FACT FINDING IN THE FAMILY COURT: ERRATIC WITNESSES AND BEHAVIOUR ON DISCLOSURE WHERE THE CONDUCT WAS NOT FAR SHORT OF CONTEMPT

January 28, 2018 · by · in Bundles, Civil evidence, Conduct, Disclosure, Witness statements

We have looked at “fact finding” by the courts many times.  The fact finder in a family case has a particularly  arduous and unenviable task . The judge has to  assess evidence that is often highly charged, and where there sometimes few documents to assist.  This blog has also looked at witness behaviour, conduct in the courtroom and disclosure.  All of these issues  (and much more besides) were considered in W (fact-finding) [2014] EWHC 4347 (Fam).

HHJ Sir Gavyn Arthur (sitting as a judge of the High Court)  carried out a pain-staking and detailed analysis of the factual history. The behaviour of some of the witnesses was surprising. Further, at a time when the duty of disclosure by government institutions is under scrutiny, this case also discloses remarkable conduct. (The case has newly arrived on Bailli.  There has been a Court of Appeal hearing which means that many of the direct criticisms of the witnesses have  been redacted.)

“For many months now the Local Authority has been fully aware of the serious issues in the case, and how full disclosure has been ordered, and re-ordered. Yet, self-evidently, it took woefully inadequate measures to comply with the order. In doing so it treated the court with what cannot be far short of contempt.“

 

THE CASE

Allegations of sexual abuse had been made by a child in a family.  The case had already been tried in the county court, intervened  in by  the Court of Appeal. A re-hearing collapsed after three days when the key social worker in the case contacted the judge directly and made allegations of  “‘corruption and malpractice’ within the local authority in relation to this particular case as well as other cases.”

“SO MUCH HAS GONE WRONG IN THIS CASE”

    1. So much has gone wrong in this case. In fact, almost everything that could have gone wrong has, almost to the point of defying credulity. In consequence the court has no choice but to undertake the arduous task of scrutinising all aspects of the case very carefully. This judgment will therefore be longer than would normally be the case. This is for several reasons:

a) Reaching the complex truth requires a detailed analysis of all that happened;

b) In view of what they have suffered, those accused of serious abuse deserve nothing less;

c) The consequences for individuals beyond the parties in the case, for example within the local authority and the police, may be profound;

d) It is unlikely that any other will have the time or resources to trawl through the immense body of papers in the way the court has done, and thus what has been uncovered must be recorded fully;

e) Lessons need to be learned so that what happened in this case never happens again.

WITNESS EVIDENCE: “TRUCULENT AND DOWNRIGHT RUDE TO COUNSEL AND TO THE COURT”

The judge made an assessment of the key social worker in the case.

Credibility of SW – court’s findings

    1. She was at times truculent and downright rude to counsel and to the court and sometimes quite threatening and menacing. She variously accused counsel for B of raising his eyebrows at her in an inappropriate manner (he was in fact doing no such thing), loudly demanded to know the names of all the counsel in court, said that she had ‘clocked what you lot are up to’, and accused the court and counsel of trying to prevent her having her say when, in fact, wholly proper efforts were being made to curtail seemingly unquenchable outpourings. She was dismissive and disdainful of correct social work practice and the way the court operated. She was liberal in blaming others for things that had gone wrong. Apart from blaming the court (by inference both HHJ Davies and the Court of Appeal), she blamed the police, other members of the local authority, teachers at C’s school, the school itself for obstructing her, (this was wholly unfounded), counsel for the parents and counsel for the guardian.

SW’s evidence – general matters

Her current memory of events

    1. She explained that she had been very reluctant to give evidence. In her tenth and last statement she had said that she could not trust the local authority case notes in view of the time lapse. She had resisted making that statement as she did not think she could usefully add anything, for now she could no longer recollect any details but, as the case had progressed, some matters had come back to her as she was questioned and shown documents, and so things had become more alive for her. Even so, she said that all the events with which the court was concerned took place over two years ago and she had not retained memories of the case in the same way she would have done if she was still the social worker. This is something she repeated many times during her evidence.

Disclosure of her own notes

    1. She was referred to the email of the local authority’s in-house counsel, Miss Manassi, on 28th February of this year which asked for her notes and said that a comprehensive statement would be needed from her. She was referred to the current President of the Family Division’s words twelve years ago, “Professionals should keep comprehensive notes. Social workers should routinely exhibit notes to statements”. SW said that, contrary to this, she had shredded all her notes. In fact, she had tried to shred all her notes on a daily basis when she worked for the local authority. She could not keep them because they might be stolen from her car or lost and she had no desk in the office where they could be kept. “I shredded notes because I did not need them”.

