PROVING THINGS 21: WHEN THE WHOLE PROCESS OF INVESTIGATION IS FLAWED
I have looked at family cases before on this blog, usually in the context of witness evidence and issues relating to the burden of proof. Many of the decisions of family judges have to be taken on the basis of oral evidence alone, with little documentation. It is hardly surprising that the family courts have come to place great emphasis on the fairness and impartiality of the process of investigation, particularly by professionals. In AS -v- TH  EWHC 532 (Fam) Mr Justice Macdonald considered a case where the process of investigation went badly wrong.
This case is put in this series on “proving things” because the process of investigation, and the adequacy and competence of those interviewing witnesses, is rarely considered in court judgments. More often the judge is concerned with the result. However it is important that the process is considered whenever possible.
“it is as if a sort of hysteria took over and prevented people from asking certain questions”.
A mother accused the father of her children of sexual abuse. The matter was investigated by the police and by social services. However there was a failure to follow the clear guidance given in relation to the questioning of child witnesses.
THE JUDGES INITIAL OBSERVATIONS: PROFESSIONALS MUST NOT PREJUDGE THE ISSUE
“It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of ‘the child must be believed’. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue”.
“I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”
In this matter I am required to determine whether, on the balance of probabilities, certain alleged incidents of serious emotional, physical and sexual abuse have taken place. Those alleged incidents centre on the lives of two children, NC, who is now aged 10, and SH, who is now aged 6, and their mother, AS, the applicant in this case.
The findings sought by the mother are set out in the form of a Scott Schedule prepared for these proceedings. In summary, it is alleged that TH, the father of S, has raped the mother on two occasions, perpetrated domestic violence against her and has emotionally, physically and sexually abused both N and S. TH has filed and served replies to the Scott Schedule. He denies each allegation levelled at him. TH currently faces criminal charges in Scotland arising out of the allegations made. He is due to be tried on those criminal charges in July of this year. I make clear at the outset that I have found none of the findings sought by the mother to be proved.”
THE BURDEN AND STANDARD OF PROOF AND EVIDENCE
||”The burden of proving a fact is on the party asserting that fact. To prove the fact asserted that fact must be established on the balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. As has been observed, “Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities” (Re B  UKHL 35 at ).
The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z  EWHC 31 (Fam)). Where the evidence of a child stands only as hearsay, the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (Re W (Children)(Abuse: Oral Evidence)  1 FLR 1485).
If a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure (R v Lucas  QB 720).
The court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities (Re T  2 FLR 838 at ).
There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B  UKHL 35 at ). However, failure to find a fact proved on the balance of probabilities does not equate without more to a finding that the allegation is false (Re M (Children)  EWCA Civ 388).
“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”
Within this context, it has long been recognised that care must be taken not to focus attention on statements made by the child at the expense of other evidence, particularly where allegations of abuse arise in the context of private law disputes. The Best Practice Guidance of June 1997Handbook of Best Practice in Children Act Cases Section 4, Annex para (k) cautions that:
“Any investigation which focuses attention on the statements of the child runs the risk of producing a false result if what the child says is unreliable or if the child’s primary care taker is unreliable, particularly where the allegation emerges in bitterly contested section 8 proceedings.””
THE PROBLEMS WITH THE EVIDENCE IN THIS CASE
The judge set out, in detail, the statutory and other guidance for professionals investigating allegations of sexual abuse of children. There were numerous failings:
- By the police.
- By the school.
- By social workers.
For example in relation to the police questioning of children there were numerous leading questions and breaches of guidance and good practice.
“It is difficult to know where to start with respect to summarising what is wrong with the approach by DC Glendenning set out above. Indeed, the passage largely speaks for itself as an example of extremely poor interviewing practice. DC Glendenning’s questions start from the premise that something “dirty” has happened to S, that TH is the perpetrator (pre-cast by the questioning into the role of the “bad person” and the “bad man”), place emotional pressure on S by telling him that N and his mother are “brave” and “good” for telling what happened and that a statement by him is needed to keep others safe and make promises to S that are unjustified (i.e. if he tells it once he will not have to tell it again). In addition, certain of DC Glendenning’s questions were misleading in other respects. In particular, N had not in his interview made his allegations in terms of “part 1” and “part 2”. Finally, it is clear that S has plainly overheard his mother making allegations to a “nurse” that “the bad, bad dirty man done it to me“.
Within this context, DC Glendenning’s was forced to concede during cross examination that she had during this phase of the interview placed grave pressure on a five year old child to make an allegation against his father. DC Glendenning further conceded that following this passage of questioning that S may well have felt he had little choice but to give DC Glendenning what she wanted.”
