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Police disclosure and the LA role in care proceedings

 

This is a case where the High Court were looking into what had caused the death of X, an 8 day old baby, and what that might mean for where Z her 22 month old sister would live. Understandably, there was a police investigation into the death of X running in tandem to the care proceedings, and the police had a lot of material within their possession. Various court orders were made for the disclosure of police material, which ended up coming into the possession of the parties to the care proceedings in dribs and drabs, and every batch of documentation alerted them to the presence of more material.

 

I’m afraid that if you are a Local Authority lawyer, this case is about to place a lot of additional responsibilities on you. Sorry for that. You may want to nip out and buy a packet of chocolate Hobnobs to nibble on during the post, because you will need some comfort and calories.

 

  1. The fact-finding hearing was beset by problems arising from the late disclosure of material held by Lancashire Constabulary [“the police”]. It was not evident until day five of the hearing that the police held material of potential relevance to the issues I had to determine. With the assistance of counsel and the officers assigned to the investigation into X’s death, the court was provided by day nine of the hearing with an additional 900 pages of material. The hearing itself was significantly extended by both the process of disclosure undertaken at court and by the need to allow counsel time to digest and take instructions on this material.
  2. It will be obvious that the non-disclosure by the police of potentially relevant material could have both prejudiced the right of X’s parents to a fair hearing and deprived the court of information which might have shed light on what happened to X whilst in the care of her parents. That this could have happened in a case of such seriousness was bad enough but, in this case, the potential unfairness was magnified by the vulnerability of X’s mother who had been assessed as requiring the assistance of an intermediary throughout the hearing. Had it not been for the diligence of counsel and the time I allowed for instructions to be taken, the entire hearing might have been fundamentally compromised on fairness grounds.

 

This judgment, of Knowles J, considered the representations made by the Local Authority and the police about how this had emerged and what could be learned for the future.  I think its a beautiful judgment, and it captures a lot of important issues.

 

 

Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018)    

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1819.html

 

 

For example, this is the best summary of the fundamental problem in police disclosure that I’ve seen

 

Simply put, disclosure is requested by those who don’t know what there is from those who don’t know what is needed. Thus, the parties to family proceedings don’t know what material is held by the police and so draft orders as widely as possible, imposing a significant burden on police disclosure officers. Conversely, the police have a poor understanding of the wide evidential canvas upon which the family court makes decisions and inevitably view the question of relevance through the narrow prism of criminal proceedings. In good faith the police provide what they think the family court needs but the reality is that they are ill placed to judge.

 

 

EXACTLY !

 

 

And that’s why we end up with orders asking for ALL MATERIAL held by the police, and why the system grinds to a halt. We don’t know what they HAVE, and they don’t know what we WANT

 

There are some other good judicial remarks about the role of the Local Authority in care proceedings, and I think these are really important, and it is helpful to have them all set out in one place.

 

As is required of crown prosecutors in criminal proceedings, local authorities must ensure that the law is properly applied; that relevant evidence is put before the court; and that the obligations of disclosure are complied with. Like crown prosecutors, the local authority must be fair, independent and objective and should always act in the interests of justice and not solely for the purpose of obtaining the order it may seek in public law proceedings. If it be thought that all the local authority requires from the police is material that will assist its case, that would represent a profound misunderstanding of the local authority’s duties to the court.

 

In the Court process, the Local Authority aren’t able to approach the case simply in terms of ‘winning it’, they have the duty to play fair as well.  I’m sure that this will attract comment, but it has always been my understanding that this is what a Local Authority has to do, and perhaps it was overdue a reminder.

 

The Judge notes at the outset that there is no cost-neutral way of solving these problems, and if you don’t already know that in such a scenario this cost burden is about to fall on the Local Authority then I wish I had your innocence.

 

