GD & BD (Children) (Rev 1)

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:

The Claimants have set out their cases in separate Particulars of Claims. They seek the following declarations:

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:

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.)

In April 2014, the police in West Yorkshire, while conducting its enquiries within a nationwide operation (‘Operation Oakend’) into the downloading and distribution of child pornography, executed a search warrant at a family home in the Wakefield area. Two computers and a number of other electronic items were seized for forensic examination; those devices, it was revealed, contained nearly 5,000 indecent images and videos of children, including:

Some ten months later, on 25 February 2015, DS Hudson shared the information which the police had gathered with representatives of children’s services at Wakefield MDC. The social worker who attended the relevant strategy meeting noted that DS Hudson declared himself to be “90%” sure that the woman in the video was MD; he was later to say (same source) that he considered that the child in the still image was GD “to a 99% probability”. This evidence (involving the percentages) infiltrated other discussions, and were attributed to DS Hudson. DS Hudson was later to deny having used percentages as recorded, but having heard from SW1 and DS Hudson, I reject his denial; I am satisfied that this statement, and the percentages referred to, reflected his actual view of the probability of MD and GD being captured in the images, and that he expressed himself in this way. Later that afternoon, DS Hudson and SW1 (social worker) attended the family home; DS Hudson arrested MD and FD on suspicion of assaulting a girl under the age of 13, and of possession of multiple indecent images of children. The West Yorkshire Police exercised powers of protection and the children, GD and BD, were placed in foster care; on the following day, the Local Authority commenced care proceedings under Part IV of the Children Act 1989.

The children were to remain in foster care until 13 December 2015.

The chronology of events which followed is of significance in answering the question ‘who knew what and when’, and is therefore set out in reasonable detail.

On 27 February, the Local Authority applied for an Interim Care Order which was granted by HHJ Bartfield; the application was supported by the Children’s Guardian, and not opposed by the parents. On that date, DS Hudson informed the social workers that the police intended to conduct an interview with GD under the 2011 Achieving Best Evidence (“ABE”) Guidance, and that until that time, no contact should be facilitated between the children and their parents. (I interpolate here to observe that it was only on 25 June 2015 that DS Hudson confirmed that the police would not in fact conduct such an ABE interview, as GD had by then been excluded as Girl Y on facial mapping evidence; that did not however deter the Local Authority who conducted such an interview in September – see below).

On 27 February, the first of altogether nine discrete orders for disclosure were made against the West Yorkshire Police (other orders being made on 19 March, 7 April, 7 May, 11 June, 10 July, 21 August, 18 September, and 23 October 2015). The parties and the Court sought access to the material generated in the investigation.

On 6 March 2015, GD was medically examined by a police surgeon for the purposes of the police investigation; it was an intimate examination and revealed nothing of significance. This examination was arranged by DS Hudson and facilitated by the social worker. Regrettably, there had been insufficient co-ordination between the investigating and safeguarding authorities, and three days later GD was subjected to a further medical examination as a Looked After Child (see below, under ‘Lessons to be Learned’ at [131](xvii) below). The children at this time, it is acknowledged, were expressing very considerable distress at their separation from their parents and were requesting to see them; there had been no contact since 25 February 2015. On the same day (6 March), the police requested LGC Forensics (the international life sciences measurement and testing company) to undertake a facial mapping comparison of the footage/picture identified in [12](i)/(ii) above.

On 16 March 2015, an expert working on the parents’ electronic devices in the West Yorkshire Police imaging department located an image on the family computer which showed MD apparently in the act of destroying the hard disk drive of the computer; the photograph was dated 2009. (This photograph was later shown to have been taken on a Kodak camera, and is hereafter referred to in this judgment as the ‘Kodak photograph’). DS Hudson was told on or about 20 March 2015 of the existence of the photograph and the date recorded (2009) on the picture.

On 31 March 2015 Ms Jacqueline Pestell of LGC Forensics contacted DS Hudson, and gave him an oral report of the results of the facial mapping exercise; it is a little unclear precisely what was said. Ms Pestell maintains that she advised DS Hudson over the phone that MD could be “eliminated” as the woman in the video; this indeed was the account given by DS Hudson in his first statement in these proceedings. LGC’s internal note refers to the differences observed in the images, making them “unreconcilable” (sic). DS Hudson was advised in the same call that MD’s sister was a better match. In a later written statement in these proceedings DS Hudson doubted that the word ‘eliminated’ had in fact been used but confirmed that he was advised that the sister was a better suspect, and that in the circumstances there was little if any prospect of pursuing charges against MD. It is in fact formally conceded now that the police treated MD as being ‘eliminated’ from thisthe time (see Defence filed on behalf of West Yorkshire Police, and see Annex B [2] below)). Interestingly, in oral evidence, DS Hudson repeatedly used the word ‘eliminated’ to describe the effect of the information he had been given at this stage, and on the balance of probabilities I am satisfied that this is indeed what he was told by LGC.