THE FAILURES MEANT THAT THE EVIDENCE HAD LITTLE WEIGHT
iv) The weight to be attached to the statements of the children must also be evaluated in light of the fact that from 12 September 2014 it is plain that the children were subjected to extensive questioning by multiple professionals in each other’s company and often in the company of their mother. In addition to the ABE interview of N on 19 September 2014, the children were seen and questioned by DC Bishop and Ms Salamant on 12 September 2014 (together and in the presence of their mother), by Dr Haji on 8 October 2014 (together and in the presence of their mother), by DC Hackworthy on 29 October 2014 (together), by Ms Duggan and Ms Lot during September and October 2014 (N only), by Ms Gorrel-Barnes on 2 December 2014 (S only), by Ms Ille on 8 December 2014 (together and in the presence of the mother) and by Ms Khanom on 15 December 2014 (together). Thus, on repeated occasions, each child heard the other give his version of events, often in response to highly leading questions, often asked by inexperienced interlocutors.
v) Ahead of their interviews on 5 March 2015 the children also underwent work with CAMHS. Prior to the Joint Investigative interviews on 5 March 2015 N had had five sessions with professionals from CAMHS. Thereafter he had a further twenty six appointments. S had had an art therapy session and one appointment at CAMHS prior to the Joint Investigative Interviews. Thereafter S had ten sessions of Play Therapy. Within this context I note that N never talked to Dr Ramirez about the alleged abuse. Dr Early noted that at no point during her twenty two sessions with her did N say he had been abused by TH, although he spoke about being worried about TH abusing S.
vi) As is plain from the passages set out above, the children’s ABE / Joint Investigative Interviews are of poor quality for the reasons I have identified when examining each. The Joint Investigative Interviews undertaken by DC Glendenning in particular were marked by repeated and serious breaches of the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland. Having viewed the videos of the interviews, the concerns apparent from the transcripts in the hearing bundle were reinforced. More broadly, the interviews, and in particular the interviews undertaken on 5 March 2015 and 11 March 2015 took place 6 months after the initial allegations were allegedly made and after the children had been repeatedly questioned in each other’s presence and the presence of the mother as set out above. In these circumstances, I have felt unable to attach any weight to the accounts given by children during these interviews.
vii) The accounts that have been provided by the children in respect of the alleged conduct of TH contain significant inconsistencies over time. Whilst care has to be taken in this case when comparing different accounts due to the often parlous state of recordings made by professionals and the manifest deficiencies in the interviews, a comparison of the various accounts reveals significant inconsistencies in N’s statements regarding sexual abuse perpetrated against S and his statements regarding allegations of such abuse in respect of himself. Those inconsistencies extend to both the nature and the timing of such alleged incidents. S’s limited accounts of alleged sexual abuse likewise contain inconsistencies (in addition to the flat denials S gave in the presence of Dr Haji). The children’s allegations of alleged physical abuse are somewhat more consistent, in particular in relation to the consequences of dropping food, but also vary over the time during which the children are repeatedly being spoken to by mother and professionals in each other’s presence and in interview.
viii) I have of course considered carefully the provenance of N’s behaviour. Reports that a child’s behaviour is problematic or deteriorating within the context of allegations having been made of physical and sexual abuse must always be carefully considered as possibly the sequelae of that abuse, or a combination of issues one of which is abuse. N’s behaviour has clearly been problematic and has extended to aggression towards his mother, hearing voices and threats to throw himself onto the train tracks. However, there are a number of factors which lead me to conclude that it would be dangerous to rely on this behaviour as evidence that the children have been physically or sexually abused. I am satisfied that N’s behaviour pre-dated the mother meeting TH. I am further satisfied that BC and TH are telling the truth when they describe the mother antagonising N and exacerbating his behaviour. The photographs from the mother’s phone show a tendency to antagonise or humiliate N. I accept the evidence of the maternal grandmother that she was told by N that his mother gave him a “Chinese” burn. Further, N’s behaviour must be considered within the context of the high level of disruption, instability and insecurity he experienced from 31 July 2014 when he was taken to England, which disruption, instability and insecurity would, I am satisfied, have been exacerbated by the mother’s “unconstrained” discussions regarding the alleged threat posed by TH.
ix) There is a complete absence of corroborating evidence for the children’s statements. The allegations of abuse rely solely on what has been said by the children as reported by the mother and as told by the children to various professionals. There is no witness evidence corroborating the children’s accounts, the mother’s evidence being that she had never seen TH hit S and had only seen TH strike N once on the arm with an open palm after N had bit him. There are no contemporaneous reports to statutory agencies and no medical evidence. As set out above, the children’s presentation and behaviour during the period in question provides no corroborating evidence from agencies or educational establishments or in the form of difficulties arising in the wider social interactions of the mother and the children prior to August 2014.