  1. The other reason the existence of undisclosed material might not have been apparent is that the necessary forensic analysis of what had been disclosed was not carried out by the parties to these proceedings prior to the start of the fact-finding hearing. This might have made apparent some of the omissions in disclosure which emerged at the hearing itself. The current arrangements for public funding do not encourage advocates in the family justice system, who are often under considerable pressure, to analyse vast swathes of material in advance, for example, of a directions hearing. They simply do not get paid to do so. It is regrettably often only when the actual hearing is being prepared that anomalies in disclosure become obvious. To their credit, Miss Taylor QC and Mr Rothery both conceded that some of the evidential anomalies in this case would have been apparent from a close reading of the evidence as and when it was disclosed by the police.
  2. There is no simple cost-neutral solution to these problems. However, the applicant in public law proceedings – the local authority – must prove its case and, in so doing, must be alive to the strengths and weaknesses of all the evidence before the court. I regard that statement as supportive of the dicta of Ryder LJ in paragraph 36 of Re W (Care Proceedings: Functions of the court and the local authority) [2013] EWCA Civ 1227 namely, that proceedings under the Children Act 1989 are quasi inquisitorial in that the judge has to decide both whether threshold is crossed and the basis upon which that is so, whether or not the local authority or any other party agrees. It seems to me obvious that a local authority, with the greater resources available to it, will bear the lion’s share of the burden of assisting the court to determine not only its application but also any other pertinent issues in a case. It does so by ensuring that the evidence – from whatever source – is complete and in order and it takes the lead in ensuring that case management directions have been complied with. For a local authority to act in that impartial manner in public law proceedings is to facilitate the court’s quasi inquisitorial role in a process which is fair to all parties. In saying this, I make it plain that the other parties to proceedings are not absolved from their duties to cooperate with the court and comply with the court’s directions. Rather, the onus on the local authority, as the state agent in care proceedings, to conduct itself fairly and to assist the court is necessarily greater.
  3. None of the above is novel. As is required of crown prosecutors in criminal proceedings, local authorities must ensure that the law is properly applied; that relevant evidence is put before the court; and that the obligations of disclosure are complied with. Like crown prosecutors, the local authority must be fair, independent and objective and should always act in the interests of justice and not solely for the purpose of obtaining the order it may seek in public law proceedings. If it be thought that all the local authority requires from the police is material that will assist its case, that would represent a profound misunderstanding of the local authority’s duties to the court.
  4. To place these observations in context, the case law relating to the disclosure of local authority records in care proceedings has long emphasised the duties of local authorities to be open in the disclosure of all relevant material in their possession. The analysis of the relevant case law by Munby LJ (as he then was) in Durham County Council v Dunn [2012] EWCA Civ 1654 traces the judicial formulation and refinement of those duties [see paragraphs 37-43 in particular]. It bears repetition in the light of the observations I have made about the duty of a local authority to take an active role in preparing a case for determination by the court. What follows draws on Munby LJ’s analysis in the Durham case.
  5. In November 1989, the Court of Appeal had to consider the disclosure of local authority records in the context of care proceedings where allegations of sexual abuse were being made against a parent [R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330]. The interest of the child was emphasised [page 336]:
  6. “… as part and parcel of its general welfare, not only in having its own voice sympathetically heard and its own needs sensitively considered but also in ensuring that its parents are given every proper opportunity of having the evidence fairly tested and preparing themselves in advance to meet the grave charges against them…”

The Court went on to state in the clearest of terms what the local authority’s duties were:

“…Local authorities therefore have a high duty in law, not only on grounds of general fairness but also in the direct interest of a child whose welfare they serve, to be open in the disclosure of all relevant material affecting that child in their possession or power (excluding documents protected on established grounds of public interest immunity) which may be of assistance to the natural parent or parents in rebutting charges against one or both of them of in any way ill-treating the child”.

The practical application of that duty was explained by Cazalet J in Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204 (FD) held at 209-G-210A as follows:

“In R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330 it was held that a local authority who brought care proceedings has a duty to disclose all relevant information in its possession or power which might assist parents to rebut allegations being made against them, save for that which is protected by public interest immunity…

… In my view it is the responsibility of the local authority actively to consider what documents it has in its possession which are or may be relevant to the issues as they affect the child, its family and any other person who is relevant in regard to an allegation of significant harm, and to the care and upbringing of the child in the context of the welfare checklist issues. The local authority should not content itself with disclosing the documents which support its case but must consider itself under a duty to disclose in the interests of the child and of justice documents which may modify or cast doubt on its case. The particular concern should relate to those documents which actually help the case of an opposing party. If there is any doubt about whether the information is relevant, consideration should be given to notifying the affected parties of the existence of the material. Whilst the temptation to invite costly, intrusive and pointless fishing expeditions should be avoided, there should be a presumption in favour of disclosure of potentially helpful information. If documents are obviously relevant and not protected from disclosure by public interest immunity, then the local authority should initiate disclosure.”

  1. Those duties have been underscored by the Strasbourg jurisprudence. In McMichael v United Kingdom (1995) 20 EHRR 205, the court was concerned with care proceedings in which social services and medical reports had been given to the court but not disclosed to the parents though the contents were made known to them. The court held that there had been violations of both Article 6 and Article 8, and in paragraph 80 held that the lack of disclosure of such vital documents was capable of affecting the ability of the parents not only to influence the outcome of the proceedings but also to pursue an appeal. Indeed, Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings. In TP and KM v United Kingdom [2001] 2 FLR 549 [paragraph 82] the court said:
  2. “The positive obligation of the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by a parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.”

Together with the dicta of Munby J (as he then was) in paragraphs 140-151 of Re L (Care: Assessment: Fair Trial) [2002 EWHC 1379 (Fam), [2002] 2 FLR 730, the principles of fairness embedded in the case law relating to the disclosure of records are directly relevant to the positive duties and responsibilities of local authorities I have outlined in paragraphs 40 and 41 above. There is nothing startling or new about any of this.