    2. Furthermore, in February 2014, Dawn Smith, her supervisor at Luton Borough Council, had told her to delete all her own records including all texts and emails from T. She deleted, she thought in all, about 500 texts to and from T. She was ordered to delete or shred all this material. She did so, she accepted, knowing that the proceedings were still underway and that a retrial of the sexual abuse allegation for C had been ordered, and that in relation to these T’s own allegations of sexual abuse against the father were relevant.

    3. She was reminded of one text in particular. T had alleged that SW had sent her a text telling her not to be in denial. Ms Lynne Jackson, the psychologist, had reported that this text had, in fact, been read out to her by T. SW said this:

“I knew all about this allegation of unprofessionalism and that T was saying this and other things too. I remember thinking whether I should delete this trail but I was told to”.

  1. In any event, she said she had never sent T this text.

  2. We have not heard from Dawn Smith. So whether or not SW was generally ordered to delete all her records, texts and emails still remains to be decided. Further investigation is needed. But the court notes that it seems very surprising that SW should have deleted a trail of texts which would have exculpated her from this particular accusation. (For the avoidance of doubt, I make no findings that any member of staff obstructed the Local Authority.)

THE “MISSING PAGES”

    1. When it was pointed out to her that the handwritten notes make no mention of sexual abuse, SW caused, it must be said, considerable consternation in court in all quarters by asserting that there was a page missing from her notes. There was definitely a third page, she remembered. She remembered the Local Authority solicitor, Ms Abana Sarma’s collecting this document. She was most concerned that this page was missing because this page dealt with the sexual abuse allegations made by C on 17th December. Furthermore, this page had been before HHJ Davies at her fact finding hearing in June, 2013.

    2. She was referred to a number of documents from the court bundle. First was a police note of 17th December which states, ” [C] did not disclose sexual abuse”. Then she was referred to the transcript of HHJ Davies’s judgment at the end of the 13th June, 2013 hearing, which made mention of the content of the two pages long since disclosed, but none of the contents of the apparently now missing third page. Furthermore, the transcript of that hearing shows that the father’s counsel cross-examined SW on the discrepancy between the note of 17th December interview which did not record sexual abuse being mentioned and her later assertion that C had alleged sexual abuse at the interview. Indeed, when SW was specifically questioned about the fact that her notes did not include any mention of sexual abuse, she did not refer to any missing page. She was again referred to the transcript of evidence given at the earlier hearing when she was specifically herself asked under oath whether in the discussion of 17thDecember C had elaborated on “bad things” and she had answered, “No, not at this point”. Nonetheless, she said, she would not agree that C only went as far as saying “bad things”, although she did not recall what other words C had used. It was two years ago.

    3. Mr. Geekie, for the local authority now rose and said that the local authority was totally unaware of any missing third page of notes. Indeed, he said the whole of the fact finding trial was conducted on the basis of the two pages of notes only. This accorded with the memory of all those counsel for the other parties who had been present at that earlier hearing. If that was not enough, it was pointed out by the Local Authority’s solicitor, and agreed by counsel who had been present at the earlier hearing before HHJ Davies, that the bundles that the court was using at the current hearing were those used then, merely brought up to date by the addition of further documents. The court bundles then and now, did and do not include any third page of notes.

    4. In spite of being faced with what might have been thought an especially daunting body of evidence, SW was not to be budged. She repeated that she had given the third page of notes to Ms Abana Sarma of the local authority, that it was definitely referred to during HHJ Davies’s hearing, and that the missing page had stated that C had alleged sexual abuse. She could see the second page in her mind’s eye. There were several entries on it. Furthermore, it was shown to the police at the strategy meeting shortly after 17th December 2012, even though the police record of what happened on that date says that no sexual abuse was alleged by the child.

    5. When further questioned, she accepted that pages one and two of the notes before the court were consecutive, and were a complete document, so the third page could not have been the middle page of the three. The missing page was, she said, a second note written at a different time in the interview. This was despite her earlier evidence that she had not taken notes during the interview, and that it was her practice never to do so during interviews. She said she had discussed the contents of the third page with the police and her team manager. She then said belligerently, “I want to know why the second page is missing”.

