England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/06/2009

Mr Justice Mackay:

1. Between 1990 and 1995 B went through the most terrible experience that a father can face, being falsely accused of sexually assaulting his three year old daughter. In 1995 a court found that no such abuse had occurred and he began the process of re-building his relationship with the child, in these proceedings named L. He says that the effect of those five and a half years has continued to blight his life and claims that responsibility for it in law lies with a social worker and a police officer who together investigated the allegation in its early stages.
2. L was initially a claimant, but soon after achieving her majority she returned to live with her mother and in due course filed notice discontinuing her claim, having told her solicitor that she did not recall past events and wanted to get on with her life. She is now 22.
3. The history of this litigation, as has been said before, does little credit to those concerned with its conduct. The proceedings in the Family Court took no less than five and a half years and 23 days of hearings to reach the conclusion that B had not abused L, and that contact between him and L should resume. The Queen's Bench proceedings were begun by a writ issued in May 1998 and have taken 11 years to come to trial because of a combination of inertia, funding problems and heavy interlocutory activity involving two appeals to the Court of Appeal. This has meant that I am trying fact-sensitive allegations of great seriousness over a distance of 19 years. But before I deal with those facts in any detail there are issues of law I must decide, the answers to which will shape the case and the decisions I need to reach.

The background in brief

4. B is now 52 and met SJ in 1984. They formed a relationship, bought a house together and on 16 February 1987 their daughter L was born.
5. When L was 16 months old they separated, their relationship having broken down. For the first nine months or so B enjoyed regular contact with L by agreement, but further differences arose between B and SJ which resulted in that contact becoming infrequent and at times non-existent.
6. After a period of contact in January 1990 SJ began to raise the possibility that B had sexually abused L. That led to the events which have been the subject of intense and necessary focus in this trial. The outcome was that L was placed on the At Risk Register, SJ cut all contact between B and his family and L, and private and public law care proceedings began their slow course through the County Court. I will have to look in detail at what led to this process and the basis on which it is alleged that the current Defendants are legally responsible for it. But first the issues of law which I must address.

The Judgments of HHJ Kenny

7. HH Judge Kenny ("the Judge") was the Designated Family Judge who managed and heard two forms of process. The first was an originating application by B, issued on 20 May 1991 under the Guardianship of Minors Act 1971, asking that he be afforded access, as it was then still called, to L. The second was in the form of Public Law proceedings issued on 5 October 1993 under s. 31 of the Children Act 1989 by Berkshire County Council (the legal predecessor of the first two Defendants) seeking a care or supervision order in relation to L. These were consolidated and were the subject of an initial 10 day hearing culminating in an interim order made on 14 October 1993. The Judge adjourned the hearing, made an interim supervision order in favour of the local authority and an interim contact order in favour of B's parents at the discretion of the local authority and on the advice of the social worker. The judge expressed the clear but provisional view on the evidence he had heard up to that stage that he thought that B had not sexually abused L and if she had been subject to any sexual abuse it could not reasonably be attributed to him.
8. Plainly the Judge was hoping that that would resolve matters, but it did not. The case returned to him (the Judge having tried unsuccessfully in the interim to transfer it to the High Court) and in October 1995 another 14 days of evidence and submissions were heard. The issues which the Judge had to decide were defined by him as these:-

i) Whether B had sexually abused L in the past;

ii) Whether L should have contact with B or his family;

iii) Whether SJ's views on the issue of sexual abuse of L by B or the need to prevent him or his family having contact with L were honestly held or reasonable;

iv) If such contact would be in L's best interest how it was to be achieved in view of her opposition to it.

9. As to the first issue he found that he was sure that L had not been so abused by B, and that is the only finding that directly concerns me in this current trial. The Judge gave his reasons for this finding over 28 paragraphs of his judgment. It was the case, as is apparent from that judgment, that the only persons then contending that there was any evidence of such abuse were SJ and her mother (who was separately represented by counsel, I was told).
10. In the second of his two judgments the Judge made swingeing criticisms of Mrs Sullivan and WPC Grey, the social worker and police officer who had conduct of the initial investigation of SJ's complaints, in particular in respect of their questioning of L at an interview on 11 April and their reporting of their findings to the Case Conference. The meat of these criticisms is set out at Paragraph 36 of the Re-Re-amended Particulars of Claim and repeated by Astill J at paragraph 13 of his judgment.
11. On 19 December 2002 in these current proceedings the Claimants (L was still a party then) applied to Astill J for an order/declaration that they be entitled to rely on those two judgments as "evidence admissible in these proceedings and [as] being finally determinative of the facts stated in them". It was also sought to strike out certain passages in the defences inconsistent with those findings.
12. Astill J refused the application and no attempt was made to appeal his decision. There is therefore an immediately obvious problem. This is because I am urged by Mr Bowen for B to revisit his application, to say that Astill J was wrong and that the findings should be admitted. There are no new circumstances he has identified which might justify my overturning a decision of a judge of competent and equal jurisdiction to my own, apart from the fact that I have heard the evidence whereas he was proceeding on the basis of the pleaded cases. I was referred by Mr Warnock, for the Third Defendant, to CPR 29.9 and the decision of Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 Ch at [7] where he held that for the High court to revisit one of its earlier orders there must be shown to be "some material change of circumstances or that the judge who made the order was misled in some way". I agree with him that, absent material changes in the case, the court should not entertain an argument which could have been raised at the earlier hearing, for otherwise no interlocutory decision would be of any value, and the opposing party would never know the parameters of the case it has to meet.
13. I decided during the opening that I would defer this issue until I had heard the whole of the case, that I would look at the two judgments (as I have done) de bene esse and that in any event I would admit in evidence as hearsay, subject to weight, any parts of the evidence put before the judge in the care proceedings such as were shown or summarised to me and appeared to me to be relevant.
14. But the second objection to Mr Bowen's application is that I am satisfied that Astill J was right. The application was based on abuse of process, that it would be a collateral attack upon the judgment of the judge to re-litigate his findings in these proceedings, and on the cognate concept of issue estoppel because the issue had been litigated already between the same parties or their privies.
15. Mr Bowen said that either Astill J failed to understand, or he failed adequately to explain to him, the process the Judge had been engaged on and the link between that and these proceedings. He was relying on the principle explained by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at [31 A-F]; it is there described as a broad merits-based exercise, taking account of the public and private interests involved, and where the crucial question is whether a party is misusing the process of the court by raising an issue which could and should have been raised before.
16. I am as unimpressed by this line of argument as Astill J was. He understood Mr Bowen's arguments, and set them out at [17]. A number of authorities including Johnson were cited to him and he reviewed them. He concluded his decision in this way at [33]:-

