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Trying to get child back after adoption order made

This case made quite a lot of news last year – parents of a boy born in 2012, who suffered significant fractures. Within care proceedings, there was a finding of fact that the parents had caused these injuries and in 2013, a Care Order and Placement Order was made. In 2014, the child was placed with prospective adopters and an adoption order was made. In late 2015 (3 years after the injuries, and a year after the adoption order was made) the parents were acquitted at the criminal trial.  In fact, the Judge at the criminal trial directed the jury to acquit as there was no case to answer.  (That’s obviously a lot stronger than the case going before a jury and the Jury not reaching a 12 or 10 juror verdict that they were sure the parents were guilty. This was a criminal Judge saying that the evidence showed no case to answer)

Understandably, there’s a lot of public disquiet about whether there’s been a miscarriage of justice here, and what would happen.

 

The law isn’t very helpful to the parents in terms of their ultimate aim to get their child back. An adoption order being overturned after it has been made is very very unusual. I’ve found only 2 reported cases where that happened. One was a step-parent adoption which the birth father had agreed to and later learned that the mother had lied to him, concealing the fact that she had a terminal illness and he would never have agreed to the adoption. The other was

PK v Mr and Mrs K 2015

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

 

Where the child had been adopted by family members who had physically abused the child, who later left them and went back to live with mother. Everyone in the case was supportive of the adoption order being revoked.  I wrote about the difficulties here:-

https://suesspiciousminds.com/2015/08/11/revocation-of-adoption-order/

 

The lead case on ‘oh, maybe we got this wrong, but the adoption orders have been made now’ is  Webster, 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

 

“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.”

 

 

Anyway, in this case

Re X (A Child) 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1342.html

 

the parents went to the Court of Appeal, and all parties there *  supported a hearing taking place to DECIDE whether there should be a re-hearing of the finding of facts taking place, for the benefit of the child having the truth about their life and childhood and the public confidence in fairness of the justice system.

 

(* I add the asterisk, because as you can see from Re X, the adopters – who were at that point the child’s legal parents and had been for over a year, were not told about the circumstances or the litigation and were not parties to the proceedings. I’m not at all sure how that is fair or compliant with their article 6 rights. They were and are in law, the legal parents of the child, and it clearly had an impact on their family life.

Ms Fottrell QC made that same point, and I absolutely agree with her. The President bravely ducks the issue.

At the adjourned hearing, Ms Fottrell set out her clients’ position as being that they “appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the facts following on from the outcome of the criminal trial”, but opposing any application to set aside the adoption order. Although making clear that her clients made no point against any of the parties, Ms Fottrell submitted that the decision to exclude the adoptive parents – X’s legal parents – from the appeal process and the permission hearing in the Court of Appeal was wrong and in breach of both Article 6 and Article 8 of the Convention. I record Ms Fottrell’s submission on the point; it is not a matter on which it would be proper for me to comment.)

 

The case has now come before the President, and he has published this judgment.   Bear in mind that the re-hearing has not taken place, so at this stage the family Court hasn’t decided whether the threshold criteria was wrongly found in 2013, or even whether it was right then on what was known at the time, but on what we know now it can’t stand.  The parents have been cleared and pretty comprehensively in a criminal Court, but the standard of proof is higher there, so it doesn’t automatically follow that any re-hearing would be bound to clear them. It very well might, but it might not.

 

As a matter of law, there isn’t really an easy legal framework for this to operate in. The parents aren’t able at this stage to apply to revoke the adoption application, because the findings in the care proceedings still stand, it isn’t an appeal out of time. So we of course use the Court’s magical sparkle powers of the inherent jurisdiction to have a decision as to whether to have a re-hearing. That’s not automatic legal aid, but it doesn’t say in the judgment that the parents  lawyers are acting pro-bono (for free) so they must have been one of those rare cases where the Legal Aid Agency grant exceptional funding under s10 LASPO.

 

The President reminded everyone that if there was a re-hearing and the findings were overturned, that would not automatically lead to the return of the child, and that the Court are not dealing with that application at all (yet), but of course, it is a prelude to the parents making such an application if the re-hearing vindicates them.

 

 

  • I am not concerned today with any application which may hereafter be made by the birth parents seeking to challenge the adoption order. That is a matter for another day and, in all probability, for another court. It is relevant only because Ms Cover has made it clear on instructions, both in her position statement and again orally, that the present application before me is, at least in part, what might be called the springboard for such a further application. However, as I observed in In re C, paras 44-46:

 

“44 The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: In re W (Children), para 149. In that case, the adoption orders “were made in good faith on the evidence then available” (para 177) and therefore stood, even though the natural parents had suffered a “serious injustice”: para 148. In re W (Children) can be contrasted with In re K (A Minor) (Adoption: Foreign Child) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (p 227) “inept handling by the county court of the entire adoption process” and (p 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application”. Butler-Sloss LJ held (p 228) that: “there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

45 Whether the natural father would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.

46 In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.”

 

  • Likewise here I express no view on a point of no little difficulty and which is, as I have said, a matter for anther day. The significance of it for present purposes is simply that, as Ms Fottrell correctly submitted, success by the birth parents (if they are successful) on the re-hearing of the facts by no means assures them of success in seeking to have the adoption order set aside.

 

 

 

In terms of whether there should be a re-hearing, the President summed up the arguments

 

 

  • The case put forward by the birth parents is simple and compelling. They have been, they say, just like the parents in Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge’s findings being held against them in future, whether in a forensic or in any other context.
  • For different reasons, their desire for there to be a re-hearing is supported by X’s guardian, who submits that it is in X’s best interests that he should know the truth about his birth parents and about what did or did not happen to him.
  • I agree with the guardian. X has a right (I put the matter descriptively rather than definitively) to know the truth about his past and about his birth parents. This has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, Lord Hodson, in the context of disputed paternity, said that:

 

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

To the same effect, in Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145, para 29, Thorpe LJ identified one of the principles to be drawn from the cases as being:

“that the interests of justice are best served by the ascertainment of the truth.”

 

  • But this principle is not confined to issues of paternity, as is clear from Strasbourg law, which recognises it as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, and Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.
  • The wide impact of the principle that, from a child’s perspective, their interests are best served by the ascertainment of the truth, whatever that truth may be, is illustrated by Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

 

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

 

  • There is also, however, a wider and very important public interest which, in my judgment, is here in play. I make no apologies for repeating in this context what I said in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2394 (Fam), [2014] 1 FLR 523, paras 29-30:

 

“29 … We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [[2007] EWHC 136 (Fam), [2007] 2 FLR 597] and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], ‘the system provides a remedy. It requires determined lawyers and determined parties’. So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

[30] Almost 10 years ago I said this (Re B (A Child) (Disclosure), para [103]):

‘… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.’

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”

 

  • In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.

 

 

 

The law on re-opening a case is Re Z, and the President quickly skates through that (having already decided above that there is going to BE a re-hearing)

 

The re-hearing is going to take place in October 2016. That will be four years after the injury, three years after the Care Order, two years after the Adoption Order, and a year after the parents were exonerated at the criminal trial.  If nothing else, this case has not shown that the legal process can react swiftly. The President has also indicated that there may be before then a hearing about how the Press can report the re-hearing (thinking of the Poppi Worthington case, and the press interest there is going to be in this, it might for example include almost-live reporting and tweeting)

https://www.theguardian.com/uk-news/2015/oct/09/parents-cleared-of-abuse-launch-legal-battle-to-win-custody-of-adopted-baby

 

IF the findings are overturned at that re-hearing, there’s still a massive legal mountain to climb for the parents. The guidance in Webster is from the Supreme Court, so it isn’t open to the President to simply ignore it. It does however, give the small chink of light  An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”:

So a Court could potentially find that these ARE highly exceptional and very particular circumstances.  (though showing why very similar circumstances in Webster didn’t meet the test but this one does is going to require some particularly skilful footwork.)

 

I appreciate that people’s FEELINGS about this will be very strong, and many of you will strongly support the parents getting the child back. If I was doing the odds, based on the Webster decision, it is at best a 20% chance, even if they overturn the findings.  The Webster decision, in law, is a really high mountain to climb.  That test, as a Supreme Court decision, is a test that really only Parliament or the ECHR could change. So it is not hopeless for these parents, but legally they have a mountain to climb.

It is certainly true that the public debate and the judicial position on adoption is rather different than it was in 2008 when Webster was decided. It is possible that this will have an impact.

 

A dreadful set of circumstances for everyone involved – if the parents are found both to the criminal AND civil standard of proof to have not injured their child then what has happened to them has been the most awful thing one can imagine. They will have been completely let down by the British justice system.

