MR. JUSTICE CHARLES:
Introduction.
This case concerns five children and, in it, the local
authority seek public law orders. The proceedings took place in private, but I
am delivering this part of the judgment in public. For that reason, I shall
refer to the children by initials and to their parents as "the mother" and
"the father". If I slip up and refer to the name of a person within the
family, that name and indeed anything else identifying the family from this
judgment is not to be reported.
All five children are the children of the marriage of the
mother and the father. They were married in 1984 when the mother was 18 and
the father was 33. The mother and father are now respectively 36 and 50. The
children are C, bom on 27 May 1985, who is 16; TR, born on 10 November 1986,
who is 15; T, born on 22 May 1989, who is 12; JL, born on 3 June 1994, who is
seven; S, the only girl, born on 23 November 1999, who is nearly two.
Other relevant members of the family are the maternal
grandparents, a brother of the maternal grandmother. Uncle B; and a maternal
aunt, Mrs. W, who came into the picture very late in the proceedings in that
during the course of the proceedings she and her husband made an offer that
the mother and all or any of the children could come and live with them; the
mother's siblings, namely a sister and her brother. Uncle W. The father's
parents are still alive; they live in Gloucester and have played no part in
the proceedings and only a minor part in the history. The maternal grandmother
died on 16 November 2000. The family of the maternal grandparents, Uncle B and
Uncle W, all lived in the same town. Mrs. W and her husband lived and live in
a town about 15 miles away, but have had little contact with the mother and
her family.
The Parties.
The applicant is the local authority; the first and second
respondents are the mother and the father; C is the third respondent, and he
was separately represented by solicitors and leading and junior counsel; TR is
the fourth respondent and he was also separately represented by solicitors and
junior counsel; the fifth, sixth and seventh respondents are the remaining
children, and they were represented by their Guardian ad Litem, solicitor and
counsel.
The mother and the father were represented by separate
solicitors, leading and junior counsel; the local authority was represented by
leading counsel.
Notwithstanding the considerable array of talent representing
the parties, who are all clearly generally very competent, in my view (which
of course has the considerable benefit of hindsight), there was a lack of full
and proper preparation in this case. I shall return to this, but at this
initial stage record that the criticisms I make in this judgment of the way in
which the case was prepared and conducted are not directed to individuals: in
my view, most of the matters upon which those criticisms are based arise from
a combination of a number of circumstances. In the main, those criticisms
relate to the allegations of sexual abuse that were advanced by the local
authority as a basis for establishing the existence of the threshold criteria
and as matters which were relevant at the disposal stage of these
proceedings.
In opening, leading counsel for the local authority (for
understandable reasons) submitted that those allegations were very serious and
wide. However, on the thirteenth day of the hearing, in circumstances which I
will describe later, they were not pursued. A great part of the preceding
twelve days was, understandably, taken up with evidence relating to the
allegations of sexual abuse.
In broad terms, the local authority decided not to pursue the
allegations of sexual abuse in these proceedings because of further material
that came to light during the course of the hearing.
In my judgment, having regard to that material, it would not
have been possible for the local authority or any of the representatives of
the three youngest boys (who had made the allegations of sexual abuse upon
which the local authority based their case) to invite the court to make
findings in respect of those allegations without an adjournment and, thus,
considerable delay. This was effectively common ground between the
parties.
It was, however, also common ground between the parties that
the remaining allegations advanced by the local authority to establish the
threshold criteria and as to the second (or welfare or disposal) stage could
be pursued fairly.
I add that, in my view, in the circumstances that arose, the
decision of the local authority to proceed only on the basis of those
allegations, which can broadly be described as allegations of neglect and
emotional harm, was the correct one. Indeed, if the local authority had not
reached that decision, I would have been likely to have urged them to take
that course.
The consequence of the decision not to pursue further at
this stage the allegations of sexual abuse is, naturally, that a considerable
amount of time and public money has been wasted.
The reason for my return later in this judgment to the
approach to the preparation of this case in connection with the allegations of
sexual abuse and the errors which, in my view, were made is in large measure
to make what I hope are some constructive suggestions for the future.
In this context, I heard helpful submissions from all
counsel, who all recognised that with the benefit of hindsight some mistakes
had been made.
A Brief Overview.
The local authority seek care orders in respect of each of
the children. Interim care orders have been in place for some time in respect
of the four youngest children. It was only following a professionals' meeting
held shortly before the hearing before me that the local authority decided to
seek a care order in respect of C.
In their case summary which formed part of their opening,
the local authority made the following allegation:
"The local authority alleges that the threshold criteria for
making orders under Section 31 of the Children Act 1989 are satisfied by
reason of the long history of neglect and emotional abuse which the children
have suffered whilst in the care of their parents and by the history of
sexual abuse within the family. The parents deny that any neglect or abuse
has taken place."
At the time that case summary was prepared, that record of
denial was I think accurate, but matters moved on and I shall return to
that.
The denial of the sexual abuse, however, has been
consistent. Admissions were made in respect of allegations of neglect.
The proceedings were commenced on 18 September 2000. On 26
September 2000, the first interim care orders were made in respect of the four
youngest children. On that day, and thus after a court hearing, TR, T and JL
were placed with experienced foster carers, a Mr. and Mrs. L, but C and S
remained at home.
The immediate trigger to the commencement of the proceedings
was the state of the family home and when the proceedings were launched the
local authority based their case as to the establishment of the threshold
criteria and the making of public law orders on the allegations of neglect and
emotional abuse that are still pursued.
At that stage, although there had been some concerns
relating to Uncle B, who is a maternal uncle and a Schedule 1 offender with a
number of convictions spreading over a number of years, the local authority
were not alleging that any of the children had been sexually abused.
Given the involvement of the local authority with this
family over the years, a point relied on by the mother, the father and C in
disputing the allegations of sexual abuse that were advanced, was the lack of
any concern or allegation relating to sexual abuse prior to the commencement
of the care proceedings.
As the case on sexual abuse was opened and advanced in
evidence, the first allegations thereof that was relied on was made by T to
his foster mother, Mrs. L, on 22 October 2000. These allegations were said to
come out of the blue. They were shortly followed by allegations made by JL.
Initially, the allegations were denied by TR but, within a few days, he, too,
made allegations of sexual abuse that were relied on by the local
authority.
The local authority also relied on memorandum interviews of
TR and T. JL also had a memorandum interview, but in it he did not make or
repeat allegations he had made to the foster mother concerning sexual
abuse.
Further allegations of sexual abuse were made by the boys
after the memorandum interviews, which were also relied on by the local
authority.
The initial allegations relied on in opening and in
evidence, included allegations against the father, C, Uncle B and TR. As
presented in opening and in evidence, later allegations were made by JL
against the mother.
Prior to the decision of the local authority to no longer
pursue the allegations of sexual abuse, it was my view that in analyzing the
evidence and reaching findings it would be convenient to consider the
allegations of neglect separately to those of sexual abuse; indeed, in my
judgment, it would not have been practicable for any other course to have been
taken.
Additionally, in my judgment, if the allegations of neglect
and sexual abuse had both remained live issues it would have been important to
remember that, as one of the expert witnesses, Dr. Tully, remarked, it is the
emotional damage that both can cause that is, or can be, corrosive. Further,
it would have been important to remember that, as was common ground between
the experts, both the neglect alleged and the sexual abuse alleged could have
caused the behavioural difficulties and the developmental and emotional damage
demonstrated, in particular, by TR, T and JL.
None of the aspects of the behaviour of any of the children
that are relied on to demonstrate that they have suffered harm are
pathognomonic, i.e. particular of any type of harm, and thus of either neglect
or sexual abuse.
At this stage, I pause to comment that, unlike his siblings
and in particular TR and JL, over recent years C has had good school reports
and has done well at school. There was a relatively small issue as to whether
he had done as well as his abilities indicated he could, but it was common
ground that he had done well and had attained his predicted GCSEs. Also, it
was common ground that, again, unlike his siblings, in recent years C has
presented as a hard-working, clean and tidy child who has not demonstrated any
behavioural problems at school or, for example, during his work
experience.
Thus, it was common ground that C's behaviour had been
different from that of his three younger brothers. It follows that, both in
respect of the allegations of neglect and sexual abuse, C is in a very
different position to the other children who are the subject of these
proceedings.
An Overview of the Issues.
As I have mentioned, the case was opened and advanced for a
number of days on the basis that there were two strands to the establishment
of the threshold criteria, namely (a) neglect and (b) sexual abuse. As to
both, the local authority invited me to make a number of findings of fact.
In respect of the four youngest children, before me it was
accepted (a) by the parents and (b) those four children that the threshold
criteria are established on the basis of neglect and consequential harm.
As I understood it C accepts that he was neglected, but
denies that in his case such neglect has resulted in the threshold criteria
being established at the date the proceedings were issued.
In their opening statements of their positions, the degree
of neglect accepted by the parents fell some way short of the degree of
neglect alleged by the local authority. There was some later movement, to
which I will return.
It follows that, notwithstanding the acceptance by the
parents of the existence of the threshold criteria in respect of the four
youngest children, factual issues remained in dispute as to (a) the degree of
neglect, and (b) the degree and nature of the harm it has caused.
In the case of the four younger children, these issues are
of primary relevance at the welfare or disposal stage of these proceedings
because of the acceptance that the threshold criteria are established in
respect of those children. In C's case these issues also relate to the issue
whether the threshold criteria are established.
TR and the three youngest children, through their Guardian,
also accepted and asserted that the threshold criteria were established on the
grounds of sexual abuse and the harm resulting therefrom; indeed, the
allegations of sexual abuse advanced by the local authority were based on
allegations made by the three youngest boys.
Following the decision of the local authority not to pursue
the allegations of sexual abuse in the light of the developments that took
place during the hearing, the Guardian naturally reconsidered her position.
Having done so, she told me, as it seems to me was obvious from her report,
that at the start of the hearing she believed and asserted that there had been
sexual abuse, including sexual abuse by C of his younger brothers, but she now
took what she accepted could be described as a neutral stance to the
allegations.
Following the decision by the local authority not to pursue
the allegations of sexual abuse, TR, through his counsel, also reconsidered
his position and did not seek to argue that the allegations of sexual abuse,
including those which he had made, should be pursued so that decisions as to
TR's future could be made in the light of findings in respect of those
allegations.
In my judgment, counsel for TR was correct to take this
course on his behalf and thus to invite the court to consider TR's position on
the basis that the truth of his allegations and those of his younger brothers
of sexual abuse had not been pursued to a decision of the court and therefore
had not been established to the civil standard of proof.
As I have said, TR, through his counsel, invited me to find
that the threshold criteria were established by reference to the allegations
of neglect and emotional harm. In his case, some issues remain in respect of
the disposal or welfare stage by reference to recommendations that were made
when the allegations of sexual abuse were pursued by the local authority. I
shall return to these later.
C, whom the younger boys have alleged was the subject of
sexual abuse and someone who sexually abused them, has steadfastly (a) denied
that he has been a party to any of the sexual abuse alleged, and (b) asserted
that he has no knowledge of the younger boys being sexually abused by anyone.
He has made these denials consistently and clearly throughout and, in
particular, during his police interview and his assessment interview at the
Young Abusers Project, to which I will return.
The father has also consistently and steadfastly denied the
allegations of sexual abuse made against him by the three younger boys. As to
both the allegations of neglect and sexual abuse, the father accepts that he
has led a far from normal life. He asserts and accepts that he has had sexual
relationships with men and, as I understood his overall evidence, women
outside and during his marriage, many of which were casual sexual
relationships. The father, however, has correctly pointed out that his unusual
lifestyle and his sexual activities do not mean that he has sexually abused
his children.
During the course of the proceedings, the father has been
diagnosed by one of the experts instructed (again Dr. Tully) as suffering from
Asperger's syndrome. The father also said that he did not know and did not
suspect that any of the children had been sexually abused by Uncle B, or their
maternal grandmother, or C, or the mother.
Allegations that the maternal grandfather had abused T and
JL were made by them after the allegations which were relied on in opening as
the first allegations of sexual abuse made by the boys.
As to Uncle B, the father says that he knew that he was a
Schedule 1 offender and that the mother was visiting him and helping him with,
for example, his shopping but that he did not know that any of the children
were being left with Uncle B on their own. The mother has said that the father
disliked Uncle B, and I shall return to issues relating to him later.
The mother has also consistently and steadfastly denied that
she has been a party to any sexual abuse. The only allegations of sexual abuse
against her that were addressed in evidence before were based on allegations
made by JL that she had abused him.