"The reason that I find no support for Mr Bowen's submissions is that the essential question here is whether …. what the care judge said about the conduct of the social worker and the woman police constable can properly be considered orders, judgments, necessary elements or implied necessary elements in the care proceedings. In my judgment the answer is they cannot be so considered. The order made by the care judge was his answer to the question "what is the appropriate order, having regard to the allegations of abuse and all other matters?" He had to consider whether he could be satisfied that the child had been abused by the second claimant. He had to examine and pass judgment upon the spoken word and the demeanour of the child…in the second interview. In doing so he severely criticised the social worker and the woman police constable. It was not a necessary part of his decision making that he should do so. It was not a necessary part of his decision making to make a definitive judgment, incapable of future challenge, about whether they were professionally negligent. Although it is perfectly understandable that the judge stated his view about their conduct as he saw it, it was not a necessary part of his decision that he should do so. He could merely have said that he was not satisfied from the interview that the child had been abused. The question of professional negligence is wholly distinct from the care decision, concerned as it was with making an order in the best interest of this child" (emphasis added)

17. These words become even more relevant, in my view, when one considers, as is now the case (see below), that the issue now is not whether either of these women were negligent (though that was still a live issue when Astill J made his decision), but rather whether they acted dishonestly or in bad faith, abusing their positions as public officers. The necessary finding the Judge had to make, which I have emphasized above, was as far as he needed to go. It was irrelevant whether the two women's evidence was unreliable due to simple and venial errors of judgment, or want of care on their part, or gross negligence, or dishonesty. Before me there has been no issue as to the key question and it has been accepted in terms that B did not abuse L at any time. I have no finding to make that will cut across or contradict the Judge's central finding.
18. The sole focus before me over this six day hearing is what was the state of mind of the two women at the relevant time, something on which little or no time was or should have been spent in the County Court. Neither woman was legally represented as an individual, or was on notice that her good faith was being tried, let alone on what basis and what the exact allegations against her were. Had either of them applied to be separately represented to defend her actions and reputation she would surely have received short shrift. The notion that the care hearing could be used to establish conclusively against either of them that she acted dishonestly and in bad faith would in my judgment be to envisage the plainest breach of her elementary rights to a fair trial.
19. Therefore for both of the above reasons I decline to take the approach that Mr Bowen invites me to take and treat the Judge's findings of fact as admissible in these proceedings and thus determinative of any issues to which they relate. I propose to make my own findings based on the evidence I have heard and seen, assessing the witnesses I have seen, and considering their examination and cross examination directed as it was solely towards the issues in this litigation.

Claims in Negligence/Breach of Duty

20. There were two further interlocutory hearings in this matter, this time before Keith J, on 6 October and 13 December 2006. In the first he struck out those parts of the claim relating to the first and second defendants' alleged vicarious liability for breach of the social worker's duty of care owed to B. In the second he refused to strike out that part of the re-amended claim which alleged breaches of an alleged direct duty of care owed by the local authority to B, for what might be called in shorthand systemic negligence.
21. Both rulings were considered by the Court of Appeal in its judgment of 11 December 2007 – Neutral Citation No. [2007] EWCA Civ 1313. The Claimant needed permission to appeal against the first of Keith J's orders and was out of time. The Court of Appeal refused to extend his time and added that it would not in any event have granted permission to appeal, on the basis that an appeal would have no real prospect of success. The Court in reaching this decision had regard to the relevant passages in the House of Lords' decision in JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373, which for his part Keith J had analysed together with other authorities in paragraphs 25-31 of his first judgment, in which their Lordships held that the conduct of child care investigations by health and childcare professionals was not an exercise which should attract a duty of care actionable in private law.
22. The Court of Appeal did allow an appeal against Keith J's second judgment which covered the allegation in paragraph 43 of the re-amended particulars of claim that the local authority owed B a direct duty of care to take reasonable care in the practical manner in which its statutory functions under Section 1(1) of the Child Care Act 1980 and the Children Act 1989 were carried out. It was said that the duty required the local authority to have systems to ensure that there was a written policy as to the way in which assessments were to be carried out before findings of abuse were made, on supervision of social workers, on the maintenance and retention of proper case supervision records, proper training of social workers, supporting contact between parents and children, and participation of both parents in the child protection programme process even where one was suspected of abuse. Breaches of that duty were alleged at paragraph 51A, essentially failures to assess supervise and train. The Court again considered the guidance of JD and concluded that in that case at [33]:-

"…the approach of the majority seems to us to apply both to cases of vicarious liability and to cases of what may be called direct liability. We recognise that D is not binding authority for the proposition that the principles apply to cases of direct liability. However the dictum of Lord Nichols at [53]… seems to us to support the local authority's submissions that no duty is arguable owed on the facts of this case."