It is almost impossible to understand how the child would make sense of it. The child’s adopters, who have had this child in their home for two years and who are now the legal parents of that child and consider him as part of the family, and who went into that process in complete good faith have to face months of doubt and anxiety about the future.  It would be nice if whatever the Court finally decide about the adoption order, both his adoptive parents and his birth parents get to play a strong part in his future life, but that in itself would be a brand new arrangement, never tried before in England, and litigation doesn’t often foster that spirit of all parties wanting to work together to do what is best for the child.

 

One thing is for sure, we are going to have a huge public debate about adoption in October 2016 when this case is decided, and an even bigger one if the parents are cleared but the adoption order still stands  (as the precedents suggest that it would)

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A child found to be lying in criminal court, should she give evidence in family Court?

Well, obviously, if the answer to this was “Yes, of course”, it wouldn’t be a very interesting case to write about. So the fact that the Judge in this case said no to a 16 year old giving evidence, twice, is worth reading about. It’s quite long, I’m afraid, but there’s some good stuff in here.

It involves five judgments, all of which were published today. Yes, five.

When this popped up on the feeds, it was nearly a Seven Brides for Seven Brothers moment, but we did eventually stop at five.

Kent CC v D and Others  (1) (2) (3) (4) (5) 2015

The Court were dealing with care proceedings involving three families, which they linked together. When you read the list of counsel that were in the case, it must have been an absolute nightmare to coordinate hearings so that they could all do them, and how even the advocates meetings worked is beyond me.

They are always horrendous when you’ve only got four advocates to get together  (one person always forgets whether it is 5 or half 5, or has a phone line that drops out, or has a hacking cough). Doing it with EIGHTEEN counsel….  Just doing the  introductions must have felt like the “Goodnight ma, goodnight pa, goodnightJim Bob” schtick from the Waltons.

 

 

 

[It was practically mandatory at any camping trip or sleepover that someone had to start doing this when it was finally time to go to sleep. There would be a few moments of unsupressable giggles, then someone would take it far too far and you’d have to get out of your sleeping bag and give said person a dead arm to make them shut up. Apologies if I have rekindled that tradition]

 

By the time all 18 counsel had introduced themselves on day one of the final hearing, it was probably time to go to lunch.

 

 

Anyway, most of the broader interest in this case comes from one child, named Z. Z was at the time of the original hearings 16 years old, and was making allegations that various adults had sexually abused her and involved her in sexual exploitation, trafficking her and selling her for sex. Those allegations had an impact on all three cases (there were other allegations but these I think were the major ones).

 

Some of the parents in the linked care proceedings wanted Z to be called to give evidence.

 

Z was giving evidence in the criminal proceedings, so there was no issue about her CAPACITY to give evidence.  However, she did not WANT to give evidence in the care proceedings.

 

  1. Z was first informed about these family proceedings in early October by one of the police officers, who she is said to have a good relationship with. The officer explained to Z about these proceedings and the possibility of her giving oral evidence using an explanation that had been agreed by the parties in this case. Her response was to say ‘No way I’m not. That means I’d have to go two times and remembering about them makes me sick’. She asked whether the family case concerned her siblings, when she was told it didn’t she repeated her refusal to give evidence in more explicit terms. The police officer reports that she discussed with Z the special measures that could be put in place for her to give evidence, but she stated she could not put her mind to it. Z telephoned her mother to ask for her advice and was heard to say that she felt too much was being asked of her.
  2. Shortly afterwards Z was assessed by a psychologist. One of the matters the psychologist was asked to assess was whether Z was able to give evidence in the family case and then again in the criminal case. The report describes Z as ‘an extremely suspicious person who attempts to gain control of situations’ and described her engagement with the assessment as ‘negative and variable’. It is clear from the assessment she is deeply distrustful of social services and sees them as the reason why she is separated from her parents against her wishes.
  3. The psychologist was not able to complete the psychological tests she wished to undertake, due to Z’s refusal to answer the questions. From her assessment she stated ‘Psychologically Z presents as a person who has a limited ability to concentrate and attend within situations, especially in situations that she does not find rewarding or does not see the necessity of, and of course, situations that she wishes to avoid psychologically because of distress that the memories potentially cause to her. Z appears to be psychologically a person who does not necessarily comply easily with authority and there is a possibility that she could, in my opinion, present as angry and disinterested in a trial situation if she is faced with the recollection of trauma…..I consider that it is highly likely that when Z is distressed she is more likely to respond in an antagonistic way and it is likely that she would in such a situation withdraw or become aggressive or antagonistic, rather than cope with underlying distress and psychological difficulties. This psychological aspect of her functioning, in my opinion, would affect her ability to give evidence and deal with a Court situation. Furthermore, she does have a history of emotional and behavioural difficulties described within her records and if Z is under a situation of acute pressure or distress her behaviour may become inappropriate and disruptive. Such a situation would clearly be detrimental to Z psychological functioning and detrimental in terms of her ability to deal with the Court case.’
  4. In answer to the question about whether Z is able to give evidence initially in the family court and then in the criminal court she states ‘This again is difficult to answer given the information that is available to me both from the background papers and from this assessment. However, I am of the opinion tentatively that Z, with support, is strong enough to give evidence in both courts, but close monitoring of her psychological stability will be needed. I am of this opinion because Z presents as extremely determined to see justice done in relation to her alleged abusers. In my opinion she needs to be enabled to keep her focus on the issue of her receiving a degree of justice in order to facilitate her continued co-operation.’ It is of note that she did not discuss giving evidence in both cases directly with Z during the assessment.

 

 

  1. The social worker’s intention had been to meet with Z for two periods of 3 hours to assess her, however due to Z’s volatile behaviour she only managed to spend 1 hour in her company in total over the two sessions. She said ‘Although Z is sixteen years old, and can present as being a mature young lady, this behaviour is short lived and she will quickly display behaviour which is characteristic of a much younger child if she deems she is not getting her own way’. She said the second visit was more ‘successful’ in that she ‘had a full conversation about her role and what was being asked of her, this too quickly deteriorated and she refused to speak to me becoming rude and aggressive. I am not confident she fully understands the court process and what it means for her, nor am I confident that she will be able to withstand the rigours of cross examination.’
  2. In her conclusions she states ‘Z is currently experiencing a high level of stress. She admits to being very angry and has stated, in no uncertain terms, that she will not give evidence in the family hearing….Z is vehemently opposed to giving evidence in the family case. If Z gives evidence in the family law hearing, prior to the criminal case, it is the view of the local authority with responsibility for Z, that this puts her in grave danger and at risk of significant harm, it is felt that the risk to Z and potentially others is extremely significant and could lead to her being seriously harmed or worse.’ She refers to the concerns about risk of Z absconding, particularly if there is some distance to travel to enable her to give evidence. She continues ‘Z is an emotionally traumatised young girl. Her level of volatility and challenging behaviour evidences this. She has previously received treatment for psychiatric difficulties and she is especially vulnerable in this area….In my professional opinion Z presents as one of the most severely abused children I have met within the area of Child Sexual Exploitation. The majority of the trauma which she has experienced is currently unknown to professionals and the potential for re-traumatising her by placing her as a witness is significantly high and could have lifelong emotional consequences for her…I am of the view that Z should not give evidence in the family hearing and that to call, her as a witness would place emotional stress upon her which would be significantly detrimental to her mental health and could potentially destabilise the current placement.’

 

The Judge, Theis J, in the first judgment in November 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/59.html

 

decided that the child, Z, would not be called to give evidence.

 

  1. In considering how I should exercise my discretion it is important that I remind myself that it is being considered against the backdrop of the court’s objective to achieve a fair trial of the issues in dispute between the parties as to the threshold criteria (see Lady Hale Re W (Children) UKSC 12 paragraph 23:
    1. “The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.”
  1. Having undertaken the balancing exercise that I am required to do in accordance with the guidance laid down in Re W, I have reached the conclusion that Z should not be required to give oral evidence in these proceedings, as I consider it more likely than not the harm that such a course is likely to cause her outweighs the advantages of her giving oral evidence.
  2. I have reached that conclusion for the following reasons:
  1. (1) There is considerable evidence about Z’s vulnerability; emotionally, physically and psychologically. She has been receipt of psychiatric care in the past and has displayed severe emotional vulnerability about her current situation. She is considered to be at risk of absconding and that risk is said to increase if she was required to leave where she currently resides to join a link for video evidence against her wishes. Whilst it is likely the risk of absconding could be managed, the adverse risk to her emotional and psychological health is more likely than not to be considerable by requiring her on two occasions to recall the details of what she has said took place.