  1. All the above requires, in my view, that a local authority should take responsibility for ensuring that disclosure provided by the police in proceedings such as these is complete. Anomalies in the disclosure should be brought to the court’s attention as soon as possible. To do this properly takes time and time taken has a financial cost. That cannot be avoided given the seriousness of what is at stake for the children and the adults involved in these proceedings. I, like all of those involved in the family justice system, am acutely aware of the financial pressures on local authorities, but I venture to suggest that time taken to resolve any issues about police disclosure prior to the start of the hearing is likely to save local authorities time and ultimately money.

 

 

Para 45 immediately above is where the bus gets firmly parked in the LA parking space.

 

There you go – it is the duty of the LA to ensure that the police disclosure is full and complete and that material which assists the parents is included within it.

 

para 40   It seems to me obvious that a local authority, with the greater resources available to it, will bear the lion’s share of the burden of assisting the court to determine not only its application but also any other pertinent issues in a case. It does so by ensuring that the evidence – from whatever source – is complete and in order and it takes the lead in ensuring that case management directions have been complied with. For a local authority to act in that impartial manner in public law proceedings is to facilitate the court’s quasi inquisitorial role in a process which is fair to all parties

 

Reading all of those passages, I think it would be a risk for a Local Authority lawyer to assume that police disclosure will be mopped up by Counsel instructed for final hearing. There needs to be an analysis of the disclosure BEFORE that.

The Judge makes a practical proposal for all LA lawyers (and being one, I truly am sorry for ruining your day if you are one too)

 

  1. First, I repeat what I said in paragraphs 33 and 34. It would be advisable if all the police forces in England and Wales checked their own data management systems immediately to ensure that the problem evident in this case is not present in their own organisation. Local authority lawyers should also check with their local police force which data management system is being used to record and collate information any case where disclosure into family proceedings is required and to confirm that the disclosure team in that force has access to the relevant system.

 

Yuck….

 

I like the suggestions regarding the order though.

 

  1. I make the following suggestions by reference to paragraph 110 of the judgment of Francis J in the London Borough of Southwark case [see paragraph 5 above] in which he made a number of suggestions to assist parties in family proceedings where it appeared that the police were not cooperating with their disclosure obligations. Paragraph 110 reads as follows:
  2. “(i) The local authority will make a protocol request to the police at least 14 days prior to the issue of s.31 proceedings. In cases where the issue of s.31 proceedings is immediately preceded by an application for an emergency protection order or the s.31 proceedings are listed upon short notice, the protocol request shall be made upon issue of the s.31 proceedings.

(ii) Not later than seven days prior to the case management hearing, the local authority will issue an application for disclosure against the relevant police authority. The local authority will invite the court to list the application for disclosure on the same day as the case management hearing. The local authority will serve a copy of the application upon the police at least seven days prior to the case management hearing. The senior investigating police officer in the case should be invited to attend the case management hearing and be legally represented.

(iii) In the event that the police wish to withhold any disclosure from the parties, any application should be made by them not less than two days prior to the case management hearing. The application should set out clearly the reasons why disclosure is being opposed and why a redacted version cannot be provided.

(iv) Upon receipt of a protocol request or an application for disclosure, the police will provide a list or schedule of all the evidence and material they have within their possession that is relevant to the central issues in the Family Court case. This list shall address the following:

a) A short description of the evidence/material;

b) Whether the police agree to disclose that particular piece of evidence or material to the parties; and

c) In the event the police oppose disclosure of a particular piece of evidence or material clear reasons must be provided.

(v) At the case management hearing the police will provide the court with the following:

(a) details of any offences;

(b) whether any suspect(s) have been charged or not;

(c) custody status of any defendants;

(d) what bail conditions are applicable;

(e) any criminal court timescales.

(vi) In the event that the police seek to oppose disclosure on the basis that they consider the evidence to be irrelevant to the family proceedings the police will provide a copy of the documents to the court for the court to determine whether or not the evidence is relevant to the family proceedings.

(vii) The local authority will, throughout the course of the family proceedings, continue to liaise with the police as to whether any new evidence is obtained following the case management hearing. The local authority will update the parties and the court on a regular basis as to the outcomes of their liaison with the police.

(viii) Prior to any fact-finding hearing and/or final hearing the police will confirm which, if any, new evidence has been secured following the case management hearing and provide a further list or schedule addressing the issues set out above.

(ix) If the police object to any new evidence or material being disclosed the police must make a PII application as soon as practicable and, in any event, within seven days of that objection.

(x) The recording of any directions made in connection with police disclosure on case management orders should be sufficiently clear so as to enable the reader to have the ability to understand the key decision-making timetable in connection with this issue and the pro forma disclosure order contained within the protocol should be used.

(xi) It shall be the responsibility of the police and local authority to ensure that the police evidence is either disclosed to the other parties or that the court has the opportunity to determine any issue as to its relevance and/or PII application, sufficiently in advance of any fixture so as to enable the fact-finding or main hearing to proceed effectively.”

