CHARLES J:
Introduction
This case concerns five children and, in it, the local authority seek public law orders. The proceedings took place in private, but I am delivering this part of the judgment in public. For that reason, I shall refer to the children by initials and to their parents as 'the mother' and 'the father'. If I slip up and refer to the name of a person within the family, that name and indeed anything else identifying the family from this judgment is not to be reported.
All five children are the children of the marriage of the mother and the father. They were married in 1984 when the mother was 18 and the father was 33. The mother and father are now respectively 36 and 50. The children are C, born on 27 May 1985, who is 16; TR, born on 10 November 1986, who is 15; T, born on 22 May 1989, who is 12; JL, born on 3 June 1994, who is 7; S, the only girl, born on 23 November 1999, who is nearly 2.
Other relevant members of the family are the maternal grandparents, B; a brother of the maternal grandmother, Uncle B; and a maternal aunt, Mrs W, who came into the picture very late in the proceedings in that during the course of the proceedings she and her husband made an offer that the mother and all or any of the children could come and live with them; D, the mother's siblings, namely a sister and her brother, W. The father's parents are still alive; they live in Gloucester and have played no part in the proceedings and only a minor part in the history. The maternal grandmother died on 16 November 2000. The family of the maternal grandparents, Uncle B and Uncle W, all lived in the same town. Mrs W and her husband lived and live in a town about 15 miles away, but have had little contact with the mother and her family.
The parties
The applicant is the local authority; the first and second respondents are the mother and the father; C is the third respondent, and he was separately represented by solicitors and leading and junior counsel; TR is the fourth respondent and he was also separately represented by solicitors and junior counsel; the fifth, sixth and seventh respondents are the remaining children, and they were represented by their guardian ad litem, solicitor and counsel. The mother and the father were represented by separate solicitors, leading and junior counsel; the local authority was represented by leading counsel.
Notwithstanding the considerable array of talent representing the parties, who are all clearly generally very competent, in my view (which of course has the considerable benefit of hindsight), there was a lack of full and proper preparation in this case. I shall return to this, but at this initial stage record that the criticisms I make in this judgment of the way in which the case was prepared and conducted are not directed to individuals: in my view, most of the matters upon which those criticisms are based arise from a combination of a number of circumstances. In the main, those criticisms relate to the allegations of sexual abuse that were advanced by the local authority as a basis for establishing the existence of the threshold criteria and as matters which were relevant at the disposal stage of these proceedings.
In opening, leading counsel for the local authority (for understandable reasons) submitted that those allegations were very serious and wide. However, on the thirteenth day of the hearing, in circumstances which I will describe later, they were not pursued. A great part of the preceding 12 days was, understandably, taken up with evidence relating to the allegations of sexual abuse.
In broad terms, the local authority decided not to pursue the allegations of sexual abuse in these proceedings because of further material that came to light during the course of the hearing.
In my judgment, having regard to that material, it would not have been possible for the local authority or any of the representatives of the three youngest boys (who had made the allegations of sexual abuse upon which the local authority based their case) to invite the court to make findings in respect of those allegations without an adjournment and, thus, considerable delay. This was effectively common ground between the parties.
It was, however, also common ground between the parties that the remaining allegations advanced by the local authority to establish the threshold criteria and as to the second (or welfare or disposal) stage could be pursued fairly.
I add that, in my view, in the circumstances that arose, the decision of the local authority to proceed only on the basis of those allegations, which can broadly be described as allegations of neglect and emotional harm, was the correct one. Indeed, if the local authority had not reached that decision, I would have been likely to have urged them to take that course.
The consequence of the decision not to pursue further at this stage the allegations of sexual abuse is, naturally, that a considerable amount of time and public money has been wasted.
The reason for my return later in this judgment to the approach to the preparation of this case in connection with the allegations of sexual abuse and the errors which, in my view, were made is in large measure to make what I hope are some constructive suggestions for the future.
In this context, I heard helpful submissions from all counsel, who all recognised that with the benefit of hindsight some mistakes had been made.
A brief overview
The local authority seek care orders in respect of each of the children. Interim care orders have been in place for some time in respect of the four youngest children. It was only following a professionals' meeting held shortly before the hearing before me that the local authority decided to seek a care order in respect of C.
In their case summary which formed part of their opening, the local authority made the following allegation:
'The local authority alleges that the threshold criteria for making orders under Section 31 of the Children Act 1989 are satisfied by reason of the long history of neglect and emotional abuse which the children have suffered whilst in the care of their parents and by the history of sexual abuse within the family. The parents deny that any neglect or abuse has taken place.'
At the time that case summary was prepared, that record of denial was I think accurate, but matters moved on and I shall return to that.
The denial of the sexual abuse, however, has been consistent. Admissions were made in respect of allegations of neglect.
The proceedings were commenced on 18 September 2000. On 26 September 2000, the first interim care orders were made in respect of the four youngest children. On that day, and thus after a court hearing, TR, T and JL were placed with experienced foster carers, a Mr and Mrs L, but C and S remained at home.
The immediate trigger to the commencement of the proceedings was the state of the family home and when the proceedings were launched the local authority based their case as to the establishment of the threshold criteria and the making of public law orders on the allegations of neglect and emotional abuse that are still pursued.
At that stage, although there had been some concerns relating to Uncle B, who is a maternal uncle and a Sch 1 offender with a number of convictions spreading over a number of years, the local authority were not alleging that any of the children had been sexually abused.
Given the involvement of the local authority with this family over the years, a point relied on by the mother, the father and C in disputing the allegations of sexual abuse that were advanced, was the lack of any concern or allegation relating to sexual abuse prior to the commencement of the care proceedings.
As the case on sexual abuse was opened and advanced in evidence, the first allegations thereof that were relied on was made by T to his foster-mother, Mrs L, on 22 October 2000. These allegations were said to come out of the blue. They were shortly followed by allegations made by JL. Initially, the allegations were denied by TR but, within a few days, he, too, made allegations of sexual abuse that were relied on by the local authority.
The local authority also relied on memorandum interviews of TR and T. JL also had a memorandum interview, but in it he did not make or repeat allegations he had made to the foster-mother concerning sexual abuse.
Further allegations of sexual abuse were made by the boys after the memorandum interviews, which were also relied on by the local authority.
The initial allegations relied on in opening and in evidence, included allegations against the father, C, Uncle B and TR. As presented in opening and in evidence, later allegations were made by JL against the mother.
Prior to the decision of the local authority to no longer pursue the allegations of sexual abuse, it was my view that in analysing the evidence and reaching findings it would be convenient to consider the allegations of neglect separately to those of sexual abuse; indeed, in my judgment, it would not have been practicable for any other course to have been taken.
Additionally, in my judgment, if the allegations of neglect and sexual abuse had both remained live issues it would have been important to remember that, as one of the expert witnesses, Dr Tully, remarked, it is the emotional damage that both can cause that is, or can be, corrosive. Further, it would have been important to remember that, as was common ground between the experts, both the neglect alleged and the sexual abuse alleged could have caused the behavioural difficulties and the developmental and emotional damage demonstrated, in particular, by TR, T and JL.
None of the aspects of the behaviour of any of the children that are relied on to demonstrate that they have suffered harm are pathognomonic, ie particular of any type of harm, and thus of either neglect or sexual abuse.
At this stage, I pause to comment that, unlike his siblings and in particular TR and JL, over recent years C has had good school reports and has done well at school. There was a relatively small issue as to whether he had done as well as his abilities indicated he could, but it was common ground that he had done well and had attained his predicted GCSEs. Also, it was common ground that, again, unlike his siblings, in recent years C has presented as a hard-working, clean and tidy child who has not demonstrated any behavioural problems at school or, for example, during his work experience.
Thus, it was common ground that C's behaviour had been different from that of his three younger brothers. It follows that, both in respect of the allegations of neglect and sexual abuse, C is in a very different position to the other children who are the subject of these proceedings.
An overview of the issues
As I have mentioned, the case was opened and advanced for a number of days on the basis that there were two strands to the establishment of the threshold criteria, namely (a) neglect and (b) sexual abuse. As to both, the local authority invited me to make a number of findings of fact.
In respect of the four youngest children, before me it was accepted (a) by the parents and (b) by those four children that the threshold criteria are established on the basis of neglect and consequential harm.
C accepts that he was neglected, but denies that in his case such neglect has resulted in the threshold criteria being established at the date the proceedings were issued.
In their opening statements of their positions, the degree of neglect accepted by the parents fell some way short of the degree of neglect alleged by the local authority. There was some later movement, to which I will return.
It follows that, notwithstanding the acceptance by the parents of the existence of the threshold criteria in respect of the four youngest children, factual issues remained in dispute as to (a) the degree of neglect, and (b) the degree and nature of the harm it has caused.
In the case of the four younger children, these issues are of primary relevance at the welfare or disposal stage of these proceedings because of the acceptance that the threshold criteria are established in respect of those children. In C's case these issues also relate to the issue whether the threshold criteria are established.
TR and the three youngest children, through their guardian, also accepted and asserted that the threshold criteria were established on the grounds of sexual abuse and the harm resulting therefrom; indeed, the allegations of sexual abuse advanced by the local authority were based on allegations made by the three youngest boys.
Following the decision of the local authority not to pursue the allegations of sexual abuse in the light of the developments that took place during the hearing, the guardian naturally reconsidered her position. Having done so, she told me, as it seems to me was obvious from her report, that at the start of the hearing she believed and asserted that there had been sexual abuse, including sexual abuse by C of his younger brothers, but she now took what she accepted could be described as a neutral stance to the allegations.
Following the decision by the local authority not to pursue the allegations of sexual abuse, TR, through his counsel, also reconsidered his position and did not seek to argue that the allegations of sexual abuse, including those which he had made, should be pursued so that decisions as to TR's future could be made in the light of findings in respect of those allegations.
In my judgment, counsel for TR was correct to take this course on his behalf and thus to invite the court to consider TR's position on the basis that the truth of his allegations and those of his younger brothers of sexual abuse had not been pursued to a decision of the court and therefore had not been established to the civil standard of proof.
As I have said, TR, through his counsel, invited me to find that the threshold criteria were established by reference to the allegations of neglect and emotional harm. In his case, some issues remain in respect of the disposal or welfare stage by reference to recommendations that were made when the allegations of sexual abuse were pursued by the local authority. I shall return to these later.
C, whom the younger boys have alleged was the subject of sexual abuse and someone who sexually abused them, has steadfastly (a) denied that he has been a party to any of the sexual abuse alleged, and (b) asserted that he has no knowledge of the younger boys being sexually abused by anyone. He has made these denials consistently and clearly throughout and, in particular, during his police interview and his assessment interview at the Young Abusers Project, to which I will return.
The father has also consistently and steadfastly denied the allegations of sexual abuse made against him by the three younger boys. As to both the allegations of neglect and sexual abuse, the father accepts that he has led a far from normal life. He asserts and accepts that he has had sexual relationships with men and, as I understood his overall evidence, women outside and during his marriage, many of which were casual sexual relationships. The father, however, has correctly pointed out that his unusual lifestyle and his sexual activities do not mean that he has sexually abused his children.
During the course of the proceedings, the father has been diagnosed by one of the experts instructed (again Dr Tully) as suffering from Asperger's syndrome. The father also said that he did not know and did not suspect that any of the children had been sexually abused by Uncle B, or their maternal grandmother, or C, or the mother.
