RSS Feed

Tag Archives: allegations

Private law, infinite appeals and IT naughtiness

The case of Re N (Children) 2015, http://www.bailii.org/ew/cases/EWFC/OJ/2015/B98.html involves a private law case with 3 children, aged 11, 9 and 6.   Her Honour Judge Atkinson had to deal with a novel and delicate point of law on an appeal.

The children all live with their mother, and the dispute has been about the time that they spend (or do not spend) with their father.

In this case, the mother made a series of very serious allegations against the father, of physical abuse. The father faced criminal trial for these and was acquitted.  the mother then sought findings against him in the family court proceedings.  That was complicated by the last minute addition of a rape allegation.

In any event, the District Judge who heard the case dismissed all but one of the allegations, which he found was proved in part. The finding that was made would not have been a barrier to contact, and really contact should have resumed.

However, mother then appealed that decision, and the appeal was unsuccessful.

She then made a subsequent appeal, and it is that subsquent appeal that gives the case its novelty.  I am not naming the DJ here – it is in the linked judgment if people want to see it, but I took a call that the interest in the case is in the legal issue rather than any naming and shaming of the DJ himself.

 

  1. On 17th March 2015 District Judge B was removed from judicial office following an investigation into an allegation that he had viewed pornographic material on judicial IT equipment in his office. The material did not include images of children or any other illegal content. However, this was considered to be an inexcusable misuse of his judicial IT account and “wholly unacceptable conduct for a judicial office holder”.
  2. On 18th March, together with an enquiry as to the progress of their application for an oral hearing, solicitors acting for the mother wrote to the court lodging a fresh ground of appeal based on the fact of DJ B’s dismissal and its apparent association with sexual matters. Ground 10 argued his lack of judgment, as demonstrated by his dismissal, and argued that the pornography added a sexual element to that lack of judgment directly relevant to the issues that he had tried in this case.

 

The case got still more complicated, because at the appeal, mother sought to withdraw the appeal – not because she accepted DJ B’s findings but because she had realised that there was a finite pot of money for her legal representation and if she went ahead with the appeal there would be little or none left for the remainder of the proceedings.   (Grounds 1-9 here were the ones that had previously been rejected in the previous appeal, ground 10 was the “as the Judge has been sacked for viewing pornography, his judgment is questionable and he was not someone who ought to have been dealing with sexual allegations” angle)

 

  1. So it was that on 11th June 2015, 6 months on from the decision made by DJ B that there was no evidential basis for the assertion that this father has been the perpetrator of violence or sexual abuse against the mother or violence against the children, the mother’s appeal was listed before me to hear. On the day before the hearing the mother’s representatives contacted the court and the father’s representatives stating that she intended to withdraw her application for permission. They asked for the case to be vacated and directions made to enable the matter to proceed as directed by DJ B. The father’s team, shocked by the sudden turn of events refused to agree the vacation of the hearing and the parties nevertheless appeared before me.
  2. I note that the mother does not retract these allegations. Nor does she state that she is accepting of the findings made. Her main motivation in withdrawing from the appeal is cost – not that she will be saddled with a bill of costs but rather, she risks not having enough left in her publicly funded pot to continue to be represented after the appeal has been concluded. A secondary consideration was, it would seem, the “welfare of the children” and the impact upon them of this continuing litigation. Unsurprisingly, the father expressed his concern that if given simple permission to withdraw her appeal then these allegations would almost certainly surface to be litigated again in some form or other.
  3. Accordingly, although I have decided to give permission for the mother to withdraw her application for an oral hearing in relation to Grounds 1-9, I have decided to do so only after I have made a decision on Ground 10 effectively as I would have done on the papers. By this means there will have been a merits based decision recorded on each of the Grounds.

 

 

That, I think, was a good call. It would otherwise have always been hanging over the case.  In case anybody else is envisaging an appeal on similar grounds to Ground 10, this might pour some cold water on it

 

 

  1. Ground 10
  2. I turn now to the additional Ground which reads as follows: “the decision of the DJ in this matter related to various matters of a sexual nature…

    it demonstrates the poor exercise of Judgment in relation to matters of a sexual nature…it demonstrates poor exercise of judgment more generally…justice has to be seen to be done and the public would have no confidence in this DJ dealing with a matter of a sexual nature”

  3. The skeleton argument develops two arguments between paragraphs 88 and 93:

    a. The removal of the District Judge from office demonstrates that he had conducted himself in a manner inconsistent with the high standards of judicial office expected of the judiciary and shows a lack of judgment which is undermining of his decision making generally;

    b. The sexual nature of the behaviour leading to dismissal demonstrates that his judgment in “matters of a sexual nature has been found to be impaired” and the public cannot be expected to have confidence in his decision making as a result.

  4. I give permission to appeal only if I consider that there is a real prospect of success or there is another compelling reason why the appeal should be heard. To succeed on the substantive appeal the mother will need to show that the DJ was wrong or that the decision is unjust by reason of some other serious procedural or other irregularity in the proceedings.
  5. I have now read all of the papers lodged in what was to be an oral application for permission. I have not heard oral argument and so the decision which follows is effectively made on the papers but on a considerable body of paper. I am quite satisfied that the appeal on Ground 10 has no reasonable prospect of success and indeed I consider it to be without merit. I will explain why.
  6. The lack of judgment arguably demonstrated by the District Judge through misconduct in his office does not necessarily infect all areas in which he has to exercise Judgment. District Judge B was dismissed because of inappropriate use of judicial IT. It does not follow that he has thereby demonstrated himself incapable of making a proper judicial decision. If it did it would mean all of his decisions would be null and void following his dismissal. That simply is not right.
  7. The argument does not become different or stronger simply because his misuse of judicial IT involved the watching of pornography. In the first place it is important to note that he was not dismissed for viewing pornography. In any event, the viewing of pornography does not of itself suggest that he would have disbelieved an allegation of rape. It does not suggest that his approach to the sexual element in this case would be in any way skewed or biased. Had he been viewing such material in the privacy of his own home that would not have rendered him unable to make a determination in the case.
  8. The best way to determine whether District Judge B carried out a proper judicial exercise of discretion is by examining the detail of his Judgment. I have done just that and the transcript reveals a Judgment that is in my assessment beyond complaint. It contains all necessary directions on the law. It gives full and detailed reasons as to why he found the evidence of the mother lacking and why she failed to establish her case to the appropriate standard. As I have already rehearsed, the mother has been unable on the papers (in spite of the numerous and voluminous skeleton arguments in support of her appeal) to establish any basis for criticism.
  9. Accordingly, I find there is no basis for the granting of permission in relation to Ground 10.