SPECIFIC BREACHES BY PROFESSIONAL AGENCIES
Finally, within the foregoing context, I am further satisfied on the evidence that the actions of certain professionals in this case breached well-established principles of good practice, actively contributed to the difficulties that I have set out above and materially prejudiced the welfare of both children:
i) Almost all the professionals and agencies involved with the children proceeded on the unquestioning basis that the mother was telling the truth and failed to interrogate that assumption by carrying out basic enquiries. The most acute example of this was the assessment of Ms Salamant. Ms Krish properly concedes that the social worker never really challenged the mother’s account and that the most basic independent professional enquiries were not undertaken. Ms Salamant’s failure to challenge the mother’s account and accept it at face value meant that she permitted the mother to dictate completely the frame of reference for the actions of the local authority and other agencies and meant that mother succeeded in portraying herself and the children as victims of serious physical and sexual abuse when in fact they were not. Ms Salamant’s failure to make enquiries of the fathers, the children’s extended families, the children’s schools, doctors and previous local authorities was particularly egregious in circumstances where such enquiries would have revealed a fundamentally different picture to that being painted by the mother.
ii) A number of professionals failed in their duty to keep accurate records of what the mother and the children were saying. This failure was particularly acute (a) on 12 September 2014 where neither DC Bishop nor Ms Salamant kept accurate records of their meeting with the family, resulting in accounts of what the children said that were diametrically opposed, (b) at N’s school in September and October 2014 where Ms Duggan and Ms Lot failed to make any record at all of the allegations made by N in breach of the schools own safeguarding policy, Ms Lot attempting to pass this failure off as a feature of the case being open to social services and (c) on 29 October 2014 when DS Hackworthy took no notes at all of his pre-ABE interview with N and S. Outside the interviews of the children, not one professional recorded a contemporaneous or near contemporaneous account of what the children said to them.
iii) A number of professionals took it upon themselves to question the children with respect to the allegations outside the regulated confines of an ABE interview. There was a particular failure to follow the guidelines by (a) Dr Haji on 8 October 2014 who proceeded to elicit an account from N in front of S, (b) Ms Lot at N’s school between September and October 2015, who took it upon herself to ask multiple questions of N, (b) Ms Ille on 8 December 2014 who repeatedly questioned both children in a highly leading manner (having never met the children) and (d) Ms Khanom who likewise proceeded to question the children in a leading manner.
iv) There was an apparent failure of agencies to co-ordinate their interventions in respect of the children. The most extreme symptom of this was the number of professionals the children were spoken to by in respect of the allegations. As set out above, between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N with five different police officers were involved with interviewing the boys.
v) For the reasons I have set out above both DC Bishop and DC Glendenning failed to apply, in the case of DC Bishop, Achieving Best Evidence, and in the case of DC Glendenning, the Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland. The results of this failure are plain from the passages of the interviews set out above. DC Glendenning conceded that the sole purpose of the interviews on 5 March 2014 was “to get evidence of sexual abuse“. DC Glendenning’s conduct of the interviews on 5 March 2014 with N and S represent in my judgment particularly serious examples of poor interviewing practice.
vi) Finally, ahead of any findings of fact being made or criminal conviction in respect of the allegations, CAMHS intervention in this case extended to therapeutic intervention for N by three psychiatric and psychological specialists in addition to group therapy over 29 sessions and for S over six Play Therapy sessions on the basis that both children had been abused in the manner alleged by the mother.
Standing back to survey the broad canvas of the evidence, I am satisfied for the reasons I have given that not only were the allegations made by the mother and the children false, but further that the allegations made by the children were generated by the mother placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
In the case of Re W (A Child)  EWCA Civ 772 Ryder LJ (as he then was) observed as follows with respect to the significance of parents who make or cause to be made false allegations of physical and sexual abuse:
“Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”
Within this context, and having regard to the extensive matters set out above, I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.
As I stated at the outset of this judgment, this is a very concerning case. In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland. Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal. Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble. Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.
It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm.
Child abuse, including child sexual abuse, exists as a terrible reality in society. Professionals charged with safeguarding the welfare of children must be constantly vigilant. As Ms Lot rightly pointed out to me, professionals are trained to adopt an approach by which they recognise that such abuse can happen anywhere. However, in circumstances where false allegations of abuse are also a reality in society, it is essential that this professional vigilance is allied firmly to the rigorous application of practice and procedure designed to ensure the proper investigation of allegations of abuse if injustices are to be avoided.
Within this context, this case suggests that it is once again necessary to re-iterate the importance of the principles set out at Paragraphs 22 to 52 above. When investigating allegations of child abuse, including allegations of child sexual abuse, it is imperative that all professionals involved adhere to the law and guidance set out in those paragraphs so as to ensure the rigorous and fair investigation of allegations that is the foundation of ensuring the children concerned are safeguarded.
The Children’s Guardian attended each day of this fact finding hearing. Having listened to the evidence in this case the Children’s Guardian told the court that she considered this case to be “quite extraordinary“. Surveying the conduct of professionals in this case she concluded that “it is as if a sort of hysteria took over and prevented people from asking certain questions“. I cannot help but agree.
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be proven.
OTHER CASES WHERE THE FAMILY COURTS HAVE CONSIDERED EVIDENCE
- Proof of facts: the basic principles summarised (borrowing from the family courts).
- Proving matters by evidence: a lesson from the family court
- Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.
- Psychobabble in witness statements: strong views from the family court.
POSTS ABOUT THE PROCESS OF INVESTIGATION (AND SUBSEQUENT IMPACT ON TRIAL)
- Drafting witness statements: the question you ask will determine the answers you get: eight crucial points on evidence.
- Asking leading questions and witness statements: (this is going to end badly).