This week involves a trio of disastrous cases where things have gone wrong and judges have explained why.
The first case is Re L (A Child)  EWHC 3707 (Fam) (22 December 2017), which opens with Mr Justice Francis saying :
At some point during the night of a Saturday / Sunday November 2016, L D died at home. For 15 days, commencing on 13th November, I have conducted a fact-finding hearing, the purpose of which is to ascertain how L died and, in particular, whether her death was caused by a member of her family. My sad task has also been to determine whether or not L was sexually assaulted at some time shortly before her death and, again, whether such assault, if it occurred, was perpetrated by a member of her family.
At an early stage the pathologist had indicated his view that the death was likely a ‘sexually motivated homicide’. The judgment marks the end of a fact finding process in the family court to decide whether family members, including the father and LD’s siblings, were responsible for her sexual assault and death. It took over a year reach that conclusion, namely that the burden of proof was not made out (and therefore that the family had not harmed LD), but until that conclusion was reached the family had been separated in order to protect the surviving children, and the judge said that this period of enforced separation had been ‘a tragic year of almost indescribable pain for this entire family”.
There were many failures by the police in the investigation of LD’s death, in particular in terms of securing the scene and preserving forensic evidence. Mr Justice Francis lists 13 significant forensic failures at paragraph 43 of his judgment, and it includes things as fundamental as checking the points of entry for fingerprints. The police had also failed to comply with orders for disclosure of documents into the family proceedings promptly.
The judge said that there was a
serious risk that the proper investigation of the untimely and tragic death of an apparently fit and happy young girl has been severely prejudiced… In my judgment, the time has come when guidelines need to be given to the police regarding the production of documents that go beyond the current protocol.
The late disclosure had placed intolerable pressure on both the family and their lawyers. Whilst they are not formally endorsed (yet) and do not therefore represent official guidance, Mr Justice Francis goes on to set out guidance to police forces about complying with family court orders at the foot of his judgment.
The judge was highly critical of the traumatic and unnecessarily public arrest of the teenage siblings by the police, saying not unreasonably that :
I would like to think that, in future, young and potentially vulnerable suspects who need to be arrested could be protected from the shame and horror of a public arrest.
Not only had the teenaged siblings been arrested by the police in an insensitive way, the local authority had effectively been on a ‘fishing expedition’ when pointing the finger at them. They were also criticised for their approach to DNA evidence. The local authority had suggested that the DNA evidence found at the scene from an unknown male was not helpful in clearing the boys or their father, but that DNA was known to be from an unknown male who was NOT one of the family members. Their DNA was missing, which was significant. The police were criticised for a ham fisted attempt to summarise complex DNA test results in a way that was misleading.
Finally, the judge was critical of the local authority for allowing the children on one occasion to be fed food that was inconsistent with their religious practice, and for not notifying parents that the contact centre had CCTV installed (which cause another religious difficulty for the family as the mother had removed her headwear and been seen by an unrelated male, contrary to her beliefs).
The judge concluded :
The London Borough of Southwark contains one of the most diverse populations in this country. It is a borough which rightly prides itself on its ability to meet the needs of its diverse community. On this occasion I am afraid to say that in all of the three above regards it failed some of its citizens at a most basic level of which it is, I dare say, duly ashamed.
In the second case, Leicestershire County Council v AB & Ors  EWHC 539 (Fam) (16 March 2018) Mr Justice Keehan made care and placement orders following the neglect and abuse of an 8 year old child GH. The judge said :
The neglect and later abuse of GH took place when Warwickshire County Council and Leicestershire County Council were involved with GH and her family. In respect of the latter this involvement covered the period when MN was seriously abused over a lengthy period of time in the family home. The children’s guardian suggested in her report that this case should be the subject of a Serious Case Review. The local authority agree. So do I.
GH was the older of 3 siblings. Both parents of the younger 2 children were imprisoned in 2017 for offences of modern day slavery and rape of a young woman living in the home with the children. The mother of GH was not said to be involved in these offences but had not seen GH for some time before the proceedings commenced.
The court concluded that both the father and the mother of the younger siblings had actively participated in the abuse of GH. GH would remain in long term foster care, but the younger two siblings were to be adopted. The judge thought that the care plan for contact post adoption was ‘too woolly’ and directed that there should be sibling contact ‘subject to the priority to secure an adoptive placement… 4-6 times per year for a period of 1-2 hours’. The judge made an order that there should be no contact between GH and her father, because he was dangerous and manipulative and did not take any responsibility for his abuse of GH.
Although he does not detail the failures, he does set out that there had been concerns raised intermittently about the children since prior to GH’s birth. Implicit in the judgment is the suggestion that these warning flags ought to have been acted on sooner (or at least that this should be considered through the serious case review procedure). It was only the reporting of the modern day slavery and rape offences by the victim of those offences that prompted the removal of the children.
In the the third case it is the court itself that comes in for criticism (as well as the local authority) by the Court of Appeal. Suesspicious Minds has written about the case of Re P (A Child)  EWCA Civ 720 (11 April 2018) in a post called ‘I completely forgot’. That case concerns a teenaged girl who had been adopted but who was placed back in foster care when she made allegations of sexual assault against her adoptive father. Whilst in foster care the child had retracted and been detained under the Mental Health Act. The Local Authority didn’t bring the matter back to court for a long time – this meant that when the court eventually did come to trying to decide whether the allegations made by the child were true or not everything was made more difficult. There was another child left in the placement with the adoptive parents and the court needed to decide if the allegations were true so it could decide if that other child was also at risk. The Court of Appeal were critical of the delay in coming to court and of failing to analyse the risks to the remaining child in the meantime.
The main criticism in that judgment though is of the judge conducting the fact finding hearing who (in short) delivered brief findings and then after some delay a long oral judgment which the lawyers immediately realised needed clarification because it was unclear what findings had actually been made. They repeatedly sought clarification before eventually giving up and lodging an appeal. The Court of Appeal didn’t even have the finalised approved version of the judgment when the appeal was argued because there had been delay in it being approved by the judge (Mrs Justice Parker), and they had to rely on an agreed note of the judgment prepared by the lawyers. The Court of Appeal said
The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.
The Court of Appeal said the lawyers had acted appropriately and followed the guidance about what to do when a judgment isn’t clear enough. In her oral judgment Mrs Justice Parker got the number of witnesses she had heard wrong, introduced important things at random places in her judgment with comments like ‘I completely forgot’ and ‘I forgot to say’ and did not make findings with reference to the list of findings sought. Everyone in the case agreed that the appeal had to be allowed. They concluded :
Before turning to the question of what lessons might be learned for the future and offering some guidance in that regard, a formal apology is owed to all those who have been adversely affected by the failure of the Family Justice system to produce an adequate and supportable determination of the important factual allegations in this case. In particular, such an apology is owed to T, her father and her mother and her younger sister X, whose own everyday life has been adversely affected as a result of professionals justifiably putting in place an intrusive regime to protect her from her father as a result of the statement of the Judge’s conclusions 16 months ago.
All in all this trio of cases make pretty depressing reading for those interested in how the Family Justice System is working. The only comfort that can be taken from them is that in these cases the court has rightly identified and called out the errors and in each case has issued clear guidance about how such problems might be avoided in the future. The two High Court judges in the first two cases and the Court of Appeal in the third clearly do not think that this sort of failure is ok at all.
Feature pic : Transparent dice pic courtesy of Dicemanic on flickr (creative commons) – thanks!