M, Re (Rev 4) [2015] EWHC 2082 (Fam)

[2015] EWHC 2082 (Fam)

Case No KH14Z20037

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/07/2015

Before

MR JUSTICE HAYDEN

Between

MApplicant

L.A.1 st Respondent

William Tyler QC and Philip Booth (instructed by Grahame Stowe Bateson Solicitors) for Applicant

Taryn Lee QC and Fiona Clancy (instructed by L.A.) for 1 st Respondent

2 nd Respondent appeared in person for in person

John Hayes QC and Guy Swiffen (instructed by Henry Hyams Solicitors) for 3rd Respondent

Darren Howe QC (instructed by Williamsons Solicitors) for 4 th& 5 th Respondent

Hearing Hearing dates: 23 rd, 24 th& 25 th March 2015

Judgment

Mr Justice Hayden :

[1]Three applications brought on behalf of ‘M’ (the Mother) provide the framework for the issues that I am being asked to determine. The first is an application to discharge a Care Order in respect of ‘C2’ granted on the 12th October 2012. The second, which is made in the alternative, is an application for contact with C2, she being the subject of an order permitting the Local Authority to refuse contact with her mother pursuant to S34 (4) Children Act 1989. The Local Authority exercised the permission granted. Finally, there is an application to discharge a Freeing Order in respect of C2 granted, now some nine and a half years ago, on the 24th November 2005.

[2]At this stage each of these applications is entirely dependent on two contingences: i) Whether I permit a re-opening of findings of fact made by His Honour Judge Dowse on the 30th August 2007; ii) Whether those facts are subsequently displaced by alternative findings upon rehearing; It is perhaps important to signal from the outset that Mr William Tyler QC and Mr Phillip Booth, on behalf of the mother, contemplate that a re-opening of the findings will involve ‘full re-litigation of the matters underlying the findings’. Mr John Hayes QC and Mr. Guy Swiffen, who appear on behalf of ‘F2’, (see below), indicated, in the course of submissions, that a re-hearing would likely require a significant number of witnesses. Mr Darren Howe QC, who appears on behalf of the children, observes in his Skeleton Argument ‘transcripts of the evidence of those witnesses as given to HHJ Dowse are available to be considered by the Court. A full transcript of all the evidence by HHJ Dowse would need to be obtained, there currently being a number of days of the evidence missing from the documents available.’ Later he submits ‘if there is to be a review, it will need to be a full review taking into account all the evidence available and the sworn evidence available from the previous hearing’. None of those contemplating a review therefore appear to envisage a narrow or tightly circumscribed inquiry.

[3]So scrupulously have the documents been pared down for the application before me, in compliance with the President’s Guidance, that it is not possible to track the evolution of these proceedings clearly from the papers filed. Helpfully, that task has been undertaken by Ms Taryn Lee QC and Miss Fiona Clancy who appear on behalf of the Local Authority. Ms Lee is particularly well equipped for the challenge here, having appeared in the case before HHJ Dowse. No Party takes any issue with her summary of the background history and I draw from it extensively. 4. The Family Name Detail ‘C1’ Subject child Placed in foster care following breakdown of adoptive placement in 2007. Care and Freeing Orders made on 24th November 2005. Currently the subject of the Freeing order. Has no contact with parents. ‘C2’ Subject child Placed with paternal aunt on the 17.04.12 Subject of a Care Order granted on 12.10.12 Has contact with her father F2 twice p.a. There is a s.34 (4) order in respect of her mother. There has been no contact between C2 & C8. ‘M’ Mother Previously in a relationship with F1. Separated 2007. Commenced relationship with F2 in 2007 and married in May 2010. Now living in Scotland with their son C8. F1 Father of C2 and C8 Commenced relationship with M in 2007 and married in May 2010. Now living in Scotland with their son C8 F2 The Siblings Father of all the children C1,C3=C7 Formerly in a relationship with M. Separated 2007.

[4]The Siblings C3 Full sibling to C1 Half sibling to C2 and C8 Care & Freeing Order 24th November 2005 Adopted with C4 in 2006 C4 Full sibling to C1 Half sibling to C2 and C8 Care & Freeing Order 24th November 2005 Adopted with C3 in 2006 C5 Full sibling to C1 Half sibling to C2 and C8 Care & Freeing Order 24th November 2005 Adopted 2006 C6 Full sibling to C1 Half sibling to C2 and C8 Care & Placement Order 29.01.08 Adopted with C7 in 2009 C7 Full sibling to C1 Half sibling to C2 and C8 Care & Placement Order 29.01.08 Adopted with C6 in 2009 C8 Full sibling to C2 Half sibling to C1 and C3-7 girls Not subject to any proceedings in either England or Scotland. Lives with parents in Scotland There has been no contact between C8 & C2 Paternal aunt Paternal Aunt and Carer for C2 Resides at an undisclosed address with C2 and her own son R

BACKGROUND

[5]M commenced a relationship with F1 in approximately 1995. Together they had six children, all girls, between 1999 and 2006. The first child, C1, was born when both parents were 17 years of age. The parents never married.

[6]The Local Authority issued care proceedings in 2004 in respect of the 4 older children and also in respect of C6 following her birth. There was significant evidence of both physical and emotional harm as well as neglect. The parents acknowledge that they could not parent the five children to a satisfactory standard and on the 24th November 2005, Care Orders were made and the children were freed for adoption. C6 remained at home under the framework of a Supervision Order.

[7]All four children freed for adoption were subsequently placed. C1 and C5 were placed in individual adoptive placements and C3 and C4 were placed together. Following C1’s final contact with her parents and having been placed with her adoptive family, she began to make allegations of a sexual nature, initially identifying her father as the perpetrator and subsequently extending this to her mother. C1 also alleged that C3 and C4 had been sexually abused.

[8]C1was interviewed in accordance with ‘Achieving Best Evidence’ (ABE) guidelines on the 21st August 2006 following which the LA issued care proceedings to seek the protection of C6 and C7 (who had just been born) by way of their removal.

[9]C1 undertook a further ABE interview on 6th November 2006. The matter was listed for a ‘Finding of Fact hearing’ for a period of 5 days commencing the 23rd April 2007. The case advanced by the parents was that C1 had been coached or influenced to make the allegations against her parents by one or two other foster children who had been in the same foster placement. With obvious reluctance, but inevitably, the Judge felt constrained to adjourn the hearing, part heard, to seek disclosure of information relating to those children.

[10]The case resumed for three days on the 9th July 2007 and judgment was handed down in perfected format on the 30th August 2007.

[11]During the course of those proceedings the adoptive placement of C1 broke down. M attended at the address of the adoptive family and then approached and spoke to the birth children of the adopters. The circumstances of the mother’s attendance at the adoptive family home was the subject of evidence before HHJ Dowse on the 17th October 2007, and a further judgment delivered on this issue. The Mother stated she had gone there because she “dreamt the adoptive father was harming C1”.

[12]It appears that the parents separated shortly thereafter and the mother commenced a relationship with F2. The mother became pregnant with C2 at the end of 2009. Following C2’s birth, both parents agreed to the children being accommodated, pursuant to s20 Children Act 1989, in order that assessments could be undertaken.

[13]The primary concern in respect of the father F2 was that he did not accept the findings made by HHJ Dowse in 2007 and believed that the mother posed no risk to C2. Dr David Briggs, a Forensic and Clinical Psychologist, undertook a risk assessment of both parents. Dr Briggs considered that: “M would struggle to meet C2’s needs if called upon to parent the child as a single parent or in combination with F2”.

[14]In respect of the father Dr Briggs stated that whilst he could ‘probably meet the basic needs’ of C2 at that point in her life… “One of the key needs of any child is that of being protected from harm. Were M to be living in the household I am not persuaded that F2 has the ability to protect C2 from any risks presented by her mother”

[15]The LA provided counselling to enable the parents to make a physical and emotional separation in order to allow F2 to care for C2 as a single parent. However F2 was unable to effect a separation and for some time both parents prevaricated to professionals regarding the true status of their relationship.

