Mr Justice Cobb’s judgment in the case of GD & BD (Children) (Rev 1)  EWHC 3312 (Fam) (20 December 2016) was published this week. It has already been described by Suesspicious Minds blog as the worst case of 2016, not without good reason. It is a case about sexual abuse allegations made against parents in care proceedings that were handled very badly by the police and social services, and which led to successful claims under the Human Rights Act for damages and declarations. It is a very ugly example of how things should not be done. It is beginning to be reported on the mainstream media as we publish, see the BBC here for example : Police and council pay damages to children kept in care too long.
The judgment is very long and detailed, but does have a really useful executive summary, which we are going to set out in full here (it is at the bottom of the judgment, we think it might have been better at the top) :
1. This is a claim for damages and declarations under the Human Rights Act 1998. The Claimants are two children and their mother. This judgment is delivered at the conclusion of a seven-day hearing held in Bradford. The case has exposed serious and systemic flaws in the decision-making and information-sharing of a joint investigation involving West Yorkshire Police and Wakefield Metropolitan District Council.
2. On 25 February 2015, two children – a girl (GD) then aged 7, and a boy (BD) then aged 2½ – were removed from their family home under police protection measures and placed in foster care; this followed the arrest of their parents on suspicion of involvement in the downloading and distribution of indecent images of children. On the 27 February 2015, the children were made the subjects of interim care orders in favour of Wakefield Metropolitan District Council (the “Local Authority”). In August 2015, their father (FD) pleaded guilty to 6 specimen counts relating to these offences, and was later sentenced to a term of imprisonment.
3. At the time of the parents’ arrest, the officer in charge of the investigation from the West Yorkshire Police (DS Hudson) expressed himself to be 90% certain that the children’s mother (MD) was a woman (Woman X) recorded on video (the short video) performing oral sex with a young female child who it was believed to be GD; this video footage was found on the parents’ computer. The police officer further believed (with 99% certainty) that GD had been photographed in a sexually provocative pose displaying her genitals, on a still image also found on the parents’ computer (Girl Y).
4. For a period of many days after their reception into care, the children had no contact with their parents; when contact was reinstated it was closely supervised. The children remained in foster care, separated from their parents, for 9½ months returning to live with their mother in December 2015.
5. The history now apparent reveals that on 31 March 2015, DS Hudson had been advised by forensic experts that the mother was not Woman X and had been “eliminated” on the basis of expert assessment. This was later confirmed in a written report from the forensic expert on 12 June 2015. The Police did not divulge this information to the Local Authority until 24 June, and not to the mother until 9 July 2015.
6. On 10 June 2015, a second (longer) video recording was discovered by the West Yorkshire Police in the context of a different investigation, of which the first (short) video was clearly an excerpt. This was a crucial discovery. This longer video showed: (a) that the film was recorded in the United State of America, (b) that the mother was definitively not Woman X, and that (c) that GD was definitively not the girl being abused. This information was not shared with the Local Authority, nor with the Respondent parents, until the final hearing. At a meeting on 21 August 2015 DS Hudson advised representatives of the Local Authority (its solicitor, Ms Anne McMullan, and the instructed counsel Mr Ian Shiels) in passing that the short video probably originated in the USA. He did not refer to the existence of the longer video. It was only on the second day of the final hearing of the public law applications some months later, on 18 November 2015, that the Local Authority advised the mother, father and Children’s Guardian of the American origin of the video, and on the same day, the Police informed all parties (the Local Authority and the respondent parents) for the first time of the existence of the longer video.
7. In the meantime, the Police interviewed the parents under caution, putting the still image of Girl Y to them to see if they would (erroneously) identify her as their daughter; at the time the police knew that the still image was not a picture of GD. Unsurprisingly neither the parents nor GD acknowledged the still image to be a photograph of GD; I describe this as “one of the lowest points of this blighted history” – see [88/89] and  above. Separately, the Local Authority social worker conducted an ABE interview with GD, and similarly put the still image of Girl Y to her for her comment/recognition; at the time, the social worker knew that the still image was not of GD. The ABE interview was conducted by inexperienced social workers and the lead questioning by social worker who had not received any training in the conduct of such interviews.
8. The Local Authority pursued a case in the public law proceedings that the mother was Woman X and that GD was Girl Y. They commissioned a witness statement from DS Hudson who had overall management of the investigation of the offences to file in the Family Court. The statement in its final form was four paragraphs long and contained only information which incriminated the mother, no information which exculpated her, and provided no context. This statement was signed at a time when DS Hudson knew for sure that the mother was not Woman X, but he did not say so.
9. The police facilitated the viewing by the parties and their lawyers of the video-recording of the depraved conduct of the adult female, when they knew that the video footage had no probative value in the case.
