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Cloak and dagger threshold

 

The word Kafka-esque crops up a lot when you talk about the family Courts, but here’s one where it is actually apt. Whatever the evidence was against the parents, not only could they not see it, but the social worker wasn’t able to see it either. And nor was the Judge.

 

Re C a child 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3171.html

S015,  Counter Terrorism Command notified the Local Authority that a man who was a father of children was considered to be a significant risk of terrorism activities, radicalisation and possible flight to Syria (possibly with his children).  The Local Authority issued care proceedings.  To make this perfectly plain, if it had not been for the notification from S015, the Local Authority would not have issued care proceedings. They had no evidence, concerns or suspicions of their own. They were reacting to that notification from an organisation who they understood to have credible evidence for that belief.

 

 

"You can't TAKE Command. Command takes YOU"   Okay, so this is B6-13 not SO-15, but you get the idea

“You can’t TAKE Command. Command takes YOU” Okay, so this is B6-13 not SO-15, but you get the idea

This is what S015 told them

 

 

  • Two pieces of material led to the initiation of the application for a care order. The first stemmed from the assessment of HM Passport Office that the father is “an Islamist extremist who has previously travelled to Syria and engaged in terrorism-related activities” and that he is “likely to travel overseas to Syria in the near future … to engage in further terrorism-related activity, including fighting alongside an Islamist terrorist group.”
  • A very similar form of words was provided to the local authority on behalf of SO15 – “information suggests that (the father) holds an Islamist extremist mind-set. Information suggests that (the father) travelled to Syria in 2013 and 2015 where, it is assessed, he was fighting with an Islamist extremist group.

 

That’s sufficient to meet threshold – it is a good concluding paragraph to a threshold document on radicalisation.  The issue of course is that it works as a concluding paragraph, after the preceding paragraphs set out WHY those things are true and WHAT the evidence is to prove it.

 

However, SO15 didn’t provide that. And they didn’t provide it after the Court made an order for disclosure.   They applied to discharge the disclosure orders. At first they said that the order hadn’t been particular enough or that it was necessary to disclose anything at all.  That was a bold claim, given that the Judge who made the order was the one hearing that argument.

 

The arguments advanced on behalf of the SSHD

1. Failure to adhere to the Guidance – inappropriately wide request; insufficient notification as to issues; order made without notice

 

  • Ms Wheeler seeks to argue that the local authority’s approach to disclosure does not accord with the President’s Guidance, particularly paragraphs 10 – 12. She suggests there has been insufficient regard to the highly sensitive nature of the material sought and a failure to respect the differing roles of the public bodies identified within the Guidance. Ms Wheeler submits that the local authority should have informed the body from whom information is sought about the proceedings, including the matters in issue and what material it is minded to seek. In the first instance there should be discussion and if a hearing is required it should be on notice. Here, says Ms Wheeler, there would appear to have been no sound reason why the hearing was not on notice.
  • In relation to the last point, it would have been better, obviously, if the SSHD had been represented at the hearing on 4 October. But, as the terms of the order reflected, there was a need to make progress in the proceedings; and over the following 4 weeks there was no application to discharge or vary the order. At the hearing on 2 November, the indications were that consideration was being given to an application for a closed material procedure.
  • Ms Wheeler emphasises the need for a “coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved” – see paragraph 10 of the Guidance.
  • I pause to reiterate that had it not been for information properly conveyed to the local authority by SO15, the strong likelihood is that local authority would have had no basis for instituting proceedings of any kind. For the SSHD to now contend that the local authority should have identified in discussions what the proceedings were about, the matters in issue and the information it was minded to seek, defies logic. It is a circular argument of the most bewildering kind.
  • In any event, read as a whole the order of 4 October is transparently clear and amply substantiates the requirement for disclosure. Recital 3 identifies that the court is faced with “an application for a care or supervision order;” and the reason the disclosure order has been sought is to “assist the court in determining (that) application.” Critically, recital 4 states that “(t)he court needs information about any extremist or radicalised conduct by adults in the family.” To suggest that the issues in the proceedings were imperfectly or inadequately defined is simply wrong.
  • The local authority was in no position to specify precisely what information is sought (beyond the provisions of paragraph 1 of the order) for the obvious reason that it does not know what is held. Whilst I quite accept that requests for disclosure should be approached with, as Ms Wheeler suggests, “particular care and circumspection” it is difficult to identify what more this local authority could have done in terms of specificity or definition. Whether in this instance it would have been of real benefit to the SSHD to have case summaries and draft threshold documents is extremely dubious. Once more I reiterate that had it not been for the “tip off” from SO15, there would have been no reason for this local authority to initiate proceedings. The notion that the SSHD has insufficient information to respond, other than by seeking discharge of the disclosure order, is to my mind fallacious.

 

2. Failure to comply with FPR r.21.2(3) or have regard to the Guidance – necessity

 

  • The second complaint made on behalf of the SSHD about the disclosure order of 4 October 2016 is closely related to the first. Ms Wheeler relies upon the terms of r.21.2(3) of the Family Procedure Rules 1991 – “disclosure against a third party is only permitted where it is necessary in order to dispose of the proceedings fairly” and paragraph 7(e) of the President’s Guidance – “the need (for judges) to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which would damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is ‘necessary to enable the court to resolve the proceedings justly’.”
  • Ms Wheeler contends that the SSHD and the Passport Office “are almost entirely in the dark about the nature of the local authority’s case and the allegations of significant harm.” She maintains that disclosure was sought on an erroneous basis, namely that it would “assist” the court.
  • I cannot accept that the wrong test was applied to the disclosure request. The face of the 4 October order (recital 4) records that the court “needs” the information. I reject the suggestion that I would have sanctioned a disclosure order against the SSHD, or any other third party, unless satisfied there was a genuine necessity.

 

 

However, SO15, and the SSHD (Secretary of State for the Home Department, or the Home Secretary) had an ace up their sleeve. Counsel representing the SSHD made it clear that if the Court wanted to press ahead with an order for disclosure, the Home Secretary would sign a Public Interest Immunity certificate which would prevent the disclosure of any material.  There’s a process for the PII certificate to be reviewed by the Court, but none of the parties would see the basis on which it was asserted that disclosure would be against the national interest.

 

Rock, I’d like you to meet Hardplace, Hardplace, this is the Rock.  I’ll just stand between the both of you.

 

In a game of Rock Paper Scissors, the Rock wins every round

In a game of Rock Paper Scissors, the Rock wins every round

 

Obviously the family Court don’t want to trample on national security and of course security services don’t want to cough up in detail why they happen to be watching the father and what led them to do so and what they have found out about who he is talking to, because that could jeopardise all sorts of other important and sensitive and possibly life-threatening/life-saving operations.   And given that the family Courts have so far ended all of the radicalisation cases with the children remaining with the parents, one can see why SO15 don’t consider that it is worth taking those risks with sensitive information given the likely final resolution of any individual case.   (At present it rather seems as though you are better off  in care proceedings as a parent being in contact with ISIS members than letting your ten year old child shoot terrorists on Call of Duty, but that’s just my cynical jaded take on it)

On the other hand, there are children here and the Local Authority can’t obtain orders to protect them without having evidence to show why they need to be protected and the parents can’t refute the allegations about them without knowing what they are.

 

The Judge left the disclosure orders in place, indicating that when and if the Home Secretary issued a PII certificate, that would be the time for consideration of whether the reasons on the PII certificate outweighed the need for disclosure.  If there is no disclosure, presumably the application will have to be withdrawn, as the LA have no evidence that could prove threshold.

