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Unlawful killing




A very peculiar case and one in which leading counsel puts self in harms way in order to demonstrate breach of article 6 and succeed in appeal.


Re R (Children) 2018


In this case, the central issue related to


On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father


The father was arrested and the two children were removed into foster care. The father faced criminal trial and was acquitted of all charges. There was a finding of fact hearing in the High Court and the father was made the subject of a finding that “he had used unreasonable force and unlawfully killed the mother”


He appealed that finding, successfully.




5.The mother’s death occurred in the context of an acrimonious relationship between the parents following the father’s discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A’s arm and to the back of the father’s head.



6.The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.



7.The father’s account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.



8.Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father’s Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:




“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother’s) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away. “

9.Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother’s body indicated a single continuous movement rather than two.



The father’s appeal was based on two major facets. Firstly, that the High Court had become very bogged down in criminal terminology when conducting the fact finding hearing (as a result of the word ‘unlawfully’ in the threshold finding sought, the defences to lawful killing – self-defence and loss of control, played a significant part in the case) and secondly that the timescales set down by the High Court for the preparation of father’s case were so short and unrealistic that it put the father in the position of having his very skilled and experienced representative feeling that she was not in a position to properly put his case.



(Being fair to the LA here – because threshold requires that a parent’s behaviour which caused the harm was ‘not being what it would be reasonable to expect’, they may well have concluded that the father if asserting that he acted in self-defence which was reasonable might have a basis for concluding threshold was not met and felt that they needed to establish a higher level of culpability on his part. It is very very tricky drafting threshold in a set of circumstances like this. I think I might have tested the water to see if something along the lines of “The children were exposed to an extreme incident of violence leading to the violent death of the mother, which would have been extremely frightening and distressing and which will be likely to have lifelong implications for their mental and emotional wellbeing” might have been accepted, but it is a lot easier to make that call in the benefit of hindsight)


The criminal bit first





31.For the appellant, Miss Venters’ response to the court’s interjection was to state firmly and clearly that the Family Court should not involve itself in analysis based upon the criminal jurisprudence. In particular, by reference to this case, she submitted that it was unnecessary and impermissible for the Family Court to make findings of “unreasonable force” or “unlawful killing”.



32.Miss Janet Bazley QC, leading Miss Catherine Jenkins, who both appeared below, pointed to the terms of the local authority’s pleaded case as set out in a “final threshold document and schedule of findings” dated 26 June 2017:




“On 2 June 2016, the father killed the mother by cutting her throat…he used unreasonable force or, alternatively, his actions were reckless in all the circumstances.”


Miss Bazley informed the court that the local authority had not intended to establish a link between the findings that it sought and any test within the context of criminal law. Miss Bazley pointed to the formal response to the proposed findings made on behalf of the father which asserted that he had used “reasonable force” and, for the first time, brought in criminal law concepts which, as the trial progressed, lead all the parties to address the issues in the case by reference to the relevant criminal case law.

33.However, in the local authority Opening Note the following appears:




“The local authority’s current position is that the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury. If the court concludes that this is more likely than not to have been the case, the local authority will invite the court to conclude that the father killed the mother deliberately.”


Miss Bazley submitted that it is permissible for the Family Court to make a finding that killing was “deliberate”. She is explained that at no time did the local authority seek a finding of “murder”. However, Miss Bazley later accepted that the local authority’s “closing submissions” document includes the following under the heading “conclusion in relation to the other findings sought”:


“In relation to the mother’s death, the local authority invites the court to conclude on all the evidence, that this was an unlawful killing, probably pre-meditated or otherwise carr[ied] out in anger. The court is respectfully invited to firmly reject the father’s assertion that he acted either instinctively (an accident), or in self defence, using reasonable force.”

34.More generally, and in response to this court questioning why it was necessary for the Family Court to establish precisely how the mother was killed, Miss Bazley submitted that detailed findings were important because of the difference they might make to the welfare determination that the court would have to make at the end of the family proceedings.



35.Miss Bazley submitted that it was appropriate for the Family Court to use the word “reasonable” in a non-legal manner. She also asserted that the local authority had not sought a finding that the mother’s killing had been “unlawful”. Such a finding, she submitted, was not necessary in the context of the family proceedings.



36.On the facts of this case, as found by the judge, any reference to the father acting in “self defence” evaporated as the judge rejected his account. Thus, whilst the local authority accepted their part in the collective error by the advocates in encouraging the judge to consider the criminal case law as to self defence, and accepted that the judge should not have made a finding of “unlawful” killing in the family proceedings, Miss Bazley submitted that the detailed factual findings of the judge should stand. She submitted that the references to criminal law, “unreasonable force” and “unlawful killing” were extraneous for the purposes of the Family Court process and they could be struck out from the judge’s judgment and findings without the need for a re-trial of the factual evidence.



37.For the children’s guardian Mr Malcolm Chisholm, who also appeared below, argued that, as the father’s case was that he was defending himself from an attack by the mother, a finding as to the degree of force used was important and would heavily influence the determinations about the children’s welfare that the Family Court would, in due course make. Mr Chisholm accepted that it was neither necessary nor helpful for the Family Court to analyse these issues by reference to parallel provisions in the criminal law, or, for that matter, the civil law (as for example in Ashley v Chief Constable of Sussex Police) [2008] UK HL 25). Mr Chisholm accepted the court’s observation that, in contrast to criminal or civil proceedings, the focus of the Family Court is not on the adult, or the need to establish a finding of culpability against him; the Family Court’s focus is upon the children and their future welfare. Put shortly, Mr Chisholm said that the question for the Family Court is “is he safe or is he unsafe?” Detailed findings of fact are therefore necessary to determine, for example, whether an individual has over reacted or whether they have been honest and are reliable.



38.Like Miss Bazley, Mr Chisholm urged this court to strip out the judge’s extraneous references to criminal law and the attribution of criminal law labels to her specific findings, whilst leaving the detailed findings themselves standing. Mr Chisholm submitted that there was a real integrity to the judge’s fact finding judgment as a whole. The factual findings are supported by a wealth of reliable evidence and were, in his words, “absolutely rock solid”.



39.In response, Miss Venters submitted that the whole trial before the judge and the resulting judgment were tainted by reference at every point to the need to conduct the analysis of the factual evidence and make findings in a manner compatible with the criminal law. All parties now accept that that approach was wrong and, as a consequence, the judgment as a whole cannot stand.



Conclusions on that aspect



61.Although the father’s grounds of appeal implicitly accepted that the judge had been obliged to apply the relevant elements of the criminal law directly within her analysis of the evidence and in drawing factual conclusions, at an early stage of the oral appeal hearing the court questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court. As a result of our intervention, all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court and, to the extent that that had occurred in the present case, the court process and the judge’s evaluation had been conducted in error.



62.The parties were right to concede the point, and to do so without argument, as they did. The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare. Similarly, where facts fall to be determined in the course of ordinary civil litigation, the purpose of the exercise, which is to establish liability, operates in a wholly different context to a fact-finding process in family proceedings. Reduced to simple basics, in both criminal and civil proceedings the ultimate outcome of the litigation will be binary, either ‘guilty’ or ‘not guilty’, or ‘liable’ or ‘not liable’. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.



65.The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.



66.Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge’s detailed self-direction on the law of self-defence, and the resulting appeal asserting that it was misapplied, together with Miss Venters’ late but sound observations about the statutory defence of ‘loss of self-control’, are but two examples of the manner in which proceedings could easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child. It is also likely that the judges chosen to sit on such cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.



67.There is no need to labour this point further. For the reasons that I have shortly rehearsed, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As my Lord, Hickinbottom LJ, observed during submissions, ‘what matters in a fact-finding hearing are the findings of fact’. Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.



68.That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.



69.What is the impact of this error on the overall integrity of the process before Theis J and the judge’s detailed underlying findings? Miss Venters submits that the whole hearing was irrevocably tainted by focus on the criminal law and the need to achieve a finding of ‘unlawful killing’ against the father. The local authority and the guardian, conversely, argue that the high-level findings of ‘unreasonable force’, ‘unlawful killing’ and ‘loss of control’ are extraneous and can be struck out leaving the judge’s discrete factual findings intact.



70.Given the scale of the hearing before Theis J, in terms of time, endeavour and cost, any rehearing should only be contemplated if there is no alternative available course. As will be apparent from this judgment, this court has not begun to evaluate the soundness of the judge’s underlying findings and, for these purposes, I am prepared to accept that each of the 17 detailed findings made at paragraph 141 may be, as Mr Chisholm cast them, ‘absolutely rock solid’. It remains the case, however, that the court was led into fundamental error in relation to a matter of legal principle. It is clear from the local authority opening statement and from its closing submissions that it was presenting its case on the killing in the terms of the criminal law; that was the case that the father understood he had to meet and that was plainly the mindset of all three legal teams and of the judge. The fact that this appeal was being run, and responded to, as a detailed debate conducted within the criminal law of self-defence is proof enough that the fundamental error that has now been identified (and accepted) was not understood by any of the parties prior to the hearing in this court.



71.Given the importance, in terms of its scale and the potential impact upon him, I regard the fact that the court was wrongly drawn into making a finding of ‘unlawful killing’ within these family proceedings, and given the manner in which the proceedings were wrongly focused from the start on establishing culpability in the context of the criminal law, I would be minded to accept Miss Venters’ submission that the case as a whole was tainted to such an extent that it is insufficient simply to strike out certain offending words from the judgment. But, before reaching a conclusion on this all-important question, I propose to consider the father’s case more generally in relation to ‘fair trial’.



The fair trial point



The father was acquitted on 30th May 2017. The family Court had a directions hearing on 9th June 2017 setting the case down for a finding of fact hearing. The LA produced its schedule of findings sought on 26th June 2017 seeking (for the first time) a finding of ‘unlawful killing’ – the fact finding hearing was due to begin on 11th July – eleven working days later.


Eleven working days to effectively prepare a murder trial is obviously compressing realistic timescales considerably. Under protest from the father’s team, the Court granted a five day adjournment, giving effectively three working weeks for father to prepare. For a fact finding hearing involving 42 witnesses, from a standing start.





44.In relation to the appellant’s case under Article 6, Miss Venters makes one overarching submission and one very specific submission each pointing to the overall unfairness of the process.



45.The overarching submission can be recorded shortly. It is that, despite their very best endeavours, the father’s legal team were simply not able adequately to prepare for the fact finding hearing. Although the “criminal bundle” had been disclosed and copied to the father’s legal team in the family proceedings as the criminal process went on, it had not been read by them because the material in it was not, at that time, relevant to any factual issues that were to be litigated before the Family Court. Miss Venters, understandably, states that any time spent working on the criminal papers would, in any event, not have been covered by the father’s Family legal aid certificate at that stage.



46.In relation to equality of arms, Miss Venters points out that the local authority had taken three weeks after the conclusion of the criminal trial to consider the criminal material before disclosing, for the first time, that they intended to seek findings upon it. Thereafter, in contrast, the father was given just 7 days to file his response.



47.The specific point relied upon by the appellant under Article 6 which was, again, unfortunately, raised for the first time in oral argument, relates to the reliance placed upon the letter from the father’s criminal defence solicitors dated 2 December 2016 (set out at paragraph 8 above) during the Family Court trial.



48.I have already explained the significance placed on the 2 December account by the experts, it being the unanimous expert view that the mechanism described in that letter would involve two planes of motion, whereas the injury to the mother was likely to have resulted from one single movement of the blade.



49.Miss Venters told this court that the 2 December 2016 letter was not provided by the father’s criminal team to the advocates in the family proceedings until 1 August, a week prior to the second part of the hearing when the experts were due to attend and, thereafter, the father was due to give his evidence. During the hearing the terms of the December 2016 letter were taken by all parties, including Miss Venters, as being the father’s account. It is only, Miss Venters reports, as a result of consideration she has been able to give to the case since the conclusion of the Family Court trial, and after the judge’s judgment, that she now understands that the second part of the December 2016 account, namely that the father pushed the mother backwards, has never been an account given by him in police interviews, during the criminal trial or during the family proceedings. The December 2016 letter was put to the father in the witness box before Theis J and he simply accepted that that account had been given.



50.Miss Venters submits that the fact that she failed to notice that the pushing element in the December 2016 account was not, in fact, a description that her client had ever actually given in evidence, is but one example, albeit a very significant one, of her overall inability to be on top of her client’s case as a result of the wholly unrealistic time afforded to the father’s team for preparation.



51.Miss Venters offered as a further example, the lack of sufficient time for her to consider whether or not the eldest child, A, should be called to give oral evidence within the family proceedings.



52.Candidly, Miss Venters told the court that she is not now able to identify other specific aspects of the father’s case which, as a result of the pressure of work, were not presented to the court. Her position was, however, that, as an experienced professional she “simply did not have a grip on the evidence” in order to identify what issues should be raised in cross-examination or otherwise.



53.Miss Venters reports that, despite expressly raising in detail the many difficulties she faced, and despite taking up a dozen or so pages of her opening Position Statement at the start of the hearing listing the difficulties that were still outstanding, the court pressed on with the hearing with the result that Miss Venters told this court that she felt that she simply “wasn’t being heard in anyway” on these points by the other parties or by the judge.



And in conclusion



72.Having set out the key elements in the appellant’s case in relation to the ability of his legal team to meet the case against him in a manner that was fair and proportionate, it is possible to deal with this aspect of the appeal shortly.



73.An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.



74.Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father’s lawyers when, for the first time on 26th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.



75.It is of particular note that it was only in the local authority Opening Note, dated 11th July, that the father will have read for the first time that a finding of ‘deliberate’ killing was being sought against him in the Family Court.



76.Although no specific example of the father’s case not being correctly or fairly presented to the judge is pleaded in the Grounds or Skeleton Argument, Miss Venters’ late reference to the importance of the 2nd December 2016 criminal solicitor’s letter is of significance. She, as the advocate who was in charge of the father’s case, has told this court that what is said in the second part of the account in that letter has never actually been directly given in evidence by her client. It has simply been taken as read as being his account and, then, dismissed as tenable by the experts in a manner which the judge, understandably, found to be of importance. For my part I did not regard the five references to which we were taken by Miss Bazley as being conclusively against the point that is now being made; they may be or they may not be. Equally, the extract from the transcript of the father’s cross examination, rather than being reassuring that what was said in 2 December document was his accurate memory, seemed to bring the issue yet further into doubt.



77.The importance of the father’s account on whether there was one motion or two movements with the knife is plainly high. In terms of determining the issue of ‘fair trial’, it is neither necessary nor wise for this court to analyse the matter further. For my part, the fact that the father’s advocate has now raised the issue, and has told this court that, because of the speed of preparation (and the document’s late delivery), she only appreciated its significance after the end of the proceedings, may well establish that, as a result of the undue pressure of time, an important aspect of the father’s case may not have been presented fairly to the court.





78.The hearing of this appeal took an unusual course. As a result of the intervention of the court, we have not heard the full appeal. Instead, the advocates responded to and conceded the point of principle raised by the court concerning the relevance of criminal law and we then heard shortly on the ‘fair trial’ issues before adjourning to take stock of the appeal in the light of those submissions.



79.Having now undertaken the stock-taking exercise, and for the reasons that I have expressed thus far, it is clear, firstly, that a serious error occurred in the trial in relation to the relevance of the criminal law. Secondly, that error may not, of itself, justify ordering a rehearing, but the option of simply striking the offending words from the judgment may not be an adequate remedy given the significance of what had been, wrongly, said. Thirdly, whilst, again, the points made about a lack of a fair process may not establish, as night follows day, that only a rehearing will provide a remedy, what is said about the 2nd December letter, given its importance in the case, is of real concern.



80.Although an error of law may not necessarily lead to a finding that there has not been a ‘fair trial’, in the present case, when that error goes to the very focus of the fact-finding process and the judge’s analysis, I consider that the point sits squarely within the rights protected by Article 6. The two matters that I have thus far considered separately in this judgment should therefore, properly, be drawn together. If that is done then, albeit with a heavy heart, I am fully persuaded that in combination, looking at the matter overall, and taking both elements into account, this appellant has not been afforded a sufficiently fair trial in the Family Court



The Court of Appeal then give some specific guidance in relation to family Courts hearing allegations which have been tried in the criminal Court.



81.Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.



82.By way of summary, the following points are, in my judgment, clear:




  1. a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court [paragraph 62 above];


  1. b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established [paragraph 62];


  1. c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court [paragraph 65];


  1. d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts [paragraph 67].

83.Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.



84.The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where ‘domestic abuse’ or other potentially criminal activity is alleged:





‘Directions for a fact-finding hearing



  1. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –




(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;




(b) in order to provide a basis for an accurate assessment of risk;




(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or




(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).



  1. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –




(a) the views of the parties and of Cafcass or CAFCASS Cymru;




(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;




(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;




(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;




(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;




(f) the nature of the evidence required to resolve disputed allegations;




(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and




(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.’

85.In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child:




’36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.


  1. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –



(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;



(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;



(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;



(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and



(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.’

86.On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.



87.Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the Family Court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.



88.For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 at paragraph 56:




‘… we are also of the view that it is in the public interest that children have the right, as they grow up into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.’

89.The potential for future harm to a child where one parent has been directly involved in the circumstances that have led to the death of the other parent, is by no means limited to the risk that the surviving parent may physically injure the child. Indeed, future physical injury may be low on the spectrum of future potential harm. It is the potential for future emotional and psychological harm arising, either directly from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, or indirectly from the way in which the parent will conduct him/herself in the future as a consequence, which is likely to be of far more importance.



90.Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings) is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case, and avoid the risk that the judge’s words may be misunderstood as expressing a finding based directly upon criminal law principles.



91.At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge’s task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined


The Court of Appeal did disagree as to whether a finding of fact hearing would be necessary at all (in a minority judgment) and how the Court at a re-hearing was to determine whether father’s actions were or were not reasonable (again, in a minority judgment). We may not have had the final word on this sort of thing.    (The minority judgment was suggesting that threshold akin to my earlier formulation – that regardless of culpability for the death of the mother, the emotional harm suffered by the children by witnessing her violent death was the real issue and thus a finding of fact as to culpability for death would not always be necessary. )




Well, up against quite a lot of competition, here is the worst case of the year (breach of fair trail, HRA damages, scandal)


Oh this is a BAD one.  LA social worker, lawyer, and to an extent counsel take a kicking, as do the police.  If you work for Wakefield, I’d skip this one.   Everyone else, I’m afraid this is a must read.


GD and BD (Children) 2016



  • There are before the court two linked applications brought under the Human Rights Act 1998. The first application in time (10 December 2015) was filed by two children, namely GD, a girl now aged 9, and BD, a boy now aged 4. The second application (18 December 2015) was filed by their mother (MD). In each case the Claimants seek awards of damages and declarations. The claims arise from the conduct of two public authorities, Wakefield Metropolitan District Council (hereafter “the Local Authority”) and West Yorkshire Police, in the context of public law proceedings under Part IV of the Children Act 1989 between February and November 2015. In each case the claims for damages have been agreed – with the public authorities each agreeing to pay one-half of the agreed sum: £10,000 for the mother, and (subject to the court’s approval) £5,000 for each child. Significant concessions have been made by both authorities since the proceedings began, and these in large measure establish the grounds for the declarations.
  • I have attached to this judgment, as Annex A and Annex B, a composite schedule of the concessions by the respondent authorities.
  • Annex C contains an Executive Summary of this judgment.
  • Additional to the formal concessions, the Local Authority has also sent a full letter of apology to the mother (dated 28 June 2016). In that letter, the Local Authority acknowledges that the allegations which it made in the proceedings against the mother, namely that she was a sexual risk to her children as a result of having perpetrated gross sexual act on her daughter, were “horrendous”; the authority confirms that it accepts “without reservation” that MD did not abuse her daughter or allow her daughter to be abused by the father. I do not regard it as appropriate to annex this letter to the judgment, but note its contents. The Chief Constable of the West Yorkshire Police has openly apologised to the Claimants (see Annex B [11] below).


This whole debacle sprang from the police, as part of a wider child pornography investigation, discovered 5000 indecent images of children on the father’s computer in April 2015  and the father was arrested.  One of those images was a 30 second video clip of a woman abusing a child.

