L-S (Child)

The proposed appellant (hereafter “the mother”) is the mother of a child, B, who is now 12 years old. She seeks permission to appeal against orders made in 2016, in proceedings concerning B, by HHJ Wilding. The hearing before us was a combined hearing of the application for permission with the appeal to follow if permission were to be granted.

In order to explain the nature of the orders under appeal, I will need to go back into the history of the case but, for the moment, it is enough to state that the mother wishes to appeal against three decisions made by Judge Wilding pursuant to a hearing in June 2016. They are:

the judge’s refusal, by order of 17 June 2016, to direct the disclosure to the mother of records of B’s therapeutic contact with an adolescent resource centre (“ARC”);

the judge’s refusal to re-open findings of fact which he had made in January 2015 concerning B’s allegations that his father and paternal grandfather had sexually abused him;

the judge’s order of 12 August 2016 providing for B to live with the father, with limited supervised contact with the mother.

Judge Wilding has had conduct of the case throughout all of its recent history and has given a number of judgments. He explained his reasoning for his decision about the ARC records in a judgment given on 17 June 2016 and his reasoning for the other two decisions in a reserved judgment which was apparently handed down in August 2016 but is marked as amended on 5 October 2016 (“the October 2016 judgment”).

B has been the subject of litigation for a number of years. It began with private law proceedings which were commenced following the separation of his mother and father in 2011. The detail of those proceedings is well known to the parties already and does not need setting out here.

The upshot of the private law proceedings was that an order was made for B to live with the mother and to have contact with the father. The contact progressed to overnight stays. In mid-September 2013, the mother made an application to vary the contact order. She complained in the application that the father was, as she saw it, misinterpreting the contact order so as to permit overnight stays at the paternal grandparents’ home, which she considered was not allowed in the light of concerns she held regarding the behaviour of the paternal grandfather. She said in the application that B had told her that his grandfather was scaring him and she described what B had said about the grandfather’s actions. She also said that B had returned from staying with the father over the summer with extreme constipation and pain on urinating. The mother wanted the order to be varied to ensure that B would not stay overnight at the grandparents’ house.

At the end of August 2013, prior to commencing her variation application, the mother had contacted the NSPCC raising concerns about the way in which B was presenting on his return from contact with the father. In the course of the conversation between the mother and the NSPCC, the possibility of sexual abuse was voiced. The NSPCC referred the matter to X Council, the local authority for the area in which the mother and B were then living, but at that stage X Council took the view that there was no cause for concern. The mother, however, consulted her general practitioner about B being rude and anxious and having toileting issues, and in due course the doctor saw B himself. B complained about his grandfather’s behaviour being “not nice” and scaring him. This was the first of a number of medical appointments. As time progressed, dysuria was reported and some tests were carried out. I depart from the chronology to record that ultimately, in November 2014, B required a surgical procedure on his penis to assist urination.

By 21 October 2013, the mother was of the view, as she reported to the general practitioner that day, that the father and paternal grandfather were sexually abusing B. She reported to the doctor that B said that his father fiddles with his willy, and B seems to have said this himself to the doctor when he saw the doctor a few days later. He also spoke on the same theme to a teaching assistant and, in due course, to others as well, although it is not necessary to set out chapter and verse of this here.

An investigation by social services and the police followed, including an Achieving Best Evidence (“ABE”) interview with B and an examination by a forensic medical examiner. As time went on, B’s allegations became more extensive, to the point, eventually, of including anal rape. Equally, however, there were times when he said that some of the things he had said were lies.

Midway through 2014, the local authority began care proceedings. It was directed that there be a hearing to make findings in relation, inter alia, to the abuse allegations. That hearing took place before Judge Wilding in November 2014, culminating in a judgment in January 2015. As the appeal revolves to a large extent around the mother’s attempt to re-open the findings of fact that Judge Wilding made in that judgment, it is necessary to look at the judgment with some care, identifying precisely what he decided and why. It must be noted that he had a large amount of written material and heard some nine days of oral evidence, involving 17 witnesses, as well.

The judge found, in §33 of the judgment, that there was no substance whatsoever in the allegations of sexual abuse that B had made against the father and the paternal grandfather.

In §34, the judge made another key finding, namely that the mother had “manipulated, persuaded and encouraged B in making the allegations of sexual abuse”. I will quote §34 in full because it generated considerable argument before us:

The judge said that the findings in §§33 and 34 (“the key findings”) were made in the light of all the findings he had made in the preceding paragraphs and I propose to draw out, from those preceding paragraphs, the foundations for the key findings and also any material which might tell us more about the judge’s thinking as to the mother’s beliefs and motivation. At present, I will refrain from commenting on the material, but will simply set it out, for the most part in the order that it appears in the judgment, returning to it later when dealing with the arguments advanced on the appeal.

At §11 of the judgment, the judge began to set out the chronology of B’s allegations, making observations about some aspects of it as he went.

He began with the mother’s contact with the NSPCC in August 2013. The NSPCC had provided a note of the mother’s telephone call to them, but the judge had no transcript of it for that hearing. He set out some passages from the NSPCC’s note and then commented:

It may be worth noting that later on in §11, in one of the passages from the general practitioner’s records which the judge set out verbatim, the doctor described the mother as “stressed out/tearful” on 21 October 2013, which it will be recalled was the occasion when she told the doctor that she felt the father and grandfather were sexually abusing B. Further on in the paragraph, the judge commented that by 24 October 2013:

In §13, having reached 23 November 2013 in his account of the chronology of B’s allegations, the judge commented that there was an “incredible amount of activity surrounding B at this time”, including his parents being deeply embroiled in litigation concerning him, and that it was “inconceivable … that this did not have an impact and effect upon B”. This was a recurring theme in the judgment. The judge remarked, in the context of a note written by B at Cubs in December 2013, that B was by then in turmoil and had been “fully embroiled by this stage” (§14). Further comment can also be found at §17, a little later on in the history, on how troubled B was and how his life was dominated by the issues between his parents and the allegations of sexual abuse.