[16]During the course of proceedings contact was facilitated between both parents and C2. In January of 2012 F2 requested that his contact be reduced to once a month from February of that year. F2 subsequently failed to attend the contact arranged for February. Within a fortnight of F2’s request having been made in January the mother advised the LA that she would not be attending any further contact with C2. By April 2012 F2’s own contact had also ceased.

[17]C2 was placed with her paternal aunt on the 17.04.12, following positive assessments. It is accepted that F2 was ambivalent about C2 being placed with his sister and had said, on a number of occasions, that he would prefer C2 to be adopted outside the family. The mother did not agree to the placement of C2 with the paternal aunt either and instead contended that C2 should be adopted and placed with her half siblings.

[18]On the 13th June 2012 the LA were contacted by X Social Services and informed that the parents were living together in X. They had become aware that the mother was pregnant, now with her eighth child and that the parents had paid for a private scan in X. When asked, both parents initially denied the pregnancy but subsequently informed the X social worker, by text message on the 9th July 2012, that the pregnancy had been terminated. The mother was said to be convalescing at her own mother’s home in Y. The Grandmother denied this was the case, the mother then sent a further text message to the social worker stating that she was with friends in Y and insinuating that she intended to leave the country.

[19]By the time the proceedings concluded in October 2012, the parents’ whereabouts were unknown. It was not clear whether the mother had given birth.

[20]It later came to light that the parents were living in Scotland. Safeguarding procedures were instigated, in due course, which led to the child C8 being placed in foster care.

[21]In the course of the proceedings in Scotland the Court was persuaded to re-open the findings of HHJ Dowse. At the conclusion of the Scottish hearing, before Sheriff O’Carroll, the court reached a very different conclusion. In his judgment of the 30th October 2013 the Sheriff found that he was unable, on the evidence before him, to find that the Reporter (whose status is similar to that of the Local Authority in England) had discharged the burden of proving, to the civil standard, that M and F1 had been involved in the sexual abuse of any of their children. The allegations, on this aspect of the case, had been placed before the Scottish Court in this way:

“2. On various occasions between 22 February 1998 and 1 October 2005, at various addresses in the north of England, exact addresses meantime unknown, M and F1 caused C1, C3 and C4 (who were all under the age of thirteen at the relevant times) to participate in sexual activity and caused them to touch, with their hands or their mouths, the genitals, anus and breasts of M and the penis of F1. 3. Statement of fact 2 demonstrates that M committed an act of lewd and libidinous practices and behaviour. This an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.”

[22]In respect of these allegations the Sheriff stated in his judgment:

“320. […] However, I am unable on the evidence before me to find that the reporter has discharged the burden of proving to the civil standard that statement of fact 2 is proved. It follows that SoF 3 is not proved.”

By contrast

Judge Dowse found:

“Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.” “Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.”

The issues before this court

[23]At the hearing before Cobb J on the 18th December 2014 the following issues were highlighted for determination by this court:a. the status and weight, if any, of the Scottish judgment;

b. the question of whether the Scottish judgment takes precedence over the judgment of HHJ Dowse;

c. whether (applying Re ZZ) the court should permit reconsideration, review or challenge within the current proceedings of the findings of HHJ Dowse;

d. if so, the forensic extent of that review;

e. in relation to the application to revoke the freeing

[24]As the arguments have unfolded it seems to me that the above questions can now be refined. The issue really is whether the Scottish judgment has any legal status in the law of England and Wales and whether, if it has none, it nonetheless has some weight when applying the relevant criteria in determining whether the findings of the English court should be re-opened.

[25]The Family Law Act 1986 provides for the effective cross-enforcement of various orders as between England and Scotland on forum non conveniens or res judicata principles. This is not applicable in the current scenario, as all the parties agree. Mr Tyler and Mr Booth have drawn my attention to: Stare Decisis and Scottish Judicial Decisions, J.K. Bentil, [1972] Modern Law Review 537. They adopt the analysis of the legal status of Scottish judgments on the law in England and Wales set out in that paper:

“Apart from the fact that some Scottish judicial decisions which go on appeal to the House of Lords may create binding precedents for the English Courts, the effect on English courts of certain Scottish judicial decisions in their own right appears to have received little or no attention this side of the border. Theory has it that generally Scottish judicial decisions are not binding on the English courts but have persuasive effect only. But in actual practice, the weight of authority on this side of the border tends to suggest that certain Scottish judicial decisions, notably those concerned with the interpretation of statutes of common application on both sides of the border, are indeed binding on English courts.”

[17]The ultimate conclusion reached is as set out in paragraph 20 of their Skeleton Argument:

“Although we cannot assert the Sheriff’s judgment to have a formal (in the sense of automatically enforceable) status, it is clear that it has some status, or perhaps better worded, a ‘real significance’.”

[26]Mr Tyler contrasts the situation in Brussels II Revised, Council Regulation (EC) No 2201-2203 ‘BIIR’ cases. Pursuant to Article 21 (1) a judgment given in a Member State shall be recognised by the other Member State without the need for any special procedure. Article 23 (e) provides that one of the grounds for non recognition arises where a judgment is ‘irreconcilable’ with a later judgment relating to parental responsibility given in the Member State in which recognition is sought. In Re W-B

[2012] EWCA Civ 592

McFarlane LJ observed, at para 10:

“From the paperwork it appears that on the eve of the hearing counsel for the mother submitted a position statement which sought to refer to the Brussels II (Revised) Regulation as having an effect on the matter. It is now common ground before us, as it was by the time the Recorder came to give his judgment, that reference to Brussels II (Revised) is of no relevance to the present case. The issue of jurisdiction that fell for the Recorder to determine was between England and Wales and, on the other hand, Scotland, but both of those jurisdictional entities are part of one member state, namely the United Kingdom, and Brussels II (Revised) therefore is to no effect.”

[27]In Re PC, YC & KM (Brussels II R: Jurisdiction Within the United Kingdom)

[2014] 1 FLR 605

Baker J observed at para 16:

“It is widely recognised that the provisions governing conflicts of jurisdiction in children’s cases within the UK are, in the words of Thorpe LJ in Re W-B, supra, at paragraph 29, “difficult and complicated.”

He was referring in particular to the provisions of the Family Law Act 1986, but as Miss Green has demonstrated, there is similar difficulty and uncertainty as to the applicability of BIIR to the allocation of jurisdiction within the UK.” Nonetheless he went on to conclude at para 18:

“Given the clear view expressed emphatically by the Court of Appeal very recently in Re W-B, I reject Miss Green’s submissions and adopt the orthodox view that BIIR does not apply to jurisdictional disputes or issues arising between the different jurisdictions of the United Kingdom. Article 15 could not, therefore, be used to transfer these proceedings from England to Scotland.”

[28]It is notable that first instance judges in the UK have reached different conclusions as to whether BIIR applies to a jurisdictional dispute within the different territorial units of the UK. In the Scottish case of S v D [2006] Fam LR 66 the Sheriff concluded that BIIR did apply when determining jurisdictional disputes between Scotland and England. In Re ESJ [2008] NI Fam 6, Morgan J took the contrary view as to a jurisdictional dispute between Northern Ireland and England. Happily, like Baker J, I need do no more than follow the binding judgment of the Court of Appeal in Re W-B. Accordingly, I conclude that, given no interpretive question of statute arises here, the Scottish judgment has no legal status. My conclusion is slightly at variance with that contended for here on behalf of the Applicant mother but I very much doubt that the distinction between us has much, if any, relevance to the resolution of the substantive issue. The much more pertinent question is as to the ‘weight’ that should be given to the judgment of Sheriff O’Carroll of the 30th September 2013.

[29]On behalf of DW, Mr Hayes points to the dilemma presented by these contradictory findings:

“The Scottish Judgment is also highly significant within these proceedings because of the manner in which the case is put against F2 (as particularised in more detail at paragraphs 19 to 27 below). There is no evidence that he presents any direct risk of significant harm to either of his children. Rather, the LA's case against F2 is centred squarely on F2 being married to M combined with his view that she does not present any risk of sexual harm to the children. The view held by F2 runs counter to the English Judgment. However - and crucially - it accords with the Scottish Judgment.”