The police formed a suspicion that the woman was the mother, and that the child was one of the two children of those two parents. T  Obviously, there were legitimate grounds to believe that the children were at risk from the father (though his arrest removed him from the home).   He later pleaded guilty and was imprisoned. The suspicion that the woman in the video was the mother and that the victim was one of the children was something that had to be properly investigated.

DS Hudson, leading the investigation on behalf of the Child Sexual Exploitation and Abusive Image Unit of the West Yorkshire Police, considered that Woman X bore a striking resemblance to MD, and that Girl Y a remarkable likeness to GD. DS Hudson in liaison with his colleagues in the imaging unit commissioned the creation of a superimposition montage which allowed the picture of Girl Y to be overlaid on a picture of GD; this appeared to confirm their lay view.


  • Some ten months later, on 25 February 2015, DS Hudson shared the information which the police had gathered with representatives of children’s services at Wakefield MDC. The social worker who attended the relevant strategy meeting noted that DS Hudson declared himself to be “90%” sure that the woman in the video was MD; he was later to say (same source) that he considered that the child in the still image was GD “to a 99% probability”. This evidence (involving the percentages) infiltrated other discussions, and were attributed to DS Hudson. DS Hudson was later to deny having used percentages as recorded, but having heard from SW1 and DS Hudson, I reject his denial; I am satisfied that this statement, and the percentages referred to, reflected his actual view of the probability of MD and GD being captured in the images, and that he expressed himself in this way. Later that afternoon, DS Hudson and SW1 (social worker) attended the family home; DS Hudson arrested MD and FD on suspicion of assaulting a girl under the age of 13, and of possession of multiple indecent images of children. The West Yorkshire Police exercised powers of protection and the children, GD and BD, were placed in foster care; on the following day, the Local Authority commenced care proceedings under Part IV of the Children Act 1989.
  • The children were to remain in foster care until 13 December 2015.


Skipping ahead, at the final hearing, the police officer gave evidence over a 3 day period, and in the course of this evidence, counsel instructed by the Local Authority decided that he had to withdraw from the case.


  • On 20 November 2015 DS Hudson concluded his evidence, which had been taken over three days, having been questioned by all of the advocates about his pivotal role in the investigation and his account of who knew what and when. At the conclusion of the second day, Mr. Shiels had invited the judge to allow the officer to be treated as a hostile witness; it was increasingly apparent that DS Hudson directly contradicted Mr. Shiels’ personal recollection of events, and was casting blame for the lack of disclosure on others. When the hearing resumed on 23 November, Mr. Shiels indicated his intention to withdraw from the case. He explained his position to HHJ Anderson thus:


“I have reflected upon my position as advocate for the Local Authority and taken into account any potential conflict between my duty to present the Local Authority’s case as it ought to be presented and my interesting reflections upon my own professional standing. The way in which DS Hudson gave his evidence created a conflict between those two matters, and it also raises implications which I have thought through and taken consultation on with a senior colleague as of the further presentation of the Local Authority’s case and, in particular, the social worker’s evidence… The Local Authority must be represented by someone who does not face that particular conflict.”

Substitute counsel was instructed and two days later, the Local Authority indicated to the court its intention to undertake a “wholesale amendment” of its threshold Schedule of Facts. On the same day it confirmed its plan for the children to be returned home to the mother’s care, a position endorsed by the Children’s Guardian.

The children returned home on 13 December 2015.



There then followed this Human Rights Act claim, which is what the judgment chiefly deals with. The case really turns on the point at which the suspicion that the woman in the video was the mother and the victim was the child became not a suspicion that had to be properly investigated, but a ‘hunch’ which the evidence was contradicting, and whether the evidence that undermined that claim was properly shared with the Court and the parents.  The importance of that, of course, is that a case where father was downloading indecent material is a case that could be managed by the mother separating from him, whereas an addition that mother had been abusing one of the children would rule that out as an option. It was an extremely grave and important allegation.


Here are the Court findings in relation to that (I’ll come back to some of the important, and shocking detail)


Findings: Local Authority:


  • In my judgment, this Local Authority has rightly conceded that it unlawfully interfered with the Article 6 and Article 8 rights of the Claimants in a number of material respects. The Local Authority was not swift in acknowledging its faults; the Defence filed in February 2016 makes minimal concessions. However, I have noted and recorded the concessions which are now made, and insofar as is necessary deal with the particulars in the paragraphs which follow.
  • Suspension of contact: For a period of time, all contact between the children and their parents was suspended, and when restored, it was heavily circumscribed. The temporary but total severance of the relationship between the children and their parents was a serious step at the point at which the children were removed from their parents’ care; while there may have been sound reasons for this initially, while the police investigation was at an early stage, the Local Authority is right to concede that it should have done more to test the necessity of this suspension continuing for more than a day or so. The CA 1989 imposes duties on them which were not observed (see section 34(1) and section 22(4) CA 1989; there was limited facility to the authority to refuse contact and only for a time-limited period (7 days) where “they [were] satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare” (section 34(6))). The police were in my judgment slow-paced in deciding whether to conduct ABE interviews of the children, before deciding not to do so. The Local Authority should have been proactive in testing the police’s decision-making at an earlier stage.
  • Disclosure: There were, regrettably, repeated failures on behalf of both public authorities to effect disclosure of relevant documents and information in this case. It is well known that it is the duty of the parties and their legal advisers to give full and frank disclosure of all relevant material unless one of the well-established principles of privilege or public interest immunity apply. It is incumbent on a Local Authority to present its case properly, fairly and with due regard to the principles of Article 6 of the ECHR.
  • My view is that the failures of disclosure in this case largely derive from the conduct of the West Yorkshire Police (see below). However, I am satisfied that the Local Authority solicitor, Ms McMullan failed:


i) To disclose to the respondent parents and Guardian the information which she learned in conference on 21 August 2015 namely that the short video was (or was likely to be) of American origin; although I am satisfied that this information was conveyed to the Local Authority team by DS Hudson only in passing, this was nonetheless crucial evidence and its existence had registered sufficiently with Ms McMullan for her to write to Mr. Shiels many weeks later, in November, to ask his view about it;

ii) To respond to the mother’s solicitors’ request for “any other relevant information about the police evidence that would assist me in putting my client’s case” (9 September 2016), with the information that the video had a US provenance (even if she had expressed this only as a possibility);

iii) To ensure that the likely American provenance of the short video was referred to in the Local Authority Opening Note; it is clear that Ms McMullan was conscious of this fact as she had e-mailed Mr. Shiels about it only shortly (10 November) before the hearing;

iv) To respond more fully and generally to the questions (concerning police disclosure) from the mother’s solicitor in September 2015;

v) To disclose the superimposition montage to the respondent parents and children on or shortly after 17 September. This omission is particularly serious given that:

a) There was a court hearing on the day after it had been shown (18 September) and it was not mentioned;

b) Ms McMullan had not responded to the mother’s solicitors’ letter requesting disclosure made only days earlier.

Opportunity was thereby lost for the parties to assess this evidence, and to seek Ms Pestell’s view of the montage. The mother’s case is that the failure to disclose this evidence was “secretive, tactical, and unfair”; I do not accept those particular criticisms. I find that the failure to disclose this information was symptomatic of a lack of coordinated, structured, organised approach to the preparation of the case. It is rightly conceded that this contributed to the breaches of the Claimants’ Article 6 rights (Annex A[1](d) below).


  • I find that the failure to make prompt and/or complete disclosure materially compromised the ability of the legal teams for the Claimants to prepare their cases. It seems to me that if a more conscientious approach had been taken and had disclosure been made in a timely and appropriate way, the Claimants’ solicitors would have been able to press for the Local Authority to re-evaluate its case, potentially by restoring the matter before the court for early determination of the appropriateness of continued interim care orders.
  • Evidence: The Local Authority was under a duty to place clear and impartial/balanced evidence before the Court. Two witness statements fell under scrutiny in this hearing: those of DS Hudson and SW1. The preparation of the witness statement of DS Hudson was wholly unbecoming of a serious investigation such as this, fell well below ordinary standards of professionalism in its compilation, and the end result was a document which was neither fair nor balanced. There is no or no material evidence that either Ms McMullan or Mr Shiels really addressed themselves to that issue. The Local Authority cannot escape the fact that the written request of DS Hudson to provide only evidence in his statement which was incriminating of the mother caused his contribution to be distorted and partial. I understand and accept that Mr Shiels had addressed his mind only to reminding Ms McMullan of certain matters which ought to be included in the statement, and that his e-mail was


“… intended simply to be a helpful reminder to my instructing solicitor that DS Hudson should include those particular matters when preparing his statement. I was not advising or purporting to advise on the overall content of the statement and I did not advise that anything should be omitted.”

But, as I say, the predictable consequence was that the statement was neither comprehensive nor was it fair to the mother (and children). This materially contributed to the biased picture created by the public authorities, which reinforced and aggravated their other failings. It does not require me to spell out to these experienced lawyers what the statement of DS Hudson should have looked like. Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 at p.772 commented on the importance of:

“… a proper discussion with the relevant witnesses to ensure, so far as possible, that their statements contain a full and proper account of the relevant matters, which include the central matters seen or heard by that witness, the sources of hearsay being recorded by that witness, and the relevant background to and the circumstances in which the matters set out took place; and … a proper consideration of what further information or material should be obtained.”



With this in mind, the Judge had to consider whether there was bad faith on the part of the Local Authority – in layman’s terms, had they been careless or had they been actively trying to ‘fit up’ this mother?



  • Generally: The Claimants do not specifically assert that the Local Authority set out to mislead the court, or create a false case against the parents. They pleaded a case based on bias; they assert that the Local Authority was partisan and conducted itself in a way which was incompatible with its role in dispassionately analysing evidence and adopting a child-focused stance in line with the evidence. They have maintained that the Local Authority legal team, Ms McMullan and Mr. Shiels, lost objectivity in their professional conduct in this case, and as a consequence focused on only those aspects of the case which were adverse to, or implicated, the parents, and not those parts which might serve to exonerate them.
  • While I accept that the Local Authority representatives failed dispassionately to analyse the evidence, and tended to focus on those parts which were adverse to the mother, I don’t accept entirely the other criticisms. It seems to me that other factors were in play:


i) The Local Authority could only work with the information which they themselves received from the police; this disclosure was made piecemeal, late, and often in an incomplete form; this hampered the proper evaluation and presentation of the case;

ii) The Local Authority solicitor, Ms McMullan failed to take a co-ordinating role in relation to the evidence and/or the structure of the case; I sensed that she reacted to the requirements of the timetable and the demands of her client and never proactively managed the case; she ended up as a fire-fighter and appeared to rely heavily on Mr. Shiels for all decision-making. I do not believe that her conduct fell below an ordinary professional standard (and she did not lose ‘objectivity’ as was alleged), she simply did not rise to the demands of running a complex case, did not challenge decisions, and did not develop a sense of what the case was and where it was going. Had she undertaken her role with more attention to the detail of the case, I am sure that the US provenance of the video would have received greater prominence in her thinking. Her “oversight” in failing to disclose the montage may have been the result of a demanding caseload.

iii) For a complex case, it was regrettable that the key social worker (SW1) was so inexperienced; indeed, she had not dealt with a sexual abuse case before. She gave the appearance (in her evidence to me, which chimed with the transcript of her evidence before HHJ Anderson) of someone who was struggling with the case. I felt that she was probably rather impressionable, and could possibly be (or at least feel) pressurised by her seniors or others; she told HHJ Anderson that she was advised by her manager and the legal department that the Local Authority was going to take a particular line in the case, albeit that it did not accord with her view (see the quote from the e-mail at [33] above). She described herself in that earlier hearing as “just part …I am the social worker part of the process”, and disputed that she had instructed the department “to seek findings”. She said that she had not been party to any conversation about the obtaining of expert evidence to counter the LGC Forensics paper, although would have expected to be so. The Guardian picked up this dynamic; he felt that SW1 had been “instructed” by her legal team to take the line she did in relation to the case, perhaps against her better judgment. I concur with the Guardian’s analysis.


  • I do not believe that there was any evidence of professional misconduct or negligence on the part of the Local Authority lawyer or social worker; nor do I consider that there was a loss of objectivity, as alleged. Regrettably I sensed that the Local Authority’s case management was rudderless, lacking in supervision, hampered by a lack of clear information, overly influenced by DS Hudson’s misguided perception of the case, at times incoherent, and (as I indicated above: [91](ii)) almost always reactive rather than proactive.




I said that I would come back to some of the detail, and it is important.


Bear in mind that the care proceedings began on 27th February 2015 and the investigation was ongoing.  A key part of that would obviously be the forensic analysis of the video – since whether or not the perpetrator and victim looked like mother and child wasn’t sufficient, there needed to be closer analysis.

On 31 March 2015 Ms Jacqueline Pestell of LGC Forensics contacted DS Hudson, and gave him an oral report of the results of the facial mapping exercise; it is a little unclear precisely what was said. Ms Pestell maintains that she advised DS Hudson over the phone that MD could be “eliminated” as the woman in the video; this indeed was the account given by DS Hudson in his first statement in these proceedings. LGC’s internal note refers to the differences observed in the images, making them “unreconcilable” (sic). DS Hudson was advised in the same call that MD’s sister was a better match. In a later written statement in these proceedings DS Hudson doubted that the word ‘eliminated’ had in fact been used but confirmed that he was advised that the sister was a better suspect, and that in the circumstances there was little if any prospect of pursuing charges against MD. It is in fact formally conceded now that the police treated MD as being ‘eliminated’ from this the time (see Defence filed on behalf of West Yorkshire Police, and see Annex B [2] below)). Interestingly, in oral evidence, DS Hudson repeatedly used the word ‘eliminated’ to describe the effect of the information he had been given at this stage, and on the balance of probabilities I am satisfied that this is indeed what he was told by LGC.


Obviously if the Forensic Analysis ‘eliminated’ the mother as the perpetrator in the video, that was a vital piece of information.  (As the Judge says later, these cases are trial by Judge, not trial by expert, but it was a vital piece of information, even if the LA case was ‘the forensic analysis is wrong and we want the Court to test that evidence’)

The police had not properly communicated that to the LA.


  • On 7 May 2015, at the next court hearing listed before Moylan J, the Local Authority informed the court (per position statement) that facial mapping analysis “may have led” the police to believe that the images on the short video were not of the mother. West Yorkshire Police concede that by this time, the Local Authority were still not aware that the mother had been ‘eliminated’ on expert analysis, and nor was Moylan J when he made his further order for disclosure.



The case moved further forward, when the police obtained evidence to show that the video was in fact created in America, and was thus not a video of this child, nor the perpetrator anyone in this family.  Important to keep in mind that it was still a video of child abuse, which had been on father’s computer, so the concerns about father remained very live ones. But realistically, the risk of the mother as a perpetrator had disappeared, but the allegations had not been dropped.


  • By 4 June 2015, LGC Forensics had also excluded MD’s sister as Woman X. West Yorkshire Police informed the Local Authority of this. However, when the social worker (SW1) spoke with an officer of the West Yorkshire Police on 8 June, she was advised that the police were still in some doubt about the evidence and could not confirm that no criminal charges would arise as a result of these images; on the following day, DS Hudson wrote to the social worker in these terms: “the results back from the Forensic Company has not been able to confirm the identity of [MD] or [her sister]” as Woman X (this phrase did not in my view faithfully reflect what DS Hudson had been told), adding that the mapping work in relation to GD/Girl Y had not yet concluded. MD recalls that at this point she was simply advised that the facial mapping exercise had proved “inconclusive”, not that she had been eliminated.
  • On 10 June, there was a major development in the police investigation. DFI, one of the experts in the Digital Forensic Department working on an unrelated investigation, located a video recording of approximately eight minutes’ duration, of which the short video of Woman X (which had been the focus of enquiry in this investigation, identified in [12](i) above) was clearly an extract; the longer (eight minute) video showed clearly the identities of those participating in the recorded activity, and revealed beyond question that MD was not Woman X. It was further clear (from incidental detail in the footage) that the video had been recorded in the United States of America, not in West Yorkshire. DFI e-mailed DS Hudson asking him to call, as he has “information about [Woman X]”. DS Hudson was (it is agreed) on leave on that day and it appears that he did not in fact make the call on that day; it is not clear when DS Hudson returned the telephone call to DFI, but I am satisfied (on DS Hudson’s own evidence) that it was not long after DS Hudson’s return from leave on 22 June. In that call, I find that DFI gave DS Hudson sufficient detail about the longer video for him to know that MD was definitively not Woman X. From that point on, he told me that it was “cast iron” that MD was exonerated and he was then fixed with this knowledge.



This then becomes very difficult reading. I’m squirming even as I cut and paste this in.  This is exactly the sort of stuff that staunch critics of Local Authorities believe happens all the time, and it is genuinely sickening to see it play out for real.  It is awful to read this.   The underlining here is the Judge’s.  I would underline more, for emphasis, but I don’t want to lose those portions.  It is just awful, I’m afraid.



  • At a further court hearing on the following day (11 June 2015), counsel for the local authority, Mr Ian Shiels, reports (and I accept) that when the police representative was asked whether the facial mapping report (not yet disclosed) was required for interviews of the parents, the reply was “probably yes”; this is, as it now transpires, a surprising response given what is now known of the conclusions of the report. On 15 June 2015 the West Yorkshire Police received the written report from LGC Forensics which confirmed beyond question that MD was not Woman X. The report further confirmed that GD was not Girl Y, the child in the still image ([12](ii) above).
  • On 24 June 2015, on his return from leave, DS Hudson e-mailed the Local Authority social worker SW1 confirming that GD had been “eliminated” as Girl Y (the girl captured on the still image); DS Hudson confirmed that he told the social worker that the only active line of enquiry was in relation to the other images captured on the family computer. The contents of the LGC report were not shared with the mother for more than two more weeks (9 July) – see [27] below). On the following day (25 June), DS Hudson sent this important e-mail to the Local Authority solicitor, Ms McMullan:


“At this time there is no plan to interview [GD]. Even though the facial mapping has not identified [GD] I would still like to put the image [i.e. the still image] to the parents in interview should one of them id [identify] [GD] then she will need to be interviewed to see if she can recall the incident. I do not want this information giving (sic.) to the parents as stated I am looking to bring them in early next week.” (emphasis by underlining added).

On receipt of this e-mail, Ms McMullan, the Local Authority Solicitor, e-mailed the social work team manager as follows:

“…I’m not confident in what [DS Hudson] is saying is entirely accurate. It may be that they want to trick the parents in interview? I really don’t want to speculate …” (emphasis by underlining added).


  • On 9 July, the parents were interviewed by the West Yorkshire Police for the second time; both denied possession of the indecent images, and the mother denied recently destroying the computer hard-drive (per the Kodak photograph). As planned, the still image of Girl Y was put to the parents, who each in turn disputed that it was GD. Following the interview, the mother (MD) was eliminated from the investigation (a point which was confirmed in an e-mail of the same date to the social workers: “[MD] has now been eliminated from the investigation”), whereas the father (FD) was charged with six sample counts of making indecent images of children. On the same day, the West Yorkshire Police provided the 40-page and detailed LGC Forensic report to all parties; this confirmed that there was “no support” for the contention that MD was Woman X, nor that GD was Girl Y. The West Yorkshire Police further disclosed the image of MD allegedly destroying the computer hard drive. At court on the following day, Andrew Garthwaite, solicitor for the West Yorkshire Police recounted that “the Police position that the female in the video was not [MD] was clearly stated…”; he says that he spoke with Ian Shiels at court, who in turn indicated his wish to view the short video. This arose because Mr. Shiels detected some lack of confidence in the expert report among those who had commissioned it; Mr Garthwaite acknowledges that at that time he may well have said to Mr Shiels that he recognised the similarities between Woman X and MD and “couldn’t preclude the possibility that another facial mapping exercise might generate different findings”. Ms McMullan told me that Mr Shiels had reported to her an air of scepticism among the advocates about the reliability of the facial mapping report. In that regard, Mr Shiels followed up the discussions at court with an e-mail to Ms McMullan the following day in these terms:


“When I read the facial mapping experts report yesterday my thoughts were that this scuppered any case that the mother had been abusing a child or that [GD] had been abused… But I would like to think about it further…”

Mr. Shiels went on to describe the mother’s account of the dating of the Kodak photograph (i.e. that it was an old photo) as “plainly rubbish” (a view derived I believe from the fact that it had been assumed that all of the images on the computers had been captured when the computers were seized in 2014, and this one had only appeared since that time). His e-mail further alluded to the difference in standard of proof between the criminal and civil processes, and the need to look at the primary evidence and not be “led entirely by expert opinion, which need not necessarily be right”. He acknowledged that the conclusion of the LGC Forensics report was “a problem” but not “necessarily an insuperable one”.