 

This was always going to be the difficult issue in radicalisation cases and whilst the President’s guidance works very hard to find a solution, I’m just not sure that there is one. If you are a Local Authority who receives that sort of tip-off, what the hell are you supposed to do with it?  If you issue, you’ll hit this road-block and the proceedings will be dropped, and if you don’t and something happens, the Daily Mail will be eating you alive.  It’s a complete hospital pass by the Security Services.

 

What’s the alternative? Amend the Children Act 1989 to allow SO15 to issue care proceedings of their own? Run a family Court equivalent of the Closed Material Procedure Courts that operate in alleged terrorism offences in the criminal Courts?  They are hugely controversial in crime  (and if you’re interested in more about them I recommend Ian Cobain’s book “The History Thieves”  where he describes the AB and CD case, with the jury being told that if they ever discussed any of the evidence in the case they could themselves be punished by two years imprisonment and the incredible stipulations on journalists whose notebooks were taken each day, were prohibited from writing notes outside the Courtroom after hearing the evidence and not being able to tell their readers any of the important details in the case)

 

I certainly can’t claim to have a solution, but it is an obvious problem.

 

 

 

Ellie Butler – Court of Appeal overturn decision to keep family Court judgment from Press

Just after the Ben Butler conviction about Ellie Butler’s murder, the family Court decided that the judgment of King LJ about Ellie’s death would remain confidential. At the time, nobody quite understood why.  And it was a very unpopular decision, many people feeling that the family Court had misjudged the public mood for openness and learning lessons from the case.

 

Then Pauffley J’s judgment was published and it transpired that the decision was largely about making sure that if Ben Butler appealed and got a re-hearing he couldn’t use the publication of the judgment to get off on a technicality that it had stopped him having a fair trial.

I wrote about that here

https://suesspiciousminds.com/2016/07/05/judgment-on-reporting-restriction-on-the-butlergray-case/

 

The Press appealed that decision and the Court of Appeal overturned it

Re C (A child) 2016

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/798.html

 

 

  • The central issue that arises on this appeal is whether the judgment given by Eleanor King J on 30 June 2014 (“the Judgment”) in care proceedings in respect of a child to whom I shall refer as “C” and which were conducted in private and subject to reporting restrictions should be put in the public domain. C is the younger sibling of Ellie Butler. The parents of the two children are Mr Butler and Ms Gray. On 28 October 2013, Ellie died as a result of catastrophic head injuries at the family home.
  • Following her death, Mr Butler was arrested on suspicion of her murder. C was removed from the care of Ms Gray and placed into police protection and care. Public law care proceedings were commenced and thereafter orders were made from time to time prohibiting any publication that would enable C to be identified. The first of these was made by Hogg J on 30 October 2013.
  • In the Judgment, Eleanor King J found that (i) Mr Butler had caused Ellie’s death; (ii) Ms Gray had failed to protect her from Mr Butler; and (iii) C had been the victim of physical and emotional abuse.

 

That information that Ellie’s younger sibling had been the victim of physical abuse had not been in the public domain until today. The emotional abuse we could have guessed at – given that Ben and Jennie made C find Ellie’s body as part of the cover-up, but the physical abuse is new information, and obviously significant.

 

 

  • In what follows, like the judge I shall only refer to Mr Butler. So far as I am aware, Ms Gray has not indicated that she is intending to seek leave to appeal. The letter from Bindmans was written on behalf of Mr Butler. In balancing the article 6 rights of Mr Butler against the public interest in open justice and the article 10 rights of the applicants, I am in no doubt that the judge reached the wrong conclusion. If she had made a proper assessment of the risk that there would be a violation of Mr Butler’s right to a fair trial, she would have been bound to conclude that the risk was minimal and was plainly outweighed by the countervailing considerations to which I have referred.
  • First, she made no assessment of the likelihood of a retrial. This was not the judge’s fault. It is a striking feature of this case that no attempt was made on behalf of Mr Butler to demonstrate that he had real prospects of being granted permission to appeal, still less that any appeal would be likely to succeed. In these circumstances, the judge should have approached the article 6 issue on the basis that there was at best a speculative possibility that there would be a retrial.
  • But the second and decisive reason why the judge reached the wrong conclusion is that, even if there is a retrial, there is no real possibility that the publication of the Judgment will prejudice the rights of Mr Butler to a fair trial. This is clearly demonstrated by both our domestic jurisprudence and the jurisprudence of the ECtHR which are entirely harmonious with each other on this point.
  • Our domestic law is heavily influenced by section 4(2) of the CCA which provides that an order postponing the publication of a report of proceedings can only be made “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice”. Such an order should only be made as a “last resort”: R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979 per Lord Judge CJ at para 13.
  • In assessing whether there is a “substantial risk of prejudice”, it is necessary for the court to have regard to three matters in particular. First, juries “have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial”: Re B [2007] EMLR 5 at para 31. The importance of trusting a criminal jury to comply with directions made by the trial judge has been underlined repeatedly. For a recent example, I refer to Taylor [2013] UKPC 8 at para 25. Criminal Practice Direction 26G.3 identifies what judges should cover in their opening instructions to jurors. This includes that the jury should try the case only on the evidence and no other material. In particular, juries are directed to make no internet searches relating to the trial and to avoid discussing the case with anyone outside their number, including on social media.
  • Secondly, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice: Re B at para 25.
  • Thirdly, the “fade factor” that applies in news cases. The “staying power of news reports is very limited”: Judicial College Guidance on Reporting Restrictions in the Criminal Courts, revised in May 2016 at p 29. The significance of this factor may have reduced a little in view of the staying power of the internet. But in my view, it remains a highly relevant factor.
  • It is clear from the Strasbourg jurisprudence that, even if there were a retrial of Mr Butler, his article 6 rights would not outweigh the article 10 rights of the applicants.
  • In Beggs v United Kingdom (app. No. 15499/10), the ECtHR adopted an approach which is entirely consonant with that adopted in our domestic jurisprudence: see paras 122 to 129. It noted, in particular, in cases concerning the fairness of criminal trials, the importance of directions given to juries. In that case, there had been a “virulent and prejudicial press and media campaign” against the applicant before his criminal trial took place. The complaint that the impugned publications had influenced the jury was declared inadmissible for a number of reasons. These included that in his directions the judge had warned the jury to disregard the prejudicial material and that it was reasonable to assume that the jury would follow the directions given.
  • Abdulla Ali v United Kingdom (App. no. 30971/12) was a similar case. There was what was described as “an avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. The court said at para 89 that a direction to the jury to disregard extraneous material “will usually be adequate to ensure the fairness of the trial, even if there has been a highly prejudicial campaign….”. At para 91, the court said that “it will be rare that prejudicial pre-trial publicity will make a fair trial at some future date impossible.” The applicant had not pointed to a single case where the ECtHR had found a violation of article 6 on account of adverse publicity affecting the fairness of the trial itself.
  • The judge acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the Judgment was “small”. In my view, it was so negligible that it should have been given little or no weight in the balancing exercise. The judge failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place). If she had properly taken these factors into account, she would have been bound to conclude that the Judgment should be put into the public domain. Mr Bunting makes the further valid point that it is difficult to see how the publication of the Judgment could create a separate substantial risk of prejudice given that much of what appears in it is already in the public domain. But I do not need to examine this point in detail since the Judgment should be put into the public domain for the reasons that I have already given, subject to the redactions necessary to protect the interests of C. These redactions have been the subject of further submissions and the Court has made an Order determining the way in which the Judgment should be redacted.