Allegations that the maternal grandfather had abused T and JL were made by them after the allegations which were relied on in opening as the first allegations of sexual abuse made by the boys.
As to Uncle B, the father says that he knew that he was a Sch 1 offender and that the mother was visiting him and helping him with, for example, his shopping but that he did not know that any of the children were being left with Uncle B on their own. The mother has said that the father disliked Uncle B, and I shall return to issues relating to him later.
The mother has also consistently and steadfastly denied that she has been a party to any sexual abuse. The only allegations of sexual abuse that was addressed in evidence before me against her were based on allegations made by JL that she had abused him.
Neither of the other younger boys (TR and T) alleged sexual abuse against the mother.
The mother has consistently asserted that she does not believe that either C or her father, the maternal grandfather, would have sexually abused the younger boys and that she had no knowledge that any of the boys had been abused.
In this context, it is to be noted that the mother told me during her oral evidence that she did not like her father and this was why, following the death of her mother and her divorce from the father, she had not gone to live with her father and brother.
Issues were raised as to the mother's knowledge of the alleged sexual abuse. In respect of the allegations against the father, the mother has not been dismissive of the possibility that the latter could have sexually abused the children. In general, the mother has been very critical of the father and has sought to place blame on him for the neglect and subsequent harm she has accepted through her counsel existed and established the threshold criteria.
The issues relating to Uncle B were not confined to the allegations that he has sexually abused the boys. In his case, issues relating to neglect and lack of proper supervision also arise because Uncle B is a Sch 1 offender with a number of convictions, and there are allegations that the mother has left the boys with Uncle B unsupervised and that, in 1996, and thus, shortly after his last release from prison in 1995, Uncle B was visiting the mother at home during the evenings until the father put a stop to this.
The father alleged that neither the mother nor the maternal grandmother accepted that Uncle B had been correctly convicted.
The issues of neglect therefore include an allegation that the mother put the children at risk from a Sch 1 offender and that the father failed to take proper steps to prevent this.
A number of issues arose in respect of the welfare or disposal stage. Naturally, they will be informed by my findings at the threshold stage of the proceedings. Also, and importantly, an issue exists as to the mother's capacity to parent and to change.
My approach in law: statutory provisions
The most relevant statutory provisions in the Children Act 1989 are s 31(2), the definitions in s 31(9), the comparator in s 31(10) and then, at the welfare or disposal stage, s 1. Those sections are in the following terms:
'31(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control.'
'31(9) In this section—
"authorised person" means—
(a) the National Society for the Prevention of Cruelty to Children and any of its officers; and
(b) any person authorised by order of the Secretary of State to bring proceedings under this section and any officer of a body which is so authorised;
"harm" means ill-treatment or the impairment of health or development.
"development" means physical, intellectual, emotional, social or behavioural development;
"health" means physical or mental health; and
"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.
(10) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.'
'31(1) On the application of any local authority or authorised person, the court may make an order—
(a) placing the child with respect to whom the application is made in the care of a designated local authority; or
(b) putting him under the supervision of a designated local authority or of a probation officer.'
As appears from s 1, at the welfare or disposal stage I have to have regard to the no order principle, the welfare checklist and the range and effect of orders open to the court and, thus, the effect of, for example, a care order and a supervision order. Additionally, the court's powers relating to contact are important. Thus, ss 31(5), 33, 34, 35 and 39 and 91(12) and (13), together with Sch 2, para 15, and Sch 3, Parts 1 and 2, are relevant.
I shall not set out these provisions.
The threshold criteria
The nature and purpose of the threshold and the date upon which it falls to be established are shown by, for example, the following: Re M (A Minor) (Care Orders: Threshold Conditions) [1994] AC 424, [1994] 2 FLR 577; Southwark London Borough Council v B [1998] 2 FLR 1095; and Lancashire County Council v B [2000] 2 AC 147, [2000] 1 FLR 583 (and see also that case in the Court of Appeal where, in Re B and W (Threshold Criteria) [1999] 2 FLR 833, 834, Robert Walker LJ cites from a lecture delivered by Lord Mackay).
As appears from those authorities, the threshold set by s 31(2) is a trigger provision which provides the protection to individuals, both adults and children, and thus to families from interference in their lives by public authorities through the making of public law orders. This accords with the essential object of Art 8 of protecting the individual against arbitrary interference by public authorities (see Marckx v Belgium (1979-80) 2 EHRR 330, 342 cited in Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, [2001] 2 FLR 582, para [56]).
A lower threshold is set for interference by the making of interim public orders (see s 38(2) of the Children Act 1989). This threshold recognises the existence of proceedings in which it is alleged that the threshold criteria are to be satisfied on particular grounds.
In my judgment, it is important for both the courts and local authorities to remember the existence, terms and purposes of these two thresholds and that it is only when they are satisfied that initially interim public orders and then, at a final hearing, final public orders can be made.
Fact-finding
Given the nature and the extent of the factual disputes in this case, I was naturally referred to the decision of the House of Lords in Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. In that case, the House of Lords deal with what is meant by the statutory expression 'likely to suffer' in s 31(2), the burden of proof and the basis upon which a court is to make findings in respect of the threshold criteria.
I have had particular regard to the passages concerning these issues in the speech of Lord Nicholls in Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, at 584F-587G and 94D-97E respectively and the points that (a) my findings have to be based on evidence and not suspicions and (b) the seriousness of the issues is a factor to be taken into account.
In my fact-finding exercise, I have also had regard to the guidance given in R v Lucas (Ruth) [1981] 1 QB 720 in particular at 724G and F-H and R v Middleton (2000) The Times, April 12. Thus I accept that a conclusion that a person is lying about point (a) does not mean that he or she is lying about point (b).
I have taken the same approach to making my findings at the welfare or disposal stage (see Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, and also Re B and W (Threshold Criteria) [1999] 2 FLR 833 (the Lancashire case in the Court of Appeal)).
The approach at the welfare or disposal stage, having regard to the decision not to pursue the allegations of sexual abuse
As an aside, I mention that, notwithstanding the passage from Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211, cited at [1999] 2 FLR 839E-840C in Re B and W (Threshold Criteria) [1999] 2 FLR 833, it seems to me that problems may arise at the welfare and disposal stage in assessing risk by reference to facts proved to the civil standard when the existence of harm is proved to the requisite standard but the court cannot identify the perpetrator of that harm to that standard.
Here, the decision of the local authority not to pursue the serious allegations of sexual abuse and the decisions of the guardian and TR to join in and accept that approach has the consequence that any such problem does not arise, because no finding of sexual abuse has been or can be made at this stage.
Equally, as will appear later, the problem does not arise in respect of the allegations of neglect.
Subject to the possibility of arguments based on, for example, abuse of process, the decision of the local authority not to pursue the allegations of sexual abuse does not preclude them from pursuing such allegations in the future. However, in my judgment, both the court and the local authority have to approach this case on the basis of the present position and, thus, that the allegations of sexual abuse have not been pursued.
Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 confirms that the decision of the local authority not to pursue the allegations of sexual abuse means that if the threshold criteria are satisfied on a different basis (ie neglect and emotional harm) then, at the welfare or disposal stage, the court cannot assess risk on the basis either (a) that there was sexual abuse or, and importantly, (b) on the basis of a suspicion that there was or might have been sexual abuse, as alleged by the younger boys. A similar but not identical situation would have arisen if the allegations of sexual abuse had been pursued and the court had been unable to make findings that there had been sexual abuse, or who the perpetrators were, to the requisite standard of proof.
Both Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, are directed to the approach to be taken by the court, but in this context it is to be remembered that it is only the court that can make a public law order and, by that route, (1) impose certain duties upon a local authority and (2) empower them to take certain steps and actions.
Problems arise from the fact that the local authority as a public body is charged, in broad terms, with the protection of children; and it remains aware of the allegations and denials of sexual abuse that have been made in respect of this family.
Additionally, problems arise because, as was in my view correctly pointed out by the manager of the local authority who gave evidence as to the care plans, (1) if public law orders are made matters do not stand still thereafter and the local authority will have to make decisions in the circumstances that exist from time to time, and (2) more generally in the performance of their statutory duties local authorities have to take decisions on the information that is then available to them and are not in a position to make findings of fact.
These points are an indication of the difficult situations and dilemmas in which local authorities regularly find themselves both before and after the making of public law orders.
Local authorities regularly have to take decisions against a background of disputes, which can be stark and heated. They regularly have to assess risk and act on the basis of that assessment. They are often faced with parents and families who are unco-operative and all too willing to seek to blame others and, perhaps, in particular the local authority for problems that have arisen. They are often under-staffed and have well-known funding problems.
To my mind, the difficulties facing local authorities in the performance of their statutory duties in respect of children and families should not be underestimated.
Additionally, in my view, it should not be forgotten that although it may be that criticisms can be made of the local authority and their management of a case, they are not the parents or the persons who have had day-to-day care and control of a child who has been harmed prior to their involvement, but are generally seeking to deal with problems concerning, and the deficiencies in, the care of children by others.
To my mind, both the court and the local authority in advancing care plans in this case have to have regard to the points that, (1) serious allegations of sexual abuse have been made by the younger boys, and (2) these allegations have been consistently and steadfastly denied.
As was agreed in argument, the existence of such allegations and their denial are facts that are clearly established. Also, in my judgment, if care orders are made, in their future dealings with the relevant members of the family the local authority have to have regard to those facts and treat them as their starting point if and when they consider issues relating to sexual abuse. Further, in my judgment, in any such consideration the local authority have to remember that the allegations of sexual abuse (albeit serious) are only allegations and that they are, and have been, denied.
In my judgment, the existence of these proceedings and the decision therein not to pursue the allegations means that the position is now different from that which existed during the period that the allegations were pursued during the currency of the proceedings because:
(a) the allegations have been put before a court but have not been proved for the purposes of either s 31 or s 1 of the Children Act 1989, or otherwise;
(b) it follows that the court and the local authority are not authorised, pursuant to statute, to interfere in the lives of the relevant individuals by reason of any public law orders made in these proceedings on the basis that the sexual abuse alleged by the three younger boys, or some of those acts of sexual abuse, have taken place;
(c) further, at the welfare or disposal stage of these proceedings and thus in recommending and approving care plans, the local authority and the court should not, in my judgment, assess risk for the purposes of s 1 and thus (i) what public law order should be made, and (ii) the terms of the care plan on the basis that allegations of sexual abuse and future risk based thereon have been established.
Additionally, in my judgment, having regard to the circumstances that now exist, unless and until the local authority either:
(1) pursue further proceedings to seek to establish to the civil standard that the sexual abuse alleged by the three younger boys has occurred; or
(2) a significant change in circumstances occurs,
it would be wrong for the local authority:
(a) to advance care plans; and
(b) thereafter, if public law orders are made, to proceed in their dealings with the family on the basis:
(i) that the fact that the local authority have not proceeded with and are not seeking to establish the allegations of sexual abuse made by the younger boys makes no real difference because, for example, the local authority believe those allegations or some of them to be true or believe that the younger boys have been sexually abused; or
(ii) as they have done during the period that the interim care orders were in place (and thus on the basis set out in s 38(2) of the Children Act 1989) that the local authority had reasonable grounds for believing that those allegations of sexual abuse would be established.