On 2 April, DS Hudson informed SW2 (Team Manager of the Joint Investigation Team) that a better suspect than the mother had been identified; SW2 in turn described that development as “massive” when, later that day, she spoke with SW1, adding “it remains the very high possibility that [MD] has an image for (sic.: ‘of’) her daughter on her computer being abused by her sister”. At a court hearing convened on 7 April 2015, it is common ground that the West Yorkshire Police and the Local Authority informed the court that there was now a ‘better suspect’ than the mother, but neither (it appears) went so far as to say that the mother had been eliminated. The Local Authority of course did not know that this was the view of LGC Forensics.

On 7 May 2015, at the next court hearing listed before Moylan J, the Local Authority informed the court (per position statement) that facial mapping analysis “may have led” the police to believe that the images on the short video were not of the mother. West Yorkshire Police concede that by this time, the Local Authority were still not aware that the mother had been ‘eliminated’ on expert analysis, and nor was Moylan J when he made his further order for disclosure.

By 4 June 2015, LGC Forensics had also excluded MD’s sister as Woman X. West Yorkshire Police informed the Local Authority of this. However, when the social worker (SW1) spoke with an officer of the West Yorkshire Police on 8 June, she was advised that the police were still in some doubt about the evidence and could not confirm that no criminal charges would arise as a result of these images; on the following day, DS Hudson wrote to the social worker in these terms: “the results back from the Forensic Company has not been able to confirm the identity of [MD] or [her sister]” as Woman X (this phrase did not in my view faithfully reflect what DS Hudson had been told), adding that the mapping work in relation to GD/Girl Y had not yet concluded. MD recalls that at this point she was simply advised that the facial mapping exercise had proved “inconclusive”, not that she had been eliminated.

On 10 June, there was a major development in the police investigation. DFI, one of the experts in the Digital Forensic Department working on an unrelated investigation, located a video recording of approximately eight minutes’ duration, of which the short video of Woman X (which had been the focus of enquiry in this investigation, identified in [12](i) above) was clearly an extract; the longer (eight minute) video showed clearly the identities of those participating in the recorded activity, and revealed beyond question that MD was not Woman X. It was further clear (from incidental detail in the footage) that the video had been recorded in the United States of America, not in West Yorkshire. DFI e-mailed DS Hudson asking him to call, as he has “information about [Woman X]”. DS Hudson was (it is agreed) on leave on that day and it appears that he did not in fact make the call on that day; it is not clear when DS Hudson returned the telephone call to DFI, but I am satisfied (on DS Hudson’s own evidence) that it was not long after DS Hudson’s return from leave on 22 June. In that call, I find that DFI gave DS Hudson sufficient detail about the longer video for him to know that MD was definitively not Woman X. From that point on, he told me that it was “cast iron” that MD was exonerated and he was then fixed with this knowledge.

At a further court hearing on the following day (11 June 2015), counsel for the local authority, Mr Ian Shiels, reports (and I accept) that when the police representative was asked whether the facial mapping report (not yet disclosed) was required for interviews of the parents, the reply was “probably yes”; this is, as it now transpires, a surprising response given what is now known of the conclusions of the report. On 15 June 2015 the West Yorkshire Police received the written report from LGC Forensics which confirmed beyond question that MD was not Woman X. The report further confirmed that GD was not Girl Y, the child in the still image ([12](ii) above).

On 24 June 2015, on his return from leave, DS Hudson e-mailed the Local Authority social worker SW1 confirming that GD had been “eliminated” as Girl Y (the girl captured on the still image); DS Hudson confirmed that he told the social worker that the only active line of enquiry was in relation to the other images captured on the family computer. The contents of the LGC report were not shared with the mother for more than two more weeks (9 July) – see [27] below). On the following day (25 June), DS Hudson sent this important e-mail to the Local Authority solicitor, Ms McMullan:

“At this time there is no plan to interview [GD]. Even though the facial mapping has not identified [GD] I would still like to put the image [i.e. the still image] to the parents in interview should one of them id [identify] [GD] then she will need to be interviewed to see if she can recall the incident. I do not want this information giving (sic.) to the parents as stated I am looking to bring them in early next week.” (emphasis by underlining added).

On receipt of this e-mail, Ms McMullan, the Local Authority Solicitor, e-mailed the social work team manager as follows:

“…I’m not confident in what [DS Hudson] is saying is entirely accurate. It may be that they want to trick the parents in interview? I really don’t want to speculate …” (emphasis by underlining added).