 

Conclusion

 

  • For all these reasons, I would allow this appeal and permit the Judgment to be published with the approved redactions.

 

 

As far as I understand, the King LJ judgment is now in the hands of the Press, some redactions to it having been made (to preserve C’s anonymity, no doubt). It is not at the time of writing, up on Bailii but I will keep an eye out.

 

 

Striking ineptitude from an organisation.

 

This is a HFEA case, along the same lines as the one decided by the President discussed here:-

 

https://suesspiciousminds.com/2015/09/11/ivf-and-declarations-of-paternity-major-cock-ups-in-ivf-clinics/

 

I.e that because a clinic involved in artificial insemination (IVF) failed to use proper consent forms and keep proper records, the parents ended up in Court to resolve who had parental responsibility.  You may recall from that case, that the Human Fertilisation and Embryology Authority had carried out an audit and found that about HALF of the clinics who do this work were using the wrong forms and losing records.  There was always going to be more litigation about this cock-up.

This individual case, however, did not (as the President’s 8 cases did) involve parents who were all on the same page about their intentions and who should have parental responsibility but parents who were already litigating issues about the children. So this was an added complication to already difficult proceedings.

 

In this particular case, Pauffley J was rightly very critical of the clinic involved, Herts and Essex Fertility Centre.

 

  • In the course of my separate Children Act judgment delivered on 30 November, I said I would be able to find unequivocally that F is entitled to the declaration he seeks. He is the father of C. This judgment explains my reasons for that preliminary indication. It also comments upon the actions and omissions of the Herts and Essex Fertility Centre (HEFC) for identical reasons to those described by the President in his judgment. It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA).

We’ll come onto it in detail later, but because the Clinic refused to comply with Court orders, the Court had to make the orders again, but with a penal notice attached. It is pretty unusual for a Court to need to do that against an organisation (as opposed to say a lay person)

 

 

F v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3601.html

 

When the parties contacted the clinic to ask for the records, and even when Court orders were sent, the Clinic was unresponsive – my reading is that the requests were processed by someone who went into “someone is trying to sue us for something, give them nothing” mode.  (which is not even the way it actually works with a personal injury or negligence claim, where disclosure is part of a pre-action protocol). As it turned out, the Clinic’s resistance to assist and comply with Court orders not only made the litigation more protracted and costly, but they ended up having to offer to pay the costs anyway.

Also, seeing the lawyers involved in the case in the headnote, boy did this clinic mess with the wrong people…

 

 

  • The second noteworthy matter surrounds HEFC’s litigation conduct which has been wholly extraordinary. Notwithstanding both parents’ written authorisations and ready agreement to the disclosure of material from HEFC, the process has been fraught and, at best, piecemeal. There would seem to have been a fundamental misunderstanding of the purpose for which disclosure of records was sought.
  • In early May, only 20 or so pages of medical records were made available. Had there been full and proper disclosure at that stage, the eventual shape of the litigation could have been very different. Again and again, letters were written by M’s and F’s Solicitors. In late May, HEFC was strongly recommended to attend the first court hearing. In response, the Clinic’s finance manager stated that it was not accepted that “HFEC had failed to comply with the necessary procedures;” and the suggestion of attending the hearing was declined.
  • On 29 May an order was made joining HEFC as a party and directing it to file any evidence upon which it intended to rely. Two months later, on 28 July, in the absence of any engagement by the Clinic, F’s Solicitors wrote a lengthy and informative letter, drawing attention to the 7 cases being heard by the President, seeking agreement to fund the father’s legal costs, reiterating the disclosure requests and giving information about the next court hearing.
  • On 10 August, the Clinic’s finance manager emailed F’s Solicitors saying, “to confirm, we will not intervene nor will we be attending the hearing.”
  • On 14 August, I made an order directing HEFC to disclose all and any medical notes relating to M and F’s treatment as well as all correspondence (including emails and other communications) with M and F. I also directed the Clinic to file and serve detailed statements from the Person Responsible and the Medical Director. The HEFC was directed to attend the next hearing on 22 October.
  • On 4 September two statements were provided, one from the Person Responsible, the other from the Medical Director. The covering email from the finance manager indicated that the Clinic would not be in attendance at the next hearing as “this is a Family Law matter.”
  • I cannot begin to understand how such a misapprehension arose as to the proper role for the Clinic in these proceedings particularly given the unambiguous correspondence from the parties’ Solicitors supported as it was by the text of several court orders.
  • On 20 October (about a month after F’s Solicitors had drawn the Clinic’s attention to the President’s HFEA 2008 judgment), an email was sent to the Clinic’s finance manager reminding her that HEFC was required to attend the hearing on 22 October. The response was that the Clinic would not be attending.
  • It was therefore necessary, on 22 October, to make an order with a penal notice attached so as to ensure the Clinic’s compliance with directions. I also listed a hearing to determine the Clinic’s liability for the parties’ reasonable costs. Once again, an order was made that the Clinic should attend the next hearing.
  • On 4 November, Russell-Cooke LLP was instructed by the Clinic. Seemingly that was the point at which the Clinic appreciated the need for assistance from lawyers. As Mr Powell explained during his final submissions, the Clinic’s first point of contact (when faced with requests for information) had been the insurers. Apparently, though this is difficult to understand given the explicit nature of incoming correspondence, the Clinic had not appreciated the gravity of the situation.
  • There was then inter-solicitor correspondence resulting in further disclosure on 10 November. For the first time, critically important laboratory records were revealed showing affirmative ticks by the WP and PP boxes on forms. Two further and important tranches of documents were disclosed on 19 and 20 November just a very few days before the final hearing listed on 24 November.
  • The detail of the Clinic’s litigation conduct is both important and profoundly disappointing set against the framework of the dispute between these parents. The levels of conflict have remained at the highest level throughout. M and F are bitter, resentful and mistrustful of each other. M’s position, in all probability, became ever more entrenched as the result of the Clinic’s lack of engagement and failure to disclose early.
  • The Clinic’s bewildering behaviour has undoubtedly added to a situation of enormous tension in circumstances which were already intensely fraught. It would have assisted greatly if the Clinic had responded to requests for information in a timely and cooperative fashion. Seldom is it necessary to make orders backed with a penal notice against organisations whose aims include a desire to serve the public and to a high standard. It was altogether necessary here.
  • It should also be observed that even by the very end of the hearing, there had been no attempt on the part of the Clinic to engage directly with either M or F. Beyond what had been said formally within the proceedings there has been no correspondence and no apology on the part of anyone at HEFC. That is quite obviously a profoundly shocking state of affairs. Neither parent has had any offer of help, support or explanation for the situation in which they have been entangled. They have been left completely on their own with no ability to understand the reasons for what went so badly wrong.
  • On behalf of the Clinic, Mr Powell accepts that no words would do justice to the emotional distress caused to M, F and their family members. He did not seek to defend the Clinic’s actions; and accepts the criticisms levelled. The Medical Director’s unreserved apology, said Mr Powell, although late is nonetheless candid. The Medical Director accepts that the Clinic’s litigation conduct was wholly unsatisfactory and has prolonged the parents’ distress. He intends to write directly to them apologising on behalf of HEFC and would welcome the opportunity to meet each parent to provide an apology in person and answer their questions.
  • Mr Powell indicates that lessons have been learned and contrition on behalf of the Clinic is genuine. It is a good indication of the HEFC’s remorse that it has undertaken to pay the parties’ costs as they relate to the declaration of parentage proceedings.