At §15, the judge recorded the mother’s reaction when, just before Christmas 2013, B was put on a child protection plan in the category of emotional abuse. He said:

Having concluded the chronology of allegations and set out the law and the respective positions of the parties, in §24 the judge introduced his analysis of the evidence with a quotation from a letter written by B’s teacher setting out various possible explanations for B’s acknowledged change in demeanour over the school summer holidays. These possible explanations included that everything B said was true and he had been sexually abused, that nothing he had said was true and he had been told by his mother to say it, or that part of what he said was true and his mother had reacted in a way that increased his anxiety. The judge endorsed the teacher’s approach. He observed that he was being invited to find that:

The judge then turned to examine particular features of the case in §§24 to 32. Although not all are identified specifically as influential, it seems to me that the matters that had a bearing on his overall findings in §33 and 34 must have included the following:

B’s demeanour did change over the school summer holidays of 2013 (§24).

Children can “make these allegations where there is no sexual abuse but their emotional health has been harmed” (§24).

There was no corroboration of what B said, although, as the judge acknowledged, medical evidence rarely does exist (§25).

Despite B saying pictures were taken, no naked images of him were found in the grandfather’s possession, although the police accepted that the search for them should have been conducted earlier (§25).

There was an “inconsistency” in B’s account of abuse (§29) and he retracted allegations in conversation with the X Council social worker (“the X social worker”), freely and without pressure from her, and back-pedalled or retracted to other people as well (§27).

The judge was struck by the calm, unaffected way in which B spoke about abuse in the ABE interview (§27); the judge linked this with the X social worker’s evidence that B had spoken to her about it without emotion (§§13 and 26) and concluded that it seemed that this was his general demeanour when speaking on the subject save when speaking to his mother or someone his mother “allowed” (§27).

The judge also took into account the impression made on him by the father and grandfather when they gave evidence. He had some concerns about their evidence (including those set out in relation to the father later on in the judgment at §45) but concluded that they were “generally honest and certainly honest in their denial of the sexual abuse” (§29, and see also §28 in relation to the grandfather).

He considered (§28) that the paternal grandparents’ bathroom was so small as to make it very unlikely that the events B described took place there. He accepted the evidence of the paternal grandmother, whom he found “an entirely honest witness”, that she had been ever present but had heard nothing, whereas, in the small house, events would have been readily audible had they occurred. She also said that she never saw B show any fear of the grandfather.

B was observed to have a “warm, relaxed interaction” with this father (§29), at odds with an abused child.

The allegations were, in the judge’s view, closely related to the mother believing that police and the social services were not taking what B said seriously. There was a “dramatic snowballing” of the allegations which the judge felt made them implausible (§29).

The judge made various observations about the impression the mother had made upon him. Some were made in the course of setting out the chronology of the case and I have referred to those above. Others can be found in the judge’s analysis of the evidence preceding his key findings in §§33 and 34 and I turn to those now.

The judge found that B is deeply attached to the mother and that she and the father both love him (see, for example, §47). He seems to have accepted that she had been affected by the process concerning B’s allegations. Noting, in §24, the benefit that he had had of seeing all the main people involved in the case, the judge commented upon how a number of witnesses had been affected by the giving of their evidence, particularly where B had made allegations to them directly, observing:

However, the judge said that the mother’s evidence had given him considerable concern in many areas. At §29, he said he had:

Whereas the judge considered that the police and the local authority had carried out their investigations adequately, if not perfectly, the mother thought that they were not “taking her side” when they concluded that the likely cause of B’s allegations was the mother’s manipulative behaviours, not sexual abuse. The judge commented that that conclusion:

At §30, the judge found that the mother had misleadingly led those responsible for safeguarding children at Cubs to think that the father may come and take B from a Cubs meeting. The judge said of this:

The judge found particularly egregious the mother’s deliberate exposure of B to “quite inappropriate questioning” by his childminders, after she had been advised that it was not in B’s best interests to have any further interviews at that time. He rejected the mother’s evidence as to what had happened in connection with this questioning, finding that she orchestrated the interview because she was not satisfied with the outcome of the local authority’s section 7 report and because of a pending court hearing. He said:

At §31 the judge found that the mother similarly orchestrated the meetings that took place with a friend of hers whom she “recruited …to her cause”, as she did her partner (§32). The judge found that the allegations would have been a major topic of conversation in the house and B “was fully exposed to discussions about sexual abuse for a lengthy period of time, probably from the August of 2013”. The partner was, the judge found, “colluding with the mother in making B make these allegations”.

There were a number of other allegations on the schedule of allegations about which the judge made findings. As they are not of central significance to the appeal I will not recite them. However, it is important to note that both parents came in for criticism. Each accepted that B had suffered significant emotional harm from their behaviour towards the other parent and that he was and continued to be deeply embedded in their conflict (§37). It is of note in the present context that the findings included that the mother had taken a hurtful approach with B about his relationship with the father on occasion, and that B voiced worries at times about her reaction (§40).

In the concluding paragraph of the judgment, the judge summarised the situation thus:

For the sake of completeness, I record that in answer to a request by the parties for clarification of certain aspects of the judgment, the judge added two references to the mother’s “concerted efforts” to estrange B from the paternal family.

Before leaving the January 2014 judgment, I want to deal with the judge’s approach to the X social worker, whose evidence was a particular focus of the mother’s argument before us. She was the author of the local authority’s section 7 report dated 18 December 2013 and the section 37 report dated 20 February 2014. She gave accounts of what B and the mother had said and described B’s demeanour. She saw B on 21 November 2013 with his teaching assistant present when he alleged sexual abuse by the father in, she said, “a monotone and emotionless voice” with “no emotion such as anger, upset or fear” (§13 of the judgment). She saw him again on 2 December 2013, again with the teaching assistant, and he developed his allegations; he was said by the social worker to have been “in a foetus position” throughout the meeting (§14). There was a further meeting on 18 February 2014 when B told her that he lied about an aspect of what happened but not all of it (§15). The judge’s view of the social worker was that she was an impressive witness with a clear and commanding grasp of the essential details of the case (§§26 and 27).