Neither of the other younger boys (TR and T) alleged sexual
abuse against the mother.
The mother has consistently asserted that she does not
believe that either C or her father, the maternal grandfather, would have
sexually abused the younger boys and that she had no knowledge that any of the
boys had been abused.
In this context, it is to be noted that the mother told me
during her oral evidence that she did not like her father and this was why,
following the death of her mother and her divorce from the father, she had not
gone to live with her father and brother.
Issues were raised as to the mother's knowledge of the
alleged sexual abuse. In respect of the allegations against the father, the
mother has not been dismissive of the possibility that the father could have
sexually abused the children. In general, the mother has been very critical of
the father and has sought to place blame on him for the neglect and subsequent
harm she has accepted through her counsel existed and established the
threshold criteria.
The issues relating to Uncle B were not confined to the
allegations that he has sexually abused the boys. In his case, issues relating
to neglect and lack of proper supervision also arise because Uncle B is a
Schedule 1 offender with a number of convictions, and there are allegations
that the mother has left the boys with Uncle B unsupervised and that, in 1996,
and thus, shortly after his last release from prison in 1995, Uncle B was
visiting the mother at home during the evenings until the father put a stop to
this.
The father alleged that neither the mother nor the maternal
grandmother accepted that Uncle B had been correctly convicted.
The issues of neglect therefore include an allegation that
the mother put the children at risk from a Schedule 1 offender and that the
father failed to take proper steps to prevent this.
A number of issues arose in respect of the welfare or
disposal stage. Naturally, they will be informed by my findings at the
threshold stage of the proceedings. Also, and importantly, an issue exists as
to the mother's capacity to parent and to change.
My Approach in Law: Statutory Provisions.
The most relevant statutory provisions in the Children Act
1989 are Section 31(2), the definitions in Section 31(9), the comparator in
Section 31(10) and then at the welfare or disposal stage Section 1. Those
sections are in the following terms:
"31(2) A court may only make a care order or supervision order
if it is satisfied -
"(a) that the child concerned is suffering, or is likely to
suffer, significant harm; and
"(b) that the harm, or likelihood of harm, is attributable to
-
(i) the care given to the child, or likely to be given to
him if the order were not made, not being what it would be reasonable to
expect a parent to give to him; or
(ii) the child's being beyond parental
control."
"31(9) In this section -"authorised person" means -
"(a) the National Society for the Prevention of Cruelty to
Children and any of its officers; and
"(b) any person authorised by order of the Secretary of State
to bring proceedings under this section and any officer of a body which is
so authorised;
"'harm' means ill-treatment or the impairment of health or
development.
"'development" means physical, intellectual, emotional, social
or behavioural development;
"'health' means physical or mental health;
and
"'ill-treatment' includes sexual abuse and forms of
ill-treatment which are not physical.
"(10) Where the question of whether harm suffered by a child is
significant turns on the child's health or development, his health or
development shall be compared with that which could reasonably be expected
of a similar child."
"31(1) On the application of any local authority or authorised
person, the court may make an order -
"(a) placing the child with respect to whom the application is
made in the care of a designated local authority; or
"(b) putting him under the supervision of a designated local
authority or of a probation officer."
As appears from Section 1, at the welfare or disposal stage
I have to have regard to the no order principle, the welfare check list and
the range and effect of orders open to the court and, thus, the effect of, for
example, a care order and a supervision order. Additionally, the court's
powers relating to contact are important. Thus, Sections 31(5), 33, 34, 35 and
39 and 91(12) and (13), together with Schedule 2, paragraph 15, and Schedule
3, parts 1 and 2, are relevant. I shall not set out these provisions.
The Threshold Criteria.
The nature and purpose of the threshold and the date upon
which it falls to be established are shown by, for example, the following:
Re M [1994] 2 AC and [1994] 2 FLR 577; Southwark LBC v. B [1998]
2 FLR 1095; and Lancashire CC v. B [2001] FLR 583 (and see also that
case in the Court of Appeal where, at [1999] 2 FLR 834, Robert Walker L.J.
cites from a lecture delivered by Lord Mackay).
As appears from those authorities, the threshold set by
Section 31(2) is a trigger provision which provides the protection to
individuals, both adults and children, and thus to families from interference
in their lives by public authorities through the making of public law orders.
This accords with the essential object of Article 8 of protecting the
individual against arbitrary interference by public authorities (see Marks
v. Belgium [1979] 2 EHRR 330, 342 cited in Re W & B: Re W (Care
Plan) [2001] 2 FLR 582 at para.56 p.603).
A lower threshold is set for interference by the making of
interim public orders (see Section 38(2) Children Act). This threshold
recognises the existence of proceedings in which it is alleged that the
threshold criteria are to be satisfied on particular grounds.
In my judgment, it is important for both the courts and
local authorities to remember the existence, terms and purposes of these two
thresholds and that it is only when they are satisfied that initially interim
public orders and then, at a final hearing, final public orders can be
made.
Fact-Finding.
Given the nature and the extent of the factual disputes in
this case, I was naturally referred to the decision of the House of Lords in
Re H & R (Child Sexual Abuse) [1996] 1 FLR 80, reported as Re H
& Ors. (Minors: Sexual Abuse, Standard of Proof) [1996] AC 563. In
that case, the House of Lords deal with what is meant by the statutory
expression "likely to suffer" in Section 31(2), the burden of proof and the
basis upon which a court is to make findings in respect of the threshold
criteria.
I have had particular regard to the passages concerning
these issues in the speech of Lord Nicholls at [1996] AC 584F to 594C and the
points that (a) my findings have to be based on evidence and not suspicions,
and (b) the seriousness of the issues is a factor to be taken into
account.
In my fact-finding exercise, I have also had regard to the
guidance given in R v. Lucas [1981] 1 QB 720 in particular at 724G and
F-H and R v. Middleton [2000] TLR 293. Thus,
I accept that a conclusion that a person is lying about
point A does not mean that he or she is lying about point B.
I have taken the same approach to making my findings at the
welfare or disposal stage (see Re M & R (Child Abuse: Evidence)
[1996] 2 FLR 95 and also Re B & W (Threshold Criteria) [1999] 2 FLR
833 (the Lancashire case in the Court of Appeal).
The approach at the welfare or disposal stage having regard to the
decision not to pursue the allegations of sexual abuse.
As an aside, I mention that, notwithstanding the passage
from Re CB & JB cited at [1999] 2 FLR 839E to 840C in Re B &
W, it seems to me that problems may arise at the welfare and disposal
stage in assessing risk by reference to facts proved to the civil standard
when the existence of harm is proved to the requisite standard but the court
cannot identify the perpetrator of that harm to that standard.
Here, the decision of the local authority not to pursue the
serious allegations of sexual abuse and the decisions of the Guardian and TR
to join in and accept that approach has the consequence that any such problem
does not arise, because no finding of sexual abuse has been or can be made at
this stage.
Equally, as will appear later, the problem does not arise in
respect of the allegations of neglect.
Subject to the possibility of arguments based on, for
example, abuse of process, the decision of the local authority not to pursue
the allegations of sexual abuse does not preclude them from pursuing such
allegations in the future. However, in my judgment, both the court and the
local authority have to approach this case on the basis of the present
position and, thus, that the allegations of sexual abuse have not been
pursued.
The M & R case confirms that the decision of the
local authority not to pursue the allegations of sexual abuse means that if
the threshold criteria are satisfied on a different basis (i.e. neglect and
emotional harm) then, at the welfare or disposal stage, the court cannot
assess risk on the basis either (a) that there was sexual abuse or, and
importantly, or (b) on the basis of a suspicion that there was or might have
been sexual abuse, as alleged by the younger boys. A similar but not identical
situation would have arisen if the allegations of sexual abuse had been
pursued and the court had been unable to make findings that there had been
sexual abuse, or who the perpetrators were, to the requisite standard of
proof.
Both Re H and Re M & R are directed to the
approach to be taken by the court, but in this context it is to be remembered
that it is only the court that can make a public law order and, by that route,
(1) impose certain duties upon a local authority and (2) empower them to take
certain steps and actions.
Problems arise from the fact that the local authority as a
public body is charged, in broad terms, with the protection of children; and
it remains aware of the allegations and denials of sexual abuse that have been
made in respect of this family.
Additionally, problems arise because, as was in my view
correctly pointed out by the manager of the local authority who gave evidence
as to the care plans, (1) if public law orders are made matters do not stand
still thereafter and the local authority will have to make decisions in the
circumstances that exist from time to time, and (2) more generally in the
performance of their statutory duties local authorities have to take decisions
on the information that is then available to them and are not in a position to
make findings of fact.
These points are an indication of the difficult situations
and dilemmas in which local authorities regularly find themselves both before
and after the making of public law orders.
Local authorities regularly have to take decisions against a
background of disputes, which can be stark and heated. They regularly have to
assess risk and act on the basis of that assessment. They are often faced with
parents and families who are unco-operative and all too willing to seek to
blame others and, perhaps, in particular the local authority for problems that
have arisen. They are often under-staffed and have well-known funding
problems.
To my mind, the difficulties facing local authorities in the
performance of their statutory duties in respect of children and families
should not be under-estimated.
Additionally, in my view, it should not be forgotten that
although it may be that criticisms can be made of the local authority and
their management of a case, they are not the parents or the persons who have
had day-to-day care and control of a child who has been harmed prior to their
involvement, but are generally seeking to deal with problems concerning, and
the deficiencies in, the care of children by others.
To my mind, both the court and the local authority in
advancing care plans in this case have to have regard to the points that, (1)
serious allegations of sexual abuse have been made by the younger boys and (2)
these allegations have been consistently and steadfastly denied.
As was agreed in argument, the existence of such allegations
and their denial are facts that are clearly established. Also, in my judgment,
if care orders are made, in their future dealings with the relevant members of
the family the local authority have to have regard to those facts and treat
them as their starting point if and when they consider issues relating to
sexual abuse. Further, in my judgment, in any such consideration the local
authority have to remember that the allegations of sexual abuse (albeit
serious) are only allegations and that they are, and have been, denied.
In my judgment, the existence of these proceedings and the
decision therein not to pursue the allegations means that the position is now
different from that which existed during the period that the allegations were
pursued during the currency of the proceedings because:
(a) the allegations have been put before a court but have not been proved
for the purposes of either Section 31 or Section 1 of the Children Act, or
otherwise;
(b) it follows that the court and the local authority are not authorised,
pursuant to statute, to interfere in the lives of the relevant individuals by
reason of any public law orders made in these proceedings on the basis that
the sexual abuse alleged by the three younger boys, or some of those acts of
sexual abuse, have taken place;
(c) further, at the welfare or disposal stage of these proceedings and thus
in recommending and approving care plans, the local authority and the court
should not, in my judgment, assess risk for the purposes of Section 1 and thus
(i) what public law order should be made, and
(ii) the terms of the care plan on the basis that allegations of
sexual abuse and future risk based thereon have been established.
Additionally, in my judgment, having regard to the
circumstances that now exist, unless and until the local authority either:
(1) pursue further proceedings to seek to establish to the civil standard
that the sexual abuse alleged by the three younger boys has occurred; or
(2) a significant change in circumstances occurs, it would be wrong for the
local authority
(a) to advance care plans; and
(b) thereafter, if public law orders are made, toproceed in
their dealings with the family on the basis:
(i) that the fact that the local authority have not proceeded
with and are not seeking to establish the allegations of sexual abuse made
by the younger boys makes no real difference because, for example, the
local authority believe those allegations or some of them to be true or
believe that the younger boys have been sexually abused;
or
(ii) as they have done during the period that the interim care
orders were in place (and thus on the basis set out in Section 38(2) of
the Children Act) that the local authority had reasonable grounds for
believing that those allegations of sexual abuse would be
established.
First, in my judgment, any existing belief of the local
authority concerning the allegations of sexual abuse has to be re-assessed and
re-evaluated at all levels of the local authority in the light of the evidence
and the issues that have arisen in this case. In my judgment, it is incumbent
on the officers at all relevant levels of this local authority to urgently and
thoroughly review the position of the local authority having regard to the
existing position. In other words, existing mindsets have to be re-visited
and, where appropriate, altered.
Secondly, if after such re-evaluation the local authority or
some of its officers still hold the belief that the allegations or some of
them are true, nonetheless, in my judgment, unless and until the local
authority decide to seek to establish the allegations of sexual abuse to the
civil standard or there is a significant change in circumstances, the local
authority in the performance of their statutory duties cannot properly deal
with any of the family and, in particular, with the father and C on the basis
that the local authority believe that either (i) the younger boys have been
sexually abused or (ii) there has been any sexual relationship or activity
between the father and C.