(2) I have evidence from a number of sources about her wishes about giving evidence in the family proceedings. Z has made it clear she does not want to give evidence in these proceedings, and it is more likely than not that she would refuse to co-operate with directions to do so by the court. I have carefully considered the context in which she has expressed her wishes; namely to the officer in the case and the social worker. She is reported to have a trusting relationship with the officer, but in their discussions was unable to countenance the prospect of giving oral evidence twice and an important feature from her perspective is that these proceedings did not concern her siblings. As regards the views she expressed to the social worker I have borne in mind her negative views about social services, but the social worker who went to see her was not her allocated social worker, she is an experienced social worker and she saw her on two occasions so was able to assess her views and reactions over a period of time. Her written and oral evidence was clear; Z is unwilling to give evidence in these proceedings. I have carefully considered whether when faced with a direction by this court to give evidence she would, in fact, actually comply. Whilst that is a possibility it is more likely that she would not and, in fact, such a direction is likely to cause her more distress and increase her level of anxiety.

(3) The ‘tentative’ view expressed by the psychologist of Z’s ability to give evidence in the family and the criminal case was done without the information this court has as to Z’s wishes about giving evidence in the family proceedings. In addition this was not an issue that was not discussed directly with Z by the psychologist. Therefore, whilst I take it into account I do not give it the same weight as the direct evidence I have about her wishes not to give evidence in these proceedings and her emotional vulnerability if required to do so.

(4) It goes without saying that providing her welfare needs could be properly safeguarded the Convention rights of all the parties in these family proceedings would be protected if Z could give oral evidence. In principle special measures could be put in place to ensure her evidence is given in a way to protect her welfare. However, that is only one aspect of the discretion the court has to exercise, albeit it is an important one.

(5) I have carefully considered whether any more steps can, or should, be taken to explain to Z the purpose of these proceedings and the need for her to give oral evidence. The LA in their oral submissions suggested that I could undertake that task. Whilst superficially attractive I cannot ignore the points made by the intermediary, who has probably had the most consistent involvement with Z. In her reports she is very clear of the need for there to be consistent support for Z. In the light of the experience of others (in particular the psychologist who could not be seen to be connected to social services) it seems very unlikely that Z will easily be able to comprehend the alternative view of something she is so vehemently against in just one meeting. It is only likely to be considered by her, if at all, if explained by someone with whom she has an established trusting relationship with over a period of time. That is likely to take some time and may not succeed. As the intermediary observed there is a real risk of overloading Z with demands if she is required to give evidence in these proceedings in the context of the situation she is in, namely in the build up to preparing to give evidence in the criminal proceedings. In my judgment the same applies, in the context of her situation now, to any further assessment of her understanding of the purpose of these family proceedings with a view to seeking her agreement to give evidence in these proceedings too.

(6) I have also factored into my considerations the fact that this is not a single issue case. There is a complex background, which even with sensitive oversight by the court would need to be explored in oral evidence.

(7) An important consideration is that it is accepted there is other material the court can consider, both to support and undermine what Z has said. The court will be able to observe the DVDs of Z and all parties will have the opportunity to challenge or support the accounts give by her on the other available evidence. The court will be able to direct itself in advance of making the appropriate factual conclusions. It is acknowledged in the skeleton argument on behalf of the mother in the D case that ‘this may be an increasingly attractive option in the light of the recent evidence filed by XLA.’

 

 

[I’ll pause for a moment – the Judge was clearly very mindful here that Z would not cooperate with giving evidence, and as we now know, whilst a Court CAN compel a child to give evidence and to issue a witness summons, they can’t actually do anything if the child doesn’t come to Court, won’t get in the box or won’t answer questions. They can’t lock the child up.

Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.

https://suesspiciousminds.com/2016/02/11/can-you-compel-a-child-to-give-evidence/     ]

 

Judgment number 2 is the fact finding hearing, where some findings were made – the Judge gave Z’s evidence less weight than if she had been able to be cross-examined and as a result not all of the allegations Z made were found to be proven.

 

That was compounded because there were flaws in the ABE video interviewing process. (Sounds depressingly familiar)

 

  1. As has been made clear in a number of cases the ABE guidelines are important and should be followed. I have been referred to the relevant extracts and have those parts very much in mind. It is quite apparent the Guidelines have not been followed in this case in a number of important respects, in particular:
    1. (1) Pre interview meetings being properly recorded (ABE Guidelines paragraph 2.6)

(2) Avoiding leading questions (ABE Guidelines paragraph 3.61)

(3) The importance of remaining neutral (ABE Guidelines paragraph 2.229)

(4) Repeated interviews (ABE Guidelines paragraph 3.130)

  1. The breach of these guidelines are serious, they have the effect of undermining the reliability of the account being given which I must carefully balance in my assessment of the evidence. This has made my task in this already complex case particularly difficult in the context where I have not heard Z give oral evidence.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/93.html

 

Judgment number 3 is an application for a re-hearing.  In large part, that was as a result of the criminal proceedings mentioned earlier. Z did give evidence, and her evidence was not good.

 

Following the conclusion of the fact finding hearing the parallel criminal proceedings started on 12 January. Two of the mothers in the care proceedings, AK and JE, were defendants in those proceedings together with 5 male defendants facing charges of sexual exploitation concerning Z. Z gave oral evidence in those proceedings over a period of 12 days. In addition prior to giving oral evidence she was able to view her ABE interviews and read her section 9 statements. The memory refreshing procedure was video recorded. The criminal proceedings concluded on 6 March 2015 when HHJ O’Mahony acceded to the application at the end of the prosecution case that there was insufficient evidence for the case to continue on the basis of the inherent unreliability of Z’s evidence.

 

Theis J considered that application for a re-hearing.

 

  1. All parties agree the framework governing applications for re-hearing is set out by the President in ZZ and Others [2014] EWFC 9. At paragraph 33 he endorsed the words of Hale J in Re B [1997] 1 FLE 286 ‘Above all, the court is going to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasion reach different conclusions on the same evidence….the court will want to know….whether there is any new evidence or information casting doubt on the accuracy of the original finding.’ There must be what the President called ‘solid grounds for challenge’.
  2. In considering such applications there are three stages: (1) Whether the court will permit any reconsideration or review or challenge to the earlier finding. (2) If it does, to consider the extent of the investigations and evidence concerning the review. (3) The review hearing where the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.
  3. In summary, it is submitted that new evidence, not previously before the family court, requires this court to re-consider the findings founded in whole or part on the evidence of Z in the schedule dated 6 January. There is no serious opposition to this course by the Local Authority in the case of AK, JE, JC or LF; or by the respective Children’s Guardians or DF (who is now separately represented).

 

That was the legal background to the decision. The factual background was set out in this way.

 

New Material

  1. The new material relied upon to re-open the findings can be summarised as follows:
  1. (1) Z’s oral evidence in the criminal trial (together with the recorded memory refreshing sessions beforehand when she viewed the ABE interviews) which resulted in the conclusion by the trial judge not to allow the case to go before the jury on the basis of the second ground in Galbraith, due to what he considered were the ‘extreme flaws in the reliability and credibility of Z’s evidence’. Z gave oral evidence over 12 days with careful consideration having been given to appropriate safeguards and the use of an intermediary. HHJ O’Mahony’s conclusion was founded on a number of grounds, which included

(i) 8 men being wrongly put in the frame in allegations of rape and trafficking, 2 of whom were defendants in the criminal proceedings. HHJ O’Mahony stated when giving his ruling ‘it is clear from the cross examination based on sound and undisputed disclosure that by mistake, confusion or sheer lies, Z has implicated eight men of serious crime and then in evidence withdrawn the allegations or robustly rejected them as being wholly wrong’. The detailed analysis in the ruling in the criminal proceedings includes some evidence available at the family hearing, although the further inconsistencies, retractions and reasons for retractions in Z’s oral evidence in the criminal proceedings is clearly new.

(ii) The lack of corroborative evidence to support the two weeks Z had said she spent in hospital. That position was largely known at the family hearing although in the memory refreshing stage Z stated that the hospital stay was not true.

(iii) The different accounts Z had given of her return from Town C to Town A, 3 of which were known to the family court, but a further account was given in oral evidence.

(iv) The differing accounts of times she was taken to Town C, she gave a different account in her ABE interview (known about at the time of the family hearing) and in her oral evidence (both in her examination in chief (30 – 40 times) and her cross examination (‘I made a mistake’)). The accounts in the oral evidence are new.

(v) The events when Z was in town A. The documents disclosed Z had been seen by the police, told them her parents were selling her for sex and then Z denied to the police having said that (this was all known in the family proceedings). In her oral evidence she rejected any of the events disclosed in the town A documents had occurred and that all was well throughout her time in town A. In a lunch break during cross examination she was seen on the phone to her mother writing notes which she tried to tear up when the police tried to take them from her. She refused to answer any more questions about town A. When her mother gave oral evidence about the phone call she said Z had told her on the phone that she, Z, had lied about it in evidence before the jury. The account in Z’s oral evidence, and her mother’s evidence about the phone call are new.