The mother sought to appeal against the judge’s decision. Her application for permission to do so came before Ryder LJ in June 2015 and was dismissed. Although the proposed appeal grounds do not seem to be included in the voluminous papers supplied for the purposes of this appeal, it seems from Ryder LJ’s judgment that the argument advanced was that the judge was wrong to conclude that the primary cause of the child’s behaviours and demeanour, including his allegations, was the determined and concerted effort on the part of the mother to remove the father from his life (see §12 of Ryder LJ’s judgment).

Following the making of the findings of fact, a child and adolescent psychiatrist, Dr B, was instructed to assess B and the ability of the parents to meet his needs. A psychologist, Dr D, was also instructed to assess the parents. When Dr B’s report was received, the concerns that she expressed in it were sufficient to provoke the local authority to apply for an interim care order on the basis that B needed to be removed from the mother and placed in foster care.

There was a hearing before Judge Wilding at the end of April 2015 and he made the order sought. Judge Wilding was clear at that stage that the mother did not accept his decision about the alleged abuse (see, for example, §7 of the April 2015 judgment). He recited in his judgment extracts from the medical reports and it is important to note the references in these to the mother’s belief in the truth of the sexual abuse allegations.

In the passages that the judge quoted from Dr D’s report on the mother, there is reference to her “fearful personality traits” and also the following:

The quoted extracts from Dr B’s report revolved firmly around the mother being convinced that B had been abused. They included the following:

Pursuant to what the judge endorsed as “a perfectly reasoned assessment of the benefits and dis-benefits of immediate removal” of B from his mother’s care, Dr B advised that he needed to be removed in order “to allow him to separate from her psycho-pathology”. The judge agreed with this assessment and made the interim care order sought.

Thereafter, B spent a period in foster care. To begin with, he had no face to face contact with the mother, only weekly telephone calls with her, but once a report on the mother by an adult psychiatrist, Dr R, had been obtained, the local authority introduced supervised direct contact.

There was a hearing on 24 July 2015 to deal with the mother’s application for more frequent direct contact, which was dismissed. In his judgment, Judge Wilding said that the mother had made clear in her witness statement “that she still maintains that father and paternal grandfather sexually abused B and that she did not coerce or manipulate B” (§7), a position referred to by the judge in §8 as “resistance to my findings”.

One of the orders made on 24 July 2015 records that the “narrative for B” had been agreed at court that day. This “narrative” was the account which it was intended the guardian would read to B, setting out what the court had found had happened to him. It seems that this was, in fact, the first of several “narratives”. It included a record that the mother did not agree with the judge’s findings (F1224a).

By this time, B had started to receive therapy, including sessions with Dr Z, a child and adolescent psychiatrist, and, more frequently, with Ms B, a worker at ARC. An earlier order, of 5 June 2015, had recorded that the parties were agreed that, in so far as possible, ARC would provide an opportunity for B to discuss matters confidentially without the contents of the discussions being shared with any party without leave of the court or agreement of all parties and ARC. The recitals to the order of 24 July 2015 made provision for a degree of sharing of information about the sessions. The local authority was to convene regular professionals’ meetings with Dr Z and Ms B, which were to be transcribed and the transcripts served on the parties within 7 days of the meeting. The judge also directed that the local authority should serve on the parties a note of the sessions that Dr Z had already had with B and, every 4 weeks from then on, Dr Z’s notes of future sessions.

In December 2015, there was a further hearing before the judge to consider the arrangements for B in the longer term. The mother sought the return of B to her care but the judge ruled that out and endorsed the proposal of the local authority that the possibility of full time care by the father should be explored.

The mother appears to have intended initially to invite the judge, on the basis of material resembling that which was later put before him in June 2016, to review his finding that she had manipulated, persuaded and encouraged B into making the allegations of sexual abuse and as to her motivation for doing so. However, in the event, this line of argument was not pursued at that hearing, as the judge recorded in §16 of the judgment which he gave at the conclusion of it.

The judge commented in that judgment that the “significant underlying feature of this case” was that the mother refused to accept his findings of fact (§27). He thought she was now more deeply entrenched (§29), maintaining that B would be at risk of further sexual abuse if he were to live with the father and fearing that the father and grandfather would kill B if he spoke about the abuse. She also thought he was at risk of being abducted abroad by his father if things went wrong for the father.

It seems that the mother hoped, at this hearing, to dislodge the judge’s finding that abuse had not occurred. An application was made on her behalf for Dr Z to give oral evidence about her observations regarding B’s demeanour; the judge refused that, giving a short judgment about it (referred to in §18 of the December 2015 judgment but not available to us). In addition, Ms Markham QC, then (as now) representing the mother, provided the judge with a schedule of occasions when, after B’s removal from the mother’s care, he had made further allegations concerning the father. The judge did not find those further allegations persuasive because they were repetitions of what B had said before and did not detract from his findings (§33). In this regard, it is worth noting that Dr B’s evidence was that B may need to keep saying it because it was what the mother needed to hear (§41).

Dr B and Dr D appear to have been taken to task in their oral evidence at the December hearing for proceeding on the basis of the judge’s findings of fact rather than reaching their own views as to what occurred. However, that does not seem to have been an entirely accurate representation of the position. The judge found that Dr B, who said she could find no evidence in her assessment that B had been abused, had reached her conclusions with an open mind, albeit by reference to the facts he had found (§55). As for Dr D, he had, as the judge put it in §44, “triangulated the evidence from the testimony, the historical evidence, personal presentation and self-reporting”.

Just as in the April 2015 judgment, matters proceeded firmly upon the basis that the mother genuinely believed B had been abused. It can be seen from §78 of the judgment that, once again, that fact was at the core of the decisions taken in relation to B’s welfare. Having reviewed the expert evidence about the unpromising prognosis for treatment for the mother, the judge said:

In 2016, the mother applied to re-open the judge’s finding that there was no substance in the sexual abuse allegations and that she had manipulated, persuaded and encouraged B to make them. She supported her application with a quantity of new information from a variety of sources, which her counsel summarised in tabular form. She also sought disclosure of the records of B’s therapeutic contact with ARC. These applications were heard during a week in June 2016, together with the issue of B’s long-term placement.