First, in my judgment, any existing belief of the local authority concerning the allegations of sexual abuse has to be re-assessed and re-evaluated at all levels of the local authority in the light of the evidence and the issues that have arisen in this case. In my judgment, it is incumbent on the officers at all relevant levels of this local authority to urgently and thoroughly review the position of the local authority having regard to the existing position. In other words, existing mindsets have to be re-visited and, where appropriate, altered.
Secondly, if after such re-evaluation the local authority or some of its officers still hold the belief that the allegations or some of them are true, none the less, in my judgment, unless and until the local authority decide to seek to establish the allegations of sexual abuse to the civil standard or there is a significant change in circumstances, the local authority in the performance of their statutory duties cannot properly deal with any of the family and, in particular, with the father and C on the basis that the local authority believe that either (i) the younger boys have been sexually abused or (ii) there has been any sexual relationship or activity between the father and C.
In my judgment, unless and until the local authority decide to seek to establish the allegations of sexual abuse to the civil standard or there is a significant change in circumstances, the local authority have to proceed on the basis that part of the relevant background is that those allegations have not and will not be proved and established to that standard and, therefore, as part of the threshold pursuant to which, or as part of the basis upon which, the local authority is entitled to interfere in the lives of this family.
In my judgment, it is not practical to define what would be a significant change in circumstances or how it could be acted on without further proceedings.
In my judgment, the above approach accords with the present reality and means that unless and until the local authority decide to seek to establish the allegations of sexual abuse to the civil standard, or there is a significant change in the circumstances, the allegations of sexual abuse that have been made have to be treated as just and only that and, in dealing in particular with C and the father, the local authority, as a public authority with the ability to pursue allegations of sexual abuse to establish them to the civil standard if they wish to take that course, cannot properly or fairly treat and deal with C or the father on the basis that the allegations are true or they believe that they are true. The same also applies to the allegations that were made against the mother.
In my judgment, this view is confirmed, if one considers what the position would have been if the only allegations that had been advanced by the local authority to establish the threshold criteria had been the allegations of sexual abuse. If this had been the case after the decision not to pursue those allegations, the court would not have been able to make any public law orders and therefore the local authority could have taken no further part in the lives of the family pursuant to any public law orders.
In my judgment, if the court is satisfied that the threshold criteria are satisfied on the basis of the allegations of neglect and emotional harm in determining what orders, if any, should be made and in approving the care plans, the court has to proceed on the basis set out above in respect of the allegations and denials of sexual abuse.
In my judgment, this course would be likely to have different effects when considering issues that relate to relationships between members of the family, eg sibling contact between C and his younger brothers, and when determining issues which relate to the children as individuals. For example, if a decision is made that the threshold criteria are satisfied in C's case on the basis of the allegations of neglect and emotional harm, then in the present circumstances the issue as to what, if any, order should be made and the care plan, if one is made, should not be considered on the basis that C is a child who has been abused and who has abused others, as is alleged by his younger brothers. Rather, those matters should be considered on the basis:
(a) that he is a child against whom such allegations have been made and who has consistently denied them, and
(b) thus that he is a child who has reacted to that situation and who has suffered the turmoil, anxiety, upset and disruption caused thereby and by the reaction of others to the allegations in addition to the harm caused by the matters which it is found establish the threshold criteria in his case.
In contrast, when dealing with each of the younger boys at both stages relating to the making of orders under s 31 of the Children Act 1989 (ie the threshold stage and then the disposal stage, where the child's welfare is paramount) the court should regard those boys as children who have alleged and are alleging, that they have been sexually abused and, to the extent that they allege or assert it, have abused others, but with the important caveat that the allegations that they have made have been denied.
Additional points at the welfare or disposal stage
Additionally, in my approach at the welfare or disposal stage I have had regard to decisions of the European Court of Human Rights (eg Söderbäck v Sweden [1999] 1 FLR 250, in particular at para 30 of the judgment; Hokkanen v Finland [1996] 1 FLR 289, in particular at para 58 of the judgment; and Kroon and Others v The Netherlands (1995) 19 EHRR 2663 and in particular paras 31 and 32 of the judgment) and English decisions which have had regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), in particular Art 8, eg Re F (Care: Termination of Contact) [2000] 2 FCR 481, in particular 488G-491H, where Wall J helpfully summarises existing English authority and at 495D-498D, where he deals with arguments relating to Art 8; Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, [2001] 2 FLR 582, paras [52]-[58], where Hale J gives an overview of Art 8 and demonstrates the overlap between its purposes and those that underlie the Children Act 1989 and makes the point that sometimes not to interfere where interference is called for may also violate a child's Convention rights and the positive obligation to secure a new family for a child who has been deprived of life with his family of birth; and Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 and in particular paras [33] and [34], where Hale J says this:
'[33] I would have reached that conclusion without reference to the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950, but I do note that under Art 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be "necessary in a democratic society".
[34] There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.'
I therefore have recognised and taken into account:
(a) the aim identified by Hale J in that passage; and
(b) the advantages and benefits which flow from a child being brought up by a member of his or her birth family and having contact with other members of that family and thus his or her siblings and the non-custodial parent.
However, in my view, it is wrong to interpret and apply statements in the above cases before the European Court of Human Rights, or similar statements in the English cases, concerning the underlying aims of the Children Act 1989 (and thus, for example, statements) to the effect that the taking of a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of re-uniting the natural parent and child - see, for example, para 30 of the judgment in Söderbäck v Sweden [1999] 1 FLR 250 - as giving a right, or as an over-riding factor, for consideration.
In my judgment, such an approach would fail to take account of:
(1) the qualifications contained in such statements by the use of words such as 'normally' or 'generally';
(2) references in those statements to 'temporary care' when sometimes this will not be in the best interests of the child concerned;
(3) the references to the need for the court to strike a fair balance having regard to the rights and freedoms of all concerned and, more particularly, the best interests of the child;
(4) the references therein to the point that Art 8 requires respect for family life and does not create a right in parent or child, and to its principal purpose of Art 8, at least where children are concerned, being the protection and welfare of the child;
(5) the provisions of para 2(2) of Art 8 of the Convention; and
(6) the point that in deciding what order should be made and care given, the medium- to long-term welfare needs of the child are to be
considered and the fact that under s 1 of the Children Act 1989 the court's paramount consideration is the welfare of the child.
In my judgment, it is axiomatic that having carried out the appropriate consideration of the competing interests, rights and freedoms from the starting point that the aim or purpose is to keep birth families together and to promote contact with non-custodial parents and siblings while living elsewhere, the medium- to long-term welfare of a child may be best served by that child not living with and being brought up by one or more of his or her natural parents and, further, in some cases by that child not having contact with his birth family or some members of it.
However, before any decision to the effect that a child should not be brought up by one or more of his or her natural parents, or to the effect that a child should not have contact with members of his or her birth family is reached, the practicalities, advantages and risks attendant upon that child living with and being brought up by a natural parent and contact should be considered, as should the relevant competing rights, freedoms and interests of the persons concerned, having regard to (i) the underlying aims of s 8 of the Children Act 1989, and (ii) the point that the more serious the interference with the family life of the birth family the more compelling must be the justification.
The nature of proceedings under the Children Act 1989 for public law orders
In my judgment when considering the preparation of statements, disclosure and the role of experts, the nature of proceedings under the Children Act 1989 for public law orders should be taken into account. In this respect, I have had particular regard to Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, sub nom Re L (Police Investigation: Privilege) [1996] 1 FLR 731 and the comments I made thereon in S County Council v B [2000] Fam 76, 89F-G, 91C and 92F-G and [2000] 2 FLR 161, 175D-G, 177D and 178G-179A respectively.
In Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, sub nom Re L (Police Investigation: Privilege) [1996] 1 FLR 731, the House of Lords was considering an expert's report and the decision is based on the view that Children Act proceedings seeking a public law order are essentially non-adversarial. As S County Council v B [2000] Fam 76, [2000] 2 FLR 161 shows, elsewhere such proceedings have been described as not purely adversarial but quasi-inquisitorial.
To my mind, some tension exists between the statements that such proceedings are essentially non-adversarial and the points made as to establishing the threshold criteria and the establishment of facts for the purposes of ss 31 and 1 of the Children Act 1989 in Re M (A Minor) (Care Orders: Threshold Conditions) [1994] AC 424, [1994] 2 FLR 577, Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195. These points demonstrate the need for the local authority to prove facts to the civil standard both at the threshold stage and, then, at the disposal stage in, for example, assessing risk and therefore reflect an adversarial procedure, particularly at the threshold stage.
This adversarial aspect of the procedure is accommodated in the general statements in the authorities as to the nature of the proceedings by the qualifications to those statements, for example the qualification I have referred to above, that they are not purely adversarial but quasi-inquisitorial and that they are essentially non-adversarial.
In accordance with the guidance given in Re M (A Minor) (Care Orders: Threshold Conditions) [1994] AC 424, [1994] 2 FLR 577 and Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, the approach in practice at the threshold stage, where the local authority has to establish the existence of the threshold criteria on the basis of facts proved to the civil standard, and thus, on that basis, that the parents have not acted as it would be reasonable to expect a parent to act, is largely an adversarial process. Further at that initial stage, the test that the court is applying is not one as to what would best promote the welfare of the child, rather the issue at that stage is whether the threshold or trigger exists to enable public authorities to interfere in the lives of a family and thus possibly remove children from their parents.
Human nature and the respective roles of the parties at that stage of public law proceedings have the result that those proceedings are treated at that stage as being adversarial or as having a substantial adversarial element.
In my judgment, it is at the next stage, namely the welfare or disposal stage, when the issue is what would best promote the welfare of the child that the non-adversarial or inquisitorial nature or element of the proceedings comes to the fore.
In my judgment, when an expert is instructed (whether or not he or she is jointly instructed, but perhaps more obviously when the instructions are joint) and his or her views are relevant both as to the threshold and disposal stages, the points that the expert has been instructed in proceedings:
(a) which are described by the House of Lords as essentially non-adversarial, or which are not purely adversarial but inquisitorial, and
(b) which, once the threshold has been established, are concerned with the issue as to what would best promote the welfare of the relevant child, need to be remembered when considering the approach that should be taken by the parties and their advisers to such experts.
Thus in this case it is something which should have been remembered and should have informed the approach that should have been taken towards all the experts that were instructed, including the Young Abusers Project.
Preparation of evidence and disclosure
It was rightly accepted that all parties are under a duty to make full and frank disclosure. Initially, this places a heavy burden on a local authority when presenting their case (see, for example, para 4 of the Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456). As that Practice Direction provides, it is also their duty and that of their legal advisers to confine issues and evidence to what is reasonably considered necessary for the proper presentation of the case. A proper presentation is, naturally, one that is fair and that has proper regard to Art 6 of the Convention.
That heavy burden arises in all cases where public law orders are sought because of the nature of the proceedings. However, I would agree with submissions made in this cases that where, as in this case, the local authority advance allegations which, if they were ever to be established to the criminal standard, would constitute serious criminal offences, the approach taken in the criminal courts should be remembered and applied with appropriate alterations to reflect the differences in procedures.