23. The court therefore held that Keith J was wrong on this issue and it should not go to trial. Its decision leaves the claimant, as Mr Bowen accepts, with only his claims for misfeasance and conspiracy against the first and second defendants.
24. So far as the police are concerned, they had made an earlier pre-emptive strike in an application made to Goldring J (as he then was) heard on 17 March 2000. That too was reviewed by the Court of Appeal on 12 March 2001 [2001] 1 WLR 1575. The Court upheld the decision not to strike the claim out so far as L was concerned, there being an arguable case on proximity in her case. However, it reversed the decision that, so far as B was concerned, there was not arguably such a case, and it allowed his claim in negligence to proceed against the police to trial. The exact basis on which and the extent to which it so decided are important. Otton LJ said at 1583G:-

"It is not necessary for this court to decide that there was in fact proximity, but merely whether it can be argued with a reasonable prospect of success that a situation of proximity did arise. It is true that the father was a suspect in a potential crime. He was interviewed as such. I would accept that at that stage there was no assumption of responsibility towards him as a suspect and that in that respect the relationship between WPC Grey and the father was one of conflict or potential conflict. However the matter did not end there. Although there was no evidence to support criminal proceedings WPC Grey nevertheless came to the conclusion that the complaint by L's mother was of sufficient substance that L was at risk of further abuse from her father. It is arguable, in my judgement, that from then on there was a legal assumption of responsibility and a special relationship between WPC Grey and the social worker on the one hand and the father on the other and that a duty of care arose to take reasonable steps not to damage the father by their subsequent conduct"

25. So far as the possibility of such an assumption of responsibility by the social worker was concerned the Court of Appeal in its 2007 judgment had this to say at [15]:-

"…try as we might we cannot understand how the relationship of conflict or potential conflict between WPC Grey or the social worker on the one hand and B on the other became one of assumption of responsibility after she came to the conclusion that the complaint of sexual abuse against the father remained such that L was at risk of sexual abuse from him. The natural conclusion is rather that a state of conflict or potential conflict continued to exist between them".

26. It is plainly for this reason that the Court of Appeal felt able to describe the proposed appeal in relation to the vicarious liability claim against the social worker as enjoying no real prospect of success. So far as the vicarious claim and the direct claim were concerned the Court held that the approach of the majority of the House of Lords in RD indicated that no duty was arguably owed to B on either basis.
27. In the postscript to their judgment, not forming part of the decision but of considerable interest to a judge trying this case, the Master of the Rolls concluded:-

"…we appreciate that the view we have taken of the submission that the social worker assumed a responsibility to B might encourage the police to re-visit that issue in so far as it related to them. Although the Chief Constable is not party to this appeal we discourage him from doing so. That is an issue which should be determined at the trial of the action….the assumption of responsibility issue as between B and the police is likely to take a very short time at the trial"

28. Alas, he spoke too soon. Mr Bowen devoted a significant section of his closing address, and a 24 paragraph skeleton argument, to this very issue. Indeed he encouraged me to go further than the 2001 decision appears to have allowed. Otton LJ in the passage cited, as we have seen, said that up to and including his interview as a suspect (i.e. 19 April) there was no arguable case of proximity or assumption of responsibility, but that it was arguable that "from then on" there was a "special relationship between WPC Grey and the social worker on the one hand and the father on the other and that a duty of care arose…". The 2007 decision as I have said has dismissed this proposition as unarguable so far as the social worker was concerned in the light of JD.
29. Mr Bowen argued that although he had conceded in his opening skeleton at [114-5], and in his oral opening for that matter, that earlier actions by WPC Grey fell within what he called the core immunity or principle recognised by the House of Lords in Hill v Chief Constable of West Yorkshire [1989] AC 53, he now submitted there are exceptional cases, of which this is an example, where the police behaviour is so "morally bankrupt", as he put it, and the facts so extreme that a duty should be imposed. He therefore invites me to be bold, and disregard the apparently binding decision of the Court of Appeal in 2001 and its heavy hints in 2007 and find that there was a duty of care on the police throughout. To the extent that he reminds me that the classical Caparo three stage test should not be treated in every case as an inflexible formula to be applied as if it were a statutory definition (my words not his) I acknowledge some force in what he says. But it remains an invaluable tool, a touchstone for identifying the existence and scope of a duty of care in a given situation.
30. In support of this submission Mr Bowen took me to authorities which indicate that the central principle in Hill, that the investigation of suspected crime is not a process which should attract a common law duty of care, is not set in stone and may admit of exceptions. He pointed to Brooks v Commissioner of Police [2005] 1 WLR 1495 where at [6] Lord Nicholls said that there might be "…exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law". Lord Steyn giving the majority view, having held at [33-4] that the protection of a witness to a serious crime was "inextricably bound up with the police function of investigating crime which is covered by the principle in Hill's case", thought it unnecessary to try to imagine "cases of outrageous negligence by the police, unprotected by specific torts" which could fall outside the principle. No decided case has been put before me in which such an exceptional circumstance has been found to fall outside the Hill principle.
31. Smith v Chief Constable of Sussex Police [2008] 3 WLR was plainly not such a case, and Lord Hope at [78] said that if a civil remedy was to be provided there had to be a more fundamental departure from the core principle than he could see in that case.
32. I am quite satisfied, given the findings I make below, that the actions of WPC Grey never stepped outside the boundaries of the core principle, and that everything she did was concerned with the investigation of an allegation of crime. I do not think the 2001 Court of Appeal decision can stand in the light of the current authorities, but even if it does it was only to the effect that it was open to B to argue that WPC Grey assumed responsibility to exercise care towards him in some way after 19 April 2000. There is nothing that she did or said, on the evidence I have heard, that could possibly constitute such an assumption. The case against the police, therefore, falls to be decided on the same basis as that against the local authority, namely whether B can show there was misfeasance in public office and/or a conspiracy in this case.