 

 

Where you might, I suppose, have stronger grounds for appeal is for example if the decision-maker in an Employment case where the allegation against the employee was illicit use of IT for this purpose and the decision-maker had found in favour of the employee  (where you’d be wondering whether the decision was a ‘kindred spirit’ / ‘there but for the grace of God’ scenario)

 

[It does occur to me that if you are a Judge doing nothing but private law conflicts, where you are just hearing people say “no” all the time, one can perhaps see why DJ B wanted to just listen to people saying “yes yes yes oh yes” once in a while]

 

There’s a rather sad postscript to the judgment

  1. Finally, the mother at this hearing indicated her desire to move on from these matters and look forward. She expressed a willingness to be guided by professionals. I was encouraged by that until it became clear that the professionals that she has put her trust in are currently limited to Norfolk County Council, specifically the author of the s.37 report, who has advised against face to face contact between the children and their father with no clear plan as to how this situation can be improved.
  2. It was made clear at the hearing that the Guardian may not be of the same view. Disappointingly, it was far from clear that if that be the case this mother will be accepting of the Guardian’s advice. I felt it necessary to record this position as a post script to this Judgment.
  3. The court has determined that there is no evidential basis for the allegations made against the father by the mother. He has been through two Crown Court trials and one trial of the facts in the family court. Six months have been wasted on an unmeritorious appeal. Meanwhile these children have not seen their father now since November 2011. If the mother’s concern is for the welfare of her children as she has insisted then going forward she will have as her aim how she can best assist these children in re-establishing their relationship with their father

 

Advertisements

A tottering edifice built on inadequate foundations

The President’s decision in Re A (a child) 2015 in which the Court were asked to make a Care Order and Placement Order on a child who was not quite a year old, and refused to do so – even more significantly finding that the threshold criteria for making such orders were not made out, and castigating professionals for sloppy thinking and lack of rigour in their analysis of significant harm.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

 

(It comes pretty close to how I expected the Supreme Court to have dealt with threshold in the Re B case, but in the event, Baroness Hale was the only one who went near that)

 

Skipping ahead to the core analysis and decision on threshold and the applications:-

 

  1. I have gone through the local authority’s various concerns in some detail. As I have explained, many of the local authority’s allegations have been abandoned or cannot, for the reasons I have given, be substantiated. What is left? I can summarise it as follows:

    i) The father is immature and can sometimes act irresponsibly. As the history of his relationships with both the mother and J illustrate all too clearly, he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.

    ii) In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.

    iii) To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.

    iv) On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.

    As against that, I should record that on matters of fact I found the father to be a truthful and, for the most part, reliable historian.

  2. What does this amount to? Does it suffice to establish a real possibility that A will suffer significant harm? Even if it does, has the local authority established that A’s welfare requires that he be adopted, that “nothing else will do”?
  3. In my judgment, the answer to each of these latter two questions is No. My essential reasoning is two-fold. First, the many flaws in the local authority’s case to which I have already referred go a very long way to weakening its case. Taking account of all the evidence, and surveying the wide canvass, the real picture is very different from that which the local authority would have had me accept. Secondly, and having had the advantage of hearing the father and his mother give evidence, I cannot accept that the father presents the kind of risk to A which gives rise to a real possibility of A suffering significant harm, let alone the degree of risk which would have to be demonstrated to justify a plan for adoption. I say that taking full account of all the father’s faults but also factoring in the positives identified by SW1 and giving appropriate weight to the degree of commitment to A the father has demonstrated in contact.
  4. I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.

 

And later

I am very conscious that in coming to this conclusion I am departing from the views and recommendations not merely of the local authority (that is, of SW1, SW2 and TM) but also of A’s guardian, CG. But I have to have regard to a number of factors to which I have already draw attention:

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.

v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.

For all these reasons I am entitled, in my judgment, to come to a different conclusion. My duty is to come to my own decision having regard to all the evidence, and, for reasons which will by now be apparent, I am driven to conclusions other than those shared by the local authority and CG.

 

 

A lot to cover in this, but let’s start with the Children’s Guardian. This read to me like a Guardian who saw which way the wind was blowing and jumped off “HMS Adoption Full Speed Ahead” and onto the “good ship Naughty Local Authority”   (this is one of my pet hates – by all means criticise a Local Authority and challenge them on poor work, but don’t do it after the event)

We have a Guardian who was saying to the President that she was “appalled” by the social work assessments and evidence, but in her written evidence to the Court was supporting their conclusions and saying there wasn’t a need for any further assessments.

  1. On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step-grandfather. Nothing of this is to be found, however, in her initial case analysis. Having summarised what was reported by the local authority, she turned to the assessment of the father, which she described as “negative” and as highlighting various concerns, which she then enumerated. She said:

    “Taking into consideration all of the information contained within the documentation filed with the Court by the Local Authority I do not consider that any further assessment of either parent will assist in determining the long term plans for A.”

    Having expressed concerns about the local authority’s delay from 17 February 2014 to 16 September 2014 in issuing proceedings, she identified the need for any other potential kinship carers to be identified and assessed and recommended the making of an interim care order.

  2. The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments. The order made following the hearing recorded the guardian only as having “significant concerns regarding the delay” and as wishing matters to be concluded “swiftly”.

 

The Authority is named, but social workers are not. . I know that this vexes people, so given that it was the President who wrote the guidance saying social workers should be named AND that this judgment is a mullering, I’ll allow him to say in his own words why he decided that

 

  1. It will be noticed that I have, quite deliberately, not identified either SW1 or SW2 or TM, though their employer has, equally deliberately, been named. There is, in principle, every reason why public authorities and their employees should be named, not least when there have been failings as serious as those chronicled here. But in the case of local authorities there is a problem which has to be acknowledged.
  2. Ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court. The present case is a good example. Only SW1, SW2 and TM were exposed to the forensic process, although much of the responsibility for what I have had to catalogue undoubtedly lies with other, more senior, figures. Why, to take her as an example, should the hapless SW1 be exposed to public criticism and run the risk of being scapegoated when, as it might be thought, anonymous and unidentified senior management should never have put someone so inexperienced in charge of such a demanding case. And why should the social workers SW1, SW2 and TM be pilloried when the legal department, which reviewed and presumably passed the exceedingly unsatisfactory assessments, remains, like senior management, anonymous beneath the radar? It is Darlington Borough Council and its senior management that are to blame, not only SW1, SW2 and TM. It would be unjust to SW1, SW2 and TM to name and shame them when others are not similarly exposed.
  3. CG stands in a rather different position. I have expressed various criticisms of her: see paragraphs 39-40, 49 and 97 above. But it would be unfair and unjust to identify her if others are not.

Looking now at some of the detail, although much is fact specific, the President is really attacking a wider malaise, in that there was an approach here in relation to threshold which put in almost everything negative about the parents that one could think of, without proper consideration of these two issues:-

1. Could those things be proved? And proved properly, not merely relying on hearsay?

and

2. Even if proved, did they go to establishing that the child had suffered harm or was at risk of suffering harm?

To highlight one example, the father in the case had a conviction, when he was 17 for having sex with a girl who was 13. He accepted that, although said that he had not known her age at the time. The offence was nine years ago.

