In the Matter of V (A Child) [2016] EWFC 58

IMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.[2016] EWFC 58Venue IN THE FAMILY COURT SITTING IN MANCHESTERIN THE MATTER OF THE CHILDREN ACT 1989AND IN THE MATTER OF V (A CHILD)Date 1 st December 2016
Before
Recorder Clive BakerRe V (A Child)JudgmentMs Susan Grocott QC for the FatherMs Gina Allwood for the MotherMs Yvonne Healing for the Child, instructed by his Children’s GuardianIntroduction
Between
In the Matter ofClaimant(A Child)Defendant
[1]This case concerns a child ‘V’ who is now 7 years of age. His parents, whom I will refer to simply as the mother and father, have been involved in private law proceedings at various times since his birth. This matter came before me for the first time for what was listed as a pre-hearing review on 16th November 2016 and thereafter a final hearing on 23rd and 24th November 2016. During those hearings issues arose with respect to the involvement of the local authority in various aspects of this case. Points concerning the practice and procedures adopted by the local authority were the subject of some investigation and indeed criticism. Counsel for the father, supported by the other parties, suggested that there were general matters of public interest that, if highlighted, may promote better practice in the future and observed that the issues that have arisen are not uncommon in other similar private law cases especially at district judge and circuit judge level. Those issues relate to the role and practice of local authorities when involved in allegations of abuse by one parent against another and the care and objectivity that is needed to adequately fulfil their statutory duties when investigating such matters.

Anonymity and transparency

[2]Accordingly, I have agreed to publish this aspect of my judgment. I have considered carefully the degree to which the various participants in the proceedings should be identified and have taken into account the extant guidance on publicity within the family courts and the competing Article 8 and Article 10 factors. I have decided I should take steps to protect the anonymity of this family and in particular the child, including anything more specific than the families’ general geographical location, primarily because I have concluded that the balance in this private law case weighs heavily in favour of anonymity and that the risks to the welfare of the child consequent upon any publicity that allows for ready identification of family members outweigh their advantages, even in a judgment where some criticism is levelled at a public body, namely the local authority. I have also decided not to name professionals involved in this matter (save for the parties’ advocates) or the local authority, as to do so would narrow the geographical location too specifically. At my invitation a legal representative of the local authority attended to assist the court during the final hearing. She is employed directly by the local authority and therefore is also not named.[3]In respect of the relatively narrow issues that remained between the parties during the hearing, they were dealt with in an ex tempore oral judgment given by me in private at the conclusion of the evidence in the case. That judgment remains subject to the usual restrictions on publicity.

Background

[4]V’s parents met in 2008. V was born in 2009 and the parents separated, having had numerous relationship difficulties, shortly after his birth. They were involved in private law proceedings before the family courts between 2009 and 2011. During those proceedings there were many court hearings, including an appeal heard by the Court of Appeal. They involved allegation and counter allegation by each parent but the ultimate conclusion resulted in what was then termed a shared residence order, in essence with V living with his father for 3 nights out of 14 on a continuing cycle and the mother for the remaining time. It would be fair to summarise those proceedings as acrimonious.[5]The parents in fact resumed their relationship from 2013 to 2014, although the extent and precise dates of this reconciliation remain contentious.[6]The relationship did not persist and the parents returned to court in 2015 to determine the arrangement for V subsequent to this separation. Once again matters were heavily contested and involved allegation and counter allegation between the parents. The degree of contention between the parents is perhaps illustrated by the fact that even after a contested hearing at which both gave evidence and a full judgment given by a district judge in October 2015, the exact terms of the order could not be agreed between the parties and further written submissions were required so that a final order could be agreed and drawn up, a process that was not completed until some months after the ostensible ‘final’ hearing in October 2015. Again the essence of the order made was that V should live with both parents – roughly equally during the school holidays and with the father for 4 nights out of 14 on a cyclical basis during school term time.[7]The above summary perhaps does not do justice to the level of conflict between the parents. As well as allegations made within the family proceedings, at various times over the years the parents had managed to involve social services, police and professional bodies in their battle with each other. As will be seen from the summary outline given above they were all, eventually, for nought in that the orders encapsulated the principle that both parents should be fully and practically involved in their son’s life in every sense.

