Tag Archives: Evidence

Summary of the law to be applied in a finding of fact about suspected injury to a child

Burden and standard of proof

The burden of proof lies with the local authority. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred (Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15]. There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not happen [Re B at paragraph 2]. The standard of proof does not shift according to the seriousness of the allegation, nor the inherent probability or improbability of an event occurring. See Baroness Hale in Re B (Children)(Fc) [2008] UKHL 35:

The standard of proof is the balance of probabilities (Re B [2008] UKHL 35).

Do not speculate and do not reverse the burden of proof

Findings of fact must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)[2011] EWCA Civ 12:

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.”

Findings of fact must not be based on hypothesis. The Court must avoid speculation, particularly in situations where there is a gap in the evidence. As stated by Munby LJ in Re A (Fact finding hearing: Speculation) [2011] EWCA Civ 12 at (26)

It is for the Local Authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof.

Lancashire v R [2013] EWHC 3064 (Fam), ‘there is no pseudo-burden upon a parent to come up with alternative explanations’ [paragraph 8(vi)]. Having heard all the evidence it is open to the court to conclude that the evidence leaves it unsure whether it is more probable than not that the event occurred and accordingly, that party who has the burden of proving that event has occurred has failed to discharge the burden – The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shiping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948. The fact that the local authority relies on the lack of a satisfactory explanation for the injuries does not amount to a reversal of the burden of proof – Re M-B (Children) 2015 EWCA Civ 1027, [2015] All ER (D) 135.

Consider all the evidence

When considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

Reliance on expert evidence

Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.

The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S[2009] EWHC 2115 Fam)

In Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263 at paragraph 23. Butler-Sloss P –

The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

Recurrence is not in itself probative.
caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.’
The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’

As observed by Hedley J in Re R (Care Proceedings: Causation)[2011] EWHC 1715 Fam:

“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

Evidence of the parents/carers and the impact of lies.

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

As observed by Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam) (citing Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, per Lord Pearce and A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30]) ‘The assessment of credibility generally involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actuallyhappened is unlimited. Therefore, contemporary documents are always of the utmost importance’.

It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720). In Re A-B-C (Children ) [2021] EWCA 451 Macur LJ provided updated guidance on the assessment of credibility.

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at [40], in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything”.

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials.

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1. A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.

The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

56. In Re H-C (Children) [2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said: “99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion

57. To be clear, and as I indicate above, a ‘Lucas direction’ will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe A or B on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness’s reliability of recall on a particular issue.

58. That a tribunal’s Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.

Pool of perpetrators

When seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA[2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool. (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161)

The further point, made in Re D (Children) 2009 2FLR 668 above and endorsed by the Supreme Court in Re SB (Children) 2010 1FLR 1161 above that, in circumstances where it is impossible for a judge to find on the balance of probabilities that Parent A rather than Parent B caused the injury and neither can be excluded from the pool, that ‘the judge should not strain to do so’ was expressly rejected by the Court of Appeal in Re A (Children) (Pool of Perpetrators) 2022 EWCA Civ (decided on 17 October 22).

In Re A (Children) (Pool of Perpetrators) above, at pr. 34, King LJ says as follows:

‘I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.’

In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 the correct approach to the concept of the ‘pool of perpetrators’ was reiterated. Jackson LJ says:

48. The concept of the pool of perpetrators should therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2). Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to ‘exclusion from the pool’: see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof.

49. To guard against that risk, I would suggest that a change of language may be helpful. The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?” Only if there is should A or B or C be placed into the ‘pool’.

Finally, when the court is considering failure to protect there must be a connection between the facts found and the risk alleged in the form of evidence that the parents knew or ought to

Guidance on witness statements in family proceedings

President’s Memorandum: Witness Statements 10 November 2021

1. Too many witness statements are prepared in breach of proper professional standards.

2. It is clear that this problem is not confined to proceedings in the Family Court. It has become so acute in the Business and Property Courts that it has been necessary to pass a highly prescriptive Practice Direction – CPR PD 57AC – to seek to deal with the problem.

3. I do not consider that the Family Court needs an equivalent Practice Direction, at least not at the present time. However, the Family Procedure Rule Committee will have to consider introducing such a measure if the principles in this memorandum are not observed.

The fundamental requirements

5. Witness statements must only contain evidence from the maker of the statement.

4. Witness statements tell the parties and the court what evidence a party intends to rely on at a final hearing. Their use has the key added benefit of promoting the overriding objective by helping the court to deal with cases justly and proportionately, including by helping to put parties on an equal footing, saving time at the final hearing and promoting settlement in advance of the final hearing.

6. The statement must be expressed in the first person using the witness’s own words (PD 22A para 4.1).

7. A witness statement must not: a. quote at any length from any document; b. seek to argue the case; c. take the court through the documents in the case; d. set out a narrative derived from the documents; e. express the opinions of the witness; or f. use rhetoric.

Facts, information and belief

8. A witness statement may only set out matters of fact and matters of information and belief (para 4.3).

9. Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen). A statement may state only those matters of fact of which the witness has personal knowledge and which are relevant to the case. The statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about needs, will be matters of information and belief. Therefore, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

Documents

11 a. The statement must identify in a list appended to it what documents, if any, the witness has referred to, or been referred to, for the purpose of providing the evidence set out in the statement. b. The statement should identify or describe the documents in such a way that they may be located easily at the final hearing. c. Documents disclosed in the proceedings should be listed by disclosure reference (e.g. “reply to questionnaire bundle at page 75”). Such documents must not be annexed to the statement. d. The requirement to identify documents the witness has referred to, or been referred to, does not affect any privilege that may exist in relation to any of those documents. Privileged documents may be identified by category or general description. e. Documents in the list which are not privileged and have not been previously disclosed must be disclosed at the same time that the witness statement is filed and served.

Memory

12. A person involved in preparing the statement of a witness must not, subject to the next paragraph, in any way seek to alter or influence the recollection of the witness. This is a rule of fundamental importance, breach of which will be serious professional misconduct.

13. However, the memory of witnesses may be refreshed by showing them a document which they created, or which they saw while the facts stated in the document were still fresh in their mind. Any such document must be listed under para 11.

14. Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3. This states that human memory: a. is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but b. is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore c. is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration. A person involved in preparing a witness statement should keep this very clearly in mind and, therefore, be wary of categorical statements about past events unless those events are corroborated by contemporaneous documents.

Length of the statement

15. A witness statement must be as concise as possible without omitting anything of significance.

16. As a general standard, a witness statement should not exceed 15 pages in length (excluding exhibits). This page limit is a statement of best practice and does not derogate from the limit of 25 pages in PD 27A para 5.2A.1, which should be regarded as a maximum.

Sanctions

17. The court has a power under FPR 22.1(2) to exclude evidence that would otherwise be admissible. The court will consider excluding under this rule a witness statement which materially fails to comply with the standards in this memorandum. The court also has power under CPR 44.11(1)(b) to disallow the costs incurred in preparation of a non-compliant witness statement.

Template for LIPs in non-complex private law welfare cases

18. A useful template for use by Litigants in Person in non-complex private law welfare cases is attached to this memorandum. Its use in such cases is optional, but is strongly encouraged.

19. It should be noted that a guide for LIPs litigating in the Family Court will be prepared in due course.

‘Similar Fact’ evidence in family cases

This is a post by Sarah Phillimore.

The case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 is of interest to family lawyers for its technical examination of when ‘similar fact’ evidence should be allowed in family cases.

But it is also of wider interest for how it illustrates what I argue are the primary reasons family cases go off the rails – not because Judges and lawyers ignore or don’t care about issues of violence and coercive control, but because lack of judicial continuity and legal aid inevitably cause chaos.

Background to the proceedings

The parents were in a relationship from 2013 to 2017. After they separated, the father made application for contact. The proceedings soon became a ‘procedural muddle’; there was no judicial continuity, with at least 15 different judges involved, and six attempts at a finding of fact hearing to determine the truth or otherwise of the mother’s allegations. The parties had ‘inconsistent or non existent’ legal representation throughout 2019.