Judge Wilding refused the application to re-open the findings, announcing his decision immediately and then giving his reasons later in the October 2016 judgment.

He rejected the mother’s argument that there was an irreconcilable clash between his finding that she had manipulated, persuaded and encouraged B in the making of his allegations and his later acceptance that she genuinely believed abuse had occurred, and that the original finding should therefore be re-opened. His reason was shortly expressed:

The judge also rejected the mother’s argument that there was new material now available which called into question both the finding as to whether there was sexual abuse and the finding about her role in the making of the allegations. The judge highlighted specifically, from the new material introduced by the mother:

a transcript of the mother’s covert recording of a telephone call she had with the X social worker;

material from X Council’s files which was not available before and was said by the mother to show a different and troubling assessment of B;

case notes made by a Ms J who had provided B with therapeutic support at one stage;

a transcript of the conversation that the mother had with the NSPCC;

submissions focused upon the evidence of the police witness, DS K, particularly in relation to the mother’s comment to her upon which the judge relied when making his finding about the mother’s motivation in §34 of his fact finding judgment (see above);

emails sent by the mother to various people at the time the allegations surfaced.

The judge considered all the material but concluded that, whether taken as separate items or as a whole, it did not establish any reason for him to reconsider his findings. He commented that the issue at the heart of the case was whether B was or was not sexually abused and “the principal evidence was that of B and the allegations he made and withdrew” (§42). The lengthy fact finding hearing had, in his view, given all the parties the opportunity to put their cases to the fullest extent (§43).

The judge took the trouble to comment specifically on each of the categories of material that the mother had put before him. In relation to the X social worker, he took the view nothing had been produced that was not either already before him when he made his findings or could not have been elicited by questioning of the social worker (§§32 and 33). In relation to Ms J, he had heard her oral evidence at the fact finding hearing and had found it of little assistance with his original findings; nothing in the case notes now produced would have helped him any further (§38). In relation to the NSPCC, whilst acknowledging that the transcript went to the mother’s veracity, he considered that her veracity had been fully aired during the lengthy fact finding hearing and this was not sufficient to cause him to reopen matters (§40). In relation to DS K, he said that the information placed before him did not undermine the credibility of the police officer whom he had had the opportunity of observing for some time in the witness box; in any event there was other evidence available to him as to the mother’s motivation (§37). As for the emails, the judge did not consider they took matters anywhere (§41).

The disclosure application was made after Judge Wilding had given his ruling on the application to re-open the findings of fact and he gave a judgment dated 17 June 2016 dealing with it. He explained in it that he had made an order in May 2016 for disclosure of certain information relating to ARC and this had resulted in some material being exhibited to a social work witness statement. The mother, however, submitted that, in order to be able to ask questions directed to the issue of her future contact, she needed all material created by Ms B of ARC plus the minutes and notes of professionals’ meetings between ARC and the local authority. The judge refused the application for a number of reasons.

He considered that disclosure of the material would feed into the mother’s continuing efforts to go behind his factual findings (§6).

He noted that, apart from the father’s knowledge gained from participation in work done by ARC to repair his relationship with B, the mother would be in the same position as the father as each had received the same disclosure (§7), neither having all the minutes of the professionals’ meetings, it would seem (§10).

He took the view that Ms B’s documentation was confidential as part of the therapeutic work that was being done with B and that it would be invading that therapeutic confidentiality to require disclosure going beyond the case material already appended to the social worker’s statement (§8).

He did not think it right to adjourn further so that the mother could have and consider more minutes of professional meetings. It would be detrimental to B’s welfare to delay making a final decision about his future, and any issues in relation to defined contact for the mother could be dealt with, he considered, through cross-examination of the social worker and the guardian on what was already known to the mother (§§9 and 10).

As the reunification of B and the father had gone well, the judge made a child arrangements order for B to live with him and imposed a supervision order for twelve months.

In so far as concerns the judge’s decision not to re-open his findings, the grounds of appeal are, in essence, a complaint that the judge failed properly to analyse the new evidence presented by the mother and should have concluded that it required him to re-open his findings. The mother argues that the judge failed to approach the new evidence with a fair and open mind and also that he gave insufficient reasons for dismissing her application.

The clearest challenge is to the judge’s refusal to re-open his finding about the mother’s manipulation of B. Underpinning this challenge is the assertion that the manipulation finding cannot survive alongside the later explicit acceptance that the mother genuinely believed that the allegations were true.

However, in addition, although perhaps not so clearly articulated in the grounds of appeal themselves, the mother is attempting to reverse the judge’s finding that there was no abuse and seeks, through this appeal, to make progress towards that. She draws directly upon the new material that she produced to Judge Wilding in June 2016, supplemented by additional material produced for the present hearing, which she argues casts new light on the abuse allegations and requires the abuse finding to be revisited. She also argues that if the finding about her manipulation of B were to be reversed, that would necessitate the re-evaluation of B’s allegations. As it was put in Ms Markham’s skeleton argument of 31 May 2016 in support of the application to the judge, “If the mother did not create the allegations, then the court must consider their provenance”.

The mother also seeks to achieve a re-evaluation of the judge’s findings about some of the other allegations, such as his finding as to her having pushed B on one occasion.

The appeal in relation to the disclosure of the ARC material proceeds on the basis that the material went to both the re-opening application and the welfare decisions that had to be made about B and that, without it, the mother was not able to have a fair hearing. It was needed, the argument goes, to enable an understanding of what B now believes and what he has been saying about what happened to him.

The orders made by the judge in relation to B living with the father and as to the level of the mother’s contact are challenged because they were made without the benefit of the full ARC material, and based on findings of fact which the mother would say are unsafe.