  • On 10 July, at court, SW1 recorded that the parents told her that they were separating “out of necessity, not because they want to”, a view which they confirmed on 13 July at a social work home visit. This is relevant to the issue of continuing potential risk posed by the mother to the children, irrespective of her role as possible perpetrator.
  • On or about 14 July, Ms McMullan and Mr Garthwaite spoke by telephone. They plainly discussed the content of LGC Forensics facial mapping report, and the Local Authority’s willingness to consider a second expert opinion; the cost of obtaining such a report (c.£40k) was alluded to. Following this call, Mr Garthwaite sent an e-mail to DS Hudson (21 July) which included the following:


“I had a request from the local authority solicitor Annie McMullan last week as to whether or not you would be prepared for the local authority barrister, Ian Shiels, to be allowed to watch the indecent video(s) involving alleged mother and alleged [GD]? The reason for the request is that the local authority are keen to do all they can to secure the children in this case and are prepared to spend £40k+ in order to have the video analysed themselves to try and pin a case against the parents“. (emphasis by underlining added)

Mr Garthwaite apologised at this hearing for his choice of language in this e-mail; he could not be sure that Ms McMullan had not used the phrase ‘pin a case’, and in fairness, she could not rule out the possibility either, although thought it unlikely. Mr Garthwaite wished to emphasise that the language was not designed to give any indication that the Local Authority were in any way engaged in any impropriety by manufacturing a case against the parents.


  • On 23 July, DS Hudson replied to Mr. Garthwaite informing him that he was intending to view the second (longer) video which had been located by DFI, the Digital Forensic Investigator, and would be doing so “this morning” (records show that DFI had made a copy of it on 22 July in preparation). DS Hudson told me in evidence that he did not in fact go to the forensics laboratory to view it on that day on account of “operational commitments”, but only viewed the longer video a month later on 24 August. DS Hudson told the court in November 2015 that he believed he had viewed the longer video in or around June or soon after 23 July 2015. The evidence of DFI was that DS Hudson viewed the longer video “around” June/July, but at the latest “the first part of August”. Later, within the evidence filed in these proceedings, DFI went some way to confirming DS Hudson’s account that he did not view the longer video until 24 August (linking it with recalling having e-mailed him in relation to a ‘personal matter’), though acknowledged that he only “vaguely remembers” the events. It is not material to establish precisely when DS Hudson viewed the longer video; I cannot find on the evidence that he did in fact view it before 24 August. As I have said earlier (see [24] above), he was fixed with the knowledge of the mother’s certain innocence by the end of June 2015. On my reading of the e-mail traffic, this is the only e-mail passing between DS Hudson and Mr Garthwaite about the second (longer) video (see also [99] below). Mr. Garthwaite reports that he did not appreciate the significance of the second (longer) video at this time.
  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:


“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.


  • On 29 July, Ms McMullan chased a response from Mr. Garthwaite by e-mail persisting in her request for disclosure; on 17 August Mr. Shiels chased again (also by e-mail) for the police’s disclosure. This disclosure was said to have been delivered by the police to the Local Authority on or about 20 August.
  • On 31 July, SW1 met with her team manager, and explained to her that she would be concerned about giving evidence in the case as she did not believe that MD was Woman X nor that GD was Girl Y; the expert evidence had, she thought, made this “abundantly clear”. To recap, the Local Authority knew of the conclusions of the LGC Forensics report by this stage, but not of the existence (let alone the significance) of the longer video. The note of the manager reflects inaccurately that “The woman [on the video] is believed to be mum (90% certainty following facial recognition)”; it is not clear to me whether that information had been incorrectly understood by the social work team or whether the note of the conversation is inaccurate. On that day the team manager wrote to the solicitor as follows:


“I am just in supervision with [SW1], having an update regarding this case. On consulting the attached schedule, we are not in agreement with the sections numbered 6 & 7. [SW1] is certain that the child in the images concerned is NOT [GD]. Furthermore, she is doubtful that the adult female is mother. Consequently, it would not be appropriate to give evidence to state otherwise… I am aware that the police are not intending to conduct an ABE interview of [GD], so do we need to make a decision at this point as to whether we pursue our own by an ABE trained social worker?” (emphasis in capitals in the original: emphasis by underlining added. Note also that reference to “6 & 7” is an erroneous reference to paragraphs 7 and 8 of the schedule: see above).

Later that day, Ms McMullan telephoned the team manager to seek to reassure her that the Local Authority had proper grounds to proceed on the basis of the video and still image, given that the standard of proof was different in the family court and the criminal court. It appears that a conference was then arranged with counsel in order to discuss the social worker’s concerns. This took place on 13 August. Strangely, none of the notes of the conference record any conversation about the social worker’s concerns. Mr Shiels told me that he recalled no specific conversation about these concerns.



That schedule of findings is worth going back to :-


  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.


Clearly, if there had been full and transparent sharing of information, the fact that the forensic analysis had indicated that neither of the persons in the video were members of the family and that the footage emerged from America  (there was an 8 minute long video from America, of which this was a 30 second snippet, and the longer video obviously gave more material to work from) meant that the LA could not realistically pursue those findings. The question is, did they know that?



  • On 21 August, two important events occurred in the history of this case.


i) First, at a hearing before HHJ Lynch during the morning the West Yorkshire Police were ordered (for a further time) to disclose information to the parties about the Kodak photograph, including any information about the date of its creation, storage, and assessment. This direction had been anticipated by Mr. Shiels who earlier in the morning had e-mailed DS Hudson requesting information about the Kodak photograph and the date of the folders in which it was stored;

ii) Secondly, in the early afternoon, a conference took place at Mr Shiels’ Chambers; those in attendance were Mr Shiels, Ms McMullan, DS Hudson, and SW1, although SW1 was late in arriving. I deal with the conference in some detail (below).

There is some dispute about precisely what was said at this conference. DS Hudson’s evidence is that he told those present at the meeting that a second (longer) video had been found in a separate investigation and that its country of origin was America; he accepted in evidence before me that he may not have spelled out as clearly as he should that this video ruled MD out as a perpetrator of abuse beyond question. When questioned about this at the hearing before HHJ Anderson in November he accepted that he did not make this clear. On nobody’s account of the meeting was the American origin of the video “discussed” as DS Hudson (misleadingly in my view) told HHJ Anderson during his earlier evidence on no fewer than three occasions. The Local Authority maintains (and the contemporaneous notes of the conference support this) that DS Hudson had indicated in the meeting that there was a possibility that the (shorter) video may have originated from America (“origin might be US”); he was asked to clarify this and he agreed to make further enquiries of DFI.


  • During the viewing of the short video at the conference, DS Hudson (and this much is agreed by Ms McMullan and Mr. Shiels), pointed out that Woman X was wearing an unusual blue watch, and informed them that this had not been found during the searches of the family home. Self-evidently it would not have been found in MD’s home, as MD was not Woman X, as DS Hudson well knew. The officer also pointed out that Woman X was wearing a ring on the same finger as MD – again, ostensibly establishing a link between the two, which he knew was merely coincidental.
  • At the conference, DS Hudson apparently described the superimposition process which had been conducted in or about February 2015, and confirmed that the montage (of Girl Y and GD) was still in the possession of the police. DS Hudson’s evidence to me was that by the end of the conference he believed that the Local Authority was proposing:


i) to allege within the care proceedings that GD was Girl Y in the still image (and had therefore been directly involved in the abuse), but that

ii) the authority had no intention of seeking to argue that MD was Woman X.

As it happens, he gave different evidence before HHJ Anderson in November 2015, indicating that by the time he prepared his witness statement, he knew/believed that the Local Authority was pursuing a finding that MD was Woman X. He thought that the Local Authority was proposing to argue that MD had destroyed the hard drive and therefore evidence of indecent images. The account he gave before HHJ Anderson was, in my judgment, more plausible.


  • SW1 recalls no conversation about, or mention of, America during the conference, which, if she is right, suggests that any such mention may well have occurred before she arrived (which was later than the others), and indeed I so find. Ms McMullan now indicates that she regrets not writing to Mr Garthwaite after the conference to clarify the “throwaway remark” about the origin of the video, and specifically the reference to “America”. Significantly, she is clear that DS Hudson never mentioned then, or indeed at any time up to 18 November at court at the start of the final hearing, the existence of a second (longer) video. She believed that DS Hudson would obtain further information from DFI about the relevance of America, and revert to her. Ms McMullan maintains that had she known, or been advised, that the second video existed, that it originated in America and that MD was certainly not the woman in the short video: (a) the local authority would not have asked to view, let alone actually view, the short video, and (b) the course of the case would have been radically altered.
  • Mr Shiels shares Ms McMullan’s recollection that DS Hudson did not mention the existence of any other or longer video in the conference, and that he only mentioned, as a possibility, that the video which they had watched may have originated in America, though (says Mr. Shiels) DS Hudson did not appear clear about this and laid no great emphasis upon it. Mr Shiels believes that it would have been perfectly plain to DS Hudson from the discussion at the conference that the Local Authority was going to maintain its case (set out in the schedule – see [31] above) that MD was Woman X; accordingly, Mr. Shiels felt that the video was pivotal in being able to prove that fact, notwithstanding the expert report from LGC Forensics. Mr Shiels did not understand from DS Hudson’s comments that the video had actually been filmed in America (as in fact is proven to be the case) but wondered whether the reference to America was to a shared computer file with an American partner. He recalls the reference to the watch, and to DS Hudson confirming that the police search of the family home had not produced the item. At his request, all existing records relating to police searches of the family’s home was sought as disclosure, and were indeed disclosed. At the conclusion of the conference, Mr Shiels asked DS Hudson if he could prepare a witness statement for the CA 1989 proceedings. Mr. Shiels describes the “focus” of the meeting as:


“… assessing the strength of the local authority’s case and therefore the focus was on obtaining from DS Hudson information which would or could support and strengthen that case.”.

I underline the passage in the quote above to highlight that it appears that the “focus” was not on collating relevant evidence which went either way.


  • Having heard the various accounts of the conference on 21 August, I find that at the conference:


i) DS Hudson did not explicitly refer to the existence of a second (longer) video; while it is possible that he and the Local Authority were speaking at cross-purposes about ‘the video’, in fact I find this omission to be deliberate;

ii) DS Hudson did not make clear to the Local Authority representatives as he should have done that the police investigation had established beyond question that MD was not Woman X;

iii) DS Hudson’s observation that the “the video” had an American origin was made only in passing; it was not “discussed” as he told HHJ Anderson. The officer did not – as he should have done, in my view given the importance of the issue – make clear to the Local Authority representatives that the video originated in the USA, and that this therefore contributed to the view that the mother could be ruled out as the perpetrator of the video-recorded abuse;

iv) By stating that the police had not found the unusual watch worn by Woman X in the mother’s home, and by pointing out Woman X wearing the ring in a similar fashion to MD, DS Hudson caused or encouraged the Local Authority to believe that the police believed or suspected that MD was indeed Woman X, or that there was a case to make that MD was Woman X, when in fact (as we now know) they knew that she was not.



The Judge does not make any criticism of the LA inviting the police officer, who was clearly a witness of fact, to a conference with counsel.  I suppose there was so much else to criticise that this got missed.  It’s not something I would imagine doing.   You can see from the judicial findings that the Judge found that DS Hudson caused or encouraged the LA to believe that the police BELIEVED that the woman in the video was the mother when in fact they KNEW she was not.


The lawyers in the care proceedings asked to see the longer video, and this produced a flurry of email correspondence between DS Hudson and the force solicitor, Mr Garthwaite.


  • On 15 September, the solicitor for the mother notified Mr. Garthwaite by e-mail that it was her intention to apply to the court for permission to instruct an expert to date the Kodak photograph; she also indicated her intention to ask the court for permission to view the short video.
  • On 17 September, an e-mail ‘conversation’ took place between Mr Garthwaite, DS Hudson and DFI. Mr Garthwaite had passed on the request by the mother’s legal team to view the short video; DFI raised a concern about this to his colleagues, saying:


“We’d established from another recent case of mine that it’s neither [MD] nor [GD] in the video – albeit that the female in the video does have a resemblance to [MD]. We’d technically be showing them an indecent video, of which all parties would need to be aware of and its content…”

DS Hudson asked for legal advice about the position from Mr Garthwaite who told me at this hearing that he did not appreciate until 19 November the relevance of the second (longer) video. On the basis that an order would be sought by the parties for permission to view the video, and that disclaimers would be sought, arrangements were made for the mother and her legal team to view the short video. The mother and her legal team viewed the video on 12 October. There later followed a request by the Children’s Guardian to view the video; this provoked an e-mail from DS Hudson to Mr Garthwaite:

“I’m really not happy with this, we have shown the video to [MD] and her counsel… as discussed and arranged. Now we are being asked to show this video to [GD]’s solicitor and her Guardian; we are being asked to show a Level B Child Abuse video to her Guardian. Why? What protection is in place should her Guardian react in a negative way to this abuse video? It was agreed to show the video to [MD] and her counsel on the basis that counsel has dealt with these issues in the past and [MD] had seen the video in interview. Please confirm that the police and officers involved will have no repercussions in this matter.”

Mr Garthwaite sought to offer reassurance to DS Hudson.


Of course, what this means is that a set of lawyers ended up watching a video which must have been graphic and dreadful to watch, when in reality, none of them needed to see it at all, because the mother and the child had both been eliminated by police enquiries as being the people in the video.  The lawyers were only watching it because the allegation was that this was the child being abused by the mother.  If there had been honesty that the video had no connection to the mother and child OTHER than it being one of 5,000 indecent matters found on father’s computer, none of them would have had to do that.    {There’s a dreadful discussion in the next paragraph where someone puts their finger on it – the father had probably picked this particular clip BECAUSE the woman in it resembled the mother, his partner.  I’m sorry, that is just truly awful}


We’ve had cases reported before about things being added to social work statements, and that happened here too  (I’m not talking about cleaning up typos or polishing, or suggesting a better way to word something, but insertion of things that the social worker didn’t actually agree with. )



  • On 8 October, SW1 filed her final parenting assessment report on MD with the court. It is a lengthy document extending to over 50 pages. I learned a little of the evolution of the report at the hearing. It passed through at least two editorial hands (the team manager and the Local Authority lawyer) before being filed. Ms McMullan was the final editor and included in the report a number of new sentences. She said that she asked SW1 to check the statement before signing it, having earlier “knocked [it] around a bit”; SW1 told me that she did not check it carefully and only after its filing did she read it thoroughly, and then realised that words had been added with which she was not comfortable, importing views which she did not hold.




The fact that the LA findings sought against mother  – that she had abused the child in that video, were completely unsustainable,  and had not actually been sustainable for about six months by the time of the final hearing, yet this only actually emerged on day one of the final hearing.



  • The final hearing began before HHJ Anderson on 17 November; no evidence was called on the first day. Following discussions between the advocates, Mr. Shiels drafted questions for LGC Forensics to answer about the superimposition montage, namely (a) whether it had been seen before and (b) whether it caused the expert to alter her analysis. As I discuss later, I find that these questions could and indeed should have been asked much earlier. On 18 November, DS Hudson and DFI attended at court to give evidence. It appears that in the pre-hearing conference outside court, DFI informed Mr Shiels of information he had known since 10 June 2015, namely that the short video had originated in America, and was an extract of a longer video. Mr. Shiels’ account from his witness statement repays rehearsing in full:


“I was not told that there was any other version of the video, or a “longer” video … I was very surprised to be told that the origin was clearly in America, rather than merely a possibility. I then asked if they were saying that the woman in the video was in fact probably not [MD]. [DFI] said this was so. I cannot recall if DS Hudson contributed anything to this. If he did, he did not say much. He did not dissent from what [DFI] told me. I immediately communicated this information to the other advocates and then to the court, withdrawing the Local Authority’s case that the mother was the woman in the video…. At no time prior to the 18 November had I been told of the longer video, the origin clearly being in America, and the certainty that the woman was not the mother. If I had known this at an earlier stage, I would immediately have taken the same action that I took at court and withdrawn that allegation against the mother.”


  • Ms McMullan’s evidence is that she had a conversation with DS Hudson; she says that she told the officer that she did not know that the video had originated in America, to which DS Hudson replied that he thought that Mr Garthwaite had told them.




Just when you think that things can’t get worse, they do.  It emerges that at the ABE interview of the child (which was conducted by an inexperienced social worker), the child was shown a pixelated photograph of the child in the video  (who the police KNEW was not her)



  • ABE interview: ABE interviews should always be conducted with reference to the March 2011 Guidance: “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures“. Although this guidance is advisory, and is not a legally enforceable code of conduct, as the Guide makes clear “practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts” (see §1.1). This is not the place for a detailed examination of the guidance, but it is essential reading for any professional conducting such an interview, and for those engaged in the preparation of a case which depends upon interview. It was not followed either explicitly in the work undertaken by SW1 and her colleague on 17 September 2015; the Local Authority properly concede the consequent breaches of the Claimants’ Article 6 and Article 8 rights in this regard (see Annex A[1](e)/[2](c)).
  • In this case, I question why an interview in the ABE format was taking place at all in September 2015, some seven months after the children were received into care; SW1 believed that GD “needed to tell her story”, but what story was it that she “needed” (or was being invited) to tell? Insofar as it was appropriate at all, it was not properly prepared, and the questions asked of GD reveal that the interviewers were at sea; it is to be noted that “[a] well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.” (§2.1). It is clear that there was minimal planning. Recent judicial commentary on ABE interviews is to be found in the Court of Appeal’s decision in Re E [2016] EWCA Civ 473 at [24]-[45], which in turn endorses in large measure what Sir Nicholas Wall P had said in the case of TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597; the following observations are relevant to the facts of this case:


a) ABE interviews of children must always be conducted by professionals who have been trained to apply the ABE Guidance;

b) The fundamental principle which underlies the ABE Guidance is that those who elicit evidence from a child must conduct themselves in such a way that the child is given the maximum possible opportunity to recall freely, uninhibited by questions, what he/she is able to say.

c) The ABE Guidance emphasises (at para 3.108) that photographs (or drawings, pictures, symbols, dolls, figures and props) “should be used with caution and never combined with leading questions.”


  • The Local Authority is right to concede the inappropriateness of the ABE interview being conducted by inexperienced social workers, contrary to judicial and other guidance. It is further right for the Local Authority to concede that the photograph of Girl Y should never have been shown to GD. SW1 was wrong to mislead GD that the photographs were all from a “family album”; that was manifestly not so in relation to one of the pictures. One of the lowest points of this blighted history was the act of showing GD an edited version of an illegal download of a child abuse victim lying on her back with her legs apart exposing her genital area (albeit pixelated) under an entirely false pretext that the interviewers believed it was her and that the photograph had been located in a family album. I agree with the mother when she argues that it was “fundamentally wrong” for the Local Authority to interview GD in this way. Had the Children’s Guardian been aware that the interview was to be carried out in this way (and I am satisfied that he was not) he says that he would have “objected in the strongest terms”, and rightly so.
  • Showing the pixelated photograph to GD, and misleading her as to its provenance, were blatant breaches of GD’s right to be treated fairly by the Local Authority. There is no doubt that the interview itself would have been distressing to GD; the manner in which it was conducted was designed or intended, it seems to me, to produce evidence which falsely implicated the mother. If GD was “defensive” in interview (a point relied on by the Local Authority as part of its “wide canvas”) this is not entirely surprising. The Local Authority knew that GD was not Girl Y by this time and should never have proceeded in its investigation in this way. I accept the Claimants’ case that it was undignified and demeaning for this eight-year-old girl to be put through a formal interview process which was unnecessary and which sought to inveigle her into providing evidence to support a false allegation.




