Monday, 7 July 2014

T (Children) - Should We Be Reassured by the Judgment

Another interesting case... this time T (Children) [2014] EWHC 2164 (Fam) and one which ties into our last couple of blog pieces. 

Another blog suggests that parents should be reassured that cases involving false or exaggerated allegations will be dealt with appropriately by the court.

Am I completely reassured, as that other blogger seemed to be? No.

I accept that in this case, Mr Justice Holman and before him His Honour Judge Hamilton, had undertaken what seems a clear and very proper examination of evidence. Another case dealt with where false allegations did not result in a miscarriage of justice.

That said, I'm again reminded of last month's warning by HHJ Tyzack that people working with children mustn't take allegations at face value, a point which this case highlights once again.

Let me make clear, I'm not suggesting we need witch hunts against social workers when standards and practices are poor. It's a thankless profession, where staff walk a tightrope and a mistake can cause devastation far in excess of the risks the rest of us live with in our day-to-day lives. When services are being pared to the bone, the fact that we do still see high standards (albeit not universally so) is noteworthy. I'd also be the first to say I've seen standards improve in recent years, and in a good number of cases, I've seen exceptionally high standards where social work input had seen seemingly unresolvable contact breakdown repaired. 

Looking at the case T (Children), and reading the detail, it appears that this case dragged on for many months, with the relationship between child and parent entirely severed until His Honour Judge Hamilton took over the case, and as HHJ Holman says, 'got to grips with it'. Note an inference that prior to this, the court and agencies had not. Further, that social work/police investigations of the abuse allegations, and discussions with the child, had included the use of leading questions which had potentially contaminated evidence and presumably somewhat muddied the water for the court (rather than providing the clarity that was needed). 

The presumption, without evidence, that a child's sexualised behaviour was due to the father worries me further, in that if the child had been abused, flawed investigations leave the perpetrator free and put other children at risk. Another case I've been assisting in, there's a complete lack of evidence against the father, yet there's been no wider investigation. One parent points the finger, and agencies and police run in that direction.

Reading this case, and taking note of Vincent McGovern's submission to the Petition Commission of the European Parliament on failures within UK Family Law, I ask myself several questions:
"Had the evidence from social services been kept secret, including the use of leading questions when gathering evidence from the child, and only the findings rather than the detail of evidence shared, would there have been the just outcome we saw?"
This first question, and the judgment in the T (Children) case, supports Mr McGovern's assertion that it is essential for the precise nature of allegations and the detail of evidence to be shared with the accused when assessed by the Multi Agency Risk Assessment Conference (MARAC) and when attending the Family Conference after.

Question two...
"Would we have seen the same outcome in every court?"
Anyone who assumes, on a single judgment, or a collection of judgments, that standards are universally high is being overly optimistic. The reverse is true too. That said, one miscarriage of justice is one too many, rewards those who make false allegations, makes the court or social services complicit in domestic violence, and flawed investigations leave other children potentially at risk. The wrongful severing of a child's relationship with a parent causes the child unnecessary harm. It causes devastation to the parental victim. Hence we must be critical, questioning and searching. Openness and quality assurance measures are essential to ensure the highest standards become widespread.

One thought... if perfection existed, we would not see successful appeals... but successful appeals are often reliant on high quality advice and the ability of a parent to afford it.

There is an important third question...
"Upon determining that the social worker and police officer had used leading questions when collecting evidence, was there a communication from HHJ Holman to their management calling for additional training and supervision for those involved? If not, why not, and does the mechanism exist to ensure routine feedback from the court to ensure standards are improved and maintained?"
Note, I am not suggesting a public flogging for the social worker or police officer, but sensible steps to support them in achieving better standards for the next family. I've seen other cases in the past where judgments recorded social workers had lied, but nothing was done. An environment of fear and recrimination does not lend itself to openness, here too the press should take note, and I'm not in favour of name and shame websites as they lend themselves to motivating people to cover up mistakes rather than make improvements in an open, mature and honest environment.

Should parents be reassured? No. I'm mindful of the old saying "Put your faith in the Lord, but row away from the rocks." Don't take anything for granted, and if you're a litigant-in-person, you have the additional problems of obtaining the evidence upon which agencies base decisions, ensuring the detail of investigations is included in evidence, and in cases such as this, then ensuring medical evidence is included in proceedings and the right matters brought to the judge's attention. The father wasn't a litigant-in-person, he had counsel (Miss Saiqa Choudry) who clearly did a good job.