[30]Mr Hayes analyses the contradiction as impacting upon his client’s Article 8, ECHR rights. He submits:

“F2 has an Article 8 right to family life with both of his children (and they with him). He finds himself in the strangest of circumstances where that right is being exercised fully and without restraint in respect of C8 but substantially curtailed in respect of C2.”

[31]Focusing with great precision on the dilemma created for DW by the judgments, Mr Hayes notes: “In the proceedings in 2010-12 relating to C1, it is to be noted that the sole threshold finding sought and made regarding F2 was to this effect:” "F2 does not understand the risk that M poses to C2" "F2 does not understand the risk that M poses to C2"

[32]It is submitted that the English judgment has had ‘the most profound impact’ on F2’s Article 8 rights to family life. Not only did the findings of HHJ Dowse lead to this severely restricted regime of contact that C2 continues to have with C1 but, it is argued, it also informed the professional consensus that the only way in which F1 might have a more extensive relationship with his daughter was the complete cessation of any relationship at all with his partner, the mother. This leads Mr Hayes to observe:

“The juxtaposition between that highly prescriptive approach to F2’s family life and his current unrestricted experience of family life with his wife and C8 is a quite remarkable feature of this case.”

[33]There are undoubtedly challenging and troubling consequences created by the existence of these two judgments, but this fact alone does not cast much light, if any, on the identified issues. Article 8 rights do not exist in a conceptual vacuum. The Article is intended to protect the individual and to respect autonomy in the face of arbitrary interference by the state in private and family life. To be permissible, such interference must pursue one of the legitimate aims laid down in Article 8 (2) and, of course, must be “necessary in a democratic society”, that is to say proportionate to the aim pursued. To my mind the correct approach is to address the questions identified whilst remaining alert to all the competing rights and interests in play.

[34]Mr Tyler submits that an evaluation of the weight to be afforded to the Scottish judgment should include, amongst other factors, what he terms ‘the comparative quality of the judgment with its English ‘rival’’. I completely reject that approach. Neither judgment has been appealed, neither is the subject of any pending appeal. No party contends that the analysis of either judge is fundamentally flawed, either in law or in any discretionary exercise. The criticisms of HHJ Dowse’s judgment though trenchant and sustained do not go that far. I do not agree that this comparative exercise permits of a potential conclusion that one judgment should have greater weight than the other. That is a flawed proposition. Either one judgment is sustainable and the other is not or, alternatively, the question is whether the fact of the existence of judgments with such profoundly different consequences in and of itself is capable of amounting to a basis upon which to re-open the findings of the English court.

[35]Whether the second judgment was based on new material which has the potential to undermine the earlier findings is an entirely different question. In this respect I agree with Mr Tyler that it is relevant to the third question identified before Cobb J i.e. to the application of the principles set out in Re ZZ

[2014] EWFC 9

. In that case the President largely endorsed the three stage approach which had been applied in Birmingham City Council v H & Others

[2005] EWHC 2885 (Fam)

(‘Birmingham No.1’). In summary:(1) The Court considers whether it should permit any review of or challenge to the earlier findings;

(2) The extent of the investigation and evidence concerning the permitted review; and

(3) The hearing of the review involving the Court's decision as to the extent to which the previous findings stand. “31. In common with McFarlane J in Birmingham (No 2), I agree with Charles J’s formulation in Birmingham (No 1) of the three stage approach. The same three stage approach applies, in my judgment, whether the issue arises before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. I do not, with all respect to Baker J’s tentative comment, think that different approaches are called for in different forensic contexts. The attempt to create such a forensic taxonomy would, I fear, be productive merely of satellite litigation. Of course, the application of the general approach in any particular case will reflect the circumstances of that case.”

[36]However, the President clarified the scope and ambit of the first stage in this way:

“33. So far as concerns the first stage I agree with what Hale J said in Re B, in particular in the passage I have set out above. I add this: one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher. I have misgivings about McFarlane J’s use in Birmingham (No 2), paras 42, 55, of the words I have emphasised in paragraphs 16-17 above. I suspect that in significant part they reflected the approach of Lord Nicholls of Birkenhead. Be that as it may, I think, with great respect to McFarlane J, that the nuance is wrong.”

[37]Keywords in this paragraph as recognised by all the advocates are that there should be ‘solid grounds for challenge’. The President plainly felt that McFarlane J’s articulation of the test to be applied, in Birmingham (No.2), might potentially be interpreted as setting the test higher than was necessary or appropriate.

[38]In order to understand why the President considered that McFarlane J had got the ‘nuance’ wrong in Birmingham (No2) Birmingham City Council v H & Others

[2006] EWHC 3062 (Fam)

it is necessary to consider passages from that earlier judgment in full. McFarlane J said this:

"42 … Save for one matter of fine tuning to which I shall turn in a moment, there is agreement that the approach to be adopted to the burden of proof is as follows: (i) The burden of proving the CA 1989, s 31 threshold criteria with respect to S is upon the local authority and remains upon them throughout; (ii) The role of issue estoppel in CA 1989 proceedings has been adapted by the family courts. The classic statement of the law remains that of Hale J (as she then was) in Re B … I agree with the analysis made by Charles J … in this case ([2005] EWHC 2885 (Fam) at [55]) where he indicated that there were three stages in such cases. At the first stage the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding. The second stage relates to and determines the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review; (iii) Questions of issue estoppel are primarily to be considered at the first stage. Once those who seek a review have passed that stage, issue estoppel is unlikely to be directly relevant either to the investigation process or to the hearing itself; (iv) At the review hearing, the previous finding is the starting point of the local authority's evidence in relation to threshold. A finding of fact is strong evidence and should be followed in the absence of compelling evidence against it. To this extent those who challenge the finding bear 'an evidential burden' in the proceedings. The legal burden of proof rests upon, and remains with, the local authority throughout (emphasis added): (v) An 'evidential burden' is an imprecise, non-legal term applied to the forensic reality faced by a party who seeks to challenge a presumption that otherwise arises in favour of another party by operation of law, previous finding or apparently conclusive evidence. It is no more than the burden of adducing evidence. [43] In the present case, by adducing the evidence presented at this hearing the parents have discharged the evidential burden of putting up a case to challenge the previous finding. That being accomplished, it is for the court to conduct the process of evaluating that evidence. The legal burden of proof of maintaining the findings made by Bracewell J remains throughout upon the local authority. [44] The remaining difference of emphasis that still exists between the parties is not without importance and it relates to whether or not any continuing 'burden' is placed on the parents once the hearing has actually commenced. The parents submit that, once they have discharged the evidential burden of showing that they have an arguable case sufficient to get through the 'gateway' of the court door and start the hearing, there is no continuing burden. The local authority submit that throughout the process priority should be given to the original finding of fact; that finding, they submit, is not simply reduced to the level of evidence in the case alongside any fresh evidence that is called. [45] Given that I am clear that the extent of any burden upon the parents is limited to an 'evidential burden', and given that such a burden has no effect upon the legal burden of proof that remains with the local authority, I consider that the difference that remains on this point is more appropriately to be viewed in relation to the standard of proof, rather than in terms of burden. The forensic reality remains that throughout the hearing the parents have had to make the running to present evidence that challenges the original finding. The evidential burden is no more than that; a description of its effect does not go to the respective weight or priority that may be afforded to the previous finding."

[39]In two further crucially important passages, paras 55-56:

“55 … once the hearing in a review process of this nature has commenced, the duty of the court is to look at the matter afresh. Issues of public policy relating to the priority to be given to earlier court decisions is in play at ‘stage one’ of an application to review a finding, when the question of estoppel is considered. Once that stage is passed, and the court is involved in evaluating the evidence itself, it would be wrong to afford some sort of priority to the evidence given and findings made at the earlier hearing that are to be considered within the review. Indeed it would be difficult to do so in any formal way. The starting point will be that a finding has been made. In a case such as this, that result can only have occurred because there already exists ‘strong’ evidence in support of it. Thus any fresh evidence, to get anywhere in achieving the aim of those who call it, must be sufficiently robust to challenge this hitherto ‘strong’ material (emphasis added). [56] In analysing the evidence at this hearing I have readily adopted the approach suggested by Charles J at para [79] of his judgment. I have considered the fresh evidence alongside the earlier material (such as medical records) upon which it is based. I have taken as fixed points those parts of the detailed findings and judgment of Bracewell J which are either not challenged or remain intact despite the challenge that is being made on the question of the mother’s credibility.”