In her witness statement SW1 said much the same. I need not set it all out. Two passages suffice:

“[He] has failed to work openly and honestly with the Local Authority, as has his mother and her partner. [His] acceptance and understanding of the severity of the offence … continues to cause the Local Authority significant concern …

Despite several attempts of advising [him] that the Local Authority acknowledge that this offence was committed a significant period of time ago, he was unable to acknowledge the significance of this. A requires appropriate role models within his life whereby he is given the opportunity to learn socially acceptable behaviours. It appears [the father] fails to acknowledge the immoral nature of this offence, and as he did not receive a criminal conviction, feels this incident is not significant, nor is it in the interests of A for this to be explored further.”

 

That is the sort of thing that one does see in social work statements and assessments fairly often, and it is perhaps not a huge surprise that the social workers considered this something of a roadblock to their work with father and whether they could trust him.

The President puts them right, as falling foul of the second question above. They could prove it, yet, but did it MATTER? Was it harm?

  1. There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.
  2. The schedule of findings asserts (W1) that the father “minimises the significance of these events”. Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father’s trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society’s values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.
  3. It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.
  4. Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.

 

That is an illustration of the sort of thing that peppered the threshold, and the President really encapsulates the issue in this line here

 

9. It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

 

and then in paragraph 10

The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.

  1. Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.

12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.

What we don’t know, to be fair, is whether this mealy-mouthed threshold document which was a tottering edifice was as drafted by the Local Authority, or the composite document that ends up being produced as an ‘agreed threshold’  – I often see responses to threshold which purport to be an agreed threshold but the revised version is so watered down and wishy washy that it no longer meets the test.  “seemed”, “appeared”  “the child said X but father denies it”, are all the sorts of things that either end up being inserted in an “agreed” threshold to remove argument and dispute OR to be put in to the document in the first place with a view to the threshold not being controversial.

After the opening bit of a threshold document that tells you the child’s name and date of birth and parents, every other paragraph should be  sharply focussed on:-

This is an allegation that can be proved and if proved would demonstrate that the child had suffered significant harm, or is at risk of significant harm.

 

As the President points out, where the case becomes dominated by the fringe issues of whether a parent has insight, or is truthful, or is open and honest, or is working with professionals, one loses sight of the actual statutory test that we are working to.  These things may have some value  (though less than is believed) when deciding on the right orders ONCE threshold is crossed, but they have no probative weight in deciding WHETHER threshold is crossed.

 

I have noticed over the last fifteen years a real shift in litigation about care proceedings from scrapping over every single allegation and inch of threshold to a rush to get threshold accepted and resolved, ideally at the first hearing, and all of the litigation being about future disposal and care plan. The President is right – it is rigour in analysing threshold and whether it is met and how which enables the Court to properly decide whether the State should be intervening at all.

 

Going back to detail, there was substantial play made of the father’s membership of the English Defence League, and it gets crowbarred into the threshold document.

  1. In her statement SW1 returned to the same theme. I need set out only the key passages:

    “the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage …

    … it is commonly known that this barbaric protestor group promote ignorance and violence in respect of the muslim community … By all means, the assessing social worker supports equality, difference of opinion and that not all races and cultures agree with one another’s beliefs and views. What cannot be condoned however is expressing these beliefs through violence, irrational behaviour and inflicting physical and psychological pain against others due to their religion, the core beliefs and subfocus of the English Defence League. A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced. [The father] and J need to appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.”

  2. In the schedule of findings the allegation (paragraph 5) is that the father “has been a member of the English Defence League” and that the mother “has previously stated that he has been the target of serious threats to his person and home.”
  3. As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority’s case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning.
  4. If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements. Be that as it may, the local authority has in my judgment failed to establish that such threats were ever uttered with any serious intent, that, if they were, there remains any continuing risk to either the father or his family, or that the risk, if any, is such as to justify its concerns. It is, after all, noteworthy that there is no suggestion that there has been any actual attempt either to harm the father or to damage his home.

 

The President was also dismissive of the items in the threshold relating to the father drinking and smoking cannabis

  1. It is further said that the father “has a history of use of illegal drugs”, that “alcohol played a part in an incident on 3 December 2014”, that his mother “says that it [alcohol] affects his temper” and that he “failed to disclose that there was a police search of the property … where he was a tenant during which there was discovered 4 cannabis plants and 18 buds on 24 April 2014”.
  2. I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.

 

Okay, say the Local Authority – you’re going to strike out the sexual offence, the lack of insight, the lack of honesty, the alcohol and drug misuse – but we’d still rely on the domestic violence. Not so fast…

I accept, and find, that there have on occasions been episodes of domestic discord between the father, his mother and more particularly his step-father, that drink has played a significant part in this, that the police have on occasions been called out, and that there was a particularly physical confrontation with violence on 3 December 2013. I accept also that there was some lack of frankness on the part of both the father and his mother in relation to the accounts they gave the local authority of that incident. This history, however, needs to be kept in perspective. Neither the number nor the frequency nor the gravity of these incidents is such, in my judgment, as to cause any major concern. Moreover, it is clear to me, having heard their evidence and watched them carefully throughout the hearing, that, despite their differences and notwithstanding these incidents, the relationship between the father and his mother is, overall, positive and mutually supportive.

 

This is probably the most significant thing about this case – it wasn’t a Local Authority who felt they were on thin ice with dad and were scratching around for threshold – they instead probably legitimately felt that there were a raft of concerns in a number of areas and that the threshold was crossed quite comfortably. As the President showed, if you dissect each and every part of the foundations with that two fold approach – (i)can you prove it? and (ii) if you can prove it, how does it establish harm or likelihood of harm, all of those foundations crumble away leaving the Local Authority with nothing.

This case would have very little to say if it were a case where the LA were “trying it on” but as it relates to a body of thinking where the threshold can be made up of ‘concerns’ or ‘worries’ or ‘issues’ rather than allegations that (a) can be proved and (b) can be shown have a direct bearing on harm or likelihood of harm to the child, it has much broader implications.

If you are a lawyer reading this case in thorough detail, I’d be surprised if you weren’t picking up a red pen and looking through some recent threshold documents.

Where does that leave a parent who has conceded the threshold as being met (given that the PLO and the case management orders press the parties to resolve this issue at the very first hearing)? Well, you’d probably argue that the President’s clarification and sharper focus might warrant looking at the threshold again. I doubt whether this alone would justify an appeal of orders already made, but it might involve some recalibration of threshold documents in cases yet to be concluded.

“All right then, I WILL give evidence

 

A discussion of the very tricky problem in Re R (A Child) 2012. It never ceases to amaze me how many appeals are not so much about difficult points of law so much as truly peculiar things happening in a Court room and a Judge trying and failing to get an impossible situation right. This is one of those.

 

 

This Court of Appeal decision relates to a very difficult position a Recorder found themselves in, towards the end of a finding of fact hearing in care proceedings.

 

You can find the case here:-

http://www.familylawweek.co.uk/site.aspx?i=ed111044

 

 

The father was facing very grave allegations of sexual abuse, and the two primary witnesses would be the child victim, who was 8, and it was ruled not appropriate for her to give evidence, and the mother, who had refused to give evidence and about whom there was expert evidence to the effect that it would be wrong to make her give evidence against her will.

