RSS Feed

Tag Archives: right to fair trial

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

 

Something something oranges something

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

Local Authority X v HI and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1123.html

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

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/83.html

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.

 

So

  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

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B186.html

 

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

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B227.html

 

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 Assessment..so 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.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/875.html

 

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   http://www.bailii.org/uk/cases/UKSC/2012/60.html

 

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

http://www.familylawweek.co.uk/site.aspx?i=ed128264

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.

“You can’t see me”

Withholding documents in Court proceedings from a party, and documents being shown to that party’s lawyer

 RC v CC and Another 2014

 http://www.bailii.org/ew/cases/EWHC/COP/2014/131.html

 This is a Court of Protection case, but has wider implications (in fact, it imports a lot of the principles established in care proceedings into Court of Protection cases)

 It does sometimes (but only very rarely) happen within court proceedings that there is a document, or something within a document that might be problematic for one of the parties to see. In those circumstances, the Court have to decide whether the reason for keeping it from that party are sufficiently strong to interfere with the usual principle that a party gets to see all of the evidence against them.

 

It is absolutely right that the test for keeping evidence secret from one party is a very very very high one. It does very little good for the perception of fairness and equality in Courts if things are kept away from a party.

This is a very rare course of events – I’ve come across it twice in nearly twenty years of practice. In the overwhelming majority of cases, the parent is entitled to see all of the evidence, and to ask for whatever documents or disclosure that they or their lawyers think is fit. It is also worth noting that even in these rare cases where a piece of evidence is determined by a Judge that the parent should NOT see it, the process itself ought to be transparent  (i.e that the parent knows that SOMETHING is being kept back, they just don’t know what it is).

 

In this case, which was an appeal heard by the President, a birth mother had been applying for contact with her daughter who had been adopted. There were circumstances that led to that being a Court of Protection case. There were three pieces of social work evidence which the Local Authority had argued ought not to be seen by the mother (though they were seen by the Judge) and the Judge ordered that they were not to be disclosed.

 

The President accepted the appeal, for reasons set out below, and sent the case back to the original judge for reconsideration. The President was able to confirm that the principles which govern non-disclosure of documents to a party in care proceedings applied equally to Court of Protection cases.

 The original Court had properly identified the tests to be followed (and they are all helpfully set out within the judgment)

 

  1. How is the jurisdiction to be exercised? I return to what Lord Mustill said in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, page 615:

“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 nondisclosure only when the case for doing so is compelling.”

  1. In Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, having examined a number of both domestic and Strasbourg authorities, I concluded my judgment as follows (para 89):

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

As I pointed out in Dunn v Durham County Council [2012] EWCA Civ 1654, [2013] 1 WLR 2305, para 46, this approach, so far as I am aware, has never been challenged and has often been followed.

  1. Dunn v Durham County Council is in fact clear authority (see paras 23, 24 and 26) that the test is, indeed, one of “strict necessity”, what is “strictly necessary”.
  1. In a case such as this the crucial factor is, as we have seen from the passage in the speech of Lord Mustill in In re D, page 615, which I have already quoted, the potential harm to the child. Lord Mustill summarised the proper approach as follows:

“the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

… 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.

… 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.”

  1. Before leaving this part of the case, there are two further points to be noted. The first is that, as I put it in Dunn v Durham County Council (para 50):

“disclosure is never a simply binary question: yes or no. There may be circumstances … where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised.”

To the same effect, Maurice Kay LJ said (para 23) that:

“in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”

  1. A related point, often commented on in the authorities, is that the position initially arrived at is never set in stone and that it may be appropriate to proceed one step at a time. This is not the occasion to discuss this in any detail. I merely draw attention, as examples, to what was said by Hale LJ, as she then was, in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476, para 28, and, most recently, by Baroness Hale JSC in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2012] 3 WLR 1484, para 36.
  1. Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do.