In such a case, the local authority are effectively seeking to prove criminal offences to the civil standard. In my judgment, the difference in procedures that exists between the criminal courts and the family courts (eg Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456, the making of the case in family courts in statements without a charge or indictment, the hearing being in private in the family courts and the wider obligations relating to disclosure on respondents and their experts in family cases) does not lead to or found an argument that requirements of fairness in respect of the identification of the allegations made and the evidence, both oral and documentary, to be relied on to prove them by the person advancing those allegations, namely the local authority, is substantially different to that of a prosecuting authority.
In my judgment, in every case under the Children Act 1989 when a local authority is seeking public orders the local authority should identify as soon as is possible the allegations they are seeking to establish separately from, or as a separate part of, the statements that they put in setting out their evidence. In my view, this accords with, although it is not expressly stated in, paras 1-5 of Best Practice Guide (June 1997). Further, in my view, it is a proper reflection of the guidance given by the House of Lords in Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80.
Although this was not the case here, in my view too, often the allegations have to be looked for in, and extracted from, the body of lengthy statements put in by social workers which seek to recount the story thus far and therefore they have to be sought in various places set out in a narrative form by the local authority.
A separate identification of the allegations that the local authority seek to establish and thus the facts they seek to prove to establish, (i) the existence of the threshold criteria and, (ii) the reasons why the care plan proposed best promotes the welfare of the relevant child, would, in my view, helpfully focus thinking on the issues in the proceedings and thus, for example, the need to identify the evidence, both oral and documentary, on which the local authority rely (see again para 1 of Best Practice Guide (June 1997)).
In my judgment, both tasks are ones that should be performed by someone with knowledge and training which enables that person to do the job properly. I would add that, in my judgment, such separate identification of allegations would be on the basis of the information known at the time and would be subject to amendment during the proceedings.
Important parts of the preparation of statements and thus the evidence that the local authority are to rely on are: (a) a proper understanding of the relevant legal principles, the issues in the case and the procedures of the court (see again Best Practice Guide (June 1997), in particular paras 1-5 thereof) and, with that background:
'…
(b) a proper examination of the background material and thus the relevant files;
(c) a proper discussion with the relevant witnesses to ensure, so far as possible, that their statements contain a full and proper account of the relevant matters, which include the central matters seen or heard by that witness, the sources of hearsay being recorded by that witness, and the relevant background to and the circumstances in which the matters set out took place; and
(d) a proper consideration of what further information or material should be obtained.'
By reason of their respective training and experience, all of the above are basic issues for a litigation lawyer, but not necessarily for a social worker (see again Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456 and in particular paras 1 and 4 thereof, which make it clear that duties are imposed on the parties' legal advisers).
If this work is done properly, it would also mean or lead to the following:
(a) experts being instructed on a properly informed basis;
(b) statements exhibiting appropriate background material; and
(c) additional appropriate discovery.
It is not only the applicant local authority and their advisers who have duties in respect of the preparation of cases and the instruction of experts: all the respondents also have such duties.
The guardian has access to the local authority's files. However, in my view, this access does not mean that the other respondents should treat, or regard, the guardian as a bloodhound or a detective or otherwise rely on the guardian to take primary responsibility to check that there has been full and proper preparation of evidence, disclosure and instructions to experts. In my view, that is not the role of the guardian and, in any event, other respondents will be likely to have different interests to the minors represented by the guardian. That was certainly the case here.
It follows, in my judgment, that all respondents and their advisers:
(a) have mirror duties and responsibilities to those I have set out relating to the local authority in respect of their evidence;
(b) should check the decisions made as to the experts to be instructed and the terms of those instructions and thus the input they want to have into those terms;
(c) should consider whether it appears that the local authority have performed their duties in preparing the case and as to disclosure;
(d) should consider what further information or material should be obtained; and
(e) should pursue issues as to disclosure at interlocutory hearings if they have not been agreed.
All the above duties of all the parties continue with appropriate modifications throughout the preparation of the case and thus to the time when a consideration of the reports of experts falls to be carried out.
In relation to disclosure, there seems to be a general reluctance of many involved in family proceedings to disclose documents. In part, this is justifiably based on the nature of the procedure which, like judicial review, is based on statements and the obligation of the public body involved and other parties to make full disclosure. This leads to the discouragement by the courts of fishing expeditions for discovery or applications for discovery that can be described as Micawberism (see, again, paras 2 and 4 of the Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456).
However, it seems to me that, additionally, this reluctance is also often incorrectly based on views relating to confidentiality and an assertion that records of the local authority are subject to public interest immunity. Both of these are large subjects and this judgment is not an appropriate place to address them in any detail. However, in my view, issues relating to confidentiality and public interest immunity in the context of Children Act proceedings are regularly misunderstood and asserted as a reason why disclosure has not been made, or for refusing a request for disclosure made of a local authority, a guardian ad litem and experts in connection with proceedings under the Children Act 1989.
In my judgment, the first thing that needs to be remembered is that when disclosure in respect of proceedings under the Children Act 1989 falls to be considered, the first question, as it is in other proceedings, is whether the material passes the relevant threshold test for disclosure. This test has had a number of formulations, but one regularly used in relation to it is and remains whether disclosure is necessary for the fair disposal of the proceedings; see the old RSC Ord 24, r 13 and now CPR 31.17, which in its first part reflects the definition of standard disclosure in CPR 31.6, which is in the following terms:
'Standard disclosure requires a party to disclose only—
(a) the documents on which he relies; and
(b) the documents which—
(i) adversely affect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case; and
(c) the documents which he is required to disclose by a relevant practice direction.'
Also, it now needs to be remembered that issues of disclosure engage Convention rights in family proceedings, particularly Arts 6 and 8.
It has been established by high authority in this country that, generally, confidentiality is not a valid reason for non-disclosure of material that passes the relevant threshold test for disclosure (see, for example, Science Research Council v Nassé; Leyland Cars (BL Cars Ltd) v Vyas [1980] AC 1028, 1067A and D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 230C-D. In both passages, in the relevant speeches in the House of Lords Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 is cited and the most often cited passage therein is at 433H, where Lord Cross says that confidentiality is not a separate head of privilege but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest, and see further Wallace Smith Trust Co Ltd (In Liquidation) v Deloitte Haskins & Sells (A Firm) and Another [1997] 1 WLR 257 in particular at 273F-274B).
It follows from that that something over and above or in addition to the simple assertion of confidentiality is needed to lead to a conclusion that disclosure of material that passes the relevant threshold test for disclosure can be refused in proceedings.
In proceedings concerning children, significant harm to a child has been taken into account in the consideration of the competing interests involved when determining whether disclosure of relevant material known to the court but not to one of the parties can be refused (see, for example, Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, sub nom Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687, where, however, it is made clear that non-disclosure will be the exception and should only occur when the case for it is compelling).
In a recent case, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, Munby J carried out a very helpful review of authorities and in particular those relating to the Convention. He concluded that the Art 8 rights of any person, if they are sufficiently engaged, could found an order that relevant material should not be disclosed. Thus, he concludes that there is room for a balancing of competing interests under Arts 6 and 8 and a conclusion based thereon that some relevant material should not be disclosed in proceedings.
To my mind, this is an interesting development which arguably is not on all fours with the general approach previously adopted in the English courts that confidentiality was not a ground for refusing disclosure of relevant material (see again, for example, Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405).
I comment that to my mind issues discussed in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 also relate to interesting points as to the basis on which disclosure of material relating to children by, for example, the media can be enjoined and, in particular, whether an injunction can be based on Art 8 and/or the public interest in promoting the welfare of children, rather than simply on duties of confidence. These issues are well outside the ambit of this judgment, but the decisions made in respect of them in other cases may have an impact on disclosure for the purposes of proceedings under the Children Act 1989 and, indeed, other proceedings whether held in private or in public.
Importantly, as was done by the House of Lords in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, sub nom Re D (Adoption: Reports: Confidentiality) [1995] 2 FLR 687, at the end of his judgment in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, Munby J emphasised the point that it is only if the case for non-disclosure is convincingly and compellingly demonstrated that an order for non-disclosure will be made and in most cases the needs of a fair trial will demand that there be no restrictions on disclosure even if the case for restrictions is made out, the restrictions must go no further than is strictly necessary.
I respectfully agree with that. Further, in my judgment, this approach underlay and underlies the correct approach to public interest immunity.
Public interest immunity is a descriptive term for a basis for refusing disclosure of relevant material at a trial. It is based on a public interest that is strong enough to compete with, and sometimes prevail over, the public interest in there being a fair trial and, consequently to that end, disclosure of all material that passes the relevant threshold test for disclosure. Thus, it gives rise to the need to consider competing public interests.
Since R v Chief Constable of West Midlands Police ex parte Wiley; R v Chief Constable of Nottinghamshire Police ex parte Sunderland [1995] 1 AC 274, there has been a considerable review of the law, practice and approach relating to public interest immunity, which included statements to both Houses of Parliament, which were adopted by the Labour Government that followed. Part of that consideration was in respect of what was called a class claim to public interest immunity, as opposed to a contents claim. The result was that, in large measure, the class claim became a matter of history.
Another important product of that review was to re-emphasise the need to carefully examine and explain the public interest that was being advanced to establish the assertion of public interest immunity in respect of identified material and thus the contents of particular documents.
Additionally, the ability of a person with appropriate authority within the relevant public body, for example, the relevant minister, not to advance a claim based on public interest immunity in a given case was recognised.
There are some differences between cases concerning children and thus the records of local authorities and the records of other public bodies, for example the Department of Trade and Industry relating to the investigation and inspection of companies and Customs and Excise. Important among these are the interests of children, respect for family life and the need for social workers to continue to work with families after the end of the proceedings. But there are a number of overlaps between the roles and records of local authorities and other public bodies concerned in investigation that were at the heart of the review of public interest immunity I have referred to.
That review and decisions of the court in other areas are relevant to the question whether public interest immunity attaches to material in the hands of a local authority. In my judgment, the result of that review and those authorities is that:
(a) any case on public interest immunity that precedes R v Chief Constable of West Midlands Police ex parte Wiley; R v Chief Constable of Nottinghamshire Police ex parte Sunderland [1995] 1 AC 275 or post-dates it but does not include a careful consideration of that case and the developments in the law and practice relating to public interest immunity that followed should be regarded with caution and carefully reconsidered. For example, in my judgment, that applies to the decision of the Court of Appeal in Re M (A Minor: Disclosure of Material) [1990] 2 FLR 36;
(b) general statements that one sees in textbooks and hears that social work records are covered by public interest immunity, which is a widely stated class claim, should now be consigned to history;
(c) anyone advancing a claim to public interest immunity in respect of material held by a local authority should take advice and set out with particularity the harm that it is alleged will be caused to the public interest, for example the proper conduct of the duties of a local authority in respect of the protection of children, if material which passes the threshold test for disclosure is disclosed with or without appropriate redaction in the relevant proceedings; and
(d) before embarking on a claim to public interest immunity or another basis for opposing disclosure consideration should be given to the question whether the material passed the threshold test for disclosure and if so why.
Generally, I make the point that, as Munby J emphasised in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, in respect of claims for non-disclosure based on Art 8 a compelling case for non-disclosure based on public interest immunity needs to be made out and any non-disclosure must go no further than is strictly necessary, having regard to the competing public interests.
Further, generally I make the point that, in my judgment, both local authorities and guardians ad litem should be more willing than they seem to be at present to exhibit their notes of relevant conversations and incidents that are relied on as evidence for findings at the threshold or welfare stage of proceedings, rather than to embark on what is a time-consuming and difficult exercise of preparing summaries of those notes.