 

The Recorder delivered judgment, and uttered this phrase, which must have made alternating hearts on the bench sink or soar, depending on the briefs they held

 

 

“One would normally expect me now to go on to say what my conclusions are in relation to the sexual abuse allegations. However I must deal with the issue of fair trial.”

 

I like to imagine at that point, that the pen belonging to the father’s advocate wobbled hopefully on the page, if only just slightly.  The words “Oh, hello!” may have passed, albeit silently, over their lips.

 

8. He then expressed his hesitation in proceeding on the conventional path by saying at paragraph 47:

“What causes me considerable difficulty is what is submitted in paragraphs 169 to 175 by Mr Jackson. The father has an absolute and fundamental right to a fair trial on the issue of sexual abuse. The allegations against him and the findings sought against him are extremely serious.  They depend solely on the assertions of an 8-year old child, who I rule cannot be cross-examined and, as I have been at pains to point out earlier in the judgment, the court is entitled to make findings based on such evidence but must exercise a great deal of care.”

9. He then came to his conclusion in paragraph 50:

“The fact is father has been hit with ‘a double whammy’.  Not one but two of the most important witnesses in this case are unavailable to him for cross-examination. In my judgment, that is unfair or at least creates the perception of unfairness in father’s eyes and probably in the eyes of an officious bystander.  Whatever the findings I have made of father’s presentations of witness, he is entitled nevertheless to a fair hearing.  In the circumstances I am persuaded that the father’s right to a fair trial on the issue of sexual abuse has been prejudiced and that it would be unfair to make the sexual abuse findings sought by the Local Authority. “

Paragraphs 1, 2A, 3 and 5 of the schedule, insofar as they relate to father, were accordingly to be deleted. 

 

 

The Court of Appeal were not terribly flattering about this:-

 

10. Now, with all due respect to the Recorder, I find that a bizarre piece of reasoning and a bizarre conclusion.

11. In these cases the opportunity of the accused parent to cross-examine the eight-year-old informant is effectively zero.  So the Recorder has effectively argued that, because the mother did not testify and thus the father had no opportunity to cross-examine her, that amounted to a breach of his Article 6 rights.

12. It seems to me that, on a proper view, the husband’s litigation case was not prejudiced but rather aided by the absence of the mother, whose evidence was discounted but whose evidence, had it been available, might have been a nail in his coffin.  So for my part, although it is not the issue before us, I think the judge was wrong to hold himself debarred from proceeding to rule on the local authority’s numbered paragraphs of the schedule by the absence of the mother’s evidence.

 

 

But this wasn’t actually the point of the Appeal, we move on

 

13. But I must move to the developments over the lunch hour.  Counsel for the local authority, who had the mother available, explained to her that the judge had announced that he was not going to make adverse findings because she had not testified.  Her reaction was “Very well I will go into the witness box“, and that was the application Miss Greenham advanced to the judge on the return of all at 2.00.  Obviously for the Recorder that was a totally unexpected and difficult situation, and it is always these totally unexpected and difficult situations that are the hardest for a Recorder to get right.

14. The judge decided, having heard argument, that he was not going to take the course that Ms Greenan invited and again he explained himself by reference to the father’s asserted rights as advocated by Mr Jackson.

15. Paragraph 56 is in these terms:

“Mr Jackson submits that if I reopen the evidence now, and hear from the mother on the issue of preoccupation and false memory and on all the other matters he wants to cross-examine her about and here evidence about [S], that I will not be coming to it with an open mind.  I can say until I am blue in the face that I will come to it with an open mind and I would like to think that I would come to it with an open mind but justice not only has to be done but has to be seen to be done and I well understand that Mr R [the father] would have no confidence in any decision I made after hearing fresh evidence because he would always be of the view that I made my views fairly clear and prejudged those issues. This would, in effect, compound his complaint that he has not been given a fair trial and it is for that reason that I agree with Mr Jackson that it would not be fair to father to re-open the issues upon which I have already ruled.”

16. The judge had not, effectively, ruled beyond saying that the fair trial argument precluded him from ruling, and here we see the fair trial argument being deployed equally effectively in the reverse direction.  Earlier it was advanced, “Absent mother; can be no fair trial“.  Then when mother appears it is said “Well, to admit her evidence would preclude a fair trial.”

 

 

I’m sure that you can read between the lines on this and see where the Court of Appeal are about to go…

 

I think, with great respect, that the judge in the heat of the moment reached the wrong conclusion.

17. The question of fairness is objective and not subjective to one of the parties.  It was all extremely unfortunate.  It should not have happened as it did, but once it had happened the judge really had no alternative but to labour further in this rather unpromising field.  I think he had already spent ten days and of course it was unattractive to all that time would have to be found maybe for another two days in order to complete the process.

18. But, as these appeals have demonstrated, there was effectively no other practical choice.  There was no other practical solution and accordingly I would allow the appeal and send the case back with a request to the Recorder to resume the trial process, keeping it within the tightest possible bounds, hearing the evidence of the mother and then in the light of submissions deciding what other evidence he was compelled to hear.  But Ms Greenan has said that she is confident that the re-opening of the case can be kept within tight bounds and it is important that it should be.

 

 

I have to say that I feel for the Recorder here, having delivered a judgment, a key witness then decides that not being content with the outcome, they would wish to give evidence.   It does seem to me that the Recorder may well have been positioned somewhere between K2 and one of those boozers visited by Ross Kemp in “Britain’s most violent pubs”    – or between a rock and a hard place, if you prefer.

 

Don’t hear the evidence of the mother and you get appealed by the LA / the mother.

 

Hear the evidence – after having concluded the trial and given a judgment that finds that the facts against father can’t be safely made out,  and the father is going to appeal you if you alter your findings.  If you don’t alter your findings, the LA and mother are probably going to say that you couldn’t have approached mother’s evidence with an open mind given that you’d already given a judgment which didn’t make the findings against father.

 

 

If I had been faced with that dilemma, I think I would have taken the same way out as Basil Fawlty does in “Gourmet Night” faced with the grisly task of having to introduce a Mr and Mrs Twitchen, to two other dinner guests, one of whom has a facial twitch.  He attempts with “Colonel and Mrs Hall, may I introduce you to Mr and Mrs… phahbarma…”  and when that doesn’t work, fakes an fainting episode.

 

“So sorry, I fainted”

 

 

[I had hoped to put the clip here, but can’t find it online. Anyway, from the same episode, Basil losing it with his car “I’ve laid it on the line to you time and time again…. I’m going to give you a damn good thrashing”]

 

 

http://www.youtube.com/watch?v=78b67l_yxUc

 

fawlty

J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)

 

A discussion of  Re W (Children) 2012 EWCA Civ 1307

 

 http://www.familylawweek.co.uk/site.aspx?i=ed102911

 

This appeal centres on whether, having made allegations and then subsequently consented to an order saying that findings in relation to them would not be pursued, a party can then resile from that and seek to reopen the findings.

 

An interesting appeal, arising from private law proceedings.  Within the course of the proceedings, a very detailed set of allegations was drawn up on behalf of the mother. These were very grave allegations indeed.

