GD and BD (Children, by their Children's Guardian) and Another v FD and Another West Yorkshire Police Ian Shiels (Interveners)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cobb |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] EWHC 3312 (Fam) |
| Date | 20 December 2016 |
| Court | Family Division |
| Docket Number | Case No: LS15C00129 |
[2016] EWHC 3312 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEEDS DISTRICT REGISTRY
IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
AND IN THE MATTER OF THE CHILDREN ACT 1989
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cobb
Case No: LS15C00129
and
Nicholas Stonor QC and Jane Curnin (instructed by JWP Solicitors) for the First and Second Claimants (Children)
John Hayes QC (instructed by A&N Care Solicitors Ltd) for the Third Claimant (Mother)
Gillian Irving QC and Louise McCallum (instructed by the Victoria Swithenbank, Solicitor, Legal services) for Wakefield MDC
John Jackson (instructed by Ramsdens Solicitors) for FD ((Father)
Simon Mallett (instructed by Mike Percival Head of Legal Services West Yorkshire Police HQ) for West Yorkshire Police
Geoffrey Weddell (instructed by Weightmans) for the Intervenor (Ian Shiels)
Oliver Jones (instructed by Michael Rimer, LAA) for the Legal Aid Agency
Hearing dates: 10–18 October 2016
Approved Judgment
Introduction
There are before the court two linked applications brought under the Human Rights Act 1998. The first application in time (10 December 2015) was filed by two children, namely GD, a girl now aged 9, and BD, a boy now aged 4. The second application (18 December 2015) was filed by their mother (MD). In each case the Claimants seek awards of damages and declarations. The claims arise from the conduct of two public authorities, Wakefield Metropolitan District Council (hereafter "the Local Authority") and West Yorkshire Police, in the context of public law proceedings under Part IV of the Children Act 1989 between February and November 2015. In each case the claims for damages have been agreed – with the public authorities each agreeing to pay one-half of the agreed sum: £10,000 for the mother, and (subject to the court's approval) £5,000 for each child. Significant concessions have been made by both authorities since the proceedings began, and these in large measure establish the grounds for the declarations.
I have attached to this judgment, as Annex A and Annex B, a composite schedule of the concessions by the respondent authorities.
Annex C contains an Executive Summary of this judgment.
Additional to the formal concessions, the Local Authority has also sent a full letter of apology to the mother (dated 28 June 2016). In that letter, the Local Authority acknowledges that the allegations which it made in the proceedings against the mother, namely that she was a sexual risk to her children as a result of having perpetrated gross sexual act on her daughter, were "horrendous"; the authority confirms that it accepts "without reservation" that MD did not abuse her daughter or allow her daughter to be abused by the father. I do not regard it as appropriate to annex this letter to the judgment, but note its contents. The Chief Constable of the West Yorkshire Police has openly apologised to the Claimants (see Annex B [11] below).
Inevitably, some issues of fact remained unresolved notwithstanding the significant degree of concession; the Claimants invited me to try those issues. The Local Authority and the West Yorkshire Police opposed that course, arguing that they had made sufficient concessions that a hearing was not required. I ruled on 20 July (at the final Case Management Hearing) that the issues outstanding between the parties raised questions of importance justifying enquiry by the court; these are issues of substance to the parties in the case and matters of wider importance potentially to other cases. I regarded it as just, appropriate and proportionate for court time to be allocated to the determination of the declarations sought by the mother and the children that remained in dispute.
I heard evidence from DS Hudson (formerly of the West Yorkshire Police Child Sexual Exploitation and Abusive Image Unit, now retired), DFI (a Digital Forensic Investigator employed by the West Yorkshire Police), DI Walker (West Yorkshire Police, supervisor of DS Hudson), Andrew Garthwaite (Legal Services, West Yorkshire Police), SW1 (social worker), SW2 (team manager, Joint Investigation Team), Ms Anne McMullan (Local Authority solicitor), and Ian Shiels (barrister instructed by the Local Authority). I read statements of evidence filed in these proceedings, a number of selected documents filed in the public law proceedings, extensive extracts of the 400-pages of transcripts of evidence from the final hearing of the public law proceedings in November 2015, and copies of various e-mails and correspondence generated during the investigation. The documentary material filled six lever arch files. No judgment writing time was available at the end of the hearing; this has, I regret, contributed to the delay in producing this judgment. I recognise that this has been all the more frustrating for the parties given that the final judgment in the substantive proceedings, to be delivered by HHJ Anderson who has conducted the Part IV CA 1989 proceedings, awaits the conclusion of this part of the case.