These Proceedings

[8]The matter returned to court this time as a consequence of allegations of sexually inappropriate behaviour by the father with respect to his son. In order to make sense of the observation I make below, it is necessary to set out some of the recorded history relating to those allegations. For reasons that will become apparent later on in the judgment it has not been necessary for the court to undertake a detailed investigation of the allegations nor to determine whether another party has inappropriately encouraged allegations or caused them to be deliberately fabricated. In the final analysis all parties agreed that the father has not at any time acted in a sexually inappropriate way towards his son, a conclusion that I wholly endorsed. Further, there is no finding that the mother acted in any way to deliberately or inappropriately cause the allegations to be made. At the final hearing no such finding was sought and nothing within the summary set out below should be taken as any indication of culpable responsibility on the mother’s part.[9]On a day in January 2016 the mother and V were at home with a family friend who was visiting. The family friend heard V make some comments about the time he lived with his father including comments about massages that he and his father had given each other. The family friend, who asserts experience in child protection matters, spoke to the mother on the telephone after her visit and informed the mother that she was going to make enquiries with respect to “intervention” with V on the basis that she was concerned by what she had heard. On the same day she telephoned the child’s school and told them about her concerns.[10]The school initiated safeguarding procedures and 6 days later V was seen in school by the Investigating Police Officer and a Social Worker. Prior to speaking to V they spoke to V’s school teacher. Amongst other things the teacher told them the school did not have any particular concern about V, that they had witnessed a good relationship between V and his father and that they had observed him to look forward to his father picking him up from school. The school were aware that V was awaiting a corrective medical procedure and that they were aware that V’s father, a medical professional, did massage V in connection with this condition. They confirmed that V had made no allegations of sexually inappropriate behaviour to them.[11]When the Investigating Police Officer and the Social Worker spoke to V, he made no allegations against his father and told them that there were no bad things about living with his dad or mum. When asked if his father ever did anything that makes him feel confused, upset or angry, he said that his father did not.[12]The Social Worker and the Investigating Police Officer communicated the contents of their conversation with V. It is recorded that the mother was not happy and was asking about stopping “contact” between V and his father. V was due to return to live with his father in the next few days. At that time it is recorded that she was advised that she would “struggle” to justify preventing V seeing his father and would be in breach of the extant court order. It is recorded that the mother was advised that she should not question V further.[13]The following day the mother attended at the local police station with a relative. She was initially spoken to by a police officer who was staffing the front desk. That police officer made a record of her attendance and sent a note to the Investigating Police Officer relating the encounter. It records that the mother was asking V to tell the police officer what he had told her. It records that the mother was asking V leading questions to elicit answers from V. She was asked to return later in the day when the Investigating Police Officer (who had attended the school the day before) would be on duty.[14]When the relative, mother and V returned to the police station the same day the Investigating Police Officer spoke to them. The Investigating Police Officer’s note records that during discussions with the mother, she reported that she had been undertaking research on the internet about how to speak to a child and that she had been asking V questions about what his dad had done. It is noted that it appeared to the Investigating Police Officer that the mother had been asking leading questions of V but when this was raised with the mother the relative became angry and aggressive and was asked to leave.[15]V was then video interviewed. I will return to the contents of that interview below.[16]After the interview the Investigating Police Officer noted that the mother “was keen to contact her solicitor and appeared to be checking that [V] had stated everything he needed to”. Thereafter the Investigating Police Officer advised the mother that the matter would be passed to a different police station for further investigation.[17]The transcript of the video interview of V makes for interesting reading. It can be asserted that he makes a number of allegations about his father massaging him, possibly involving the child and the father’s private parts. However, in a letter from a Detective Inspector written to the father’s solicitors 6 months later the contents of the interview are described thus:
“[V] did provide an account on video interview, and it was noted by officers that he did present in a very different manner compared to the previous [the school visit]. His account changed numerous times and he failed to make any clear or concise disclosures.”
[18]That brief description is accurate and encapsulates the fact that the interview of V, even taking into account his age, is muddled and inconsistent. It does not provide a strong foundation for assertions of sexually inappropriate behaviour by the father. In the end it was the only evidence that could possibly have been taken as any evidence of inappropriate behaviour by the father.[19]On the same day (i.e. the day that the mother attended the police station in the morning and those events summarised at paragraphs 13 and 14 above occurred) the mother applied to court for a prohibited steps order preventing the father from removing V from her care. That application was made without notice to the father and was granted. It is, to say the least, a great sadness for V that it was to be a further 43 weeks before he was to see his father again, a subject to which I will return later.[20]The father was formerly interviewed 2 ½ weeks after the phone call made to V’s school that started the whole process. He denied any inappropriate behaviour with his son. Eventually the police took “No further action” (often abbreviated to ‘NFA’) unsurprisingly determining that there was not sufficient evidence to prosecute the father. Even after that decision, it took a further 22 weeks before V was to see his father again. It is notable that by the conclusion of the father’s police interview (i.e. only 2 ½ weeks after the original referral to school) all of the primary evidence relating to the allegation of sexually inappropriate behaviour by V’s father had been obtained and it, in essence, amounted to very little indeed.