In my judgment, unless and until the local authority decide
to seek to establish the allegations of sexual abuse to the civil standard or
there is a significant change in circumstances, the local authority have to
proceed on the basis that part of the relevant background is that those
allegations have not and will not be proved and established to that standard
and, therefore, as part of the threshold pursuant to which, or as part of the
basis upon which, the local authority is entitled to interfere in the lives of
this family.
In my judgment, it is not practical to define what would be
a significant change in circumstances or how it could be acted on without
further proceedings.
In my judgment, the above approach accords with the present
reality and means that unless and until the local authority decide to seek to
establish the allegations of sexual abuse to the civil standard, or there is a
significant change in the circumstances, the allegations of sexual abuse that
have been made have to be treated as just and only that and, in dealing in
particular with C and the father, the local authority, as a public authority
with the ability to pursue allegations of sexual abuse to establish them to
the civil standard if they wish to take that course, cannot properly or fairly
treat and deal with C or the father on the basis that the allegations are true
or they believe that they are true. The same also applies to the allegations
that were made against the mother.
In my judgment, this view is confirmed, if one considers
what the position would have been if the only allegations that had been
advanced by the local authority to establish the threshold criteria had been
the allegations of sexual abuse. If this had been the case after the decision
not to pursue those allegations, the court would not have been able to make
any public law orders and therefore the local authority could have taken no
further part in the lives of the family pursuant to any public law orders.
In my judgment, if the court is satisfied that the threshold
criteria are satisfied on the basis of the allegations of neglect and
emotional harm in determining what orders, if any, should be made and in
approving the care plans, the court has to proceed on the basis set out above
in respect of the allegations and denials of sexual abuse.
In my judgment, this course would be likely to have
different effects when considering issues that relate to relationships between
members of the family, e.g. sibling contact between C and his younger
brothers, and when determining issues which relate to the children as
individuals. For example, if a decision is made that the threshold criteria
are satisfied in C's case on the basis of the allegations of neglect and
emotional harm, then in the present circumstances the issue as to what, if
any, order should be made and the care plan, if one is made, should not be
considered on the basis that C is a child who has been abused and who has
abused others, as is alleged by his younger brothers. Rather, those matters
should be considered on the basis:
(a) that he is a child against whom such allegations have been made and who
has consistently denied them; and
(b) thus that he is a child who has reacted to that situation and who has
suffered the turmoil, anxiety, upset and disruption caused thereby and by the
reaction of others to the allegations in addition to the harm caused by the
matters which it is found establish the threshold criteria in his case.
In contrast, when dealing with each of the younger boys at
both stages relating to the making of orders under Section 31 (i.e. the
threshold stage and then the disposal stage, where the child's welfare is
paramount) the court should regard those boys as children who have alleged and
are alleging, that they have been sexually abused and, to the extent that they
allege or assert it, have abused others, but with the important caveat that
the allegations that they have made have been denied.
Additional Points at the Welfare or Disposal Stage.
Additionally, in my approach at the welfare or disposal
stage I have had regard to decisions of the European Court of Human Rights
(e.g. Soderback v. Sweden [1999] 1 FLR 250, in particular at para.30 of
the judgment; Hokkanen v. Finland [1996] 1 FLR 289, in particular at para.58 of the judgment; and Kroon v.
Netherlands [1994] 19 EHRR 2663 and in particular paras.31 and 32 of the
judgment) and English decisions which have had regard to Convention rights, in
particular Article 8 (e.g. Re F (Care: Termination of Contact)
[2000] 2 FCR 481, in particular 488G to 491H, where Wall J. helpfully
summarises existing English authority and at 495D to 498D, where he deals with
arguments relating to Article 8; Re W & B (Re W Care Plan) [2001] 2 FLR 582 at paras.52-58 pp.602-4, where Hale J. gives an over-view of
Article 3 and demonstrates the overlap between its purposes and those that
underlie the Children Act and makes the point that sometimes not to interfere
where interference is called for may also violate a child's convention rights
and the positive obligation to secure a new family for a child who has been
deprived of life with his family of birth; and Re C & B (Care
Order: Future Harm) [2001] FLR 611 and in particular paras.33 and 34,
where Hale J. says this:
"33. I would have reached that conclusion without reference to
the European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950, but I do note that under Art 8 of the Convention both the
children and the parents have the right to respect for their family and
private life. If the state is to interfere with that there are three
requirements: first, that it be in accordance with the law; secondly, that
it be for a legitimate aim (in this case the protection of the welfare and
interests of the children); and thirdly, that it be 'necessary in a
democratic society'.
"34. There is a long line of European Court of Human Rights
jurisprudence on that third requirement, which emphasises that the
intervention has to be proportionate to the legitimate aim. Intervention in
the family may be appropriate, but the aim should be to reunite the family
when the circumstances enable that, and the effort should be devoted towards
that end. Cutting off all contact and the relationship between the child or
children and their family is only justified by the overriding necessity of
the interests of the child."
I therefore have recognised and taken into account:
(a) the aim identified by Hale J. in that passage;
and
(b) the advantages and benefits which flow from a child being
brought up by a member of his or her birth family and having contact with
other members of that family and thus his or her siblings and the
non-custodial parent.
However, in my view, it is wrong to interpret and apply
statements in the above cases before the European Court of Human rights, or
similar statements in the English cases, concerning the underlying aims of the
Children Act (and thus, for example, statements to the effect that the taking
of a child into care should normally be regarded as a temporary measure to be
discontinued as soon as circumstances permit and that any measures of
implementation of temporary care should be consistent with the ultimate aim of
re-uniting the natural parent and child (see, for example, para.30 of the
judgment in the Soderback case) as giving a right, or as an over-riding
factor, for consideration.
In my judgment, such an approach would fail to take account
of:
1. the qualifications contained in such statements by the use of
words such as "normally" or generally";
2. references in those statements to "temporary care" when
sometimes this will not be in the best interests of the child
concerned;
3. the references to the need for the court to strike a fair
balance having regard to the rights and freedoms of all concerned and, more
particularly, the best interests of the child;
4. the references therein to the point that Article 8 requires
respect for family life and does not create a right in parent or child, and
to its principal purpose of Article 8, at least where children are
concerned, being the protection and welfare of the child;
5. the provisions of paragraph 2(2) of Article 8 of the European
Convention of Human rights; and
6. the point that in deciding what order should be made and care
given, the medium to long-term welfare needs of the child needs to be
considered and the fact that under Section 1 of the Children Act the court's
paramount consideration is the welfare of the child.
In my judgment, it is axiomatic that having carried out the
appropriate consideration of the competing interests, rights and freedoms from
the starting point that the aim or purpose is to keep birth families together
and to promote contact with non-custodial parents and siblings while living
elsewhere, the medium to long-term welfare of a child may be best served by
that child not living with and being brought up by one or more of his or her
natural parents and, further, in some cases by that child not having contact
with his birth family or some members of it.
However, before any decision to the effect that a child
should not be brought up by one or more of his or her natural parents, or to
the effect that a child should not have contact with members of his or her
birth family is reached, the practicalities, advantages and risks attendant
upon that child living with and being brought up by a natural parent and
contact should be considered, as should the relevant competing rights,
freedoms and interests of the persons concerned, having regard to (i) the
underlying aims of Article 8 of the Children Act, and (ii) the point that the
more serious the interference with the family life of the birth family the
more compelling must be the justification.
The Nature of Proceedings under the Children Act for Public Law
Orders.
In my judgment when considering the preparation of
statements, disclosure and the role of experts, the nature of proceedings
under the Children Act for public law orders should be taken into account. In
this respect, I have had particular regard to Re L (A Minor) [1997] AC
16, reported as Re L (Police Investigation: Privilege) [1997] 1 FLR 731
and the comments I made thereon in S County Council v. B [2000] Fam 76, 89F-G, 91C and 92F-G.
In Re L, the House of Lords was considering an
expert's report and the decision is based on the view that Children Act
proceedings seeking a public law order are essentially non-adversarial. As
S County Council v. B shows, elsewhere such proceedings have been
described as not purely adversarial but quasi inquisitorial.
To my mind, some tension exists between the statements that
such proceedings are essentially non-adversarial and the points made as to
establishing the threshold criteria and the establishment of facts for the
purposes of Sections 31 and 1 of the Children Act in Re M, Re H
& R and Re M & R. These points demonstrate the need for the
local authority to prove facts to the civil standard both at the threshold
stage and, then, at the disposal stage in, for example, assessing risk and
therefore reflect an adversarial procedure, particularly at the threshold
stage.
This adversarial aspect of the procedure is accommodated in
the general statements in the authorities as to the nature of the proceedings
by the qualifications to those statements, for example the qualification I
have referred to above, that they are not purely adversarial but quasi
inquisitorial and that they are essentially non-adversarial.
In accordance with the guidance given in Re M and
Re H & R, the approach in practice at the threshold stage, where
the local authority has to establish the existence of the threshold criteria
on the basis of facts proved to the civil standard, and thus, on that basis,
that the parents have not acted as it would be reasonable to expect a parent
to act, is largely an adversarial process. Further at that initial stage, the
test that the court is applying is not one as to what would best promote the
welfare of the child, rather the issue at that stage is whether the threshold
or trigger exists to enable public authorities to interfere in the lives of a
family and thus possibly remove children from their parents.
Human nature and the respective roles of the parties at
that stage of public law proceedings have the result that those proceedings
are treated at that stage as being adversarial or as having a substantial
adversarial element.
In my judgment, it is at the next stage, namely the welfare
or disposal stage, when the issue is what would best promote the welfare of
the child that the non-adversarial or inquisitorial nature or element of the
proceedings comes to the fore.
In my judgment, when an expert is instructed (whether or
not he or she is jointly instructed, but perhaps more obviously when the
instructions are joint) and his or her views are relevant both as to the
threshold and disposal stages, the points that the expert has been instructed
in proceedings
(a) which are described by the House of Lords as essentially
non-adversarial, or which are not purely adversarial but inquisitorial,
and
(b) which, once the threshold has been established, are
concerned with the issue as to what would best promote the welfare of the
relevant child, need to be remembered when considering the approach that
should be taken by the parties and their advisers to such
experts.
Thus in this case it is something which should have been
remembered and should have informed the approach that should have been taken
towards all the experts that were instructed, including the Young Abusers
Project.
Preparation of Evidence and Disclosure.
It was rightly accepted that all parties are under a duty
to make full and frank disclosure. Initially, this places a heavy burden on a
local authority when presenting their case (see, for example, para.4 of the
Practice Direction of 31st January 1995 [1995] 1 FLR 456). As that practice
direction provides, it is also their duty and that of their legal advisers to
confine issues and evidence to what is reasonably considered necessary for the
proper presentation of the case. A proper presentation is, naturally, one that
is fair and that has proper regard to Article 6 of the European Convention on
Human Rights.
That heavy burden arises in all cases where public law
orders are sought because of the nature of the proceedings. However, I would
agree with submissions made in this cases that where, as in this case, the
local authority advance allegations which, if they were ever to be established
to the criminal standard, would constitute serious criminal offences, the
approach taken in the criminal courts should be remembered and applied with
appropriate alterations to reflect the differences in procedures.
In such a case, the local authority are effectively seeking
to prove criminal offences to the civil standard. In my judgment, the
difference in procedures that exist between the criminal courts and the family
courts (e.g. the Practice Direction of 31 January 1995 [1995] 1 FLR 456, the
making of the case in family courts in statements without a charge or
indictment, the hearing being in private in the family courts and the wider
obligations relating to disclosure on respondents and their experts in family
cases) do not lead to or found an argument that requirements of fairness in
respect of the identification of the allegations made and the evidence, both
oral and documentary, to be relied on to prove them by the person advancing
those allegations, namely the local authority, is substantially different to
that of a prosecuting authority.
In my judgment, in every case under the Children Act when a
local authority is seeking public orders the local authority should identify
as soon as is possible the allegations they are seeking to establish
separately from, or as a separate part of, the statements that they put in
setting out their evidence. In my view, this accords with, although it is not
expressly stated in, paragraphs 1-5 of the Best Practice Guide of June 1997.
Further, in my view, it is a proper reflection of the guidance given by the
House of Lords in Re H & R.