[40]It is clear that the President considered that McFarlane J had assumed the existence of an elevated civil standard of proof to establish the initial findings and accordingly had felt the need for there to be ‘robust’ material to challenge the hitherto ‘strong’ evidence:

“In relation to the passages in paras 42 and 55 that I have emphasised, it is apparent from what McFarlane J also said, para 46, that he had in mind the famous passage in the speech of Lord Nicholls of Birkenhead in In re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586 (“The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established”), which has since been given its quietus by the House of Lords in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11.”

[41]It is important to emphasise that notwithstanding his observations, the President specifically endorsed the analysis of Hale J (as she then was) in Re B (Children Act Proceedings) (Issue Estoppel)

[1997] Fam 117

, which is recognised as the classic statement of the scope and application of the doctrine of issue estoppel and the power of the court to control evidence to be called in proceedings concerning the welfare of children:

‘It seems to me that the weight of Court of Appeal authority is against the existence of any strict rule of issue estoppel which is binding upon any of the parties in children’s cases. At the same time, the court undoubtedly has a discretion as to how the inquiry before it is to be conducted. This means that it may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of issue estoppel would not cover them. Although some might consider this approach to be a typical example of the lack of rigour which some critics discern in the family jurisdiction, it seems to me to encompass both the flexibility which is essential in children’s cases and the increased control exercised by the court rather than the parties which is already a feature of the court’s more inquisitorial role in children’s cases […].’

[42]Hale J recognised that sometimes a party will wish to challenge earlier findings. In that situation she observed:

“In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”

[43]What is really in focus here therefore is the extent to which the findings of the Scottish court were ‘based’ on ‘evidence’ which establishes ‘solid grounds’ for believing that the findings of HHJ Dowse may be displaced, or as Hale J put it ‘any reason to think that a re-hearing of the issue will result in any different finding from that of the earlier trial’. In undertaking this exercise, the underlying considerations of public policy set out in Re B all remain relevant. These factors are the framework against which the solidity of the identified grounds have to be measured. They require to be stated: “(a) that there is a public interest in an end to litigation – the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; [1997] 1 FLR Hale J Re B (CA Proceedings) (Issue Estoppel) (FD) 295” (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)

[1967] 1 AC 853

, 947, ‘must be applied so as to work justice and not injustice’.

[44]In a further passage that I find has particular resonance to the issues in this case Hale J observes:

“(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone.”

[45]What then are said to be the solid grounds that may result in HHJ Dowse’s findings being displaced. Mr Tyler engages directly with this question in both his oral and written submissions. In his written submissions he frames his response in these terms: We assert that the ‘Solid Grounds for Challenge’ are: i) the existence of the evidence of Dr La Rooy, and the research base on which it is founded, ii) the new ABE interview, which differs significantly from previous allegations, iii) the fact that a separate tribunal of competent (albeit extra-territorial) jurisdiction has come to a conclusion at odds with that of HHJ Dowse; this in combination with the fact that the judicial reasoning process by which this has occurred appears to be of a higher standard. We further rely on the following: iv) truth: the interests of neither child is served by reliance on an erroneous determination of fact, v) importance of the findings, vi) fairness: it is unfair that the mother should find herself so fundamentally disadvantaged in one country in relation to her children in a way in which she is not in a contiguous (and virtually indistinguishable) country, Finally, we assert that there is a real public interest in the proposed further litigation taking place.

[46]I have already indicated that investigating whether one judgment is, as Mr. Tyler puts it, of a ‘higher standard’ than the other is a misconceived exercise. Further, the points advanced at (iv) to (vi) above are not, to my mind, grounds upon which to seek to revisit the findings of the English court. They are simply an illustration of the consequences of the existence of two judgments with differing conclusions.

[47]The striking feature of the hearing before the Sheriff is that the court had authorised the instruction of a Dr. David La Rooy. He provided a report dated the 9th May 2013, the objective of which was to analyse the quality of the police interviews of C1. Dr. La Rooy is a Chartered Psychologist trained in the University of Otago, New Zealand, a distinguished academic, a well published researcher and plainly well regarded in his specialism, which has centred upon the developmental and social psychology of children and adolescents. Dr. La Rooy now practices in Scotland, as I understand it and is a member of the British Psychological Society. All the advocates agreed that, for the purposes of this application, I should read Dr. La Rooy’s report, I have done and, if I may say so like the Sheriff, I find it to be impressive and well structured.

[48]The Sheriff certainly found it to be very helpful to him in evaluating the reliability of M’s allegations. He observed that he found this evidence to be ‘highly persuasive’ and ‘convincing’, though adding the caveat ‘so far as it went’. It must be emphasised however, that Dr La Rooy does not provide core evidence nor does he purport to express an opinion on the reliability of the allegations. He appears to me to confine himself, very properly, within the parameters of his instructions i.e. to point out the elements of the interview which do not conform with good practice in order that the court has the best information upon which to undertake the exercise of evaluation of reliability for itself.

[49]Judicial practice differs on the necessity of instructing experts for the purposes that Dr. La Rooy was instructed. These experts are sometimes referred to as providing ‘veracity’ or ‘validation’ reports. For my part, I would deprecate the use of either term. Both words suggest an incursion into the task of evaluating reliability which is the exclusive territory of the judge. Dr. La Rooy headed his report in this way: ‘Report on the quality of the interviews’ this, to my mind, is a much clearer and much more disciplined approach. It also accords with the observations of P Jackson J in Wigan BC v M and Others (Veracity Assessments)

[2015] EWFC 8

: “9. Having received short submissions from the parties and having consulted the current experience of colleagues, I believe that three principles can be identified: 1) As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true. That was the conclusion of the Court of Appeal in Re M and R (Child Abuse: Evidence)

[1996] 2 FLR 195

, interpreting Section 3 of the Civil Evidence Act 1972. It held that expert evidence dealing with issues, including the ultimate issue, was admissible, subject to the overriding requirement of relevance, which, together with questions of weight, was a matter for the judge. At page 210, Butler-Sloss LJ said: "The modern view is to regulate such matters by way of weight, rather than admissibility. But when the judge is of the opinion that the witness's expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him." ” 2) The Court of Appeal left open the question of whether and to what extent the court had a power to exclude evidence that was admissible and potentially relevant. That question has now been answered by FPR 2010 Rule 25.4 which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough. 3) In my view, cases in which it will be necessary to seek expert evidence of this sort will nowadays be rare. While the decision must rest on the facts of the individual case, judicial awareness of these issues has greatly increased, from the Cleveland Inquiry in 1987 to the most recent iteration of the principles of Achieving Best Evidence in 2011. In the two decades since Re M and R (above), understanding has naturally moved on. The process continues to evolve, with the final report of the Children and Vulnerable Witnesses Working Group set up in 2014 by the President of the Family Division expected shortly. The overall result is that judges have been trained in and are expected to be familiar with the assessment of evidence of this kind. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.”

[50]Jackson J also endorses the observations of Baker J in A London Borough Council v K

[2009] EWHC 850 (Fam)

"… this case has, to my mind, demonstrated that veracity or validity assessments have a limited role to play in family proceedings. They are, so far as I am aware, unused in criminal proceedings in this country, and I see strong arguments for imposing restrictions on their use in family cases as well. … there is a danger that some courts, faced with these difficult decisions, will subconsciously defer to the apparent expert. That danger has been recognised in a number of cases in which the courts have emphasised the discrete roles of the expert and the court. In the case of the veracity expert, the danger is particularly acute. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone. He cannot delegate that decision to any expert. I acknowledge that a child psychiatrist… may be able to point out some features of a child's account that add or detract from authenticity... But, in my experience, many of these features should be obvious to judges in any event. No expert, however experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence."