Local Authority Involvement

[21]The Social Worker had attended the school on day 6 and spoke to V. As is the statutory duty of the local authority, the Social Worker began what is known as a ‘section 47 investigation’. That refers to section 47 of the Children Act 1989, which places upon local authorities a duty to undertake an investigation “to enable them to decide whether they should take any action to safeguard or promote the child’s welfare” in circumstances where they have “reasonable cause to suspect that a child… is suffering or is likely to suffer significant harm.” It can be seen that an allegation of sexual abuse falls axiomatically within this definition.[22]Again it is of assistance to set out the sequence of recorded events relating to the involvement and decision making of the local authority, which I shall do by reference to ‘Day 1’ being the day on which the family friend telephoned the school.[23]The section 47 investigation formerly began on Day 6 (a day after V was video interviewed, as up until that time he had not made any actual allegations of sexually abusive behaviour to anyone). A Strategy Meeting was held on Day 9. This meeting was attended by representatives of the police, the school and the local authority. The minute of that meeting unsurprisingly recommended the continuation of the section 47 investigation. Three other recommendations were made, namely that(i) a ‘Child and Family Assessment’ should be completed(ii) that there should be an Initial Child Protection Conference held and(iii) that a working agreement should be entered into with the mother. Recommendation (i) and (iii) were completed with varying results. An Initial Child Protection Conference never took place. In hindsight it appears to me (and at this hearing the local authority accepted) the failure to hold the Initial Child Protection Conference was a fundamental mistake.[24]The section 47 investigation was completed within 2 ½ weeks. It was clearly written up prior to the father’s police interview as it refers to the fact that the father is ‘due to be interviewed’. The father had not been spoken to by the social worker before it was completed, a decision that is difficult to understand.[25]In a number of specific regards it is a confusing document and, at the very least, some of the nuances of the document are inaccurate. It contains a summary of the child’s video interview that takes no account of the inconsistencies within that interview. It does record that when visited at school V expressed no concerns about the father. It records that:
“Given the disclosures made by [V] in which there is a likelihood that such have been influenced by his mother… it is recommended that an Initial Child Protection Case Conference is convened.”
[26]However, for reasons that I remain bemused by, on the same page this is recorded:
“Upon discussion with [the Independent Reviewing Officer] it was determined that threshold for an Initial Child Protection Case Conference has not been met… as there is currently no evidence that [V’s] mother has incited the allegations.”
[27]How the above two statements can be reconciled is difficult to understand and nothing within the document explains the sudden volte face. How it can be said that the threshold of an Initial Child Protection Case Conference has not been met where, at the very least, there is an allegation of sexual abuse that has not been immediately assessed as being without any foundation, also bemuses me.[28]The above contradiction becomes even more difficult to comprehend when it is observed that 5 days before the section 47 investigation was concluded there is a note on the local authority computer of a conversation between a police officer and a social worker which reads:
“… when SW in [locality] had seen [V], he had not made any disclosures and indeed spoke positively of contact with his father. In relation to these allegations there is NFA. A strategy meeting was held and decision has been made to proceed to ICPC [Initial Child Protection Case Conference], however this is in relation to concerns with mother and emotional impact from mother and her behaviour.”
[29]At some time after Day 6 and before the completion of the section 47 investigation the local authority had presented the mother with a written agreement. That was not in the Court Bundle so when I invited the local authority to attend the final hearing I also asked them to bring a copy of the written agreement. It is undated so it is only possible to estimate when it was signed by the mother. It asks the mother to ensure that:
“[The Father] is to have no contact with [V] whilst the investigation is ongoing.”
[30]Unfortunately it does not mention what is meant by ‘investigation’ (i.e. the local authority investigation or the police investigation) and indeed it is agreed that once signed, the local authority did not subsequently inform the mother at any stage that the ‘investigation’ was complete. In other words, the mother had signed an agreement without limit of time that asked her to prevent V and his father having a relationship on pain of the local authority taking “further action” and “legal advice” should the agreement not be adhered to.[31]Such agreements are important. I was informed that at a hearing after both the local authority had closed the case to themselves and the police had formally decided to take no further action this Written Agreement was cited by the mother at a hearing before a district judge as a reason why V could not see his father. In the circumstances I cannot criticise the mother for doing so – it is difficult to interpret the document as anything other than a threat that were she to allow V to see his father, the local authority would consider initiating care proceedings.[32]The decision to have an Initial Child Protection Case Conference having been rescinded, the local authority continued a ‘Child and Families Single Continuous Assessment’ as it is referred to in the document. The use of the word ‘continuous’ is ironic in the circumstances, because it turned out to be anything but. The assessment document itself makes it difficult to determine when it actually concluded, however I suspect it was within 3 ½ weeks of the initial phone call to the school. The decision to close the case was reviewed and ratified by a social worker manager one month after its’ conclusion.[33]The assessment recounts a number of things. It repeats the account of V’s video interview in the same terms as identified at paragraph 25 above. It notes however that when V is seen by the social worker 2 ½ weeks after his video interview, he again expresses no concern about being in the care of either parent. It records some of the things I have related above that might have at least alerted the writer or the manager to the possibility that this was not simply a case of child sexual abuse and that there were other risk factors to consider. However, it recommends no further action is taken by the local authority. When that decision is ratified by the Social Work Manager it is recorded in the following terms:
“I agree with the social workers (sic) recommendations to close this case… From the information collated during the assessment process, it is considered that the likelihood of significant harm posed to [V] is considerably reduced given that [the mother] has obtained a Prohibited Steps Order as well as agreed via a working agreement to ensure that he does not maintain contact with his father… if [the mother] were to breach this agreement such would undoubtedly increase the risk posed to [V] and, in turn, impact upon his developmental needs.”
[34]It is difficult to read that paragraph as anything other than a conclusion that(i) in the view of the local authority V had been sexually abused by his father and(ii) that if he were to have contact with his father he would be at risk.[35]The local authority did not become involved with V again until the Court made a section 37 direction, some 7 months later. That section 37 report, which was completed by a social worker who had not previously been involved, concluded that there was little or no evidence to substantiate any allegations of sexual abuse. The writer also observed that there was considerable evidence of a hardening of V’s views against the father, contrary to the situation that existed when he was living with the father and mother jointly and indeed contrary to the situation when his relationship with his father had only been interrupted for a few weeks. The writer concludes that V has suffered significant harm but that harm emanates from the acrimonious dispute between the parents rather than any form of direct sexual or physical abuse. The analysis of the factual matrix is compelling and thorough. Whilst neither I nor the parties entirely accepted all of the recommendations made within the report, that does not detract from the value of the work undertaken. It is right that I acknowledge that the author was employed by the same local authority that this judgment criticises.