 

 

On the fundamental issue, whether the proper consents had been recorded about the treatment and who was to be considered as legal parents for any child produced by the treatment, the Judge had this to say:-

 

 

  • Without descending into more of the detail, I am entirely satisfied of the following – (1) that M and F did sign WP and PP forms prior to the commencement of treatment; (2) that the forms as well as the internal consent forms were signed at the treatment information appointment (as the checklist confirms); (3) that the WP and PP forms have subsequently been mislaid or lost; (4) that M and F received appropriate counselling prior to treatment in relation to the consequences of using donor sperm; (5) that notwithstanding the lost forms the clinic acted within the terms of its licence; and accordingly (6) F is C’s father.
  • Turning from the specifics relating to parentage, there are a number of associated matters which require comment. The first is as to the bemusing and seemingly unsatisfactory response of HEFC to the Legal Parenthood Audit initiated at the request of the HFEA on 10 February 2014 following the judgment of Cobb J AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam).
  • On 1 September 2014, the HFEA wrote to all clinics to inform them of the outcome of the Audit – namely that “nearly half of all clinics that have responded reported anomalies with their legal parenthood consent.” The letter expressly informed clinics – “if you have any doubt about the validity of legal parenthood you should seek your own legal advice. You should also inform the affected patients and their partners.”
  • The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern. In this instance, M and F were left completely on their own without assistance of any kind from HEFC.
  • The medical files for these parents should have been (but were not) included in the Legal Parenthood Audit which was to be completed over a period of three months. The omission has been reported to the HFEA. It is perplexing to say the least that this couple’s files were missed when account is taken of the chronology of the mother’s telephone calls (from late March / early April 2015) seeking information about the consent forms as well as initial ‘phone calls followed then by a formal letter from M’s then Solicitors requiring information.
  • At the instigation of the Chief Inspector of the HFEA an investigation is about to begin to discover the reasons for the error. There will be a ‘Root Cause Analysis’ undertaken by an independent consultancy for UK regulated organisations so as to identify what went wrong. The investigation will also seek to discover whether the HEFC complied with the HFEA’s request to sample or review files. Importantly, it will examine how the WP and PP forms were mislaid or lost. It is said on behalf of HEFC that the investigation will be thorough and comprehensive.
  • The findings of the independent consultancy will be reported to the HFEA so that decisions may be made about what action should be taken. The medical director of HEFC assures the court that he is committed to “getting to the bottom of what happened, to taking all remedial action and to working with the HFEA to ensure that the circumstances which gave rise to this case can never happen again.”
  • The HEFC has taken other steps including the installation of ‘Meditex,’ a new Fertility Database which will require the scanning in of Forms WP and PP enabling immediate retention and availability for inspection. The database is comprehensive, internationally recognised and used by other leading clinics across Europe.

 

It really does seem likely that there will be many more of these cases. I’d suggest that hospitals stop putting Court orders from family Courts in the “Go Screw Yourselves”* section of the in-trays.

 

(*That wasn’t actually intended to be an artificial insemination joke when I first wrote it, but hey, I’m not one to snub serendipity when it comes a’knocking)

 

Revocation of adoption order

In this case, Pauffley J had to decide whether to revoke an adoption order that was made in 2004.  That is a very unusual application to hear, and still more unusual to grant.  The only successful applications I’m aware of before this were ones where the adoption order was made before an appeal could be heard and thus the revocation was just to restore the ‘status quo’ so that the appeal could be heard.

 

The major reported case was the one involving the Webster family, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

The other notable case involved the young man who had been adopted by a Jewish couple and brought up as a Jew but who learned in later life that his father had been a Kuwaiti muslim and his mother a Catholic  – the adoption meant that he felt he was unwelcome and misplaced in both sets of communities –  he could not live in Israel because of his ethnicity, and was unable to settle in Kuwait because he was officially Jewish.   That case also refused to revoke the adoption order  – rather controversially. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239

http://www.bailii.org/ew/cases/EWCA/Civ/1995/48.html

 

Thus, you can see that such an application faces a considerable uphill task, when you look at those two cases (where an ordinary member of the public thinking about the facts would have almost certainly revoked both of the orders)

  1. The key passages from each were considered by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.
  2. I could not improve upon Bodey J’s analysis. He observed it was common ground that “the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances.” Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – “To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order.”
  3. Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – “Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

[There is one reported case called Re M 1991, where the Court did use the inherent jurisdiction to revoke the adoption order, but there’s no link to it, and it is not one that I know at all.   The only links to it are via paysites, but here is a summary I have found of it, via Jonathan Herring in New Law Journal http://www.newlawjournal.co.uk/nlj/content/family-revoking-adoptions

 

 

Wall LJ gave as an example of an exceptional case where an adoption order had been set aside as Re M (Minors) (Adoption) [1991] 1 FLR 458 where two girls had been adopted by their mother and stepfather. The father had consented to the adoption but had not been aware that the mother was suffering from terminal cancer at the time. The wife died soon after, but the stepfather struggled to care for the girls and they returned to their father. The Court of Appeal was willing to set aside the consent order. The primary reason was that the father had consented on the basis of a mistake and that the father would not have consented had he known the truth about his wife’s medical condition.

 

[And a step-parent adoption is a rather different kettle of fish, and the father in that case had consented, but it was a classic issue of him not having been given the accurate state of affairs at the time of that consent]

 

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

In 2004, PK had been removed from her mother, and placed with adopters, Mr and Mrs K.  However, within 2 years, Mr and Mrs K had placed PK with relatives in Ghana, who went on to considerably mistreat PK.

 

  1. On any view, PK’s childhood has been troubled and disrupted. It might have been thought that when, aged almost four, she became an adopted child her future was assured. Almost certainly, the expectation of the judge who made the adoption order was that PK would enjoy stability, consistency and security as the adopted child of Mr and Mrs K. No professional involved with PK at the time she was adopted could have envisaged that within two years she would be cast out from the home of Mr and Mrs K and sent to live with extended family members in Ghana.
  2. Nor could there have been any indication that whilst in Ghana, PK would be abused by the adults with whom she had been sent to live. Her experience of adoption, particularly the arrangements made for her after the age of six, would seem to have been extremely abusive. She is desperate to draw a line under that part of her life.
  3. When, last year, PK returned to England, she was reunited with her biological mother and maternal grandmother. She is delighted to be back with them.

 

So, should the adoption order be revoked?  There seem to be many positive reasons why it should be. The child has no relationship at all with the adopters, who have (let’s be frank) badly let her down, and is now with her biological family.  But as a matter of law, it is the adopters who have any legal rights about her and not her biological family.  Her biological mother is no longer her mother in law.