In 2018 the father began a relationship with Mrs D. She was involved in court proceedings in Wales regarding her children and their father, Mr D. The court in Wales ordered a section 37 report which raised serious concerns about her children’s welfare and the nature of her relationship with the father. On the advice of the police, the Welsh local authority contacted the local authority in London who were involved with the father’s contact application.

The report from Wales revealed concerning information about the degree of influence exerted over Mrs D by the father. In December 2018, the court in Wales removed the children from Mrs D’s care and placed them with their father. Mrs D did not engage with the local authority or make any efforts to see her children and the Welsh local authority concluded that the father had behaved in a coercive and controlling way towards Mrs D.
The mother asserted that the Welsh reports showed that the father had subjected Mrs D to the same kind of coercive control that had been directed against her.

By January 2020 the mother had secured legal representation and a three day finding of fact was listed for the summer. There was a pre trial review on June 24th, which was held remotely. There were serious difficulties in connection and the Judge ended up with limited time to consider the issues.

The hearing before the judge

With regard to the Welsh evidence, the Judge took the view that this had been excluded at a July 2019 hearing, and she was very critical of the mother’s solicitors for including this evidence in the court bundle. She pointed out that the reports contained hearsay and the father could not have a fair hearing if the reports were admitted on the assumption they were true.

The mother’s counsel replied that the father would have the opportunity to challenge the report’s contents but the Judge disagreed and was clearly exasperated that it was unclear which witnesses would be coming to court to give evidence. She wanted the fact finding hearing to go ahead. She permitted the mother’s own parents to be called as witnesses, but refused the mother’s application to rely on the reports from the Welsh local authority or the letters provided by Mr D and Mrs D’s parents.

The appeal – analysis of the admissibility of similar fact evidence

The mother appealed. It was argued on her behalf that the Judge was wrong to exclude this evidence as it was highly relevant, both to the fact finding hearing and to any welfare decision. The evidence concerning the father’s relationship with Mrs D and the D children showed a strikingly similar pattern of behaviour to that alleged by the mother. The judge did not consider their relevance at all, nor did she carry out the necessary analytical exercise in relation to admission or exclusion, despite having been referred to the legal principles. She was wrong to have regard only to fairness to the father when exclusion of such significant evidence would be unfair to the mother.

The Court of Appeal considered the relevant procedural rules, practice directions and case law to give general guidance to the approach a court should take when considering the admissibility of similar fact evidence in family cases.

The court has a broad power to control evidence and limit cross examination pursuant to the Family Procedure Rules 2010 para 22. Hearsay evidence is admissible in proceedings concerning children by virtue of the Children (Admissibility of Hearsay Evidence) Order 1993. Part 23 of the Rules includes provisions for the management of such evidence.

Practice Direction 12J applies when it is alleged or admitted or there is other reason to believe that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. Paragraph 19 of the Practice Direction contains a list of matters that the court must consider when making directions for a fact finding hearing in a case of this kind, including at paragraph (d) what evidence is required to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse.

The final report of the expert panel to the Ministry of Justice in June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases notes that a focus on recent incidents may fail to acknowledge a pattern of behaviour over a long period of time (page 55) and expresses concern about the limitations of Scott Schedules, which may tend to disguise the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking (page 94).

The need for the court to recognise patterns of behaviour was also discussed by Baker J in Re LG (Re-opening of Fact-finding) [2017] EWHC 2626 (Fam) at [27]

Similar fact evidence in civil cases was discussed In O’Brien v Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534. The court considered the two necessary questions for the court considering similar fact evidence which apply equally to civil and family proceedings.
• To be admissible, evidence it must be relevant i.e. it must be logically probative or disprobative of some matter which requires proof.
• If legally admissible, should it be admitted? This is a more difficult issue and requires an often difficult and sometimes finely balanced assessment as to the significance of such evidence in the context of the case as a whole. There is a possibility that such evidence could place a considerable burden on the party who wishes to challenge it, particularly if it relates to something that happened some time ago; documents may be lost and witness recollections fade.

The similar fact evidence in this case involved ‘propensity’ so the Court of Appeal went on to consider to what extent do the facts relating to the other occasions have to be proved for propensity to be established? That question was answered by the Supreme Court in the criminal case of R v Mitchell [2016] UKSC 55 [2017] AC 571.

In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.

The Court of Appeal also considered the family case of f Re S (A Child) [2017] EWCA Civ 44, where similar fact evidence was excluded on the basis that evidence about rape of a previous partner had only recently surfaced and the previous partner was not being called to give evidence. However, in the present case, the father was well aware of the allegations against him which were contained in professional reports.

Applying all these principles, the Court of Appeal were unanimous that the judge’s decision to exclude the evidence relating to the father’s relationship with Mrs D could not stand. The hearing had clearly taken place in very difficult circumstances but nevertheless, the necessary analysis required to determine the admissibility of the evidence was not carried out.

The ‘procedural muddle’

This is worthy of further consideration, which is set out at para 10 of the judgment. Perhaps most astonishingly was the role played by Mrs D as ‘MacKenzie friend’ to the father. It is difficult to understand how the court felt that could be appropriate in all the circumstances of this case.

Returning to the proceedings concerning these children, the issue of the admission of evidence relating to the father’s relationship with Mrs D was played out in an unsatisfactory way against the background of repeated attempts to hold a fact-finding hearing. In brief, the issue arose at four hearings before the one with which we are concerned on this appeal:
(1) In February 2019, the court ordered the mother’s solicitors to write to the court in Wales seeking disclosure of the two reports of the Welsh local authority and recited that the court was of the view that those reports would be of assistance in the current proceedings. The father was absent from that hearing.

(2) In May 2019, a deputy district judge directed the updating section 7 report from the London local authority in order to take account of the contents of the Cardiff reports, which had by then been received. The mother was unrepresented. The father sought a direction for the attendance of KS and she was invited to attend, though the court indicated that the fact-finding hearing would go ahead in any event. The non-molestation order against the father was extended. The father’s application for a continued non-molestation order against the mother (transferred from the North-West in February) was dismissed as being without merit.

(3) In July 2019, the parties appeared before the same deputy district judge. The mother was unrepresented. The order recorded that the court would not be assisted at the fact-finding hearing by the evidence of KS. What was meant by this was obscure until an email was discovered during the course of this appeal which showed that the father’s former solicitors had stated that they did not require the attendance of KS. Until then, the meaning of the order was disputed, it being suggested on behalf of the father that it showed that the court had excluded the Welsh reports.

(4) In September 2019, when the matter came before a district judge, both parents were unrepresented, with the father, bizarrely, being allowed to have Mrs D as his ‘MacKenzie friend’. The court recorded that the mother had sought permission to rely on the Welsh reports but that permission was refused on the basis that it had been refused at the July hearing and that nothing had changed.

Without judicial continuity, legal representation for parents, speedy fact findings and robust enforcement these cases are doomed from the outset and it doesn’t matter how many ‘Inquiries’ the MoJ hold or how many campaigners insist on further expensive training for Judges. Denial of this obvious truth is magical thinking at its finest and I grow very tired of it.

Judges don’t need ‘training’ about violence – they need evidence.

This is a post by Sarah Phillimore

Response of the CPR to the Family Inquiry into the courts response to domestic violence

I have commented critically on the nature of the Inquiry and the response of some such as Charlotte Proudman to what necessitates such an Inquiry – making the reasonable point that serious allegations require some kind of evidence.

I confess that I missed the initial call by a group of family lawyers into an independent review of how domestic abuse is treated in the family courts – reported here in Family Law Week on 29th May 2019 and here in the Guardian.

What happens when the starting point is ‘victim’?

The letter from the lawyers group is a detailed and clearly articulated statement of case that makes many good points. They say

There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.

This echoes the points made by Dr Proudman in her post for The Transparency Project. I commented that her experience did not reflect mine, nor that of the other family lawyers who commented via Twitter. We clearly see here the dangers of relying on one person’s subjective experience over anothers – as the tiresome but accurate cliche has it ‘anecdotes are not data’.