Observations

[36]I have every sympathy for and understand only too well the limited resources available to local authorities. Some local authorities, in my experience, display considerable reluctance to become involved in private law disputes and it is possible that there is an instinctive wish to withdraw from meaningful involvement as soon as possible, believing that private law disputes will ultimately be resolved by the courts. Local authorities do, after all, have many children whose welfare they are charged with protecting. However, local authorities have statutory duties and the way in which those duties are carried out have significant and lasting ramifications even if they do not become directly involved in any court proceedings that follow.[37]My main criticism of this local authority relates to the lack of balance in fulfilling those statutory duties in this case and decisions that were taken that prevented them from arriving at a balanced view. I remind myself that I am examining the situation in hindsight which is always advantageous but even taking that into account I cannot resile from making the observations set out below.[38]In any dispute between two parents where an allegation of abuse of any nature is made, instigated or supported by one parent against the other it is, in my view, incumbent upon a local authority receiving a referral to have in mind all the possible risks that may be inherent in any such allegation.[39]There is of course the risk that the allegation, whatever its nature, is true. There is the risk that that the allegation is not true. There are also the risks that the allegation is in some way mistaken, mistakenly encouraged or deliberately fabricated.[40]There are of course very serious welfare consequences for a child if allegations of, for example, sexual abuse are true. However, there are also serious welfare consequences if the allegations are not true. Those consequences include the possible temporary or permanent cessation of a relationship between a child and a parent. They include the inculcation of false events within a child’s memory and belief system. They include one parent portraying a negative and inaccurate view of another parent, with possible long term consequential psychological damage to a child who is led to believe that part of his or her genetic make-up is in some way ‘bad’ or unworthy.[41]It strikes me that in circumstances where the backdrop is a dispute between parents, the words of Baroness Hale in Re B [2008] UKHL 35 at [29] should be at the forefront not only of the Court’s mind but also of any investigative authority: “…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication."[42]It is notable that Baroness Hale refers to the local authority as being “neutral and expert”. In my view and with respect, in this context it seems to me that ‘neutral and expert’ implies a professional detachment that is alive to all the risks and weighs all the evidence in a balanced way bearing in mind all the reasonable possibilities. It does not imply an abandonment of a precautionary approach to child protection but acknowledges that ‘child protection’ encompasses protection for children from mistaken and false allegations as well as those that may be true.[43]It also occurs to me that where local authorities act in a way that purports to restrict the relationship between a parent and a child, under pain of legal action (as in this case, condensed into the written agreement) they must bear in mind that they may be interfering as a public body in a relationship that has, for want of a better term, special status. That ‘special status’ is reflected in the following observations about this case, which I doubt are exhaustive:a. This father had parental responsibility for V;b. This father had a court order that ensured that V lived with him and the mother;c. This father had an ongoing relationship with his son about which there was ample evidence of a positive nature;d. V had an Article 8 right to family life with his father that should only be interfered with if justified and proportionate; ande. The father had an Article 8 right to family life with his son that should only be interfered with if justified and proportionate.[44]When interfering with such powerful imperatives it, in my view, behoves the local authority to record the situation carefully and accurately, formulating an assessment of the risks on all the evidence reasonably available, even if that assessment still concludes that for the time being the child should not see the accused parent. Simply to say ‘the child will not see the alleged perpetrating parent and is therefore safe’ and thereafter close the case, is an abrogation of the responsibility placed on local authorities by Parliament.[45]Failure to assess the circumstances properly has far reaching effects, even if the local authority do not themselves initiate protective court proceedings. In this case alone there are two obvious examples. First, when a private law case comes before the court Cafcass complete a ‘Safeguarding’ letter, a process that involves a Family Court Reporter quite literally telephoning the local authority to find out if they have had any involvement with the child or their family. Someone at the local authority looks on the computer and relates the contents of the information contained therein. The conclusions and nuance of that information informs the contents of the Safeguarding Letter which then informs the judge at a First Hearing Dispute Resolution Appointment. Decisions taken at the early stages of a case are of vital importance and can determine the direction of travel for the court process. Re-visiting the conclusion of the local authority assessment set out at paragraphs 33 and 34 above, it is not difficult to imagine the message that would be conveyed to the court by such a conclusion. Neither is it difficult to imagine the different approach that might have been taken by a court had that conclusion recorded a more balanced examination of the risks in this case.[46]Secondly, I have already alluded to the possible effect of the Written Agreement entered into between the mother and the local authority (paragraph 31). Again it is not difficult to imagine how a court, bereft of the complete picture, would approach a situation where it is informed that the local authority have told the mother that she must not allow the child to see his father. The impact was doubtless magnified by the lack of an end or review date in the agreement, allowing it to be said quite accurately that the agreement apparently still applied.[47]In addition, an approach that lacks balance and objectivity allows a parent who is more than willing to believe, subjectively and possibly inappropriately, that the other parent has sexually abused their child, to invest in that belief. It prevents them coming to terms with the possibility that the other parent may not have sexually abused their child. It reinforces both parents’ negative belief about the other parent which in turn is likely to impact adversely upon the child. Ultimately it increases the difficulty of putting the situation right and allows parents to get ‘stuck’ in a conflict that could have been defused much earlier.[48]It was the assessment process and the decision to abandon the proposed Initial Child Protection Case Conference that are, in my view, the most egregious errors and were fatal to a balanced view of the circumstances of this case.[49]Working Together to Safeguard Children - A guide to inter-agency working to safeguard and promote the welfare of children, published by the Department for Education, March 2015 is Statutory Guidance issued under section 7 of the Local Authority Social Services Act 1970, which requires local authorities in their social services functions to act under this general guidance issued by the Secretary of State. Had it been followed in the case, some of the shortcomings identified above may not have taken place.[50]With respect to section 47 investigations it stipulates, amongst other things: “Local authority social workers have a statutory duty to lead assessments under section 47 of the Children Act 1989. The police, health professionals, teachers and other relevant professionals should help the local authority in undertaking its enquiries. … Social Workers with their managers should:• lead the assessment in accordance with this guidance;• carry out enquiries in a way that minimises distress for the child and family;• see the child who is the subject of concern to ascertain their wishes and feelings; assess their understanding of their situation; assess their relationships and circumstances more broadly;• interview parents and/or caregivers and determine the wider social and environmental factors that might impact on them and their child;• systematically gather information about the child’s and family’s history;• analyse the findings of the assessment and evidence about what interventions are likely to be most effective with other relevant professionals to determine the child’s needs and the level of risk of harm faced by the child to inform what help should be provided and act to provide that help… (page 39)