I now need to look in rather more detail at the arguments that the mother advances in connection with her application for the re-opening of the findings of fact. I should say at the outset that although I will not cover every last detail of the arguments in this judgment, concentrating instead upon the central themes, consideration has been given to all that has been said on the mother’s behalf in writing and orally. In addition to the skeleton arguments produced for the appeal hearing, I have also had the benefit of Ms Markham’s skeleton argument of 31 May 2016 which, together with other working documents produced for the June hearing (such as the Table of Fresh Evidence), set out the case that the mother presented to Judge Wilding for the re-opening of his findings.

There has been no dispute between the parties as to the law applicable to the re-opening application and we heard no argument about the test to be applied to such an application. Judge Wilding referred to section 31(F)(6) of the Matrimonial and Family Proceedings Act 1984 and to the decision of the President of the Family Division in Re ZZ and Others [2014] EWFC 9 and authorities cited in it. It is the judge’s application of that law to the particular facts of this case that has generated the argument and it is upon factual matters that I therefore concentrate.

The mother’s arguments have required a detailed consideration of evidence from the original fact finding hearing and evidence assembled subsequently, now occupying 9 lever arch files in total. I have considered the mother’s various points separately and also stood back to review the judge’s approach in the light of the totality of them. As will become apparent in the following paragraphs, my conclusion is that he was fully entitled to refuse to re-open his factual findings.

I will deal first with the mother’s argument concerning the evidence of Detective Sergeant K. It will be recalled that, in the fact finding judgment, the judge accepted DS K’s evidence about the mother’s comment to her on 31 October 2013, observing that DS K made a contemporaneous note of the conversation (see §11 above). The mother made a complaint about the conduct of the police in relation to B’s allegations. The police review process produced information from the police system as to the timings of telephone calls between the mother and DS K on 30 and 31 October 2013. This showed that there were four calls between 17.13 and 17.21 on 30 October 2013 to the mother and one call from her on 31 October 2013 at 16.00 hours. DS K’s note of the conversation in question with the mother is timed at 9.12 on 31 October 2013 in the electronic police log. The conversation cannot therefore have taken place on 31 October because the note was made prior to the only call made that day, which was at 16.00. It must therefore have taken place on 30 October 2013. Therefore, the argument goes, the judge was wrong to think that DS K made a contemporaneous note of the mother’s comment as her note was in fact made the next morning.

The first thing to say about this is that, in my view, the description “contemporaneous” is not obviously inappropriate for a note made the morning after a conversation which took place at tea time on the previous day. Secondly, the note was not the only thing that the judge had to go on. He had the opportunity to observe DS K giving evidence for some time at the fact finding hearing, including being cross-examined about the conversation. The view he formed was that she would not have misreported what the mother said and, as is clear from §37 of his October 2016 judgment, that view was not undermined by the new information about the timing of the events of 30 and 31 October 2013. I am not at all persuaded that the new information as to timing dictated that the judge should reappraise DS K’s credibility, whether generally or in relation to the mother’s comment. What had been said on the afternoon of 30 October would have been fresh in DS K’s mind when she made her note on 31 October. The judge was fully entitled, in the circumstances, to reject the argument that it contributed to the case for re-opening the findings of fact, either in relation to the mother’s motivation or the occurrence of sexual abuse.

It follows from this that the judge was entitled to rely upon what the mother said to DS K in reaching his conclusion about the mother’s motivation. In any event, as he said in his October 2016 judgment, it was not the only material available to him in his assessment of that issue.

Before leaving the police evidence, I should note that, in addition to her specific point about the telephone conversation, the mother seeks to rely upon the investigation into her complaint about the police as undermining the judge’s findings generally. However, the mother’s criticism of the police approach to B’s allegations was known to the judge at the time of the fact finding hearing and nothing new has been identified as having emerged from the police review process which would have significantly have affected the judge’s findings.

I referred at §§6 and 14 above to the mother’s conversation with the NSPCC at the end of August 2013 and at §52 to the judge’s approach to the transcript of it which was produced at the June 2016 hearing. The mother’s case at the fact finding hearing was that it was the person she spoke to at the NSPCC who raised the idea of sexual abuse, not her. She felt that the judge had not accepted this and that the transcript of the conversation proved that she had been correct. The judge accepted in §40 of his October 2016 judgment that the transcript did bear out the mother’s account and that that went to her veracity, but did not feel that it required him to revisit his original finding in that respect.

The judge was entitled to take this approach, in my view. His conclusions at the fact finding hearing had been reached after surveying a wide range of evidence and he was entitled to take the view that this additional material would not have altered them. In any event, although the mother did not explicitly voice the possibility of sexual abuse first in the conversation, it was plainly already in her mind. It was she who contacted the NSPCC to say she was “feeling a little bit uncomfortable” about what her son was saying on his return from contact and she commenced her account of what was troubling her with a description which suggested that one of the father’s sisters may have been abused by the grandfather (Bundle 7 page 12).

At the time of the fact finding hearing, a schedule was produced highlighting problems with X Council’s investigation of B’s allegations. The mother says, however, that the documentation she has subsequently obtained has revealed more extensive errors which would have undermined the reliance that the judge placed on the evidence emerging from X Council’s investigation. The documentation includes, in particular, transcripts of meetings between the mother and the X social worker and X Council’s case notes.

It is very unfortunate that the X Council case notes were not available at the time of the fact finding hearing and were only produced subsequently, in 2016, in response to a request made by the mother under the Data Protection Act. I have to confess that I find it puzzling that they were not pursued with more vigour by someone at that time of the fact finding hearing. It is hard to understand how all those involved, including the guardian and Y Council who had brought the care proceedings, either accepted that no running case records existed or concluded that it was not necessary to insist upon them being produced. However, not having conducted an enquiry into how this occurred, or explored whether the judge simply drew a line under any further applications for disclosure in view of the quantity of paperwork already available, I am conscious that there may be an explanation that I have not appreciated. Most importantly, I should be clear that I am not in any way critical of the mother in relation to the late production of the records and will turn in a moment to consider the points that she makes in reliance upon them. First, I need to deal with the transcripts of the meetings between the mother and the X social worker.