 

At a relatively early stage of the fact finding hearing, in August 2009, counsel for mother appears to have given the mother certain robust advice about the prospects of succeeding in proving such allegations.

 

Counsel for both parents asked to address the Judge in chambers, and taking appropriate precautions to ensure that both clients were aware and content with this and that the discussion was recorded, this took place.

 

5. Trying to summarise the discussion, it seems that mother’s counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other.  She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father’s contact.  The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

6. Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head.  She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

7. So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

8. The judge, that is to say HHJ Black — pragmatically and sensibly in my view — enquired what the true nature of the dispute was going to be.  And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother’s case.  She said:

“Now if that was her case so she was saying ‘No contact ever because I emotionally will never be able to deal with this’ which I would have a great deal of sympathy with, I think probably all of us would have a great deal of sympathy with and be on her side.  So this was a complete no contact case, I can understand that …

But I cannot understand…Even with the new allegations, what I will always want to know as a start point is…she is the mother of these children…  If she is coming in to say, notwithstanding all of this, ‘This is what I think is the way safe contact for my children can continue’ short term, long term et cetera, et cetera, that is how I would be informed.  And I would like you firstly to find out, whatever happens, there will be contact starting as soon as it can be sorted out.  There is no reason why it shouldn’t be.”

9. So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

“My client’s position is this.  That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress.”

And she then set out how that would happen. Counsel told the judge:

“She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad’s conduct towards the children specifically.”

And I omit further words:

“She is very clear she wants the children to enjoy their relationship with their father.”

I omit more passages:

“Your Honour, as I say, my client does understand that this will be drawing a line under her allegations.  She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend.”

11. So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached. 

 

 

There’s then what I consider to be a very neat bit of drafting, to dance on the head of a pin, and reflect that the allegations were not being pursued or relied upon in relation to the issues of contact and residence before the Court, but neither was there any acceptance on behalf of either party as to whether or not they were true.

UPON HEARING COUNSEL for each of the parties. 

AND UPON the Respondent Mother not seeking to pursue positive findings in respect of the allegations raised by her in the Scott Schedule and in the list here attached.  It being noted by the court that the allegations made on the list were first made at Court today. 

AND UPON the Respondent Mother understanding that notwithstanding that fact that she is not withdrawing her allegations, she will not be able to put forward specific allegations as reason(s) for a bar against contact or future progression of contact between the children and the Applicant Father or in relation to residence and the Mother understanding that matters will proceed on the basis that [I think it should be] no negative findings have been made against the Father. 

AND UPON the Court recording that no findings of fact have been made against the Applicant Father and that the Applicant Father continues to deny all allegations made against him by the Respondent Mother.

AND UPON the Court recording that as no allegations have been proved against the Applicant Father, no professional assessment of him should be on the basis of the concerns against him by the Mother in the Scott Schedule and list attached herewith, and any assessment should proceed on the basis of events as described by the Mother as having not occurred.”

 

 

Sadly for counsel for the mother, she was no longer representing the mother by the time of a hearing on February 2012  (perhaps due to diary clash, perhaps – as can be seen by mother’s complaints, more a clash of personality than diary), and mother instructed her subsequent counsel to seek to revive the allegations.  This is what she says in her witness statement for the February 2012 hearing.

 

12.  I know it sounds dramatic but I would use the word tyrannical to describe [counsel’s] approach.  I was very scared and I do not believe she gave me balanced advice.

13.  [She] suggested that she should go and see what the judge had to say and I agreed.  I recall she came back and indicated that the judge had said that she would have difficulty in making a positive or negative finding but that we could do things by way of recital.  I think at that point that [she] was doing all that she could to dissuade me from testifying and although she did not say it I was left in no doubt she thought I was wasting the court’s time.  I felt bullied and I had lost all confidence.”

17. It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black.  In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

“I am aware I am no longer allowed to bring these matters into the Children Proceedings, but can confirm I am still on the waiting list to see a counsellor from the Portsmouth Rape Crisis Team but I will not let the past, in respect of myself, have any weight to my views and the children’s views of contact with their father.”

In the same witness statement she dealt with the harm that the children could suffer and she said:

“I am aware this cannot be brought up again in these proceedings.”

18. There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected.  She put in her own witness statement in January 2012 when she was without legal advice and there she said:

“When the fact-finding hearing came up I had an alternative barrister, who advised me that the hearing would not achieve anything, as the Judge viewed the evidence and had said that even with testimony from all the parties involved, she would find it very difficult to make a decision either way.  It was not made clear to me at the time that the fact finding hearing it was necessary for the facts of the case to go on record, whichever way the Judge ruled.  I felt, and still feel that some elements are central to the case, and [father’s] ability to parent (such as the fact that he abused me and raped me throughout our marriage, and that I was in fact under the age of consent when he first attacked me)”

Again, there is not a complaint of being put under pressure by counsel through bullying nor of a failure fully to understand the compromise she had reached.

The Judge on 12th February refused to reopen the allegations and to undo the order made, and this is the order that was appealed.

 

Counsel for mother in the appeal put her case skilfully (and as the Court of Appeal describe, valiantly) on the basis that the allegations are so serious that they cannot sensibly be ignored and a determination of them central to the issues in the case.

 

The Court of Appeal declined to overturn the case management decision of 12th February 2012, saying that it was not only not plainly wrong but that was plainly right.

 

24. I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children.  In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing.  Matters had moved on because mother had suffered a further breakdown in her mental health.  She was unable to care for the children.  They were placed with father.  They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

25. The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened.  It may be a matter of debate as to whether the more appropriate course would have been to have appealed.  This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise.  Here, in effect, the gist of the application is to set aside HHJ Black’s order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort.

26. Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong.  In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother’s allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father’s care unsupervised and unsupported for weekends and over holiday periods.  She consented to all of those orders.  She was aware of the effect of the compromise in August when she agreed those orders.  She did not then complain.  She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care. 

27. To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters.  He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father’s account as on her account.  There was little medical evidence, it seems, to corroborate her account.  She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her.  She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

28. Taking a view as to the prospects of her success, they could not be put as anything like reasonable.  On the contrary, they appear, as the judge concluded, to be weak.  What was the benefit to the children?  In my judgment not a great deal.  The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care. 

29. For all those reasons, I conclude the judge was right to draw the line where he did.  I would therefore dismiss this appeal.

 

 

Much of this obviously turns on its facts – the huge passage of time between the allegations being ‘left on the file’ and the attempt to resurrect, the lack of credibility given later evidence filed that mother had been ‘bullied into this by counsel’ and the inconsistencies in mother’s allegations, but there are the wider points that it is legitimate for a Court to conclude a finding of fact hearing with an agreed order on the basis set out in August 2009, and that the parties need to be advised with care that reopening such findings laid to rest may be extraordinarily difficult if not impossible, and that they should be sure about that before consenting to such an order.

 

 

Inquiring minds wanna know (part one – Orkney)

 

 

A review of some of the major child protection public inquiries, to see if the things we were supposed to learn from them really were learned.  This one – Orkney.