Misfeasance in public office

33. The ingredients of this tort are clearly set out in the well known decision of the House of Lords in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 167, by Lord Steyn at 191B – 193C. The Defendant must be a public officer, exercising a power as such, and (in the form of the tort relied on here, so-called "untargeted malice") acting knowing, or being subjectively reckless as to, the fact that she has no power to do the act complained of and knowing that the act will probably injure the claimant. The tort therefore involves subjective bad faith in the exercise of public powers, an element which is described by Lord Steyn as the "raison d'etre of the tort". Causation has to be proved by the claimant, and is subject to normal principles of remoteness of damage.
34. This is the tort which lies at the heart of this case. Mr Bowen conceded, rightly as it seemed to me, that he could not see any circumstances in which, if B failed to prove misfeasance, he would succeed with a claim of conspiracy to injure. The 2001 Court of Appeal decision at [39] to [41] set out what had to be proved to establish such a conspiracy and I do not propose to lengthen this judgment by repeating it here. It is time that I turned to the facts and the allegations based on them.

The Events of April 1990

35. This is the critical month in which the claimant says that the actions of the social worker and police officer, acting in abuse of their powers and or in a wrongful conspiracy were the cause of the wretched experience he was about to go through. Although wide ranging criticisms of the whole conduct of the care proceedings by the local authority were made, as being relevant to issues of causation, I must remind myself that the evidence which follows has to be considered in the context of the key remaining issue – abuse of powers in bad faith. This is not a claim in professional negligence. Mr Bowen invited me nonetheless to make findings an all issues which might become relevant should a higher court in this country or in Strasbourg alter our understanding of the law as summarised above and currently binding on me. I decline his invitation; I confine myself to the issues as identified above.
36. The first point I must stress is obvious but needs stating. I was hearing the evidence of these witnesses almost exactly 19 years after the events that are crucial to this claim. This is an entirely unsatisfactory state of affairs, but it has happened and so I have to consider the evidence with very great care. Obviously in such a situation documents generated at or near to the time are of prime importance. Equally obviously a witness who says repeatedly "I honestly can't remember now", or words to that effect, who may in another case be regarded with increasing suspicion, for that reason is in this case entitled to the greatest sympathy. Indeed a witness who claimed to remember the details of conversations or meetings over that distance in time ought to be handled with the greatest circumspection.
37. At all events the first relevant contact came on 5 April when a Health Visitor Sue Schofield made a referral to Sandra Sullivan, a social worker 38 years of age with nearly five years' experience of child protection work. At the relevant time she was working in the intake team which dealt with new referrals. 80% of her work was to do with children. This was an exceptionally busy time for her department; she remembered it being very stretched and almost overwhelmed as a team, as she put it. It would be not unusual for her to get 3-5 new referrals per week in addition to her existing work.
38. At the time when SJ and B's relationship broke up in June 1988 SJ had contacted the local authority for support and the Health Visitor spoke to Mrs Sullivan about her. SJ was described as having been a rape victim on two occasions in her teens, quite depressed and "half heartedly threatening suicide" (feeling suicidal but saying she would not do anything about it). She had housing and money problems following the split. It was left that SJ would be told to contact Social Services, which she did the following day, speaking this time to a different social worker.
39. On 1 August 1988 Mrs Sullivan chased the matter up with the health visitor. She was told that SJ had moved in with her mother, and that the last time she was seen she said she was "OK". A few days later came a report that SJ was dissatisfied with her last contact with another social worker, who had apparently told her she was being over-emotional. There was then no more contact with SJ for about 20 months. Mrs Sullivan accepted she probably would have read the two pages of the file before she first saw SJ in April 1990 and therefore it is argued that she should have been on notice that SJ was a psychologically vulnerable person. That may well be, but I suspect as a profile it would not be dramatically different from that of many of those Mrs Sullivan had to deal with, and later we will see the positive view of SJ as a mother expressed by her then GP.
40. The relevant direct dealings that SJ had with Mrs Sullivan in relation to L started on 5 April 1990 when the Health Visitor phoned her and said that SJ had taken L to the doctor after a period of access with B on 31 January. She said she had done so because L was "sore in the vaginal area and was upset and having nightmares". It seems that nothing came of this visit. L was recorded by the Health Visitor as again becoming upset after access "a couple of weeks ago" and she had told the health visitor that while in the bath L had said "Daddy hurt me. Daddy makes me bleed" and she seemed afraid of the bath plug, saying "Daddy puts it round my feet". SJ again said that L had been upset and was having nightmares. The health visitor told her she would have to involve Social Services, which SJ accepted and she also agreed to stop contact with the father. Mrs Sullivan noted that she needed to talk to SJ and her doctor and police and arrange a joint interview. This reaction is not criticised, nor could it be in my view.
41. The next day 6 April Mrs Sullivan telephoned SJ and elicited a history of the relationship and L's past contact with her father. She was told that from 8-12 January B had looked after L during the day while SJ was in hospital, and that since then L had been upset and reluctant to see B, which was why she had taken her to the GP at the end of January. She repeated to Mrs Sullivan what she had said to the health visitor namely that recently L had said that daddy hurts her and makes her bleed, had been upset and had had nightmares. Mrs Sullivan arranged for a joint interview to take place on the Tuesday 10^th in the morning. She contacted WPC Grey, with whom she had trained and worked on other cases before, to interview the child with her.