10. This judgment contains many criticisms of the professionals involved in the investigation; in forming my views, I have made due allowance for the pressure under which they were working in a complex investigation of this kind. In my judgment, the failures in this case can be explained by a combination of the following factors, many of which were systemic within each of the investigating authorities (see  above):
i) There was no strategic leadership in this joint investigation; each arm of the inquiry lacked direction, and there was no one individual taking responsibility for the co-ordination of the inquiries. Insofar as this role was fulfilled by the Officer in the Case, he allowed his own beliefs about the likely involvement of MD in abuse to cloud his judgment. The Local Authority was beholden to the police in relation to the information sought, and thereby at times found itself partially disabled from conducting any effective case management;
ii) There were poorly defined lines of communication within each of the authorities (social services/police and their respective legal departments) and between the authorities; within each authority different individuals took responsibility for similar functions, none of whom had a comprehensive grasp of the totality of the case;
iii) There was a lack of care and accuracy in record keeping, and in the management of information;
iv) Many key individuals (including the lawyers) had a partial knowledge of the case, which led to incoherent decision-making.
v) Insofar as this was ever a joint investigation (which is debatable) it lacked structure and cohesion. The police took an overly defensive stance in relation to information, and the Local Authority an over-ambitious position encouraged by an experienced police officer (DS Hudson) who lacked discipline in the information sharing.
vi) A lack of discipline and rigour in the evaluation of the evidence;
andvii) A casual regard, and in some respects total disregard, of ordinary principles of good professional practice.
These failings were to a material extent aggravated by a lack of discipline of the officer in charge of the investigation, DS Hudson; he showed poor regard for the position of the mother as an accused person, and of the integrity of the information which he received and carried. In his communications with the Local Authority lawyers and social work team, he displayed a lack of clear boundaries.
11. In this Executive Summary I have done no more than to identify some of the more glaring features of an investigation which was conducted in a way which I declare to have profoundly and obviously breached the Article 6 and Article 8 ECHR rights of this mother and these children. The Local Authority and the Police have made significant concessions as to their unprofessional conduct, set out in Annex A and Annex B above, and have agreed to compensate all three in damages (£10,000 for the mother, and £5,000 for each child). Both the Local Authority and the Police have made full apologies to the Claimants, and rightly so.
12. Important lessons are to be learned from this case. I have summarised these at - of the judgment.
The District Council and the Police made a number of significant admissions, which are set out in Annexes, but the judge went further.
Good practice guidance
At paragraph 129 Cobb J sets out the view that this is not an area where there is no existing guidance, but in fact is an area well covered by guidance making clear how professionals should conduct themselves.
In view of the admitted failings in this case, I invited the parties and their legal representatives to consider and make submissions at the conclusion of the hearing on the lessons which could or should be learned from this case. There was a broad measure of agreement, though no absolute consensus, about what these lessons may be. Miss Irving QC makes the legitimate point that there is nothing new in any of the lessons to be learned from this history and this litigation; guidance is already available in statute (including the Police and Criminal Evidence Act 1984), the Procedure Rules (the Family Procedure Rules 2010), the 2013 Protocol and Good Practice Model on disclosure of information in cases of alleged child abuse, Working Together, Achieving Best Evidence Guidance, Information Sharing (Advice for practitioners providing safeguarding services to children, young people, parents and carers) (March 2015) which was prepared for all frontline practitioners and senior managers working with children, and of course through case-law, specifically Charles J in Re R (Care: Disclosure: Nature of Proceedings)  1 FLR 755 at pp.772-779 and re-affirmed by Baker J in Kent CC v. A Mother and Others  EWHC 402 (Baker J) at paras 153-158: see above). There is, she submits and I accept, no need for further new guidance; there is however a need for those who are engaged in investigations and proceedings of this kind to familiarise themselves with all the guidance available, understand it and implement it.
The judge goes on to set out a summary of existing good practice guidance in the areas of collaboration between agencies, disclosure, Achieving Best Evidence (ABE) interviews, evidence and repeat medical examinations. The gist of that guidance is :
- close inter agency working essential – records should be kept
- informal meetings to be avoided, records should be kept and information shared
- written records of meetings between agencies should be agreed by attendees
- rigorous adherence to the Protocol and Good Practice Model (October 2013) essential
- police disclosure orders MUST be complied with or an application to vary must be made
- if the police think that disclosure might be misunderstood they can clarify or explain it
- if the police disclose information to the local authority it MUST be disclosed to the parties unless the court permits non-disclosure
- if police wish to delay disclosure on grounds of prejudice to an ongoing investigation they should raise it so the court can balance the issues – police must be able to give reasons not just make generic assertion
- ABE interviews
- require skilled, trained interviewers
- never acceptable to provide false or misleading information to a child
- Witness statements
- the makers of witness statements must carefully check the accuracy of statements BEFORE signing
- LA lawyers must take care to ensure signatory is aware of any editorial changes – even more important at interim hearings
- where a statement is required from the police the request should be made from the District Safeguarding Inspector in writing. Police legal may need to be involved. any statement must provide balanced and accurate information and not mislead by matters either included or omitted and should include information that may help the family court whether that helpful or adverse to the Local Authority; the statement should be prepared by the Local Authority solicitor. acceptable for officer to be interviewed by LA legal representative.
- where an expert is instructed in criminal sphere that a party wishes to rely on the party must ensure it complies with Part 25 (rules on expert evidence in Family court). parties encouraged to make use of the process for written questions to the expert allowed by the rules.
- Repeat medical examinations
- agencies should coordinate their enquiries to avoid repeat medical examinations especially intimate ones.
- parents should either be asked for consent or an order sought authorising a medical.
- a report of the medical examination to be provided to those with parental responsibility (usually parents and local authority if there is a care order) and the court.
The case is yet another example of the injustice caused by the Legal Aid statutory charge, which means that any damages awarded in these sorts of case go straight to the Legal Aid Agency who funded the claim, and never reach the victim of the human rights breaches (see 132-141).