 

 

As we all know, social workers in every single case either act incompetently and bungle their simple job by leaving children to be abused, or act like jackbooted fascists, snatching children from their loving families on flimsy evidence. This is all based on the media reporting on social workers. The fact that from the media reporting on doctors, the general public don’t perceive that all doctors are either pioneering geniuses who have invented a new cure for cancer OR filthy perverts who touch up their patients at the slightest pretext, is probably because the average person reading a paper has a real life GP with whom to compare those stories and work out that the average GP is just someone doing a job – they may do it well, or badly, they may have days when they do particularly well or days when they’re just not at it. But the average person doesn’t know a real life social worker (since all social workers like lawyers, routinely lie to people in pubs about what they do for a living, to avoid the look of disappointment/revulsion/boredom on the other persons face) and so haven’t got that recalibration of  “the ones in the papers are in the papers precisely because they are an exceptional example, for good or ill, of their profession, and you can’t extrapolate from that what the average member of that profession is like”

 

I liked in the first Munro report, the honesty that you simply can’t create a system that both protects every child from harm and at the same time protects every innocent family from disruption. The profession for a while, and the media, are under the illusion that people can get that decision right – is this safe, or am I being intrusive? In 100% of cases, and it just isn’t true. More information and more rigorous assessment helps get it right, but it won’t ever get it right 100% of the time. Just as doing surgery on people carries with it an inherent risk that something will go wrong, but we don’t have a media outcry to ban heart surgery when a patient doesn’t make it through the operation, balancing risk against the desire to keep families together isn’t going to be a judgment call that is right all the time.

 

The public inquiries have focussed on the two areas where social workers and other child protection professionals have got it wrong  (nobody ever held a public inquiry to see which of the people involved in brilliant work most deserved the credit – they are by their nature a blame game)

 

They fall into the “How could anyone have missed that?” school  – Maria Colwell, Paul, Victoria Climbie, Baby P  or the “what on earth were these people thinking?” school   – Cleveland, Rochdale, Orkney.

 

It struck me this week that the family justice system probably has a significant batch of people now who weren’t reading newspapers and watching the news when Cleveland or Orkney were happening (they were over 20 years ago) and probably very very few who were in practice when the Maria Colwell report came about.

 

So, a short series of blogs reviewing those public inquiries, and the lessons that were intended to be learned from each of them, and then an overview of whether those lessons really have been learned, or whether the public inquiry is anything more than a political way of saying “We’ve tackled this, public, no need to worry about it any more, move on”

 

 

 

ORKNEY

 

The actual inquiry can be found here :-

 

http://www.official-documents.gov.uk/document/hc9293/hc01/0195/0195.pdf

 

 

On 27th February 1991, nine children from four families living on the island of South Ronaldsey, Orkney, were removed from their families by the social work professionals of Orkney.

 

They were removed principally because of allegations made by three children of another family, the W family.  The nine children remained in care until 4th April 1991, so were in care for just over a month. They returned home because a hearing before the Sheriff’s Court dismissed the application for technical reasons but had expressed strong views that regardless of the technical issue in his view the children should be returned home. The Local Authority won an appeal against that decision, but the children had gone home by that stage and the Local Authority abandoned the proceedings.

 

It is worth noting that the public inquiry did not tackle the merits of the allegations or whether they were proven, and this led to some disquiet amongst the family members involved, who had been the subject of truly ghastly allegations which were never really laid to rest or the families innocence being fully acknowledged.

 

The W family had been known to Social Services for a number of years. The father of that family had been convicted for offences of physical abuse against his children and had pleaded guilty to criminal charges of sexual abuse against his children in 1987 and received a seven year prison sentence as a result.

 

The Local Authority were therefore working with the children of the W family, particularly as a result of allegations of sexual abuse between the siblings of the family and child protection court proceedings were taken as a result. [I am not going to dwell, in this summary, on the different processes in Scottish law and English law unless it becomes explicitly relevant – suffice to say that proceedings were brought)

 

The mothers of the other families involved Mrs M and Mrs T were close friends with Mrs W, and the social work professionals began to note that when they made visits to Mrs W, the other two mothers would be present and Mrs W wanted them to remain, even when professionals suggested they should leave.

 

On 30th October 1990, a child OW, made allegations of sexual abuse against siblings. This was shortly before OW’s 16th birthday. The LA were aware that other older siblings had made allegations of inter sibling sexual abuse at a similar age and had then retracted them.  A Place of Safety Order was obtained for OW, and over the next weeks, the Local Authority came to believe that all seven of the W children who were under 16 should be taken into care.

 

During the removal process the youngest child, SW, was not initially found and removed and there was some suggestion that other families on the island were assisting in her being kept away from the LA. The child was found by the police in the care of a Minister.

 

The seven W children came into foster care, with court proceedings, and medical evidence was obtained that suggested that the children had been the victims of sexual abuse, this abuse post-dating Mr W’s incarceration – thus that there was still abuse taking place and a live risk to be protected from.

 

South Ronaldsey was a relatively small and isolated community, and there was a considerable amount of local feeling that the W children had been wrongly removed. There was a large volume of correspondence being sent to the LA in relation to the W children, both about them, and for them.  The letters contained references to turtles that the LA did not understand, and there were also gifts including toy turtles.

 

The W children were interviewed about their disclosures – thought had been given to video-recording the interviews, but due to a combination of technical problems and the children’s reluctance to be recorded, this did not happen, and the disclosure interviews were conducted with a written note being kept. There were a number of interviews and there was some uncertainty between professionals as to whether the purpose of these interviews was forensic (to gather evidence about the abuse) or therapeutic.

 

Initially the disclosures related to inter-sibling sexual abuse and wholly unacceptable sexual boundaries within the sibling group.

 

But on 6th February 1991, the disclosures from MW took on an entirely different character. The allegations became of a form of abuse which was organised in nature, in the open-air at a quarry, involving a number of different adults including the minister, and which had a ritualistic overtone, with cloaked figures and a circle, with a child being chosen, pulled into the centre of the circle with a hook (similar to a shepherd’s crook) and abused whilst everyone else watched. The disclosure was detailed and accompanied by the child making drawings about what was alleged to have happened. The police officer present later said that she had not believed the allegations until MW had said “my dad will kill me” which made the police officer feel that the allegations were true.

 

The contemporaneous notes made by the police officer in a ring notebook were subsequently shredded, although a handwritten note based on the contemporaneous notes was made.

 

MW gave a further interview on 12th February, developing the detail and adding information that the children had had to wear costumes, including turtle costumes.

 

QW also gave an interview that day, in which she was asked about the turtle suits and went on to make similar disclosures to MW.  (of course the critical point here is that there were six days between the first interview where MW made disclosures of this type and other siblings making similar allegations, six days during which there was opportunity for cross-contamination)

BW attended an interview the following day, and made the same disclosures about costumes, a circle, dancing, and individuals being pulled into the circle by a man with a hook and then abused whilst everyone watched.