 

 

Knowles J gives some further guidance

 

  1. An additional step which should take place 5 days prior to any IRH or directions hearing before a fact-finding hearing is for a meeting to take place between the local authority solicitor (with preferably the advocate conducting the local authority’s case) and the police disclosure team. The purpose of that meeting should be to check that the police disclosure is complete and to provide an update to the family court as to the progress of the criminal investigation and the prospect of charge and/or criminal trial. It is not primarily a meeting to provide to the police information about the family proceedings and I suggest that the parties must agree prior to this meeting what the police are to know about the family proceedings. This meeting should be authorised by the court as part of the directions at the case management hearing. If that meeting is unnecessary because full police disclosure has taken place, it can be cancelled with the agreement of the other parties to the proceedings. The meeting should be recorded in the interests of transparency.
  2. Ideally, such a meeting should involve all the parties to the proceedings, but I recognise that those advocates who are publicly funded will be unable to claim payment to attend. In those circumstances, the safeguards I have proposed – such as agreement as to what can be said to the police about the family proceedings and recording the meeting so as not to compromise the advocates acting for the local authority – should be adequate to ensure that the process of police disclosure remains fair and transparent. It follows that, in preparing for this meeting, the local authority should be mindful of its duties to ensure that full disclosure of relevant material takes place even if it considers that a particular piece of evidence requested on behalf of a parent is of little evidential value. It should come to the meeting having read and considered what has already been disclosed and having identified any anomalies or problems in the police disclosure.
  3. At the IRH or directions hearing before a fact-finding hearing, the police – via the suitable senior officer – should provide to the court a signed declaration that the court’s order for disclosure has been complied with.
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Snug as a bug in a rug

 

Well, you write up one case about bugging, and then another one comes along. If I get a third, it is going to have to be entitled “Mind the bugs don’t bite”  (which is what my parents used to say to me when I was a tiny tot before I went to sleep. I’m sure there weren’t actually bugs… They used to say ‘snug as a bug in a rug’ if I was tucked up in bed under the covers.  Perhaps my father had been Gregor Samsa before changing his name)

 

 

"As Gregor SAMOSA awoke one morning from uneasy dreams, HE found that he was very delicious, but that his bedsheets were somewhat greasy"

“As Gregor SAMOSA awoke one morning from uneasy dreams, HE found that he was very delicious, but that his bedsheets were somewhat greasy”

 

You see, here you can get updates about the law, literary references, and information about tasty snacks. It is a one-stop shop for those things.

This case is actually the same Judge, who is probably being very careful about what he says on the telephone at the moment, but this time it is the police doing the bugging of parents, not a parent bugging their child.

 

Cumbria County Council v M and Others 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/27.html

 

In this case, the police were investigating the death of a baby. There were also care proceedings about the baby’s siblings, and the family Court had to consider how that baby had died and whether either of the parents were responsible and whether there were any risks to the siblings. Within the care proceedings, as is usual, there was an order that the police provide ALL of the material from their investigation.

The police provided material, confiming that they had sent everything. That hadn’t gone that smoothly, a witness summons was issued and a representative of the police had to come to Court and confirm that everything had been provided.

Within the care proceedings, a finding of fact hearing took place and the family Court ruled that the father was responsible. The police later charged the father with manslaughter. As part of the criminal proceedings, it emerged that the police had bugged the family home, hoping to hear conversations between father and mother which might incriminate either one of them.

When the Guardian learned of this, they went back to the family Court to inform the Court that there was potentially valuable evidence that had not been disclosed into the family Court case.

 

 

  • his is the second and final published judgment in these family proceedings. The first is reported at [2014] EWFC 18.
  • The proceedings, which concern child A, were thought to have ended in July 2014 when this court determined that her father was responsible for the death of her baby brother K. However, in January 2016, the matter was rightly restored for further consideration by A’s Children’s Guardian in the circumstances described below.
  • This was necessary because of the admitted failure of Cumbria Constabulary to comply fully with orders requiring the disclosure of all material arising from the police investigation into K’s death. A great deal of material was in fact supplied in late 2013 and early 2014, albeit the process was not as smooth as it ought to have been. On one occasion, the second most senior investigating officer attended a hearing before me with a legal adviser and on a later occasion a witness summons had to be issued to ensure that (so it was then thought) all information had been supplied.
  • However one piece of information had not been supplied and did not come to the attention of the parties to these proceedings until September 2015. This was a covert recording made by the police in the parents’ home on 27/28 September 2013, immediately after their release on bail following their arrest. The recording had been authorised under the Regulation of Investigatory Powers Act 2000. It is of poor quality but it includes a conversation involving the mother that on one interpretation might conceivably have been relevant to the accounts given by the parents about K’s death.
  • After the 2014 family court hearing, the police reinvestigated and the father was charged with manslaughter. It was only at an advanced stage in the criminal disclosure process that the Crown Prosecution Service, having itself become aware of the recording, advised that it should be disclosed to the defence. Prosecution counsel also appreciated that it should have been disclosed to this court in 2013 and so advised. At that point the parties to the family proceedings and the court were informed and in due course the Guardian made his application.
  • In November 2015, the father stood trial and, having exercised his right not to give evidence, was acquitted by the jury. In the meantime, the 2014 judgment had not been published so as to avoid prejudicing the criminal trial and, latterly, to await the resolution of the issues surrounding the recording.
  • The Guardian’s application has had three purposes: to make the court aware of what had occurred; to raise the possibility that this court’s findings may need to be reopened; and to establish whether there were any safeguarding issues affecting A.
  • Directions were given, joining the police as a party and directing the filing of evidence by it and by the local authority. In response the Constabulary has filed a full account of events from seven witnesses: two officers involved in the 2013 investigation (including the senior officer who appeared before me), two officers who were respectively concerned with the quality of the covert recording and with record-keeping, one very senior officer who was responsible for the reinvestigation, and two legal advisers.