There was a meeting between them on 28 November 2013. The mother illicitly taped it. It seems that she said nothing about this at the time of the original fact finding hearing. Subsequently, in 2016, she had a transcript prepared of that and another meeting with the social worker and sought to deploy the transcripts, along with the case notes, in support of her application to re-open the findings. Ms Markham draws out, particularly, a comment made by the social worker to the mother on 28 November, in the context of the mother asking her whether she would recommend a fact finding hearing, that “as a parent…I probably would have castrated him by now” (Bundle 7 page 64). More generally, she submits that the transcripts show that the social worker was supporting the mother in her stance that there should be no contact and was recognising that she had genuine anxieties.

As I understand the mother’s position in relation to the potential impact of the transcripts of the meetings she had with the social worker, it is her case that, had content of the meeting been known to the judge, it would have undermined his assessment of the social worker as an impressive witness with a clear grasp of the case (see §30 above). I think it is also said that, had he had the transcripts, it would have had an influence on the judge’s assessment of the mother’s veracity (for example, confirming her account of the castration comment) and on his view of her motivation. In addition, it is argued that the judge failed to consider, when determining the application to re-open the findings, what adverse impact such professional input might have had upon the mother.

Given that the mother was present during this conversation with the social worker and, furthermore, must have had the tape of it in her own possession at the time of the fact finding hearing, she could have pursued the issues that she now raises with the assistance of the transcript at a much earlier stage, and certainly before the judge made his findings of fact. I have considered the potential impact of the new material nonetheless, and I am not persuaded that the judge was wrong in his approach to it in the October 2016 judgment (see §52 above). No doubt points would have been drawn out from the transcripts had they been deployed at the fact finding hearing, but the judge’s findings in relation to mother, and in relation to B’s allegations, drew, in fact, upon a range of evidence, by no means confined to the testimony of the X social worker. Our attention has not been invited to anything in the transcripts which was of such significance that it would provide cause to re-open the findings that resulted from that broadly based process.

Turning to the case notes, Miss Markham took us especially to certain of the entries in which the social worker’s sessions with B were recorded. The mother’s case is that this gives a different picture of the child from that described by the social worker in the evidence she put before the court, showing him to have been fearful, emotional and scared. Had the full picture been available to the judge, it is submitted that, rather than assessing her as favourably as he did, the judge would have recognised the social worker’s deficiencies, particularly that she was a poor record keeper and had failed to describe B’s presentation accurately. Furthermore, it is submitted, the judge would have had additional evidence suggesting that the allegations B was making were true.

The judge recorded in his fact finding judgment (§26) that the social worker described B as a very anxious young boy who was withdrawn in his behaviour and that she said he was very monotone in his response to her, with no emotion, whereas in her experience a child who had been abused would show emotion. It is argued that that description does not coincide with the case notes and other documentation, and also that the judge was lacking the detail now available about what B said and how he presented to the professionals.

Two examples will illustrate the point being made. The first relates to the first conversation that the social worker had with B, on 21 November 2013, as to which there is no case note. What the social worker said about that day in her section 7 report was that B was emotionless when alleging that his father “fiddles with his willy” and that he did not want to have contact with his father for now, but he would like contact via letters. The mother has now obtained the minutes of the initial case protection conference on 20 December 2013, at which the social worker spoke of the encounter. There, although she did speak of B presenting what had happened in a monotone voice (Bundle 9 page 77), the social worker also said (Bundle 9 page 75) that he had told her on her first meeting with him that he was “scared of Daddy” and did not want to see him because of what happened.

The second example relates to 2 December 2013 when the social worker met B again and this time recorded events in a case note. This was the occasion when, having undergone a medical examination, B added a new allegation against his father. The new allegation is included in the note together with extra details of what B said to the social worker that day. As to B’s presentation, the social worker recorded that he “presented as a very frightened and disturbed boy today” and that he was “curled up in a foetus position on the sofa during the meeting” (Bundle 8 page 34).

Some of the material that features in the 2 December note was available to the judge. The information about the “foetus position” was included by the social worker in her section 37 report (F687). In her oral evidence, she said that B was very withdrawn, and she relayed that his teaching assistant had said that that whole morning he had been withdrawn, quiet, and not wanting to engage in class (Bundle 7 page 86). In cross-examination, she described the meeting as “worrying” (Bundle 7 page 110) and, a little further on in the cross-examination from the passage to which we were taken in argument, she said she was “worried about the whole of B, because a lot of things were worrying him - things about what he is alleging dad is doing, what he is alleging mum is doing.”

However, Ms Markham submits that the extra details which are contained in the case note of what B said and how he presented, but not mentioned by the social worker at the fact finding hearing, are significant. If this material had been available at the time of the fact finding hearing, it could have been explored further with the social worker, for example by enquiring whether she could help as to what was frightening B. If the judge had had the full flavour and detail of B’s presentation, it could have led him, Ms Markham submits, to find that the abuse did occur, and even if that was not established, he could have concluded that it was understandable that the mother should have become so concerned about it, and that would have gone to his finding about her role in the allegations.

The judge was fully aware of the reasons why the mother said that he should re-open his findings in the light of the case recordings and the transcriptions of her conversations with the social worker and that it was being submitted that, had the material been available at the fact finding hearing, it would have led to a different perception about B and the way in which he made his allegations, and would also have damaged the standing of the social worker. He reviewed the documents produced and did not consider that they could change his view at a re-opened fact finding hearing. He acknowledged that the new material could have been used in cross-examination but recorded that the mother’s lawyers had “challenged [the social worker’s] evidence to its fullest extent” as it was. He had formed his own view of the social worker’s evidence following her lengthy period in the witness box (see, for example, §33 of the October 2016 judgment).