In this context, the practice of the Official Solicitor of exhibiting attendance records was referred to by leading counsel for the father and I agree that:
(a) it would have been beneficial if this practice had been adopted in this case by both the local authority and the guardian;
(b) it is likely to be beneficial in many cases if this practice were to be so adopted.
This does not mean that the relevant social worker and the guardian do not give a summary or point to the most important parts of the notes, but has the result that the parties and the court can more readily see the context in which certain statements were made or events took place.
In this case, in advancing the case on sexual abuse the local authority relied on allegations made to and events in the presence of (i) the foster-mother and a lady who helped her and was herself a foster-mother, (ii) social workers, (iii) a doctor who examined the boys and (iv) the guardian, but only some of the relevant contemporaneous notes were disclosed. This caused serious problems and should not have happened.
To my mind, all the notes of the foster-carers were relevant because they gave a contemporaneous record of the circumstances in which the allegations relied on were made and which led up to the making of those allegations. Notes recording and containing references to the allegations were of most relevance, but, in my judgment, notes of other matters were relevant to give an indication of the matters noted more generally and the approach of the two foster-carers to note-taking.
Further, those further notes were likely to be relevant to the allegations of neglect. The failure to either (i) gather together all the notes of the foster-carers (ii) or to go through the history and background with them, led to the experts being instructed and this case being opened on an incorrect basis as to when the first allegations of sexual abuse were made.
Additionally, the guardian, in correspondence through her solicitors, resisted a request that she should disclose her contemporaneous notes of meetings relating to passages in her report that were relied on as allegations of sexual abuse made by the boys. In respect of that refusal, counsel for the guardian referred me to the notes to rr 4.11(a) and 4.17 of Family Court Practice (Jordans, 2001), which make references to confidentiality and public interest immunity. For reasons I have given earlier, in my judgment, those passages and the role and status of the guardian did not warrant the failure to disclose the notes requested. However, I accept that the approach of the guardian's solicitors is one that it is likely that many family practitioners might have adopted because of the general reluctance I have referred earlier to disclose material in addition to what is included in and exhibited to the reports of guardians.
The requests that were made of the guardian were not pursued at an interlocutory stage.
When the issue of disclosure of the guardian's notes was raised during the hearing, after some initial reluctance, her counsel, in my judgment correctly, accepted that the notes were relevant and should be disclosed and, as he said, when you analysed the position it became clear why that was the case. In short, they were contemporaneous notes of conversations with, amongst others, the boys concerning the sexual abuse alleged and more general behaviour and conduct of the boys. They therefore contained a contemporaneous record of highly relevant exchanges.
When the guardian's notes were produced, I commented that they were excellent notes and, for example, their relevance was demonstrated by the fact that a number of questions, not least by the guardian's counsel, were based on them because they added to the information in her report.
This is not a criticism of the way in which the report summarised discussions referred to in them, but it seems to me a likely if not inevitable use of source material at and in preparation for a hearing over and above a summary thereof.
Experts' reports
There are a number of authorities relating to the instruction and role of experts. Save to a very limited extent, I do not propose to add to them. First, I have already made the point that all parties owe duties in respect of the identification and instruction of experts. Secondly, and also relevant here, is the point that once a report from an expert is received it should be considered by all the parties and their legal advisers to check:
(a) that the expert has reported in accordance with his or her instructions;
(b) whether that party wishes to put any further points to that expert, which would include points on his or her reasoning and also points as to what facts or matters the expert has considered and whether he or she agrees that other facts or matters are relevant and would make a difference; and
(c) the role that the expert should play at the hearing and thus whether and if so when, and as to what, the expert should give oral evidence.
The expert evidence
I heard evidence from the following experts instructed for the purpose of these proceedings:
(a) Miss Vikki Simpson, a chartered forensic and counselling psychologist. She was the only expert who saw all members of the family. She carried out a number of well-established and recognised tests; she also saw S when she was brought to her consulting rooms by the parents. Her report is dated 18 January 2001 and is based on interviews and tests carried out in October and November 2000. She expressed views on all members of the family based on her interviews, observations and tests. Those views included conclusions on the possibility of the mother being able to care for S or for S and all or some of the boys. Following and in accordance with the report of Miss Simpson and her recommendation, the Young Abusers Project and Dr Wilkins were instructed.
(b) Dr Wilkins is a consultant psychiatrist. He was instructed by the mother's solicitors to carry out a psychiatric assessment of the mother. During his oral evidence, Dr Wilkins also expressed views on the chances or prospects of the mother being able to care for S, or for S and all or some of the boys.
(c) Dr Tully, a chartered clinical and forensic psychologist who was instructed by the guardian's solicitor on the basis that the instructions were a joint instruction of the parents, the local authority and the guardian to carry out a risk assessment of the mother and father, bearing in mind the allegations of sexual abuse made against them. He too expressed views on the chances of the mother being able to care for S, or for S and all or some of the boys.
(d) Anne Cattenach, a registered drama therapist and play therapist who prepared a report relating to JL's views and attitude towards contact.
All these experts gave evidence that was relevant to the allegations of neglect and emotional harm and issues relating to disposal.
In addition, I heard evidence from:
(a) Dr Barker, who examined the children after they had made allegations of sexual abuse. She has had very considerable experience of making such examinations on behalf of the police. Her statement to the police, which had her contemporaneous notes attached to it, was in the papers.
(b) Dr Vizard and Dr Yates, who signed reports following assessments carried out at the Young Abusers Project.
Dr Vizard's reports related to C and T and Dr Yates' reports related to TR and JL.
Dr Vizard is a consultant psychiatrist with very considerable experience. She helpfully provided the court with a draft chapter for a forthcoming publication which explained the approach generally adopted by the Young Abusers Project.
Dr Yates is now a consultant psychiatrist, but at the time he prepared the reports he was a specialist registrar attached to Great Ormond Street, working at the Young Abusers Project.
All of the above experts clearly had considerable expertise in their respective fields.
The allegations of sexual abuse and the instructions to and report of the Young Abusers Project
I turn to deal with these issues before returning to deal with the remaining live allegations relating to neglect and emotional abuse because they are relevant background to (i) the approach to be taken to the report of the Young Abusers Project, and (ii) the stance of the local authority after the decision was made not to pursue the allegations of sexual abuse. Also they are relevant to my consideration of the care plans and the orders I should make.
In commenting on these matters, I make some criticisms of the approach adopted in this case and some suggestions as to the approach that should be adopted in other similar cases: these comments, linked to comments I have already made under the heading 'My Approach in Law'.
I make these comments notwithstanding that a number of authorities already exist which give general guidance because, as I have said, the decision of the local authority, which I agree was the correct one in the circumstances that arose, not to pursue the allegations of sexual abuse had the result that a considerable amount of time and money was wasted. Thus, it seems to me I should make some general comments with a view to promoting a result that the problems that arose in this case and caused the decision of the local authority to no longer pursue the serious allegations of sexual abuse, which if they had been established would have demonstrated widespread sexual abuse within this family, are if possible not repeated. Clearly, it is unsatisfactory that the situation is reached that such serious allegations are not pursued several days into a hearing.
In considering the position in relation to the disclosure and the instructions to, and the report of, the Young Abusers Project, I repeat my acknowledgement of the enormous benefit of hindsight and the advantages which flow from an examination of issues at a hearing. I accept that a number of the things that seem plain now may not have been so clear in the past.
The allegations of sexual abuse
As I have already indicated, in the statements of the foster-mother to this court and to the police, it appeared that the first allegations of sexual abuse were made by T 'out of the blue' to the foster-mother. The allegations so made by T include allegations against the father and C.
Contemporaneous notes made by the foster-mother in relation to those allegations were exhibited to her statement to the police which was included in the court bundles. Additionally, contemporaneous notes taken by a friend who was a foster-mother and who had looked after the children both in the foster-mother's home and her own home were exhibited to a statement of a social worker. Those notes related to later allegations of sexual abuse.
There was quite lengthy cross-examination of the foster-mother and the lady who had assisted her as to the manner in which they compiled their notes. However, the truth and general accuracy of the notes produced, and thus their evidence of the foster-mother's as to the content of the allegations made to them by the younger boys, and the circumstances surrounding the making of those allegations, was not really challenged.
I asked to see other notes made by the foster-mother and the lady who had assisted her. I confess that at the time I made that request I was not expecting those notes to contain other allegations of sexual abuse by the younger boys. However, in my view such other notes were relevant because, for example, they would have demonstrated what other matters these ladies noted and would give a wider picture of the boys' behaviour in the foster home, and thus of (i) the background to the allegations of sexual abuse that were made and relied on, and (ii) the evidence of these ladies of the behaviour of the boys that was relevant to the allegations of neglect.
It was accepted at the Bar that if I had not made this request the notes that were found in complying with it would not have come to light and would thus not have been disclosed in these proceedings. The likely result of that would have been that the allegations of sexual abuse would have been pursued and the court would have reached a decision in respect of them in the absence of relevant information that was in the possession or control of the local authority and, to a lesser extent, the guardian.
Additional notes of the foster-mother that were so found disclosed that there had been earlier allegations of sexual abuse which were recorded therein. These notes also indicated that the guardian was aware that comments had been made to the foster-mother which could indicate that there had been sexual abuse, or that the younger boys had inappropriate sexual knowledge prior to the allegations which had been said to have been made 'out of the blue' by T on 22 October 2000.
I can see why, in isolation and at the time, the guardian, the relevant social worker and the foster-mother might have considered that these comments were not particularly significant, but when they are considered with (i) further allegations and information found in other notes of the foster-mother, and (ii) the later allegations made first by T on 22 October 2000, to my mind it becomes apparent that they were comments that could be relied on to support an argument that the allegations made on 22 October 2000, and which had been relied on as the first allegations of sexual abuse, had been preceded by (i) other allegations, and (ii) the possibility of discussion between the three younger boys and their foster-parents which might have informed those allegations.
Further matters contained in the other notes of the foster-mother add further force to that argument. In particular, the first allegation that had been relied on was one by T against others and, on one view of the evidence, was made in circumstances that had not occurred before, namely that T had soiled and then hidden his underpants in his bedroom and this had been discovered by the foster-mother, which caused T some real embarrassment. Whereas the notes that were found late in the proceedings reveal, as I understand it, (i) that this was not the first time that T had done this and (ii) that earlier allegations of sexual abuse had been made against T.
Another issue that was not pursued until I asked that it should be related to the circumstances in which the social worker who attended at T's second and third memorandum interviews came to be there. It transpired that:
(a) this social worker had, it seemed, a long-standing relationship with the foster-mother and had been introduced to assist T;
(b) T had said that he had not repeated his allegations in his first memorandum interview because he felt that the police officer was too young and then, perhaps after discussion with the foster-mother and the social worker, had requested that this older social worker should attend with him at the next memorandum interview; and
(c) this older social worker had driven T from the foster-mother's home to that second memorandum interview.
After the discovery of some of the additional notes that were ultimately found and of this participation of the older social worker who attended with T at his second and third memorandum interviews, arrangements were made for the foster-mother to be recalled and that social worker to be called. However, before they attended to give evidence, a further note or notes were found.
The culmination of these discoveries led the local authority to the decision not to pursue the allegations of sexual abuse further.