(vi) Inconsistent accounts by Z as to whether she had taken drugs voluntarily or not, when the prosecution case was she was forced to take drugs. In her 13 February interview (which was known to the family court) she said she was addicted to drugs. In her oral evidence she said she did not know or remember if she brought drugs or was addicted to drugs. There is reference to a facebook conversation concerning drugs and a video of Z expertly rolling a joint. The oral evidence, facebook conversation and video are new.

(vii) Inconsistent accounts concerning sex with JDI, which were described by HHJ O’Mahony as ‘remarkable’; alleging that in the 6 March interview, denying it in the 24 October interview (both of which were known in the family proceedings) and in her examination in chief and cross examination stating that he had raped her. The content of her oral evidence is new.

(viii) False complaint by Z against her father, she admitted this in her oral evidence. This was not before the family court although her mother gave evidence in the family proceedings that she thought Z had done this as the father had stopped her going out to a nightclub.

(2) Further details emerged in the criminal proceedings about the evidence gathering of DC Verier that puts into question the neutrality of the investigation, which I had already been critical of. It emerged during the criminal trial that DC Verier had been instructed to pre-prepare a statement in section 9 form and turn up at the address with it and present it to Z. This was not disclosed in her evidence during the hearing before me, although it was raised as an issue in cross examination.

(3) The evidence available in the criminal proceedings (notably the evidence of DC Brightman in the voir dire) regarding the circumstances surrounding the ABE interview of CC such that HHJ O’Mahony excluded it under section 78 PACE as having been obtained in circumstances which he considered as oppressive bearing in mind the vulnerability of the witness. The full detail about the circumstances of this ABE interview appears to be new.

  1. The courts overriding objective is to deal with cases justly having regard to the welfare issues involved. The factual and welfare issues in this case could not be more serious or complex. The threshold findings relied upon by the Local Authority are the only basis upon which they are justified, by law, in seeking to interfere with the Article 8 rights of each of the adults and children.
  2. Although the Local Authority submits that the family court was aware of and alive to the significant emotional, psychological and intellectual difficulties of Z and the inconsistencies in her evidence at the time of the family hearing it acknowledges the procedural bind the court is in.

 

You will see that the criminal trial condemnation of the ABE interview went further than the Family Court, indeed excluding the ABE as evidence at all.  [The “voir dire” reference is to a hearing or part of a hearing where argument took place in the absence of a jury as to whether certain evidence could be seen be a jury or had to be excluded. If the Prosecution loses the voir dire hearing to decide whether the jury can see the ABE interview, that would be a massive – if not fatal – blow to the Prosecution case.  ]

 

 

  1. Decision
  1. I have reached the conclusion that in the somewhat unique circumstances of this case that justice requires the applications for a rehearing should be permitted on behalf of AK, JE, JC and LF in relation to the findings identified above. In reaching this decision I have taken into account the following considerations:
  1. (i) The need to balance the public interest in finality in proceedings and minimising delay to a child against the importance of ensuring findings of fact have been correctly determined to ensure matters are justly determined.

(ii) Whilst any further delay is inevitably inimical to the welfare of each of these children in different ways, due to their varying ages and needs, the importance of the court’s findings in each of the cases as to any welfare decisions is clear, and weigh the balance in favour of ensuring the findings are correctly determined.

(iii) It is clearly important for each of these children to know the truth.

(iv) Any findings that involve Z will have an impact on the risk assessments that are undertaken and are likely in each of these cases play a key part in the welfare decisions made by the court, which include whether the children are rehabilitated and/or decisions as to contact.

(v) The credibility of Z was at the core of the Local Authority’s case. It is an issue that has already received careful consideration by this court but the new information from the evidence in the criminal proceedings provides a ‘solid ground’ upon which the findings I made should be reconsidered. It will be necessary for this court to consider again the reliability of Z’s evidence in the light of the new material that is now available.

(vi) Although the outcome of a further hearing cannot be predicted it is possible that the court may reach a different conclusion; a review of the new material may lead to different findings, it may not. The new material raises serious issues for the court to consider.

(vii) The findings that are sought to be re-considered are inextricably linked and should be considered together.

So there would be a re-hearing (there were some findings that would be untouched by the issues over Z’s credibility, and those matters would not be re-heard)

 

Judgment 4 (nearly there) was the decision as to whether Z should be called as a witness at the re-hearing of the fact finding in the care proceedings.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/95.html

 

Understandably, the parents, given that litany of complaints about Z’s credibility arising from the criminal trial, were keen for Z to be compelled to give evidence and have the opportunity to demonstrate that her allegations were false.

Complicating things still further, Z had gone to live in another unconnected Local Authority in foster care, and had told them that she wanted to go back to live in Slovakia with her maternal family, which she duly did. So by the time Theis J was dealing with this, Z was not in the UK and her precise whereabouts were not known.

 

Submissions

  1. An order is sought on behalf of AK and JE requiring Z to give oral evidence, although the difficulties that are presented to the court are acknowledged. They seek an order, in principle, that Z should be required to give oral evidence. They recognise there may be difficulties in effectively enforcing any order as Z is out of the jurisdiction. They submit the court should make that decision requiring her to give oral evidence for the following reasons:
  2. (1) Z should not be permitted to pick and chose which proceedings she participates in. This is particularly so when considering the observations of HHJ O’Mahony regarding the false allegations she has made before and during the criminal proceedings.

(2) By not requiring Z to give evidence this court is depriving itself of the advantage the judge had in the criminal proceedings of being able to observe her oral evidence over a number of days.

(3) There are relevant issues that they seek to explore with Z that were not fully dealt with in the criminal proceedings.

(4) It is acknowledged Z would suffer emotional harm if she was required to give evidence, although the information available to the court is out of date, due to Z’s failure to co-operate with any Re W assessment. It is submitted that Z was able to give evidence over a number of days within the criminal proceedings, and there is no reason why she should not be able to do so if carefully and sensitively handled within these proceedings. It is submitted there is no evidence of grave harm suffered during the criminal process.

  1. The LA does not support the Re W application. They submit
  1. (1) There is no evidence that would indicate a change in Z’s vulnerability and ability to engage with the court to give evidence.

(2) The evidence the court has from Z LA sets out Z’s extreme stress during the criminal proceedings, exacerbated by her frequent attendance and the conclusion of the trial; her extreme stress regarding her previous experiences and her family leaving the country without her; her anger at being placed in secure accommodation and her reluctance to provide any evidence in relation to any more proceedings; her intention to kill herself if she was not allowed to join her family in Slovakia.

(3) In the updated statement dated 8.7.15 XLA state that since their previous statement on 22.5.15 Z has continued to experience high levels of stress in relation to her experiences of having to provide evidence in the previous proceedings and her family returning to Slovakia.

(4) The most recent statement from XLA details Z’s views were sought on three separate occasions in respect of giving evidence in the family proceedings. On each occasion she has been clear she did not want to participate in the proceedings or give evidence.

(5) Although Z has not engaged in an up to date assessment XLA report that in any event the psychological aspect of Z’s functioning would affect her ability to give evidence and deal with a court situation.

(6) The court has significant additional material to consider in its evaluation of Z’s accounts; video recording and notes from the memory refreshing exercise and transcripts of all of her evidence in the criminal proceedings.

 

 

The Judge decided not to make orders compelling Z’s attendance as a witness

 

Discussion and Decision

  1. The inherent difficulties in dealing with family proceedings that involve vulnerable witnesses have, once again, come into sharp focus in this case. At each stage this court has had to conduct the difficult balancing exercise of seeking to ensure the court has the best evidence available, so that any decision reached is on a secure foundation, against the welfare considerations of the individual witness.
  2. In November last year, faced with a similar application, I determined that the welfare considerations of the witness outweighed the other considerations, and Z should not be required to give oral evidence.
  3. This court is reconsidering this issue in the light of the fact that Z was able to give oral evidence over a number of days in the criminal proceedings, the adverse conclusions reached regarding her credibility by HHJ O’Mahony and that this court has listed a re-hearing of the findings made previously, that were in large part founded on Z’s evidence.
  4. Having now considered this issue again, in the light of the recent events and evidence, I have reached the conclusion on the information available to the court that Z should not be required to give oral evidence, as on analysis of that information such a course would be contrary to her welfare and this outweighs the benefits of her giving oral evidence. I have reached that decision for the following reasons:
  1. (1) If Z were able to give oral evidence undoubtedly this court would have the best opportunity of assessing her evidence. It has rightly been referred to as the ‘gold standard’ and it fully protects the Article 6 and 8 rights of the parties, which include the adults and the children. Reliance is placed on what took place within the criminal proceedings where the reliability of Z’s evidence was tested through the forensic process.