The interview at L's home on 10 April

42. The decision to hold the first interview at the home was one which she said depended on the circumstances of the referral. The child here was very young and the potential abuser no longer lived at the home. Mrs Sullivan is, as I find, almost entirely dependant for her recollection of this interview on a note she later made on a SSD 2.1 form, as it was called. It was suggested that she made that note immediately following the conclusion of the interview; she did not agree with that though she was not precise as to exactly when she had made it. It could, she said, have been up to a week later and it is quite possible that it was made at the same time as a note of the next day's meeting which appears on the same sheet. The original document might have cast some light on this but was not available for me to inspect. The only finding I can make on this issue is that the notes of both interviews were probably made at the same time, on a date between 11 and 25 April.
43. The note says that she had an initial discussion with SJ who repeated what she had been saying previously. They then saw L, with her mother in the kitchen listening in through a hatch. For quite some time L played with various toys and games without exhibiting any signs of stress. She then began to talk of Daddy hurting her saying he hurt her finger and he had smacked her bottom.
44. As the interview progressed L talked of and demonstrated a game she played with Daddy of a dog with a bone. She was the dog and was crawling around on all fours and said the dog had to eat the bone. One end of the bone was in her mouth but she couldn't say where the other end was. She talked about her fear of spiders. She also said she had to help daddy go to the toilet sometimes and he had to help her – he says she's the baby.
45. This was a very different interview, she said, from the video interview which followed the next day. Mrs Sullivan said, and I accept, she started it with an open mind. She thought she would have pre-read the Social Services file on SJ. L was in her own home, was more relaxed and had more space than at the police station on the following day, where the video suite struck me as pokey and cluttered. With a child as young as L, only just three, it was a not unreasonable approach to set up an exploratory meeting in her own home, although the practice at the time leant slightly against that and against repeat interviews as well. L was able to play without any restraint and went off at times to her room to collect toys. The two women asked a very limited number of questions. She regarded the meeting as exploratory from her point of view. I accept her evidence about this interview.
46. It was probably, I find, because of the supposed exploratory nature of this meeting that no notes were taken at the time. I accept it would or might inhibit a child for those present to be seen to be writing down what she was saying. Nevertheless there should have been a note taken, as Mrs Sullivan now accepts, if not at the time then shortly after it concluded, and not to have done so was an error of judgement. She said that the interview developed in a way they had not predicted. But at the end of that interview she had she said an honest belief that L had been abused by her father B. She said that if the evidence had stopped at that point she would still have recommended that L's name go on the child protection register.
47. WPC Grey said her view at the end of this interview was that due to her behaviour and what she demonstrated she was concerned that L may have been abused, principally because of the dog and bone game she played. She remembered L putting a pen in her mouth. Mrs Sullivan did not recall this. I think Grey confuses this with something L did the next day when Mrs Sullivan prompted her. In cross examination she said at the end of it they both agreed there was cause for concern and they should investigate further. With an older child they would she thought have gone straight to the video stage, but she had never done a video interview with a child as young as L before. Was she a believer, she was asked, and she said she did believe in the sense that she had concerns that L may have been abused to some degree, strong concerns as she later put it.
48. At the end of her note Sullivan said in view of her age and the fact that "a lot of her disclosure involved her body language" it was decided with her mother's consent to repeat the interview on video. It was suggested to the two women that they led SJ to believe, as they left the house that day that there was no doubt that abuse had taken place. I accept their evidence that this is not something they are likely to have said. SJ could hear and to some extent see for herself what L had disclosed that day. But I do find that both women were concerned, albeit that no clear picture had emerged, that there was a real concern that B had sexually abused her, and that conviction was held rather more firmly by Mrs Sullivan than Grey.
49. In opening the case for B Mr Bowen said that this "might have been" a bona fide interview, that he was not alleging misfeasance up to this point (i.e. its conclusion) and it was not a part of the case on which he needed to rely. But he says that Sullivan and Grey became "believers" after this meeting, and that this informs and illuminates what they did thereafter.
50. I find that the meeting of 10 April was, with one exception, a properly conducted and appropriate approach to the problem that had been presented to the Social Services Department, that at the end of it Sullivan and Grey were entitled to and did consider in good faith that there was good reason to believe that L had been abused by her father in some way, albeit it was not possible to say what form it may have taken, that the matter needed further investigation and SJ would have been made aware by them of their views that day, if only to justify the next step they proposed. The failure to take a note at or nearer to the time of the interview was the only element of substandard practice I can detect in relation to this meeting.