 

The children were naming the same adults as being involved, and those adults had children of their own. The W children had named those children as having been involved as victims of the abuse.

 

[LW was interviewed on 13th February and did not make any disclosures, saying when questioned about the details that he did not know anything about this and had not gone with the other children, and that he had probably been at the beach instead. ]

 

It was felt, by the police and the Social Services department that as a result of these disclosures, there was significant concern about whether there was a form of organised abuse taking place in this island community, and that three children had made the same detailed disclosures naming the adults involved and that children from other families were suffering the same sexual risk as they were.

 

[Now, putting to one side, the problem of contamination and that the recordings made were flawed because they weren’t videoed, and weren’t conducted along the Achieving Best Evidence standards we – ha! Would see today,  the authorities here were in a tough spot – they were aware that the W children were very sexually disturbed children, that they had been the victims of sexual abuse from someone, and they were giving an account that was very detailed and consistent between them. This account implicated other adults and was that other children had been victims of this abuse. Those other children were living at home with those allegedly abusive adults. The authorities had to make a call as to whether to write off these allegations as being fantastical and lacking credibility, or whether to seek to keep the other children safe whilst that was being determined.  We know that history has deemed that they made the wrong call, and it is very easy to look at the workers involved and wonder with our hindsight what on earth they were doing believing these allegations.  But I certainly remember at that time – when I was working on the Child Protection Register, pre any thoughts of becoming a lawyer, that I’d often see the phrase in official documents “children must always  be believed” and that was certainly a part of child protection thinking at that time, that children did not lie about things as serious as this. If you consider that context – that professionals believed that children would not lie about this sort of thing and that three of the children, who definitely had been abused by someone, were saying this, one can see why professionals made what now in hindsight seems an obviously wrong call.  I haven’t seen the phrase “children must always be believed” for about twenty years..]

 

A variety of professionals held what we would now call a Strategy meeting, to discuss the disclosures/allegations and what to do as a result.  [As an aside, there’s always a very different, yet subtle distinction between the word ‘disclosure’ and the word  ‘allegation’  – disclosure implies belief that what is said is true – you don’t disclose something that didn’t ever happen, and allegation implies at best caution about whether something happened or not. Always interesting to watch at a Court hearing, who says ‘allegation’ and who says ‘disclosure’]

 

The social work manager made a remark at that meeting which probably haunted her for years afterwards, asking the police how much more evidence they needed in order to act, saying that there was ‘enough evidence to sink the Titanic’

 

By  the end of 13th February 1991, the decision had been taken that nine children named in those allegations had to be taken into care through the making of Place of Safety Orders.

 

You may, if you’ve been paying attention, recall that the children were not removed until 27th February 1991, which would have given two weeks for there to be some investigation with those children or those families. This time was used to plan the operation of removing the children simultaneously and arranging for foster placements, medicals and disclosure interviews. No doubt this was quite a logistical exercise – particularly given that all of the children would be being removed not only from their homes, but from the island on which they lived and would need to be transported to another island. The authorities were convinced that all of the children needed to be moved at once. This, I think, is where things really went wrong. If the W children’s allegations were wholeheartedly believed by professionals, and I’m sure they were, for the reasons earlier discussed, then how could you leave the children at the risk of organised and serious sexual abuse for another fortnight, once you had decided they had to come out? And if they were safe for a fortnight, why were the children not interviewed prior to any decision about removal?  (The LA might, conceivably, have been swayed by the knowledge that the W children had been in foster care since October 1990, and thus the last known allegations about the organised abuse pre-dated that removal, but this seems slender to me)

 The planning also included an intention that each of the children be placed separately, to facilitate any disclosures and ensure that siblings did not influence, contaminate or silence each other.

 

What seems almost extraordinary, twenty years later, is the passage in the inquiry report that says that at the time the decision was made to remove the children, the LA had very little information about the children, including the ages and number of children that the families under suspicion had.

 

The other families were not known to Social Services, save for the friendship some of the mothers had with Mrs W.

 

But here is the really damaging bit.  On 20th February (BEFORE the removal of nine children), MW was interviewed again about the organised abuse. During the interview, she observed to the interviewers  “Did you know this was all a lie?”

 

And at that point, before nine children were removed from their families, seven days after the decision had been made, but seven days before it had been carried out, THAT was the point at which all of this could and should have been stopped.

On 23rd February, four days before the removal, AW was interviewed. AW had not made any allegations about organised abuse, and when asked about it was adamant that none of this had happened.

 

In order to manage this situation, Orkney Social Services had asked for assistance from other Scottish local authorities, both in terms of placements and provision of experienced social workers with a background in investigation of sexual abuse allegations. The workers from those authorities gave evidence to the inquiry that they had understood that the evidence of abuse was compelling and robust and that the Orkney police had weighed all of this up. They had not been aware of the 20th February interview with MW when MW had said that this was all a lie.  It would be fair to say that those workers had a sense of considerable disquiet about the way in which the removal and post removal work was being planned, particularly about the removals being scheduled for 7.00am – one of the workers used the term ‘dawn raids’ to convey the dramatic and disproportionate nature of what was being proposed which was exactly the view the Press took of what happened subsequently.

 

The application forms for the Place of Safety Orders were completed, but gave no detail about the nature of the concerns or why the orders were sought. An application was made before the Sheriff Clerk at which only the LA were represented – this application dealt with four families and nine children. The hearing lasted, in total between twenty and twenty-five minutes.

 

The orders were made.  (It appears that there were at the time, two routes to obtain Place of Safety Orders in Scotland – one a hearing before a Sherrif Clerk, the other before a Children’s Reporter – and that the latter might have been more formal and robust)

 

At the final meeting before the children were removed, there were fifty professionals present, ten or fifteen were standing. It was loud and crowded, with people speaking at the same time and it was difficult to take notes. There were real concerns with both the Orkney field social workers and mainland social workers feeling that insufficient information about the nature of the abuse was being shared and that the plan to separate all of the children and provide no sibling contact was harmful in nature. Those concerns though expressed, did not result in any change of direction.  Matters became so heated that the mainland social workers were minded to pull out and not be involved in the operation – at eleven pm, this debate was still raging, and it was only when they were told that the removals would go ahead with or without their assistance that they decided it would be better for the children for them to remain involved.

 

The nine children were removed on 27th February, at around 7.00-7.30am. The parents were told that the children were being removed because of the families involvement with the W family, and that Place of Safety Orders had been made. They were told no more than that. The removals, as one would expect, were difficult and traumatic.  Some of the children ran away, some shut themselves in rooms, one of the mothers was clinging to a child and shouting at the social workers that they were evil. One of the police officers during a removal told the mother that she would go to Court and get the children back.   [Bear in mind that prior to this ‘dawn raid’ the families concerned had never even been VISITED by a social worker,  their first involvement was a removal without warning. Also, that the Place of Safety Orders served on the parents gave no information as to what would happen next and the parents were not formally  told of what their rights would be to contest this removal at Court, and also that some of the professional and experienced social workers later described the experience as “harrowing”]

 

The medical examinations showed no evidence of abuse.