As I have said in my judgment, this decision properly recognised that the further information that had then been found meant that the case had been presented, and the experts had been instructed, on an incomplete and therefore incorrect basis. This had the result that, without an adjournment and reappraisal, the allegations of sexual abuse could not be fairly pursued.
Earlier in the proceedings, the solicitors acting for the father had made requests for disclosure of notes both by the local authority and the guardian. These requests were in wide terms and, albeit that some disclosure of notes followed them, these requests were in fact not complied with. If they had been, the notes that were found during the course of the hearing would have been found earlier. The solicitors for the father did not pursue their requests in correspondence after February 2001 and made no application at any interlocutory hearing for disclosure of the notes requested.
After problems relating to disclosure began to emerge during the hearing, applications for further disclosure were made or, in the case of the father, renewed, on behalf of the first three respondents in respect of documents held by both the local authority and the guardian.
It was common ground before me that the additional information found and therefore produced during the hearing from both the local authority and the guardian was clearly relevant in the sense that its disclosure was necessary for the purpose of there being a fair disposal of the issues relating to sexual abuse.
Additionally, it was accepted and indeed was clearly the case that there was no inhibition to its disclosure by reason of its confidentiality, public interest immunity or Convention rights. In the main, the material consisted of contemporaneous notes of relevant conversations and incidents, some of which were not covered in the statements and reports before the court and some of which were.
In my judgment, the non-disclosure of this material was the result of a number of serious shortcomings in the preparation of the case and has had serious implications.
In my judgment, the primary responsibility for these failures rests with the local authority because they have failed in their preparation of this case to properly and fully perform the important parts of the proper preparation of statements and thus the evidence set out above, by failing to ensure that:
(a) those responsible for such preparation had a proper understanding of the relevant legal principles, the issues in the case and the procedures of the court;
(b) there was a proper examination of the background material and thus the relevant files;
(c) there was a proper and full discussion with the relevant witnesses to ensure, so far as possible, that their statements contained a full and proper account of the relevant matters, which included central matters seen or heard by that witness, the sources of hearsay being recorded by that, and the relevant background to and the circumstances in which the matters set out took place; and
(d) there was a proper consideration of what further information or material should be obtained.
Part of the problems may have stemmed from the commendable speed with which the first memorandum interviews were organised. However, with hindsight and although speed is clearly important, it would probably have been better if an experienced investigator with, preferably, the help of a lawyer (if that investigator was not a lawyer) had taken the time to go through the history more fully with the foster-mother. Thus a general lesson to be learned is that as soon as possible after a carer informs a local authority that a child in his or her care has made allegations of sexual abuse, or similar allegations, a full history should be taken from that carer by a person or persons with relevant experience.
In my judgment, in preparing the evidence for this case and before the letters of instruction of the experts were prepared, steps (a)-(d) above should have been gone through.
Point (d) would, it seems to me, have thrown up a number of points relating to the credibility of the younger boys when checking background facts relating to, for example, descriptions of places, including descriptions of the home and also how those descriptions fitted with the homes of the maternal grandparents and Uncle B.
Other matters which could, with advantage, have been checked were the practicability of the abuse the boys were alleging having taken place having regard to the father's work schedule, the daily lifestyle of the boys and their mother during term time and holidays, Uncle B's mobility and what neighbours were able to say as to visits by the mother and the boys to Uncle B's home.
I do not know what, if any, such investigations the police made before they decided not to prosecute; leading counsel for the local authority did not have this information. In my view, investigations of this type are clearly important in cases of this kind where issues arise as to credibility of children and indeed of adults.
However, in my judgment, none of the other parties and their legal advisers can escape some of the blame for the failures in proper preparation of this case. This is because, in respect of (a) the evidence itself and (b) the instruction of the experts, not least because a number of these were joint instructions and, in any event, all parties were concerned to see that the experts were fully and properly instructed and disclosure, the respondents also had duties.
In this context, it is to be noted that each of the first, second and third respondents during the hearing sought and submitted that there should have been further disclosure of the material and, in particular, the notes of the foster-mother, the lady who assisted her and the guardian. As I have said, the second respondent's solicitor sought such disclosure at an earlier stage but did not pursue their request after February 2001.
It was submitted to me that requests were not pursued or made prior to the hearing and my request to see other notes of the foster-mother, because it was assumed that there had been full disclosure of all relevant notes. I accept that, as submitted, those assumptions were made but, given the lines of cross-examination taken in respect of the note-taking practices of the foster-mother and the lady who assisted her, I am surprised that originals and other examples of their notes were not called for.
Further, on the basis of such an assumption and thus the view that there were no more notes that were directly relevant, as I have already said, it seems to me that the other notes would still be relevant both as to the background to the allegations of sexual abuse and as to the allegations of neglect. That is why I called for their production.
Additionally, it seems to me that the notes relating to the meetings by reference to which the guardian (i) expressed views as to C's attitude and (ii) made the point that T had admitted being an abuser (which I think was the only evidence to this effect) were clearly relevant documents to the factual issues that were in dispute.
I was told by leading counsel for the local authority and accept that no lawyer acting on behalf of the local authority had read through the relevant files. It seems to follow from that that lawyers were not involved at the initial stage when the first round of evidence was prepared.
I am naturally aware of the financial constraints on local authorities, but in my judgment this was a serious omission, particularly in a case of this type, because social workers do not have the requisite training, experience or expertise to perform the duties I have set out above as to the proper preparation of evidence, disclosure and the instruction of experts.
Lessons to be learned
In short, the lesson is to take care to ensure that each of the parties and their respective legal advisers take proper steps in, and in respect of, the preparation of cases and thus perform the duties set out above. These are general and well-known duties. They have to be performed having regard to the issues in each case. Particular aspects of the performance of those duties that were not fulfilled in this case were:
(a) the preparation of the initial statements and the exercise relating to disclosure were not properly carried out by the local authority and
were not carried out by a person with the requisite training and experience;
(b) disclosure of the contemporaneous notes of witnesses, including the guardian, was not properly considered, first by and on behalf of the local authority and then by the other parties and their legal advisers;
(c) the instructions and information given to the police prior to the memorandum interviews and then the experts who were instructed later, as to the extent and nature of the allegations of sexual abuse were incomplete, as a result largely of the failures set out above; and
(d) little or no consideration seems to have been given to what further information should be sought by the local authority or provided by the respondents.
An approach that would probably assist in avoiding such failures in the future is one where each witness should be asked to produce all his or her contemporaneous notes of relevant conversations and events together with all similar notes over a relevant period of time. This accords with the practice adopted by the police in this case of exhibiting such notes to statements, for example see the statement of Dr Barker.
However, all relevant notes were not exhibited to the foster-mother's police statement, which shows that the statement should be prepared by a person (i) who is trained and experienced in litigation, and (ii) who is thus aware of the issues and can ask appropriate questions with a view to trying to ensure that all relevant material is produced.
Additionally, such a person should go through all the relevant or potentially relevant files of the local authority. That exercise should identify relevant documents included therein and prompt further relevant inquiries of witnesses, eg here of the foster-mother as to what other notes she had taken. If that inquiry had been made and her notes had been read, it is apparent that they would have been disclosed as being relevant to the allegations of sexual abuse and of neglect.
In a case such as this one where evidence is given (i) as to what was said to a witness by a child or an adult, and (ii) as to events at which the witness was present, the manner in which this case was conducted and witnesses were questioned and the problems that arose show the advantage of the parties having any contemporaneous note of such matters. As a general rule, it seems to me that all such notes should be gathered in chronological order and disclosed.
In that general approach, I would include the guardian and thus bring the approach of guardians when writing their reports more into line with that which has been adopted in the past by the Official Solicitor.
In this context, it should be remembered that not only can a guardian be giving evidence of allegations that are relied on but also that he or she is in many respects the eyes and ears of the court. The production of the guardian's notes would enable the parties and the court to consider the validity of the views expressed by reference to that source material, rather than or together with the guardian's summary and thus, necessarily, his or her interpretation of that material and what is important therein. Such a practice would also encourage all involved to make their notes of meetings etc as soon as possible after they occur.
Here, as I have said, the guardian's notes when produced were excellent and helpful. I should add that the notes I saw of the social workers involved were also clear and helpful and the notes I saw from the foster-parents were also clear and appeared to be full.
It seems to me that the production of contemporaneous notes of relevant conversations and events should not increase the burden on guardians and others in the preparation of cases or greatly increase the material a court has to read. In many ways, it seems to me that it would make the task of writing reports and statements easier: by the time the matter comes to court the statements, reports or submissions should have been identified the most relevant notes.
It seems to me that this approach would have advantages in all proceedings in which a local authority seeks a public law order, but this is perhaps particularly the case where, as here, the local authority are making serious allegations which, if established to the criminal standard, can constitute serious criminal offences.
Next, it seems to me that, given the burden placed on a local authority by Re H (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, as a matter of general practice, a local authority, with the benefit of appropriate advice, should regularly consider what, if any, further information should be sought and thus what, if any, inquiry should be made to enable it to establish the allegations relied on.
I appreciate this places a burden on local authorities and that some of the inquiries might be outside the normal role, duties and expertise of social workers. However, it seems to me that the need to consider what further information should be obtained flows directly from the role of the local authority in the proceedings. For example, if a parent says that he or she could not have done what has been alleged because he or she was somewhere else, it seems to me that it should be considered whether this could be checked.
I have referred earlier to points that it seemed to me could have been followed up and checked in this case.
That leads on to the duty of respondents and their advisers to give a full account of their case and position and thus to provide third party confirmation where it is available. Their duty to give a full account means that they should not adopt a stance of: 'You prove it'. A full account of what the respondents accept and what they deny should be given as soon as possible. This will help to identify and confine the issues.
Further, the respondents and their advisers should consider whether they wish further documents or information to be provided by the local authority, the guardian, an expert or another respondent.
The instructions to and the report of the Young Abusers Project
As I have said, the failure to gather and put before the parties and the court a full picture relating to the background to the allegations made on 22 October 2000 had the result that the police interviews and the instructions given to the experts were on an incomplete and therefore inaccurate basis.
Dr Vizard and thus the Young Abusers Project and Dr Tully were instructed by letters dated 6 February 2001. Both letters were written by the guardian's solicitor. The instructions to Dr Vizard and thus the Young Abusers Project were expressed to be joint instructions of all the parties, with the guardian's solicitor being the lead solicitor.
Miss Simpson had been instructed earlier and prior to the allegations of sexual abuse being made. Her assessment continued after that time. Her report, in large measure, deals with the issues raised before the allegations of sexual abuse were made, albeit that she properly asked for details of those allegations and, therefore, did not ignore them in preparing her report and in conducting the interviews that she carried out after they had been made.
In my judgment, the comments in Miss Simpson's report relating to the allegations of sexual abuse recognise the fact that they have been denied and her report contains an appropriate balance, having regard to the dispute that existed.
The background given in the two letters of instruction written by the guardian's solicitors on 6 February 2001 is understandably in almost identical terms and includes the following:
'These Care proceedings arose out of a long history of concerns which the Local Authority have had about the chronic standard of neglect in the home and the standard of care that the children had been receiving. Previous care proceedings were taken in 1990 when Supervision Orders were made on the children. Matters came to a head this Summer when the behavioural problems exhibited by TR and JL at school became extreme and resulted in their exclusion. T was also showing worrying signs of emotional disturbance and there were concerns about S's welfare in being brought up in a dirty and unhygienic environment.