 

 

Part of the appeal was that although the original judge had drawn his attention to those authorities and the test, in the discussion passages of his judgment it appeared that he had reversed the test and begun talking of there being no strong reason why the mother needed to see the documents  (as can be seen from the above guidance, the test is the opposite – it has to be demonstrated why it is necessary that she SHOULD NOT see them)

 

  1. First, Mr Fullwood submits that Judge Cardinal misdirected himself, failing in fact to apply the law as he had summarised it. He points to the passages I have set out in paragraph 34 above where Judge Cardinal says “I do not consider that RC needs to see the social work evidence” and, again, “I do not take the view at this stage that it is necessary for the … social worker’s evidence … to be disclosed”, submitting that this is to put the point the wrong way round. The question, he submits, and I agree, is not, is it necessary for RC to see the documents? The question is whether it is necessary (in CC’s interests) that RC does not see the documents. Now particular phrases in a judgment are not to be torn out of context. The judgment must be read as a whole, giving it a fair and sensible reading, not a pedantic or nit-picking reading. Are these particular passages on which Mr Fullwood fastens, passages which taken on their own are wrong, saved by the rest of the judgment and, in particular, by Judge Cardinal’s concluding summary quoted in paragraph 25 above? I cannot be confident.
  1. Second, Mr Fullwood submits that in any event Judge Cardinal has given inadequate and unsustainable reasons to justify his conclusion. There are a number of points here. There is no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC. It is surprising, even allowing for what Judge Cardinal says are the difficulties in redacting the material, that it is necessary that nothing in the three witness statements should be disclosed. After all, a large amount of sensitive personal information about CC was disclosed to RC in the redacted psychologist’s report. What is it about all the information that makes it necessary not to disclose it? And how does this square with the fact that Judge Cardinal thought that RC’s counsel should be able to see it? It may be that, with fuller explanation, Judge Cardinal’s decision could be sustained, but as it stands it provides inadequate justification for such a drastic restriction of what RC can see.
  1. Mr Fullwood’s third complaint is that Judge Cardinal has in effect introduced a closed material procedure, which, he says, was inappropriate in this particular case and is in any event, as a matter of general principle, inappropriate in the Court of Protection. I am not sure that it is helpful to categorise what Judge Cardinal did here as a closed material procedure as that expression is more generally understood. I take him to have been doing no more than has been hallowed by long practice in these cases and now has the weighty imprimatur of Baroness Hale. Whether, on the other hand, it was appropriate in this case is another matter. I have already alluded to the deficiencies in Judge Cardinal’s reasoning. But there is another point. As Moses LJ made clear, this is a process dependent upon counsel’s agreement – an agreement which counsel for the reasons given by Moses LJ may feel unable to give and which in any event the instructions from his lay client may prevent him giving. Judge Cardinal does not seem to have explored these aspects of the matter. Nor, for that matter, does he consider other possible solutions: allowing RC to read, but not to borrow or copy, suitably redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers.

Conclusion

  1. In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal’s order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment

 

 

The other matter of interest was that the original Court had ordered that the documents in question could be seen by mother’s legal team (presumably to reassure themselves that there was not a “smoking gun” being kept back from them) but on the basis that the documents or their contents were not to be shared with the mother.

 

That puts the lawyers in a difficult spot, and the President makes it plain that such an arrangement

 

(a)   can only happen with the agreement of the legal team and not be imposed upon them, and

(b)   they can only agree if they have instructions to do so, and

(c)   They can only agree if they are satisfied that they can do so without any damage to their client’s interests (which is, of course, bloody difficult when they don’t know what might be contained in those documents)

 

  1. It is apparent from Official Solicitor to the Supreme Court v K and Another [1965] AC 201 that disclosure limited to a party’s legal representatives was already by then a recognised practice in wardship. It is mentioned by Sir Nicholas Wall P in A County Council v SB, MA and AA [2010] EWHC 2528 (Fam) , [2011] 1 FLR 651, para 37. There can be no doubt as to the legality of the practice: see, for example, R (Mohammed) v The Secretary of State for Defence [2012] EWHC 3454 (Admin). But there are obviously potential difficulties, some identified in a characteristically thoughtful discussion in the June 2013 issue of the Thirty Nine Essex Street Court of Protection Newsletter of Judge Cardinal’s judgment in this case.
  1. Importantly, such disclosure cannot take place without the consent of the lawyers to whom the disclosure is to be made; and they may find themselves, for reasons they may be unable to communicate to the court, unable to give such consent. Moreover, they cannot consent unless satisfied that they can do so without damage to their client’s interests. As Moses LJ said in Mohammed (para 28):

“The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.”

 

Jumping the gun

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.