In a case such as this, I would give considerable weight to the view of the trial judge as to the possible impact of new material on his findings and as to the necessity of revisiting them. The trial judge can consider the question with the huge advantage of having been present when all the original evidence was explored during the fact finding hearing. This puts him in a far better position to determine whether the further information that is presented is potentially of significance than someone in my position, who can only achieve an incomplete impression of the trial from studying portions of the documentary record. Of course, there will be cases in which the trial judge’s determination that there should be no re-opening of his findings of fact is demonstrated to be faulty. However, in my view, none of the points raised in relation to the social worker are sufficient to establish this here. Given the breadth of the material available to the judge as the basis for his original findings as to whether the abuse had occurred, it is not surprising that he decided that the extra detail emanating from the local authority records would not have altered his view. Nor do I think it can be said that it necessitated a re-examination of his finding in relation to the mother’s motivation. I think the judge’s finding as to the mother’s motivation was, in fact, quite complex and I will need to look at it separately below. But it is worth observing straight away that, in any event, he had Detective Sergeant K’s account of what she had said which supported his conclusion that she wanted to remove the father from B’s life.

The local authority case notes obtained by the mother included notes made by Ms J of her supportive meetings with the mother and B. The mother relies upon them for the descriptions contained in them of B discussing his fears and for material supporting the genuineness of the mother’s belief that there had been abuse. We were taken during the appeal hearing to examples within the notes, such as (1) the entry for 11 December 2013 when Ms J described the mother as “extremely anxious, upset, guilty, worried and emotionally distraught” and said that because of her “heightened state of anxiety, [the mother] has been allowing her thoughts to run away with her with regard to the possibilities of what B may have been subjected to in the past” (Bundle 8 page 38) and (2) the entry for 6 December 2013 relating to a group session in which B spoke about abuse and about his life more generally.

It is worth nothing two comments made by Ms J in the “Observations” section of the 6 December entry. The first ties in with the description of B recorded by the judge in §26 of his fact finding judgment (see §76 above). It is to the effect that when B was speaking about the alleged abuse, “his tone was very monotone with little expression” and he did not show any emotion but stated everything in a matter of fact way. The second is potentially relevant to the mother’s role in events and is to the effect that when the mother came back into the room, B, who was by then behaving animatedly, held his head down and when speaking with her, his tone of voice changed completely and “became that of a ‘needy child’ almost pathetic” (Bundle 8 page 37). It is also material to note that the next case record, dated 9 December 2013, is an email from Ms J to the social worker which begins with Ms J reverting to the 6 December session and commenting, in relation to a sexual allegation that B had made during it, that “it is difficult to ascertain whether this was fact or B may have been told to say something to us”. Ms J also said, “my initial feelings are that B is being used as a weapon against his dad”, though she continued that it was necessary to listen to the child, noting that B had made his allegation without any prompting. I think that these examples illustrate that the extra material in Ms J’s case notes was not all entirely supportive of the mother’s case or of a type that would add weight to an application to re-open the findings of fact.

The judge had already had a witness statement from Ms J for the fact finding hearing (F259) in which she gave her account of her sessions with B and in which she spoke of his high level of anxiety and distress. Ms J had also provided information about the mother’s emotional state, in her oral evidence. It can be seen from the transcript that she spoke, for example, of her concern that the mother’s emotional state could affect B, remarked on how your mind can run away with you, commented that the mother needed to step back and look at the facts and rationalise things (E12), and also said that the mother had “an awful lot of anxiety around the whole situation” (E22).

Given the ground that had already been covered with Ms J in the original hearing, I am not persuaded that the judge erred in taking the view that nothing in the case records required him to re-open his findings. It has not been shown that he was wrong when he said that nothing in the notes would have helped him any more than hearing Ms J’s oral evidence (§38 of the October 2016 judgment).

The mother wished to rely upon emails from herself to others, dating from late 2013, as evidence that she was reacting to what B said rather than causing it. These were, of course, available to her at the time of the original hearing and, in any event, I doubt how far they would take her case and consider that the judge was fully entitled to take the view that they did not advance the application for the facts to be re-opened.

The mother’s challenge to the judge’s refusal to re-open his finding that she manipulated, persuaded and encouraged B in making the allegations of sexual abuse, and as to her motivation for doing so, rests heavily upon the premise that that finding cannot exist alongside an acceptance that the mother genuinely believed abuse had occurred. As Ms Markham put it at page 17 of her skeleton argument for the appeal, the two are mutually exclusive as the motivation of a mother who genuinely believes that her son has been abused by his father is protection, rather than seeking to prevent contact so she can start a new life caring for the child with her new partner.

The starting point for a consideration of this argument ought, in my view, to be what the judge said on the subject in his October 2016 judgment (see §49 above). He did not think that there was a clash and was satisfied that the mother could hold a belief genuinely, albeit irrationally, and yet still manipulate and persuade B into making false allegations. Considerable weight must be given to this view of the judge’s, because he knows best what he had in mind when making his original findings. However, I took the trouble to set out earlier some passages from the fact finding judgment which might be thought to give an insight into his thinking at that time, and I will return to them now. To my mind, it is far from clear, reviewing these passages, that the judge was making a finding that the mother deliberately coached B into making what she knew to be false allegations. On the contrary, it seems quite possible that he was, even at the point of preparing his judgment at the conclusion of the fact finding hearing, accepting that at some stage she had come to believe in what was being alleged.

I will attempt to illustrate what I mean with some examples. The judge’s comment about the mother’s concerns, set out at §14 above in connection with the NSPCC referral, indicates an acceptance on his part that she had genuine concerns. The passage I have quoted at §17 above, about the mother’s shock about the child protection plan and her certainty that B was a victim of sexual abuse is similar. The judge’s comment (noted at §21 above) about the mother having seemed particularly affected in giving evidence about the allegations might also fall into the same category. The judge’s final paragraph (set out at §28 above) is also relevant, perhaps particularly so. He spoke there of his fear that the mother would not accept the findings and of her strident evidence that “it” would all come out one day and she would be vindicated. This passage is much more consistent with the judge proceeding on the basis that the mother genuinely believed abuse had occurred than with her deliberately planting falsehoods in B’s head. And finally, although it is a small point only, I note that at §24 of his judgment (§18 above), the judge referred to “the stark case” that the mother “deliberately coerced, coached and encouraged B to make false allegations” but, when making his own findings, did not use the word “coach”. I have not reached a concluded view about this, and it probably all depends on the circumstances of the particular case, but it might perhaps be more difficult to reconcile a finding that a parent has deliberately coached a child to make false allegations with a genuine belief that abuse has occurred than it is to reconcile the finding that the judge actually made.