Although this was not the case here, in my view too, often
the allegations have to be looked for in, and extracted from, the body of
lengthy statements put in by social workers which seek to recount the story
thus far and therefore they have to be sought in various places set out in a
narrative form by the local authority.
A separate identification of the allegations that the local
authority seek to establish and thus the facts they seek to prove to
establish, (i) the existence of the threshold criteria and, (ii) the reasons
why the care plan proposed best promotes the welfare of the relevant child,
would, in my view, helpfully focus thinking on the issues in the proceedings
and thus, for example, the need to identify the evidence, both oral and
documentary, on which the local authority rely (see again paragraph 1 of the
Best Practice Guide of June 1997).
In my judgment, both tasks are ones that should be
performed by someone with knowledge and training which enables that person to
do the job properly. I would add that, in my judgment, such separate
identification of allegations would be on the basis of the information known
at the time and would be subject to amendment during the proceedings.
Important parts of the preparation of statements and thus
the evidence that the local authority are to rely on are: (a) a proper
understanding of the relevant legal principles, the issues in the case and the
procedures of the court (see again the Best Practice Guide of June 1997, in
particular paras.1-5 thereof) and, with that background:
(b) a proper examination of the background material and thus the
relevant files;
(c) a proper discussion with the relevant witnesses to ensure,
so far as possible, that their statements contain a full and proper account
of the relevant matters, which include the central matters seen or heard by
that witness, the sources of hearsay being recorded by that witness, and the
relevant background to and the circumstances in which the matters set out
took place; and
(d) a proper consideration of what further information or
material should be obtained.
By reason of their respective training and experience, all
of the above are basic issues for a litigation lawyer, but not necessarily for
a social worker (see again the Practice Direction of 31 January 1995, [1995] 1
FLR 456 and in particular paragraphs 1 and 4 therefore, which make it clear
that duties are imposed on the parties' legal advisers).
If this work is done properly, it would also mean or lead
to the following:
(a) experts being instructed on a properly informed
basis;
(b) statements exhibiting appropriate background material;
and
(c) additional appropriate discovery.
It is not only the applicant local authority and their
advisers who have duties in respect of the preparation of cases and the
instruction of experts: all the respondents also have such duties.
The Guardian has access to the local authority's files.
However, in my view, this access does not mean that the other respondents
should treat, or regard, the Guardian as a bloodhound or a detective or
otherwise rely on the Guardian take primary responsibility to check that there
has been full and proper preparation of evidence, disclosure and instructions
to experts. In my view, that is not the role of the Guardian and, in any
event, other respondents will be likely to have different interests to the
minors represented by the Guardian. That was certainly the case here.
It follows, in my judgment, that all respondents and their
advisers:
(a) have mirror duties and responsibilities to those I have set
out relating to the local authority in respect of their evidence;
(b) should check the decisions made as to the experts to be
instructed and the terms of those instructions and thus the input they want
to have into those terms;
(c) should consider whether it appears that the local authority
have performed their duties in preparing the case and as to
disclosure;
(d) should consider what further information or material should
be obtained; and
(e) should pursue issues as to disclosure at interlocutory
hearings if they have not been agreed.
All the above duties of all the parties continue with
appropriate modifications throughout the preparation of the case and thus to
the time when a consideration of the reports of experts falls to be carried
out.
In relation to disclosure, there seems to be a general
reluctance of many involved in family proceedings to disclose documents. In
part, this is justifiably based on the nature of the procedure which, like
judicial review, is based on statements and the obligation of the public body
involved and other parties to make full disclosure. This leads to the
discouragement by the courts of fishing expeditions for discovery or
applications for discovery that can be described as Micawberism (see, again,
paragraphs 2 and 4 of the Practice Direction of 31 January 1995 [1995] 1 FLR
416).
However, it seems to me that, additionally, this reluctance
is also often incorrectly based on views relating to confidentiality and an
assertion that records of the local authority are subject to public interest
immunity. Both of these are large subjects and this judgment is not an
appropriate place to address them in any detail. However, in my view, issues
relating to confidentiality and public interest immunity in the context of
Children Act proceedings are regularly misunderstood and asserted as a reason
why disclosure has not been made, or for refusing a request for disclosure
made of a local authority, a Guardian ad Litem and experts in connection with
proceedings under the Children Act.
In my judgment, the first thing that needs to be remembered
is that when disclosure in respect of proceedings under the Children Act falls
to be considered, the first question, as it is in other proceedings, is
whether the material passes the relevant threshold test for disclosure. This
test has had a number of formulations, but one regularly used in relation to
it is and remains whether disclosure is necessary for the fair disposal of the
proceedings (see the Old RSC Order 24, rule 13 and now CPR 31.17, which in its
first part reflects the definition of standard disclosure in CPR 31.6, which
is in the following terms:
"Standard disclosure requires a party to disclose only -
"(a) the documents on which he relies; and
"(b) the documents which -
(i) adversely affect his own case;
(ii) adversely affect another party's case; or (iii) support
another party's case; and
"(c) the documents which he is required to disclose by a
relevant practice direction."
Also, it now needs to be remembered that issues of
disclosure engage Convention rights in family proceedings, particularly
Articles 6 and 8.
It has been established by high authority in this country
that, generally, confidentiality is not a valid reason for non-disclosure of
material that passes the relevant threshold test for disclosure (see, for
example, Science Research Council v. Nassey [1980] AC 1028, 1067A and
D v. NSPCC [1978] AC 171, 230C/D. In both passages, in the relevant speeches in the House of
Lords Alfred Crompton Amusement Machines v. Customs & Excise
Commissioners No.2 [1974] AC 405 is cited and the most often cited passage
therein is at p.433H, where Lord Cross says that confidentiality is not a
separate head of privilege but it may be a very material consideration to bear
in mind when privilege is claimed on the ground of public interest, and see
further Wallace Smith Trust Co. Ltd. v. Deloitte Haskins & Sells
[1997] 1 WLR 252 in particular at 273F to 274B).
It follows from that that something over and above or in
addition to the simple assertion of confidentiality is needed to lead to a
conclusion that disclosure of material that passes the relevant threshold test
for disclosure can be refused in proceedings.
In proceedings concerning children, significant harm to a
child has been taken into account in the consideration of the competing
interests involved when determining whether disclosure of relevant material
known to the court but not to one of the parties can be refused (see, for
example, Re D (Adoption Reports: Confidentiality) [1996] AC 563, 615,
where, however, it is made clear that non-disclosure will be the exception and
should only occur when the case for it is compelling).
In a recent case, Re B (Disclosure to other
Parties), judgment in which was handed down by Munby J. on 19 July 2001
and which, so far as I am aware, has not yet been reported, Munby J. carried
out a very helpful review of authorities and in particular those relating to
the European Convention. He concluded that the Article 8 rights of any person,
if they are sufficiently engaged, could found an order that relevant material
should not be disclosed. Thus, he concludes that there is room for a balancing
of competing interests under Articles 6 and 8 and a conclusion based thereon
that some relevant material should not be disclosed in proceedings.
To my mind, this is an interesting development which
arguably is not on all fours with the general approach previously adopted in
the English courts that confidentiality was not a ground for refusing
disclosure of relevant material (see again, for example, the Alfred
Crompton case).
I comment that to my mind issues discussed in Re B
also relate to interesting points as to the basis on which disclosure of
material relating to children by, for example, the media can be enjoined and,
in particular, whether injunction can be based on Article 8 and/or the public
interest in promoting the welfare of children, rather than simply on duties of
confidence. These issues are well outside the ambit of this judgment, but the
decisions made in respect of them in other cases may have an impact on
disclosure for the purposes of proceedings under the Children Act and, indeed,
other proceedings whether held in private or in public.
Importantly, as was done by the House of Lords in Re
D, at the end of his judgment in Re B, Munby J. emphasised the
point that it is only if the case for non-disclosure is convincingly and
compellingly demonstrated that an order for non-disclosure will be made and in
most cases the needs of a fair trial will demand that there be no restrictions
on disclosure even if the case for restrictions is made out, the restrictions
must go no further than is strictly necessary. I respectfully agree with that.
Further, in my judgment, this approach underlay and underlies the correct
approach to public interest immunity.
Public interest immunity is a descriptive term for a basis
for refusing disclosure of relevant material at a trial. It is based on a
public interest that is strong enough to compete with, and sometimes prevail
over, the public interest in there being a fair trial and, consequently to
that end, disclosure of all material that passes the relevant threshold test
for disclosure. Thus, it gives rise to the need to consider competing public
interests.
Since R v. Chief Constable of West Midlands Police ex
parte Wiley [1995] 1 AC 274, there has been a considerable review of the law, practice and
approach relating to public interest immunity, which included statements to
both Houses of Parliament, which were adopted by the Labour Government that
followed. Part of that consideration was in respect of what was called a class
claim to public interest immunity, as opposed to a contents claim. The result
was that, in large measure, the class claim became a matter of history.
Another important product of that review was to
re-emphasise the need to carefully examine and explain the public interest
that was being advanced to establish the assertion of public interest immunity
in respect of identified material and thus the contents of particular
documents.
Additionally, the ability of a person with appropriate
authority within the relevant public body, for example, the relevant minister,
not to advance a claim based on public interest immunity in a given case was
recognised.
There are differences between cases concerning children and
thus the records of local authorities and the records of other public bodies,
for example the Department of Trade & Industry relating to the
investigation and inspection of companies and Customs & Excise. Important
among these are the interests of children, respect for family life and the
need for social workers to continue to work with families after the end of the
proceedings. But there are a number of overlaps between the roles and records
of local authorities and other public bodies concerned in investigation that
were at the heart of the review of public interest immunity I have referred
to.
That review and decisions of the courts in other areas are
relevant to the question whether public interest immunity attaches to material
in the hands of a local authority. In my judgment, the result of that review
and those authorities is that:
(a) any case on public interest immunity that precedes In re
Wiley or post-dates it but does not include a careful consideration of
that case and the developments in the law and practice relating to public
interest immunity that followed should be regarded with caution and
carefully reconsidered. For example, in my judgment, that applies to the
decision of the Court of Appeal in Re M (A Minor: Disclosure of
Material) [1990] 2 FLR 36;
(b) general statements that one sees in textbooks and hears that
social work records are covered by public interest immunity, which is a
widely stated class claim, should now be consigned to history;
(c) anyone advancing a claim to public interest immunity in
respect of material held by a local authority should take advice and set out
with particularity the harm that it is alleged will be caused to the public
interest, for example the proper conduct of the duties of a local authority
in respect of the protection of children, if material which passes the
threshold test for disclosure is disclosed with or without appropriate
redaction in the relevant proceedings; and
(d) before embarking on a claim to public interest immunity (or
another argument for opposing disclosure) consideration should be given to
the question whether the material passes the threshold test for disclosure
and if so why.
Generally, I make the point that, as Munby J. emphasised in
Re B, in respect of claims for non-disclosure based on Article 8 a compelling
case for non-disclosure based on public interest immunity needs to be made out
and any non-disclosure must go no further than is strictly necessary, having
regard to the competing public interests.
Further, generally I make the point that, in my judgment,
both local authorities and Guardians ad Litem should be more willing than they
seem to be at present to exhibit their notes of relevant conversations and
incidents that are relied on as evidence for findings at the threshold or
welfare stage of proceedings, rather than to embark on what is a time-
consuming and difficult exercise of preparing summaries of those notes.
In this context, the practice of the Official Solicitor of
exhibiting attendance records (or full typed up versions, or full accounts, of
them) was referred to by leading counsel for the father and I agree that:
(a) it would have been beneficial if this practice had been
adopted in this case by both the local authority and the Guardian;
and
(b) it is likely to be beneficial in many cases if this practice
were to be so adopted.
This does not mean that the relevant social worker and the
Guardian do not give a summary or point to the most important parts of the
notes, but has the result that the parties and the court can more readily see
the context in which certain statements were made or events took place.
In this case, in advancing the case on sexual abuse the
local authority relied on allegations made to and events in the presence of
(i) the foster mother and a lady who helped her and was herself a foster
mother, (ii) social workers, (iii) a doctor who examined the boys and (iv) the
Guardian, but only some of the relevant contemporaneous notes were disclosed.
This caused serious problems and should not have happened.
To my mind, all the notes of the foster carers were
relevant because they gave a contemporaneous record of the circumstances in
which the allegations relied on were made and which led up to the making of
those allegations. Notes recording and containing references to the
allegations were of most relevance, but, in my judgment, notes of other
matters were relevant to give an indication of the matters noted more
generally and the approach of the two foster carers to note-taking.