Care proceedings were commenced on the 19 September 2000 and at the first hearing on the 26 September 2000 the Court made unopposed Interim Care Orders on all the children, except C in respect of whom the proceedings were adjourned, with a view to TR, T and JL being placed in foster care. This was to facilitate an assessment of the boys. In view of the age of S and the concerns in respect of her being of a different nature and quality it was the view of the Local Authority agreed to by the Guardian ad Litem that she should stay with the parents at least for the time being. C remained living with his parents.
On the 22 October 2000 T and JL disclosed that they had been sexually abused and this was followed by a disclosure by TR a couple of days later. The allegations involved [the father] and C. Furthermore the allegations by T and JL also implicated TR as an abuser. As a result C was removed to the [residential unit]. In addition TR was moved from the foster carers and placed at the [residential unit]. Later on as a result of JL being abused by T whilst at the foster carers T was also removed and placed with TR …
Further disclosures have also variously implicated [the mother], Uncle W, who is mother's uncle and who is a Schedule 1 offender, the maternal grandfather and others.
The allegations are denied by the parents and C. TR also denies having abused his brothers.
The Police investigated the matter, including video interviews and have recently indicated that they do not intend to prosecute.
Following the disclosures of sexual abuse mother has indicated her intention to commence divorce proceedings though at the present time the parents are living in the same house.'
Both letters also contain the following paragraph, which is in the following terms:
'In preparing your report, please observe the principle that in determining any question in respect of the children their welfare is a paramount consideration. If during the course of your investigation other issues become relevant, please immediately let me know as I will, after consultation with other parties, consider whether the scope of your instruction should be amended.
Unless you have been specifically asked to do so, please avoid expressing a view regarding the factual disputes as this is, of course, the province of the judge at the final hearing.'
Dr Vizard and thus the Young Abusers Project were instructed to carry out the following:
'a A psychiatric assessment of the four boys to include an assessment of credibility in the light of the disclosures of sexual abuse both within and outwith the family.
b An assessment of the boys' emotional state and impact of the sexual abuse and its disclosure upon their emotional and intellectual functioning. Please also report on their respective needs.
c Whether you consider that the children have suffered more general harm from emotional neglect and abuse. In this regard a report was obtained from Vikki Simpson who was instructed prior to the disclosures of sexual abuse coming to light to deal with the concerns regarding the chronic neglect and disturbed behaviour being exhibited by the three younger boys which prompted the commencement of proceedings.
d Subject to your assessment, advice on recommended treatment/therapies with time scales and on placement.
e Do the boys pose a risk to their respective siblings or other children?
f The level of contact each of the boys should have with other members of the family and any safeguards you would advise as appropriate.'
As is apparent from those instructions, they were given on the basis that the first allegations of sexual abuse were made by T and JL on 22 October 2000 to their foster-mother. Those instructions mirror the detail of the allegations provided in correspondence to the father's solicitors and the way in which the case was opened and presented.
Dr Tully was instructed as follows:
'Please will you carry out a risk assessment of mother and father bearing in mind the allegations of sexual abuse made against them. You should be aware that following the disclosure of sexual abuse mother has indicated her intention to commence divorce proceedings though at the present time the parents are living in the same house. In reporting please will you deal with the position as if the parents are putting themselves forward as future carers both individually and jointly. Please also advise on any available treatment/therapy which may be appropriate for the parents, individually or jointly.'
At this stage I pause to comment that to my mind, properly and understandably, at the beginning of the paragraph headed 'Conclusion and Opinion' in his report Dr Tully says this:
'To some extent, any evaluation of risk must take account of whether certain abusive acts have taken place or not. If the court were to decide that all the children's utterances about sexual abuse were entirely without foundation, then there is really not much else which will compel a conclusion that the father is a serious and risky sexual offender.'
A little later he says this, in the same part of his report:
'I would have thought that a careful and skilful interview of him (that is, C) might have brought out either some confirmatory report or strategic efforts to conceal, which in themselves can be telling.'
Elsewhere in his report, Dr Tully, again to my mind properly, qualified his views by acknowledging that what the younger boys were alleging was denied and may or may not be true. There is therefore balance in his report.
In contrast, the reports of the Young Abusers Project did not contain such balance or qualification. Effectively those reports proceed on the bases (a) that the three younger boys were sexually abused, and thus (b) that C was not telling the truth and that he had been both the victim of abuse and an abuser. Thus the bases of those reports were assumptions or conclusions on matters that were hotly in dispute in these proceedings.
I shall return to a brief consideration of how this came about, but at this stage I pause to record that:
(a) during the hearing before me, it became correctly effectively common ground that the reports of the Young Abusers Project were only of assistance to the court if and when the court made findings that accorded with the bases upon which those reports had been prepared and therefore, as the allegations of sexual abuse were not pursued:
(b) save for the point that the behaviour of the younger boys is not pathognomonic of sexual abuse or of neglect which was confirmatory of evidence given by other experts I have ignored the reports and evidence of Dr Yates and Dr Vizard and thus the reports of the Young Abusers Project in reaching my conclusions in this case.
I am not in a position to comment on the advantages of the approach adopted by the Young Abusers Project from a clinical or psychiatric standpoint. I do not do so. Further, I repeat my acknowledgement that both Dr Vizard and Dr Yates clearly have considerable experience in their fields. Also, they gave their evidence fairly and, in my view, as experts should.
However, in these proceedings the position was reached that, having regard to their existence and the issues that arose therein, serious mistakes were made at all stages of the participation of the Young Abusers Project for which all concerned must take part of the responsibility.
For my part, I regret that I did not alter the order of witnesses and require submissions as to the relevance of the reports of the Young Abusers Project before Dr Vizard gave her evidence. I confess that, having read her reports, and in particular that in respect of C, I was very troubled by the lack of balance in them, but, having regard to the pre-reading time that was available to me, I confess that I was still playing 'catch-up'.
A lesson to be learnt in this respect is that it seems to me that in preparing the witness template and in opening the local authority should consider and raise with the parties and the court the relevance of the reports of each of the experts. If this had been done, it is at least possible that at that late stage in the preparation of this case problems that clearly existed in connection with the reports of the Young Abusers Project would have been identified.
It is, however, also possible that they would not have been because they were missed, or not highlighted, at the advocates' meeting that took place the week before the start of the hearing. At that meeting, requests for the production of the videos of the interviews conducted by the Young Abusers Project were confirmed or made.
The reports of the Young Abusers Project were late, and I accept that, having regard to that, it was likely that requests for production of the videos could not in practice have been made until shortly before the commencement of the hearing. None the less, it seems to me that it would have been better if the videos had been sought earlier or at least that more co-operation had been shown between the lawyers involved and the Young Abusers Project to enable some of the videos to be seen on the first day set for the hearing but on which I was unable to sit.
When giving her evidence, Dr Vizard, as I have said, helpfully provided us with a draft chapter for a forthcoming publication relating to the work of the Young Abusers Project. It is apparent from this that some of the seeds of the problems that arose are that this approach of the Young Abusers Project does not fit with proceedings in which it is the function of the court to determine whether all, some or none of the sexual abuse alleged took place.
In my view, if the Young Abusers Project is to give a report in respect of proceedings where the allegations of sexual abuse are in dispute, it is clear that they should adapt that approach. This is because, in general terms, that approach proceeds on the basis that the person who instructs the Young Abusers Project, eg a local authority, is invited to express the matters that are of concern to them during the preliminary discussions and then at the initial stage of the interview process and thereby encouraged to express a view or invite a consideration of the case on the basis that the concerns expressly reflect what has happened, and those views or relate to matters which the court has to decide.
Further, it seems to me that as a natural progression within the approach adopted by the Young Abusers Project that the interviewers attached to that project also form or are likely to form views as to issues which it is for the court to decide. It seems that this was not appreciated by either the Young Abusers Project or the advisers of all the parties who gave them joint instructions.
There was therefore, it seems to me, a breakdown in communication between the Young Abusers Project and the parties and their lawyers which led to the Young Abusers Project carrying out their assessment and reporting on a basis that, in my view, did not accord with their instructions and, for example, did not pick up on the paragraph I have read, which invites the expert to raise issues that become relevant relating to the scope of their instructions and not to express views regarding factual disputes as that is the province of the judge.
As I have said, it seems to me that this problem arose from a misunderstanding on both sides, namely the instructing lawyers and professionals on the one side and the Young Abusers Project on the other.
In this context, it was acknowledged that parts of the letter of instruction were not as clear as they might have been and could have been read in a way that parts of the report should be prepared on the basis that the sexual abuse alleged had taken place. However, it is also fair to say that the letter made clear (as I have just pointed out) that allegations were disputed and, as indeed was well known to the Young Abusers Project, the court was the decision maker on the disputed issues of fact.
It also has to be remembered that the Young Abusers Project was not provided with the full background, but whether they would have taken a different approach if they had been is to my mind clearly open to doubt, because, for example, Dr Vizard told me that she had not seen the videos of the police memorandum interviews before she interviewed C and T in the manner that she did.
The problem flowing from the misunderstanding I have mentioned is most starkly shown in C's case, but it is also apparent in the cases of the other boys.
In C's case, in the opening part of his interview there was an acknowledgement in the description of the position by the social worker given in accordance with the general approach that the allegations made against him were denied by C. However, it is not until the last part of the interview that C is told by those interviewing him that they believe the allegations of his younger brothers, but it is obvious that this is the case by the way in which the middle and longest part of the interview was conducted.
For example, the use at one stage of an approach involving concentric circles of actions and feelings in conducting that interview was, as Dr Vizard accepted, being used to break C down. Also at one stage during the interview the younger boys were described at victims.
Whatever the merits of the approach adopted, if and when C had been found to be a victim and perpetrator of sexual abuse, in my judgment, in the context of this litigation the approach to this interview and assessment of C did not accord with the letter of instructions and was very unfair to C.
As I said to Dr Vizard, if C had been an informed adult or his lawyers had been present, in my view he would have been fully entitled to walk out of the interview on the basis that it was for the court to decide whether the allegations of his younger brothers or his denials thereof were true and that he was being wrongly interviewed on the basis that he was not telling the truth.
Responsibility for this unfairness to C must, in my judgment, be shared by the Young Abusers Project and all the professionals, ie lawyers, social workers and the guardian involved in giving instructions to the Young Abusers Project.
I accept that an aspect of the problem arose from the fact that the two parts of a split hearing of this case could not take place within an appropriate timescale, but, in my judgment, the real cause was the failure by the experts and those instructing them to discuss and make clear what the parties wanted the experts to do and what the experts proposed to do.
I repeat that hindsight is a wonderful thing, but the lessons to be learnt include:
(a) the need for careful preparation of letters of instruction on an individual basis and, as to this, I agree with the submission made that precedents should be used only as a basis and a check to see that all matters are covered and should not simply be reproduced;
(b) the need for the expert to consider carefully the terms of the instructions and whether he or she can fulfil them by applying his or her general approach or an adaption thereof and thus, although this is a part of the established role of an expert, it seems to me that it would be sensible to invite the expert to confirm this expressly before he or she embarks upon his or her assessment; and
(c) the need for all parties to consider the terms of the instructions to, and information coming from the expert, as to his or her approach with care.