The interview at the police station 11 April

51. That the two women were genuinely concerned is supported by the fact that the video interview was arranged for the very next day, the 11 April. They must both have had to put other work aside to accommodate this, demonstrating the importance they attached, rightly in my judgement, to taking this further step. There has been an intense focus on this interview, the whole of which I have watched more than once and of which I have a transcript. The overall verdict on it must be that it was a deeply flawed and unsatisfactory process in a large number of ways, and there is no doubt that viewed overall it failed by a clear margin to comply with the guidelines and practice that should have been followed by those concerned in child protection, even at this early stage in the use of such evidence-gathering techniques. Both had been on a five day training course, which included the then novel use of anatomically correct dolls. Grey was to say in evidence that she thought this was not enough, and I believe she was right. There can be few more difficult tasks in their work than trying to ascertain whether a child of this very young age has been abused by a family member
52. However, at the very outset of the interview, after the preliminaries, and before persistent and pervasive leading questions had rendered what she said valueless as evidence, it is interesting to note what L's first words were. She was asked whether she could remember "what we talked to you about yesterday" and she said she could.

Question: What did we say yesterday?

Answer: Daddy hurt me.

She then went on to indicate, as it would seem (the quality of the picture is far from good), her backside as the area where he had hurt her. This was not in itself an allegation of sexual abuse, and it is accepted as is plainly the case that there is no disclosure of such abuse throughout the 30 pages of this transcript and the hour and a quarter that the interview lasted. But it is a cross-reference point which confirms the reliability of one part at least of Mrs Sullivan's note as to the 10 April.

53. Mrs Sullivan accepted the proposition that they had what Mr Bowen called an "agenda" at the outset, but she said it was to capture on video those things of significance which L had said on the day before. They both, I am satisfied, regretted the fact that they had not been able to record the previous day's meeting since much of their concern had arisen from the body language of L on that occasion and the play that they had observed. Mrs Sullivan said that they were attempting to encourage L to repeat the play that she had done for them the day before, and accepted that she felt under pressure in that respect. As she put it they were hoping she would repeat it and they became increasingly anxious to help her recreate that, because they were concerned that she could be exposed to further harm. What was in their minds, she said, was the consequences of their actions on L's welfare. At the time, she said, she did not believe she was behaving improperly, but rather she was securing the protection of a young child. She was conscious that they were "pressured" to get the information because she was concerned that they ran the risk of exposing L to potential further harm; that was her overriding concern, she said repeatedly in her evidence.
54. She did not believe that at the time they did the interview that she recognised they were not following best practice or were acting in any abusive or improper way. Their concerns were that they were not enabling L to recreate what was disclosed the day before. There were some moments when we felt we were getting closer, she said. One of these, I believe, can be seen at 26G of the transcript. Mrs Sullivan says to WPC Grey, at a time when L had left the room temporarily, "We are getting close". Whether she was right to form that view I very much doubt. But it is good evidence that that is what she at least thought at the time
55. It was put to her, correctly as it seems to me, that there are occasions where they seem to have ignored responses from L which contradicted their view that the dog and bone game was in any way sinister. They asked her if it was a naughty game and she said no. They asked if she played it with Mummy and she said yes. Mrs Sullivan said she accepted all the shortcomings and all the criticisms of this interview but said that when they did what they did she did not believe that she was behaving improperly but that she was securing the protection of a young child.
56. WPC Grey said she thought the standard of the interview was "poor, and it deteriorated". Her recollection was that right at the end, when in my judgement the process had become entirely chaotic after SJ's entrance, and when the three women bombarded L with heavily leading questions, including the suggestion that Daddy had put his willy in her privates, and when the child became seriously distressed and howled, it was then, she believed, she saw L put the dolls on top of each other in a significant way. I could not see that, though as I have said it is a poor quality picture, and nor could she when she watched it through in court.
57. Her main concern was for L, she said, and she thought she would have been failing in her job if they had not investigated the matter further. She was a very different child from the day before, withdrawn where previously she had been quite relaxed. She did not feel under pressure to "come up with the goods". She would just move on to her next case, and quite often you don't get it, she said. Though she did not feel personal pressure to get disclosure she did find the interview itself extremely difficult and emotionally draining. She sought to justify the long passage involving Mr Badger, the spiders, and L being pressed hard to tell her "secret" to the toy, on the basis that they were trained that abusers do threaten children to force them to keep the abuse secret by saying that disclosure will harm their parents.
58. The issue for me to decide is not whether this interview was conducted in accordance with good practice at the time. There is no doubt that it was not, albeit I have heard no argument or evidence to the contrary, negligence not being a live cause of action. But it seems to me that it went on far too long for a girl of barely three. It was plainly, at times, oppressive to the child herself who in at least the final third of the interview exhibits distress from time to time. It was persistent and coercive. Worst of all at the end SJ was allowed to participate and to contribute increasingly leading questions culminating at page 29 of the transcript in a deplorable situation, where all three women bombard L with grossly leading questions about where daddy put his willy. L (who is eating an orange at the time) merely responds by saying "another one", which Mrs Sullivan misheard and said "up her bum?" and when corrected said "I got carried away".
59. I find that the bad practice which pervades this interview was born of a shared concern that L had more information she could have given them indicating sexual abuse by B; that she had begun but not completed the process of giving it to them the day before; that they failed to carry out that first interview in a way which captured that evidence properly; and they were losing the opportunity to recreate it on this second occasion, which made them increasingly desperate to press L to confirm and make clearer what she had disclosed to them the day before. But I accept that they did what they did with only one purpose in mind, namely the protection of L's interests and welfare.
60. Counsel for the Defendants argue, rightly as it seems to me, that the Claimant has to satisfy me on a balance of probabilities that in evidence both Sullivan and Grey were lying when they repeatedly professed that everything they did was motivated by a desire to protect L from the risk of further abuse as they saw it. They were both robustly and properly cross-examined on the basis that they were lying, and that their object was to create evidence incriminating B. Neither was compelled to make any concession on this crucial issue. I cannot accept that there was any such attempt on their part. They would have known that SJ was watching and, more to the point, that the interview was being recorded and therefore that any attempt at fabrication or invention on their part would be exposed. I accept they were both essentially truthful and reliable witnesses on this issue.