But there is something interesting going on. The group states:

We can say from our experience that Practice Direction 12J is often ignored or ‘nodded through’ without any proper risk assessment, leaving women and children vulnerable. Where a fact-finding hearing is listed, the victim is increasingly being told to limit the number of allegations that can be considered by the judge, meaning that there is not a full forensic and expert assessment of the risks. The impact of coercive control, emotional abuse, economic abuse and other forms of non- physical violence are routinely overlooked.

And its there in that use of the word ‘victim’. Clearly if your starting point is that anyone who makes an allegation of abuse is in fact a victim of that abuse then you are going to take a very different and probably negative view of a judge who takes another approach – as indeed every judge must. To deal with any family case on the basis that one party’s allegations are accepted as fact prior to any attempt to hear evidence about contested allegations is simply a denial of justice. It is wrong. Advising police, for example, that they must commence their investigations by ‘believing the victim’ has been rightly decried by the Henriques Report and caused much human misery and massive waste of public money.

The fact that anyone who alleges abuse is automatically a victim is embedded in the recommendations

A domestic abuse coordinator in each court appointed in order to specifically ensure that victims going through the court process are properly protected and all necessary measures are in place, to try to minimise the risk of further abuse through the court process.

And this is a real problem. It is my very clear experience, arising I accept from 20 years experience, not robust peer reviewed research, that while out and out lies made by women about abuse suffered are rare, exaggeration and re-stating history are very commonplace. Unkindness, cruelty, blinkered thinking, denial etc etc are qualities that I am afraid are demonstrated equally by men and women. I do not doubt that violence in relationships is a real and serious problem and I do not doubt that the majority of physical violence is perpetrated by men against women. But emotional abuse, ‘gas lighting’, unreasonable behaviour are common to both sexes.

Many of my cases chart a drearily predictable course. I will represent a woman who makes a large number of allegations, often over many years. There will be nothing by way of corroboration from either the police or the medical profession. There will be nothing by way of statements from family or friends. The relationship with the father has utterly broken down; often he will contribute to this by behaviour which can be measured objectively as selfish and unkind. But when the allegations encompass drugging, rape, serious physical violence and there is literally nothing before the court but the assertion of the ‘victim’ that this is is so – what do the lawyers or indeed anyone expect the courts to be able to do with all this?

The group make the following suggestion for reform:

Training for the judiciary to better understand domestic abuse, particularly the nuances and subtleties of abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.

To which I make the following reply. Judges don’t need ‘training’ to know what violence is. They live in the world. They know what violence is. What they need is evidence on which to base decisions. The family justice system simply is not set up to offer inquisitorial tribunals to unpick relationships that may span decades and involve considerable amounts of ‘nuances and subtleties’.

Conclusions – we need the data

This polarisation of the debate into women = victim and men = perpetrator and everything must then stem from that, has done real harm. We can see this in the actiivities of such groups as Fathers 4 Justice. it is easy to dismiss them as posturing idiots but the anger they feel didn’t come from no where. To simply remove men from the debate – as the Panel membership appears to do, Mr Justice Cobb as the lone exception – is to fuel this kind of anger and distrust to the detriment of us all.

It is a great shame as I agree with and think very sensible many of the recommendations made by the group of lawyers. Removal of legal aid has caused enormous problems. Findings of fact need to be held far more often and far earlier. But I don’t accept the problems in the system are due to ‘lack of understanding’ from judges about issues of violence. They stem more from the very clear understanding by judges of their duties to the Rule of Law and procedural fairness. These are concepts vital to any society worth living in.

The real problem for the FJS is that our judges do not have the infra structure to support them to make speedy and robust decisions. I accept that cases drag on and there is little by way of support either during or after the court process.

However, without establishing a firm factual foundation for investigation, any proposed ‘three month’ inquiry into all of this is clearly doomed. Because we just do not have a consensus about what is really going on. Groups support women will say false allegations of abuse are very rare, groups supporting men say entirely the opposite. Just what is the evidence about the rate of false allegations and how do we find this data?

The group of lawyers say, rightly:

There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.

What the group of lawyers recommend and I heartily endorse is this:

that robust recording of decision making is made by the Judge, and collated by an appointed court recording officer so that we can begin to assess the scale of the problem and so understand how we must deal with it.

This will be the only recommendation of the Family Inquiry that will make any sense at all. In my view. Nothing will change unless it can be identified and faced.

What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds ‘The Social Worker tells me my child has been hurt’.

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court.

The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.
If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observed:
“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

With regard to evidence provided by expert witnesses, the court should consider the following:
- First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
- Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, it is clearly a good idea to identify who has caused the injuries:
- to be as clear as possible about future risks to the child and how to deal with those risks.
- The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
- The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
- In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
- If the court identifies a pool of possible perpetrators the court should be wary about expressing any view as to the percentage likelihood of each or any of those persons being the actual perpetrator. (In the words of Thorpe LJ: “Better to leave it thus”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

It is very important to investigate all the surrounding circumstances thoroughly and not to risk reversing the burden of proof. The Court of Appeal commented in B (Children : Uncertain Perpetrator) (Rev 1) [2019] EWCA Civ 575 (04 April 2019) that it might be better to talk more about a ‘list’ than a ‘pool’.

Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess.

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

“A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …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.

“Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

Evidence not speculation

Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”. The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is ultimately the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370. [But note comment about ‘blind-siding’ below in Further Reading].

Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-

I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849. The identification of a pool of possible perpetrators is sometimes necessary in order to fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.

Hearsay Evidence

Unless uncontroversial, it must be regarded with great caution

It is a frequent complaint that care proceedings are unfair because the court relies largely or entirely on hearsay evidence. ‘Hearsay’ in law is evidence provided by someone about something said by someone else and it usually is not admissible evidence in court proceedings for the simple reason that it cannot be tested in cross examination – the person who actually said the thing that is relied upon is not in court. For example, a report from a foster carer or a teacher about what a child said is hearsay.

Under section 2 of the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules if a person wishes to rely on hearsay he must give advance notice to the other parties and explain why.

So why are proceedings involving children treated differently? Historically wardship proceedings in the High Court were an exception to the general rule that hearsay evidence would not be admitted. This is because in such cases the paramount consideration was the welfare of the children who were made wards of court, not the rights of the parties.

See Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203. The court said:

… wardship hearings are not subject to the strict rules of evidence and a judge exercising the wardship jurisdiction may admit evidence classed as hearsay which would otherwise be excluded.

The statutory justification for the use of hearsay evidence in care proceedings is found at section 96 of the Children Act 1989 which refers to evidence given by or in respect of a child. The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible “notwithstanding any rule of law relating to hearsay”.

Growing awareness of the impact on vulnerable witnesses of giving evidence has also impacted on the criminal courts – the Criminal Justice Act 2003 now allows for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case.

Tension between admissibility of hearsay and rights to a fair trial

There is clearly a tension between the demands for a fair trial process pursuant to Article 6 of the ECHR and the need to protect children. The Supreme Court in W [children] 2010 UKSC 12 commented:

The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

Courts must consider hearsay evidence very carefully

But it cannot be a ‘free for all’. The court is entitled to the best evidence that can reasonably be put before it. The judge will have to consider hearsay evidence very carefully, particularly if it is relied upon to prove a particularly serious allegation, such as sexual abuse. The court in re W in 1990 commented:

In wardship, therefore, the rules as to the reception of statements made by children to others, whether doctors, police officers, social workers, welfare officers, foster-mothers, teachers or others, may be relaxed and the information may be received by the judge. He has a duty to look at it and consider what weight, if any, he should give to it. The weight which he places upon the information is a matter for the exercise of his discretion. He may totally disregard it. He may wish to rely upon some or all of it. Unless uncontroversial it must be regarded with great caution.

In considering the extent to which, if at all, a judge would rely on the statements of a child made to others, the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, any knowledge, as in this case, of a child’s predisposition to tell untruths or to fantasise, are among the relevant considerations.