In my view, mistakes were also made after the reports of the Young Abusers Project were received. As I have said, these reports were received late and I acknowledge that this is likely to have been a contributory factor.
As is set out in earlier guidance, it is important that all involved do all they practically can to keep to timetables. However, the reports were received in August and were followed by a professionals' meeting on 25 September 2001 and later an advocates' meeting.
Although the Young Abusers Project were instructed by all the parties, only the local authority and the guardian attended the professionals' meeting and, as I understand it, the other parties were not invited. This was a mistake and perhaps reflected a view that the report was one sought by the parties who were alleging that sexual abuse had taken place but, in any event, all parties should have considered the reports, whether they accorded with the instructions given and their relevance to the proceedings, as soon as was reasonably practicable after their receipt.
In my judgment, the points made earlier as to the nature of proceedings under the Children Act 1989 for public law orders and the position of experts, whether jointly instructed or not, mean that parties and their legal advisers should, after receipt of the report of such experts, raise with them points that they wish them to consider concerning, amongst other things, the following: (i) the approach adopted by the experts; (ii) the facts the parties wished the expert to take into account; and (iii) the evidential basis for the experts' expressed views and reasoning as soon as possible and, in any event, if at all possible, before each expert comes to give evidence in court. This approach is regularly adopted at experts' meetings to identify the matters in dispute between them and thus, for example, issues or disputes as to underlying evidence or facts which it is said an expert should have taken into account.
In my judgment, it is somewhat of a misnomer to describe an expert as being cross-examined by the representatives of the parties who did not take a lead in instructing that expert, and this is particularly at the welfare or disposal stage in respect of an expert who is jointly instructed or whose instructions have been agreed when the inquisitorial element or nature of the proceedings is to the fore.
The exercise that the parties and the court is conducting with that expert at the disposal stage has a large inquisitorial element to it, because its purpose is to ascertain what would best promote the medium- to long-term welfare of the relevant child.
The exercise of raising the matters mentioned above with the experts was not done in this case, with the result that, although through the late delivery of the reports they have contributed to the problems, both Dr Vizard and Dr Yates expressed, to my mind, some understandable annoyance in respect of the arrangement of the times upon which they were required to give evidence, the late request for production of videos of their interviews and, in Dr Yates' case, in respect of questions asked on behalf of TR of which he had not been given notice and was not able to answer from his memory.
As to the videos, it seems to me that a lesson to be learnt is that if an expert videos interviews he should say so in his report and should make those videos available unless he or she wants to raise a particularised point as to why they should not be seen. As to any such point, the comments I have already made on disclosure, confidentiality, public interest and Convention rights are relevant. In my judgment, the general rule is that such videos should be disclosed.
In this case, both Dr Vizard and Dr Yates were questioned by reference to points where it was said that their reports were not substantiated by the videos, or inaccurately set out what occurred. Some of the criticisms were as to adjectival descriptions used in the reports and, thus, matters of opinion and assessment. Neither Dr Vizard or Dr Yates had seen the videos when writing their reports, which they had compiled from contemporaneous notes taken by an observer and their memories.
It seems to me that they might wish to review their practice in this respect because examination of the videos did show some, albeit relatively minor, factual errors. Additionally, I would accept that the videos provided ammunition for cross-examination as to the correct use of adjectival descriptions in the reports. But, in my judgment, once the bases of the approach to the interviews and assessments had been established (which was effectively done without reference to the videos) this additional line of attack was of limited use, because the videos did not give a picture of the attitudes of all those present and assessment of the attitude of the boys is very judgmental. Indeed, to my mind, properly and sensibly, lines of cross-examination on that basis were not pursued at any length with Dr Vizard or Dr Yates.
In my judgment, it should only be in an exceptional case that a court is invited to watch videos of interviews conducted by experts and, in any event, before it is invited to do so the relevant parts of the video and the points that are sought to be made therefrom should be clearly identified so that viewing time is kept to a minimum.
It follows that videos should be viewed well in advance of the hearing and any points arising from them should be one of the matters raised with the expert as early as is practicable.
The relevance of some of the questioning of Dr Yates in respect of his views concerning TR's care plan survived the decision not to pursue the allegations of sexual abuse but was effectively overtaken by events in that the local authority accepted many of the factual points being advanced by both TR and the guardian that were in conflict with bases for Dr Yates' recommendation.
In accordance with my views on the approach that should be adopted towards experts, I consider that the points that were put in cross-examination to Dr Yates should have been raised with him earlier.
I accept that a number of these points had force and it seems to me that if they had been put to Dr Yates earlier they could have caused him to change his recommendation, but even if they did not have that effect outside the courtroom the parties would or should have had the benefit of knowing why this was the case.
Given that what was being sought on behalf of TR was an adjournment so that the advantages and disadvantages of him being placed with specialist foster-carers (as TR and the guardian were advocating) or in a therapeutic home (as recommended by Dr Yates and advanced by the local authority until late in the proceedings), an earlier discussion with Dr Yates could have led to such an adjournment and the costs and delays caused thereby being avoided.
Lessons to be learned
These appear above and included amongst them are the following:
(a) All involved should consider with care the instructions to be given to an expert.
(b) The expert should check that he or she can carry out and is carrying out those instructions and should confirm this.
(c) All involved should consider and review the report of an expert when it is received and, where relevant, raise points with the expert and other parties relating to the performance of the expert's instructions, his or her reasoning, the factual basis of his or her views and the relevance of his or her views to the proceedings.
(d) All involved in giving joint instruction should take a full part at all stages and thus attend meetings with the relevant experts, or at least comment in respect of them.
(e) If an expert is not jointly instructed, those who do not join in the instructions should none the less (i) consider how that expert should be instructed and (ii) his or her report, and raise points on both as soon as is practicable.
(f) If, as here, an expert has videoed interviews that fact should be disclosed and the desirability of the expert reviewing the video
before completing his or her report and of the parties, if they wish to do so, viewing the videos at an early stage should be considered.
The approach of the local authority following the decision not to pursue the allegations of sexual abuse
I accept that those representing the local authority were under considerable pressure and had a great deal of work to do in respect of the issues that arose relating to disclosure, but, in my judgment, following the decision not to pursue the allegations of sexual abuse, the local authority failed to reconsider their position in respect of the care plans with sufficient urgency at appropriate levels within the local authority, or at least to make it clear to the court and the parties that they recognised the need for them to do this. Rather, their initial decision was to lead evidence as to the position of the local authority having regard to the changed circumstances only through the social worker allocated to their care. That social worker, understandably, gave evidence as to the views of her superiors that were at least in part based on decisions that pre-dated the decision not to pursue the allegations of sexual abuse.
I called for evidence from someone more senior. He came to give evidence and, initially in answer to questions put by the local authority and the first three respondents, said that in his view the decision not to pursue the allegations of sexual abuse made no difference, because the local authority believed there had been sexual abuse as alleged.
Later in his evidence, to my mind wisely, he modified this view and it seemed to me recognised that he and the local authority had to give further thought to the care plans and, in particular, to their approach to this family and its individual members if care orders were made.
In my judgment, an important aspect of that reconsideration relates to the approach that the local authority should take to each of the family members having regard to the change in position. In my judgment, the care plan should record what that approach is to be. I have set out earlier in this judgment what I think that approach should be.
I am pleased to record that it is clear from the attendance on behalf of the local authority when I am giving this judgment that this matter has been considered at all relevant levels of the local authority between the end of the case and the giving of this judgment. I was also told that during that period amended care plans have been prepared, but I have not had the opportunity of seeing them at this stage.
Further use of the reports of the Young Abusers Project
As I have said, in my consideration of this case I have ignored the reports of the Young Abusers Project. It is always difficult to say never, but the local authority should, in my view, take the same approach to them in their future dealings with the family and, in particular, in respect of C and TR unless special circumstances require them to take a different course.
If at any time it is thought that disclosure of the reports of the Young Abusers Project might be useful, for example because they form part of the relevant background and history, in my judgment they should not be disclosed without my comments in respect of them that are contained in this judgment being disclosed at the same time. In particular, through that mechanism and others, it should be made clear to anyone to whom those reports are disclosed what the bases of the approach of the Young Abusers Project were, namely that they reached conclusions or made assumptions as to allegations of sexual abuse which were in dispute before the court and which it was for the court to decide within the context of these proceedings and no decisions thereon have been made by the court.
At this point I propose to turn to the live issues in this case, which seem to me are matters I should deal with in private rather than in public and I shall therefore rise to enable that to take place.
(A short adjournment)
CHARLES J: I have an application for costs on behalf of the first four respondents all of whom had allegations of sexual abuse made against them.
The first point I make with reference to the submissions I have had as to costs is that, unsurprisingly, submissions have been made to me which have raised points concerning the approach of the parties as to disclosure which did not occur to me when I was writing my judgment. When I am correcting the transcript, I propose to incorporate in that judgment such of those points as I consider to be appropriate. The parties will see when they read the transcript how I have done that.
Points have been made by reference to time spent, the way in which the case was prepared and perceived through the eyes of various respondents and, as inevitably is the case and does in part found some of the points I raised in my judgment, great benefit is always derived from a matter being looked at from the perspective of each relevant party, because each person brings something special to a case.
I would accept the submissions made as to the likelihood that if the allegations of sexual abuse had never been made leading counsel would not have been involved. One of the problems not mentioned in submissions which seems to me to arise is that if in fact full and earlier discovery had been made it does not necessarily follow that allegations of sexual abuse would not have been made in this case: the case may have taken on different aspects. But the underlying reality at this stage is that allegations of sexual abuse have been abandoned and, to my mind, as I said in my judgment, the primary responsibility for that abandonment and therefore the waste of time lies with the local authority. Albeit that as I said in my judgment, others, it seems to me, notwithstanding what has been submitted to me, had some duties and some responsibilities in this respect.
I am not attracted by an approach as advocated at the Bar of trying to strip out involvement of leading counsel or strip out involvement as to days.
I have had regard to the fact that the issue arises between two sets of public funding, admittedly from different budgets. But it seems to me that I should reflect what I regard as the primary duty and thus the primary failing in an order for costs.
I think the correct approach is to take a robust and round approach to this without seeking to attribute and apportion in any particular way. In taking that approach, I have regard to the fact that leading counsel perhaps would not have been involved in this case on behalf of any of the respondents, although I think that leading counsel might none the less have been involved on behalf of the local authority.
It is a rough and ready approach. I have toyed with the idea of making an order relating to days of the hearing, apart from the opening day, and saying that it should be X number of days that are paid. I have changed from that to think that I should order a percentage of the costs of each of the first four respondents which covers additional preparation time and the involvement of leading counsel.
It seems to me that the correct order for me to make in all the circumstances is that the local authority should pay 25% of the costs of the first, second and third respondents and should pay 15% of the costs of the fourth respondent, which reflects the difference in representation.
The guardian, in my judgment very properly, makes no application for costs.
I would also express the view, which can be conveyed, for what it is worth, to the Legal Services Commission that this is an issue between publicly funded bodies. They may, as a matter of discretion, wish to take that into account in deciding whether or not they enforce this order having regard to the circumstances of the case and the way in which legal aid is granted in family proceedings.
Order as to costs accordingly.
PHILIPPA JOHNSON
Barrister