Further, those further notes were likely to be relevant to
the allegations of neglect. The failure to either (i) gather together all the
notes of the foster carers and (ii) to go through the history and background
with them, led to the experts being instructed and this case being opened on
an incorrect basis as to when the first allegations of sexual abuse were
made.
Additionally, the Guardian, in correspondence through her
solicitors, resisted a request that she should disclose her contemporaneous
notes of meetings relating to passages in her report that were relied on as
allegations of sexual abuse made by the boys. In respect of that refusal,
counsel for the Guardian referred me to the notes to Rules 4.11(a) and 4.17 of
the Family Court Practice 2001, which make references to confidentiality and
public interest immunity. For reasons I have given earlier, in my judgment,
those passages and the role and status of the Guardian did not warrant the
failure to disclose the notes requested. However, I accept that the approach
of the Guardian's solicitors is one that it is likely that many family
practitioners might have adopted because of the general reluctance I have
referred earlier to disclose material in addition to what is included in and
exhibited to the reports of Guardians.
The requests that were made of the Guardian were not
pursued at an interlocutory stage.
When the issue of disclosure of the Guardian's notes was
raised during the hearing, after some initial reluctance, her counsel, in my
judgment correctly, accepted that the notes were relevant and should be
disclosed and, as he said, when you analysed the position it became clear why
that was the case. In short, they were contemporaneous notes of conversations
with, amongst others, the boys concerning the sexual abuse alleged and more
general behaviour and conduct of the boys. They therefore contained a
contemporaneous record of highly relevant exchanges.
When the Guardian's notes were produced, I comment that
they were excellent notes and, for example, their relevance was demonstrated
by the fact that a number of questions, not least by the Guardian's counsel,
were based on them because they added to the information in her report.
This is not a criticism of the way in which the report
summarised discussions referred to in them, but it seems to me a likely if not
inevitable use of source material at and in preparation for a hearing over and
above a summary thereof.
Experts' Reports.
There are a number of authorities relating to, and giving
guidance in respect of, the instruction and role of experts. Save to a very
limited extent, I do not propose to add to this guidance. Helpful guidance is
also given in respect of the instruction of experts in Section 5 of the Best
Practice Guidance June 1997.
Firstly, I have already made the point that all parties owe
duties in respect of the identification and instruction of experts. Secondly,
and also relevant here, is the point that once a report from an expert is
received it should be considered by all the parties and their legal advisers
to check:
(a) that the expert has reported in accordance with his or her
instructions;
(b) whether that party wishes to put any further points to that
expert, which would include points on his or her reasoning and also points
as to what facts or matters the expert has considered and whether he or she
agrees that other facts or matters are relevant and would make a difference;
and
(c) the role that the expert should play at the hearing and thus
whether and if so when, and as to what, the expert should give oral
evidence.
The Expert Evidence.
I heard evidence from the following experts instructed for
the purpose of these proceedings:
(a) Miss Vikki Simpson, a chartered forensic and counselling
psychologist. She was the only expert who saw all members of the family. She
carried out a number of well-established and recognised tests; she also saw
S when she was brought to her consulting rooms by the parents. Her report is
dated 18 January 2001 and is based on interviews and tests carried out in
October and November 2000. She expressed views on all members of the family
based on her interviews, observations and tests. Those views included
conclusions on the possibility of the mother being able to care for S or for
S and all or some of the boys.
Following and in accordance with the report of Miss Simpson and
her recommendation, the Young Abusers Project and Dr. Wilkins were
instructed.
(b) Dr. Wilkins is a consultant psychiatrist. He was instructed
by the mother's solicitors to carry out a psychiatric assessment of the
mother.
During his oral evidence. Dr. Wilkins also expressed views on
the chances or prospects of the mother being able to care for S, or for S
and all or some of the boys.
(c) Dr. Tully, a chartered clinical and forensic psychologist
who was instructed by the Guardian's solicitor on the basis that the
instructions were a joint instruction of the parents, the local authority
and the Guardian to carry out a risk assessment of the mother and father,
bearing in mind the allegations of sexual abuse made against them. He too
expressed views on the chances of the mother being able to care for S, or
for S and all or some of the boys.
(d) Anne Cattenach, a registered drama therapist and play
therapist who prepared a report relating to JL's views and attitude towards
contact.
All these experts gave evidence that was relevant to the
allegations of neglect and emotional harm and issues relating to disposal.
In addition, I heard evidence from:
(a) Dr. Barker, who examined the children after they had made
allegations of sexual abuse. She has had very considerable experience of
making such examinations on behalf of the police. Her statement to the
police, which had her contemporaneous notes attached to it, was in the
papers.
(b) Dr. Vizard and Dr. Yates, who signed reports following
assessments carried out at the Young Abusers Project.
Dr. Vizard's reports related to C and T and Dr. Yates'
reports related to TR and JL.
Dr. Vizard is a consultant psychiatrist with very
considerable experience. She helpfully provided the court with a draft chapter
for a forthcoming publication which explained the approach generally adopted
by the Young Abusers Project.
Dr. Yates is now a consultant psychiatrist, but at the time
he prepared the reports he was a specialist registrar attached to Great Ormond
Street, working at the Young Abusers Project.
All of the above experts clearly had considerable expertise
in their respective fields.
The Allegations of Sexual Abuse and the Instructions to and Report of
the Young Abusers Project.
I turn to deal with these issues before returning to deal
with the remaining live allegations relating to neglect and emotional abuse
because they are relevant background to (i) the approach to be taken to the
report of the Young Abusers Project, and (ii) the stance of the local
authority after the decision was made not to pursue the allegations of sexual
abuse. Also they are relevant to my consideration of the care plans and the
orders I should make.
In commenting on these matters, I make some criticisms of
the approach adopted in this case and some suggestions as to the approach that
should be adopted in other similar cases: these comments, linked to comments I
have already made under the heading "My Approach in Law".
I make these comments notwithstanding that a number of
authorities already exist which give general guidance because, as I have said,
the decision of the local authority, which I agree was the correct one in the
circumstances that arose, not to pursue the allegations of sexual abuse had
the result that a considerable amount of time and money was wasted. Thus, it
seems to me I should make some general comments with a view to promoting a
result that the problems that arose in this case and caused the decision of
the local authority to no longer pursue the serious allegations of sexual
abuse, which if they had been established would have demonstrated widespread
sexual abuse within this family, are if possible not repeated. Clearly, it is
unsatisfactory that the situation is reached that such serious allegations are
not pursued several days into a hearing.
In considering the position in relation to the disclosure
and the instructions to, and the report of, the Young Abusers Project, I
repeat my acknowledgement of the enormous benefit of hindsight and the
advantages which flow from an examination of issues at a hearing. I accept
that a number of the things that seem plain now may not have been so clear in
the past.
The Allegations of Sexual Abuse.
As I have already indicated, in the statements of the
foster mother to this court and to the police, it appeared that the first
allegations of sexual abuse were made by T "out of the blue" to the foster
mother. The allegations so made by T include allegations against the father
and C.
Contemporaneous notes made by the foster mother in relation
to those allegations were exhibited to her statement to the police which was
included in the court bundles. Additionally, contemporaneous notes taken by a
friend who was a foster mother and who had looked after the children both in
the foster mother's home and her own home were exhibited to a statement of a
social worker. Those notes related to later allegations of sexual abuse.
There was quite lengthy cross-examination of the foster
mother and the lady who had assisted her as to the manner in which they
compiled their notes. However, the truth and general accuracy of the notes
produced, and thus their evidence of the foster mother's as to the content of
the allegations made to them by the younger boys, and the circumstances
surrounding the making of those allegations, was not really challenged.
I asked to see other notes made by the foster mother and
the lady who had assisted her. I confess that at the time I made that request
I was not expecting those notes to contain other allegations of sexual abuse
by the younger boys. However, in my view such other notes were relevant
because, for example, they would have demonstrated what other matters these
ladies noted and would give a wider picture of the boys' behaviour in the
foster home, and thus of (i) the background to the allegations of sexual abuse
that were made and relied on, and (ii) the evidence of these ladies of the
behaviour of the boys that was relevant to the allegations of neglect and the
issues that arose at the welfare or disposal stage of these proceedings.
It was accepted at the Bar that if I had not made this
request the notes that were found in complying with it would not have come to
light and would thus not have been disclosed in these proceedings. The likely
result of that would have been that the allegations of sexual abuse would have
been pursued and the court would have reached a decision in respect of them in
the absence of relevant information that was in the possession or control of
the local authority and, to a lesser extent, the Guardian.
Additional notes of the foster mother that were so found
disclosed that there had been earlier allegations of sexual abuse which were
recorded therein. These notes also indicated that the Guardian was aware that
comments had been made to the foster mother which could indicate that there
had been sexual abuse, or that the younger boys had inappropriate sexual
knowledge prior to the allegations which had been said to have been made "out
of the blue" by T on 22 October.
I can see why, in isolation and at the time, the Guardian,
the relevant social worker and the foster mother might have considered that
these comments were not particularly significant, but when they are considered
with (i) further allegations and information found in other notes of the
foster mother, and (ii) the later allegations made first by T on 22 October,
to my mind it becomes apparent that they were comments that could be relied on
to support an argument that the allegations made on 22 October 2000, and which
had been relied on as the first allegations of sexual abuse, had been preceded
by (i) other allegations, and (ii) the possibility of discussion between the
three younger boys and their foster parents which might have informed those
allegations.
Further matters contained in the other notes of the foster
mother add further force to that argument. In particular, the first allegation
that had been relied on was one by T against others and, on one view of the
evidence, was made in circumstances that had not occurred before, namely that
T had soiled and then hidden his underpants in his bedroom and this had been
discovered by the foster mother, which caused T some real embarrassment.
Whereas the notes that were found late in the proceedings reveal, as I
understand it, (i) that this was not the first time that T had done this and
(ii) that earlier allegations of sexual abuse had been made against T.
Another issue that was not pursued until I asked that it
should be related to the circumstances in which the social worker who attended
at T's second and third memorandum interviews came to be there. It transpired
that:
(a) this social worker had, it seemed, a longstanding
relationship with the foster mother and had been introduced to assist
T;
(b) T had said that he had not repeated his allegations in his
first memorandum interview because he felt that the police officer was too
young and then, perhaps after discussion with the foster mother and the
social worker, had requested that this older social worker should attend
with him at the next memorandum interview; and
(c) this older social worker had driven T from the foster
mother's home to that second memorandum interview.
After the discovery of some of the additional notes that
were ultimately found and of this participation of the older social worker who
attended with T at his second and third memorandum interviews, arrangements
were made for the foster mother to be recalled and that social worker to be
called. However, before they attended to give evidence, a further note or
notes were found.
The culmination of these discoveries led the local
authority to the decision not to pursue the allegations of sexual abuse
further.
As I have said in my judgment, this decision properly
recognised that the further information that had then been found meant that
the case had been presented, and the experts had been instructed, on an
incomplete and therefore incorrect basis. This had the result that, without an
adjournment and reappraisal, the allegations of sexual abuse could not be
fairly pursued.
Earlier in the proceedings, the solicitors acting for the
father had made requests for disclosure of notes both by the local authority
and the Guardian. These requests were in wide terms and, albeit that some
disclosure of notes followed them, these requests were in fact not complied
with. If they had been, the notes that were found during the course of the
hearing would have been disclosed earlier. The solicitors for the father did
not pursue their requests in correspondence after February 2001 and made no
application at any interlocutory hearing for disclosure of the notes
requested.
After problems relating to disclosure began to emerge
during the hearing, applications for further disclosure were made or, in the
case of the father, renewed, on behalf of the first three respondents in
respect of documents held by both the local authority and the Guardian.
It was common ground before me that the additional
information found and therefore produced during the hearing from both the
local authority and the Guardian was clearly relevant in the sense that its
disclosure was necessary for the purpose of there being a fair disposal of the
issues relating to sexual abuse.
Additionally, it was accepted and indeed was clearly the
case that there was no inhibition to its disclosure by reason of its
confidentiality, public interest immunity or Convention rights. In the main,
the material consisted of contemporaneous notes of relevant conversations and
incidents, some of which were not covered in the statements and reports before
the court and some of which were.
In my judgment, the non-disclosure of this material was the
result of a number of serious shortcomings in the preparation of the case and
has had serious implications.