The most recent case to warn of the need to treat hearsay with caution is found in the judgment of the President in Re A (A Child) [2015] EWFC11, where he commented at paragraph 9:

…the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

Civil Evidence Act 1995

Section 4 sets out what considerations may have an impact on the weight of hearsay evidence

whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
whether the evidence involves multiple hearsay;
whether any person involved had any motive to conceal or misrepresent matters;
whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

A Social Worker’s perspective on the judgment in W (A child)

This is a post by Kate Wells a retired social worker, who sets out her views about the case of W (A Child) [2015] – an extra-ordinary judgment, both in its decision to refuse to make an adoption order and return W to her father’s care and also for the language used by the Judge to criticise the decision making of Judges, social workers AND the guardian. There is now an appeal lodged against this judgment and we will await further news.

I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests.

Dealing with the threshold criteria

The overarching concerns about the children’s safety and well being resulting from their mother’s chronic mental ill-health remained when the case came before the District Judge. Both parents accepted that the threshold criteria as set out in s 31 of the Children Act (CA) 1989 had been met which would allow the court to make care orders or supervision orders under the CA. The DJ had failed to set down the threshold criteria on which he was basing his decisions as to the children’s welfare. The learned judge said under the heading “Threshold” that:

The mother accepts the criteria are met. The father has made concessions also the majority of these [sic] and that the children have suffered emotional harm as a result of the parents’ relationship and the mother’s mental health and alcohol issues and his lack of awareness or insight of the stress he was under in December 2012. What he does not accept is the allegations in respect of the ‘toothbrush’ incident with [X] in November 2012 and the injury to [Z]’s ear in December 2012.
Insofar as the toothbrush incident is concerned, there is no medical evidence to assist. We have [X]’s account of how this came about, but true to say that she had in the past apparently said things had happened to her which were not in fact true. I am unable to find on the evidence that the father ‘shoved’ the toothbrush as alleged.
As to the injury to [Z]’s ear, there is no reliable medical evidence and one sees that [Z]’s evidence do in fact differ on occasions. I am unable to find evidence to support this allegation.
I am satisfied however otherwise the threshold is crossed.”
There are no details of that “otherwise”. Fortunately in reaching a decision as to W’s future welfare and placement I am not directly concerned with the threshold at the time the care and placement orders were made; indeed those orders are no longer extant as a result of the decision of the Court of Appeal. Importantly, in respect of W, no findings were sought or made regarding the baby falling off the sofa.

It would be interesting to know exactly what grounds the LA put forward to prove significant harm. Is there any way that this can be sought? I also wondered why there were no findings in relation to the baby falling from the sofa, at aged under 4 weeks, although the baby had been examined at hospital and no serious injury found.

Criticisms of the SW Evidence

The District Judge was very critical of the social worker’s (Ms Hendry) evidence calling it “unconvincing” and “totally focussed on one aspect namely the ability of the father to change.” Despite advocating the immediate removal of the three older children based on a decision reached at an unrecorded meeting in May 2013 between social worker, managers and solicitors, Ms Hendry had not assessed the effect on each child of such a removal and was unable to address it in her evidence. The district judge went further and said that she should be replaced as the allocated social worker for the family.

Given the DJ’s criticism of the social worker’s unconvincing evidence, in an application to remove all 4 children from the care of the father, it seems to me all the more curious that the DJ made a Care and Placement Order in respect of W. Incidentally is it within the Judge’s remit to order that a social worker be replaced – suppose it is! Is this a common occurrence?

18. The parenting assessment carried out by Ms Hendry in October 2012, as I alluded to above, formed the basis of the local authority’s case and continued to inform it even after her oral evidence had not been accepted by the court. The evidence of the social workers now allocated to this case continued to focus on their perception of the father’s inability to change or accept the need for change (although the circuit judge had given him permission to oppose the adoption of W precisely because he had changed his circumstances). Despite the fact that there were no findings of physical abuse these allegations continued to be repeated by the local authority and, I repeat, their concentration on “the need for the father to change” remained a constant part of the local authority’s case and the basis for their opposition to his attempts to have W returned to his care. In September 2013 the court found that the father provided “very good care” and was satisfied that he had separated from the mother and “had reached a turning point recognising that he must concentrate on the care of the children to the exclusion of his relationship [with the mother]. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have significant attachment to their father.

It seems clear that Ms Hendry was well out of her depth in proving that these 4 children were being significantly harmed. The substitute social workers must have felt very anxious and intimidated, but did themselves no favours by repeating the same arguments i.e. the need for the father to change, and repeated allegations of physical abuse, which had been disregarded by the DJ. It could be however that the DJ’s judgement was also “erroneous” in this respect, but that doesn’t excuse the LA from persisting along that track.

However there is no mention of the LA lawyer and why an application to remove 4 children from their parents was not scrutinised to ensure that the evidence met the standard required to prove significant harm in the balance of probabilities.

What is the Impact on W of being moved 5 times in 3 years?

41. Dr Willemsen was clear when I asked him that he had thought hard about this child and what was best for her throughout her life; he said when he was preparing the report in the first instance he thought “this child belongs with her father, that was the starting point, then I became very worried about child and good attachments and at that time had the legal evidence as it was she should stay. This verged [sic] me towards thinking I am really worried about this child moving. The additional evidence there is now is a father by going to the Court of Appeal says ‘I want to be a good father to my child’ and further evidence that [he] understands some of [her] needs. So I think it is clear to say that it has changed. I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask”. When asked on balance what he thought he said, unequivocally, “I think she returns to her father.”

Here we have a clinical psychologist talking of “good attachments” – good, as opposed to “bad”……….grrrh. There are references in the judgement to “strong” attachments – I MUST make those notes on attachment theory. However I am really concerned that Dr W can believe that this child should be moved back to her father. The wrong decision was almost certainly made by the DJ but this child was moved 3 times before moving to her adoptive placement, where she has lived for 16 months, and Dr W is recommending a 5th move for a child not yet 3 years old. Does he not realise that the first 3 years of a child’s life are the most important years of all, and lay down the foundation for the remainder of her life, be that positive or negative.

All this talk of what W is going to think when she is 12/13/14 and asks why she was adopted and not the other 3 children, is pure conjecture, nothing more, mothing less and it seems to have totally influenced the Judge. There is absolutely no way of knowing what W might think about the reasons that she was adopted. It is just as likely that she will be glad that she was adopted especially if she has had a happy and untroubled childhood and a family who will continue to support her throughout their lifetime.

Balanced against this child being subjected to 5 moves before her 3rd birthday it is, as far as I’m concerned a “no brainer” (much as I dislike that phrase) W was placed with her adoptive family at the age of approx. 1.5 years and will be 3 years old in Nov this year. We know nothing of the early weeks and months of W’s placement with the prospective adopters, and the difficulties of settling a child who had 3 moves in 18 months.

At some point in the judgement, the Judge acknowledges the trauma for the prospective adopters but comments that their failure to re-assure the court of their willingness to facilitate W’s move back to her father as evidence of them not putting the needs of the child before their own. I think this comment was grossly unfair and unnecessary. It was also unfair to put the adopters on the spot by asking how they would explain to W that she was adopted whilst her 3 siblings remained in the care of their father, and again the Judge was critical of their inability to provide a satisfactory response. Prospective adopters are all told that the child must know that they are adopted right from the word GO – and it is usually done by means of a life story book which should contain pictures of the birth parents/siblings, other members of their extended family, foster carers etc. Photographs can be added as the child grows. Birth mothers are usually referred to as “tummy mummies” and all explanation obviously have to be age appropriate. However to expect adopters to be able to “fast forward the tape” to answer the possible questions of an older child is simply unfair, as so much will depend on the child and the nature of any questions, if indeed any are forthcoming. Many adopted children are not interested in their background although this tends to change once they are adult and especially after giving birth to their own child. This is a key time for searching for birth mothers, though many adoptees wait until the adoptive parents have died before searching.

The wishes and feelings of W’s siblings

42. Mark Hatter is an independent social worker with considerable experience of social work and, in particular, with working with adolescents when adoptive placements have failed and broken down. He had seen the father and the three children at home and had made very positive observations of their father with X, Y and Z. He too had felt able to work with the father, was impressed by the children and found their father to be responsive to them and managing the family in what is a very cramped environment. Mr Hatter found the family as a whole had a strong awareness of W and that her return was something that X wanted, which may lead to a reduction in her anxiety. His recommendation altered when he gave oral evidence to the court when asked he said “[The recommendation] is still extremely balanced but in light of those changes I would have to support the return of W [to her family].” The changes he referred to were the evidence of Dr Willemsen and the decision of the Court of Appeal.