[51]Whilst some judges may find expertise of the kind contemplated here to be helpful (See D v B and Others

[2006] EWHC 2987 (Fam)

), I agree with Jackson J that, in the light of the introduction of FPR 2010 Rule 25.4, which permits the instruction of expert evidence solely on the criteria of whether it is ‘necessary’ to assist the court to resolve the proceedings, these reports are likely to be increasingly rare in this jurisdiction. Family lawyers have been familiar with the principles of Achieving Best Evidence (ABE) in interviewing children and it’s predecessor, the Memorandum of Good Practice for more than 20 years. In most cases the majority of judges will simply not require the knowledge they have absorbed to be reinforced by expert evidence, nor can such expense and delay be justified. There will, of course, always be exceptions in a particularly complex case.

[52]The two judgments here nicely illustrate the point. HHJ Dowse did not require the instruction of an expert but nonetheless evaluated the allegations by reference to his own knowledge of both the ABE principles and the wider evidential features likely to support or undermine allegations of sexual abuse. I identify a few illustrations from the judgment of 30th August 2007:

“42 I do accept that the breaks in the police interviews were not handled well but, as I think is conceded, nothing was said which could have influenced C1 into providing any further detail rather than general encouragement to say what was on her mind. I accept that these interview breaks and some questioning did not sit comfortably with the Achieving Best Evidence guidelines. My earlier comments nevertheless remain that what I detected in these disclosures is personal experience which remains even in the face of procedural defects…” “43 it is therefore suggested that C1 invented the allegations as being what people wanted to hear. It does appear she was to a degree manipulative in this way but yet again I come back to the plethora of allegations made, the likelihood of them reflecting personal experience and the fact that in my judgement they are supported by the behaviour of the two sisters on their reception into care”

[53]Judge Dowse also surveyed the wider forensic landscape looking, for example at the potential for contamination of evidence by sibling influence and also evaluating features of behaviour potentially supportive of the allegations. The following is a succinct example:

“45 Could the siblings in some way have influenced each other and what other evidence is capable of supporting these findings? By 14th September 2006 C1 and C4 had not been alone together. On that date C4’s prospective adopter advised the social worker that during the summer holiday C4 had been sent to her room for being naughty. She went to the upstairs bathroom to apologise to the male adopter and in the course of her receiving a ‘telling off’ said “I will be good Daddy, I’ll pull my pants down for you if you want”

[54]HHJ Dowse fell into that category of judge who did not feel it necessary to avail himself of the assistance of an expert in the task of evaluating the interview. What is clear from the above extracts however is that so many of the points that Dr La Rooy highlights were plainly in the contemplation of HHJ Dowse, doubtless in consequence of his experience of hearing allegations of this kind in the past.

[55]Sheriff O’Carroll’s judgment headed ‘Interlocutor and Note’ was delivered on 30th October 2013 at the Sheriffdom of Tayside Central and Fife at Alloa. At some 323 paragraphs and 103 pages it is self-evidently detailed. The Sheriff did not think it appropriate for him to read the English judgments at all and was fastidious only to take into account material introduced into evidence or otherwise agreed by the parties. Accordingly, he was, as he declared, unaware of what material had been taken into account by the English court in reaching its decision. He was aware however, as he put it, ‘that sexual abuse allegations had been the subject of child protection proceedings in England in 2007 which were proved.’ The inquiry, as I understand it, was reopened because it was agreed by all the parties that the English judgment had no legal status in Scotland. It appeared to flow logically from that, in the face of the mother’s continued challenge to the findings of HHJ Dowse, that the findings were not admissible as proof of their contents in Scotland. Indeed, the Sheriff observes ‘The reporter made no attempt to argue that any aspect of the English proceedings concerning the allegations that the mother and her then partner committed sexual abuse against the children was admissible’.

[56]Reviewing Dr. La Rooy’s evidence the Sheriff observed:

“301 ‘I also take into account the evidence of David La Rooy whose evidence I found highly persuasive and convincing, so far as it went. I accept his evidence that the way in which the two interviews were carried out was of poor quality for the reasons he has given […]. I accept also his evidence which is that the effect of poor interviewing is to reduce the reliability of the information [which is] obtained. Put another way, as he himself said, the probability that information attained through poor quality interviews is true is lower than it would be had the information been obtained through good quality interviews. He stated twice that in his view, given the way that the interviews were conducted, one should be very careful about the assessment of the answers.’”

[57]Later, commenting on the evidence of a Dr. Robinson, a social worker with experience of working with children who have experienced sexual abuse, the Sheriff noted:

“303. I also take account of the evidence given by Dr. Robinson by reference to the Cleveland Inquiry, that a statement of a child by itself is not sufficient and that one requires to have regard to any other evidence or material that there might be before reaching a conclusion as to the veracity of the child statement. Dr. La Rooy’s evidence was to similar effect. 304. I accept also the evidence of Dr. Robinson and Dr. La Rooy that memories may be fabricated and that fabrication may be quite innocent that evidence is consistent with the BPS Guidelines on memory and the law which makes clear that people can remember events that they have not in reality experienced… I also accept the evidence of Dr. Robinson according to a recent NSPCC report that up to 25% of accounts by children may be inaccurate. I am not inclined however to accept the figure referred to in the Cleveland Inquiry report that the figure in such cases is as much as 65 %. I note also that Dr. Robinson… although having made reference at page 8 of her statements to the effect that research reports supported the propositions that statements made by children alleging sexual abuse were unlikely to be incorrect, changed her evidence on that point towards the end of her evidence and said that there was no consensus on this issue. Accordingly, it cannot be said that an account given by a child of sexual abuse is always or even likely to be true from the fact of the allegation having been made’”

[58]Mr Tyler identifies the fact that a good deal of the research cited by Dr. La Rooy post-dates HHJ Dowse’s judgment. He does not identify however, nor can I, any significant feature of that research which has changed the received professional orthodoxy in the intervening years or, for example, casts doubt on the principles underpinning the Achieving Best Evidence guidelines. There is nothing to indicate that there has been some landmark development in our understanding of how best to evaluate the reliability of a child’s allegations.

[59]I should however observe that, for my part, I do not recognise the correctness of some of the observations made by Dr. Robinson and set out without critical comment, in the judgment e.g. ‘a statement of a child by itself is not sufficient and that one requires to have regard to any other evidence or material that there might be before reaching a conclusion as to the veracity of the child’s statement’. This is not a proposition reflected in either the criminal or family law of England and Wales. The requirement of some corroborative or supportive material as a prerequisite to reliance on an allegation of a child has never been a feature of the family law of England and Wales. Neither has it been a requirement in criminal law for many years.

[60]Whilst cautioning myself not to be deflected by a comparative exercise in relation to these two judgments, which I have deprecated in principle above, I feel bound to observe, that whilst the Sheriff deploys the civil standard of proof, the forensic and evidential process undertaken by him has a decidedly criminal law procedural complexion to it. The two judgments are not merely radically different in style and length, they are each founded in legal frameworks which are plainly not the same. This is notable, for example, in the approach to admissibility (the sheriff’s determination not to consider the English judgment at all) and in the context of the requirement for supportive or corroborative material when evaluating the allegations of a minor (as seen above).

[61]The core submission, as I understand it, by Mr Tyler is that the Scottish judgment is of such ‘very high forensic quality’ replicating, as he suggests, ‘the sort of approach one might expect as judicial best practice in England or Scotland’, that it should be preferred over the English judgment, which he discounts as ‘significantly flawed’. All this, Mr Tyler contends, supports the following: i) “The fact of the judgment and the forensic circumstances in which it came into being make the judgment a highly significant factor in the subsequent decision making exercise. ii) The combination of the facts that the judgment is: a) of a court of competent jurisdiction, b) of a fellow member country of the United Kingdom, c) undertaken after an exhaustive forensic procedure, and d) in furtherance of commonly held principles of child protection and freedom and human rights of the subject and litigant, entitles the judgment to significant respect and obliges, both out of respect for cross-border comity and in furtherance of those jointly held principles, that it is not lightly dismissed, nor prosaically and simplistically described as having ‘no standing within the courts of England and Wales’ due to its not being ‘the leading judgment’.1 i) We assert … that the Sheriff’s judgment is, in substance, in form, and in its logical and legal analysis, of a demonstrably higher quality than that of HHJ Dowse. Recognising that this is not (currently) an appeal, this is still a significant and relevant factor in determining the weight to attribute to the judgment.