 

The first Court hearing (The Children’s Hearing) to review that removal was 5th March 1991. The parents were served with notice of that hearing the afternoon beforehand. Now, bear in mind that this hearing was taking place on a remote island in the Orkney islands and what was at stake, and wince at this next bit.  The parents on the morning of 5th March, asked for some more time to be allowed for their senior counsel who were travelling from the mainland to arrive. The Court refused as members of the Court tribunal had taken time off work to come in that day. Eventually, the local MP was called and intervened, to secure an adjournment from 10.0am to 11.00am. The Court had allowed thirty minutes for each families case (!!!!) but in the event, the hearing (for four families and nine children) concluded at 3.00pm. Oh, also, none of the parents had seen any of the evidence against them, even at this stage. The broad nature of the grounds was shared with the parents half an hour before the hearing and they were asked whether they agreed with them, which of course, they did not.

 

The Court granted a Warrant which authorised the further detention of the children in foster care for 21 days. The parents appealed, and that appeal was dismissed on 7th March.

 

[I suspect that this is a theme I will return to, but in my view here, I think the Court is culpable and escapes criticism. Just as the LA took a view on the evidence and made the wrong call, so too did the Court.  If the Court had not sanctioned the removal on 5th March,  or indeed not granted the Place of Safety Orders on 27th March, or granted the appeal on 7th March, those children would not have been in foster care for a month unnecessarily]

 

Curators (like a Guardian) were appointed for the children, and they began investigating matters.

 

The Press became greatly involved, and the local Press named and provided photographs of the children. The case attracted a great deal of media interest and the Local Authority were roundly criticised for both the decision to remove and the manner in which it had been done.

 

A case conference was held, to which none of the parents were invited.

A second sitting of the Children’s Hearing took place on 25th March, to decide whether to extend the Warrant that was allowing the LA to keep the children in foster care. The Court allowed FIFTEEN minutes for each family! In the event, the hearings took much longer. At one stage, an application was made for Counsel and solicitor for Mr and Mrs M to be removed from the court room on the basis that the Acting Reporter  (sort of a cross between a Child’s Solicitor and a Legal Advisor to the Court)  considered they were being disruptive. They were asking the Court, somewhat forcefully, to consider the medical evidence that there were no signs of any abuse on the nine children that the LA claimed had been the victims of organised abuse (The modern reader might well consider that what they were doing was advancing their case that what was happening was a miscarriage of justice)

 

Warrants were extended for a further 21 days.

 

A hearing was fixed for 4th April – and it is at this point that Scottish and English law deviate – the parents argument here was that the case should be dismissed on the basis of Competency; which initially sounds like a submission that there aren’t reasonable grounds to believe that the allegations occurred and that there is thus no risk of harm; but actually is something more technical than that.  The application was to dismiss the case but if successful it would not result in there being anything akin to a finding that the threshold was not met, or that there was no case to answer. [Sadly, the inquiry doesn’t explain the technical aspect terribly well to someone not au fait with Scottish law in the early nineties, and even I am not sad enough to research it. I think it relates to the fact that the legal grounds that Orkney had used was that the police would be making arrests for criminal behaviour, which they didn’t, rather than on the legal grounds that the children had suffered abuse]

 

It is worth noting that one of the children EB was interviewed about these matters TEN times, in the month he was in care!  (I apologise for the exclamation marks, usually I am with F Scott Fitzgerald  – “Cut out all those exclamation points. An exclamation point is like laughing at your own joke” but really, I think they are justified here). Also none of the children had any contact with their parents or their siblings during this time.

 

The children were interviewed multiple times, and some of them did talk about going to dances where there were people with lanterns, and a circle and that a man danced in the middle of the circle and would pull people in to dance with him with a shepherd’s crook.  It simply can’t be known whether this was an account of some innocent activity that the W children embroidered with the florid accounts of sexual elements, or whether in the multiple interviews, the suggestions were made of these things having occurred so many times that the children were eventually agreeing that they had happened.  Some of the interviewers conducting the interviews with various children were conducting four or even six interviews per day.  I don’t think it would be unreasonable to suggest that this is far too much for a process which is emotionally draining on the children and the professionals involved.

 

On the morning of 4th April, the Sherrif dismissed the application for a further extension of the Warrant on the grounds of competency, but also said that in his view the children should be returned home. As indicated earlier, the competency argument is a technical one, not on the merits of the application. The LA successfully appealed that decision, but the children had gone home in the meantime and the LA took their first smart decision in a month and a half and decided not to seek further Place of Safety Orders.

 

On 15th July 1991, the children’s names were removed from the Register. The parents were invited to that Case Conference.

 

The inquiry sets out, after analysing all of the evidence, a Summary of Comments (which are effectively bullet points of bungling) 135 in all.

 

Key amongst them :-

 

The social work department failed to consider the children individually

They failed to keep a wholly open mind about the allegations made by the W children and allowed the investigation to be coloured by suspicions

They failed to consider the Cleveland report

They failed to have a proper case conference to which the parents were invited

They failed to keep a proper record of decisions and of disclosures

They failed to give sufficient thought as to whether it was necessary to remove the children

They failed to appreciate the significance that the allegations of abuse had not come from the children in question

The degree of risk to the nine children was not properly assessed

They acted too precipitately and failed to take time to pause and think

They should have reassessed the situation after the medicals showed no sign of abuse

The parents ought to have been given proper information about the Place of Safety Orders and their rights of challenge and the process

The parents should have had support from the LA after the removal, and much fuller information about the reasons for removal

The interview process was wholly ineffective for investigative work such as was in actuality being carried out.

 

RECOMMENDATIONS

 

  • Those involved in investigating allegations of child sexual abuse must keep an open mind and not fall into the trap of confusing the taking of what a child says seriously with believing what the child has said

 

  • Where allegation are made by a child concerning sexual abuse those allegations should be treated seriously, should not be necessarily accepted as being true but should be examined and tested by whatever means are available before being used as the basis for taking action

 

  • In cases of child sexual abuse, removal should not be undertaken unless both a rigorous objective assessment of the situation has been made and in addition rigorous planning to balance the risk inherent in intervention and removal against the prospects of success in the legal action

 

  • Parents should usually be informed that the suspicion exists and that it is being investigated , their cooperation should be sought and the investigation draw on information from every possible source

 

  • There should be clear guidelines, both nationally and within organisations as to how child sexual abuse allegations are to be dealt with

 

  •  Removal of a child should be considered where no alternative exists and the risk of the situation requires it, caution must be exercised and the gravity of the situation considered

 

  • The reasons for seeking an order should be set down in writing and made available at the time the order is sought

 

  • The child or parent should have an immediate right to challenge the making of that order

 

  • Guidance should be given on the need for maintaining contact with a parent after removal, even where there is considerable hostility from the parent

 

  • Siblings should be placed together unless there are compelling reasons why that should not be the case.

 

 

 

Most of these seem blindingly obvious and barely worth saying, but it is probably the case that the reasons all of these things happen routinely is in part due to the Orkney case.