 

 

There were two issues in the case – firstly, did anything from the tape recording within the home justify re-opening the finding of fact hearing or considering amending those findings? And secondly the practice issues of something so important having been kept back from the family Court despite assurances that EVERYTHING had been provided.

 

 

 

  • The first issue is whether the findings of the family court should be revisited in light of the disclosure of the recording. The threshold for reopening is that there is a real reason, based on solid grounds, for believing that a different outcome might result. Having studied the issue closely, none of the parties applies for this to happen. For my own part, I am independently satisfied that the further information falls far short of crossing the threshold for reopening the case. In particular, the confused and partially audible recording does not cast significant doubt upon the mother’s evidence or supply any plausible alternative explanation for K’s injuries. True it is that the father has not been convicted of any offence and continues to deny responsibility for K’s death, but that is no reason for this court to reconsider its conclusions.
  • There will therefore be no further hearing in this court in relation to these matters.

 

 

Practice issues

  1. Turning to the non-disclosure, I find that the nub of the matter is as follows. The existence of the recording was known to the three investigating officers in 2013, but they did not consider that it had any evidential value. It should have been obvious, in particular to the officer who appeared before me just four weeks after the recording was made, that it had to be disclosed, but it was not. Because of its special status, it was not held on the case file. The Constabulary’s lawyers and the officers who were not involved in the investigation process were therefore not aware of its existence until a much later stage.
  2. The efficient process of disclosure between the criminal and family jurisdictions is essential to the proper administration of justice. It is governed by protocols and on occasions reinforced by court orders. The criminal and family courts must be able to rely on assurances that all relevant material has been disclosed, though in some cases they may have to resolve claims of public interest immunity.
  3. In this case, the process took place against a background where concerns had already been expressed about the investigation into K’s death. Moreover, there was an unusually drawn-out sequence of events surrounding police disclosure. In those circumstances, the failure of Cumbria Constabulary to disclose the recording was particularly regrettable. It has led to further anxiety for the mother and significant extra expense for the public.
  4. However, it is important to record that there is no evidence to suggest that the recording was withheld from the court deliberately or that there was any bad faith on the part of the officers who were responsible. I also note the expression of regret made on behalf of the Chief Constable, reflected in the attendance of the Assistant Chief Constable at this hearing, and the assurances that lessons have been learned from this unhappy episode. In the circumstances, there is in my view nothing to be gained from any further action by the family court. These proceedings are accordingly concluded.

 

 

The lesson may be that simple acceptance of an assurance that all documentation has been provided might not be sufficient – there may be a need to go back with particularised questions “Do the police have X?” “Did the police carry out Y?”

 

 

Judge describes police investigation as “cack-handed”

 

The High Court  (Justice Peter Jackson) has just published a judgment (one that was actually delivered a year ago) which has some significant lessons for practitioners.

Wigan Council v M and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/6.html

 

The opening is as clear and cogent a distillation of the pernicious nature of sexual abuse that I’ve ever seen.

 

  • The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification. Their behaviour is always an abuse of power and usually a breach of trust. They destroy families and blight childhoods. They create dread in their victims by convincing them that the consequences of speaking out will be worse than the consequences of silence. They create guilt in their victims by persuading them that they have somehow willingly participated in their own abuse. They burden their victims with secrets. They poison normal relationships, trade on feelings of affection, drive a wedge between their victims and others, and make family and friends take sides. They count on the failure or inability of responsible adults, both relatives and professionals, to protect and support the victims. Faced with exposure, they commonly turn on their victims, try to assassinate their characters, and get others to do the same. Most often, their selfishness is so deep-rooted that they ignore other people’s feelings and are only capable of feeling pity for themselves.
  • The effects of sexual abuse on the victim can be lifelong, but because of the way perpetrators operate, most abuse goes undetected. It takes courage to ask for help. Victims are beset by feelings of shame, guilt and fear. They should be able to have confidence that their accounts will be adequately investigated and that they will be appropriately supported. Instead, experience shows that the abuse is often compounded by sceptical or inadequate reactions within the family and beyond. It is not always possible to establish where the truth lies, but where it is possible to investigate, there must be a good reason not to do so. The position of a complainant whose allegation is described as ‘unsubstantiated’ is extraordinarily difficult, but sometimes ‘unsubstantiated’ is no more than a euphemism for ‘uninvestigated’.