(2) However this court cannot ignore the evidence it has concerning Z’s welfare. In November I concluded that a combination of her express wishes and the evidence the court had about her psychological vulnerability resulted in the court determining she should not be required to give oral evidence. Since Z concluded her oral evidence in the criminal proceedings her psychological position has deteriorated to the extent that XLA sought and obtained orders to place her in secure accommodation to protect her. In the two statements the court has from Z LA it is clear Z was suffering extreme stress through a combination of events. Her expressed wishes have not changed; on each occasion she was asked about giving evidence in these proceedings it was clear she did not want to participate in them.

(3) Whilst this court does not have detailed updated information regarding her psychological state it is clear from what is available that her current functioning would inevitably affect her ability to give evidence and deal with the court situation. Forcing her to give oral evidence, even if that was possible, would undoubtedly be contrary to her welfare.

(4) In conducting the re-hearing the court does have significant additional material to re-evaluate Z’s accounts by way of the video recorded memory refreshing exercise, together with the notes taken and full transcripts of her oral evidence within the criminal proceedings.

  1. I have reached this conclusion on the information available to the court now.
  2. Some criticism has been made of the fact that XLA took steps to facilitate Z leaving the jurisdiction without notifying this court or the LA of the steps they were taking. The effect of the Z leaving the jurisdiction has curtailed this court’s ability to take any further steps to assess Z’s ability to give oral evidence. XLA state that they were not formally aware of Z’s position until the morning of 9 June, the next hearing was two days later. It was a fast moving situation which they state did not give them sufficient opportunity to inform this court or the LA of the developing position. Whilst it is regrettable this court and the LA were not kept updated about the developing position regarding Z’s status here, the reality is there would have been limited, if any, steps this court could have taken to prevent Z leaving the jurisdiction.
  3. I have directed the LA to continue its efforts through the Central Authority to get updated information about Z’s whereabouts and her current circumstances.

 

 

Finally then, part 5, was the judgment from the re-hearing, which took place without Z’s evidence.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/96.html

 

I have to say, as a prelude to this, a key witness who had admitted to having made false allegations and whose evidence in the criminal Court led a Judge to conclude that the prosecution could not safely continue, who doesn’t want to give evidence in the family Court and who leaves the country,  that’s evidence that it is hard to give any weight at all to. One can only speculate as to what view the Court would take of a parent’s evidence if those features applied.

There was fresh criticism of the police investigation

 

Criticisms regarding the police investigation

  1. In the January judgment I made a number of criticisms of the police investigation (see in particular paras 432 – 435). In his ruling in March HHJ O’Mahony agreed with those concerns and expressed his own concerns about the investigation in trenchant terms. I hope that any review of the police investigation will take on board what has been said in both sets of proceedings about the investigation. Like HHJ O’Mahony I appreciate that this investigation was a difficult and challenging process for all those involved dealing with a young, vulnerable person as Z.
  2. This hearing has done little to improve the position regarding the investigation. Whilst this court recognises the enormous sensitivities involved in this type of investigation, it is clear that some of the decision decisions taken have seriously undermined the evidence. For example, the decision made not to challenge Z in relation to possible inconsistencies, the methods used to put her at ease and gain her trust seriously risked being seen by her as encouragement, with the consequence of undermining the quality of her evidence. When looked at in the context of her low IQ and the information regarding her tendency to confabulate (which information was only available after all the interviews and discussions with her had concluded) made the task for this court challenging when evaluating the reliability of the evidence to support any of the findings sought in January. The events since January, has undoubtedly made that task significantly more challenging.

 

and later in the judgment here

 

Further criticisms of the police investigation

  1. In addition to the criticism this court made in the January judgment and HHJ O’Mahony in his 6 March ruling, further matters have emerged to the forefront during this hearing. They can be summarised as follows:
  1. (1) The failure to follow up any further enquiries relating to SA. He is the neighbour who lived next door to AK against whom cross allegations had been made. Z alleged AK sold her own daughter AD to him, which AK and AD deny. AK alleged that it was Z who used to visit him, have sex with him. In his oral evidence in this hearing DI Cooper said this man was interviewed, denied the allegations and it was not taken any further. Very recent disclosure from the CPS confirmed this man was seen by the police in August 2014. He denied having sex with any of the occupants of AKs address and described an isolated occasion when he smoked cannabis and was offered sex for money by a woman who visits AK who he described as being ‘in her late twenties, slim build, blond hair and who always wears sexy clothes’.

(2) The very recent disclosure of the s9 statements of LS. His existence was not known during the previous family hearing and was only noted as being referred to in the written submissions in the criminal proceedings. He is the former boyfriend of AD who described Z being a regular visitor to AK’s home, but makes no reference to Z being there against her will. This disclosure was made on the last day of this hearing; no party sought this witness to attend to give oral evidence.

(3) The failure to interview AD who would have been able to shed light on what was going on. This was raised in the previous hearing. Z had alleged that AK prostituted AD and that she and AD had spent the night in bed with a Pakistani man. It is submitted that this gap in the information available has to be seen in the context of the frequent meetings with AD’s much younger sister, KD. This, it is submitted, supports the lack of balance in the investigation.

(4) The failure to challenge Z (for example, in relation to the hospital stay), the deliberate departures from the best practice outlined in the ABE guidelines, the failure to properly record key events (in the drive round and the meetings with potential witnesses where there were incomplete records regarding the questions asked). Most of this was known at the previous hearing but need to re-evaluated in the context where this court has not had the advantage of Z giving oral evidence.

(5) KV’s evidence in the criminal proceedings about the pre-prepared s 9 statement she took to the meeting with Z on 7 May. This was not disclosed in the previous hearing before me, although it raised as an issue in cross examination by Mr Larizadeh. In her evidence in this hearing KV said she ‘forgot’ that was what happened when she previously gave evidence before me. She said she had more time to prepare for her evidence in the criminal proceedings. Although I accept at face value what KV says I do find it very surprising that such an important detail was forgotten when she gave evidence in the previous hearing. It was, as HHJ O’Mahony described, an usual step to take in such an investigation, especially with such a vulnerable witness. It was based on information given two months previously and KV accepted the way it was presented to Z risked limiting her ability to say what she disagreed with.

(6) There was much debate during this hearing about when the police were made aware of the information from Slovakia, which included information about Z’s tendency to confabulate. The evidence very recently disclosed now shows DI Cooper received this on 28 October 2014, considered it and circulated a note about it on 30 October 2014 attached to an email that was copied to KV. KV said in evidence at the previous hearing (which is now known to be after receipt of the email from DI Cooper) that she was seeing the information from the Slovakian psychiatrist for the first time. That was clearly not the complete position as in her very recent s 9 statement she states ‘I can confirm that looking back through my email records, I received an email on 30/10/2014 titled ‘CONCERNS REGARDING 3rd PARTY MATERIAL FROM SLOVAKIA.DOCZ’. This email contained a report ‘outlining’ the points made about Z by a Psychiatrist in Slovakia including as per DI COOPER’s statement on 24/09/15

• She has tendencies to distort reality

• has tendency to confabulation

Looking at DI COOPER’s statement and the email he sent to me on the 30/10/!4, I have only now remembered receiving this. I can state that I did read DI COOPER’s chronology on Z’s 3rd party records but did not read the translated Psychologist report itself as believed his chronology to contain all necessary points of concern.

(7) KJ was closely questioned about how the investigation proceeded. Although it was clear all decisions regarding the investigation were being led by the police, it appears that there was no effective contribution by the LA to the strategic decisions being taken (eg the conduct of ABE interviews, non compliance with ABE guidelines, meetings not fully recorded in writing or by video etc). KJ was questioned about leading questions in some of the ABE interviews and it became clear that she, like KV, believed what Z was saying and as a result risked remaining neutral in gathering the relevant information. As with the police, the LA in this type of situation should have early access to specialist legal advice to enable them to fulfil their statutory obligations, particularly in circumstances where there are likely to be care proceedings based on the evidence gathered during the police investigation.

 

 

There’s also an interesting nugget about “police intelligence”   (insert your own joke here, if you like)

 

Police Intelligence reports

  1. Much criticism has been made of these reports. They are, as Mr Storey puts it, as the bottom of the evidential food chain to such an extent that they are no more than ‘tittle tattle’ and should not be used to prop up an already weak case. He makes the obvious points that the reporter is not known, no attempt has been made by the LA to identify them, produce a statement from them and call them to give evidence. As a result, he submits, they barely amount to evidence.
  2. Mr Feehan recognises they are hearsay accounts and the court should treat them with caution. However, he relies on the accuracy of many of the details given in them to lend support to other evidence, particularly that of Z, who was very unlikely to have known about the content of them.