What I wonder is a “strong awareness” – yes the children know they have a little sister but they haven’t seen her for over 18 months, though given their ages, they will remember her of course. On what basis does Mr H make his assertion that W’s return to the family reduce X’s anxiety? It is small wonder that X is anxious given her family background and the fact that her mother is seriously mentally ill, and she therefore is not able to have a good relationship with her, something that is very important to young women on the brink of adolescence. There is no mention of a supportive granny or aunt who may be able to offer X the support she will need as she reaches puberty. I think it naïve in the extreme that Mr H believes that having W back in the family will alleviate X’s anxiety – it could well increase it, especially as W is going to be very confused and upset at the move, and this distress will be played out in the family home, in my view adversely affecting all 3 of the other children. The father will of necessity need to divert his attention to W and so the other children could be disadvantaged as a result.
So much talk of “finely balanced” ……….

Matter is finely balanced, recommendations vague

43. Mr Hatter observed that he had not had long to consider those changes and he had not heard the evidence of Dr Willemsen, but as much of his opinion was based on the attachment of W to the adopters and as he is not a psychologist and he would rely on Dr Willemsen and as his recommendation has changed he would acknowledge and respect that change. He voiced the same concerns for W going up in an adoptive placement with the background of this case and said “I struggle with what W’s journey would now be in terms of being an adoptive child when backdrop to the case appears to be care and placement orders now set aside and I struggle to understand how she would cope with knowing that at some stage whilst also knowing has three siblings remaining in the care of her father and on balance I believe that with very clear support to the father that with the father fully engaging with that support that the potential harm to W of being adopted in the present circumstances versus potential of remaining within her birth family outweigh [adoption]and make me wish to change recommendation. Though I again stress it is very finely balanced in my professional opinion and I would still hold concerns however now faced with other concerns for W if she remained.”

Seems to me that Mr H has bowed to the “superior knowledge” of the clinical psychologist and does not have the courage of his convictions. Any experienced social worker should know that to move a child 5 times in her first 3 years of life is NOT acting in her best interests. You don’t need to be a psychologist to know this, and of course Dr W doesn’t seem to know that either.

44. He had based his original recommendations on matters that were relied on by the local authority as I set out in paragraph 32 above; most of which are without foundation, as can be seen from the evidence of Dr Willemsen. Mr Hatter said that he found the father to be “completely open to working with me.” He was also very concerned about overcrowding; an issue which cannot weigh heavily with this court as it affects so many low-income families and cannot be the basis for the permanent removal of children from their families. Mr Hatter urged the local authority to support an urgent move for the family to larger accommodation. I am assured by counsel on behalf of the local authority that such support would be forthcoming. He said that bearing in mind the cramped surroundings he was most impressed by the children, their interaction and the father’s management of them. He praised the children’s mother for the position she had taken which he described as “good”. He spoke of X, who as the eldest and a girl had the response of wanting to help and voiced the, wholly reasonable, opinion that she could do with some individual support, perhaps from a mentor, and “time out”.

What do these vague recommendations actually mean? Yes I agree X needs support, but where is this “mentor” going to come from – the LA won’t be in the business of paying anyone to perform this mentoring duty, and what is meant by “time out” ??? Hmm the Judge doesn’t seem to be concerned with vague comments that don’t mean anything.

45. As to the father seeking help and support when and if necessary Mr Hatter emphasised that it was a two-way street and that the father had to feel that he and the local authority were working from the same sheet. He said that from his observation the father was not a man seeking victory as his empathy towards the adopters was real. Moreover the father acknowledged he’d need support and would appreciate support from the local authority. Mr Hatter felt that the biggest remaining upset within the family was that W was missing and they saw themselves as disjointed; although he still had concerns “the balance moved to W going home.”

Mr H “feels” – the court shouldn’t be concerned with “feelings” surely, they should be concerned with evidence. This is a family that have all suffered in their different ways, the mother because of her mental health issues, the father attempting to save the marriage and the stresses and strains of doing that, alongside being the primary carer for 4 children, one just a few weeks old. And the children have witnessed their mother in irrational and angry states and attacking their father on at least one occasion, and the turmoil and distress this must have caused them, and now the mother is no longer in the family home – and Mr H believes that the “biggest remaining upset” is that the family “see themselves as disjointed” – I’m sure they do, because they are, but not necessarily because W was missing.

What will happen in the future?

46. Mr Hatter has had experience of teenage adoption breakdown both as an independent social worker and a social work manager and he anticipated difficulties for W in the future if she finds out the circumstances of her adoption. He considered that she would find out and would be upset and feel anger about the adoptive placement.

Ah I see Mr H can see into the future! I am simply astonished at this comment and even more astonished that it has been accepted by the Judge.

48. Mr Hatter had pointed out in his report at paragraph 76 that should W remain in the adoptive placement she would be likely to want to have direct contact with her parents and siblings in the future, particularly as her siblings remained living with their father. “It will be relatively easy once W has unsupervised access to the internet and Facebook for her to make contact with her family should she wish to do so which will be in turn a challenge for her adoptive parents to deal with and to manage. I am concerned that this situation may be compounded if there is the potential of the family moving abroad during W’s minority.” He went on to say, in his oral evidence, that it was a valid point to add to the likelihood of breakdown the fact that the As are part of these proceedings and voicing resistance to her going home. He saw the difficulty as being that W was securely attached to her current carers but that the change was a positive one of being back with her birth family; there would be losses but also gains. In the longer term, if the local authority works with the children’s father, there is a lot more to be gained by going home.

Given Mr. H’s comments about the internet, this could well be true for any child who has been adopted and it is a valid issue, but if this is going to weigh so heavily in deciding a child’s future then it surely will only be a matter of time before it will mean an end to a child’s future being secured by way of adoption or any other form of permanent care. And again we see Mr. H’s capacity to see into the future, evidenced in his comments about the possibility of the prospective adopters moving abroad during W’s minority! Astonishing!

As you can see I am very frustrated about Mr. H’s “expertise” but that changes to anger when he assert that “a breakdown of the adoptive placement is likely because the As are part of the proceedings and voicing resistance to her going home.” Dear god, of course they are resistant to her going home. Mr H claims to have an expertise in adoption and adoptive placements, and yet he can make such a ridiculous comment. They would be very strange adopters if they would happily agree that this child, who they have loved and nurtured for 16 months and who they envisaged being a part of their family for ever, should be returned home to the care of her father.

Maybe Mr H spelled out in details just how exactly “there is a lot more to be gained by W going home.” Or then again maybe he didn’t, but he’s impressed the Judge, so that’s all that matters.

Psychobabble and defensiveness

47. I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.
48. The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads”[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight

It is very odd in my view, and totally unacceptable that the social worker with case responsibility does not file a statement, but this is done by her team manager and I am sure the Judge is right in thinking that Ms Wilkinson did not feel she was capable of making a statement and being cross examined. Maybe the Ms W was a newly qualified worker. But Ms Alsop’s noble attempt to step in fell on stoney ground, and as much as I dislike the term “psychobabble” as a derogatory term, I have to agree that her comments made little sense.

I have tried to de-gobbledygook the comments made by Ms A: – The father has had such a traumatic childhood that he can’t really talk to the children on their level, and he has tried to shut out the pain of the past, and this prevents him from understanding the distress the children are suffering. Best I can do! However this is opinion not evidence and it doesn’t make much sense even when phrased in simple language

Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.

Poor Ms A – the team manager who stepped in to show the social worker how it’s done – maybe she should remember that when you’re in a hole, stop digging!

In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.

Churlish of Ms A to disregard the counselling the father has undertaken. Ok there are no quick fixes and 11 months (or even 11 years) are sometimes not enough to alleviate the long term difficulties associated with a traumatic childhood, as these can persist through the lifespan, often in the form of PTSD, but credit should be given to the father for seeking help via counselling. MsA is very hung up on the notion of the father “using disassociation as a defence against the trauma he has suffered” expressed previously as “adopting maladaptive strategies………

To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge.