[62]In essence, it seems to me, Mr Tyler is saying that the weaknesses he purports to identify within HHJ Dowse’s judgment are relevant when evaluating the ‘solidity’ of the challenge to those findings. It is not the case, in Mr Tyler’s analysis, that there exist two judgments each equally sustainable. Far from it. Mr Tyler suggests the Scottish judgment is a beacon of good practice whilst the English judgment is said to be so inherently weak as to cast a shadow of potential appeal over it. Accommodating this within the case law above, the Applicants contend that a challenge to an inherently weak structure logically need not be as ‘solid’ as that to a more robust one, in order to cause it to collapse.

[63]Whilst I accept the force of that analysis, I do not agree that these two judgments can be caricatured in the way that Mr Tyler does and as I believe he is driven to, in order for his argument to succeed. These are, as I have said, two very separate judgments, in different jurisdictions, applying approaches in law which are not the same and in which the advocates, during the course of the respective hearings, have conducted their cases with contradistinctive forensic emphasis. In this latter respect I mean the lawyers in each jurisdiction have made their own professional decisions, along with their clients, as to how the case is presented in the courtroom and as to which evidence is put to the assay. To my mind both judgments have equal validity and ultimately, to engage directly with the questions identified, equal weight and status. Accordingly, ‘solid grounds’ for challenging the findings must lie not within any identified weakness within the English judgment but extraneous to it.

[64]The remaining potential grounds have been identified by Messrs Tyler and Booth in their Skeleton Argument (discussed in para 42 above). These were supported by Messrs Hayes and Swiffen both in their written and oral arguments. Following the findings of the Scottish judgment C1, I have been told, insisted on a further ABE interview which took place in July 2014 and which was, inevitably, not identical to her earlier account. Though Mr Tyler incorporates this fact into his argument it is not pressed as his best point, sensibly if I may say so.

[65]The assertion that the 2014 interview ‘differs significantly’ from the earlier interviews requires me to discount C1’s increasing maturity in the intervening period; the inevitable consequences of the passage of time; to fail to recognise the core consistency of the allegations and the anger towards her mother which continues to bristle through the 2014 interview albeit that she does not on this occasion explicitly identify her mother as a perpetrator.

[66]Ms. Lee puts it in this way:

“The LA accept that if the July 2014 ABE interview were to be considered in isolation then there may be grounds for reconsidering the original findings. However the LA assert that to consider it in isolation would be both inappropriate and an artificial exercise. In reality the differences in her account are neither unexpected nor surprising when set against the background of her childhood and the emotional harm she has experienced. The information contained within the ABE does not in itself constitute ‘new evidence’. In the years following 2004, C1’s recall of the specific detail of an account given 8 years earlier (regarding events up to 10 years earlier) is likely to have altered. It would be both unreasonable and unrealistic to expect C1 to possess a fresh and precise memory of events over a decade later, particularly when she has never been provided with an opportunity to consider what she had reported previously. The court is invited to factor in to its consideration, in this particular aspect, that C1 will have received love and support from her carer, and some play therapy, in an attempt to assist her to overcome her past abusive background and experiences to help her ‘move on’ with her life.”

There is much sense in those observations.

[67]Mr Howe QC, on behalf of the children, engages with these factors in a rather different way and comes to the following conclusion:

“The Guardian has taken into account the impact on C1 of the court concluding that the allegations were not proved but on balance, and for the reasons given, it is submitted that the balance falls in favour of the court permitting some reconsideration of the findings made by HHJ Dowse on 17th October 2007.”

[68]Mr Howe also submits:

“the weight to be attached to the Scottish judgment does not arise from any assessment of its merit as an expression of the forensic exercise undertaken. The weight of the Scottish judgment is in its effect. Looking at these circumstances from C1’s perspective, it would be incomprehensible to her that the English court did not ‘think again’ and reconsider, not necessarily overturn, but at least take another look at the allegations given what was found in the Scottish court and how the findings there have enabled a relationship between C8 and M and F2 that, on the evidence before this court, appears to be entirely appropriate and beneficial for him.”

[69]Finally, Mr Howe comments:

“It is submitted that C2 has to be granted the possibility of some relationship with her sibling and mother by the court agreeing to reconsider the previous findings.”

[70]It is self-evident that the interests of neither child is served by an erroneous determination of fact. Such a statement is platitudinous out of context. More than that it can be a dangerous, siren call unless it is considered carefully alongside the other features identified by Hale J in Re B. It is important to recognise that the factors she there identifies are inevitably interrelated. Thus: the insidious dangers of delay have to be considered alongside the more obvious damage caused by erroneous findings of fact. These tensions are notoriously difficult to reconcile and are ever present in family law.

[71]As the President identifies in ZZ (supra), the court’s discretion has to be applied so as to work ‘justice and not injustice’ and so the starting point is, again as he identifies, whether there is ‘some real reason to believe that the earlier findings require revisiting’. That seems, to my mind, to resonate closely with the observations of Hale J: ‘whether there is any new evidence or information casting doubt on the original findings’ (Re B supra). With respect to the Guardian, her views as to the value to C2 of ‘having another look’ lose focus on these important principles and fail to give sufficient weight to the real impact on these children of once again re-opening litigation, which itself may fail to resolve the present situation.

[72]Moreover, I am not prepared to draw the inference, suggested by Mr Howe, that because C1 instigated a further interview, following the Scottish Judgment, she therefore should be taken as signaling a willingness to participate in further litigation. She does not know, for example, what the reach of further litigation might be, nor does she yet have the maturity to understand what its impact on her could be. Before concluding that an issue should be reheard there must really be a substantial reason to believe that further litigation will achieve some clarity. In the light of my view of the validity of each of the respective judgments and finding myself un-persuaded that there are any other solid grounds for believing that a rehearing will result in any clarification of the present position , I can see no basis upon which to grant the application for a rehearing of the English proceedings.

Revocation of the Freeing Order

[73]Pursuant to s18 of the Adoption Act 1976, C1 was made subject to an order freeing her for adoption. The consent of M was dispensed with pursuant to the provisions of s16 of that Act. On the making of the order ‘parental responsibility’ for C1 passed from the hands of the mother and the Local Authority into those of the Adoption Agency. Accordingly, the mother became ‘a former parent’, and lost parental responsibility which had the effect of extinguishing her from her daughter’s life. C1 became a ‘statutory orphan’ to adopt Wall J’s arresting description in Re C (a minor) (Adoption: Freeing Order)

[1999] 1FLR 348

[74]Key aspects of the legal framework, Adoption Act 1976 (now superseded by the Adoption and Children Act 2002 (ACA)) require to be stated:

“Section 20(1) of the Adoption Act provides that:” “The former parent, at any time more than 12 months after the making of the order under section 18 when – (a) no adoption order has been made in respect of the child, and (b) the child does not have his home with a person with whom he has been placed for adoption, may apply to the court which made the order for a further order revoking it on the ground that he wishes to resume parental responsibility”

. Section 20(4) provides that “if the application is dismissed on the ground to allow it would contravene the principle embodied in section 6 [the duty to promote the welfare of the child] – (a) the former parent who made the application shall not be entitled to make any further application under subsection (1) in respect of the child, and (b) the adoption agency is released from the duty of complying further with section 19(3) as respects that parent”. “ Under s.18(6), before making the freeing order, the court was obliged ‘to satisfy itself, in relation to each parent or guardian, that he has been given an opportunity of making, if he so wishes, a declaration that he prefers not to be involved in future questions concerning the adoption of the child; and any such declaration shall be recorded by the court.’ ‘to satisfy itself, in relation to each parent or guardian, that he has been given an opportunity of making, if he so wishes, a declaration that he prefers not to be involved in future questions concerning the adoption of the child; and any such declaration shall be recorded by the court.’

[75]Mr Tyler points out that there is no evidence that the mother made such a declaration and accordingly:

‘within the 14 days following the date 12 months after the making of the freeing order, under s.18 the adoption agency […] shall by notice to the former parent inform him (a) whether an adoption order has been made in respect of the child, and (if not) (b) whether the child has his home with a person with whom he has been placed for adoption.’