 

In this particular case, G was 15 years old and made very serious allegations of sexual abuse against her step-father, Mr C.  Although these were reported to the police and social workers, what actually happened was that G was removed from the family home and Mr C remained there with other children, who we now sadly know he went on to abuse.  Dreadfully, one of the siblings that had been abused, B, had been very outspoken during the investigation into G’s allegations that G was lying.

 

 

  • In this case, a 15-year-old girl (who I will call G) told the police and social services that she had been subject to years of gross sexual and physical abuse by her stepfather, who I will call Mr C. Having done this, she was promptly banished from the family home by her mother and forbidden from having any contact with her four younger siblings. She then found a home with a kindly neighbour who looked after her for a year, largely at her own expense. Although the investigating police officer and the girl’s social worker regarded her allegation as credible, she was treated as a child in need and no child protection procedures were invoked; instead, after five months’ absence, it was Mr C who returned to the family home, while G herself remained outside the family. It might well be asked: what was in it for this young person to confide in the authorities if these were to be the consequences?
  • Two months after Mr C’s return, the second child in the family, a now 15-year-old boy who I will call B, told the police and social services that he too had been the victim of exactly the same kind of sexual and physical abuse (though during the earlier investigation he had denied it). He now corroborated his sister’s account and added that Mr C had also made him engage in extreme sexual activity with her, something she then confirmed. High among the distressing aspects of the matter, B described how the abuse continued after Mr C was allowed back into the home.

 

I won’t go into the details of what happened to the children, because it is too distressing and unpalatable for most readers. The judgment is very clear as to why the children’s allegations were true and why Mr C had been proven to have done these dreadful things, and of the failures of the mother to react properly (though she did accept by the time of the hearing that Mr C had abused the children).

Instead, I’ll focus on some of the issues that the Judge identified as failings in the investigative process.

 

 

After the ABE and medical examination of G  (she having alleged that C had been abusing her physically and sexually in unspeakable ways)

 

 

  • On 4 October, a Child and Family Assessment undertaken by the social worker, Ms W, concluded with the decision that the family would be supported via a Child In Need Plan pending the outcome of the police investigation. As part of the assessment G was spoken to, as were the other children. G said that she felt happy and safe living with Mrs D. B said that there was no truth in G’s allegations. The younger children were also spoken to and at a series of meetings work was done to understand their wishes and feelings and to give them keep-safe work.
  • During this period, B wrote a number of fulsome tributes about and to Mr C: for example “I love you more than the world”. In answer to a question “What is the worst thing about my family?”, he wrote “Nothing. Having [G] near him [Mr C] makes me feel uncomfortable in case she says anything else in relation to rumours/allegations about any of my family.” At the same time, B told the social workers that G was a liar and that she was “sick in the head and needs to see a doctor.”
  • The mother told the social workers that G was a liar. She flatly denied that G had told her that Mr C was sexually abusing her or that she had ever seen him hit any of the children.
  • During the preparation of the local authority’s assessment, a meeting took place on 3 October, attended by the mother and by G and B. G was confronted by her mother and brother calling her a liar, while she insisted that she had told the truth. She was very distressed.
  • On 5 November, the police concluded their investigation and determined that no further action would be taken. They did not refer the matter to the Crown Prosecution Service. Mr C’s bail conditions were rescinded and he gradually returned to live with the mother and the younger four children in December after the keep-safe work had been completed.
  • On 20 December, the local authority closed the case. It referred G to its lowest level of support: Gateway Services. She was not even considered to be a child in need.

 

It is almost impossible to read this and not conclude that a decision had been taken that G was a liar and had made up the allegations, which awfully we now know not to be the case. She was telling the truth and if she had been believed, her siblings could have escaped further abuse and harm.

 

It was only really when B made serious allegations of the same sort, and importantly that some photographic evidence was found, that things actually moved forward.

Amazingly, it was not until 13 March 2014 — some nine months after G’s initial allegations — that the local authority lawyers were consulted. Even then, it took another eight weeks for proceedings to be started. There were then a large number of case management hearings, largely directed to extracting information from the police. I agree with the conclusion reached by the local authority and the officer in the case that there should have been an early meeting between the local authority lawyers and the police so that the latter’s files could be inspected. As it was, police disclosure was still arriving on the eve of the hearing.

 

 

These conclusions are tragic and also contain some recommendations as to best practice.