In the circumstances, I see no reason not to accept the judge’s assessment that there was no irreconcilable clash between his factual finding about the mother in January 2015 and the acceptance that she genuinely believed abuse had occurred. The finding he did make had the foundation of the DS K evidence, but was also supported by the judge’s assessment of the mother’s actions, see §§20 to 26 above.

It is argued that the judge’s refusal to revisit the original finding made about the mother has led to welfare decisions being taken in relation to B on the wrong basis. I cannot accept that. The reason I gave some detail earlier in this judgment about the welfare decisions taken following the fact finding hearing (interim care order in April 2015, §§32 to 36 above; the July 2015 order, §§38 and 39 above; the order ruling out of the mother as a carer in December 2015, §§41 to 46 above) is to show that it is abundantly clear that they were taken with the genuineness of the mother’s belief well in mind. Furthermore, the “narrative” agreed for B (see §39 above) included a record that the mother did not agree with the judge’s findings.

In so far as the mother seeks to use the genuineness of her belief in abuse as a lever to achieve the re-opening of the judge’s finding that the abuse did not take place, I would not accept that it assists in that objective. I am doubtful, for the reasons that I have already set out, about the proposition that it was only after the fact finding hearing that the judge accepted that the mother believed in the abuse. But even if I am wrong about that, as the judge himself said in §42 of his October judgment (see §51 above), the principal evidence was B’s and he considered that together with all the circumstances of the case. I set out, at §§18 and 19 above, how the judge analysed the various features of the case and reasoned his conclusion that the abuse did not occur. That reasoning is not significantly undermined by the acceptance of the genuineness of the mother’s belief, or indeed by any of the other matters advanced on her behalf by way of appeal.

I am conscious that there is further material upon which the mother seeks to rely and which I have not dealt with specifically in this judgment, for instance the foster carers logs. In my view, it does not assist her any more than the material I have expressly addressed.

I will deal with the ARC material separately, although I am aware that the mother argues that it had the capacity to affect both the question of re-opening the factual findings and the judge’s welfare decisions.

My summary of the judge’s judgment in relation to the ARC disclosure can be found at §53 above. The mother argues that the judge wrongly “failed to permit access to core documents which may have assisted in understanding B’s current belief system and assertions as to what happened to him” (page 25 of Ms Markham’s skeleton argument for the appeal) and that this prevented the mother from having a fair hearing. A particular focus seems to be upon B continuing to say, at times, following his removal from his mother’s care, that he was abused or making comments adverse to the father.

It is submitted that Article 6 and Article 8 of the ECHR are both engaged in relation to whether B’s ARC records should be disclosed. Where the local authority is relying upon what emerges from the work done at ARC by B in making plans for him, it is argued that the mother was entitled to all of the ARC material, whereas she only received some of it and otherwise received the information filtered through the social worker’s statements. This meant, in her submission, that she could not fully participate in the hearing determining long term arrangements for B.

It is submitted that the judge failed to consider properly whether disclosure of the extra material from ARC was necessary to enable the mother to address the issues he had to determine. Furthermore, it is relevant, it is said, that B’s rights to the confidentiality of the material have already been “breached” because the content of the sessions have been spoken of with B’s social worker, foster carer and school, and the father was privy to some of the information as he was present at the sessions.

The local authority respond in relation to this ground of appeal that even if B was still saying in therapy that he had been abused, it would not justify re-opening the facts found or bear upon the question of the mother caring for B or her contact with him. There is force in that submission, in my view, given the complexity of B’s situation. That complexity is shown, for example, in §1.17 of Dr B’s October 2015 report (F585). There she said:

The guardian points out that in the order of 5 June 2015 (§40 above) it is recorded that the parties were agreed that B would be allowed to discuss matters confidentially at ARC. Mr Wan Daud for the guardian says that the agreed position reflected the terms on which ARC was prepared to take the referral. The scheme set up was for Dr Z to provide reviews updating the parties and the court on progress. Some reviews were provided in this way, as can be seen from the collection of documents in volume 2 of Bundle F, as well as minutes of certain of the professionals meetings attended by Dr Z and Ms B, although Ms Markham complains that the set was by no means complete. The judge recorded in his June 2016 judgment that some material had been exhibited to a social work statement pursuant to an order he made in May 2016 for ARC disclosure, but I am not sure whether that was in addition to the material which is contained in Bundle F or not. There seems to have been a degree of difficulty about disclosure of the ARC documentation as it was apparent during the hearing before us that Ms Markham had not had one of Dr Z’s reviews which was in the possession of at least the guardian at the time of the June 2016 hearing.

The judge’s decision about whether or not to order further ARC disclosure was a case management decision and not easily vulnerable to being overturned on appeal. I can see no cause for it to be overturned in this case. The judge gave sufficient reasons for his decision. The focus of the application was particularly on Ms B’s notes and it was of considerable significance, in relation to them, that this was a therapeutic relationship which was supposed to be for B’s benefit and which had been embarked upon with an expectation of confidentiality. The judge was entitled to take the view that there could be a proper and fair exploration of the issues remaining in the case without invading that confidentiality.

I would refuse the mother permission to appeal against Judge Wilding’s orders. I do not consider that the grounds of appeal can be said to have a real prospect of success. I appreciate that this might, at first sight, appear to be an odd conclusion to reach at the end of a long and detailed judgment, produced after hearing two days of argument and a prolonged study of the documents in the case thereafter. However, there are some cases, often those with large amounts of factual detail and copious contemporaneous documentation, in which a true evaluation of the merits of a proposed appeal can only be carried out after carefully combing through the material available. That is particularly so where the appeal is not a traditional review of a first instance judge’s findings of fact, but rather is at one further remove from the original findings of fact, focusing on whether the judge was wrong to refuse to re-open his original findings in the light of new material.

I agree.

I also agree.