 

  1. PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.
  2. PK very much wishes to once more assume the last name of her biological mother to reflect that she is her child and belongs to that family. She urges me to permit her to change her name enabling her to apply for an amended birth certificate and a passport showing that her name is the same as that of her natural mother.
  3. PK remains frightened and wary of Mr and Mrs K. She does not wish them to know precisely where she is living.
  4. There is no potential difficulty, as there was in Re W, Bodey J’s case, arising out of the need to notify PK’s natural parents or for that matter her adoptive parents. In this instance, all of those adults who should be aware of the application have been served. There is no prospective trouble. Mr and Mrs K, by their inaction, have signified their lack of interest in PK’s future. It is probably fair to assume their position is one of tacit acceptance.
  5. PK’s mother and grandmother are thrilled to have her restored within their family. They are committed to providing for her long term future; and fully support her applications.
  6. If I were to decline to revoke the adoption order and refuse to allow PK to change her name back to that of her natural mother, it seems to me that there would be profound disadvantages in terms of her welfare needs. PK would continue to be, in law, the child of Mr and Mrs K. They would have parental responsibility and the legal rights to make decisions about and for her. But there would be considerable, maybe even insuperable, obstacles in the way of them exercising parental responsibility for PK given that they play no part in her life and she wishes to have nothing to do with them.
  7. Moreover, against the background described, there would be emotionally harmful consequences for PK if she were to remain the adopted child of Mr and Mrs K.

 

 

The only counter argument was the “public policy” argument that an adoption order is one that ought to be final and secure and that in revoking orders that principle is undermined and weakened.

 

 

Whilst I altogether accept that public policy considerations ordinarily militate against revoking properly made Adoption orders and rightly so, instances can and do arise where it is appropriate so to do. This case, it seems to me, falls well within the range of “highly exceptional and very particular” such that I can exercise my discretion to make the revocation order sought.

 

 

  1. The only advantage of a refusal of the application to revoke the adoption order would be the public policy considerations in upholding a validly made adoption order.
  2. I am in no doubt. The right course is to allow both applications in these highly exceptional and very particular circumstances and for the reasons given.

 

 

Absolutely the right decision.    [I would also have set aside the adoption order in Re B.  And I would have lost sleep over Webster, but ultimately I think that the passage of time since the orders were made and that the children had made new homes and new lives probably tipped the balance]

 

I don’t think that this is an ‘open the floodgates’ type of case  (though as Jack of Kent points out, the whole point and value of floodgates is that they can open, so it isn’t a bad thing), because the features are just so extraordinary and that informs the entire decision.

“Immigrants who beat their children should get special treatment”

 

This was the headline of a piece in the Daily Telegraph, similar stories in other newspapers.

http://www.telegraph.co.uk/news/uknews/immigration/11663029/Immigrants-who-beat-their-children-should-get-special-treatment-says-judge.html

 

It ticks all of the boxes for a Telegraph story – we have here a High Court Judge (and as she is female, for some reason it is considered appropriate to set out within the story her marital situation and how many children she has), social workers, ‘secret’ family Courts and immigrants being treated more favourably than UK nationals. It’s a great story for the Telegraph.

 

The story leads with this

Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday.

and it has some quotations from the Judge, and a bit of rent-a-quote from a politician.

 

Is it accurate?

Well, I don’t think is misleading. I don’t think that the Judge intended to convey that meaning, but the meaning that the Telegraph have derived from it is the fault of the judgment not the fault of the reader. I also don’t think that the Telegraph have sensationalised it or are wrong to report it. I don’t think that it says everything that the Telegraph believes that it says, but I think that their reading of it is one that a common sense reader would derive from it.

 

Re A (A child: Wardship) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1598.html

 

[I’ll quickly hold up my hands – I read this on Tuesday when it came out and my reading of it was that the case was far too dull to blog about – I missed paragraph 67 when I first read it. I’m like the guy who decided that Fred Astaire ‘can’t sing, can dance a little’ ] 

This is the paragraph that has caused all of the fuss

 

67.I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.

 

A common sense reading of that is that we must make allowances in law for a parent who has just come to this country and that social workers should treat them differently. Which is the Telegraph’s take on it. They aren’t misquoting or misleading – they report what the Judge said and then report how an ordinary person would read those remarks.

 

The allegations were being made in private law proceedings (the argument being between mum and dad , rather than public law proceedings where the argument would be between social workers and parents).

The allegation made by mum was that the father had slapped the child twice. The child  when interviewed by the police said that dad had hit him with a belt, causing him pain and leaving marks which went quickly. Father said that he smacked the child as part of normal discipline.  The job of the Judge therefore was to decide which of these three versions (if any) was correct, and what impact that this would have on any decisions about whether the child should see his father and spend time with him.  [There were also a lot of allegations between mother and father as to domestic violence, and the Judge found that father had been violent to the mother including an attempt at strangulation with a head scarf and a violent push]

 

  1. One of the last matters for discussions arises from A’s physical assault allegations comprised principally within his ABE interview. In the context of a question from the officer about what he did on 17 October – and seemingly out of the blue – A said, “I did my homework … With his belt, he kind of hits me.” A little later, A is asked, “OK and how does he hit you?” A who was by then looking directly at the officer, said, “With a belt … A long belt.” He described being hit on his back and leg and said it was “kind of fast, to hit me.” Asked how he felt, A said “Sad … But I’m little brave … I’m not scared of him… But normally I’m sad.” In response to questions as to whether it hurt, did it leave marks and whether they ‘went quite quickly’, A did not reply verbally but nodded his head to all three inquiries.” Towards the very end of the interview, A responded affirmatively when asked if he missed his father.
  2. The father wholly denies ever striking A with a belt or otherwise. He described with evident emotion that if he could not see A he does not “want to live.” He can “only say (he) never hit A with a belt” and he is “dying to see A.” The father also described what he meant by a “slap or a tap” the words used when he was interviewed by the police in connection with A’s allegations. He said this was not to slap A “badly but to keep him disciplined.”

At the end of my determination on this issue I make the following observations. I did believe the mother when she told me she had not said anything bad about the father although it had been for her “really horrible being separated from her son.” The mother also said that during the time they were together, she had seen the father slap A twice and there had been occasions when he had been pushed and shouted at. She had not told her Solicitor because there had been “so many things.”

 

The conclusion of the judgment is that what father did to the child was not something that amounted to physical abuse (and thus, that it would not amount to any criminal offence).

 

The law in this country is that it is lawful to lawfully chastise a child (that’s a bit redundant, but I was trying to use the emotive word ‘smack’). The line is crossed where the physical discipline becomes a criminal offence.

The Telegraph piece says:-

The Children’s Act 2004 made it illegal for parents in England and Wales to chastise children if blows led to bruising, swelling, cuts, grazes or scratches, with the offence carrying up to five years’ imprisonment.

This is what the Children Act 2004 actually says (it is much, much much less clear cut than the Telegraph summary ) – picking through all of the legal jargon, what it says is “If you have hit a child in such a way that a criminal offence may have resulted, it is not a defence to cite reasonable punishment’  – for most of those offences, the impact on the child would be that the injury caused bruises, marks or fractures (ABH, GBH) or cuts or breaks to the skin (Wounding), but the offence of cruelty or battery don’t require those things.

If you were thinking that the Telegraph has given you legal advice that you can beat your child as long as you don’t leave marks or break the skin, you’d be wrong.  [For example, the sack of oranges scene in the Grifters]

 

 

58Reasonable punishment

(1)In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2)The offences referred to in subsection (1) are

(a)an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm);

(b)an offence under section 47 of that Act (assault occasioning actual bodily harm);

(c)an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).

(3)Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4)For the purposes of subsection (3) actual bodily harm has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.

(5)In section 1 of the Children and Young Persons Act 1933, omit subsection (7).