This judgment is necessarily detailed, as the factual history is complex. The judgment includes a section on 'Lessons Learned' which is designed to remind the professionals in this case, and others who read this judgment, of some cardinal principles of good practice. For ease of reference, I set out the structure of the judgment below:
Declarations sought & questions to be answered
| 1 | Introduction | 1–7 |
| 2 | Declarations sought & questions to be answered | 8–11 |
| 3 | Chronology of events | 12–59 |
| 4 | Human Rights Applications | 60–61 |
| 5 | Context | 62–72 |
| • Professional caseloads | ||
| • The gravity of the allegations | ||
| • Duties arising in joint investigation | ||
| 6 | Findings | |
| • Local Authority | • 73–91 | |
| • West Yorkshire Police | • 92–109 | |
| • Intervener | • 110–115 | |
| 7 | Conclusion | 116–126 |
| 8 | Declarations | 127 |
| 9 | Lessons to be learned | 128–130 |
| 10 | Impact of Legal Aid on the award of damages | 131–140 |
| 11 | Annexes:
|
The Claimants have set out their cases in separate Particulars of Claims. They seek the following declarations:
i) That the Local Authority has acted in a way which was incompatible with the Claimants' Article 6 and Article 8 Convention rights, and has acted unlawfully;
and
ii) That the West Yorkshire Police has acted in a way which was incompatible with the Claimants' Article 6 and Article 8 Convention rights, and has acted unlawfully.
The Claimants draw on a range of facts to support their case for these declarations. Specifically, in relation to the Article 8 case, the mother contends that the removal of the children from their mother's care represented an unjustified interference with their collective right to respect for their family life; significantly, they all contend that the question of rehabilitation of the children back to the mother's care should have been considered and/or advanced by no later than the 21 August 2015.
At the first case management hearing before me (February 2016), I resolved that the key questions for consideration in determining these proposed declarations would be likely to be:
i) Who knew what (relating to the evidence relevant to the allegations of familial sexual abuse), and when, and with what consequence?
ii) Has there been conduct on the part of the Police and/or the Local Authority and/or individuals acting on their ostensible behalf, which give rise to unlawful interference with the Article 6 and Article 8 rights of the mother and the children?
iii) Is a Local Authority vicariously liable for any unlawful interference found to have been occasioned by counsel who they have instructed to conduct and advise in a case? (I have not in the end been required to determine this issue);
iv) If declarations are made, is it a case where damages are necessary, and if so, in what amount? (this issue has fallen away as the damages have been agreed).
Inevitably, the focus of attention during the trial has been on [9](i) above.
I make a number of findings of fact in relation to the issues in dispute. I have found it convenient, and I hope helpful, to do so within the narrative account of the history of the case. I can confirm that in making such findings, I have proceeded on the basis that it is for the person making the allegation (generally the Claimants) to prove it, on a balance of probabilities; i.e. the standard is the civil standard (see Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35). In relation to these disputed issues of fact, a binary exercise is engaged:
"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge … must decide whether or not it happened. There is no room for a finding that it might have happened": Re B (Care Proceedings: Standard of Proof) [2008] above at [2];
I further proceed on the basis that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation: see Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26, and Re X & Y (No.3) [2015] EWHC 3651 (Fam): "suspicion is not enough, nor is surmise, speculation or assertion…" (per Sir James Munby P.)
Chronology of events
In April 2014, the police in West Yorkshire, while conducting its enquiries within a nationwide operation ('Operation Oakend') into the downloading...
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