It should be no surprise that the common law has provided the answer here. Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is “confinement” should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79. A three year-old child must be restrained for her own safety if walking near a busy road, or playing near a bonfire. This restraint would be unlawful if exercised over an adult. But it is lawful if exercised by any adult looking after the child. In my view, there is no need for an elaborate analysis of delegated parental responsibility to explain this. In such circumstances, restraint to keep the child safe lawfully could (and normally should) be exercised by any nearby adult. The true analysis is that explained by Lord Kerr. For all present purposes, “confinement” means not simply “confining” a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. In most of the myriad instances in life where children are restrained in one way or another – by being compelled unwillingly to go to school, go to bed at a given time and so forth – there can be no question of their being “confined” so as to fulfil the first limb of the test in Storck.

159.Where there is confinement in the sense I have indicated, so that there may be a need for the State to engage to prevent possible abuse, the questions then become whether parental rights (and duties) can justify the confinement, and whether the State may have an obligation, to be discharged by local authorities and perhaps by the courts, to intervene. Excessively cautious or strict parenting, leading, let us say, to a fourteen year-old who is prevented from ever leaving the house save to be transported to and from school by a parent, might be a case of “confinement”. Other more extreme examples clearly would do so. Then the issue of whether the confinement is justified may arise. It will be evident that such cases are highly fact-specific and that the State will accord great flexibility to parents in caring for their children. That flexibility must reflect the facts, including the “discretion” of the child.

It rather seems to me that the nuts and bolts of Cheshire West are that one compares whether the restrictions on a child are part and parcel of family life or above and beyond that, not by comparing X child with one of similar needs and circumstances but with a child of a similar age. And that means that it would NOT be reasonable for a foster parent to lock the bedroom door of a 17 year old or restrain them if they tried to leave the home, and it doesn’t become reasonable just because X happens to lack capacity and needs those restrictions to keep them safe.

The Court of Appeal have clearly spent hours and hours on this, and my gut feeling is just my gut feeling, so it would be utterly wrong of me to try to argue that the Court of Appeal are wrong here.

Re D is the law now. Re D is.

Re D is.

Re D is

Re D is

(And if you aren’t reading Tom King and Mitch Gerard’s “Mister Miracle”, can I urge you to do that in the strongest possible terms? It is a mark of how great they currently are that the only work to compare to it this year is the same creative team’s run on Batman. )

The Court of Appeal stress that if a Local Authority are relying on parental consent to authorise a restrictive regime in foster care, they can’t simply rely on generic section 20 consent to authorise this.

149.Finally (paras 126-128), Keehan J rejected the local authority’s contention that the parents’ consent to D being accommodated pursuant to section 20 of the Children Act 1989 was a valid consent to D’s confinement at the residential unit. He disagreed with Mostyn J’s analysis in Re RK (Minor: Deprivation of Liberty) [2010] COPLR Con Vol 1047. Furthermore, he said (para 128):

“the “consent” is to the child being accommodated. It cannot be inferred that that consent means that those with parental responsibility have consented to whatever placement the local authority considers, from time to time, appropriate.”
150.I agree with Keehan J that the mere fact that a child is being accommodated by a local authority pursuant to section 20 does not, of itself, constitute a parental consent for Nielsen purposes to the particular confinement in question. In the first place it needs to be borne in mind that parental consent is not, in law, an essential pre-requisite to a local authority’s use of section 20: see Williams and another v Hackney London Borough Council [2017] EWCA Civ 26, [2017] 3 WLR 59. Moreover, even where there is such consent, there remains the powerful point made by Keehan J: to what precisely have the parents consented? That is a matter of fact to be decided in light of all the circumstances of the particular case. Here, as we have seen, Keehan J, found (see paragraph 9 above) that his parents had agreed to D’s being placed at Placement B just as he had earlier found (paragraph 107 above) that they had previously agreed to his being placed at Hospital B. I can see no basis for challenging either of those findings of fact.

(I’m not at all sure now of the status of Keehan J’s previous assertion that whilst parents can consent to restriction of liberty in foster care under s20, they can’t do so under ICOs because the threshold has been found to be crossed. That wasn’t in the case that was appealed, and it has always seemed to me a rather arbitrary distinction. I can’t see that the Court of Appeal look at this, but it is a long judgment, I may have missed it.)

Re D is.