 

 

  • (4) Despite clear warning signs, the statutory agencies did not protect these children. Further significant harm thereby came to G by being excluded from the home and to B by remaining there.
  • The following is a non-exclusive list of the practice issues raised by the evidence:

 

(i) The actions of the police in August 2011 and on 1 June 2013 can only be described as cack-handed. By twice being confronted unexpectedly in the presence of the adults, G was effectively dropped in it. Instead of protecting her, these actions made her situation at home even worse and made it even harder for her to speak about what was happening to her.(ii) Against a background of chronic concerns and previous sexual abuse allegations, the social work assessment of the allegations that G made in July 2013 was superficial and inadequate. As a result, the decision to treat these children as children in need, and subsequently to downgrade their status even further, was plainly wrong. There was no risk assessment whatever. There was no analysis of the issues, merely a recital of facts with no conclusions being drawn – see C270. There was no thinking. There was clear evidence in the form of G’s allegations and the family’s striking response that demanded the invocation of child protection procedures. Instead, G’s emotional needs were forgotten while Mr C returned to the home and in the mother’s telling words “everything settled down”. Had a Child Protection Case Conference been called, it would have been an opportunity for an experienced multidisciplinary assessment of this abnormal situation. Proper consideration could have been given to the real needs of this sibling group. G’s anomalous situation in living without contact with her family in an unregulated private fostering arrangement could have been improved. B could have been protected.

(iii) It is disturbing to consider G’s situation at meetings such as the one that took place on 3 October 2013, where she was made to face the hostility of her family. It is no wonder that she was so distressed.

(iv) It is entirely unsatisfactory that no social worker viewed any of the ABE interviews until October 2014. It is a serious imposition on children to record them speaking about such sensitive matters. The least that they can expect is that their social worker will watch and listen to what they have had to say. If crucial evidence of this kind is not absorbed, it is not surprising if misjudgments follow.

(v) The social workers should certainly have asked for legal advice in 2013, well before the case was closed.

(vi) Although Ms H became the children’s social worker back in October 2013, I am in no way critical of the way that she has carried out her responsibilities. This demanding case was the first to be allocated to her as a newly qualified social worker. She was entitled to rely on her manager for supervision and guidance. The local authority has had the opportunity to present evidence showing what that amounted to, but it has not done so. Having heard Ms H give evidence, the first time that she has done so in any case, I was impressed by her grasp of the issues and her willingness to learn from experience. She inherited a case that had already taken the wrong path and she is not personally or professionally responsible for the consequences.

 

 

 

 

 

X and Y (Children : Disclosure of judgment) 2014

 

This is a case arising from care proceedings where the parents gave evidence about physical injuries to a child, and a judgment was given that the father had caused the injuries and told lies about it. The police sought disclosure (wanted to see) the judgments in the care proceedings. The father resisted.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/278.html

As this case was decided by Baker J, you get the excellent distillation of the law in this area to date  (if I were still of an age where I had to write law essays, Baker J would be my first port of call for finding the answers)

As you probably know if you’ve read this blog before, I have a view on the issue of whether the police ought to be able to USE what is said by a parent in care proceedings in the criminal proceedings. I think firmly that they should not, that the whole ethos of care proceedings is to encourage and promote honesty and that the provisions of s98 of the Children Act 1989 removes a parents right to silence and as a trade-off promises them that what they say can’t be used against them in criminal proceedings for anything other than perjury.

If the police aren’t hoping to make use of the material, that rather begs the question of why they want to see it at all.  Of course it informs and shapes their investigation and the way they put their case and even the questions asked, even if the documents themselves never appear before a jury.

Baker J touches on the critical problem (a problem that keeps getting ducked by the family Courts) here

Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a “previously inconsistent statement” pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.

There are several reported cases in the family Courts where this has been raised, and they have never ruled on whether s98(2) trumps s119 or vice versa. Whilst this is undecided (and one of the cases where it was raised ends with the father who had been silent in care proceedings on advice from his criminal lawyers being committed to prison for contempt), lawyers are going to remain very apprehensive about whether their client’s interests and rights are being properly observed.

The law, at present, is very much in favour of disclosure  (that the police can SEE the documents) – there’s less reported law on whether they can USE the material.

This case only decides that the police can SEE it, and if, having seen it they wish to USE it (ie produce it in the criminal trial, or put it to the parents in police interview) they need to make another application and the Court make it clear that letting them SEE it doesn’t automatically mean that they would succeed in the next application to use it.

A very nice point was taken by the father’s team

    1. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re ECand was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.

 

“Prior to the hearing of the care proceedings, there were five members of SC’s family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

‘Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words ‘or your wife’ and ‘or your husband’. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. “

  1. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case

    1. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.

 

(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father’s article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.

 

      1. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y’s injuries, the court was infringing the father’s article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.

 

“But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.”

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.

 

The Judge didn’t go for it.

        1. I accept that the father’s confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court’s failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father’s right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y’s injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.

 

      1. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.

 

It is a very careful and considered judgment, and much as I dislike the outcome, I think that on the existing law, the Judge got it right. The problem is that I think that the law, as it has developed, has not properly taken account of the potential erosion of the s98 protection against self-incrimination as a result of the inconsistent statements can be put as evidence s119 Criminal Justice Act 2003.  The law which favours disclosure to the police and puts the burden on the parent resisting disclosure emerged prior to s119, and has been relied on to bolster decisions made subsequently. Without properly determining whether, notwithstanding the ability to put inconsistent statements as evidence, s98 prevents the Crown doing so where that statement was made in care proceedings, we are left at sea.