I’ve stopped feeling sorry for Ms W – there is absolutely no excuse to be grudging and defensive in written and oral evidence and demonstrates a complete lack of even a modicum of professional wisdom and integrity. I have come across this attitude when working as a Guardian (before guardians were employed by CAFCASS) and we worked on reciprocal arrangements with neighbouring LAs, and when I was working independently. However I still think it was regrettable that the DJ made the serious error in the first place and this must have influenced the LA social workers that they had a good case. Again where was the LA lawyer in all this………….?

Guardian’s evidence – beyond shocking

At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at [22] of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children) [2013] EWCA Civ 1018; Re G [2013] EWCA Civ 965; Re S (A Child) [2013] EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.
The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.

Shocking, clearly hopelessly incompetent Guardian – “at sixes and sevens with each other” WTF! And “systemically closed” – I have absolutely no idea what this means and I doubt he did either. “Shut out” is a guess!

I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.

Beyond shocking – sounds like he just didn’t care about these children or their future, and having been criticised for aligning himself with the view of the LA, he grudgingly aligned himself with the expert opinion. I imagine this was to prevent any further criticism from the Judge, rather than anything else.

Conclusions

Well Sarah this took rather longer than I expected and I am beyond burning the midnight oil. I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests. I think far too much weight was given to what she might think about her adoptive placement when she is old enough to understand – and how this influenced the Judge. At one stage he mentioned that W will have some residual memory of her father and siblings at the last contact, which must have been some 18 months ago. I absolutely disagree and in the child’s sense of time, at her age, she can’t possibly have this kind of recall.

There is not a great deal of criticism from the Judge about the DJ’s judgement, other than to say it was “erroneous” (something of an under statement) and again no criticism of the LA lawyer. What IS it with these lawyers – do they not understand the need to ensure that there is sufficient evidence for the LA to prove their case. That surely is a fundamental task of such a lawyer.

The other issue is the mother of the children, and little is said about her in the judgement. I think I read father has a RO on the 3 children. I do wonder if the LA were critical of the fact that the parents were obviously having a sexual relationship which resulted in the birth of W. This wasn’t made explicit, but I wonder if it was somewhere in their thinking, as there were comments that the father was putting his relationship with the mother before the needs of the children.

I also wonder about the mother’s mental health. I note that she has a diagnosis of recurrent depressive disorder with Emotionally Unstable PD, but I wonder if there is also a psychotic element to her mental illness, as some of the descriptions of her behaviour would suggest this could be the case. She has also been sectioned under the Mental Health Act on more than one occasion I think and it’s very unusual for the use of a Section in the absence of a psychotic illness.

If this is the case, then there is the possibility of this illness emerging in one (or more) of the children, as psychosis is by and large a hereditary condition. This doesn’t seem to have been addressed at all. I think EUPD is a bit of a “catch all” diagnosis and until relatively recently wasn’t seen as a treatable mental illness. Very often though patients are wrongly diagnosed and this may well be the case with this mother. Mental health services as I’m sure you know are very stretched and it is easy for people to “slip through the net” as it were.

Ah well, those are my thoughts/views for what they’re worth.

Kate Wells

Going Off the Rails in Interesting Times

Why do so many care cases go wrong?

What are the recent cases demanding?

Proper evidence
Proper thought about the evidence
Collective responsibility

For consideration of the importance of good evidence and how we secure it see the post Achieving Best Evidence In Children Act cases

And why is it going to cause significant problems?

HHJ Wildblood’s recent newsletter – June 2015: Pressure on the court

There will be no capacity to ‘oversit’ this year – last year 160 days were ‘oversat’ at judge level. Thus ‘we must use every day of court time to its fullest advantage’.
If we run out of sitting days the solution will be simple: we cannot list court cases and that has dramatic consequences for litigants and lawyers alike (there will not be work for them to do). We must therefore tighten up considerably and stop the drift that is occurring.

Identified problems

Cases drifting – 49 cases now off 26 week track
Too many psychologists and ISW being appointed
Cases are not being made ready for court by LA in pre-proceedings stage
Too many examples of excessive and unstructured use of section 20 accommodation
Failure to obtain police disclosure in accordance with the protocol
IRHS being listed very close to FH and not being used properly. They should be listed at week 20 and used to resolve issues
Solicitors are not filing noticing of acting, causing problems in court office
Issues re kinship care should be subject of express and full discussion at the CMH and there should be case specific directions about it

Examples from case law and what we can learn

H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 – 22 January 2015

Facts: LA issued care proceedings concerning a 4 year old in March 2014. In October 2014 an SGO was made with regard to a member of the mother’s church who was not a relative, even though the child had been cared for by the father since March. The father was successful in challenging this. There had been failure to comply with rules and practice directions, particularly with regard to the procedural requirements for an SGO.
At paragraph 7 the Court of Appeal commented ominously:
‘In simple terms the case was not in a fit state to be heard. It is a matter of some significance that no-one realised that fact at the time’
There were two realistic placement options – supported care by the father or care by a relative stranger under and SGO. The fatal flaws in this case stemmed from as assumption created by poor case management that the SGO was a realistic option but the father was not.
Classic errors included:

Lack of judicial/counsel continuity
Failure to identify issues and realistic options
Failure to consider what witnesses were available for eg an expert report was carried out re father in 2011/12 – the father said his circumstances had now changed but no one gave any thought to seeking an addendum report or calling the expert to give live evidence.

The consequence was that the Judge did not undertake the necessary comparative welfare analysis and thus also failed to carry out a proper evaluation of whether the interference with Article 8 rights proposed by the making of an SGO could be justified.

A (A child) [2015] EWFC 11 17 February 2015

A textbook example of how not to embark upon or pursue a care case. Facts: A was born on 11th January while his mother was serving a prison sentence. An initial viability assessment of his father was negative so A went into foster care. The LA then took 8 months to issue care proceedings and were found to be too quick to believe the worst of the father and made comments on the ‘immorality’ of his conduct. It was difficult for the President to discern what had happened with the assessment process and difficult to link what was set out in the threshold with the need to prove significant harm.

The Guardian came in for particular criticism at paragraph 39 onwards due to the disconnect between her oral and her written evidence:

On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step- grandfather. Nothing of this is to be found, however, in her initial case analysis. …
The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments.

The President identified 3 fundamental principles. Failing to abide by these principles will have serious implications for the successful pursuit of an application in court.

Facts must be drawn from evidence, not suspicion or speculation
- LA must provide proper evidence, direct whenever possible
- LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed our recent conference ‘Is the Child Protection System Fit for Purpose’ and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

Re J [2015] EWCA Civ 222 19th February 2015.

Facts: two young parents who behaved in an irresponsible manner. There were issues of drug use and domestic violence. The mother had been sexually abused as a child in care. The Court of Appeal were clear this was NOT a finely balanced appeal as it was simply ‘impossible’ to detect in the judgment the Judge’s process of analysis.
Aikens JL identified the fundamental principles at para 56 – the Court of Appeal agreed with the President’s judgment in Re A, but stressed that none of these principles are new.

In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.
If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.
Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.
The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)
It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority.”The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.
It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs”simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.
When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.

South Glos Council v L and R 30th June 2015

Facts – two children both under 3 years old had been in section 20 accommodation since September 2014. In January 2015 the LA applied for a care order given the concerns about the parents who were both very young. Issues around neglect and chaotic lifestyles. On 30th January the Magistrates listed for a final hearing in July, so within 26 week period. HHJ Wildblood commented at para 4 of the judgment.

Plainly this was a case that should have been resolved within the 26 week period prescribed by statute. It is not a complex case. The issues were clearly defined. The Local Authority had been involved with the parents for years before the case started and so knew them well; the father and mother were involved with children’s services as children; there was a heightened involvement between the Local Authority and the mother following the birth of the first child. Thus, the authority had plenty of time to make up its mind about what orders it would seek once proceedings were issued.