Social Workers with their managers should:

[51]Had the local authority complied with the above guidance it seems to me inevitable that their ‘systematically gathered’ evidence would have led to an analysis that admitted of many more risks that were a real possibility than simply that the child had been sexually abused by his father.[52]Likewise Working Together defines the circumstances in which an Initial Child Protection Conference should take place (e.g. at page 41):
“Where concerns of significant harm are substantiated and the child is judged to be suffering, or likely to suffer, significant harm.”
[53]The conclusions of the section 47 and Child and Family Assessments investigations appear to be that there is a real possibility the child has been sexually abused by his father. Even if that was the only possible conclusion open to the assessor at the time (and it very clearly was not) I fail to see how the criteria for an Initial Child Protection Conference was not met. Any child who has been sexually abused in the recent past by a parent must surely “be suffering… significant harm” as a consequence of that abuse, even if he or she is never going to see that parent again, unless a very narrow interpretation is applied to the criteria.[54]Of course, in this case there were other clearly identifiable risks of significant harm, not least that the allegations may be untrue and that the child may be living with a parent who had supported or encouraged false allegations. Additionally, the complete and sudden cessation of an established parental relationship must surely carry with it the real possibility of significant harm.[55]Had the local authority held the Initial Child Protection Conference Working Together stipulates an ‘inter-agency’ approach i.e. attendance by police, school, health etc. The purpose of the Conference is defined, at page 43, as (my emphasis): “To bring together and analyse, in an inter-agency setting, all relevant information and plan how best to safeguard and promote the welfare of the child. It is the responsibility of the conference to make recommendations on how agencies work together to safeguard the child in future. Conference tasks include:• appointing a lead statutory body (either local authority children’s social care or NSPCC) and a lead social worker, who should be a qualified, experienced social worker and an employee of the lead statutory body;• identifying membership of the core group of professionals and family members who will develop and implement the child protection plan;• establishing timescales for meetings of the core group, production of a child protection plan and for child protection review meetings; and• agreeing an outline child protection plan, with clear actions and timescales, including a clear sense of how much improvement is needed, by when, so that success can be judged clearly.[56]Such a Conference would have provided an opportunity for all the relevant information to be viewed in the round. When one considers the salient points which I have summarised above at paragraphs 9 to 20 it appears to me that had an Initial Child Protection Conference taken place it would have inevitably lead to a more balanced understanding of the available evidence (and I remind myself that all of the primary evidence was available within 2 ½ weeks). That in turn should have led to a more balanced identification of the risks that may exist for V and perhaps the conclusion that the local authority reached in its section 37 investigation could have been reached much sooner.[57]There is also a real possibility that such a Conference would have allowed the local authority (and the other agencies involved) to have taken a step back from the immediate evidence and looked at the situation as a whole. It may have allowed the professionals to seat these allegations in their context i.e. of ongoing and repeated parental dispute.[58]As a more general point, I would need some persuading that in circumstances where an allegation of sexual abuse of a child is made or supported by one parent against another, it could ever be right to take the approach that just because a parent agrees to prevent the other parent seeing the child, an Initial Child Protection Conference is not necessary. The consequences of such allegations, true or false, are simply too grave to imagine circumstances in which the local authority could withdraw at the first available opportunity and still comply with its statutory duties, save in circumstances where the allegations can in effect, be summarily dismissed as obviously without foundation.[59]Looked at from a slightly different perspective, section 17 of the Children Act 1989 defines the general duty of Local Authorities to ‘Children in Need’. Section 17 subsection 1 states: “(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—(a) to safeguard and promote the welfare of children within their area who are in need; and(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.” (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families,[60]A child is defined as being ‘in need’ by section 17 subsection 10: “(10) For the purposes of this Part a child shall be taken to be in need if—(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or(c) he is disabled, and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