Events following the two interviews

61. After these interviews were over the two women must have discussed what they had achieved, and the position they had reached, but neither now had any recollection of what was said.
62. The note that Mrs Sullivan entered on the SSD 2.1 form about the 11 April said that it had proved quite difficult for L to disclose any abuse but that she had repeated some of the dog and bone game, that she was able to say "with help and prompting" that she was afraid to tell of the games because of spiders and "she ultimately disclosed daddy put his willy near her privates and then she collapsed and sobbed for sometime".
63. How could she have said this? L certainly does not appear to say anything that could be construed as such an allegation, even in response to prompting. Mrs Sullivan was at a loss, saying merely that she genuinely believed that she had heard or seen this at the time, but agreed that on watching the video again she could not see or hear it. WPC Grey in her own later report to her superior dated 28 April said the same. It is likely in my judgment that she communicated her belief about this, which I find was both mistaken and genuine, to Mrs Sullivan at some stage after the interview and before Mrs Sullivan made her note.
64. The following day 12 April L was taken to see a police medical examiner, Dr Stroud, together with her mother Mrs Sullivan and WPC Grey. The alerting symptoms are described as "child woke screaming in the night 'don't like daddy, daddy touched me'", and the story was that at "previous interview it was thought that she may have been subjected to oral sex" (my emphasis). He examined her and could find "no definite evidence [of] sexual abuse". I find that the history is likely to have come from the mother, save for that part which related to the "previous interview" which must mean that of 10 April, which will have come from either Sullivan or Grey. I accept Mr Malloy's evidence that Dr Stroud, whom he had known for three years as his own family doctor and as a participant in Case Conferences about children, was an experienced professional who would form his own opinions and knew his own mind. He regarded the notion that he would have been persuaded by a social worker to find abuse as "ridiculous"
65. On 14 April WPC Grey took a CJA witness statement from SJ which repeated and added to the complaints she had made to Social Services prior to the first interview. She now said that in January L had said Daddy touched her on her chest and bottom. When SJ asked if he had touched her privates L had become panicky and denied it. The next day her vagina was sore and on inspection was "red raw", so she took her to the GP, whose findings were later shown to be entirely inconsistent with such a description. This is an assertion, plainly untrue as it now appears, that was repeated by her and her mother with increasing vehemence throughout the care proceedings. In the weeks that followed, the statement continued, L said things like "Daddy touched my privates", despite which she was reluctant to involve social services until she contacted the Health Visitor on 6 April.
66. On 19 April B was arrested and taken to the police station and interviewed for 1 hour 17 minutes under caution without a solicitor. He stoutly denied all allegations and was released. He was subsequently told that he would not be prosecuted in respect of these allegations. It is suggested that the interviewing officer WPC Grey lied in that she said they had had L medically examined and that they had "some evidence" to say that what he was saying was not the truth. I accept that the transcript is correct and that she did not say that they had medical evidence to that effect. It is suggested that she was either lying to B or trying to trick him into confessing, and that this showed bad faith on her part. I accept her explanation that she meant by "some evidence" the evidence other than the medical evidence, which she knew did not support the allegations. I cannot accept B's evidence that Grey had said when she arrested him at his home that they had medical evidence. It did not appear in any of his three witness statements and would have if it was as important as he now believes it to be. No possible criticism can therefore attach to his arrest and interview, nor is there any claim for damages for wrongful arrest or false imprisonment in respect of it.
67. I am not satisfied that Grey told SJ after the interview that B was as "guilty as hell" and was only not being prosecuted because of a legal loophole. It would have been an absurd thing to have said. Nobody called SJ as a witness, for understandable reasons, but I believe I am entitled to find that she had probably formed, at the latest by the end of the first interview, a clear view that B had abused L and was in no way dependent on the views of others to confirm her in that belief. Her enthusiastic participation on 11 April in the questioning of L, her statement to the police, her immediate broadcasting of the allegations to B's friends and associates, her later habit of openly discussing L's abuse by B in L's presence, her implacable belief in the face of the evidence and even after her own counsel accepted in court in 1993 that there was no support for it, all paint the picture of someone who needed no encouragement from either Sullivan or Grey to form those views.