The Judge has made his findings that there was not bad faith on the part of the Local Authority, and that judicially speaking is that. I’ll keep quiet as to my own views on the matter.



The findings in relation to the police


Findings: West Yorkshire Police:


  • Disclosure: The failures of the West Yorkshire Police to comply with its duty of disclosure in this case were extensive; these failures regrettably pervaded the entire course of the case; I consider that it extended the litigation, and ultimately influenced its outcome.
  • I am satisfied that the West Yorkshire Police, and specifically (unless otherwise indicated) DS Hudson:


i) Repeatedly failed to comply with court orders for disclosure; those which are obvious from my review of the papers are orders made on the following dates:-

a) 27 February 2015 (this breach is acknowledged in the order of 19 March 2015);

b) 7 May 2015 (in relation to the facial mapping report; this is evident by the order of the 11 June);

c) 10 July 2015 (the order of 21 August 2015 makes clear that the Chief Constable had made only “partial disclosure” of the documents ordered to be disclosed by 17 July);

d) 21 August 2015 (the Police did not disclose by 28 August information relevant to the Kodak photograph);

e) 23 October 2015 (in relation to the Kodak photograph and the origin and date of the short video and the still image of Girl Y: this was not done until trial; although this order was directed to the Local Authority, it was contemplated by the order that the information would be provided by the police, who, indeed, were asked for it; the police e-mailed Ms McMullan indicating that it had no further evidence to submit);

ii) Failed to disclose to the Local Authority and to the mother, on or about 31 March 2015, that the mother had been “eliminated” from suspicion as Woman X, when LGC Forensics advised DS Hudson that this was so; the Police erroneously, in my judgment, initially contended that such non-disclosure was justified as it may “prejudice” the investigation and/or that “piecemeal” disclosure would have been inappropriate. That argument was subsequently abandoned. It surely cannot be justified to withhold evidence from a person accused of a crime which exonerates them. This was not ‘marginal’ evidence. The police engaged in piecemeal disclosure thereafter, thus undermining the very basis of their initial stance;

iii) Failed to make known this information (i.e. that the mother had been eliminated on the basis of the expert assessment) to the parties at court hearings which followed on 7 April, 7 May and 11 June, and which the West Yorkshire Police were legally represented (albeit not by Mr. Mallett who appeared at the hearings before me);

iv) Delayed for one month before they disclosed the LGC Forensics report to the mother and her legal team (the West Yorkshire Police received it on 12 June and only disclosed it after the interview of the mother on 9 July 2015); this report, of course, contained the clear and unequivocal conclusion that MD was not Woman X, and that GD was not Girl Y in the still image;

v) Failed to disclose (after the end of June, or by 23 July 2015 at the latest) that the second (longer) video existed, which indisputably proved that neither MD nor GD featured in the short video; (the mother and her legal team were first made aware of it on or about 18 November);

vi) Failed to disclose (after 17 September 2015, by which time the information was clear) the evidence supportive of the mother’s account that the Kodak photograph had in fact been taken in 2009; this failure was compounded by the fact that the police were in breach of disclosure orders variously made on 10 July and 21 August 2015;

vii) Failed to comply with court orders for disclosure more generally; the representation made by the West Yorkshire Police to the Local Authority after 23 October that it had no further evidence to disclose was false.


  • These failures derive from three essential shortcomings in the operations of the West Yorkshire Police in this case:


i) A failure to establish or maintain clear lines of accountability in relation to disclosure; Mr. Garthwaite has explained that he had passed on the requests for disclosure to DS Hudson and had received messages from the officer which tended to indicate that the requests had been complied with; DS Hudson believes that responsibility lay with Mr Garthwaite. There was no evidence of any audit of this process;

ii) An indifference which I detected in the evidence and in the conduct of DS Hudson to the importance of disclosure;

iii) An apparent lack of concern about compliance with Court Orders. I turn to this subject in the paragraph which follows.


  • Surely no party, or lawyer of any experience, in litigation of this (or any) kind still needs reminding of the importance of compliance with court orders: see what I myself have said in F v M [2015] EWHC 3259 (Fam) ([7] et seq.), and for the most recent example London Borough of Redbridge v A, B and E [2016] EWHC 2627 (Fam), published during this hearing. Case management orders are to be obeyed, to be complied with on time and to the letter, and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see also Re W (Children) [2015] 1 FLR 1092). As is evident from my summary at [93](i)(a)-(e) above, this did not happen in this case. The burden of other work is not an excuse for non-compliance with the directions of the court; whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187). As Macdonald J in Redbridge went on to say at [12]: “Case management directions are not mere administrative pedantry”, adding:


“It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.” (emphasis by italics in the original).

Macdonald J’s observations apply, in my judgment, with equal force to the responsibilities of the police.


  • Had orders been complied with faithfully and conscientiously, the flaws in this investigation are likely to have been avoided, or at least exposed at an earlier time. Moreover, MD was put to the trouble, and the State was put to the expense, of obtaining independent expert advice about the Kodak photograph showing her destroying a hard disk drive; her expert in due course confirmed the date of creation of the photograph as 11 March 2009 – a fact known to the police for several months (March 2015), but not disclosed by them. Had the police revealed its knowledge earlier an important plank of the Local Authority’s case would have been removed, for the authority had sought to use this evidence that the mother had been, or was likely to have been, recently engaged in the business of destroying evidence (i.e. in the period between the first search of the family home and the arrest of the parents in reliance on the photograph which (it maintained) was not visible on the computer system before 2014) as part of its “wide canvas” of evidence implicating her in the abuse (see [82] above).
  • Second (longer) video: I find that DS Hudson did not inform the Local Authority (or indeed any of the other parties) of the existence of the second (longer) video until 18 November. He had multiple opportunities to do so:


i) As soon as he was told by the Digital Forensic Investigator, DFI, about it, which was probably by the end of June, but certainly by no later than 23 July;

ii) At Court at the hearing on the morning of 21 August 2015;

iii) At the conference with Mr. Shiels, Ms McMullan and SW1 in the afternoon of 21 August 2015;

iv) As soon as he had seen the video himself, which was at the latest on 24 August.

It is apparent, and I so find, that as at 21 July 2015 when Mr. Garthwaite sent the e-mail referred to at [29], the West Yorkshire Police were aware that (in spite of the expert evidence from LGC Forensics) the Local Authority was continuing to pursue the allegation within the care proceedings that MD was in fact Woman X in the short video.


  • In his evidence before HHJ Anderson and before me DS Hudson sought to divert responsibility for the failure to disclose the second (longer) video onto Mr. Garthwaite, with whom, he said, he had corresponded on the subject. I have seen no correspondence from DS Hudson to Mr. Garthwaite in which he requests that the existence of the second (longer) video be disclosed to the Local Authority, let alone the respondent parents. I reject his case about this. Regrettably, as I mention elsewhere, Mr. Garthwaite knew of the existence of the second video, but did not appreciate its significance (see [30] above).
  • The short video / the superimposition montage: It is obvious from the internal e-mails passing within the West Yorkshire Police at the material time that serious misgivings were expressed by DFI, and separately indeed by DS Hudson, to Mr. Garthwaite about the appropriateness of facilitating the viewing by the lay parties and their lawyers of the short video; this was particularly in light of the fact that it was known that this had no relevance to the investigation of, or the public law proceedings concerning, this family. The situation which arose in relation to this highlights vividly the lack of strategic leadership in the management of the joint investigation and in its relationship with the Local Authority, and the failure of Mr. Garthwaite (as the solicitor for the force) to gain an understanding of the significance of the evidence.
  • Misled the Local Authority: I am satisfied that DS Hudson caused or encouraged the Local Authority to believe that Woman X could be the mother. This is evidenced by the fact that at the conference on 21 August 2015,


i) He showed the short video to the Local Authority representatives (inferentially he was holding out that it had probative value in the CA 1989 proceedings):

ii) He drew attention (during the showing of the video) to the existence of the ring on the same finger on Woman X as that worn by the mother;

iii) He pointed out (during the showing of the video) the watch worn by Woman X, which – he said – was not found in the search of the house.

At that time, he knew that the mother had been definitively excluded from consideration as Woman X. Of course the watch was not found in the search of MD’s house: the woman wearing the watch was not MD. There was no significance to be attached to the ring worn by Woman X. DS Hudson knew that.


  • DS Hudson showed the Local Authority lawyers the superimposition montage on 17 September; the only plausible explanation for the officer presenting this evidence to the Local Authority at that time is that he was encouraging the authority to pursue a case that Girl Y was indeed GD in the still image, even though he knew that this was, on the evidence of the expert not so (and when he knew also, on his viewing of the longer video, that GD was not the girl in the video either).
  • Witness statement of DS Hudson (dated 22 September 2015): The West Yorkshire Police rightly concede that the witness statement of DS Hudson (22.9.15) was seriously misleading in both what it contains and in what it does not contain (see the concession at Annex B [6] below). I was unconvinced by DS Hudson’s protestations that he did not realise that by providing such a limited statement, and indeed by providing only the material he did, a wholly distorted view would be given of the investigation and its outcomes. It is well-established now that by the time he provided the statement, he knew that MD was not Woman X, yet the statement tended to point to the contrary conclusion. For instance, his statement includes this paragraph:


“The footage of the images and videos recovered from the forensic examination identified a video containing footage of a women (sic.) with the facial appearance of [MD], the face of the women (sic.) in the footage can be seen, not a common factor as those abusing children do not want to be identified, also the woman wore a ring on her right hand finger which is the same hand [MD] wears a ring as seen in other family footage of her”.

The statement further referred to DS Hudson’s belief that Girl Y bore a striking resemblance to GD. This statement drew attention only to those pieces of evidence which implicated the mother; he failed to refer to the following crucial facts:

i) By the time he signed the statement, he had undoubtedly received information that the short video was an extract of a longer video which demonstrated beyond peradventure that Woman X was not MD;

ii) The video undoubtedly originated in the USA;

iii) No watch had been found in a search of the mother’s home which matched the watch in the video;


iv) The police had clear evidence from LGC Forensics, which they had accepted that MD and GD had been eliminated as a match for Woman X and Girl Y respectively.


  • DS Hudson told HHJ Anderson that he understood the purpose of the statement was “to outline my involvement with the family”, and separately “to provide a snapshot of my investigation into [MD]”. He conceded at that hearing that he had been in “error” in providing the statement which he did. He further told HHJ Anderson that he knew at the time of providing the statement that the Local Authority was continuing to pursue the finding that MD was Woman X, a contradiction from the evidence placed before me. There was the occasional sign in his oral evidence before HHJ Anderson (of which I have the transcript) of his confused thinking, for instance posing the rhetorical question (when probed about his knowledge of the video originating in the US): “who am I to know that she has not been on holiday to America?” (later dismissed by him as a “throwaway remark” for which he apologised). It was that confused thinking, coupled with an unworthy desire to see MD proven to be Woman X, which I believe permeated his dealings with the Local Authority. At this hearing he has acknowledged that:


“… in providing such a limited statement, without expressly confirming the use to which it would be put, I afforded the opportunity for the Local Authority case to be progressed in the way that it was… I can see now that I was overly-reliant on the Local Authority legal representatives in dictating the content and scope of my statement…”


  • Failure of recording: It has been important to my investigation to know when DS Hudson viewed the second (longer) video; although I am satisfied that from 23 July at the latest he was aware from DFI that MD was not Woman X, he had not seen this with his own eyes. It is therefore a source of forensic frustration, and not inconsiderable consternation, that the evidence adduced before me revealed such lax arrangements for the recording of viewing or distribution of such highly sensitive materials. DFI made no note of when he found or viewed the second (longer) video, nor when DS Hudson viewed the second (longer) video; yet more concerning is that DS Hudson was provided with a copy of the short video and/or the longer video, but no record was made of when he was provided with them, or their ultimate whereabouts. After his retirement, the second (longer) video was found in the secure safe of his office; no steps had been taken to return it to the Digital Forensic Unit.
  • Generally: DS Hudson appeared affronted that his investigation and his conduct of it was being called into question in this enquiry. DS Hudson had, I have found (see [13] above), declared himself at the strategy meeting in February 2015 to be 90% sure that MD was Woman X, and 99% sure that GD was Girl Y. In my judgment he struggled to shake off those beliefs; the social worker had the sense that he still thought it could be the mother when he met with the Local Authority representatives on 21 August 2015. The mother recorded in her written evidence that she felt that DS Hudson strongly believed throughout the investigation that she was Woman X. When Mr. Marshall gave his evidence to HHJ Anderson in November he described DS Hudson’s reaction to seeing the longer video in July/August thus:


“I’d given him clear proof that it wasn’t what he thought from the start but then from there, there was also… He was still convinced of the likeness that was there…” (my emphasis by underlining)

His evidence frankly gave me the same impression.


  • As I say, DS Hudson believed that the Local Authority was “looking to pursue” the allegation that MD was Woman X in the care proceedings even when he knew that she was not that woman; at no time did he challenge the Local Authority as to the appropriateness of this pursuit. This belief in the mother’s likely guilt (alternatively his wish to see her proven as the perpetrator of abuse) is consistent with, and provides a unifying explanation for, his conduct in:


i) Failing to make clear to the Local Authority and/or to the mother at once, following his conversation with LGC Forensics on 31 March, that MD had been “eliminated” as Woman X; I have found (see [20] above) that he was given this specific information on that date;

ii) Presenting the image of Girl Y to the parents in interview in an effort to trick them (as I find) into believing that it was GD (see [26]) in an attempt to see if an incriminating response may be given;

iii) Showing the Local Authority representatives, the short video of Woman X at the conference on 21 August 2015 when he knew that it did not feature MD, and that it was made in the USA;

iv) During that presentation, on 21 August pointing up the presence of the ring on the finger of Woman X as being similar to that worn by MD;

v) Informing the Local Authority representatives at the conference that a trawl of the family home had not revealed the presence of the unusual blue watch worn by Woman X;

vi) Signing and submitting a witness statement in September 2015 which was highly selective in content and unacceptably partisan;

vii) Failing to tell the Local Authority representatives of the existence of the longer video at that or any subsequent time prior to 18 November (second day of the hearing before HHJ Anderson);

viii) Volunteering in his evidence at the hearing before HHJ Anderson that he could not confirm that the mother “hasn’t been on holiday to America” (implying that she could have been involved in the creation of the video); his later apology and dismissal of the remark as “throwaway” does not expunge the record.

I find that by his conduct and words said and not said, DS Hudson allowed or encouraged the Local Authority to pursue the finding that MD was Woman X. I reject the explanation he gave for showing all parties the short video during the autumn of 2015 prior to the final hearing that he simply thought that “they should know what … the background to the case was”.


  • DS Hudson as officer in the case carried much sway with the Local Authority. In his sharing of information, he did not faithfully observe the ‘Golden Principles’ discussed at [71] above (viz. “Necessary, proportionate, relevant, adequate, accurate, timely and secure”). His less than professional approach regrettably contaminated the family proceedings. He was not, in my judgment, effectively supervised by DI Walker during the months under review. She concedes as much. This was a failing on her part, which I consider contributed to the unchecked mischief in this investigation.
  • I note that Head of Legal Services at West Yorkshire Police has made a referral to the Professional Standards Department of the police in relation to the conduct of DS Hudson; the Professional Standards Department has indicated that it intends to await the outcome of this hearing.
  • It was Mr. Garthwaite’s clear role as Legal Adviser to the force to take responsibility for the force’s compliance with the disclosure orders, to be proactive over the disclosure of material more generally, and to have a hand in (or oversight over) the preparation of DS Hudson’s witness statement. My impression was that he was rather detached from these processes, dipping in when unavoidably required to do so, and otherwise placing reliance and responsibility, to an unwarranted extent, on the actions and judgment of the investigating officer. His e-mail to DS Hudson of 21 July (see [29] above), shows a lack of discipline in communication; regrettably, the use of the vernacular (“pin a case”) may well have given a false impression to the officer about the intentions, the judgment and indeed the integrity, of the Local Authority in the prosecution of its case. His lack of appreciation of the significance of the second (longer) video (which would have been apparent on minimal enquiry) contributed to the failings of his department, and of the investigation.




Findings in relation to counsel instructed by the Local Authority

Findings: Intervener:


  • There is no doubt that the Local Authority legal team was under joint and several duties to observe essential principles of fairness, and comply with orders of the court; each owed a duty to the court in the administration of justice. Each had a duty not to mislead the court, knowingly or recklessly, and to provide a competent standard of work. In that regard, what I have said about the Local Authority team above in some respects applies to Mr. Shiels.
  • Mr Shiels, an experienced family practitioner, was instructed as counsel on 16 March 2015, receiving his instructions from time to time from a solicitor whom he regarded as “very able and experienced” and with whom he described enjoying a “good working relationship”. There was, apparently, no formal brief or instructions as such; Mr Shiels received his instructions relatively informally through e-mails and telephone conversations. He attended altogether seven directions hearings in the case prior to the final hearing listed in November 2015.
  • There are clear duties imposed on counsel to observe a duty to the court in the administration of justice, to act with honesty and integrity, and not to behave in a way which is likely to diminish the trust and confidence which the public places in the individual barrister and/or in the profession (see the Bar Standards Board Handbook, Core Duties).
  • I have, in reviewing Mr. Shiels’ role, as I have with others, endeavoured not to apply too exacting a standard by viewing the conduct through the lens of hindsight. Mr. Shiels’ approach to the case he was instructed to present, reflected in his advice to his instructing solicitor, appears to me to have been more bullish than it was cautious; that is not a criticism as such, nor a mark of professional irregularity. He was of course evaluating the case in the context (to which I have alluded above) of serious criminal offending within the family home; I consider that this backdrop may have influenced (perhaps to a disproportionate extent) his intention to seek serious findings against the mother which on the evidence were, objectively viewed, likely to be beyond his reach. Central to Mr. Shiels’ advice was that the LGC Forensics report may be wrong, and that there was much extraneous evidence (including the superimposition montage) which could knit together to establish a finding that MD was Woman X and that GD was Girl Y on the preponderance of probabilities. While Mr. Shiels was entitled to the view that the expert evidence may indeed be wrong, and that it was in any event only part of the forensic picture, I discerned limited if any evidence on the papers before me that he had properly thought through how this might be presented to the court. I say so for the following reasons:


i) There is no indication in what I have seen that he conducted any detailed evaluation of the strength of the expert evidence of LGC Forensics; the report contained much technical and specialist information and assessment, even if ultimately based on a subjective view of the material; Mr. Shiels had no equivalent expert evidence to rebut it; I remind myself of his e-mail to Ms McMullan on 23 July (see [31] above): “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.”

ii) It seems that he had not appreciated the limitations of the superimposition montage; he described this montage as revealing a “remarkable match” in his opening note, yet had not taken the precaution of sending the montage to LGC Forensics and specifically to the expert for her comment. He has no expertise, or knowledge or skill in the area of facial mapping and I apprehend from his cross-examination of the expert at the hearing before HHJ Anderson, that he had limited understanding of the techniques used in compiling such a video (Ms Pestell describes a range of applicable tests including ‘the flicker test’, the ‘half-image’ approach, the ‘transparency overlay’). Ms Pestell was clear that the video superimposition montage compiled here was not just one which would be unsafe to place before a jury, it was in fact potentially misleading. (see [58] above);

iii) Mr. Shiels wrongly described to HHJ Anderson (and may well therefore have treated) the superimposition montage as expert evidence; it was not;


iv) It was at least questionable whether the other matters which he wished to bring onto the ‘wide canvas’ were truly probative of the principal contention that MD was Woman X (see [82]).