 

 

Right, so let’s get back to that first paragraph of the Telegraph story – the lead of the whole article

Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday

 

I think that it is a fair reading of the case that the Judge suggested that. I don’t think it is quite what she meant, but it is a common-sense reading of what paragraph 67 says.

If, however, someone reads this to mean that immigrant parents have a ‘get out of jail card’ or that they can hurt their children in a way that would get a British parent into trouble but they would get off scot-free, and that this is now the law in this country, that wouldn’t be right.

Firstly, as the case was not decided on that particular point, the remarks would not be binding on any other Court.

Secondly, the Judge wasn’t deciding here that as a matter of principle different standards apply. She was taking into account the individual circumstances of the parents in deciding whether what happened to this child constituted something that would be a barrier to the father having contact with him.

 

I can’t defend the case entirely. I think it is significantly flawed. When I read it, I can’t ascertain whether the Judge found that

a) As the child said in the police interview, father hit him with a belt on his back and legs and that it hurt, it left marks but the marks went quite quickly; OR

b) as the mother said, she had seen father slap the child twice; OR

c) as the father said, that he slapped or tapped  the child as reasonable discipline

 

It is such an important point that it is really quite problematic that the Judge doesn’t say whether she concluded that the child’s account was right or that father’s account was right.

For example, if the Judge had said :-

I find that the father did smack his child on the back of the leg for being naughty, but that this caused no lasting harm to the child.

 

I suspect that it wouldn’t really be in the Press to the extent that it is. I certainly think that the majority of the Telegraph’s readers (and possibly mine too) would nod in agreement with that sentiment.

Whereas the reading of

The father hit his child with a belt, but that’s okay because he was an immigrant

is obviously newsworthy.  [And the readership of the Telegraph and my readers would not be nodding in agreement, but reaching for either a pen, a keyboard or a revolver]

 

And because such an important piece of information is not clear in the judgment (we know that the Judge concluded that WHAT happened to the child was not that serious, but not WHAT she concluded had happened), it does cause legitimate confusion.

The inference has to be that it was the hitting with a belt that she believed happened (since if it was the smack for reasonable punishment, then most of paragraph 67 doesn’t need to be said at all, since this would be within the boundaries of acceptable parental behaviour, whether the parent was from Clapham or Calcutta)

and that then leads to the Press reporting that the Judge is suggesting that a parent from Calcutta in this situation is to be treated differently to a parent from Clapham.

 

Going back to my original question – is the Telegraph piece accurate?  Well, it isn’t inaccurate. The judgment here is unclear about what father was found to have done, but then goes on to excuse what he has done. Part of that is because the effect on the child was very temporary and transient * , but part is the cultural issue set out in paragraph 67.

 

* There might be those who consider that this is not a helpful way of looking at it – a child can recover from the physcial signs of  a bruise on the face in a few days, but the emotional impact can be much more than that. I haven’t been a child for many many years, but I can still vividly recall each and every occasion that an adult struck me in rage as a child.  Whereas the reasonable smacks I got for being naughty are long forgotten. The bruises from a violent assault fade much more easily than the memories.

I think that paragraph 67 is not terribly helpful, and if an argument was being developed in that way it needed more space within the judgment.  I don’t read anyone within the case as having run the argument as “Father did X, but we do X in India”

Father’s case was that what he had done was reasonable chastistment (in Clapham) not, that what happened might have been unreasonable in Clapham but it was reasonable in Calcutta.

 

I’m not sure that the controversial parts of para 67 needed to go in the judgment at all, or play any part of the decision-making. This wasn’t one of those cases (and they do happen) where a parent says “I did do X, and I now know that X is considered wrong in this country, but it isn’t where I’m from”

 

It would be worrying if as a result of the reporting of the story  (and I’ll stress that I don’t think the Press are either inaccurate or irresponsible in their reporting on this), that social workers formed the view that if they are told that a recently arrived immigrant had hit their child with a belt, they should not take that seriously and not take action if they consider it appropriate.  Or that a lawyer thought that as a result of this case, that wouldn’t be capable of establishing threshold.  It would also be worrying if a parent thought that they are being treated more harshly than a parent just arriving from another country would be.  OR that a parent who is in a relationship with someone recently arrived from another country thought that it was okay for their partner to discipline the child with a belt.

For me, the cultural issues are about understanding, rather than condoning. There are parts of the world that tolerate, support, believe in Female Genital Mutilation, and we can understand that parents who have arrived in the UK might have those views, but we can’t condone them acting upon them.  We have to judge all parents on the standards of what is acceptable and lawful in the UK, though we can understand that those standards can be different in other countries.

 

 

 

The ‘were babies murdered’ case

 

I know that this has been attracting a lot of attention of my commenters, and that it has been quite divisive. As I said at the time, I didn’t know the full facts and from what little I had it sounded like an incredible story that would require compelling evidence to be true.  I don’t think that any of the cases alleging Satanic abuse have ever amounted to be anything more than fantasies or concoctions.

The High Court, having examined the evidence reaches the conclusion that none of the lurid allegations are true. And also that the people who had been shouting the loudest about the allegations had abused the children to get them to say these things, had been giving them cannabis and had caused them injuries.

 

P and Q (Children : Care Proceedings: Fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/26.html

 

I am going to be clear from the off here – whilst I am happy for people to comment and debate on this story, I will take down any post that asserts or insinuates that the people named in this judgment as being wholly innocent of these dreadful accusations has done any of those things. There are probably dozens of places on the internet where you can do that if you want to, but this won’t be one of them. Nor will I allow any comments which name the children. [If you want to say “I believe the mum and Mr Christie” then I think you are utterly wrong about that, but I won’t stop you saying that]

 

 

I know that there will be people who remain convinced otherwise, who have seen the films for themselves, made up their own minds and will view this as being a cover-up. Nothing I say is likely to change your mind about that.

 

For those of you who don’t know, what is this case all about?

  1. The subject children have been named repeatedly on the internet. Their photographs and film clips in which they feature have been published and re-published widely. Filmed police interviews of the children have been uploaded on to publicly accessible websites; so, too, intensely personal information relating to both children. As at 10 March 2015, more than 4 million people worldwide had viewed online material relating to this case.
  2. It is inevitable that a large proportion of those have a sexual interest in children. Any rational adult who uploads film clips to Youtube featuring children speaking about sexual activity must be assumed to realise that fact.
  3. I considered but ultimately rejected the suggestion that the children’s names should appear within the judgment. My priority is to protect them from further harm of whatever kind. Those who have posted material identifying the children have done so with flagrant disregard for their welfare interests. I see no good reason for adding to the damage already done. Only those with prurient or unhealthy curiosity will take steps to identify the children. My faith in humanity indicates that the overwhelming majority of individuals will do nothing because they, like me, have no interest in inflicting further harm.
  4. In the period before 13 January 2015, there had been some relatively limited online publication of court and other relevant material. It had been my hope that after discussion with the mother and her McKenzie Friend on 13 January, there would have been withdrawal of material from the internet. Since about 26 January the volume posted in a variety of formats on different sites has increased markedly; and the claims made against the father, the children’s former head teacher, other teachers, professionals and a very large number of parents at the children’s former school have proliferated.
  5. Many of those individuals are now living in fear because they have been identified on the internet as abusers of children and their contact details including telephone numbers, home and email addresses have been published. Lives have been disrupted. Several of those implicated have received malicious, intimidating ‘phone calls and emails at all hours of the day and night from all over the world. For example, “Hey cock. We’re coming for you. You scum paedo.
  6. It has been necessary for the police to protect worried parents and children at the gates of the school in Hampstead at the centre of the allegations. Prospective parents have wondered whether to withdraw their children from allocated places. Existing parents have been uniformly supportive of the school and every member of the teaching staff.