But by the IRH at the end of June the case was clearly off the rails; the LA had no final evidence so the parents did not know the case against them and the guardian couldn’t prepare her analysis. So what went wrong?

A psychological assessment was ordered on 12th March which was not necessary. HHJ Wildblood is not sitting on the fence with his comments in para 7:

In this area far too many psychological reports are being ordered when they do not meet the test laid down in section 13(6) of The Children and Families Act 2014 that such reports should only be ordered when they are ‘necessary to assist the court to resolve the proceedings justly’. Unnecessary reports waste public money, cause delay and add nothing to the overall quality of the evidence in a case. The report, which I have read, contains little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared;

What this case needed was proper parenting assessment of both parents. But these assessments were not done in advance of the IRH at the end of June – because the agency SW responsible had left the LA and not done this work. So by the time of the IRH the LA did not have their final evidence so neither parents nor Guardian could respond. HHJ Wildblood called for an explanation at the highest level of Director and he found the full and frank response helpful. The Director wrote (See para 13):

This situation has largely come about because of significant staffing issues within South Gloucestershire Council’s social care service. The North locality team has been affected particularly badly by high levels of staff turnover at both practitioner and management levels, which in turn has led to the use of relatively high levels of agency staff. It is evident that this situation has impacted on this case with a lack of consistency and direction, as well as a loss of knowledge and oversight each time a social worker or manager has left the Department. The Local authority’s legal team has equally been through a period of significant turnover and change recently, which has again led to inconsistency in relation to legal oversight and direction’.

HHJ Wildblood was sympathetic but obviously such sympathy is not infinite. He set out a list of considerations for future cases which may be going off the rails.

If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.
Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.
Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.
If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

Collective Responsibility?

It will be interesting to see how this concept develops – particularly when many of the problems in these cases (particularly pressure on LA staffing levels) are outside the sphere of influence of any of the participants to the care proceedings.

The Children Act 1989 – deeply flawed legislation?

We are grateful for this post from Patrick Philips, a retired child protection social worker of many years experience who was prompted to write this response to our post – A system in continual crisis. He is concerned that the Children Act 1989 has created poorly evidenced definitions of ‘abuse’ which can lead to children being removed from their parents when they should not have been.

It’s enough to make one ask what is driving the maintenance of such a system in the absence of evidence that it makes matters better for children rather than worse.

The 1989 Children Act and decision making – do we need to protect children from the child protection system?

I worked in Social / Children’s services, particularly in Child Protection, between 1971 and 2013 and I suggest that the approach of the 1989 Children Act is deeply flawed.

I do not dispute that children should be protected: the question is how, given that many well meaning efforts make matters worse for children, not better. Crucially, how are abused children to be discovered and how are decisions to be made for their protection?

Whilst I have extensive first hand experience of the system and do not accept that decisions are made according to a conspiracy, I can well see why some people might resort to such an explanation.

Some of the most important research, in my view, in social work decision making has largely been ignored, as well as changes which have taken place since that research was done. Dingwall R, Eekelaar J and Murray T of the Oxford Centre for Socio-Legal studies found that the only member of the child protection network who actually focussed on evidence (by which I mean forensic evidence, not research ‘evidence’) was the Local Authority Solicitor.

Her/His filtering of cases / insistence on hard evidence constituted an important barrier so that a large proportion of cases never made it to court. A great deal of pressure had to build up in the inter-agency network before action was likely to be taken (‘The Fruit Machine’). This involved the development of a good deal of consensus (though this could involve ‘dominant ideas’ rather than proper appraisal of evidence, as Stevenson and Hallett later identified).

The Dingwall research was first published in 1983 (‘The Protection of Children’). The 1969 Children and Young Persons Act was then the principal act governing child protection (with other acts).

The 1989 Children Act; the end of reliance on ‘forensic’ evidence

The Oxford studies noted that there seemed to be little difference between the circumstances of abused and neglected children remaining with their families and that of children who were removed. So long as decision making processes are erratic, one would expect this to be the case. The extent to which Child Protection authorities are prepared to remove children should affect the number of children left in abuse and neglect with their families. However, if it is not based on effective decision making processes it may have increase the number of children removed from their ‘natural’ families who were not being neglected or abused, or whose neglect and abuse will be even worse once removed than it was at ‘home’ instead of increasing protective removal.

In my experience, Local Authority Solicitors now, operating under the 1989 Children Act, hardly question the extent of evidence available to show that a child is being abused or neglected. This is understandable: the 1989 Act is drawn so widely that the mere opinion of a social worker (or their manager, more likely), that action is required is sufficient to meet it’s requirements. After all, if the professional social work manager’s opinion is that the child is being emotionally abused, the local authority Solicitor is hardly in a position to dispute that opinion, and may be instructed to take it as so anyway? I have presented cases to Local Authority legal representatives thinking the evidence to be questionable, only to find that the legal representative is pressing action even more than I was.

When the 1989 Act was in the process of enactment and implementation, I think the general view in social work was, in effect, that it was promising heaven on earth, and would never really be implemented. At the time I was responsible for policy and policy implementation, with others, in a very large Social Services Department. I was surprised that suggestions I made for the systematic identification of children “in need”, for whom the department now had formal legal duties, were completely ignored. However, after the death of ‘Baby P’ in 2007 a serious expectation that the 1989 Act could and should be literally implemented seemed to take hold. From then on the status of social work decision making also seemed to take a dive. Instead, managers increasingly made snap decisions on minimal and second hand information, instructing social workers accordingly.

Conspiracy?

I very much support the views expressed in Child Protection Resource that conspiracy theories in regard to adoption and child removal are wrong. However, the dynamics of the current system is bound to give the impression that there is a conspiracy, particularly as decision making today is just as erratic as in the Oxford research. The difference is that there is no back pressure from local authority solicitors as there used to be: cases are taken according to social work availability to take cases, and results are even more quirky, because there does not have to be the same build up of multi-agency pressure on Children’s Services as there used to have to be to produce action. Besides, there is a wider variety of people who may drive cases forward, usually (as Dingwall identified) because they regard the parents or family as discredited in some way.

I have experienced individual Judges, Children’s Guardians,Local Authority Solicitors, Doctors, Nurses as well as Social Work managers as driving cases forward for child removal on the basis of their own particular point of view rather than of collective assessment or evidence. Others involved are unable or unwilling to resist and to risk being discredited along with the parent if they do, however unjustified that discredit may be. Management domination of practice Social Workers are bound by a code of practice; breaching that code can lose them their job. However, that code of practice is only advisory on Social Work managers. Social Workers believing they are being instructed to take action which breaches their code of practice are advised that they may present the fact that they have been instructed to take that action in their defence, but action can still be taken against them.

Departments have to be very concerned with their own reputation, particularly considering the risk presented by government inspection. Workers may be instructed, for example, to make positive comment, or non at all, to inspectors. Whistle blowers are usually ‘discredited’ and dismissed. Another feature which is bound to enhance the belief in conspiracy theory is the way in which Social Workers etc are bound by gagging agreements during and following disputes with their employers. I have heard rumours that Local Authorities are spending very large sums of money in paying suspended workers and in settlements in disputed dismissal proceedings. I am not personally aware of any Freedom of Information requests in this area, nor what might the results indicate.

Consider the concerns raised by the Appeal Judges in re B-S , about the extent to which case presentation lacks proper evidence and exploration of options. I gathered from legal colleagues in court that they were surprised to encounter well researched and hard evidenced social work presentation in court. I suppose this indicates that the Appeal Judges’ concerns in re B-S were no surprise to lawyers operating in the system. However, a system in which the social worker’s first hand assessment and evidence is over-ruled by snap managerial decisions and in which social workers risk all in presenting any objection their instructions hardly encourages conscientious reflective working and organisation.

Social Work Training and the abuse of children by wrongful removal

This is ironic, given the extent of attention ostensibly given to ‘reflective working’ in social work training. However, my recent experience of social work training is that it is actually based on a narrow set of precepts and power relations.

There have been some hopeful signs; guidance issued about research to be regarded in Care Proceedings just before I left my department emphasises recent neuro-social approaches. These, and other newer ways of considering child development etc seem to me to have been of almost no attention in training taking place within only the last few years.