(c) he is disabled,

[61]Once again, it is difficult to imagine circumstances where a child is the subject of an allegation of sexual abuse that is considered by the local authority to have some foundation who would not qualify under section 17 for support and assistance. The idea that it is sufficient simply to formulate an agreement with one parent that they will prevent a relationship with the alleged perpetrating parent on threat of care proceedings, and then withdraw at the earliest possible stage, without considering that there are ongoing section 17 duties, is difficult to justify.[62]In this case the local authority did not identify V as a child in need. Indeed, even the section 37 report, which concluded that the child has suffered significant harm (not as a consequence of any sexual abuse but resulting from the parents’ conflictual relationship) did not propose that the child would be regarded as a child in need by the local authority for any period of time. I add that at this hearing the local authority reconsidered that position and readily accepted that V is a child in need and have offered support services to V and his parents.[63]It is also right that I record that upon their attendance at this hearing, the local authority took a constructive approach that was of assistance to the court and the parties. They accepted that:a. It had been an error to conclude their investigation at such an early stage;b. It had been an error not to hold an Initial Child Protection Case Conference;c. It had been an error to impose the Written Agreement that proposed no time limit or active review of the conditions contained therein;d. That the assessments conducted did not sufficiently balance all the available evidence; ande. That the assessment contained factual errors.[64]I add that the local authority has agreed to rectify their records so that recorded errors do not, in the future, become assumed as accepted fact by reason of repetition.

The Conclusion to the Proceedings

[65]At a hearing shortly before the case came before me, it is recorded on an order that the mother no longer sought a finding that the father had sexually abused the child. I strongly suspect that had the local authority not fallen into the initial errors outlined above that situation might have been reached much earlier.[66]At that earlier hearing the father indicated that he sought a finding that the mother had caused emotional harm to the child by, amongst other things, encouraging or prompting false allegations. He also sought the child living solely with him, hence the matter was listed before me for a pre-hearing review and a finding of fact exercise a week after the pre-hearing review. However, at the pre-hearing review the parties agreed that V would spend 5 days with his father in the intervening period and, if that time between V and his father took place, it would not be necessary to undertake any factual investigation, the father preferring to take a constructive approach. He accepted that if his relationship with his child was re-established, he would not seek sole care of the child nor would he pursue adverse findings against the mother.[67]Although I encouraged that approach and indeed expressed the view that in circumstances where it was clear and accepted that this father had not sexually abused or otherwise harmed his child it was important that this 7 year old’s relationship with his father was re-established as a matter of urgency, I must reflect that the proposal for an immediate resumption of the relationship came from the parents and that both parents took a constructive approach, doubtless assisted by able and appropriate advice.[68]I suspected at the pre-hearing review that if V was ‘given permission’ by the mother to resume his relationship with his father it would be successful. It is to her immense credit that she was able to promote the resumption of V’s relationship with his father. At the final hearing the overwhelming and uncontroversial evidence was that V resumed his relationship with his father without any misgivings. The Children’s Guardian had seen V and her report of the time V spent in his father’s care was wholly positive. For reasons that were set out in my unpublished judgment, V is now subject to an order where he lives equally with both parents under a clearly defined and simplified order that aims to minimise the need for the parents to involve themselves in adult conflict.[69]As I reflect on the events of this case I cannot help but comment that it is lamentable that it took 43 weeks for the situation to be rectified. That is time the child and his father will never get back. I have not undertaken a detailed analysis of each step in the process or the actions of each agency involved but it would be wrong to suggest that the delay is solely the responsibility of one agency. Section 1(2) of the Children Act 1989 enshrines in statutory form the obvious principle that delay in determining questions concerning a child’s welfare “is likely to prejudice the welfare of the child.” It is never more true when the court and agencies are involved in cases such as these, where the interim position involves a cessation of an established relationship between a child and a parent.[70]It seems to me that in such circumstances it is incumbent upon all the parties, agencies, representatives and courts to strive to resolve the issues with determination and drive so that avoidable delay is appropriately minimised.

Cited in 1 later judgment