[76]Mr Tyler acknowledges in his Skeleton Argument that the mother was aware that C1 was not placed for adoption.

[77]Finally:

“Under s. 20 (3) Adoption Act 1976 (as amended by the Adoption and Children Act 2002, Schedule 4 paragraph 7(2)), the revocation of a section 18 order operates: i) to extinguish the parental responsibility given to the adoption agency under the section 18 order; ii) to give parental responsibility for the child to (i) the child’s mother[…]; and iii) to revive […] any care order, within the meaning of the 1989 Act.” i) to extinguish the parental responsibility given to the adoption agency under the section 18 order; ii) to give parental responsibility for the child to (i) the child’s mother[…]; and iii) to revive […] any care order, within the meaning of the 1989 Act.”

[78]M applies to discharge the Freeing Order. This is opposed by the Local Authority and the Guardian. Mr Tyler’s ambition in seeking to discharge the Freeing Order is expressed as follows:

“M wishes to have information about her daughter, she wishes C1 to know that the previous findings that she was involved in sexual abuse of her daughter were entirely wrong. She believes that her daughter has been severely damaged by a wrong belief that M abused her in this way. M is aware that in recent police interview, C1 did not repeat allegations of sexual abuse by her mother but is very troubled that her daughter at least believes that M was aware somehow that abuse might have been taking place.”

[79]As Mr Howe notes, that is refined, in the event of a rehearing, to an adjourned application for contact, itself contingent upon the setting aside of Judge Dowse’s findings.

[80]My attention is drawn to the fact that in a Position Statement, prepared for a preliminary hearing on the 14th July 2014 the Local Authority (as Adoption Agency) declared itself to have taken advice in 2012 and ‘in the light of that advice’ did not pursue an application to discharge the Freeing Order. The Local Authority continues to oppose the mother’s application to discharge and broadly agrees with the reasoning of the Guardian, who also opposes the application.

[81]In: A City Council v DC & Others [2013]2 FLR 16 King J, as she then was, gave guidance as to the appropriate procedure to be followed in applications to revoke freeing orders (in the context of an application by a local authority for revocation).

(a) that:

“‘the court will decide the preliminary issue as to whether it is in the child’s best interests to revoke the freeing order based on the information contained in the statement and supporting documents’.”

[82]In a Position Statement filed on behalf of C1’s Guardian dated 20th August 2014 it is recorded that:

‘C1 is clear in expressing her wishes and feelings. She does not want her mother or father to have sight of the LAC Review minutes at all. If the court decides that they must have this document then she wishes to be the final arbiter of any redactions. She is fully aware that a judge will have to make a determination on this issue.’

[83]The Children’s Guardian emphasises the importance of respecting C1’s wishes particularly so given her age, now rising 17 years. The Guardian’s solicitor goes on to state, in the document referred to above:

“There is no good welfare reason to override those wishes and feelings. If her wishes and feelings were overridden it would inevitably cause C1 to be anxious and would be emotionally harmful to her. Further, it would carry with it the risk that C1 the Local Authority because she would be concerned that it would be transmitted to her parents in future. That is not in her welfare interest.”

[84]If I may say so, the assumption that ‘overriding’ C1’s wishes and feelings would be ‘emotionally harmful to her’ is, in my judgement, unsupported by any evidence. I have no doubt that C1 would be disappointed, irritated, almost certainly critical of the judge but this is not the same as ‘emotional harm’. The over use of that term cheapens the real and insidious nature of emotional harm.

[85]C1’s views can be traced through the LAC Review process and are objectively and concisely stated in the mother’s Skeleton Argument. In summary: i) SL did not wish for her freeing order to be revoked and to become subject to a care order. ii) She did not wish to have any contact with either of her parents. iii) She did not wish them to have any information about her at all. iv) She did not wish them to be consulted or involved in local authority procedures concerning her life or decisions in respect of her. v) She was concerned that M will disrupt her placement if she is provided with any information or discovers her whereabouts.

[86]This leaves Mr Howe to submit:

“It is the view of the Guardian that the welfare issues fall very heavily in favour of the application being dismissed. C1 is making the transition through to adulthood. It is the opinion of the Guardian that the LA has met her needs since the order was made. There has been no need for the local authority to be ‘held to account’ and the Guardian does not anticipate that this will change in the next 18 months or beyond. C1 will be supported by the LA now and with a leaving care package, whenever her transition into independent living is to take place.”

[87]Mr Howe goes on to observe that: “In his letter to local authorities dated 9th July 2012 (following the A and S decision), Tim Loughton MP, the then Parliamentary Under Secretary for Children and Families, stated that “it is possible that some children still under a freeing order will be well settled despite the irregularity of their status. For children who are settled, great care and sensitivity must be exercised to ensure that they are not destabilized”.

[88]All of this leads Mr Howe to conclude on C1’s behalf that:

“the continuation of the application to revoke the placement order will further destabilise C1. It would be greatly to her advantage for the court to determine the application to revoke at the earliest possible opportunity. On the circumstances of this case, it is the view of the Guardian that the welfare needs of C1 greatly outweigh all other factors.”

[89]Mr Howe was instructed very late in the proceedings. I granted his request for his Skeleton Argument to be filed on the first day of the hearing. In his final paragraph there is an entreaty to LW in these terms:

“Given the destabilising effect of the application to revoke C1’s freeing order, the Guardian would hope that M would feel able to review her own position and consider the impact on C1 of her proceeding. As set out above, the Guardian understands M’s reasons for now seeking to challenge the decision concerning C2 but C1’s position is different and the Guardian is anxious that C1 is able to learn, as soon as possible, that her clearly expressed wishes have been heard by her mother so that she can regain the level of stability that was in place prior to these proceedings being issued.”

[90]M had very little opportunity to respond to that because the case began promptly in view of its ambitious time estimate. Though Mr Howe has made reference to the case of, A and S v Lancashire County Council

[2013] 2 FLR 803

, he has not addressed and neither has the Local Authority (whose position is broadly the same as that advanced on behalf of the Guardian) the important point that a Freeing Order is not merely a legal technicality but a status which carries consequences to it that have an impact on the welfare of the child.

[91]The facts of the case in A and S v Lancashire (supra) are extreme. There, two young children, lost in the system, having been freed for adoption, were found by the court not only to have had their Article 8 and 6 rights violated but also to have been subjected to degrading and inhuman treatment contrary to Article 3. This occurred, as all recognised, despite well-meaning professionals determined to protect the children’s welfare interests.

[92]It is a salutary reminder of the inevitable and inherent limitations of the corporate parent. There was, in that case, a systemic failure to recognise the concept of ‘legal status’ as a welfare issue in itself. The status of the child freed for adoption was intended to be a transitional arrangement confined to children for whom there was a reasonable prospect of adoption within a twelve month period. It was a facilitative provision designed to expedite the process of adoption and minimise delay to the child. It was never contemplated as an enduring arrangement. Once it appeared that there was no reasonable prospect of adoption then the Freeing Order required to be discharged. As Peter Jackson J observed in A and S v Lancashire: “147. Freeing orders were introduced by the Adoption Act 1976, but only came into effect in January 1988. They remained available for nine years, until December 2005.148. A freeing order extinguished a child's membership of his birth family and entrusted sole parental responsibility to the local authority as adoption agency. A freeing order could only be made where there was a real prospect of a permanent family being found within twelve months. The term "statutory orphan" reflects the lack of legal tie to any natural person.

149. Any child who remains freed today has been a statutory orphan for more than 6 years. The freeing order cannot now be a true reflection of their care plan.

150. This not simply a matter of legal technicality, but has the welfare consequences that I have already described. There are also real problems with sole corporate parental responsibility existing for anything other than a short transitional period. Anyone, let alone a child, who relies entirely on professionals to make decisions for him depends on effective systems and professional commitment. Foster carers, employed by the local authority, are responsible for the day to day care of children. They are not well placed to hold local authorities to account, even if, as here, some do. The situation of a child in a children's home is even more exposed.