 

The Judge dealt with Z’s evidence and the issues with it

 

Z’s evidence

  1. The evidence from Z has been put under renewed scrutiny in this hearing.
  2. It is right that the main reason why the re-hearing was sought was the collapse of the criminal trial and the reasons that underpinned that. Obviously this court is not bound by any conclusions reached by HHJ O’Mahony in his ruling, but the evidential position that brought about that conclusion is clearly very relevant.
  3. The first matter is that prior to her first ABE interview on 6 March 2014 Z had made serious allegations against a number of individuals, including two people who were defendants in the criminal proceedings. In the meetings Z had with DC Verier (KV) and Kayleigh Jones (KJ) on 13 and 20 February Z implicated a number of people as causing sexual harm to her. In the first meeting JDI, MC, and A. In the second S, T, RK and RF. In her the memory refreshing exercise and her oral evidence in the criminal proceedings she withdrew her allegations against a number of men including A, S, RF, T and U.
  4. Two of these men, RK and A, she had described in her oral evidence as having been very kind to her; RK was a former boyfriend. She went further in her oral evidence in that she denied she had ever said to KV in her meeting on 13 February anything unpleasant about A.
  5. It is submitted that the importance of this is that it is now known that prior to the first ABE interview Z had already told untruths about a number of men regarding serious sexual offences. As Mr Storey submits, this was also at a time when those who were speaking to Z were ignorant of the information that subsequently became available about Z’s low IQ and suggestibility.

 

 

That is of course, a pretty major issue – if it was already known before the first ABE that Z had made up serious sexual allegations about a number of men that proved to be untrue, then surely the police investigation into the next batch of investigations had to bear that in mind. It didn’t automatically mean that she was lying this time, but you surely don’t go into the investigation assuming that what is emerging is automatically true. You have to bring some sort of sceptical eye to bear on what is being said.  The police in this case would be pointing fingers at the villagers in the Boy Who Cried Wolf story, saying, “Well, I simply can’t understand why they didn’t evacuate the village the fifth time that he Cried Wolf, it was OBVIOUS that there was a wolf on the way”

 

[*Of course there might be a wolf, and you have to be alive to that possibility, but there’s another possibility to take into account, surely?]

 

 

  1. It is submitted that this behaviour by Z supports the suggestion that Z has the capacity to make up allegations against people for little or no reason. Two of the people she had made up allegations about, RK and A, she subsequently described as having been very kind to her. In other instances, when she has given a reason it has been a slender one (such as the allegation of assault against her father when she stated she wanted him to be in prison, to then subsequently state she had made the allegation as he had refused to allow her to attend a disco). This behaviour, it is submitted, supports the evidence given by Z’s mother, ZM, in the previous family proceedings that Z was someone who would ‘make up stories, someone who made up allegations of sexual abuse against people’. ZM said something similar in her oral evidence in the criminal proceedings.
  2. Feeding into this is the further inconsistent oral evidence given by Z about a number of other matters. For example, the times she was allegedly taken to Town C. In her ABE interview it was twice, in examination in chief in the criminal court it was 30 – 40 times and in cross examination she said it was a mistake. The rest are set out in HHJ O’Mahony’s ruling.
  3. Another feature of Z’s evidence is the additional information regarding what occurred in City A. It is suggested to have been missed by all the parties in the family proceedings that buried within the papers was a separate reference by Z to her family selling her for sex. This arises from a question put in the criminal proceedings by Mr Saxby Q.C. (leading counsel for RB). At the time of the first family hearing it was thought this had only been said by her once (to PC Swift, which she subsequently denied). It now appears that the records show this was possibly done on two separate occasions, to two separate people. The second occasion was two days prior to the time with PC Swift to someone called N (although the records available do not specifically record her saying to this person she was sold for sex but that question was put in the criminal case without objection being raised). It is pointed out that this now lends more support to such behaviour by her own family, further supported by her reaction recorded in her meeting with KV on 26 March 2014 when asked if her parents had ever received money for her she ‘looked extremely sad and refused to provide an answer or make eye contact’. This additional information resulted in both KV and KJ agreeing with Mr Storey in cross examination in this hearing that if they had known about these reports from City A they would have considered removing Z from her parents care, both for her own protection and so she was in a neutral environment.

 

 

The Judge did eventually conclude that some of the matters of concern relating to Z were proven (it is very difficult, from the outside, having not seen the undoubtedly huge volumes of paper and detail or heard the evidence, to know whether that is a fair decision or not – the Judge must certainly have been very worried about placing any credence on accounts given by Z that could not be independently corroborated and evidenced by other sources)

 

Discussion and Findings

  1. In considering these findings afresh I remind myself of a number of key matters:
  1. (1) That the burden of proof remains on the LA throughout. The parents do not have to prove anything.

(2) It is critical that I keep an open mind when considering the evidence again, which I do.

(3) I have not had the benefit of hearing and observing the oral evidence of Z whose evidence is such an integral part of the LA’s case.

(4) In considering the Lucas direction and in the event the court concludes a witness has lied the court may factor in the circumstances of the witness (including social and cultural) in considering why that witness may have told untruths.

(5) Whilst hearsay evidence is admissible the court must be careful to assessing the relevant considerations as to what weight it should be given.

(6) I must be careful when considering the wide canvas of evidence that this court is required to do that the burden of proof not reversed.

  1. Mr Storey was careful, in his well crafted submissions, not to make what was in effect a submission of no case to answer (recognising what is set out in cases such as Re Z [2009] 2 FLE 877). What he submits is that Z’s evidence is now so undermined and unreliable that it cannot be supported by what is, in effect, hearsay evidence that there has not been adequate or proper opportunity to challenge.
  2. Mr Feehan on behalf of the LA recognises the difficulties there is with the reliability of the evidence from Z, but submits that when looked at in the context of the corroboration that is available, albeit from mainly hearsay evidence, demonstrates that some aspects of her account is in fact credible to the extent that it is more likely than not that it occurred. He fully recognises there is no burden on the Respondents, but submits the court is entitled, when considering the wide canvas, to take into account in evaluating the evidence the Respondents evidence too. That must be correct although the court must be alive to ensuring that a weak case is not bolstered by evidence other than that called by the LA with the result that the burden of proof is reversed.
  3. This court in the previous hearing analysed and evaluated the evidence then available. On a fresh analysis and evaluation, in the light of the new material outlined above, I have reached the following conclusions in place of the findings set out at paragraph 4 above:
  4. (1) AK, JE and JC had much more contact with and knowledge of Z than each of them has revealed in their evidence in these proceedings.

(2) They were each aware Z was being sold for sex and that she was under 16 years.

(3) LF knew Z was being sold for sex and that she was under 16 years.

  1. I have reached those conclusions for the following reasons:
  1. (1) Whilst I acknowledge that within the criminal proceedings Z did not back down in her allegations about AK, no one has suggested that I should revisit my earlier conclusions about the ABE interviews after 6 March. There is no basis to do so.

(2) The findings I made concerning AK’s involvement in the arrangements for Z being sold for sex and that she kept Z in her home against her will were founded in large part on the first part of the ABE interview on 6 March. That now has to be looked at in the light of the further retractions and inconsistencies made by Z within the memory refreshing exercise, her oral evidence in the criminal proceedings and the fact hat this court has not had the advantage of hearing her give oral evidence. Whilst I was aware of and took into account the retractions and inconsistencies known about before the previous hearing, they are now of such a scale and extent in relation to allegations of serious sexual abuse that her account of her allegations regarding AK’s involvement in her exploitation has been very seriously undermined. The schedule of inconsistencies and lies produced on behalf of JE accurately sets out the position. The withdrawal by Z of the allegations against the two defendants in the criminal proceedings, are clearly very important. As set out in para 253 of the January judgment Z’s credibility is a central issue; in the light of the new material her credibility is now even more seriously undermined.

(3) Another factor that has to be considered and re-evaluated are the significant criticisms about the way the investigation was conducted, the numerous breaches of the ABE guidelines, the failure to challenge inconsistencies and the worrying lack of neutrality in the way Z was dealt with and the lack of balance in evidence gathering (for example not speaking to AD). These failures further seriously hinder the reliance the court can place on Z’s evidence.

