As it happens I wasn’t, and the lawyer who asked me this had assumed wrongly. I was attending court just to see what was on that day, and to use the legal blogging pilot to try to report a typical day in the life of a circuit judge. But I’d stumbled upon a case where, I was told, there had been significant failure. I wrote more generally about my day here. This post is about the significant failure.

I’ve been given permission to write about the hearing I attended, and about the contents of the documents I’ve since been provided with. By consensus there was public interest in that happening. There is lots of detail in the judgment and written submissions that I’ve read which I am clear I should not publish because it would either be identifying or too graphic. But what I can capture without compromising the privacy of the family involved, is the shape of the case and what seems to have gone wrong.

One thing the judge said, when giving me permission to see the documents, (not verbatim, but from my contemporaneous note) was:

‘I know this case is of vital importance to the parties and they all consider it unique. However the issues are not that different to those in many other cases.’

Having now read the judgment, that comment is spot on. Much of what I describe below will be sadly familiar in broad outline to judges, lawyers and others working in family courts. Some features, in particular the ‘significant failure’ at the heart of the headline to this post, are less typical. But what I describe here will give you a pretty good idea of the sorts of problems that family judges are asked to solve on a regular basis.

The case concerns a dispute between separated parents about arrangements for a child. That child had lived with the mother since separation, and after separation both the child and the mother had made serious allegations about the father’s behaviour towards them. The allegations included allegations of various types of domestic abuse, and of sexually abusive behaviour. For the purposes of this post it is not necessary to go into more detail.

The judgment I’ve referred to is the judge’s ruling on whether or not the allegations were proved. From that judgment I can tell that after a trial lasting a week, and during which the judge heard from a number of witnesses, he concluded that the mother was not a reliable witness on a number of points and that the child’s evidence (given through a video interview conducted by the police) was also unreliable for a number of reasons. His ultimate decision was that the allegations were not proved, and that he would need further expert evidence to decide how to go about repairing the relationship between child and father which had been on hold (wrongly, given the findings) for more than two years. In finding the allegations made by the child not proved, the judge said :

There are a number of other possible explanations for what [the child] said.  First of all [the child] was put up to say it by [the Mother], secondly that [the Mother] has misunderstood what [the child] has said and that then in a process of discussion between the two of them has convinced [the child] of what [the child] says has happened and thirdly [the child] is just not telling the truth for some reason to [the Mother] and to others.  I am not in a position to make a finding about that at this stage.

It’s important to recognise that whilst there was a good deal of evidence that could have supported a conclusion that the child had been coached, and this was explored, the judge was not prepared to go that far. In some cases the judge will positively find that one parent has coached a child, but this was not so simple – although the judge did conclude that the mother had been dishonest about various of her own allegations he did not think that pinning down the precise reasons for the child saying the things they had said was as clear cut.

Following the judgment the child was made a party and the National Youth Advocacy Service were appointed to represent the child. This agency are sometimes appointed in place of Cafcass where there is a loss of confidence in Cafcass (although there can be other reasons).

The hearing I attended had been convened to consider next steps in light of NYAS’ appointment and generally. The mother’s barrister made clear that whilst the mother understood that the findings had been made, she could not (yet) accept that the judge had got it right. The judge was asked by NYAS to consider involving social services, but he decided against that, and instead appointed an expert to assess the family and fixed further hearing dates.

The chronology of the case makes sorry reading. The parents separated about 2 ½ years ago and applications to court were made pretty soon after. Initially the complaints by the mother were limited to domestic abuse and some harsh treatment of the child, and contact was agreed. However, that contact never happened because the child made serious allegations that resulted in both parents and the child being interviewed by the police.

What then follows is fairly described by the judge (who had not been involved earlier on) as ‘quite extraordinary’ : for 15 months nothing happened in the case. Nothing. No hearings. No orders. No contact. No trial. No charge by the CPS and no decision to take ‘No Further Action’ (NFA) either.