The problem for this particular case is (a) I think the judgment is right, on current law and (b) we already know that the Court of Appeal aren’t interested in the s119 argument, so an appeal isn’t much use; unless one is going to go all the way to the Supreme Court, who would be able to say either s119 trumps s98 and the prosecution of offenders is more important than honesty and openness in care proceedings, or vice versa.

 

(This becomes even more of an issue once all judgments are published, since even if the Court doesn’t give permission, the police who know the Local Authority area, judge who decides the case, date of the hearing and the factual background, will very readily be able to spot that Re H, L and K 2015 relates to real life people, and be able to read all about it online. As will any inquisitive juror…)

Sharing information between care and criminal proceedings

 

There’s a CPS protocol about Disclosure of information in cases of alleged child abuse

http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf

I really do know that there’s too much guidance and directives, and strategy initiatives descending on us, because it has taken me a week to force myself to open the document.  But then I remembered the unofficial motto and raison d’etre of the Suesspicious Minds blog , which is  “I read this stuff, so you don’t have to”

So, I’ll read it and give as short a summary of it as I can bear.  It all kicks into lively exciting being on 1st January 2014  (I’m really not selling this much, sorry)

 

Police to care proceedings

1. There’s a form in there (oh goody, another form) at Annexe D, for a Local Authority to fill in and send to the police, to get disclosure within 14 days.  That sounds as though it won’t be necessary to have a court order to seek the disclosure.  [though they might redact, or keep info back if it would prejudice the investigation)

2.  The CPS are apparently going to give priority to making charging decisions in cases of alleged child abuse where there are linked care proceedings  (so perhaps no more waiting to see how our finding of fact hearing panned out before they make that decision)

 

3. Restrict the requests to relevant material from the police, not a big fishing trawl through everything they’ve got.  Expect to see disclosure requests being more narrowly drawn.

4. Where there are no criminal charges brought, the police will let the LA know and give reasons

 

Care proceedings to police

1. The LA are to let the police know of care proceedings relating to alleged child abuse [again on a form in Annexe D]  – that might be a bit broad, I would tend to construe it as care proceedings where the allegations could consititute a criminal offence where the child is a victim  [I can’t imagine that the intention would be to alert the police of every care case that arises as a result of heroin misuse, for example]

2. The LA let the police have their files, or access to them, expeditiously – but NOT docs filed in the care proceedings*, and let the police know what schools the children attend.  ( *They mean docs created expressly for the purpose of court, and say that for example medical report on the injuries which existed before proceedings but were filed within them, can still be given to the police)

3.  the LA can provide the police with docs from the care proceedings PROVIDED it is for the purpose of child protection, not the investigation of the criminal offence – but the police can’t USE this in criminal proceedings (including showing it to the CPS) without permission from the Family Court.   (That’s a change, since often the HAVE/USE distinction is viewed to allow the police to show the doc to the CPS to aid in charging decision/decisions about whether to make a full-blown disclosure application)

4. If the police/CPS want to make use of court docs from the family proceedings, they will make a formal application – though the guidance is that they won’t actually attend a hearing for that application unless the Judge directs them to, raising the spectre of four parties in the care proceedings rocking up once to say “we object” and then again a week later for the argument.

5. the LA must send to the police/CPS any transcribed judgment (redacted if necessary) that they get in relation to a case of this kind, and should ask the family court to expedite it where it is known that parallel criminal proceedings are ongoing/contemplated

6. There’s provision for Public Interest Immunity applications (I used to do those a lot, until the criminal courts thankfully determined that it wasn’t a DUTY to assert PII all the time, and the LA could restrict the applications for issues which were particularly vital or delicate that there was a wider public interest in not having social services docs get into the criminal proceedings)  – these days, it is only likely to be info on children who are not victims or anonymous referrers identity which is the subject of a PII consideration.

 

Linked directions hearings

 

This is actually new – I’ve done it once or twice in particularly tricky cases, but now there is a protocol which allows the Judge in either limb to consider whether it would be helpful to have a joint directions hearing of the care and the crime, so that any issues /conflict can be thrashed out.  If you were wondering, us family lawyers have to go to the criminal court – the people in wigs and gowns can’t travel to us.  The directions hearings will be linked, but not combined (there are some tricky differences in law and procedure that means just having a joint hearing is not possible). In effect the care people all go into the criminal one and listen, and then if necessary the crime people or some of them will ask to come into the care hearing.

 

Despite my reluctance to read it, it isn’t actually bad, and not as long-winded as it could have been. Nothing immediate springs to my mind as a terrible omission (apart from the guidance being utterly silent as to whether the police can charge for disclosure, which we were promised would be going away. One could argue that given that the guidance doesn’t say that they CAN, that means they CAN’T.  But no doubt those arguments will continue over the next few years)