 

The Court had been asked as part of care proceedings, to consider all of the evidence and reach conclusions as to whether these allegations were true.

 

They all arose from two children, P and Q, and specifically from films that were taken of them making very strong allegations, principally about their father but then involving many other people.  These films had been taken by their mother and her partner. The films had then found their way onto the internet and had been viewed by millions of people (many of whom took them at face value)

 

  1. This necessarily lengthy judgment has one essential purpose. It is to provide definitive conclusions upon a quantity of evidence at the end of a thorough-going hearing. I have surveyed the relevant history as well as all of the significant developments in a wide-ranging police and social services investigation. Everything of importance on all sides of the dispute has been considered so as to enable me to arrive at authoritative findings.
  2. These are care proceedings brought by the London Borough of Barnet relating to two children, P and Q who are 9 and 8 years old respectively. Their parents are Ella Draper and Ricky Dearman.
  3. In September 2014, lurid allegations of the most serious kind were drawn to the attention of the Metropolitan Police. In a variety of ways, it was suggested that P and Q were part of a large group of children from north London who had been sexually abused, made to abuse one another and that they had belonged to a satanic cult in which there was significant paedophile activity.
  4. Specifically, it was said that babies were supplied from all over the world. They were bought, injected with drugs and then sent by TNT or DHL to London. The assertions were that babies had been abused, tortured and then sacrificed. Their throats were slit, blood was drunk and cult members would then dance wearing babies’ skulls (sometimes with blood and hair still attached) on their bodies. All the cult members wore shoes made of baby skin produced by the owner of a specified shoe repair shop.
  5. Children, it was alleged, would be anally abused by adult members of the cult using plastic penises or “willies.”
  6. Christchurch Primary School in Hampstead was said to be where the “main action” occurred but at least seven other local schools were named. East Finchley swimming pool was identified as one of the other meeting venues for the paedophile ring. Rituals were performed, so it was claimed, in an upstairs room at the McDonald’s restaurant where the “boss” allowed child sacrifice because he was a member of the cult. Human babies were prepared, cooked in the ovens within a secret kitchen and then eaten by cult members.
  7. It was alleged that the children’s father, Ricky Dearman, was the leader of the cult and that others included the children’s headteacher, Ms Forsdyke, another teacher, Mr Hollings, the priest at the adjacent church, a large number of named parents of other children, social workers, CAFCASS officers and police officers. It was said that, in all, more than a hundred people were involved in ‘doing sex‘ to the children.
  8. I am able to state with complete conviction that none of the allegations are true. I am entirely certain that everything Ms Draper, her partner Abraham Christie and the children said about those matters was fabricated. The claims are baseless. Those who have sought to perpetuate them are evil and / or foolish.

 

But, some people will be saying, the children said these things – they must be true, or why would they say them?

  1. All the indications are that over a period of some weeks last summer, P and Q were forced by Mr Christie and Ms Draper, working in partnership, to provide concocted accounts of horrific events. The stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is a strong word but it is the most accurate way to describe what was done to the children by Mr Christie in collaboration with Ms Draper.
  2. The children were made to take part in filmed mobile ‘phone recordings in which they relayed a series of fabricated satanic practices. Subsequently, at the instigation of Abraham Christie and Ella Draper, the children repeated their false stories to Jean-Clement Yaohirou, Mr Christie’s brother in law, in a late night discussion. It lasted for about three hours; Mr Christie and Ms Draper did most of the talking.
  3. P and Q were ABE (Achieving Best Evidence) interviewed on 5, 11 and 17 September 2014. On the first two occasions, they supplied information about events they claimed had occurred, similar in their overall content to the mobile ‘phone video clips and audio recording. On 17 September, in ABE interview, both children withdrew their allegations. Each stated they had been made to say things by Abraham Christie, the mother’s partner, which were not true; and they gave very full details of the way in which he had secured their compliance.
  4. Ms Draper and Mr Christie have not participated by being present in court. I am as sure as I can be that their absence has been deliberate. They have chosen to remain away; but the internet campaign has continued. Countless online articles have been posted in which the truth of the satanic abuse claims is asserted repeatedly. Notwithstanding injunctions restraining Ms Draper and Sabine McNeill, one of her supporters, from publishing information from the proceedings on the internet or elsewhere, such material continues to be uploaded. Efforts to persuade internet servers to remove material have been of only limited value. As soon as information is removed by one provider, it emerges elsewhere.

 

You may pick up as you read the document, that the mother was not present in Court for most of the hearing, and no doubt a Telegraph journalist is already preparing a piece about how she was refused a voice. Just to clear that particular topic up – she was entitled to free legal representation, she had that representation and sacked them, she had a McKenzie Friend and refused to come to Court.

  1. The mother’s and Mr Christie’s participation
  2. In the initial stages of the proceedings, Ms Draper had the advantage of representation by experienced Solicitors and Counsel. On 10 December 2014, at court, she dispensed with her legal team. My first involvement with the case was on 13 January 2015. Dates were secured for this hearing as follows: 17 – 20 February, 3 – 6 and 10 – 12 March. On 13 January, the indications from Ms Draper were that once again she would avail herself of legal representation.
  3. Until 26 January 2015, the mother appeared as a litigant in person assisted by McKenzie friends. On 9 February my clerk notified the parties, by email, that there would be a hearing the following day. Ms Draper failed to attend court on 10 February when mandatory and prohibitory injunctions were made against her. Ms Draper has not filed further evidence nor any schedule of the detailed findings sought as directed by my order of 20 January. Arrangements had been made for her to attend at the offices of the local authority to collect the final bundle and Practice Direction documents. Ms Draper did not attend although her email communication had suggested she would.
  4. The oral evidence began on 17 February. At 08.51 that day, my clerk received an email from Ms Draper in which she asked permission for her McKenzie friend, Belinda McKenzie to represent her and her parents’ interests in court. Ms Draper stated that she had been “prevented from being present in the court” and that Ms McKenzie had her “formal instruction to convey (her) position.” Ms McKenzie reiterated that request at the beginning of the hearing. But, as I explained to Ms McKenzie, in circumstances where the mother herself was absent, the Practice Guidance relating to McKenzie Friends expressly prohibits such an individual from acting as the litigant’s agent or from conducting the litigation on her behalf. In Ms Draper’s absence, it seemed to me that there was no proper role for Ms McKenzie.
  5. In response to my inquiry, it was established that Ms McKenzie remained in contact with Ms Draper. She assured me she would pass on a message urging the mother to participate by coming to court and informing her that the hearing would continue in her absence. Outside court on 17 February, Ms McKenzie apparently indicated to the local authority’s legal team that Ms Draper was in the process of instructing a lawyer. However, at no stage, has there been any contact with anyone purporting to act on behalf of Ms Draper.
  6. The mother has remained absent from the court. Her partner, Abraham Christie was outside the front entrance of the building on 17 February as part of the group campaigning for the “return of the ‘Whistleblower Kids’ to their Russian family.” A witness summons was issued requiring his attendance to answer questions on Friday 20 February. Attempts to serve that summons were unsuccessful.
  7. Earlier attempts at securing Mr Christie’s participation in the proceedings because of the likelihood that the local authority would seek findings against him were wholly unsuccessful. A series of communications from the local authority’s Solicitor went unanswered.