The explanation for that inaction is that Cafcass recommended that there was a pause until the father could ‘produce evidence’ that the police had taken a NFA decision. And as the police subsequently took a long time to make a charging decision (as is sadly very common these days) this advice led to a very substantial delay in progressing the case.

The judge makes no bones about how disastrous this is :

I am very concerned that the upshot of this case has been that [the father] hasn’t seen his [child] for over two years based on allegations which I have not found proved.  The delays on that part of the police, CAFCASS and, I am sorry to say, the court in dealing with this matter are unconscionable and of course we now have a much more complicated and difficult situation to deal with than if we had had a finding of fact hearing in this case within three or four months of the allegations being made.  CAFCASS’s advice that we should not have any further progress in the case until the Father was able to say that he had been cleared by the police of these allegations is just plain wrong in principle… I am very conscious of the fact that I am dealing with a very different, apparently very much more damaged and upset child, than I would have been two years ago so I need updating evidence in relation to all these issues.

What isn’t entirely clear is how or why it came to pass that this obviously wrong recommendation from CAFCASS was accepted by the court (and apparently the parties), or why, when the delay stretched on and on, nobody reviewed whether the family court proceedings should wait, particularly given that the parties were represented (though it does appear there had been a complete change of representation). In fact, it looks as if the thing that woke everyone up was a request from the police to see the family court papers. It’s not clear whether or not that was granted, but eventually the police did confirm they would NFA the allegations.

The complete pause on proceedings in this case is, in my experience, unusual and very surprising – it might sometimes be sensible to wait for a criminal trial to take place where the date is known and is imminent, but this sort of delay where there is not even a date for a charging decision on the horizon is just not normal.

In addition to this particular and atypical failure, there were a number of other, sadly more familiar, problems with the process adopted in the case :

• there was complaint that the term ‘disclosure’ was ‘widely used’ to describe the things the child was saying – the written submissions for the father make note of this and refer to the Cleveland Inquiry and a number of family court cases where judges have referred back to Cleveland and deprecated the use of this term (see our blog posts about the use of the term ‘disclosure’ here and here) – its not clear to me who, apart from the mother in this case, was using this terminology, but it is commonly the case that social workers and police officers talk about ‘disclosures’ and even sometimes about the imperative to ‘believe the child’, a mindset which can lead professionals into serious error;
• the ABE (‘Achieving Best Evidence’) video interview was poorly conducted and didn’t follow the guidelines in a way that ensured the child could give their best evidence, for example :
  • there were no records of any pre-interview discussions;
  • nobody considered whether an intermediary might be needed);
  • there was no ‘rapport building’ phase in the interview;
  • inappropriate questions were asked;
  • things the child said during interview strongly indicated that they had been ‘prepped’ for the interview by the mother;
  • during a prolonged break in the interview the child was left unattended with the mother – the judge described this as ‘devastating’ in terms of the weight the court could put on this interview.

Family lawyers see these sorts of issues time and time again – poor record keeping, inappropriate questioning, repeated ‘interview’s and contamination of evidence. Although in this particular case there was a range of reasons why the judge concluded that neither the mother’s nor the child’s allegations could be proved, in some cases such errors can make the difference between something being proved and the collapse of the evidence. In cases where the evidence is not properly gathered or has been contaminated there is always a risk that a judge will conclude allegations are ‘not proved’ when in reality there was some truth in them. Judges in the family court have to do the best they can with the evidence available, and, as in this case, that evidence will be a mixture of information from the child, the parents, and those who know them – such as the school or other professionals working with them. Whilst the child’s evidence was captured quite close to the separation, one consequence of the ‘pause’ decision, is that it was almost certainly harder for both parents to give their evidence in this case when the events they were being asked about had taken place many, many months before their statements were produced or their oral evidence was given.

The delay is not over either. The judge is now waiting for expert evidence in order to help him make decisions about how the relationship between the child and their father can be restored, in circumstances where the child may very well have come to believe that the allegations are true. Whatever that report ultimately says, there is unlikely to be any quick fix for this family.

Feature pic : catastrophic failure by Hilary Perkins on Flickr (creative commons – thanks)