(4) I have had to re-evaluate the consideration of motive for Z to lie in relation to AK. In the light of the fresh information the submission that she lies for the sake of it cannot now be readily ignored. There can be little doubt that Z has had the most difficult background, and has been grossly let down by those adults who have had responsibility for her care. I agree with the analysis by the LA in their closing submissions ‘that everything we know about Z, her background and experiences lend support to the fact that she has been sexually exploited. These experiences left her with little chance that she would be able to fortify herself against it’. The involvement of her own family in her difficulties also has to be re-evaluated in the light of the evidence about what occurred in City A. Her wholesale denial of any difficulties in City A in her oral evidence, together with her subsequent admission to her mother that she told untruths in evidence about City A, illustrates the extent of her vulnerability and unreliability. She has made up serious allegations about her father as she was not allowed to go out and about a former boyfriend due to jealousy about his new relationship.

(5) I have carefully considered what the LA submits is the corroborative evidence to support such a finding against AK as to her direct involvement in Z being sold for sex. It consists of hearsay accounts, unattributable intelligence records or inferences to be drawn from such evidence. Whilst this evidence leaves the court very suspicious of AK’s role in Z’s exploitation, supported by the court’s assessment of AK’s lack of credibility (which this hearing has not changed), I agree with the submissions made by Mr Storey that none of the witnesses that have been called to give evidence have directly implicated AK. The burden of proof is on the LA which, in my judgment, they have not discharged. Mr Storey also makes the point that the intelligence reports could arguably support AK in that over this period (2012/2013) her accommodation was being watched and monitored by the police, there were two police raids in 2012 yet no direct evidence has been called to support her involvement in prostitution or exploitation.

(6) The conclusion I reached previously regarding the enmeshed nature of the relationships between AK, JE and JC and their contact with Z remains secure for the reasons I set out in the January judgment. It is more likely than not they were each aware Z was being sold for sex, and that she was under 16 years. That conclusion is not fatally undermined by the unreliability of Z’s allegations concerning AK. In her interviews Z was able to give details about AK, JE and JC that were consistent with her having had more contact with them than they suggest. For example, she was able to identify AK and JE’s addresses, their children and she attended JC’s address for a bath all of which supports far more contact between Z and each of these women. Mr Larizadeh places reliance on the inconsistency of Z’s descriptions of JE (e.g as being Albanian) but that has to be balanced with other evidence which supports JE’s contact with Z. Z’s account of her contact with them is supported by evidence from a number of different sources; for example the detail AK was able to give in her interview about what Z had alleged (i.e. injections in her back and gang rape allegations) and the meeting with KD on 3.7.14. Whilst I have carefully considered again the criticisms of this meeting and record, in my judgment it provides a coherent account to support the much closer relationship of these women to each other and Z than they have each accounted for. KD was able to give good descriptions and distinguish when she did not know anyone named. Further support is provided by the telephone records of contact between AK and Z, which AK had no explanation for other than a generalised suggestion that others used her phone. It is of note that this phone contact was during one of Z’s missing periods and AK’s number was noted to be stored on Z’s phone when she was seen at school. The evidence supports Z being closely associated with IE and SS, both of whom were respectively visitors to JC and AK’s homes and IE is JE’s daughter.

(7) I have carefully considered why AK, JE and JC would lie about their relationship with each other and Z and am satisfied that it is to seek to distance themselves from Z and their involvement with her in order to undermine Z’s reliability.

(8) It is clear it is more likely than not Z was sold for sex, even if the court cannot make a positive finding who sold her. In her interviews Z said she was sold. Whilst there are some references to Z selling herself I reject that. The weight of the evidence clearly points to her being sold by others. CC in her interviews gives a detailed account of what took place, which corroborates the core of what Z describes. Whilst it is right that there were breaches of the ABE guidelines in the interviews with CC (such as not dealing with truth and lies at the start of the interview and a lack of neutrality in some of the questions) she had the opportunity the day before she gave oral evidence to view her ABE interviews again. She did not detract from the detailed descriptions she gave in those interviews of Z being sold for sex, she maintained that evidence despite being pressed about allegations made by Z about her which she denied. This conclusion is further supported by what JC told the social worker on 11 April (when an interpreter was present). JC’s denials of this record were not credible. The reference in SS’s interview to ‘whoever was (Z’s) boss or like that..they was using her’ further supports Z being sold. It inconceivable bearing in mind my conclusions about the nature of the relationship and contact between AK, JE, JC and Z that they were not aware of Z’s age and that she was being sold for sex. It was something Z did not seek to hide and had clearly been reported by others (such as JC, IE and SS).

(9) I can’t reach any conclusion as to the extent, if at all, Z’s family may have been implicated in some way in her exploitation. There is evidence that points both ways. ZM appropriately reported Z missing and took steps to secure appropriate medical help for her. However there is also evidence of Z saying she was selling herself to help her family, she was picked up by men from the family home and her reaction when asked by social workers whether her family were involved in her abuse.

(10) The further evidence since January 2015 doesn’t in reality affect the finding under re-consideration regarding LF. All those in his household and with whom he had contact with knew of the sexual exploitation of Z by individuals. The evidence still supports the conclusion that she was being sold for sex and that LF knew that, although not specifically of Z being exploited by JE. Those around him and in his household knew or suspected that about Z, and it is inconceivable that he was not aware of that too. I reject his oral evidence that he remained ignorant of this.

 

 

Whilst the Court did not make all of the findings that it had made first time round, enough were made to have still crossed the threshold. So the parents of those three families were really no better off after all of this litigation.

 

Irn Brouhaha

 

I apologise to any readers north of the border for that dreadful gag.

 

Re M 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2082.html

 

The quick summary on this was “mother applies to discharge care order and in the alternative for more contact” so I wasn’t expecting much out of the case when I opened it up. But then I saw four Silks in the case and I thought “oh hello”

 

In very brief summary, His Honour Judge Dowse made findings that a father (F1) had sexually abused a child. The mother’s resistance to accepting those findings and her continuance of a relationship with father led to a series of care proceedings, ending up with seven children being permanently placed away from the mother.  The oldest C1 is subject to a Freeing Order but has not been adopted, the next oldest C2 is placed with an aunt, C3-C7 have all been adopted.

 

And then there is child C8, who is presently living with mother and her new husband (F2) in Scotland, under no orders.

This is the Irn-Brouhaha  –  the Scottish equivalent of care proceedings was brought in Scotland in relation to child C8 and the Court there concluded that there had not been any sexual abuse, and thus no failure to protect.

That was all well and good for the mother and C8, but raised obvious questions of what should happen with child C1 and C2.  If a Court rules that there was no abuse and there is no risk, should they come home?

 

As you may know, I am no admirer of the 350 page limitation, so I had to smile at this particular line from Hayden J

So scrupulously have the documents been pared down for the application before me, in compliance with the President’s Guidance, that it is not possible to track the evolution of these proceedings clearly from the papers filed.

 

 

The big argument for the case was therefore – what legal status does the Scottish judgment on C8 and the sexual abuse allegations have on the English Courts dealing with C1 and C2?

 

  1. In the course of the proceedings in Scotland the Court was persuaded to re-open the findings of HHJ Dowse. At the conclusion of the Scottish hearing, before Sheriff O’Carroll, the court reached a very different conclusion. In his judgment of the 30th October 2013 the Sheriff found that he was unable, on the evidence before him, to find that the Reporter (whose status is similar to that of the Local Authority in England) had discharged the burden of proving, to the civil standard, that M and F1 had been involved in the sexual abuse of any of their children. The allegations, on this aspect of the case, had been placed before the Scottish Court in this way:

    “2. On various occasions between 22 February 1998 and 1 October 2005, at various addresses in the north of England, exact addresses meantime unknown, M and F1 caused C1, C3 and C4 (who were all under the age of thirteen at the relevant times) to participate in sexual activity and caused them to touch, with their hands or their mouths, the genitals, anus and breasts of M and the penis of F1.

    3. Statement of fact 2 demonstrates that M committed an act of lewd and libidinous practices and behaviour. This an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.”

  2. In respect of these allegations the Sheriff stated in his judgment:

    “320. […] However, I am unable on the evidence before me to find that the reporter has discharged the burden of proving to the civil standard that statement of fact 2 is proved. It follows that SoF 3 is not proved.”

    By contrast Judge Dowse found:

    “Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.”

     

 

It is always curious to see how wording differs in other countries – the ‘lewd and libidinous’ adds something here, I think.

 

Non lawyers may not be aware that Scotland has an entirely separate legal system to England and Wales – the statutes are different, the process is different and they have their own case law. The only time that the cases cross over is when the Supreme Court has to decide a case, when the Supreme Court (which is full of English Judges) has to apply Scottish law to the case and reach a decision.  This means establishing whether the Scottish judgment has any legal weight is not a simple task.