151. By their nature, families, even those with major shortcomings, have a persistent quality that carers and social workers may lack. The involvement at some level of family members in the lives of children in public care can act as a stimulus to good practice, if only as a reminder to the state that, having removed the children, it is under an obligation to do better for them than their own family could do.

152. For these reasons, in December 2005, the Adoption and Children Act 2002 replaced freeing orders with placement orders, which do not remove the child's legal tie to his family.

153. However, in this case, as Mr H says, "the idea of legal status as a welfare issue was never countenanced."

154. Had A not taken himself off to get legal advice, both boys would have remained in limbo. It is unlikely that S's situation would ever have come to light. He would probably have remained free for adoption until he reached adulthood.

155. Moreover, all meaningful family contact was taken away from A and S without anything durable replacing it. With every move, relationships and connections were broken, not just with carers, but with the carers' extended families, and with schools and schoolmates. As the Guardian says: ” "In my opinion, it is only by considering the total accumulation of placements A and S have been sent to, is it possible to encompass the extent of the disruption to their lives in care. In my opinion the consequences of such moves and all of its effects on them has significantly contributed S and A's inability to trust – without which it is impossible to feel secure or to form safe attachments. A and S have been repeatedly let down and removed even from those who were for much of the time loving towards them that we can [hardly] begin to estimate the damage done."

156. This process occurred despite the well-meaning efforts of a wide range of professionals, but the buck did not stop with any of them. The Guardian puts it this way: As far as I can discover, it has not been the intention of any one person in LCC's care or legal staff (excluding the above foster carers) to ever fail the boys or act negligently but the accumulative process of regulation, policy and procedure has in my opinion significantly affected them in their years in care. As in all such cases of children 'Lost in Care' it is rare to find any one person who is responsible …"

[93]C1’s particular circumstances within her placement have not been the subject here of forensic scrutiny, nor do they require any. It is obvious both from the endurance of the placement and from everything that I have read about it within the papers and in the Guardian’s report of it, that it has proved to be a secure and loving home which has enabled C1 to begin to recover from a disadvantaged start to life. Experience within the Family Justice System teaches all involved in it that traumatic experiences in childhood, particularly of the nature found by HHJ Dowse, leave scars which can reopen periodically in later life. I continue to regard C1 as vulnerable. In a very short time she will be entering adulthood and leaving care. Neither she nor I know what that transitional period will hold. For every child this can be a difficult time but for a child with C1’s experiences it may be particularly challenging. By way of parenthesis I would add that the prospect of any further rehearing of her allegations at this time maybe wholly contrary to her welfare interests in a way that she, at 17 years of age, cannot be expected fully to appreciate.

[94]C1’s circumstances could not be further from those of A and S in the Lancashire case. She has found a stability which eluded them. It is also plain that she has lived in a household which has promoted her sense of independence and encouraged her spirit. Moreover, far from being supportive of C1’s placement, the reasoning behind the mother’s application to discharge the Freeing Order reveals a lack of sensitivity and sound instinct. It is said to be, in part, motivated by her desire for C1 ‘to know that the previous findings that she was involved in sexual abuse of her daughter were entirely wrong’ and that C1 ‘has been severely damaged by a wrong belief that [she] abused her in this way’. This, coupled with C1’s consistent and cogently articulated wish that her mother should play no part in her life leads me, with very little hesitation, to conclude that her wishes should be respected on this and are, effectively, determinative.

[95]My reasoning above however does not resolve the question of C1’s legal status. It does not flow axiomatically from those conclusions that the Freeing Order should remain in place. As I have emphasised, the Order itself has welfare implications. As P Jackson J says, in the extracts I have quoted above, the involvement of family members, however limited or tightly proscribed, in the lives of children in public care ‘can act as a stimulus to good practice’, an active reminder that the State bears the obligation of doing better than the family could do. Thus, parents who have significant deficiencies and who, as here, may in the past have caused their children significant harm, achieve a positive contribution merely by virtue of their existence, even if the power or reach of their own rights is all but extinguished.

[96]Accordingly, if there is a regime of statutory obligations imposed upon the Local Authority, in consequence of a Care Order made in their favour, then even if much of the material ordinarily required to be provided to parents is embargoed, restricted or redacted, it nonetheless requires the Local Authority to subject itself to the rigours of those obligations and effectively to monitor itself as a corporate parent. This is not a mere technicality it is an important discipline to ensure that any child who finds herself in long term care is protected and reviewed in the way that she and the wider public is entitled to expect.

[97]I recognise that all the indicators point to C1 thriving within her foster family, despite the vulnerability of her legal status. Ultimately she has been lucky, largely I suspect, due to the commitment and love shown by the foster carers. However, the significance of establishing the correct legal framework is that it should be that which most effectively diminishes risk and promotes welfare. As C1 faces, in the next few years, the challenges of leaving the care system, the importance of the obligations imposed on a Local Authority under a Care Order are particularly acute. Compliance with the regulations providing a pathway from the care system, beyond the age of 18 are of crucial importance. Their very existence has come about as a result of recognition of the particular dangers to vulnerable young adults leaving the care system.

[98]So too is the importance of careful and informed care planning, actively monitored by the Independent Reviewing Officer. It matters not that much of this work may have been done whilst C1 has remained a ‘statutory orphan’, it is the legal obligation that provides the safeguard to compliance.

[99]I therefore propose to revoke the Freeing Order and to substitute in its place a Care Order to the Local Authority. The Guardian should make it her priority to see C1 quickly to inform her of the decision and to explain to her the reasoning underpinning it. In addition I make orders pursuant to s34 (4) of the Children Act 1989, permitting the Local Authority to refuse contact. Any documentation that requires to be sent to M under the obligations of the Care Order is to be redacted to the extent that it reveals nothing of C1’s whereabouts or anything that might provide a clue to them.

[100]In recognition of the importance of C1’s own expressed wishes, in particular her wish to have control over any material released to her mother, I propose to take the unusual step of permitting her to be directly involved both in the redaction process and in determining what material is disseminated. I do not contemplate a great deal of information being shared with the mother and I consider that C1’s views should be given significant weight. I expect they will be determinative but I do not proscribe that they should be. In this I am signalling to C1, that like any other young person of her age, responsible adults will continue to have the obligation to help and guide her. There will be occasions when it is right for their judgement to prevail.

[101]I propose further to respect C1’s strong and consistent resistance to her mother having any role in her life by granting an order pursuant to s.91(14) of the Children Act 1989 which provides:

“(14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

[102]Applications under this provision, which has produced many reported decisions concerning the circumstances in which an order restricting future applications should be made, is set out at ss15: (15)Where an application (“the previous application”) has been made for— (a)the discharge of a care order; (b)the discharge of a supervision order; (c)the discharge of an education supervision order; (d)the substitution of a supervision order for a care order; or (e)a child assessment order, no further application of a kind mentioned in paragraphs (a) to (e) may be made with respect to the child concerned, without leave of the court, unless the period between the disposal of the previous application and the making of the further application exceeds six months.”

[103]I propose that the order should continue for the remainder of C1’s minority and given that is now only 18 months, I do not consider that to be disproportionate: (Re B (section 91(14)

[104]Finally, I very much regret the delay involved in delivering this judgment. The case provides a powerful reminder of the consequences that ensue when the advocates fail to allow sufficient time in their estimates of hearing for a judge to write and deliver a judgment. The provision of one day to write this judgment is, I hope, self evidently inadequate. All counsel must regard it as a professional obligation to factor time for the judge to write and deliver a judgment into their time estimates. This is a professional duty which should be seen as a facet of the requirement to avoid delay in proceedings concerning the welfare of a child. I take the opportunity here to highlight a pervasive problem which requires to be addressed more widely.

order

i. the statutory framework within which the applications are made, ii. the orders contended for by each party, iii. the matters relevant to determination (if practicable) of the application for leave to apply to revoke the freeing order. order: Duration

[2004] 1 FLR 871

). I also direct that any permission to apply during its operation should not, in the first instance, be served on the Respondent, but should be considered by a Judge (me if possible) and on paper. That said I recognise that an oral application cannot be denied if sought following a refusal of the written application. (Re Bradford, Re O’Connel

[2007] 1 FLR 530