    6. She then added that, apart from words, she relied on the non-verbal signals from C; the self-harm, the fact that she walked out of the interview, the hiding behind the hoodie, the fact that she started and stopped saying things and the fact that she wanted to go into care. She said this:

“Because of her words, in my professional opinion I felt she was the victim or at risk of sexual abuse. It is important that a social worker should be brave enough to say this.”

  1. She was then rude to counsel saying, “I’ve clocked where you’re going a long time ago” and then to me, “I hope this court does this case justice”.

 

DISCLOSURE

  1. The proceedings have been surrounded by suspicion and mistrust, for reasons which have become obvious. These emotions have been shared, it must be said, at times by the court, and have been exacerbated by serious problems about disclosure. Despite strict orders made by the court for full disclosure by the local authority, these have not been complied with in full. Indeed, more than 1,300 pages of important material were disclosed to the court during the current hearing, and 1,000 pages of these were disclosed only in the second week of this hearing, after Mr Geekie for the local authority organised a search of its premises following a social work assistant’s evidence. This failure to disclose added some three days to the case. Disclosure continued even into the fourth week of this hearing. Furthermore, many important documents have been shredded or are still missing

 MISSING DOCUMENTS

  1. The exercise book and diaries. A matter which has caused the court considerable disquiet is the disclosure, very late in the proceedings, of C’s exercise book and two diaries. Only on the second day of this hearing were the court and the parties provided with copies of these. The entries run to 122 pages in all and contain drawings as well as written entries. Most are by C but a few are by Miss Z and Miss G in response to entries written by the child. The entries in the exercise book start on 15th October, 2012 and conclude that year, well before the proceedings began. One or both of the diaries also commence in 2012. These diaries are very important. They were never kept secret. If it is correct that the Local Authority knew nothing of them at a time when, as is undisputed, its social workers were seeing the teachers on an almost daily basis, then it should have done. Its failure to do so is inexcusable. It is incomprehensible that lines of communication between professionals were so poor that no social worker knew of their existence.

  2. Until this late disclosure, the local authority had disclosed, in general, only writings and drawings which depicted C as being very unhappy at home and with the family. The newly disclosed materials reveal a far more complex situation, however, including expressions of dislike for her school. The first entries are 14 pages from the exercise book. These start with apologies for misbehaviour and anger at school, and requests for help with her anger. Miss G and Miss Z responded kindly, more than once saying they will always be around to help her. In the case of Miss G she would be around for a chat at lunchtime. Later Miss G wrote of ‘sessions’ with C to help her with her anger.

MORE MISSING DOCUMENTS

The judgment observes that there were more fundamental failures of disclosure by the local authority.

SWA ‘Y’ was a fairly punctilious note-maker, if sometimes after the event. It must be remembered that early in 2014 the court gave precise and copious directions for the local authority to disclose all the documents, records and notes concerning this family in its possession. The local authority gave all assurances that this direction had been complied with in full. It was on that basis that this hearing commenced. To the astonishment of all in court, however, well into her evidence SWA ‘Y’ freely volunteered that all the handwritten notes she had taken were in a drawer at the local authority’s office. She had kept copious handwritten notes and diaries, indeed, there were 15 books in all. Everyone knew where they were. “It was obvious that the original notes were very important and should be kept”. As a result of this counsel for the local authority immediately arranged for a representative to attend its offices to collect, if they were still there, the documents that had been mentioned by SWA ‘Y’.

  1. Later that day a cardboard box containing a large number of notebooks and some loose pages were retrieved from the office. Some other papers were found nearby. The court must emphasise that these documents should have been disclosed well in advance of this hearing. It is truly reprehensible that they were not. In view of the speed with which they were recovered they could easily have been found had anyone either looked or asked the appropriate questions of SWA ‘Y’. For many months now the Local Authority has been fully aware of the serious issues in the case, and how full disclosure has been ordered, and re-ordered. Yet, self-evidently, it took woefully inadequate measures to comply with the order. In doing so it treated the court with what cannot be far short of contempt.

  2. SWA ‘Y’ was also asked about many other documents disclosed after the hearing commenced. She was shown in particular C’s exercise book and her two diaries. She said she had never seen these before. The school had passed on a file of pictures drawn by C prior to her involvement in the case in 2014. More had come forward from the school in due course, but not the exercise book and the diaries. She had never asked the school directly if there had been more material. She had spoken to the school staff weekly or fortnightly and she would have expected the teaching staff to let the social workers know if there was more material. She knew nothing about C’s entries in the book, saying she loved her home and her family and that she hated school. In particular, she did not believe that SW would have known about these entries either.

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