The extent to which social work can pretend to have an established basis for its practice remains debatable. Challenges to orthodox ways of seeing child development, for example, were not welcome. Ethical considerations and the impact on the child of ‘child observation’ by social workers in training were regarded as eccentricity on my part rather than as any appreciation of the child’s experience and perspective. To me, it is no wonder that social workers trained in that way can regard it as more satisfactory to remove children by the use of strangers in the middle of the night on suspicion of danger rather than to manage anxiety, assess properly and manage necessary removals with regard to the impact of the removal on the child as well as the need for safeguarding.

Attention to the negative impact of social work action on children has been shortlived in the past. In the late 1990’s it became commonplace in my experience to identify families in trouble because parents no longer felt they could set any kind of limits on their children’s behaviour as a result of their experience of child protection investigations. The ‘re-focussing’ exercise of the period attempted to reduce the extent to which almost all investigations began and ended as investigations without any family service or protective processes following. Within 5 years the emphasis had swung right back the other way and the re-focussing exercise seemed forgotten. It’s enough to make one ask what is driving the maintenance of such a system in the absence of evidence that it makes matters better for children rather than worse.

As I was leaving the job in 2013 the training pendulum had once again swung against University involvement in social work training, due to widespread dissatisfaction with their success in providing appropriate social work training. Employer domination of training processes must be equally suspect in light of the current system of employment and social work decision making. Social Work clients often find it astonishing that social workers and their managers make rapid judgements about matters as hard to define as ’emotional abuse,’ when they have no personal experience of child care or even family life.

In my earliest days as a Social Work Manager I was intrigued to try to identify the proportion of young social workers who thought that they had had any idea about what being a parent was really like before they had children. I only ever found one. This does not prevent most people, social workers and others, having very decided ideas other people not being good parents, views which are often mutual! Give such people the power, and other people loose their children.

Protecting children from the child protection system

I congratulate Child Protection Resource for the work it is doing, and I am impressed by the extent to which views are changing, even if that is no comfort to the latest generation of rescued children. In the UK we have, after all, a long and continuing history of ‘rescuing’ children from their parents to every variety of often abysmal future, from Barnardo, through other efforts at mass shipping of children to Australia, Canada, and to the specious identification of children to be removed in to care or placed in non-consensual adoption. Following re B -S, there must at least be less people now saying, as they were in 2013, that children from poor families not placed for adoption were being denied a great opportunity in their lives!

I am not suggesting that children should never be removed, and I see the ever swinging pendulum in the process of swinging away from child removal again. However, in my view the 1989 Children Act is pie in the sky and needs to be replaced with legal standards which more nearly reflect those expressed in re B-S, that is to set realistically measurable standards to govern the protection of children, rather than to push the law into ever less measurable levels of ‘abuse’ as Robert Buckland, QC, MP, Solicitor General curiously seems to advocate (The Times, 15 January 2015). Any reliable system also needs to recognise the impossibility of predicting abuse, a lesson one may draw from Eileen Munro’s early works in which she draws attention to the mathematics of risk assessment, false positives and negatives etc, but which she proceeds to ignore in her own advocacy of its use in social work (reference needed). The mathematics of ‘false positive’ identification would indicate even higher levels of mistaken removal than some of the conspiracy theorists in the field would have us believe, but not in the least due to ‘conspiracy’.

Knowing the fear that permeates the family lives of ordinary and especially materially poorer people of ‘Social Services’, I have been surprised at the extent to which that daily reality is hidden from view now that I am following an ‘ordinary’ life outside social work. Effectively this field of practice is shrouded in secrecy, occasionally breached by items such as BBC South East ‘Inside Out’on 2.2.2015 . In that piece Andrew Webb, Immediate Past President of the Association of Directors of Children’s Services, said “the criticisms of our adoption system isn’t based on any evidence I can see that relates to children and their outcomes, it’s more a concern about whether parents should be given more chances”.

How can one explain such a statement from such a person? Is it possible he is really unaware of the harmful impact of wrongful removal from families of children, for the children? Has he never seen adoption and fostering breakdown statistics, nor heard of the Cleveland Enquiry Report or the consequences for children of the shipping children abroad? His approach in that interview demonstrates that some social work managers are prepared to say whatever they think will justify their position, sometimes in direct contravention of contrary evidence. I say this from direct experience over many years and in several situations. Under pressure, social workers also make up information to fill the gaps in their knowledge; a perfectly human thing to do, but which may have something to do with why parents so often think that their social workers are lying. Andrew Webb is facing neither the understandable pain of parents when children are removed, rightly and wrongly, nor the problem of making decisions at the right time and in the right way.

Andrew Webb’s approach gives the impression that his interest is in maintaining the Child Protection Industry and his own status within it. This may not be a feature of conspiracy, but social workers and their managers need jobs (and empires) in order to earn their living. They don’t get paid bonuses for removing children, but they do have to demonstrate that they are ‘protecting children’. Very often that simply means that if the child is thought to be ‘at risk’ at home that they have to be removed, without regard to whether this will make the child’s life better or worse. The long term suffering of a wrongly removed child is much less tangible than the immediate risk of yet another case in which ‘social workers did nothing’. In my experience, the requirement that the child must be removed because of risk, without considering whether this will make life any better for them has been quite explicit. On other occasions, I have been able to present the pros and cons so as to achieve the best solution, or at least the ‘least worst solution’.

In the same broadcast Peter Dale, who has long influenced my approach to Child Protection, says that he believes the British Government will have to apologise in future for the damage that is being done to children in England. Another scandalous era in British child protection practice is happening right now, ready to be exposed in future years. I hope that childprotectionresource.org.uk will contribute to the development of ideas about how that system might be replaced with one which is more likely to protect indubitably abused children without perpetrating terrible abuse on children whose circumstances may be less than ideal, but whose very real abuse is created by the very system which is supposed to protect them.

Patrick W Phillips, MA, LRCC

Further reading

The fundamental requirements

Facts, information and belief

Documents

Memory

Length of the statement

Sanctions

Template for LIPs in non-complex private law welfare cases

Background to the proceedings

The hearing before the judge

The appeal – analysis of the admissibility of similar fact evidence

The ‘procedural muddle’

Response of the CPR to the Family Inquiry into the courts response to domestic violence

What happens when the starting point is ‘victim’?

Conclusions – we need the data

The relevant law – general principles about establishing facts

Burden and standard of proof in ‘binary’ system

What happens if a witness lies about something?

Expert witnesses

Particular considerations in a case when a child has suffered injury

Was the injury an accident?

If it wasn’t an accident – who did it?

How hard should the court try to find out who did it?

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

Further reading

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

Burden and Standard of Proof

Binary system – it either happened or it did not happen

Evidence not speculation

Expert Evidence

When a child has suffered injury

Further reading

Unless uncontroversial, it must be regarded with great caution

Tension between admissibility of hearsay and rights to a fair trial

Courts must consider hearsay evidence very carefully

Civil Evidence Act 1995

I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests.

Dealing with the threshold criteria

Criticisms of the SW Evidence

What is the Impact on W of being moved 5 times in 3 years?

The wishes and feelings of W’s siblings

Matter is finely balanced, recommendations vague

What will happen in the future?

Psychobabble and defensiveness

Guardian’s evidence – beyond shocking

Conclusions

Why do so many care cases go wrong?

And why is it going to cause significant problems?

HHJ Wildblood’s recent newsletter – June 2015: Pressure on the court

Identified problems

Examples from case law and what we can learn

H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 – 22 January 2015

A (A child) [2015] EWFC 11 17 February 2015

Re J [2015] EWCA Civ 222 19th February 2015.

South Glos Council v L and R 30th June 2015

Collective Responsibility?

It’s enough to make one ask what is driving the maintenance of such a system in the absence of evidence that it makes matters better for children rather than worse.

The 1989 Children Act and decision making – do we need to protect children from the child protection system?

The 1989 Children Act; the end of reliance on ‘forensic’ evidence

Conspiracy?

Social Work Training and the abuse of children by wrongful removal

Protecting children from the child protection system