The Case Conference of 25 April

68. On 25 April there was an initial case conference at which the health visitor, a senior nurse, Mrs Sullivan , SJ's GP, Sergeant Kelleher from the Thames Valley Police, a local authority solicitor, and Dr Stroud attended. It was chaired by the acting child protection co-ordinator Mark Malloy. The health visitor explained the background. Sandra Sullivan described the disclosure on 10 April; this time, in contrast with her earlier note, when describing the dog and bone game she said that the other end of the bone "was attached to her father". She had not, as I find, seen the video by the time of this meeting, but described the 11 April interview in terms broadly consistent with her note on the SSD 2.1 form.
69. Doctor Stroud's contribution to the conference was to describe his examination and to say that he felt sure she had been abused, that penetration of the vulva was not the only form of abuse of a small child and he could find no physical evidence which would stand up in court as proof. Sergeant Kelleher (who must have discussed the matter with WPC Grey) said that B had been arrested, interviewed and denied all the allegations, at which he had appeared to be horrified, and he had been released as there was no evidence against him. He told the conference that there were other men in SJ's life to whom L referred as Daddy.
70. Mrs Sullivan then made a further contribution, describing the problems that SJ had told her about on the initial referral, and saying L was "still a very distressed child exhibiting worrying behaviour including curling up in a corner and crying and having nightmares". She said she was in no doubt that the "Daddy" referred to by L in the interviews had been B. Doctor Brock who was SJ's GP and L's described SJ as a good parent who would do anything she could to protect L.
71. The conclusion of the meeting was that SJ had acted appropriately to protect L and that L's name be placed on the child protection register but that legal proceedings were not appropriate.
72. Where did Mrs Sullivan get the notion about 10 April that the other end of the bone was attached to the father? She cannot give an explanation other than that it was a mistake on her part. It does not appear in her more contemporaneous note of the relevant interview. I find that she probably read that note in preparation for the conference, and common sense would suggest, and I find, she would have taken her notes with her to the conference, even though she said that she couldn't say whether or not she did. With this one exception there is a reasonable match between the earlier note and the minute. There are therefore as it seems to me these possibilities.

i) The minute is wrong. Mr Malloy said the meeting lasted about an hour and a half, so the two page note is quite compressed. Mrs Sullivan did not deny that the draft would have been circulated and she would probably have read it.

ii) She deliberately and dishonestly added it, knowing it had not been disclosed by L, to make sure that the conference would cause L to be placed on the register, and to brand B as the perpetrator of the abuse (the case that Mr Bowen put to her and she denied).

iii) She was mistaken, as she herself surmises, though it is not easy to see how this could have come about.

iv) That she gave the account of the game as per her original note, someone present questioned the significance of the game and its possible or supposed connection with sexual abuse, to which this was the answer.

73. The problem with the fourth possibility is that it was not explored with either Mrs Sullivan or Mr Molloy in evidence, though it is doubtful whether they could have thrown much light on the point at this distance in time. Of course the issue is not which possibility is probable, but whether B has proved that the probable explanation is (2), i.e. it was deliberate dishonest misrepresentation by SS. I am not satisfied that it was. If it was her aim dishonestly to manipulate the conference and beef up the evidence implicating B, in a dishonest conspiracy with WPC Grey there were much better ways of doing it than this, not least SJ's witness statement. But the dog and bone game was bizarre, and of course only had any significance if the bone was in reality B's penis, and some explanation or interpretation may have been needed or called for. I regard her as a truthful witness and accept her denial that she was trying to deceive or manipulate the meeting by using these words.
74. The two women had no further contact with L's case which passed into the hands of others, with one exception. They were asked by Mr Malloy to re-interview L and did so on 25 June, no key worker having been appointed to take the case forward by that stage. This was a rather bizarre interview, in which L appeared to describe penile penetration of her by Daddy and other physical abuse, but is plainly showing signs of SJ's influence over her, something which became a great problem in the care proceedings. At all events Mrs Sullivan advised that there was no evidence in it of abuse, as to which she was not challenged in cross examination, and thereafter played no further part in L's case. When WPC Grey came to be questioned Mr Bowen suggested that this final interview showed them ignoring the possibility that another "Daddy" was the abuser as it did not fit with their fixed idea that they had already identified B as the true suspect She said, and I agree, that L was by this stage confused over who "Daddy" was and that she did not regard this last interview as further evidence, nor does it seem to have been treated as such by anyone as the matter progressed over the ensuing months and years.

Conclusions

75. My conclusion is, therefore, that the claims of misfeasance and conspiracy are not proved. The essential ingredient of bad faith is nowhere to be found in the actions of Mrs Sullivan or WPC Grey. They did not believe they were acting beyond their powers, nor were they at any stage subjectively reckless, knowing that there was a serious risk that their actions would cause B to suffer loss, but choosing to ignore that risk and to carry on. They made a bad misjudgement in what I find was a bona fide exercise, but it is sadly in the nature of risk assessment, which this process in effect was, that errors in both directions will be made. The problem L and her mother presented was a very difficult one to assess, and they got it wrong, as the Judge conclusively found. But I am not persuaded by the Claimant's arguments that the irresistible inference from the facts I have found is that a finding of untargeted malice is one I should make. Indeed I am positively satisfied that these two women were telling me the truth, and that they were doing the best they could, as they saw it, to protect this child. The claims in misfeasance and conspiracy must therefore fail.
76. It is not, therefore, necessary for me to consider either causation or quantum given these findings. There are very difficult issues relating to causation in particular, which was not explored as fully as it might have been due to the understandable concentration of the parties on breach of duty, which more than consumed the time allotted for the hearing. I am very grateful to all counsel for their considerable assistance.