There is no substance in the assertion that the mother has been prevented from participating at this hearing. If she had been arrested on 12 February in connection with harassment allegations, the overwhelmingly likelihood is that she would have been released on bail enabling her to come to court on 17 February. If she had been remanded in custody, I would have been in contact with the police and prison authorities so as to make appropriate arrangements for Ms Draper’s attendance at court.

 

The mother instead chose to fight the case on the internet rather than in Court.

 

  1. Within her position statement for 26 January hearing, written for her by Ms Sabine McNeill as she later revealed, the mother made a thinly veiled threat as to what would happen if the children “were not returned to their mother and grandparents with immediate effect.” Ms Draper stated that the consequence would be “high level embarrassment.” An open letter to Theresa May, the Home Secretary, posted on the internet, explicitly states that the Position Statement was “our offer NOT to expose this scandal in exchange for returning the children.”
  2. The clear message from recent events is that whilst Ms Draper is prepared to campaign using the internet she is not willing to take part in this inquiry.

 

The Judge goes through the detail of the films that were taken of the children in which the mother and Mr Christie draw these allegations out of the children. They make for very depressing reading. I haven’t the stomach or heart to put them all in. Please though, if you are immediately wanting to line up with the parents against the evil State and the corrupt and wicked Courts, read the judgment first and see if these are people that you really want to give your support to.

I’ll just give you the final bit

Towards the end of the recording there is a passage when the children and Mr Christie are all shouting, excitedly, “Kill, kill, kill.” Mr Christie urges the children to “Say it… Say it how they say it.” A. “Kill, kill, kill.” …. Mr Christie, “What’s the word that you say?” A. “Kill.” Mr Christie, “Say it more for me. I want to hear it…. I like the sound of it. Can you say it together, say it, let’s all say it together.” There is then repeated chanting of the word “Kill” and a little later of the phrase, “Kill the baby.” Once more Mr Christie urges the children on saying, “Let’s say it together. Let’s say it together. Kill the baby.” And they do.

 

The Judge, who had read everything, watched everything, and seen the witnesses give evidence, had this to say about the children’s presentation in the ABE interviews they originally gave to the police after the mother and Mr Christie made their complaint and provided them with films.

 

  1. Again and again, as I watched the interviews of 5 and 11 September my sense was that the children, for the most part, were in the realms of fantasy. There was an urgency and an excitement about what they were saying as the detail became ever more elaborate. It was as if they had been transported away from reality and into dream land. There were obvious parallels in what P was saying with some aspects of the story line in C.S. Lewis’ ‘The Lion the Witch and the Wardrobe.’
  2. There was no change in the presentation of either child when they described apparently horrific acts as experienced by them and others. There did not appear to be any emotional connection with what they were saying except that they seemed energised.
  3. The other significant deduction is that material supplied by P relating to the physical abuse of both children by Mr Christie in order to get them to talk should alert any sensible observer to the potential for false reporting.

 

 

The conclusions are stark

  1. Overall conclusions in relation to Ms Draper’s allegations
  2. In addition to my findings already made both within the opening paragraphs of the judgment and subsequently it is necessary to consider how and the extent to which the children have been harmed.
  3. Both P and Q have suffered significantly. Their innocence was invaded. Their minds were scrambled. Their grip on reality was imperilled. They were introduced to sexual practices of which they had no real understanding at a time when they should have been shielded from such things.
  4. Perhaps most significantly of all, the children were made to absorb and repeat on film and in interview grotesque claims against so many blameless people including the father whom they love.
  5. I have no doubt but that the physical injuries described by the children as having been inflicted by Abraham Christie were, indeed, caused by him. I reject as baseless Ms Draper’s suggestion that instead Mr Dearman was responsible. A straightforward conclusion given that neither child had seen him for about three months at the time of Dr Hodes’ examination and subsequent police photography. Those photographs clearly show recent rather than healed injuries.
  6. There is good evidence to find, as I do, that in the three months leading to their reception into care both children ingested cannabis. Scientific analysis revealed that both children had metabolites of the drug (THC) in their hair – a finding which could not be explained by ingestion of ‘hemp based products’ because none would contain sufficient levels of cannabis to produce the metabolite. It is impossible for the analysts to say whether the children had ingested the drug whether by passive smoking or oral ingestion. However, the children were clear in interview when describing the way hemp was made into soup using the juicer.
  7. The amounts found in the children’s hair samples suggested their ingestion had not been, as Ms Cave of Lextox described, a “one-off” but regular over the period. It is hard to imagine how any parent could deliberately expose a child to an illegal drug. But it may have been part of Mr Christie’s and Ms Draper’s plan so as to gain the children’s compliance. I need hardly say now profoundly damaging it was to administer illegal drugs to a child.
  8. The posting of film clips featuring the children speaking about sexual matters has exposed P and Q to the potential for very serious embarrassment and humiliation in the years ahead maybe, even, throughout the whole of the rest of their lives. Doubtless they will grow and develop so that their visual appearances will alter. But it may be difficult to shield them from unwelcome interest and reputational damage unless radical steps to divert attention are taken.Final thoughts about the investigation
  9. If there is one key message at the end of this inquiry it is that it is not and never will be sufficient to consider just one or two evidential features in isolation. It is always necessary to take account of all the material not just a selection. Those who arrived at their own early conclusions on the basis of partial material were woefully misguided.
  10. The individuals who have watched online film clips, read online articles and believed in the allegations would do well to reflect that ‘things may not be what they seem’ and that it is all too easy to be duped on the basis of partial information. There are many campaigning people, sadly, who derive satisfaction from spreading their own poisonous version of history irrespective of whether it is true or not.
  11. Proper consideration should always be given to the context within which allegations are made. In this instance, years of court conflict over the issue of contact and Ms Draper’s antipathy for Mr Dearman provided fertile territory for the creation of false allegations and their reiteration by the children.
  12. The history of the key protagonists may also play a part in untangling the intrigue so as to get at the truth. Mr Christie has a background of criminality for drugs offences, violence and dishonesty. More recently, he received a police caution for assaulting his adolescent son.
  13. Finally, that it is never possible to predict how a court inquiry of this kind will unfold. Against the preconceptions of many including my own, when the maternal grandparents gave evidence on 4 March 2015 they made their views about the allegations plain. They consider them to be “total nonsense and fantasies.”
  14. This is a summary of my salient findings – • Neither child has been sexually abused by any of the following – Ricky Dearman, teachers at Christchurch Primary School Hampstead, the parents of students at that school, the priest at the adjacent church, teachers at any of the Hampstead or Highgate schools, members of the Metropolitan Police, social workers employed by the London Borough of Camden, officers of Cafcass or anyone else mentioned by Ms Draper or Mr Christie.

    • The children’s half brother, his father and stepmother – Will and Sarah Draper – are likewise exonerated of any illicit or abusive acts involving the children.

    • There was no satanic or other cult at which babies were murdered and children were sexually abused.

    • All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.

    • The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr Christie in collaboration with Ms Draper.

    • Both children were assaulted by Mr Christie by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.

    • The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.

 

Having had a discussion with Ian from Forced Adoption this week, I said that I had very mixed feelings when a Court imprisons a parent for speaking out about their case – I’m not at all sure that it is the right solution for a difficult problem and I would rather it didn’t happen.  I would not have those mixed feelings in this particular case.