His e-mail to Ms McMullan on the 23 July (“to me, it just looks like mother and [GD]”: see (i) above, and [31]) does not, as I say, reveal any analysis or reasoning. Professional “instinct” is useful, but it is not a fool-proof or objective measure of evidential reliability. Mr. Shiels’ ready (and I may add appropriate) acknowledgement of the strength of the expert opinion once the author of the report (Ms Pestell) had completed her oral evidence before HHJ Anderson served to highlight the insecure basis on which his original view was formed.


  • Mr Shiels’s failure to mention in his detailed Opening Note the possible (as he knew it to be) US origin of the video recording, and/or the failure of the police to locate the watch worn by Woman X in the search of the family home, is harder to understand or explain. I am not satisfied that these omissions were deliberate (in the sense that he sought to paint a misleading picture), but I am concerned that he was “focused” (see [38]) rather too firmly on constructing a case against the mother, encouraged perhaps by the police, rather than in presenting a truly balanced account. Mr. Shiels’ failure to mention these facts contributed to the Article 6 breaches conceded by the Local Authority (see Annex A[1](a)/(b)/(h)).
  • I found Mr. Shiels to be a straightforward and honest witness. I do not view his conduct in this case as falling below the standards of a practising barrister. The opinions he formed were, I am satisfied, genuinely held and fashioned by the information he was given. He was unlikely to have been unaffected by DS Hudson’s zeal. It turns out that in a number of respects his judgment turned out to be wrong; but exercise of judgment is after all in the realms of art not science, and it is easy to view decisions in hindsight:


“Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent” Saif Ali v Sidney Mitchell [1980] AC 198 at 231.

Finally, lessons to be learned

  • What follows is not a comprehensive guide to good practice, but some points which require specific attention as lessons to be learned from the experiences of this case:

Collaboration between agencies and inter-agency working:

i) I have set out the duties of joint working at [68-72] above. The courts expect a high level of co-operation and collaboration between the various agencies conducting joint investigations in relation to safeguarding cases; this was a point I recently made in Rotherham MDC v M & others [2016] EWHC 2660 (Fam) at [10] (“These bodies have a collective responsibility to work in partnership in the discharge of their respective duties, to share information conscientiously, and to maintain clear focus throughout their investigations about their common objectives”); there should be an ongoing dialogue in ‘real time’ between the agencies, and these should be properly recorded – (see below);

ii) Informal discussions (including e-mail ‘discussions’) between professionals conducting joint investigations should be avoided; proper records should be kept of discussions had, and information shared, when and how;

iii) E-mail or other written communications between operational professionals (the Officer in the case, and the social worker) should be copied in to, or pass through, lawyers for each of the agencies, so that there is a clear understanding and record of what information is being shared;

iv) Where meetings take place between the representatives of the safeguarding agencies, a written record should be made of the meeting; that written record should ideally be agreed between the participants.

Disclosure issues

v) Where issues arise as to disclosure of material or information between the police and social services, it is incumbent on the parties rigorously and faithfully to apply and comply with the Protocol and Good Practice Model (October 2013); this identifies as one of its principal Aims and Objectives the “timely and consistent disclosure of information and documents from the police, and the CPS, into the Family Justice System” (3.4).

vi) Where orders are made for disclosure affecting the Police, they must be complied with, or application made to have the order varied or set aside. Orders are Orders (per Re W [2013] EWCA Civ 1177, and specifically in this regard §7.4 of the 2013 Protocol and Good Practice Model). It is not for the Police to apply their own judgement as to the relevance or otherwise (in their eyes) of what they have been required to disclose; it is the plain and unqualified obligation of every person or body against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is varied or discharged;

vii) If the Police consider that the material disclosed requires an explanation/clarification (for example, if the Police consider that it may be misunderstood or given a significance that it does not merit) the Police can make this clear, in the first instance, with a letter accompanying the disclosure and, if need be, by providing a written statement to that effect;

viii) Where information or documentation which is relevant to the public law proceedings is provided by the police to a local authority, that material shall be disclosed to the other parties unless the court, on application by either the local authority or the police, has granted permission for non-disclosure (see for instance Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, and Durham County Council v Dunn [2012] EWCA Civ 1654, [2013] LGR 315);

ix) It is recognised that there may be occasions when the Police seek to delay disclosure on the grounds of prejudice to an ongoing criminal investigation, and this may indeed be merited for a limited period of time (see §6.4 of the 2013 Protocol and Good Practice Model). However, should the police wish to withhold material for this purpose, it should raise the matter with the Local Authority and/or the court (see §7.2); if presented to the court, it will be incumbent on the judge to balance the Police’s desire to delay disclosure against fairness to the parties within the care proceedings and the prejudicial effect of delay upon the children.

x) Furthermore, the Police must always be able to justify any claim of prejudice. Reasons should be provided to the Court. ‘Prejudice to the investigation’ is not to be used as a generic objection to disclosure. Any assertion of prejudice must be scrutinised rigorously and must be kept under constant review. It is to be expected that such analysis and review will involving meaningful input from the investigating officer, his/her supervising officer and/or Police Force Legal Services.

xi) If/when any claim to prejudice is withdrawn by the Police or no longer sanctioned by the Court, the Police and Local Authority should disclose to all parties any information which had previously been withheld as directed by court order.

xii) DI Walker advised me that procedures are now in place within West Yorkshire Police to ensure that disclosure to local authorities engaged in care proceedings is overseen by Information Management and that every disclosure is individually itemised, with page numbers, to ensure absolute clarity about the documentation/information provided and the timing of such disclosures. These logs will then be made available for reference by the Courts as and when required. It is important that this standard of record keeping is adhered to.

ABE Interviewing

xiii) ABE interviewing is a skilled exercise, which should only be conducted by trained professionals. It is not acceptable under any circumstances to provide false or misleading information to a child; after all, there is a high expectation that the child will be encouraged to provide accurate information to the interviewers.


xiv) Witness statements:

a) A witness statement is the equivalent of the oral evidence which the maker would, if called, give in evidence (PD22A para.6 FPR 2010). It follows that all witnesses who provide written statements should therefore carefully check the contents of those witness statements before they are signed, and should only confirm the truth and accuracy of the same when they have undertaken that careful check. Local authority lawyers should be scrupulous in ensuring that social workers are aware of any editorial changes made to draft statements; the written statements have particular significance at interim hearings given that “the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise” (rule 22.7 FPR 2010) and in which a “fact which needs to be proved by the evidence of witnesses is to be proved … by their evidence in writing” (rule 22.2 FPR 2010); at a final hearing, of course, “The witness statement of a witness called to give oral evidence … is to stand as the evidence in chief of that witness unless the court directs otherwise” (rule 22.6(2) FPR 2010);

b) Where a statement of evidence is sought by a Local Authority from a police officer involved in a parallel investigation, such a request should be in the first instance to the District Safeguarding Inspector, and it should be made in writing. If contentious issues arise, then Legal Services of the Police should be involved. It should be clear in any request, and understood as a matter of common practice, that any statement of evidence must provide balanced and accurate information and not mislead by matters either included or omitted; any statement should include all matters which in the view of the District Safeguarding Inspector (and/or Legal Services, if involved) will assist the Family Court in reaching decisions in the best interests of a child, whether that is helpful or adverse to the particular case being advanced by the Local Authority; the statement should be prepared by the Local Authority solicitor. The current policy of the West Yorkshire Police provides for the officer to be interviewed by a Local Authority representative (I would propose that this be a lawyer) in the presence of an Inspector (or higher ranking officer). This makes good sense. It appears that DS Hudson was unaware of the policy at the time he prepared his statement; I understand that DI Walker has referred the matter to the Safeguarding Central Governance Unit in order that all officers involved in safeguarding work can be reminded of its contents;

xv) Different rules, procedures and expectations arise in the instruction of experts in criminal and family proceedings; there are material differences between Part 25 (and PD25) of the FPR 2010 and Part 19 of the Criminal Procedure Rules 2015. Where an expert has been instructed in the criminal process on whose evidence the Local Authority wishes to rely, the Local Authority should take steps to ensure that the evidence conforms to the requirements of Part 25 and the associated Practice Direction 25B. Any further approach to the expert should conform to the requirements of Part 25;

xvi) The procedure for submitting questions to experts should be used promptly and in accordance with Rule 25.10 FPR 2010.

Repeat medical examination

xvii) GD was subjected to two medical examinations within a few days of each other in March 2015; the first was an intimate medical examination. The repetition of investigation of this kind is highly regrettable, and I suggest was wholly avoidable. The Local Authority social work team manager explains that the police medical was undertaken by a police forensics surgeon “who would not have been able to undertake a LAC medical. The LAC medical was undertaken by LAC nurses”. This still does not explain why the exercise could not have been conducted collaboratively with the sharing of information and findings. I therefore recommend that:

a) There is a duty on the investigating authority to satisfy itself that there is a proper basis for an intimate medical examination – either, for example, a disclosure of abuse by the child, or a direct allegation of abuse which would be clarified by the intrusive examination;

b) The Police and Local Authority should co-ordinate their enquiries so that a child is not subjected to repeated medical examinations (required for different purposes), particularly within a short space of time;

c) By the time of the medical examination, the Local Authority had parental responsibility for the child under an ICO and gave consent. However, the parents (also with parental responsibility) should have been consulted; in the absence of agreement, a court order should have been sought authorising the medical examination;

d) A report of the examination should be made available to those with parental responsibility, and, where relevant, the court.

These observations coincide with the clear guidance offered in the ACPO Guidance at section 4.4, the College of Policing: Major Investigation and Public Protection; Child Abuse; Further Investigation (first published 21.01.14; last modified 16.11.15), section 3; and the ABE Guidance at para 2.41.




Something something oranges something part 2


You may recall the recent Holman J case in which a 16 year old subject of care proceedings had told the social worker and Guardian something personal which he did not want his parents to know, and the social worker and Guardian were divided as to whether this was something which could legitimately be kept from the parents

The application, this time with the parents represented, was decided by Mrs Justice Roberts.

Local Authority X v HI and Others 2016

It raises some interesting questions.

The Court was aware of what the information was, as were the social worker and the Guardian. The mother and father did not know what it was. All of the barristers knew the information, having agreed (upon instructions from their clients) that they would know it but not share it with them.  It is almost impossible to fathom what the parents counsel were supposed to do if the parents were making guesses as to what it might be – save for just being plummy and saying “I can’t indulge in speculation”

The parents, who were the only people in the room who didn’t know what their son’s personal information was,  really then had to work on the basis of Holman J’s categorisation of the information

  1. As to the substance of the information which I has shared, it was described by Holman J in an earlier judgment[1] in this way:-
    1. “Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to the guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is in any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year old child who is in their care, They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.” (The emphasis is mine.)

The argument came into these two camps

A) The Guardian arguing that just as a doctor has a duty of confidentiality to a young person who has capacity (see Gillick) so do a social worker and Guardian have a similar duty if a young capacitous person tells them something and says that they want it to go no further.  (also relying on the  PD v SD, JD and X County Council [2015] EWHC 4103 (Fam).  which was the young person who wanted to undergo gender reassignment and did not want his adoptive parents to have any detailed information)

Thus, on the Guardian’s case as advanced by Dr Bainham, the duty of confidentiality which was found to exist as between a Gillick competent child and a doctor or other medical professional advising on, or offering, medical treatment would necessarily be extended so as to cover social workers and other professionals engaged with the young person concerned.

B) The Local Authority and the parents arguing that that was correct IF the case was not in Court, but once there were Court proceedings, the Article 6 right to fair trail would outweigh such a right to confidentiality, unless there were compelling circumstances.

  1. Specific guidance in relation to the obligations on a local authority in care proceedings was provided by Lord Mustill in the leading case of Re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593. At page 615 D to H, his Lordship set out five principles with which the members of the full court were in agreement.
    1. “1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.

2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

4. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”


Obviously an important issue to resolve – young people do tell social workers and Guardians things, and sometimes they would prefer that their parents did not know. If the Guardian is right here that the approach should be in line with Gillick, then the decision would be made by the individual social worker and Guardian, and if not, the decision would be made by the Court, with non-disclosure being the exception and not the rule.


In the context of the present application, it is important to state that the information in respect of which I seeks to maintain privacy is not information which will have a bearing on any evaluation undertaken by the court in relation to the issue of whether or not the care which the second and fourth respondents have given, or may give in future, to I is likely to cause him to suffer significant harm such as to justify the making of a final care order. In my judgment, it will have no bearing whatsoever on any judicial investigation into the quality of the care they have provided in the past or the care they are likely to offer to I in the future in terms of the sort of care it would be reasonable to expect a parent to provide. Further, the local authority accepts that the information has not, and will not, affect or influence their decision-making for I in terms of the final care plan which is now before the court.


It would be very difficult to withhold from the parents information which went to whether a particular allegation in the case was true or false, or where the child was expressing a view about where his future home should be, but in this case, the Court was saying that the information was personal and not something that would have any bearing on the outcome of the case.

Father’s counsel disagreed,

  1. In his written skeleton (para 117), Mr Day on behalf of I’s father says that his client wishes to utilise the material at the forthcoming final hearing. He raises concerns that I “will become involved [in] gang culture and criminality and that corporate care will not be in his best interests. The sensitive information very much supports and grounds that contention and is required for there to be a fair trial.”
  2. With respect to Mr Day (who knows the nature of the confidential information), I can see no correlation at all between the information which I has imparted and the likelihood of his becoming involved in gang culture or the sort of criminality which is sometimes associated with such involvement or membership. The link between the two is not even tenuous in my judgment. Furthermore, the statement of intent to use the information at the forthcoming trial is made in an evidential vacuum. As matters stand, I’s father does not know anything about the information and he will not know unless and until the court authorises its disclosure. Mr Day seeks to widen the ambit of his assault on confidentiality by asserting that the material is relevant to that part of his client’s case which relates to an allegation that the local authority will not provide appropriate care for I if a final order is made. It seems to me that this is a matter for the trial judge who will be responsible for scrutinising with the utmost care the final plan advanced by the local authority.


What was the right test? And was the information relevant?  The Judge decided this


Analysis and Discussion

  1. The local authority was absolutely right to make this application. In my judgment, Holman J was also absolutely right to rule that the matter must come back to be dealt with on notice to the respondents.
  2. In terms of the correct approach to the issue of disclosure, I do not accept that I can consider issues flowing from I’s ‘personal autonomy’ in a vacuum. In my judgment, Mr Day is correct on this point. Gillick and Axon were both cases which did not involve any consideration of the engagement of Article 6 rights. In each, the applicant was seeking declaratory relief but no more. In this case, both Article 6 and Article 8 rights are engaged and accordingly the Re D test must form a part of the overall balancing exercise which I have to perform. However, it seems to me that the principles to emerge from Gillick and Axon become relevant at the stage of the balancing exercise where judicial focus is on the welfare of the child or young person. Respect for his or her views and the consequences of overriding those views where they are genuinely and strongly held must, in my judgment, form part of those welfare considerations.
  3. Dr Bainham makes the valid point on behalf of the Guardian that if Gillick principles are not accorded priority, any ‘looked after’ child in these circumstances would be at a disadvantage since his views would be accorded less respect because of the fact that he is at the centre of contested care proceedings. Whilst I can see the force of that submission, it does not in my judgment mean that I can disregard the equally important considerations which flow from the engagement of the respondents’ Article 6 rights. I’s views are important. They are entitled to considerable respect but they are one aspect of the overall balance which has to be achieved in this case. In my judgment, they are not determinative of outcome. Further, the fact that neither of his parents is currently exercising day to day parental care for I does not dilute the parental responsibility which they currently share with the local authority.
  4. The first question which must be addressed is that of relevance. Nothing which was said by I impinges upon, or affects in any way, the local authority’s case in relation to the respondents’ allegedly deficient parenting. On behalf of the local authority, Mr Krumins submits that it is important to distinguish in this context between the relevance of the information and the weight which can properly be attached to it. In relation to relevance, he contends that the threshold is low. Nevertheless, he concedes that the information is unlikely to assist the trial judge and will ultimately make no difference to outcome. I bear in mind the observation of Thorpe LJ in Re M (Disclosure) that if there is anything within the local authority’s care plan which gives rise to concerns, that may well be adverse to the respondents’ case should disclosure be withheld. However, where the principal challenge to, and defence of, the care proceedings amounts to a denial by the second and fourth respondents of the poor parenting which gives rise to the perceived risk of significant harm to I, it is difficult to see how a care plan which involves removal from that harmful environment can be said to raise independent concerns. That will be the central issue for the trial judge to determine.
  5. I have significant concerns about whether or not the information for which protection is sought is truly relevant to these proceedings. Whatever subjective views Mr Day may seek to advance on behalf of I’s father, it is difficult to see how any objective analysis of the information could lead to the conclusion that it has any relevance to the issues to be determined later this month. However, for the purposes of my judgment and on the basis that Mr Day is right and it has some tangential (or greater) relevance, I must go on to apply the balancing test set out in Re D.


Having decided to approach the matter on the Re D principles, the Judge went on to consider whether disclosure would present some risk of significant harm to the child


  1. Thus, the next question to be answered is whether disclosure of this information would involve a real possibility of significant harm to I.
  2. The Guardian and the local authority are not agreed on this aspect of the case. The local authority accepts that disclosure would be likely to expose I to an awkward and embarrassing situation, but no more. Within the material which has been put before the court is a statement prepared by a social worker on behalf of the local authority. It is dated 8 April 2016. In that statement, the social worker, AB, expresses the view that I may be embarrassed or ashamed as a result of disclosure. However, she acknowledges, too, that he may in future be reluctant to share information with professionals if the information is revealed to his parents against his wishes. Her statement also raises an issue as to whether what he said was true in any event.
  3. The concerns of the social worker find strong reflection in the Guardian’s evidence. She tells me that, knowing what she does about I’s father and step-mother, she believes neither ‘would … be able to respond to the information in a child-centred way at all, and that this could have emotionally devastating consequences for [I]’. She sets out in her evidence a report which she had received from a colleague who was present at a recent LAC review which was attended by I’s father and step-mother. One of the issues for discussion on that occasion was their willingness to engage in some work with an appropriate professional in order to assist their understanding of I’s needs. Their presentation on that occasion was said to be “extremely oppositional, even in [I’s] presence”. The report which emanated from that meeting is recorded in the body of the Guardian’s statement in this way.
    1. “It was appalling … [I’s father] totally took over, attempting to intimidate the professionals, leading to … [I] putting on the hood of his jacket and pressing his forehead onto the table in what appeared to be a combination of anxiety, frustration and sheer embarrassment. His wife [I’s step-mother] then started a wholly inappropriate and crass attack on the social worker – how can she do the job at her age, not having children. Basically, following father’s continued ranting and finger-pointing at me, I had no choice but to prematurely bring the review to an end. I’m far from convinced that the LA should be promoting contact for [I] with them. Before there can/should be any relationship work undertaken, perhaps father in particular should be advised to see his GP regarding having anger management and/or counselling. He certainly won’t be invited to the next review unless he makes some radical changes.”
  4. The Guardian expresses her very real concerns that the good relationship which I has managed to establish with his social worker and foster carer may be damaged by disclosure of the information which he wishes to keep private. Those relationships are important to him because they enable him to confide in these professional carers and, in turn, to receive appropriate support and guidance. To override his express wishes may undermine his trust in professionals making it difficult for them to offer the level of help and support from which he has so clearly benefitted to date. This would be entirely counter-productive and inimical to his best interests. She has no confidence in either the father’s or step-mother’s ability to respond appropriately or sensitively to something which I regards as a personal and embarrassing episode and she regards the prospects of disclosure as being ‘highly detrimental’ to his welfare.
  5. Thus, it seems to be common ground that disclosure to the parents will cause I emotional upset and some distress. The disagreement centres on the level of emotional harm and whether or not this is likely to be “significant”.
  6. On behalf of the father, Mr Day submits that “the worst reaction could be that the father is dismayed, disappointed and at worst may remonstrate with his son”. On behalf of I’s step-mother, Mr Fletcher reminds me that I has been told by his social worker that it is not possible for her to provide him with a guarantee that anything he tells her will remain private as between them. He points to the absence of any direct statements by I himself as to his fear of his parents’ reaction. He invites me to consider whether any perceived harm could be mitigated by putting in place safeguards so as to ensure that I was protected from any such reaction from his father and step-mother as that anticipated by the Guardian.
  7. I have to bear in mind that I is a very vulnerable young man. He is not yet 16 years old and has already been the subject of two separate sets of care proceedings. He has been found to have suffered neglectful and abusive parenting at the hands of his mother. His experience of life was fractured when he left his home with her to live in a completely different part of the country with his father and step-mother. His unhappiness and distress in that placement is reflected in his attempts to abscond and his absolute resistance to any return to that household and any form of continuing relationship with his father and/or his present wife. Whilst I accept that it is an untested account, I regard the record of what transpired at the recent LAC review as providing a valuable insight into what I is likely to be experiencing at the present time in terms of the conflict which appears to exist between his family and the professionals who are currently caring for him. The picture of I which emerges from the record of that meeting is one of a young man who has few, if any, coping strategies for dealing with that conflict. I do not accept that the absence of a specific reference by I to fear of his father’s reaction should lead me to a conclusion that he has no such fear. On behalf of the mother, Miss Bartholomew supports the Guardian’s position that there is a real risk of further significant harm to I in the event of disclosure. She records in her written submissions the mother’s historic and ongoing concerns about the aggressive and inflexible behaviour demonstrated by his father. She is concerned that his reaction to the information may well place I at risk of significant harm.
  8. In my judgment, whether one applies the label of “significant” or “real” harm to the question, there is indeed a real possibility of significant and detrimental harm to I if this information is disclosed. In his evidence in response to the local authority’s case, I’s father has denied entirely that his son is suffering, or has suffered, from any significant emotional harm. He accepts that he has shouted at I but justifies this on the basis that, “If you don’t stand up as a parent, the children are going to walk on you”. It is said that he referred to I in highly derogatory terms because of his educational difficulties. He does not admit using any such inflammatory terms but still refers to I in his statement as “this little boy”. I am satisfied that there is a clear risk that the consequences of disclosure of this material may well result in I’s disengagement from the professionals who have provided him with guidance and support since his reception into care. He has been damaged by his experience of family life in recent years and findings in relation to threshold have already been made in the context of the interim care order which sanctioned his removal from his father’s home. If his current support structure were to be put at risk for any reason, he may well withdraw and internalise issues thereby putting his happiness and future wellbeing at significant risk.
  9. I bear in mind, too, that whether or not the trial judge makes a final care order at the conclusion of these proceedings later this month, any prospect of repairing the relationship between I and his father will inevitably have to involve some form of therapeutic input from an appropriate professional or professionals. In this respect, it is essential that I believes that he can repose trust and confidence in those professionals and the care and support they will be providing. It would be harmful to him, and significantly so, if the chance to restore some form of relationship between parent and son in future were jeopardised because of a disclosure now of information which he regards as confidential.