In my judgment, the primary responsibility for these
failures rests with the local authority because they have failed in their
preparation of this case to properly and fully perform the important parts of
the proper preparation of statements and thus the evidence set out above, by
failing to ensure that:
(a) those responsible for such preparation had a proper
understanding of the relevant legal principles, the issues in the case and
the procedures of the court;
(b) there was a proper examination of the background material
and thus the relevant files;
(c) there was a proper and full discussion with the relevant
witnesses to ensure, so far as possible, that their statements contained a
full and proper account of the relevant matters, which included central
matters seen or heard by that witness, the sources of hearsay being recorded
by that, and the relevant background to and the circumstances in which the
matters set out took place; and
(d) there was a proper consideration of what further information
or material should be obtained.
Part of the problems may have stemmed from the commendable
speed with which the first memorandum interviews were organised. However, with
hindsight and although speed is clearly important, it would probably have been
better if an experienced investigator with, preferably, the help of a lawyer
(if that investigator was not a lawyer) had taken the time to go through the
history more fully with the foster mother. Thus a general lesson to be learnt
is that as soon as possible after a carer informs a local authority that a
child in his or her care has made allegations of sexual abuse, or similar
allegations, a fully history should be taken from that carer by a person or
persons with relevant experience.
In my judgment, in preparing the evidence for this case and
before the letters of instruction of the experts were prepared, steps (a) to
(d) above should have been gone through.
Point (d) would, it seems to me, have thrown up a number of
points relating to the credibility of the younger boys when checking
background facts relating to, for example, descriptions of places, including
descriptions of the home and also how those descriptions fitted with the homes
of the maternal grandparents and Uncle B.
Other matters which could, with advantage, have been
checked were the practicability of the abuse the boys were alleging having
taken place having regard to the father's work schedule, the daily lifestyle
of the boys and their mother during term time and holidays. Uncle B's mobility
and what neighbours were able to say as to visits by the mother and the boys
to Uncle B's home.
I do not know what, if any, such investigations the police
made before they decided not to prosecute; leading counsel for the local
authority did not have this information. In my view, investigations of this
type are clearly important in cases of this kind where issues arise as to
credibility of children and indeed of adults.
Although as I have said the primary responsibility for the
failures in proper preparation that led to the decision not to pursue the
allegations of sexual abuse lies with the local authority, in my judgment,
none of the other parties and their legal advisers can escape some of the
blame for the failures in proper preparation of this case. This is because, in
respect of (a) the evidence itself and (b) the instruction of the experts, not
least because a number of these were joint instructions and, in any event, all
parties were concerned to see that the experts were fully and properly
instructed and disclosure, the respondents also had duties.
In this context, it is to be noted that each of the first,
second and third respondents during the hearing sought, and submitted that
there should have been, further disclosure of material and, in particular, the
notes of the foster mother, the lady who assisted her and the Guardian.
Notwithstanding these requests:
(1) It was submitted to me on behalf of the mother during the
argument on costs that at an earlier stage further disclosure was not sought
because the case advanced that the mother had sexually abused JL was
considered to be a weak one and that in fact the further disclosure had made
her position worse. As to that I can understand why that view could have
been and was taken if the allegations of sexual abuse against the mother are
isolated and in particular if an adversarial approach (or one similar to
that of a defendant to a criminal trial) is adopted. However in my judgment
even on that approach the line of cross examination that was taken on behalf
of the mother (and other respondents) as to the method of note taking by the
foster mothers should have been preceded by a request at least for the
originals of the notes and better other examples of the notes. Further in my
judgment a respondent to family proceedings in the position of the mother
should not isolate the allegations of sexual abuse (or similar allegations)
and thus the more adversarial aspects of the proceedings when considering
what material should be sought and disclosed.
(2) It was submitted to me on behalf of the father during the
main hearing (and as to costs) that requests for disclosure that had been
made were not pursued after February 2001, and further requests for
disclosure had not been made prior to the hearing and my request to see
other notes of the foster mother, because it was assumed that there had been
full disclosure of all relevant notes. I accept that, as submitted, those
assumptions were made and that they could have prompted a line of thought
that if an application for discovery was made it might have been said to be
a fishing exercise, albeit that in my view this would have been an incorrect
categorisation not least because the notes were not only relevant to the
allegations of sexual abuse and notwithstanding that the father admitted
neglect (at that stage to an undefined degree). Further, I repeat that given
the lines of cross-examination taken in respect of the note-taking practices
of the foster mother and the lady who assisted her, I do not understand why
originals and other examples of their notes were not called for.
(3) In addition it was submitted to me on behalf of C during the
main hearing (and as to costs) and I accept that C's leading counsel who was
instructed late in the proceedings made the same assumptions as to the
production of all notes relating to sexual abuse and had called for the
videos of interviews at the Young Abusers Project (as to which see further
later) at an early stage of his involvement, had repeated that request at
the advocates' meeting the week before the hearing and had been told that
the videos would be provided. I accept that C's primary interest both before
and after the late decision of the local authority to seek a care order in
respect of C was to refute the allegations of sexual abuse made against him
and that he was less interested than the parents in the issues relating to
neglect and the welfare or disposal issues relating to the other children.
But in my judgment this means that those representing C were particularly
interested in ensuring that the experts were properly instructed and a full
picture was obtained in respect of the circumstances in which the
allegations of sexual abuse had been made and this was so before and after
the local authority decided to seek a public law order in respect of
C.
These points do not cause me to consider that the requests
that were made for further disclosure at the hearing were wrongly made. Indeed
in my judgment they were correctly made and should have been made earlier.
On the basis of the assumptions and approach referred to
above, and thus the view that there were no more notes that were directly
relevant to the allegations of sexual abuse, as I have already said, it seems
to me that the other notes would still be relevant both as to (i) the
background to the allegations of sexual abuse, and (ii) the allegations of
neglect (particularly of the three younger boys) and the issues relating to
the welfare or disposal stage of these proceedings.
Additionally, it seems to me that the notes relating to the
meetings by reference to which the Guardian (i) expressed views as to C's
attitude and (ii) made the point that T had admitted being an abuser (which I
think was the only evidence to this effect) were clearly relevant documents to
the factual issues that were in dispute.
During the course of the hearing I was told by leading
counsel for the local authority and accept that no lawyer acting on behalf of
the local authority had read through the relevant files (as to this during the
argument as to costs which followed the giving of this judgment I was told
that arrangements had been made for a member of the legal department to go
through the files with the relevant social worker but that this had never been
done). It seems to follow from that that lawyers were not involved at the
initial stage when the first round of evidence was prepared.
I am naturally aware of the financial constraints on local
authorities, but in my judgment this was a serious omission, particularly in a
case of this type, because social workers do not have the requisite training,
experience or expertise to perform the duties I have set out above as to the
proper preparation of evidence, disclosure and the instruction of experts.
Lessons to be Learnt.
In short, the lesson is to take care to ensure that each of
the parties and their respective legal advisers take proper steps in, and in
respect of, the preparation of cases and thus perform the duties set out
above. These are general and well-known duties. They have to be performed
having regard to the issues in each case. Particular aspects of the
performance of those duties that were not fulfilled in this case were:
(a) the preparation of the initial statements and the exercise
relating to disclosure were not properly carried out by the local authority
and were not carried out by a person with the requisite training and
experience;
(b) disclosure of the contemporaneous notes of witnesses,
including the Guardian was not properly considered, firstly by and on behalf
of the local authority and then by the other parties and their legal
advisers;
(c) the instructions and information given to the police prior
to the memorandum interviews and then to the experts who were instructed
later, as to the extent and nature of the allegations of sexual abuse were
incomplete, as a result largely of the failures set out above;
and
(d) little or no consideration seems to have been given to what
further information should be sought by the local authority or provided by
the respondents.
An approach that would probably assist in avoiding such
failures in the future is one where each witness should be asked to produce
all his or her contemporaneous notes of relevant conversations and events
together with all similar notes over a relevant period of time. This accords
with the practice adopted by the police in this case of exhibiting such notes
to statements, for example see the statement of Dr. Barker.
However, all relevant notes were not exhibited to the
foster mother's police statement, which shows that the statement should be
prepared by a person (i) who is trained and experienced in litigation, and
(ii) who is thus aware of the issues and can ask appropriate questions with a
view to trying to ensure that all relevant material is produced.
Additionally, such a person should go through all the
relevant or potentially relevant files of the local authority. That exercise
should identify relevant documents included therein and prompt further
relevant inquiries of witnesses, e.g. here of the foster mother as to what
other notes she had taken. If that inquiry had been made and her notes had
been read, it is apparent that they would have been disclosed as being
relevant to the allegations of sexual abuse and of neglect.
In a case such as this one where evidence is given (i) as
to what was said to a witness by a child or an adult, and (ii) as to events at
which the witness was present, the manner in which this case was conducted and
witnesses were questioned and the problems that arose show the advantage of
the parties having any contemporaneous note of such matters. As a general
rule, it seems to me that all such notes should be gathered in chronological
order and disclosed. This is regularly done in respect of hospital notes when
issues of physical harm and medical treatment and observation are relevant. It
seems to me that this is a recognition of the benefits that flow from
producing contemporaneous notes and I do not see why those benefits do not
equally arise when the notes have been made by social workers, or foster
parents, or the Guardian.
If guardians adopted that general approach when writing
their reports it would bring them more in line with the approach that has been
adopted in the past by the Official Solicitor and which I have referred to
earlier.
In this context, it should be remembered that not only can
a Guardian be giving evidence of allegations that are relied on but also that
he or she is in many respects the eyes and ears of the court. The production
of the Guardian's notes would enable the parties and the court to consider the
validity of the views expressed by reference to that source material, rather
than or together with the Guardian's summary and thus, necessarily, his or her
interpretation of that material and what is important therein. Such a practice
would also encourage all involved to make their notes of meetings etc. as soon
as possible after they occur.
Here, as I have said, the Guardian's notes when produced
were excellent and helpful. I should add that the notes I saw of the social
workers involved were also clear and helpful and the notes I saw from the
foster parents were also clear and appeared to be full.
It seems to me that the production of contemporaneous notes
of relevant conversations and events should not increase the burden on
guardians and others in the preparation of cases or greatly increase the
material a court has to read. In many ways, it seems to me that it would make
the task of writing reports and statements easier: by the time the matter
comes to a full hearing the statements, reports or submissions then before the
court should have identified the most relevant notes.
It seems to me that this approach would have advantages in
all proceedings in which a local authority seeks a public law order, but this
is perhaps particularly the case where, as here, the local authority are
making serious allegations which, if established to the criminal standard, can
constitute serious criminal offences.
Next, it seems to me that, given the burden placed on a
local authority by Re H & R and Re M & R, as a matter of
general practice, a local authority, with the benefit of appropriate advice,
should regularly consider what, if any, further information should be sought
and thus what, if any, inquiry should be made to enable it to establish the
allegations relied on.
I appreciate this places a burden on local authorities and
that some of the inquiries might be outside the normal role, duties and
expertise of social workers. However, it seems to me that the need to consider
what further information should be obtains flows directly from the role of the
local authority in the proceedings. For example, if a parent says that he or
she could not have done what has been alleged because he or she was somewhere
else, it seems to me that it should be considered whether this could be
checked.
I have referred earlier to points that it seemed to me
could have been followed up and checked in this case.
That leads on to the duty of respondents and their advisers
to give a full account of their case and position and thus to provide third
party confirmation where it is available. Their duty to give a full account
means that they should not adopt in my judgment a stance of: "you prove it"
and thus adopt a purely adversarial stance. A full account of what the
respondents accept and what they deny should be given as soon as possible.
This accords with their duties of disclosure, the overall nature of the
proceedings and will help to identify and confine the issues at both stages of
public law proceedings.
Further, the respondents and their advisers should in my
judgment consider whether they wish further documents or information to be
provided by the local authority, the Guardian, an expert or another respondent
and in doing do should have regard to the overall nature of the proceedings
and the point that if the threshold criteria are established the task of the
court is to reach a decision that it considers best promotes the welfare of
the relevant child.
The Instruction of and the Report of the Young Abusers
Project.
As I have said, the failure to gather and put before the
parties and the court a full picture relating to the background to the
allegations made on 22 October 2000 had the result that the police interviews
and the instructions given to the experts were on an incomplete and therefore
inaccurate basis.
Dr. Vizard and thus the Young Abusers Project and Dr. Tully
were instructed by letters dated 6 February 2001. Both letters were written by
the Guardian's solicitor. The instructions to Dr. Vizard and thus the Young
Abusers Project were expressed to be joint instructions of all the parties,
with the Guardian's solicitor being the lead solicitor.