 

 

25. Mr Tyler and Mr Booth have drawn my attention to: Stare Decisis and Scottish Judicial Decisions, J.K. Bentil, [1972] Modern Law Review 537. They adopt the analysis of the legal status of Scottish judgments on the law in England and Wales set out in that paper:

    1. “Apart from the fact that some Scottish judicial decisions which go on appeal to the House of Lords may create binding precedents for the English Courts, the effect on English courts of certain Scottish judicial decisions in their own right appears to have received little or no attention this side of the border. Theory has it that generally Scottish judicial decisions are not binding on the English courts but have persuasive effect only. But in actual practice, the weight of authority on this side of the border tends to suggest that certain Scottish judicial decisions, notably those concerned with the interpretation of statutes of common application on both sides of the border, are indeed binding on English courts.”

The ultimate conclusion reached is as set out in paragraph 20 of their Skeleton Argument:

“Although we cannot assert the Sheriff’s judgment to have a formal (in the sense of automatically enforceable) status, it is clear that it has some status, or perhaps better worded, a ‘real significance’.”      

 

 

 

 

 

 

 

I always dread to type the words Brussels II  in a blog post, but I have to.  (It always makes me think of Stephen Hawking’s publisher telling him that every equation in “A Brief History of Time” would cut sales in half. He only actually used one, in the final version)

Very briefly, if the Scottish judgment here had been in Lithuania, or France, or Portugal, the English Court would have to take it into account, and of course, mother could argue that under article 15 the case ought to be dealt with entirely by Scotland.  but Brussels II specifically does not apply to cases between England and Scotland.

In Re PC, YC & KM (Brussels II R: Jurisdiction Within the United Kingdom) [2014] 1 FLR 605 Baker J observed at para 16:

“It is widely recognised that the provisions governing conflicts of jurisdiction in children’s cases within the UK are, in the words of Thorpe LJ in Re W-B, supra, at paragraph 29, “difficult and complicated.” He was referring in particular to the provisions of the Family Law Act 1986, but as Miss Green has demonstrated, there is similar difficulty and uncertainty as to the applicability of BIIR to the allocation of jurisdiction within the UK.”

Nonetheless he went on to conclude at para 18:

“Given the clear view expressed emphatically by the Court of Appeal very recently in Re W-B, I reject Miss Green’s submissions and adopt the orthodox view that BIIR does not apply to jurisdictional disputes or issues arising between the different jurisdictions of the United Kingdom. Article 15 could not, therefore, be used to transfer these proceedings from England to Scotland.”

 

So the nutshell answer, after four QCs have sweated over it and a High Court Judge have looked at it is, “the Court don’t HAVE to consider it, but probably best not to just ignore it”

We then get into the law on re-opening cases.

Hayden J sets out all of that law very beautifully, but I think that I will cut to the chase, which is Lady Hale’s line In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11.”  about situations in which a party wants to challenge findings that had been made by an earlier Court.

“In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”

But also

    1. “(a) that there is a public interest in an end to litigation – the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; [1997] 1 FLR Hale J Re B (CA Proceedings) (Issue Estoppel) (FD) 295”
    1. (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but
    1. (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and
    1. (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 947, ‘must be applied so as to work justice and not injustice’.
  1. In a further passage that I find has particular resonance to the issues in this case Hale J observes:

    “(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone.”

     

It is ultimately a matter of Court discretion to decide whether to re-open previous findings, but a Court is allowed to consider that there’s limited value in re-running the case unless there’s a decent chance of arriving at a different outcome.

Of course here, we have two judgments, in different countries, which reach diametrically opposite conclusions. That led to some of the barristers having to argue that the Scottish judgment was an exemplar model of the way these things should be done and that HH J Dowse’s judgment was so flawed it ought to have been appealed anyway  (so the Scottish judgment is so superior it establishes a reason for re-hearing) and others having to argue that they were merely Judges reaching different conclusions.

I myself rather liked Mr Howe QC’s approach for the Guardian  (but the Judge did not)

  1. Mr Howe QC, on behalf of the children, engages with these factors in a rather different way and comes to the following conclusion:

    “The Guardian has taken into account the impact on C1 of the court concluding that the allegations were not proved but on balance, and for the reasons given, it is submitted that the balance falls in favour of the court permitting some reconsideration of the findings made by HHJ Dowse on 17th October 2007.”

  2. Mr Howe also submits:

    “the weight to be attached to the Scottish judgment does not arise from any assessment of its merit as an expression of the forensic exercise undertaken. The weight of the Scottish judgment is in its effect. Looking at these circumstances from C1’s perspective, it would be incomprehensible to her that the English court did not ‘think again’ and reconsider, not necessarily overturn, but at least take another look at the allegations given what was found in the Scottish court and how the findings there have enabled a relationship between C8 and M and F2 that, on the evidence before this court, appears to be entirely appropriate and beneficial for him.”

  3. Finally, Mr Howe comments:

    “It is submitted that C2 has to be granted the possibility of some relationship with her sibling and mother by the court agreeing to reconsider the previous findings.”

     

I know that not everyone is fluent in Elegant, so to translate  “It is really important for these children to get to the truth, whatever that might be, and whichever of these judgments is right the fact that they directly contradict each other means that at the moment there is doubt, which can only be eradicated by a re-hearing”

[I  agree with Mr Howe QC here. But as I told you, the Judge did not.  And he was not shy about saying so]

  1. It is self-evident that the interests of neither child is served by an erroneous determination of fact. Such a statement is platitudinous out of context. More than that it can be a dangerous, siren call unless it is considered carefully alongside the other features identified by Hale J in Re B. It is important to recognise that the factors she there identifies are inevitably interrelated. Thus: the insidious dangers of delay have to be considered alongside the more obvious damage caused by erroneous findings of fact. These tensions are notoriously difficult to reconcile and are ever present in family law.
  2. As the President identifies in ZZ (supra), the court’s discretion has to be applied so as to work ‘justice and not injustice’ and so the starting point is, again as he identifies, whether there is ‘some real reason to believe that the earlier findings require revisiting’. That seems, to my mind, to resonate closely with the observations of Hale J: ‘whether there is any new evidence or information casting doubt on the original findings’ (Re B supra). With respect to the Guardian, her views as to the value to C2 of ‘having another look’ lose focus on these important principles and fail to give sufficient weight to the real impact on these children of once again re-opening litigation, which itself may fail to resolve the present situation.
  3. Moreover, I am not prepared to draw the inference, suggested by Mr Howe, that because C1 instigated a further interview, following the Scottish Judgment, she therefore should be taken as signaling a willingness to participate in further litigation. She does not know, for example, what the reach of further litigation might be, nor does she yet have the maturity to understand what its impact on her could be. Before concluding that an issue should be reheard there must really be a substantial reason to believe that further litigation will achieve some clarity. In the light of my view of the validity of each of the respective judgments and finding myself un-persuaded that there are any other solid grounds for believing that a rehearing will result in any clarification of the present position , I can see no basis upon which to grant the application for a rehearing of the English proceedings.

 

[There is a lot in the judgment about a factual comparison between the judgments, and the basis on which the Scottish courts reached a different conclusion. I’m afraid that you would need to read that to fully grasp why on the facts the Judge felt that a re-hearing of the allegations was unlikely to reach a different result.  In very brief terms there were two major issues – that the Scottish Courts had relied on an expert doing something like a ‘veracity’ assessment which is out of favour here and the issues that came up in it were things that HH Judge Dowse had taken into account anyway, and that reliance had been placed on the children saying different things in an ABE interview done years later and the Court felt that this was not unexpected.   I wouldn’t say that I end up wholly agreeing with the conclusions, but because the decision here is largely fact-specific, you do need to read those sections to form your own conclusion about whether the Judge here was right. ]

And finally – wider interest

    1. Finally, I very much regret the delay involved in delivering this judgment. The case provides a powerful reminder of the consequences that ensue when the advocates fail to allow sufficient time in their estimates of hearing for a judge to write and deliver a judgment. The provision of one day to write this judgment is, I hope, self evidently inadequate. All counsel must regard it as a professional obligation to factor time for the judge to write and deliver a judgment into their time estimates. This is a professional duty which should be seen as a facet of the requirement to avoid delay in proceedings concerning the welfare of a child. I take the opportunity here to highlight a pervasive problem which requires to be addressed more widely.

 

It must certainly be the case that a judgment which requires a Judge to look at the intersection of Scottish and English law, Brussels II and all the law on issue estoppel was foreseeably going to take more than a day to write.   I wonder how in a more normal case, counsel are to arrive at a time estimate for a Judge to write the judgment, presumably at IRH so that time can be allocated within the Court listing for the final hearing    (Those advocates who feel the case is a slam-dunk are likely to be estimating 2-3 hours, those who are hoping to persuade the Court that the case is finely balanced before tipping in their favour are likely to be estimating 2 days so that the Court can see that this is a really tricky case which will need very long thought)