The next step was to balance the article 6 rights and article 8 rights.


  1. In these circumstances, the final step is to weigh the interests of the respondents in having the opportunity to see and respond to the material. This involves a rigorous consideration of the engagement of their Article 6 and Article 8 rights.
  2. Given what I have already said in my judgment, I can dispose of the issue in relation to their Article 8 rights in fairly short order. These rights, whilst engaged, cannot take precedence over I’s Article 8 rights and he is clearly expressing a wish for no communication with his father or step-mother at the present time. As Yousef makes clear, the child’s rights are the paramount consideration in any balancing of competing Article 8 rights.
  3. As to the respondents’ Article 6 rights, the relevance of the information to outcome has already been addressed. In my judgment, it is of tangential or minimally indirect relevance at its highest and is completely irrelevant at its lowest. The local authority accepts that it will not impact upon outcome or future planning for I. The respondents’ rights to a fair trial are, of course, absolute but, as Lady Justice Hale acknowledged in Re X, in deciding how to conduct a fair trial, it is perfectly reasonable to take account of the facts and circumstances of the particular case with which the court is dealing. The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing. Whilst I accept that any departure from the usual requirements in relation to the disclosure of evidence in an adversarial trial must be for a legitimate aim and proportionate to that aim, the Court of Appeal has held that protecting the welfare of vulnerable young persons is a specific and undoubtedly a legitimate aim.
  4. In my judgment, the harm which would be caused by disclosure of information which has very little, if any, relevance to the issues which need to be determined by the court would be wholly disproportionate to any legitimate forensic purposes served. I am entirely satisfied that depriving the respondents of the opportunity to have this information will not deny to any of them a fair trial. Disclosure would, however, be a breach of I’s Article 8 rights.
  5. Considering all these matters in the round, I have reached the clear conclusion that the case for non-disclosure of the information which is the subject of the Guardian’s current application is compelling. The circumstances of this case, looked at in the round, do make it exceptional and I regard it as entirely necessary that I’s confidence and privacy in this information is maintained. I cannot overlook the fact that, as a Gillick competent young person, he has expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise which I have conducted


This particular passage has some broader significance – the right to a fair trial does not mean that a person gets to run the case exactly as they please, the Court controls the content and nature of the hearing whilst still having the duty to secure that the trial is FAIR


The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing


Finally, the Judge recognised that the parents knowing that something was being kept from them (even if most of us can guess what it might be) was difficult


Finally, I would conclude by echoing the words of Holman J which are exquisitely apt in this case. I, too, am deeply conscious that whenever disclosure issues of this kind arise, there is inevitably a problem once parents or other interested respondents are put on notice that there exists some information in respect of which the court has supported an application for non-disclosure. As Holman J observed, ‘”conspiracy theory” and imaginings may inevitably take over’. The parents and step-mother may well be concerned that the information is graver than it actually is. I would hope to reassure them by my finding in relation to the likely relevance of the information to the issues which are at stake.

Can you compel a child to give evidence?


The Court of Appeal in Re S (children) 2016 consider this point of law, and whilst they say that they are explicitly not ruling on it, they do give the answer

During the appeal hearing, the question arose as to whether the judge could have compelled K to give evidence if she remained unwilling to do so. I am grateful to counsel for efficiently providing an agreed note of the legal position immediately following the hearing. As that note recognised, the question of whether a court can/should use its powers to issue a witness summons in relation to a reluctant child in family proceedings has not been considered by the Court of Appeal or the Supreme Court since the Supreme Court’s decision in Re W (supra). The present case was not one in which we needed to hear oral argument on the subject and I would not wish to be thought to be expressing any view about it. However, it may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. 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.



  1. If the child is competent  (rule of thumb here is going to be functioning at about the level of an average 13 year old, but there may be other factors which make an older child not competent or a younger one competent), then they are a compellable witness.
  2. A compellable witness can be made to attend Court to give evidence under a witness summons
  3. The protection against self-incrimination in s98 Children Act 1989  doesn’t apply to a child – so they would have to be warned about the risk of possible criminal proceedings arising from their evidence.
  4. However, the punishment for a person not obeying a witness summons (i.e what you do if they don’t turn up) are imprisonment or a fine.
  5. You can’t imprison a witness under 18 for not obeying a witness summons.
  6. That leaves you with a fine.  Unless the child witness is Richie Rich or Mustafa Millions, that doesn’t really help.
  7. So you CAN compel them, but you can’t actually do anything if they call your bluff.


That’s the legal interest in the case. Other than that, it is always worthy of note when the Court of Appeal split. The main issue here was that a 15 year old K, made allegations of sexual abuse and reported them to the police. There was then something of a backtracking when the police wanted to press charges. K did not want to press charges, she had wanted the abuse to stop. She said to the police that she was not retracting the allegations, but didn’t want charges to be pressed.  However, one police note of a conversation with K recorded that K said she had made the allegations up.  K then wrote two letters saying that she had made the allegations up and that things had got out of hand.

Those representing the alleged perpetrator in the family Court proceedings about K and her siblings understandably wanted K to be produced as a witness. A judicial decision was taken not to compel her attendance, and the Judge went on to make findings (including one which was supported by a medical but was explicitly not an allegation that K had ever made herself).  The findings and the case management decision were appealed.

All three of the Court of Appeal Judges said that the finding which was suggested by medical examination but had never been a claim that K had made had to be overturned. Two of the Judges held that the other findings were safe and should not be overturned. The third took the opposite view.


I will set out the minority view, which was not the decision of the Court of Appeal, because I think it contains some powerful arguments (even though they were not successful). For my part, I think it is very difficult to make findings of such a serious nature as sexual abuse when there are changes of position by the complainant, and letters of retraction, without hearing some direct evidence from the complainant. I think that the Judge worked very hard to make it as fair and balanced a judgment as possible, but I would have been with Lady Justice Gloster on this, I just don’t think that the findings can be considered safe in this context. The burden of proof is on the LA to prove that the abuse happened, not on the accused person to prove their innocence.  [Sometimes you do end up with cases where there are very strong suspicions but also doubts, and what tips the balance either way is the credibility of the complainant. If the accused person cannot properly test the complainant’s evidence, the right to fair trial is questionable, for me.]


Lady Justice Gloster:


  • It is with considerable diffidence that I disagree with views expressed by such experienced family judges as Lady Justice Black and HHJ Moir. This court is rightly very cautious about interfering with case management decisions and second-guessing findings of fact made at first instance by careful family judges. However this case has left me with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment dated 15 October 2014 (the order in relation to which is inappropriately described as a “case management order”) in which she held that the Appellant had indeed sexually abused his sister, K. That concern is aggravated by the fact that, as my Lady, Lady Justice Black, has held (and as I agree) there was no basis for HHJ Moir’s finding that the Appellant had anally abused K.
  • The critical features of this case may, in my judgment, be summarised as follows:


i) The single issue was whether the Appellant had abused K.ii) The case against the Appellant depended entirely on the veracity of K’s allegations.

iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred.

iv) There was no medical evidence of vaginal penetration, despite K’s repeated allegations that she had had full penetrative sex and that she was “no longer a virgin”. In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that “penetration through the hymen can occur without leaving any physical signs”; see paragraph 30 of the judgment.

v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions.

vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a “mature young person who had the capacity and competence to give instructions.” The social worker who assessed described her as a “determined and strong willed individual who speaks her mind”, and also observed K as being “quite fragile in her presentation and lacking in self-esteem.”

vii) In deciding whether K should give evidence, the judge relied upon the opinion of K’s guardian and the social worker to the effect that:

“I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling.


I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]”.

viii) On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge.

ix) As a result of the judge’s ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called “vulnerability, a fragile presentation and her lack of self-esteem”, the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K’s case.

x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights (“the ECHR”) to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.


  • In my judgment HHJ Moir’s case management decision dated 15 October 2014, in which she decided that K should not be called as a witness, failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12 namely: the advantages that a child giving evidence will bring to the determination of the truth; and the damage which it might do to the welfare of the child witness. In my judgment, there was no adequate medical, or indeed other, evidence, apart from the vague and dubious views of K’s guardian and the social worker, to support the conclusion that it would be so harmful for K to give evidence that she should not be asked to do so. Nor was there any adequate analysis by the judge as to why those concerns trumped the entitlement of the Appellant to question why she had retracted, or, at the least, to some extent resiled from, her previous allegations.
  • As to the first consideration, K was at the time of the fact-finding hearing 13 years and 10 months old and had no cognitive impairment. There was no reason on age and maturity grounds why she should not have been called as a witness. She had displayed as a person who was at least to some extent prepared to exert pressure on the authorities to force the outcome of the criminal proceedings. She clearly had differing attitudes at different times as to whether she wanted, or was prepared, to give evidence. She was a mature young person who had been described as a “determined and strong willed individual who speaks her mind”; see above. Her allegations were extremely serious. There was, in my judgment, no adequate consideration by the judge as to whether K should be required – and indeed whether it would be in K’s interests for her to be required – to give evidence, which either stood by her previous allegations, or which explained the circumstances in which she had resiled from them. Whilst, whether her allegations were true or false, it might well have been distressing or demanding for her to have given evidence, there was no psychiatric or psychological evidence to support the idea that it would have been mentally damaging for her to have given evidence. There was no consideration by the judge as to the advantages to K personally of facing up to the consequences of the allegations which she had made, whether they were true or false, or as to the disadvantages to her of being allowed to avoid responsibility for the consequences of her allegations by not being required to attend trial.
  • Moreover, it was extremely unclear whether K was an unwilling witness or not. She changed her mind frequently about wishing to give evidence in the months leading up to the judge’s ruling and had not been asked in the weeks prior to the ruling whether she would, in fact be prepared to give evidence (whether with or without special measures). Indeed it is significant that the final order dated 8 December 2014 recites the fact that K “would like to meet with the judge”, although the judge ruled that this could not take place until the proceedings were over.
  • In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others. The fact that counsel for the Appellant did not raise the possibility of the judge questioning K in the presence of counsel, but in the absence of the parties, by reference to questions agreed in advance, does not seem to me to be a reason why the judge should not have given consideration to such an option or other alternative options. This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.
  • As to the second consideration, in my judgment there was no adequate consideration by the judge of the impact on the Appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the Appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the ABE interviews conducted before K sought to retract, or sought not to proceed with, her allegations.
  • For the above reasons, I would have allowed the appeal against the judge’s case management decision dated 16 September 2014. In my judgment the judge failed to appreciate that the critical issue was whether or not the Appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way. In my judgment the judge failed properly to apply the guidelines set down in Re W, which reflect the paramount consideration that a party should have a fair trial.
  • I should say that, so far as the evidence of the K’s two friends are concerned, such evidence was clearly hearsay and should have been afforded very little evidential weight, since, in all the circumstances, it could have provided very little corroborative support for K’s own evidence.
  • Likewise, for the above reasons, it seems to me that the judge’s conclusions in her fact-finding judgment dated 15 October 2014 are clearly open to serious doubt. I do not see how, in the absence of up-to-date evidence directly from K herself, as to the retraction and/or reluctance to proceed with her allegations, the judge was able to conclude that she could rely so heavily on the ABE interviews, or come to the conclusion, as set out in paragraphs 38-39 of the judgment, that K’s allegations were true and that her retraction had arisen partly because of pressure from her family, but largely because of her own feeling of responsibility for breaking up her family and her own strong desire to see her nephews. The inferences which the judge drew from the documentary evidence in my judgment cannot be supported in the absence of up-to-date direct evidence from K herself.
  • I also regard the judge’s analysis of the evidence of the Appellant as inadequate. There is no, or no adequate, explanation by the judge as to why she felt able to reject his evidence that the alleged abuse never took place.
  • In my judgment the judge failed to give proper consideration to the fact that the burden of proof lay on the Local Authority. She had no basis for concluding on the balance of probabilities that K’s serious allegations against the Appellant had been proved. In the absence of any opportunity afforded to the Appellant to challenge K’s evidence that was not a conclusion which I consider she was entitled to reach. In my judgment, the Appellant did not have a fair trial in accordance with his rights under Article 6 of the ECHR and, as a result, his Article 8 rights and those of his infant sons, have been seriously infringed.
  • I would allow the appeal and set aside the findings of HHJ Moir. I would rule that no findings adverse to the Appellant in relation to the allegations of sexual abuse could properly be made on the evidence available to the judge. But since Black and Vos LJJ consider that the appeal should be dismissed, that will be the order of this court.


Social workers slammed for lying on oath


I know the title seems pure clickbait, since it is the sort of thing that is alleged quite often, but this is a case where the Judge did actually make that conclusion.  It involves social workers and managers who set out to change the parenting assessment conducted by another worker (who the Judge found to be blameless) so that it reached different conclusions and painted a wholly different and negative picture and then lied to the Court about it. This is social workers interfering with the parents right to a fair trial. It really is deeply shocking stuff.


A, B, C, D and E (Final Hearing) 2015


The case was decided by His Honour Judge Horton, and involved Hampshire County Council. Some of the workers involved no longer work at Hampshire and they are not spared.



12. This is I hope an unusual case. I certainly have not previously come across one quite like it either at the Bar or as a judge.


13. My previous judgments explain these comments but in my experience it is exceptional to find a case in which there has been deliberate and calculated alteration of a report prepared by one social worker in order to make that assessment seem less favourable, by another social worker and the Team Manager; the withholding of the original report when it was ordered to be disclosed and the parties to the alterations lying on oath one of them twice, in order to try to cover up the existence of the original report. Those people are referred to and named in my December judgment but given the enormity of what they did and the fact they still work as social workers it is right that I should name them again so that practitioners and members of the public coming across them are aware of their shortcomings in this case.

  1. Sarah Walker Smart the children’s Social Worker lied twice to me on oath. I was told during this hearing that she has been promoted to Team Manager within this authority.
  2. Kim Goode, Sarah Walker Smart’s then Manager, was the person who initiated the wholesale alteration of the original report and who attempted to keep the truth from the parties and me. At the time of the last hearing she was District Manager for the Isle of Wight. I was told during this hearing that she is still in post.
  3. Lisa Humphreys was Kim Goode’s Manager. Her evidence was deeply unimpressive. She made a ‘hollow’ apology to the parents during her evidence; she regarded a social worker lying on oath as “foolish” and she failed to accept any personal responsibility for what had gone on under her management. At the date of the last hearing she was Assistant Director of Children’s Social Care with Lambeth Borough Council.
  4. In my December judgment I concluded that the parents’ and children’s Article 6 and 8 Rights had been breached. The children had been removed illegally and the parents had not had a fair parenting assessment carried out due amongst other things to all professionals both childcare and legal, failing to identify M’s communication difficulties and the need for a psychological assessment. I therefore at the parents’ suggestion, directed that Symbol a parenting assessment organisation which specialises in people with learning and communication difficulties, should carry out a full parenting assessment. This was to be coupled with individual therapy for both parents. This ‘dual’ approach had been suggested by Dr Halari a highly qualified adult clinical psychologist who had seen each parent, prepared reports and who gave evidence. The plan was for the therapists and assessors to work together in order to give the parents the best possible chance of making the agreed and much needed changes to their parenting.




The December judgment had escaped my attention, so here it is


The portions setting out the failings of the Local Authority are long, but because they are so powerful, I will set them down in full   (I really can’t believe that I missed this judgment first time around).  Underlining, as ever, mine for emphasis (though I could almost underline every word). Apologies that the paragraph numbering goes all over the place.