Miss Simpson had been instructed earlier and prior to the
allegations of sexual abuse being made. Her assessment continued after that
time. Her report, in large measure, deals with the issues raised before the
allegations of sexual abuse were made, albeit that she properly asked for
details of those allegations and, therefore, did not ignore them in preparing
her report and in conducting the interviews that she carried out after they
had been made.
In my judgment, the comments in Miss Simpson's report
relating to the allegations of sexual abuse recognise the fact that they have
been denied and her report contains an appropriate balance, having regard to
the dispute that existed.
The background given in the two letters of instruction
written by the Guardian's solicitors on 6 February is understandably in almost
identical terms and includes the following:
"These Care proceedings arose out of a long history of concerns
which the Local Authority have had about the chronic standard of neglect in
the home and the standard of care that the children had been receiving.
Previous care proceedings were taken in 1990 when Supervision Orders were
made on the children. Matters came to a head this Summer when the
behavioural problems exhibited by TR and JL at school became extreme and
resulted in their exclusion. T was also showing worrying signs of emotional
disturbance and there were concerns about S's welfare in being brought up in
a dirty and unhygienic environment.
"Care proceedings were commenced on the 19th September 2000 and
at the first hearing on the 26th September 2000 the Court made unopposed
Interim Care Orders on all the children, except C in respect of whom the
proceedings were adjourned, with a view to TR, T and JL being placed in
foster care. This was to facilitate an assessment of the boys. In view of
the age of S and the concerns in respect of her being of a different nature
and quality it was the view of the Local Authority agreed to by the Guardian
ad Litem that she should stay with the parents at least for the time being.
C remained living with his parents.
"On the 22nd October 2000 T and JL disclosed that they had been
sexually abused and this was followed by a disclosure by TR a couple of days
later. The allegations involved [the father] and C. Furthermore the
allegations by T and JL also implicated TR as an abuser. As a result C was
removed to the [residential unit]. In addition TR was moved from the foster
carers and placed at the [residential unit]. Later on as a result of JL
being abused by T whilst at the foster carers T was also removed and placed
with TR ...
"Further disclosures have also variously implicated [the
mother], Uncle W, who is mother's uncle and who is a Schedule 1 offender,
the maternal grandfather and others.
"The allegations are denied by the parents and C. TR also denies
having abused his brothers.
"The Police investigated the matter, including video interviews
and have recently indicated that they do not intend to prosecute.
"Following the disclosures of sexual abuse mother has indicated
her intention to commence divorce proceedings though at the present time the
parents are living in the same house."
Both letters also contain the following paragraph, which is
in the following terms:
"In preparing your report, please observe the principle that in
determining any question in respect of the children their welfare is a
paramount consideration. If during the course of your investigation other
issues become relevant, please immediately let me know as I will, after
consultation with other parties, consider whether the scope of your
instruction should be amended.
"Unless you have been specifically asked to do so, please avoid
expressing a view regarding the factual disputes as this is, of course, the
province of the judge at the final hearing."
Dr. Vizard and thus the Young Abusers Project were
instructed to carry out the following:
"a. A psychiatric assessment of the four boys to include an
assessment of credibility in the light of the disclosures of sexual abuse
both within and out with the family.
"b. An assessment of the boys' emotional state and impact of the
sexual abuse and its disclosure upon their emotional and intellectual
functioning. Please also report on their respective needs.
"c. Whether you consider that the children have suffered more
general harm from emotional neglect and abuse. In this regard a report was
obtained from Vikki Simpson who was instructed prior to the disclosures of
sexual abuse coming to light to deal with the concerns regarding the chronic
neglect and disturbed behaviour being exhibited by the three younger boys
which prompted the commencement of proceedings.
"d. Subject to your assessment, advice on recommended
treatment/therapies with time scales and on placement.
"e. Do the boys pose a risk to their respective siblings or
other children?
"f. The level of contact each of the boys should have with other
members of the family and any safeguards you would advise as
appropriate."
As is apparent from those instructions, they were given on
the basis that the first allegations of sexual abuse were made by T and JL on
22 October 2000 to their foster mother. Those instructions mirror the detail
of the allegations provided in correspondence to the father's solicitors and
the way in which the case was opened and presented.
Dr. Tully was instructed as follows:
"Please will you carry out a risk assessment of mother and
father bearing in mind the allegations of sexual abuse made against them.
You should be aware that following the disclosure of sexual abuse mother has
indicated her intention to commence divorce proceedings though at the
present time the parents are living in the same house. In reporting please
will you deal with the position as if the parents are putting themselves
forward as future carers both individually and jointly. Please also advise
on any available treatment/therapy which may be appropriate for the parents,
individually or jointly."
At this stage I pause to comment that to my mind, properly
and understandably, at the beginning of the paragraph headed "Conclusion and
Opinion" in his report Dr. Tully says this:
"To some extent, any evaluation of risk must take account of
whether certain abusive acts have taken place or not. If the court were to
decide that all the children's utterances anout sexual aouse were entirely
without foundation, then there is really not much else which will compel a
conclusion that the father is a serious and risky sexual
offender."
A little later he says this, in the same part of his
report:
"I would have thought that a careful and skilful interview of
him (that is, C) might have brought out either some confirmatory report or
strategic efforts to conceal, which in themselves can be
telling."
Elsewhere in his report, Dr. Tully, again to my mind
properly, qualified his views by acknowledging that what the younger boys were
alleging was denied and may or may not be true. There is therefore balance in
his report.
In contrast, the reports of the Young Abusers Project did
not contain such balance or qualification. Effectively those reports proceed
on the bases (a) that the three younger boys were sexually abused, and thus
(b) that C was not telling the truth and that he had been both the victim of
abuse and an abuser. Thus the bases of those reports were assumptions, or
conclusions, on matters that were hotly in dispute in these proceedings.
I shall return to a brief consideration of how this came
about, but at this stage I pause to record that:
(a) during the hearing before me, it became correctly
effectively common ground that the reports of the Young Abusers Project were
only of assistance to the court if and when the court made findings that
accorded with the bases upon which those reports had been prepared and
therefore, as the allegations of sexual abuse were not pursued:
(b) save for the point that the behaviour of the younger boys is
not pathognomonic of sexual abuse or of neglect which was confirmatory of
evidence given by other experts I have ignored the reports and evidence of
Dr. Yates and Dr. Vizard and thus the reports of the Young Abusers Project
in reaching my conclusions in this case.
I am not in a position to comment on the advantages of the
approach adopted by the Young Abusers Project from a purely clinical or
psychiatric standpoint. I do not do so. Further, I repeat my acknowledgement
that both Dr. Vizard and Dr. Yates clearly have considerable experience and
expertise in their fields. Also, they gave their evidence fairly and, in my
view, as experts should.
However, in these proceedings the position was reached
that, having regard to the existence of the proceedings and the issues that
arose in them, serious mistakes were made at all stages of the participation
of the Young Abusers Project for which all concerned must take part of the
responsibility.
For my part, I regret that I did not alter the order of
witnesses and require submissions as to the relevance of the reports of the
Young Abusers Project before Dr. Vizard gave her evidence. I confess that,
having read her reports, and in particular that in respect of C, I was very
troubled by the lack of balance in them, but, having regard to the pre-reading
time that was available to me, I confess that I was still playing
"catch-up."
A lesson to be learnt in this respect is that it seems to
me that in preparing the witness template and in opening the local authority
should consider and raise with the parties and the court the relevance of the
reports of each of the experts. If this had been done, it is at least possible
that at that late stage in the preparation of this case problems that clearly
existed in connection with the reports of the Young Abusers Project would have
been identified.
It is, however, also possible that they would not have been
because they were missed, or not highlighted, at the advocates' meeting that
took place the week before the start of the hearing. At that meeting, requests
for the production of the videos of the interviews conducted by the Young
Abusers Project were confirmed or made.
The reports of the Young Abusers Project were late, and I
accept that, having regard to that, it was likely that requests for production
of the videos could not in practice have been made until shortly before the
commencement of the hearing. Nonetheless, it seems to me that it would have
been better if the videos had been sought earlier or at least that more
co-operation had been shown between the lawyers involved and the Young Abusers
Project to enable some of the videos to be seen on the first day set for the
hearing but on which I was unable to sit.
When giving her evidence, Dr. Vizard, as I have said,
helpfully provided us with a draft chapter for a forthcoming publication
relating to the work of the Young Abusers Project. It is apparent from this
that some of the seeds of the problems that arose are that this approach of
the Young Abusers Project does not fit with proceedings in which it is the
function of the court to determine whether all, some or none of the sexual
abuse alleged took place.
In my view, if the Young Abusers Project is to give a
report in respect of proceedings where the allegations of sexual abuse are in
dispute, it is clear that they should adapt that approach. This is because, in
general terms, that approach proceeds on the basis that the person who
instructs the Young Abusers Project, e.g. a local authority, is invited to
express the matters that are of concern to them during the preliminary
discussions and then at the initial stage of the interview process and thereby
encouraged to express a view or invite a consideration of the case on the
basis that the concerns express reflect what has happened, and those views or
relate to matters which the court has to decide.
Further, it seems to me that as a natural progression
within the approach adopted by the Young Abusers Project that the interviewers
attached to that project also form or are likely to form views as to issues
which it is for the court to decide. It seems that this was not appreciated by
either the Young Abusers Project or the advisers of all the parties who gave
them joint instructions.
There was therefore, it seems to me, a breakdown in
communication between the Young Abusers Project and the parties and their
lawyers which led to the Young Abusers Project carrying out their assessment
and reporting on a basis that, in my view, did not accord with their
instructions and, for example, did not pick up on the paragraph I have read,
which invites the expert to raise issues that become relevant relating to the
scope of their instructions and not to express views regarding factual
disputes as that is the province of the judge.
As I have said, it seems to me that this problem arose from
a misunderstanding on both sides, namely the instructing lawyers and
professionals on the one side and the Young Abusers Project on the other.
In this context, it was acknowledged that parts of the
letter of instruction were not as clear as they might have been and could have
been read in a way that parts of the report should be prepared on the basis
that the sexual abuse alleged had taken place. However, it is also fair to say
that the letter made clear (as I have just pointed out) that allegations were
disputed and, as indeed was well-known to the Young Abusers Project, the court
was the decision-maker on the disputed issues of fact.
It also has to be remembered that the Young Abusers Project
were not provided with the full background, but whether they would have taken
a different approach if they had been is to my mind clearly open to doubt,
because, for example, Dr. Vizard told me that she had not seen the videos of
the police memorandum interviews before she interviewed C and T in the manner
that she did.
The problem flowing from the misunderstanding I have
mentioned is most starkly shown in C's case, but it is also apparent in the
cases of the other boys.
In C's case, in the opening part of his interview there was
an acknowledgement in the description of the position by the social worker
given in accordance with the general approach that the allegations made
against him were denied by C. However, it is not until the last part of the
interview that C is told by those interviewing him that they believe the
allegations of his younger brothers, but it is obvious that this is the case
by the way in which the middle and longest part of the interview was
conducted.
For example, the use at one stage of an approach involving
concentric circles of actions and feelings in conducting that interview was,
as Dr. Vizard accepted, being used to break C down. Also at one stage during
the interview the younger boys were described at victims.
Whatever the merits of the approach adopted, if and when C
had been found to be a victim and perpetrator of sexual abuse, in my judgment,
in the context of this litigation the approach to this interview and
assessment of C did not accord with the letter of instructions and was very
unfair to C.
As I said to Dr. Vizard, if C had been an informed adult or
his lawyers had been present, in my view he would have been fully entitled to
walk out of the interview on the basis that it was for the court to decide
whether the allegations of his younger brothers or his denials thereof were
true and that he was wrongly being interviewed on the basis that he was not
telling the truth.
Responsibility for this unfairness to C must, in my
judgment, be shared by the Young Abusers Project and all the professionals,
i.e. lawyers, social workers and the Guardian involved in giving instructions
to the Young Abusers Project.
I accept that an aspect of the problem arose from the fact
that the two parts of a split hearing of this case could not take place within
an appropriate timescale, but, in my judgment, the real cause was the failure
by the experts and those instructing them to discuss and make clear what the
parties wanted the experts to do and what the experts proposed to do.
I repeat that hindsight is a wonderful thing, but the
lessons to be learnt include:
(a) the need for careful preparation of letters of instruction
on an individual basis and, as to this, I agree with the submission made
that precedents should be used only as a basis and a check to see that all
matters are covered and should not simply be reproduced;
(b) the need for the expert to consider carefully the terms of
the instructions and whether he or she can fulfil them by applying his or
her general approach or an adaption thereof and thus, although this is a
part of the established role of an expert, it seems to me that it would be
sensible to invite the expert to confirm this expressly before he or she
embarks upon his or her assessment; and
(c) the need for all parties to consider the terms of the
instructions to, and information coming from the expert, as to his or her
approach with care.