  1. The factual matrix underpinning the breaches
  2. Removal
  3. Social worker Ms X was allocated to these children on 27 October 2011 and remained their social worker until Sarah Walker Smart was allocated the case in June 2013. During this time she formed a working relationship with the family.
  4. She was clearly concerned at A and B’s lack of schooling, failure to engage fully with health professionals and issues of basic neglect. Such was her concern that she initiated the PLO process on 12 April 2012. The PLO letter was clear and Ms X spelt out what was required. See Mrs Randall’s comments at D131.
  5. As early as 11 May 2012 Ms X had identified that the parents were unsure how to work with professionals and that the parents become aggressive and hostile.
  6. By April 2013 Mrs Randall’s opinion based on the recordings of Ms X was that little had really been achieved during 18 months of PLO process. D133
  7. In late Spring early summer 2013 Ms X obtained a new post within the authority. She made her last visit to the family on 4 June 2013. By this time Ms X had begun compiling information for Core Assessments on all the children and it was made a condition of her leaving that she completed Comprehensive Core Assessments. I heard evidence that I accept that Lisa Humphreys and Kim Goode were exasperated by Ms X’s failure to complete them.
  8. The new social worker allocated to the children was Sarah Walker Smart. She was new to this team and relatively inexperienced in child protection work. Her manager remained Kim Goode who was and is extremely experienced in such work having been in it for 18 years.
  9. Kim Goode and Sarah Walker Smart carried out an introductory joint visit on 20 June 2013. I am satisfied that Kim Goode and Sarah Walker Smart found a situation that they had not been fully prepared for by Ms X’s case recordings. This was not only in relation to the condition of the home and children but also the attitude of the parents. The mother in particular was difficult and hostile. I pause there to record that whilst I make criticism of the parents it must be seen in the context of their then unidentified difficulties and the attitude of Kim Goode who I am quite sure did nothing to calm the situation. I have seen and heard Ms Goode. She is a strong willed, forceful, opinionated person who it would be difficult to challenge effectively or at all. Her manner of answering during cross examination amply demonstrated this.
  10. As a result of what they saw and as a result of there having been 18 months without sustained change Ms Goode and Ms Walker Smart decided that the case should be taken to a legal strategy meeting. This took place on 24 June 2013. see K136.
  11. It was decided that the Comprehensive Core Assessment “with concerns” should be concluded as soon as possible, that care proceedings should be instigated and that a new PLO letter would be written. This was delivered to the parents on 27 June which was the same date as Sarah Walker Smart’s first statement.
  12. On 11 July Ms Walker Smart visited the home and found things largely the same as before but that the children’s presentation was “Ok”.
  13. On 12 July Care Proceedings were issued and on the 15 July directions given including a direction for the LA to file and serve the “current assessments to which the Social Work statement refers”. A21
  14. Also on this date the Housing Officer visited the home. He was clearly concerned by the condition of the property; a number of problems with the condition of the property that had not been reported and the overcrowding but I am satisfied he does not “condemn” it or say that it is dangerous. He did believe that the family should be temporarily or permanently re-housed.
  15. On 15 July the court made directions including giving a hearing date for a contested ICO.
  16. On 16 July Ms Walker Smart spoke to the Housing Officer. She purportedly interpreted what he said as the house was condemned, dangerous and unfit for the family to remain in. It is clear from Ms Walker Smart’s e mail of the same date that she was trying to get Mr Sibley to say that the property was unsafe and dilapidated due to the parents’ neglect and makes it clear that “we are planning to remove the children” and “need as much evidence as possible based on the home conditions being unsafe”.
  17. I am satisfied that by this date Kim Goode and Sarah Walker Smart had decided that the children should be removed from their parents care and that they intended to bolster their case by involving the housing department. This is clear from the wording of the e mail and I interpret the e mail as pressure being put on the Housing Officer. It was clear from his evidence to me that he was not prepared to do so.
  18. Lisa Humphreys told me that she had approved the cost of B&B and that she had not approved the removal of the children from their parents. This does not fit in with the content of the e mail and I have trouble believing that Kim Goode would construct a plan for removal without the approval of her DSM.
  19. On 17 July at 09:00 Sarah Walker Smart made a visit to the home. It was she said her view that the children were “no longer safe in the home and that if they remained they could experience significant harm”. In reality I doubt that anything was very much different from before and I am certain that the grounds for immediate separation were not there. She reported on what she saw to Kim Goode.
  20. At 11:17 that day Kim Goode set out an action plan. That action plan clearly expected the police to use their administrative powers to remove the children. She does record that if the police won’t agree to do so then the mother is to be asked to go to B&B with the children. Ms Walker Smart never offered this option to the mother and I am satisfied from the video footage and her evidence that this option was never in her mind. It is probable that Kim Goode never discussed this option with her.
  21. At 15:30 that day a joint police and social services visit took place. The LA accepts that the visit and removal was unlawful and breached the family’s Human Rights. The details of the breaches are set out later in this judgment.
  22. I have viewed the Body Worn Camera footage. I can well see why the LA makes the admissions it does. The removal was a flagrant breach of this family’s Human Rights. There were insufficient grounds for such action and it is clear the police felt that too as they did not try to use their administrative powers; the correct procedure was not followed; no true consent was obtained, and that which was obtained came from F under duress. Further he did not have power to give consent for the older two children as he did not have parental responsibility a fact Ms Walker Smart should have known.
  23. I am asked by F to find that the use of the police was a manipulation to coerce the parents. I am not satisfied that the social workers were deliberately trying to manipulate the police although I am satisfied that the effect on the parents was to coerce them. The parents, mother in particular could be verbally aggressive and had been so to Ms Goode. In circumstances where it had been decided to remove the children from their parents and it could reasonably be anticipated that the parents could be hostile, it would be appropriate to involve the police to avoid there being a breach of the peace. However, the video footage shows that the situation was badly handled with 8 police officers and two social workers descending on the parents and presenting them with no choice but to relinquish their children. There were no grounds for such removal, there was no discussion, no alternatives offered and it was clearly the intention of Ms Walker Smart to remove the children from their parents’ care come what may by asking for consent to s20 accommodation if the police did not act.


  1. Factual matrix underpinning the failure to disclose material evidence
  2. This relates to the Comprehensive Core Assessment that Ms X completed and sent to Kim Goode for what has been described “Quality Assurance”.
  3. Ms X completed writing her CCA on 18 June 2013. See P125. The Assessment contained both positives and negatives. It was therefore a balanced report. She e mailed it to Kim Goode.
  4. On 27 June 2013 Sarah Walker Smart swore her first statement asking the Court to read her statement along with the ” Core Assessment (July 2013) completed by Ms X” (my emphasis).
  5. On 10 July Ms Melanie Kingsley asked Kim Goode to forward Ms X’s core Assessment. Kim Goode replied saying she just wanted to “pad out the conclusion before it goes off”.
  6. On 15 July the court directed the LA to file and serve the “current assessments to which the Social Work statement refers”.
  7. On 16 July Kim Goode made substantial changes to Ms X’s Comprehensive Core Assessment (CCA) which are recorded by the word processing programme by way of tracked changes. All the substantive changes made are negative. The changes change the tenor and conclusions of the report completely. The picture painted by it is now wholly negative and would if accepted, have the effect of substantially improving the LA’s case for removal of the children, probably permanently. In my judgment these changes amounted to a wholesale rewrite and were not a proper use of the Quality Assurance system.
  8. Ms X never approved the changes.
  9. Kim Goode sent the track changed document to Sarah Walker Smart on 17 July at 13:02 who made few if any and no substantial changes. She could not make many changes as she had little knowledge of the family due to her brief involvement. She signed the assessment as if it were her own and it was served on 6 August.
  10. Ms X’s CCA was not filed in accordance with the court order.
  11. An order was made for the CCA to be filed by 30 July. Ms X’s version was never filed.
  12. Solicitors for the parents asked on numerous occasions for the disclosure of the document referred to in Ms Walker Smart’s statement and for any documents prepared by Ms X.
  13. On 22 August 2013 Melanie Kingsley in response stated in an e mail: “an assessment was started by Ms X but not concluded. The decision was taken that because Ms X no longer works for the department, the new social worker SW would compile an entirely new assessment, as it would not be appropriate for her to complete another person’s partially completed piece of work. Accordingly Sarah Walker-Smart wrote and filed a new Core Assessment which is in this bundle. There is nothing outstanding from Ms X which may be filed with the parties”
  14. I am satisfied that this e mail gave a deliberate and entirely false impression. Kim Goode and Sarah Walker Smart knew that Ms X had completed her assessment. The problem was that Kim Goode did not like it. In her opinion it did not fit in with her assessment of the family’s circumstances. Kim Goode knew Ms X had completed it because she had changed it. Ms Walker Smart knew Ms X had completed it as she had seen the tracked changed document which was obviously based on Ms X’s completed work.
  15. I am also satisfied that the legal department knew of the existence of the Ms X piece of work as Ms Kingsley had referred to it in her e mail of 10 July.


[A quick break here to say “Holy F**ing s**t!”]


  1. Twice more did Ms Coates ask for Ms X’s “draft” to be filed and served. Ms Kingsley replied on 13 November 2013 “there is nothing that can be filed”. Again this was patently untrue.
  2. On 31 March 2014 Sarah Walker Smart commenced giving evidence before me. A transcript of her evidence is at 72.1 of the transcript section.
  3. She was asked in chief: “Have you ever seen a core assessment completed by Ms X? “No” “Can you explain the reference to one in your statement?” “.. there was an assumption that Ms X had completed a Core I relied upon an assessment that did not exist. That’s completely my error.” I then asked: “You have given the date of July 2013 which rather implies that you had some basis to believe that there had been a Core Assessment carried out. What was your factual basis for that?” Answer:” The team manager” Kim Goode, “assumed that Ms X had written one”.
  4. I asked whether Kim Goode had checked for the Core Assessment. I was told that she had and that she could not find it.
  5. Sarah Walker Smart went onto to say that she had not checked. She said: “I’ve never seen a Core Assessment in Ms X’s name.”
  6. I have considered this evidence very carefully and been mindful of the two fold test in the R v Lucas direction that I must give myself when encountering lies.
  7. I am satisfied that her evidence that she had never seen a completed Core Assessment by Ms X was a lie. Sarah Walker Smart had seen a completed Core Assessment by Ms X. She had seen the tracked changed version e mailed to her by Kim Goode. I am satisfied on the balance of probabilities that this was a deliberate lie to try to deflect attention from the existence of that document. I do not make this finding lightly or willingly but the evidence drives me to it. This lie was repeated in her evidence given to me on 25 November 2014.
  8. I am also satisfied that she lied when she said that the reference to such an assessment in her statement was a “mistake” based on an “assumption”. I am satisfied that the reason she mentioned it was because she had seen Ms X’s Core Assessment and she did not think there was anything wrong in referring to it. It was only afterwards that the import of what she had done became clear. In my judgment this is the only logical reason why she would have mentioned it. Her attempts to say it was a wrong “assumption” on the part of herself and Kim Goode was a fabrication. Again I do not reach this conclusion lightly but it is an inevitable one. Again she repeated this lie in evidence in November.
  9. Ms Walker Smart had the opportunity to disclose the existence of the Ms X assessment during the April part of this final hearing but did not take it. She chose to try to get away with the deception she had practised. I made it clear at the end of that hearing that I was worried about this issue and that I required full enquiries to be made to see if such a document existed. See 72.45 line 30 of the transcript of Ms Walker Smart’s evidence.
  10. Lisa Humphreys was also at court during the April hearing. She knew that the parents’ advocates wanted Ms X’s assessment disclosed and she knew of its existence yet she did not then or afterwards bring its existence to the attention of the court, the new social work team or the legal department. She could have accessed it easily as it was located in her ‘Outlook’ programme on her computer.
  11. The completed Ms X Comprehensive Core Assessment was eventually disclosed inadvertently as part of the disciplinary proceedings’ file in relation to Ms X in early August 2014. Kim Goode had initiated disciplinary proceedings against Ms X as a result of what she saw were serious failings in her work. As a result Ms X was dismissed from her employment. Her health is now so poor that she was unable to give evidence. I do not know whether her poor health and the disciplinary proceedings are linked but they cannot have helped her. This is not the place to comment on the appropriateness of that investigation, its fairness or its conclusions but I do ask the LA to robustly review their conclusions and decision in the light of this judgment and all that is now known about this case.
  12. Kim Goode’s involvement in this deception was examined in the November hearing.
  13. I am satisfied she knew of Ms X’s completed CCA as she had changed it. I am also satisfied she knew that the parties and court wanted it disclosed and she had decided that she would not.
  14. At one point I asked her: “So it was a deliberate decision by yourself not to let the court and the parents have” the Ms X Comprehensive Core Assessment and the guardian. Is that right?” “Yes” she answered.


A second break to say again “Holy f**ing s**t!”



  1. Whilst she tried to persuade me that she did this out of concern for the children as she felt the assessment was not accurate, I find this suggestion breathtaking. This is a manager with 18 years experience deliberately flouting the lawful request of the parents for disclosure of information and more to the point flouting court orders for such disclosure. At one point she tried to suggest that she was unaware of the duty to disclose, which I find as Mr Ker-Reid put it “incredible” in both senses of the word.
  2. There was a particularly telling piece of cross examination by Mr Ker-Reid when he put this question to her: “You were overtly, determinedly, seeking to deceive courts of justice, put your head together with other professionals in your department, whether legal or social workers, to tell judges of the Family Court that there was not an assessment by Ms X which you knew there was? That is right is it not?” Answer: “It is but I..” Q: “It is”. Answer: … “gave the explanation”. Q: “We have your answer, done”.
  3. I am satisfied that this question and answer perfectly sums up the thinking of Kim Goode and her approach to this case. I heard Kim Goode’s “explanation” and I am not satisfied by it. Her perception of whether the assessment was correct or not was not a reason for non-disclosure particularly in the face of a Court order. It was as she conceded dishonest to have said that there was no assessment from Ms X. I am satisfied that this “explanation” was in fact an attempt to deflect blame away from herself.
  4. I have already commented on my impression of Ms Kim Goode from my observation of her in the witness box and from her work on this case. She is a strong personality and I am satisfied that those subordinate to her would find it hard to challenge her. This atmosphere is probably what led Ms Walker Smart into such grave error. Whilst this may be an isolated incident in her career I have very grave concerns as to Kim Goode’s working practises in this case and in my judgment a thorough review of her work and management style should be undertaken by the LA.
  5. I have made some comments about the involvement of Lisa Humphreys in this case. I found her to be a very strong and forceful personality. Whether her management style fed into or off Kim Goode I cannot say but I am clear that they are similar in management style. Subordinates would find it hard to say no to or challenge her.
  6. Her response to hearing of Ms Walker Smart’s lies to me was astounding. She thought it was “foolish”. I am afraid that is not the way I see it and it is not the way she should have seen it. Such a comment makes the lies seem like minor misdemeanours which they are not.
  7. I also found her failure to accept personal responsibility for what has happened in this case depressing. Whilst of course managers cannot be responsible for rogue employees and their decisions are only as good as the information they are given by their subordinates, they should at least sound as if they mean any apologies they give. The one she gave the parents during her evidence did not sound heartfelt and I noted that there was no apology to the Court for the lies that had been told or the unnecessary delay that had occurred by those under her. It is probable that she saw no harm in withholding the Ms X CCA as she seemed to me to be fully in support of withholding it, because in her view it was not an accurate piece of work.



Wow. Just wow.



  1. Conclusions and Findings on Human Rights breaches
  2. It follows from my conclusions above that this family’s Human Rights have been breached. The parties have produced one combined document for me to consider covering the breaches that the parents, A, B and the Guardian allege have occurred and the LA’s response to each of them. In short the LA has albeit late in the day, conceded all of the general breaches alleged and most of the specific facts that go towards those general conclusions. I have amalgamated the various breaches from this composite document and my findings and condensed them into a manageable form. My findings are as follows.
  3. Removal of the children on 17 July 2013
  4. The LA accepts and I find that it acted unlawfully and disproportionately by removing the children from the care of the parents on 17.7.13 purportedly pursuant to section 20 of the Children Act 1989. I am satisfied that it did this by:
  1. a) Taking a decision to pursue police protection in preference to the provision of alternative accommodation;
  2. b) Failing to consider making an application for an EPO or short notice ICO;
  3. c) Failing to consider whether any family placements were available;
  4. d) Failing to inform the parents of the available options such as B&B
  5. e) Failing to encourage the parents to seek legal advice or the advice of family or friends;
  6. f) Acting without the Father’s informed consent to the removal;
  7. g) Acting without the consent (informed or otherwise) of the Mother;
  8. h) Acting without the consent of any person with parental responsibility for A and B;
  9. i) Purporting to act under section 20 of the Children Act by seeking the consent of the parents in the presence of 8 uniformed police officers presenting an overt threat of police protection;
  10. j) Acting in knowledge of the Father’s expressed belief that the police would act to remove the children in any event;
  11. k) Removing the children in circumstances which did not reach the test for an emergency removal;
  12. l) Purportedly justifying the removal at the time and subsequently by way of reasons which were incorrect and/or known to be untrue by the Social Worker namely that the home had been condemned; and
  13. m) Failing to obtain the wishes and feelings of the children contrary to section 20(6) of the Children Act 1989.
  14. n) Failing to have in place a policy document guiding procedures when social workers attend a family with police, such document having been directed by HHJ Levey DFJ to be produced in or about January 2013;
  15. o) Upon it becoming known to the Team Manager and/or District Service Manager that the Social Worker had acted disproportionately by removing the children from the care of the parents on 17.7.13 the LA should have taken steps to rectify matters by offering to reunite the children and parents in alternative accommodation but failed to do so.
  1. Failure to disclose material evidence
  1. The LA accepts and I find that it acted unlawfully by materially failing to comply with its duty to disclose documents which modified and/or cast doubt on its case and/or supported the case of the parents by:
  2. Failing to disclose the Comprehensive Core Assessment of Ms X as directed as early as 15 July 2013 or at all prior to its inadvertent disclosure pursuant to a court order on 11.8.14 relating to disclosure of disciplinary proceedings concerning Ms X;
  3. Failing to disclose the ICS Core Assessments of Ms X as directed or prior to 1.4.14;
  4. Failing to disclose ICS notes with the District Service Manager’s comments due to inconsistent practices in recording information by her;
  5. Failing to disclose case recordings until directed to do so by the court on 3.3.14; and
  6. Failing to inform the parties of the existence of the video of the children’s removal and/or disclose the video itself until directed to do so by the court in May 2014. This video was in the possession of Kim Goode and viewed by her within weeks of the unlawful removal. She knew that the removal was unlawful but failed to do anything about it.
  7. The non-disclosure of the Comprehensive Core Assessment of Ms X in the face of repeated requests from the parties and directions of the court was deliberate and the decision not to disclose the document was known to Sarah Walker-Smart, Kim Goode, Lisa Humphreys and the Legal Department.
  8. The LA misled the court and the parties as to the existence of a Comprehensive Core Assessment undertaken by Ms X.
  9. In particular the LA does not dispute and I find that Sarah Walker Smart lied on oath on 31 March 2014 when she said she had never seen a core assessment completed by Ms X; that Kim Goode had looked for one and had not found one and that the reference in her first statement to such an assessment was therefore an error.
  10. Further, Sarah Walker-Smart repeated the lies on oath on 25 November 2014.
  11. The LA’s failure to comply with its duty of disclosure caused an incomplete picture to be presented to the Guardian and to the court within the LA’s evidence filed before 7.4.14.


  1. Denial of fair opportunity to participate in decision making
  2. I make the following findings in relation to this head.
  3. The parents were not consulted about the removal of the children.
  4. Neither the Court nor the parents were provided with the investigations and recordings which precipitated the applications to separate C from A and B or to apply for a section 34 order to “terminate” contact;
  5. In respect of the application to terminate contact, Hampshire County Council relied upon reports from foster carers upon which they did not seek the parents’ instructions. The foster carers’ reports were inconsistent with Hampshire’s own evidence such as contact supervisor recordings;
  6. Hampshire County Council undertook sibling assessments without discussing the children and their attachments with their parents, or indeed observing the children together;
  7. Hampshire County Council failed to convene a Family Group Conference or take any steps to explore potential family support, which led to their overlooking the Gs and issuing placement applications although the parents did not bring the existence of the Gs or their willingness to offer care to the attention of HCC until August 2014;
  8. It is alleged that the parents have been excluded from LAC and PEP reviews and all medical appointments for all of the children. I have not been addressed in submissions on this point and so can make no findings. If it is thought significant I will hear further submissions on this point;
  9. Hampshire County Council failed to provide the parents with contact notes and foster carer records in accordance with the Court’s direction or on a regular basis. This has deprived the parents of the ability to address any identified issues and effect change.
  10. Hampshire County Council had been “put on notice” of their Human Rights breaches by the order of 07.04.14 (A121); further order on 08.05.14 and Mother’s detailed skeleton argument setting out both limbs of her argument which was filed and served on 17.06.14. However, they continued to deny any wrongdoing until:
    1. On or about 10.11.14 in respect of the unlawful removal;
    2. On or about 14.11.14 in respect of the material non-disclosure. Indeed this was described by Hampshire on 29.07.14 as a ” last minute fishing expedition speculatively raised” [135].
  11. Failure to promote family life
  12. The LA breached the children’s right to family life by failing to set up or maintain regular family or inter-sibling contact during proceedings up until 31 March 2014.
  1. I am also satisfied that FC2 particularly Mrs FC2 became inappropriately attached to the children she was looking after. She allowed herself to become emotionally involved so that she tried to “claim” them for herself. This was not picked up upon by the social workers quickly enough. They were getting reports from FC2 that conflicted with the reports of their own contact supervisors yet this was not properly or timeously investigated. It was this failure to control FC2 that led to no proper inter-sibling contact taking place and E not seeing his parents for a considerable period of time.
  2. As a result of the failures of Hampshire County Council to provide all relevant material and to conduct the matter in an open and fair way, the care plans for A and B as presented to the court for the hearing commencing 31 st March 2014 were particularly distressing in that they provided not only for separation of the siblings but that for B he was to have very restricted contact with his parents and siblings; such care plans were wholly unjustified and were changed by the then Service Manager Lisa Humphreys on or about 1 st April 2014 it being noted that this was without the court or any party having heard any evidence on this issue.
  1. Other failures
  1. The evidence presented to the court in the statement of Sarah Walker-Smart dated 27.6.13 upon issue of the LA’s application and in support of its application for interim care orders was unfair in that it was unbalanced and in parts inaccurate.
  2. As conceded immediately in evidence by Ms Gibson the LA purported to but failed to undertake a full and fair assessment of the parents’ ability to care for the children by way of the assessment by the family centre worker and the social work assessment of Sarah Walker-Smart.
  3. The LA purported to but failed to undertake a full and fair sibling assessment in particular because they were undertaken without sibling contact being observed.