In my view, mistakes were also made after the reports of
the Young Abusers Project were received. As I have said, these reports were
received late and I acknowledge that this is likely to have been a
contributory factor.
As is set out in earlier guidance, it is important that all
involved do all they practically can to keep to timetables. However, the
reports were received in August and were followed by a professionals' meeting
on 25 September 2001 and later an advocates' meeting.
Although the Young Abusers Project were instructed by all
the parties, only the local authority and the Guardian attended the
professionals' meeting and, as I understand it, the other parties were not
invited. This was a mistake and perhaps reflected a view that the report was
one sought by the parties who were alleging that sexual abuse had taken place
but, in any event, all parties should have considered the reports, whether
they accorded with the instructions given and their relevance to the
proceedings, as soon as was reasonably practicable after their receipt.
In my judgment; the points made earlier as to the nature of
proceedings under the Children Act for public law orders and the position of
experts, whether jointly instructed or not, mean that parties and their legal
advisers should, after receipt of the report of such experts, raise with them
points that they wish them to consider concerning, amongst other things, the
following:
(i) the approach adopted by the experts;
(ii) the facts the parties wished the expert to take into
account;
(iii) the evidential basis for the experts' expressed views and
reasoning as soon as possible and, in any event, if at all possible, before
each expert comes to give evidence in court.
This approach is regularly adopted at experts' meetings to
identify the matters in dispute between them and thus, for example, issues or
disputes as to underlying evidence or facts which it is said an expert should
have taken into account.
In my judgment, it is somewhat of a misnomer to describe an
expert as being cross-examined by the representatives of the parties who did
not take the lead in instructing that expert and that this is particularly the
case at the welfare or disposal stage in respect of an expert who is jointly
instructed or whose instructions have been agreed because it is at this stage
that the inquisitorial element or nature of the proceedings is to the
fore.
The exercise that the parties and the court is conducting
with that expert at the disposal stage has a large inquisitorial element to
it, because its purpose is to ascertain what would best promote the medium to
long-term welfare of the relevant child.
The exercise of raising the matters mentioned above with
the experts was not done in this case, with the result that, although through
the late delivery of the reports they have contributed to the problems, both
Dr. Vizard and Dr. Yates expressed, to my mind, some understandable annoyance
in respect of the arrangement of the times upon which they were required to
give evidence, the late request for production of videos of their interviews
and, in Dr. Yates' case, in respect of questions asked on behalf of TR of
which he had not been given notice and was not able to answer from his
memory.
As to the videos, it seems to me that a lesson to be learnt
is that if an expert videos interviews he should say so in his report and
should make those videos available unless he or she wants to raise a
particularised point as to why they should not be seen. As to any such point,
the comments I have already made on disclosure, confidentiality, public
interest and Convention rights are relevant. In my judgment, the general rule
is that such videos should be disclosed.
In this case, both Dr. Vizard and Dr. Yates were questioned
by reference to points where it was said that their reports were not
substantiated by the videos, or inaccurately set out what occurred. Some of
the criticisms were as to adjectival descriptions used in the reports and,
thus, matters of opinion and assessment. Neither Dr. Vizard or Dr. Yates had
seen the videos when writing their reports, which they had compiled from
contemporaneous notes taken by an observer and their memories.
It seems to me that they might wish to review their
practice in this respect because examination of the videos did show some,
albeit relatively minor, factual errors. Additionally, I would accept that the
videos provided ammunition for cross-examination as to the correct use of
adjectival descriptions in the reports. But, in my judgment, once the bases of
the approach to the interviews and assessments had been established (which was
effectively done without reference to the videos) this additional line of
attack was of limited use, because the videos did not give a picture of the
attitudes of all those present and assessment of the attitude of the boys is
very judgmental. Indeed, to my mind, properly and sensibly, lines of
cross-examination on that basis were not pursued at any length with Dr. Vizard
or Dr. Yates.
In my judgment, it should only be in an exceptional case
that a court is invited to watch videos of interviews conducted by experts
and, in any event, before it is invited to do so the relevant parts of the
video and the points that are sought to be made therefrom should be clearly
identified so that viewing time is kept to a minimum.
It follows that videos should be viewed well in advance of
the hearing and any points arising from them should be one of the matters
raised with the expert as early as is practicable.
The relevance of some of the questioning of Dr. Yates in
respect of his views concerning TR's care plan survived the decision not to
pursue the allegations of sexual abuse but was effectively overtaken by events
in that the local authority accepted many of the factual points being advanced
by both TR and the Guardian that were in conflict with bases for Dr. Yates'
recommendation.
In accordance with my views on the approach that should be
adopted towards experts, I consider that the points that were put in
cross-examination to Dr. Yates should have been raised with him earlier.
I accept that a number of these points had force and it
seems to me that if they had been put to Dr. Yates earlier they could have
caused him to change his recommendation, but even if they did not have that
effect outside the courtroom the parties would or should have had the benefit
of knowing why this was the case.
Given that what was being sought on behalf of TR was an
adjournment so that the advantages and disadvantages of him being placed with
specialist foster carers (as TR and the Guardian were advocating) or in a
therapeutic home (as recommended by Dr. Yates and advanced by the local
authority until late in the proceedings), an earlier discussion with Dr. Yates
could have led to such an adjournment and the costs and delays caused thereby
being avoided.
Lessons to be Learnt.
These appear above and included amongst them are the
following:
(a) All involved should consider with care the instructions to
be given to an expert.
(b) The expert should check that he or she can carry out and is
carrying out those instructions and should confirm this.
(c) All involved should consider and review the report of an
expert when it is received and, where relevant, raise points with the expert
and other parties relating to the performance of the expert's instructions,
his or her reasoning, the factual basis of his or her views and the
relevance of his or her views to the proceedings.
(d) All involved in giving joint instruction should take a full
part at all stages and thus attend meetings with the relevant experts, or at
least comment in respect of them.
(e) If an expert is not jointly instructed, those who do not
join in the instructions should nonetheless (i) consider how that expert
should be instructed and (ii) his or her report, and raise points on both as
soon as is practicable.
(f) If, as here, an expert has videoed interviews that fact
should be disclosed and the desirability of the expert reviewing the video
before completing his or her report and of the parties, if they wish to do
so, viewing the videos at an early stage should be considered.
There is little that is new in any of the lessons to be
learnt that I have referred to above in respect of the preparation of a case
and the instruction of experts.
The approach of the local authority following the decision not to
pursue the allegations of sexual abuse.
I accept that those representing the local authority were
under considerable pressure and had a great deal of work to do in respect of
the issues that arose relating to disclosure, but, in my judgment, following
the decision not to pursue the allegations of sexual abuse, the local
authority failed to reconsider their position in respect of the care plans
with sufficient urgency at appropriate levels within the local authority, or
at least to make it clear to the court and the parties that they recognised
the need for them to do this.
Rather, their initial decision was to lead evidence as to
the position of the local authority having regard to the changed circumstances
only through the social worker allocated to this case. That social worker,
understandably, gave evidence as to the views of her superiors that were at
least in part based on decisions that pre-dated the decision not to pursue the
allegations of sexual abuse.
I called for evidence from someone more senior. He came to
give evidence and, initially in answer to questions put by the local authority
and the first three respondents, said that in his view the decision not to
pursue the allegations of sexual abuse made no difference, because the local
authority believed there had been sexual abuse as alleged.
Later in his evidence, to my mind wisely, he modified this
view and it seemed to me recognised that he and the local authority had to
give further thought to the care plans and, in particular, to their approach
to this family and its individual members if care orders were made.
In my judgment, an important aspect of that reconsideration
relates to the approach that the local authority should take to each of the
family members having regard to the change in position. In my judgment, the
care plan should record what that approach is to be. I have set out earlier in
this judgment what I think that approach should be.
I am pleased to record that it is clear from the attendance
on behalf of the local authority when I am giving this judgment that this
matter has been considered at all relevant levels of the local authority
between the end of the case and the giving of this judgment. I was also told
that during that period amended care plans have been prepared, but I have not
had the opportunity of seeing them at this stage.
Further Use of the Reports of the Young Abusers Project.
As I have said, in my consideration of this case I have
ignored the reports of the Young Abusers Project. It is always difficult to
say never, but the local authority should, in my view, take the same approach
to them in their future dealings with the family and, in particular, in
respect of C and TR unless special circumstances require them to take a
different course.
If at any time it is thought that disclosure of the reports
of the Young Abusers Project might be useful, for example because they form
part of the relevant background and history, in my judgment they should not be
disclosed without my comments in respect of them that are contained in this
judgment being disclosed at the same time. In particular, through that
mechanism and others, it should be made clear to anyone to whom those reports
are disclosed what the bases of the approach of the Young Abusers were, namely
that they reached conclusions, or made assumptions, as to allegations of
sexual abuse which were in dispute before the court and which it was for the
court to decide within the context of these proceedings and no decisions
thereon have been made by the court.
At this point I propose to turn to the live issues in this
case, which seem to me to be matters that I should deal with in private rather
than in public and I shall therefore rise to enable that change to take
place.
LATER:
MR. JUSTICE CHARLES: I have an application for costs on behalf of
the first four respondents. There are significant differences between the
respective positions of these respondents but they have each had allegations
of sexual abuse made against them.
As I understand the position it was the allegations of
sexual abuse made not only by but also against TR which together with his age
led to him being separately represented.
The first point I make with reference to the submissions I
have heard as to costs is that, unsurprisingly, some points have been made to
me relating to the approach and thinking of the parties concerning disclosure
which did not occur to me when I was writing my judgment. When I am correcting
the transcript, I propose to incorporate into that judgment such of those
points as I consider to be appropriate. The parties will see when they read
the transcript how I have done that.
On the applications for costs points have been made by
reference to time spent by respondents, and the way in which the case was
prepared and perceived through the eyes of the respondents. In my judgment
great benefit is often derived from a matter being looked at from the
perspective of each relevant party, because each person brings something
special to a case. This benefit founds in part some of the points made in my
judgment I would accept the submissions made as to the likelihood that if the
allegations of sexual abuse had never been made leading counsel would not have
been involved on behalf of the respondents. One of the problems not mentioned
in submissions which seems to me to arise is that if in fact full and earlier
discovery had been made it does not necessarily follow that the allegations of
sexual abuse would not have been made in this case: the case may have taken on
different aspects.
But the underlying reality of this case in respect of the
applications for costs is that as I have described in my judgment allegations
of sexual abuse were made and then not pursued.
To my mind, as I said in my judgment, the primary
responsibility for the abandonment in these proceedings of those allegations
and therefore the waste of time lies with the local authority. As I said in my
judgment, others, it seems to me, notwithstanding what has been submitted to
me, had some duties and some responsibilities.
I am not attracted by an approach as advocated at the Bar
of trying to strip out involvement of leading counsel, strip out involvement
as to days.
I have had regard to the point the costs issue arises
between parties who are publicly funded albeit through different budgets. But
it does seem to me that I should reflect what I regard as the primary duty and
thus the primary failing in an order for costs.
I think the correct approach is to take a robust and round
approach to this without seeking to attribute and apportion in any particular
way. In taking that approach, I have regard to the fact that leading counsel
perhaps would not have been involved in this case on behalf of any of the
respondents, although I think that leading counsel might nonetheless have been
involved on behalf of the local authority.
It is a rough and ready approach. I have toyed with the
idea of making an order relating to days of the hearing, apart from the
opening day, and saying that it should be X number of days that are paid. I
have changed from that to think that I should order a percentage of the costs
of each of the first four respondents which covers additional preparation time
and the involvement of leading counsel.
It seems to me that the correct order for me to make in all
the circumstances is that the local authority should pay 25 per cent, of the
costs of the first, second and third respondents and should pay 15 per cent,
of the costs of the fourth respondent, which reflects the difference in
representation.
The Guardian, in my judgment very properly, makes no
application for costs.
I would also express the view, which can be conveyed, for
what it is worth, to the Legal Services Commission that this is an issue
between publicly funded bodies. They may, as a matter of discretion, wish to
take that into account in deciding whether or not they enforce this order
having regard to the circumstances of the case, the way in which legal aid is
granted in family proceedings and the effect enforcement would have on the
performance by the local authority of their duties to children.