I have read law reports where Local Authorities have got things wrong. I have read law reports where Local Authorities have got things badly wrong. I have read law reports where they have been unfair, or stupid, or failed to act promptly, or acted in a knee-jerk way. I have read law reports where the Court disagreed with their recommendation and told them that they had badly misunderstood the law. But I’ve never read anything like this. It is utterly astonishing.  It is every conspiracy theory about what social workers do, come to life.

It is shocking, it is appalling. It is a damn scandal. It brings the profession into disrepute. The only tiny crumb of saving grace in the whole affair is that those involved were caught and that His Honour Judge Horton has shone a light into this scandal. I can only do my small part by telling my readers about it.


Back to this November 2015 judgment.  (I haven’t read the end of it yet, but I hope it ends in a whacking big cheque being written, or indeed the judgment being sent to the Attorney General)

The Judge had sent everyone away in December to conduct fresh assessments and also for the parents to be given therapy – there were problems with their parenting, but clearly in light of everything above, they had not been given a fair assessment.

There is a bit in the judgment about the mother clandestinely recording meetings with professionals (it is rather hard to blame her for doing that)


During the mother’s evidence she mentioned that she and F had covertly recorded a meeting with the Guardian and some contacts. The M had used her phone and F a digital recorder that looked like a slightly fat pen. He produced the pen recorder and 4 recordings. As the Court security staff had not come across such a device before I took steps to inform HMCTS of the existence of such devices. The recordings provided by F were not listened to by me and no one sought to rely on their contents.



Sadly, the assessment work with Symbol – an independent specialist assessment service had not gone as well as one might have hoped.  Against the backdrop of everything above, it is perhaps no surprise that the parents found it difficult to trust professionals.


         She [The Symbol worker] told me that it became clear that the parents have an absolute antipathy towards the LA and social workers to the extent that they even objected to Ms Hinton being involved in the assessment. In her and Symbol’s opinion it was an impossible task for the parents to work with or trust any professional which was a significant barrier to moving on. She said that whilst professionals were not challenging or agreeing goals, things went fine but when they tried to work with the parents the situation broke down “sharply, remarkably and quickly”. Anyone who attempted to monitor or change their parenting behaviour would she opined, meet great hostility.

116. She was criticised by the parents for not acknowledging properly or at all the enormity of the emotional toll and distress on the parents and the children caused by the events of the summer of 2013. In particular Symbol were criticised for not going through the judgment with the parents and not recording any discussion about these topics. If they had it was submitted, the parents could have ‘moved on’ and the assessment would not have stopped

The Judge spends several pages discussing the assessments and the evidence, and that I’m afraid would make an already long article too long. Sadly, he reaches this conclusion

 In my judgment it has not been evidenced that the parents have made the necessary changes that could allow them to make sustained improvements to their parenting styles or allow them to co-operate with professionals. Whilst they have demonstrated some ability to engage with therapy and have attended a parenting course they have not demonstrated that their fundamental attitude towards professionals has changed. Indeed I saw evidence during their oral evidence of their continued, deep seated mistrust and their tendency to accuse professionals of lying when challenged or disagreed with. Furthermore, I am satisfied that the failure of the Symbol assessment has reinforced in their minds that professionals cannot be trusted and this will make it even more difficult than before for professionals to work with them.

One can quite see how it would be extremely difficult for any parent to trust professionals after that December hearing – even with wholly fresh professionals to work with and therapeutic help, there was just too much damage done for the relationship to be repaired.

406. I am therefore satisfied that I must make care orders with respect to all five children to Hampshire County Council. I approve the plans for their placements as they are the plans that will promote the children’s welfare throughout their minority and protect them from significant harm. I am satisfied that no lesser intervention or order can achieve this aim due to the parents’ inability to work with professionals, in particular the LA.

It is very hard to feel comfortable about this. The Judge was clearly a Judge who was prepared to take on the Local Authority when they had been unfair and dishonest and who set up fresh and independent assessments and ensured that the parents got therapeutic help. So the parents got a fair hearing from the Court. But weren’t they just screwed by a system that says “you’ve got to work with professionals” and condemned them for not being able to, even though almost anyone in the same position would not have been able to trust again after the most shocking breaches of trust?  Very hard.

Even though I’ve had nothing at all to do with this case, or any of the sort of things that have happened in it and I never would, today is one of those days where I feel ashamed to even be part of the Family Justice system.

The damages bit hasn’t yet been dealt with. When I see the report of that, I will share it.

I was reminded by the parties that the parents and children have outstanding damages claims for the breaches of their Human Rights. As I indicated at the beginning of the hearing I have agreed with Hampshire’s DFJ that he should hear this part of the case. I will direct as part of the order arising from my judgment that a directions hearing be listed before him at his convenience.

417. I was concerned to learn that the three social workers who I previously criticised had not apparently been subject to disciplinary proceedings. I direct that my December judgment and this one be sent by the Director for Children’s Services to the Director of Social Services, Ofsted and those social workers’ supervisory bodies with a view to them considering whether further action against them is required.

I know that my commenters will want to talk about this case, and will probably be very cross about it. Please try to stay away from defamatory remarks (what the workers did in this case and what you think about it is fair game, what you think of them as people is for somewhere else, not here)

I also know that some of you will be wondering about perjury.  It is true that lying under oath is a criminal offence.  The police aren’t able to investigate perjury unless directed to do so by a Judge and a prosecution for perjury can only take place if the Attorney General authorises it

The Perjury Act 1911

1 (1)If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine

section 13 of the Perjury Act 1911, which sets out the corroboration needed to prove perjury can sometimes be difficult

A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.


[I.e Victoria saying that Colin is lying is not sufficient, there needs to be something more. Here of course, there were the computer records and emails in addition. The criminal standard of proof is high, and perjury prosecutions are very rare. And I am no expert in criminal law, so the furthest I can go is to say that it is a possible case where the Atttorney General might have a decision to make if asked]


Misfeasance in a public office is the other one that comes up from time to time. Not a criminal offence, but a civil tort.  That’s probably not much use because the compensation for that would be something that could be awarded under the Human Rights Act for the breaches already found in any event.  Though it is possible that the damages would be higher.

[Watkins v Home Office 2006

There is great force in the respondent’s submission that if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity.[1]

[1] [2006] UKHL 17, paragraph 8.  ]


And there’s the social work regulatory bodies who could be asked to take action. Social workers can and have been disciplined for bad conduct.

Vulnerable witnesses and parents article 6 rights



This is a big case anyway, but it particularly struck a chord with me having heard Penny Cooper speak very eloquently at the Westminster Policy Forum yesterday on the shabby way vulnerable witnesses are treated in care proceedings as compared to criminal proceedings.


The Court of Appeal in Re J (A child) 2014 overturned a finding of fact by Pauffley J that a vulnerable witness X had been sexually abused by the father in private law proceedings. This had become pertinent in the private law proceedings because X had contacted the mother and told her, and the mother had decided that if what X said was true, the mother didn’t want father around the children.


The witness in question, X, had been the subject of litigation that went all the way up to the Supreme Court, on the issue of whether father was entitled to see the details of what the allegations were, you may remember it


Re A (a child) 2012


The lawyer representing her, Sarah Morgan QC was arguing there that the prospect of X giving evidence in her circumstances was so traumatic that it amounted to an article 3 inhuman and degrading treatment breach.


The expert evidence about X was this

“It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.”

The Supreme Court didn’t go that far, but were sympathetic


This was what happened in relation to X’s evidence at the finding of fact hearing.


  1. In the light of the advice of Dr B, X gave evidence in the proceedings over a video link. Throughout she was supported by a trained registered intermediary who sat in the video room with her. It was planned that X would give oral evidence over the course of the Monday and the Wednesday during the first week of the hearing. However, for much of the morning of the first day X felt unable to contemplate answering questions and required discussion with and encouragement from her legal team assisted by the intermediary. Her evidence in chief, which was punctuated by breaks to enable X to re-gather her confidence, occupied the remainder of the first day and much of her second day in the witness box. Frustratingly, the first day of evidence coincided with what the judge described as “quite appalling noise disturbance” coming from road-works outside the video room window.


  2. During the morning of the second day a further difficulty occurred. One of the clear ground rules established for the giving of X’s evidence was that at no time should F see X on the television screen. F failed to abide by this ground rule and, on being spotted by the judge craning forward to see X, the evidence was abruptly curtailed. The effect of this event upon X is described by the judge as being “considerable” and that “thereafter, progress was painfully slow”. In the event the judge decided that F should leave the court room. However, by that stage X had become distraught and had locked herself in the lavatories in the court building and was refusing to come out. The court therefore adjourned for the rest of the morning hoping that X’s testimony could be resumed after lunch. X’s evidence in chief then continued until shortly before 3.30 p.m. Thereafter, following a short break, counsel on behalf of F cross-examined for something short of one hour. At 4.25 p.m. the judge concluded the process for the day and also concluded that “it would have been inhuman to have required X to return for a third day”. Cross-examination on behalf of F was thereby cut short and ended at that point. There was also no cross-examination on behalf of the guardian.


Clearly the process was pretty ghastly, and also it is clear that the father did not get to have all that he wanted to put to X in cross-examination put to her.


This is what Pauffley J said about X’s evidence


  1. Under the related heading of “X’s presentation at this hearing” the judge went on to describe X’s presentation during her evidence in striking terms:


    “I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.”

  2. That observation, coupled with the detailed description that the judge gives in the ensuing paragraphs, is a matter to which I give the greatest regard. This court frequently, and rightly, reminds itself of the substantial premium that must attach to the analysis of a trial judge who has had the experience, not available to those who sit on appeal, of observing the key witnesses give their testimony live at the court hearing. When the judge in question is a tribunal of the experience and standing of the judge in the present case, the level of respect and the premium that attaches to her observations must be of the highest order.


When a High Court family Judge describes hearing evidence as harrowing in the extreme, that is not something one can take lightly. The tolerance that High Court judges have for hearing things that would make most people faint or run out of the room to avoid is very high indeed.


Sarah Morgan QC described the process of X’s evidence like this

Miss Morgan submitted, and I readily accept, that the transcript of X’s evidence gives no real impression of the quality of her presentation over the video link. She told the court, and again I accept this, that this case was one that would stay in the minds of all of the professionals who had been in the court room “for decades”.


The whole thing was rather compounded by the father not being able to get legal aid, for one reason or another, and then that the barrister paid for by the Local Authority to represent him  (as the alternative would have been him cross-examining X himself) not realising until very late on that she was in conflict and someone fresh having to pick up the papers.


During the fact finding hearing, the Guardian’s team took on an almost amicus role to assist with this, putting both sides of the case and making extremely detailed submissions of the pros and cons of the evidence and the considerations that the Judge had to make.


And did so similarly at the appeal

On behalf of the children’s guardian Mr Paul Storey QC and Ms Camille Haboo have, through their submissions, continued to provide the court with assistance which is of the highest quality. At the stage of the conclusion of their written submissions they retained a neutral position as to the outcome of the appeal. Their helpful oral submissions included the following points:


a) In a case where there is no direct physical evidence or other clear “diagnostic” proof of sexual abuse, the process of judicial evaluation requires great subtlety;

b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;

c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;

d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;

e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.



Where the Court of Appeal were critical of Pauffley J was that in her analysis of the factors, all of them were factors which were supportive of the findings being made and none setting out that counterbalance of the reasons not to make the findings and particularly not the difficulty in X’s evidence and the risk of placing weight on the emotional content and impact on it over and above the forensic issues.


  1. Despite the very valuable support given to X by NM, a registered intermediary, who was described by Pauffley J as extremely impressive, it is clear that X found the process of discussing these matters to be highly distressing. As I have explained, her evidence was halting, truncated by the need for breaks and, in the end, concluded in the early stages of questioning on behalf of F.


  2. Within this appeal, no criticism has been made of the sequence of decisions which led to the choice of these particular arrangements, as opposed to other less direct methods, for the court to receive evidence from X. As Baroness Hale explains, in any case there will be a scale of options, running from no fresh input from the witness into the proceedings, through written answers, video-recorded questioning by trained professionals or live questioning over a video-link, to full involvement via oral evidence given in the normal forensic setting. The aim, again as Baroness Hale says, is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It must be a given that the best way to assess reliability, if the witness can tolerate the process, is by exposure to the full forensic process in which oral testimony is tested through examination in chief and cross-examination. Just as the sliding scale of practical arrangements rises from ‘no fresh involvement’ to ‘the full forensic process’, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality. In each case, where a vulnerable witness requires protection from the effects of the full process, it will be necessary for the court to determine where on the scale the bespoke arrangements for that witness should sit with a view to maximising the potential reliability of the resulting evidence, but at the same time providing adequate protection for the particular vulnerabilities of that witness.  
  3. Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’ evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.  
  4. In the present case it is clear that even the process of X giving evidence in chief encountered a range of difficulties, some entirely outside the court’s control, which made progress painfully slow and, at times, came to a halt. Cross-examination was very limited and was, for good reason, brought to a premature conclusion. Despite these difficulties, which the judge describes in full, the judgment does not contain any evaluation of the impact that this compromised process had upon the court’s ability to rely upon the factual allegations that X made within her evidence as a whole. This was a case where, partly as a result of the limitations on her ability to give evidence in the normal court process and partly because of the difficulty in fully understanding what she was explaining, the court only experienced X’s account ‘through a glass darkly’ because of the number of filters (both psychological and forensic) in place between X and the judge. In assessing the reliability of X’s account it was, in my view, necessary to acknowledge these difficulties and give them appropriate weight within the overall analysis.




The Court of Appeal felt that they had to overturn the findings

  1. It is with the heaviest of hearts that I now contemplate the conclusion that must inevitably flow from the serious detriments that I have identified in the fact finding analysis conducted by Pauffley J in this case. My reluctance arises primarily from consideration of what must follow from a decision to allow this appeal, thereby setting aside the judge’s finding of sexual abuse. I have also, at every turn, been acutely aware of Pauffley J’s enormous experience of conducting these exquisitely difficult cases.


  2. Despite giving every possible allowance for the factors that I have identified which either support the judge’s finding, or properly caution against the appellate court from interfering with that finding, for the reasons that I have given, the judge’s determination cannot be upheld. In summary the factors that have led me to this view, taken together, are:  

    a) The only evidence of sexual abuse came from X’s accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X’s allegation of sexual abuse. The evidence around the ‘trigger event’ established that, in at least one central respect, X’s accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X’s testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.

    b) X’s emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.

    c) Once it was established that the ‘trigger event’ of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X’s account.

    d) The judge’s conclusion that the ‘prohibitions’ went so far as to provide a ‘complete answer’ to the lack in X’s account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the ‘prohibitions’ themselves were shadowy and only partially understood.

    e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X’s physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation for the finding of fact.

    f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.

    g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X’s oral evidence.

  3. In the circumstances, the appeal must be allowed and the judge’s findings of fact set aside.



Lady Justice Gloster went even further and accepted the submissions made by father that the process had been a breach of his article 6 rights

  1. However I should also add that I accept Ms Branigan’s submission (as referred to at paragraph 52 above) that the trial procedure, so far as F was concerned, was unfair to him.


  2. The allegations being made against him were extremely serious. If established they might well have led to him being deprived of contact with his daughter, to the possibility of criminal proceedings against him, and resulted in an indelible scar to his reputation and character, with potential consequences for his future employment and personal relationships.  
  3. Whatever the difficulties surrounding X’s position as a witness, F was nonetheless entitled to a fair trial of these allegations. For the following reasons, in my judgment he did not receive one:  

    a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.

    b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.

    c) Third, whilst one can readily understand the reasons why the judge terminated X’s cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.

    d) Finally, F’s exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X’s evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X’s evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F’s conduct in “craning his neck” to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.

  4. It is obviously important in trials with vulnerable witnesses that the trial process should be carefully and considerately managed in such a way as to enable their evidence to be given in the best way possible and without their being subjected to unnecessary distress. But that should not come at the price of depriving defendants and others, who claim that they have been falsely accused of criminal conduct, of their right to a fair trial in which they participate and a proper opportunity to present their case in accordance with natural justice and Article 6 of the European Convention on Human Rights.  
  5. It does not surprise me that, in the light of the history of this litigation, F has on occasions, as set out in paragraphs 133-136 of the judge’s judgment, expressed his dissatisfaction with the court process in strong, emotional terms. That should not, in my view, have been relied upon by the judge (as it apparently it was at paragraphs 133-137 of her judgment) as a basis for reaching adverse findings as to F’s credibility. It is not difficult to see, given the long history of this matter and the actual and potential personal consequences for F, why he might have found it difficult to refrain from making comments of this sort, or might have behaved in an inappropriate manner in what no doubt he perceived to be a hostile court environment.  
  6. Whilst I consider that the trial process was unfair to F, it is not necessary in the light of the Court’s main conclusion in relation to the inadequacy of the evidence upon which the judge based her conclusions, to consider whether this ground alone would have sufficed as a reason for allowing this appeal.



The question then arose as to what the Court of Appeal should do. The idea that the case would be reheard seemed deeply unattractive to everyone – I’m sure that the advocates involved did not relish the idea of taking X’s evidence again

  1. Finally, there is a need to determine whether a re-trial of the issue of sexual abuse should now take place. For my part, and in the light of the material to which this court has now been exposed in full detail, and even allowing the fullest justifiable weight to X’s demeanour, I do not consider that a finding of fact against F was open to the court on the evidence as a whole.


  2. It seems highly unlikely that X will be able to engage to a greater extent in the forensic process than she did before Pauffley J; indeed powerful submissions were made by Miss Morgan and by M to the effect that it would be abusive and/or untenable to expect X to take part in a further hearing.  
  3. In the circumstances, and whilst fully accepting that this leaves A, M, and indeed F, in the very difficult situation that M so clearly described, I consider that no greater clarity is likely to be obtained by a retrial and that this court should therefore now put a stop to the evaluation of X’s 2009/10 allegations within these proceedings.  
  4. As a result, the private law proceedings relating to A must now proceed on the basis that there is no finding of fact against F (arising from X’s allegations). The Family Court will therefore make any determination as to A’s welfare on the basis that F has not engaged in any sexually inappropriate behaviour with X.



This all leaves vulnerable witnesses very erm, vulnerable. X was about as vulnerable as anyone could get, as a reading of Re A would show – she was almost suicidal at the idea of father even seeing what she had said about him, let alone giving evidence. She had strong expert evidence about the harm that the process might do to her. I never felt reading Re A that she would get anywhere near to giving evidence.

But she did so, and the measures that the Court put in place still weren’t enough.

Adding what we know about X from Re A with the judicial comments that the process of her giving evidence was harrowing in the extreme almost turns your stomach, even at this remove.

And the remarks of Lady Justice Gloster even call into question whether a Court can safely make those protective measures without risking an article 6 breach.


So where does this leave a vulnerable witness who doesn’t have such a compelling and rich case as to vulnerability as X did here? I know that the President has been speaking about this issue, and I’m sure that some guidance is going to come our way. (For once, this is a piece of guidance that I will welcome, as I think Re J throws huge doubt on where a Judge should draw the line between protecting the witness and protecting the article 6 rights of those accused)


Equality of arms – D v K and B 2014


One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.


This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.