On 9 July, the parents were interviewed by the West Yorkshire Police for the second time; both denied possession of the indecent images, and the mother denied recently destroying the computer hard-drive (per the Kodak photograph). As planned, the still image of Girl Y was put to the parents, who each in turn disputed that it was GD. Following the interview, the mother (MD) was eliminated from the investigation (a point which was confirmed in an e-mail of the same date to the social workers: “[MD] has now been eliminated from the investigation”), whereas the father (FD) was charged with six sample counts of making indecent images of children. On the same day, the West Yorkshire Police provided the 40-page and detailed LGC Forensic report to all parties; this confirmed that there was “no support” for the contention that MD was Woman X, nor that GD was Girl Y. The West Yorkshire Police further disclosed the image of MD allegedly destroying the computer hard drive. At court on the following day, Andrew Garthwaite, solicitor for the West Yorkshire Police recounted that “the Police position that the female in the video was not [MD] was clearly stated…”; he says that he spoke with Ian Shiels at court, who in turn indicated his wish to view the short video. This arose because Mr. Shiels detected some lack of confidence in the expert report among those who had commissioned it; Mr Garthwaite acknowledges that at that time he may well have said to Mr Shiels that he recognised the similarities between Woman X and MD and “couldn’t preclude the possibility that another facial mapping exercise might generate different findings”. Ms McMullan told me that Mr Shiels had reported to her an air of scepticism among the advocates about the reliability of the facial mapping report. In that regard, Mr Shiels followed up the discussions at court with an e-mail to Ms McMullan the following day in these terms:

“When I read the facial mapping experts report yesterday my thoughts were that this scuppered any case that the mother had been abusing a child or that [GD] had been abused… But I would like to think about it further…”

Mr. Shiels went on to describe the mother’s account of the dating of the Kodak photograph (i.e. that it was an old photo) as “plainly rubbish” (a view derived I believe from the fact that it had been assumed that all of the images on the computers had been captured when the computers were seized in 2014, and this one had only appeared since that time). His e-mail further alluded to the difference in standard of proof between the criminal and civil processes, and the need to look at the primary evidence and not be “led entirely by expert opinion, which need not necessarily be right”. He acknowledged that the conclusion of the LGC Forensics report was “a problem” but not “necessarily an insuperable one”.

On 10 July, at court, SW1 recorded that the parents told her that they were separating “out of necessity, not because they want to”, a view which they confirmed on 13 July at a social work home visit. This is relevant to the issue of continuing potential risk posed by the mother to the children, irrespective of her role as possible perpetrator.

On or about 14 July, Ms McMullan and Mr Garthwaite spoke by telephone. They plainly discussed the content of LGC Forensics facial mapping report, and the Local Authority’s willingness to consider a second expert opinion; the cost of obtaining such a report (c.£40k) was alluded to. Following this call, Mr Garthwaite sent an e-mail to DS Hudson (21 July) which included the following:

“I had a request from the local authority solicitor Annie McMullan last week as to whether or not you would be prepared for the local authority barrister, Ian Shiels, to be allowed to watch the indecent video(s) involving alleged mother and alleged [GD]? The reason for the request is that the local authority are keen to do all they can to secure the children in this case and are prepared to spend £40k+ in order to have the video analysed themselves to try and pin a case against the parents”. (emphasis by underlining added)

Mr Garthwaite apologised at this hearing for his choice of language in this e-mail; he could not be sure that Ms McMullan had not used the phrase ‘pin a case’, and in fairness, she could not rule out the possibility either, although thought it unlikely. Mr Garthwaite wished to emphasise that the language was not designed to give any indication that the Local Authority were in any way engaged in any impropriety by manufacturing a case against the parents.

On 23 July, DS Hudson replied to Mr. Garthwaite informing him that he was intending to view the second (longer) video which had been located by DFI, the Digital Forensic Investigator, and would be doing so “this morning” (records show that DFI had made a copy of it on 22 July in preparation). DS Hudson told me in evidence that he did not in fact go to the forensics laboratory to view it on that day on account of “operational commitments”, but only viewed the longer video a month later on 24 August. DS Hudson told the court in November 2015 that he believed he had viewed the longer video in or around June or soon after 23 July 2015. The evidence of DFI was that DS Hudson viewed the longer video “around” June/July, but at the latest “the first part of August”. Later, within the evidence filed in these proceedings, DFI went some way to confirming DS Hudson’s account that he did not view the longer video until 24 August (linking it with recalling having e-mailed him in relation to a ‘personal matter’), though acknowledged that he only “vaguely remembers” the events. It is not material to establish precisely when DS Hudson viewed the longer video; I cannot find on the evidence that he did in fact view it before 24 August. As I have said earlier (see [24] above), he was fixed with the knowledge of the mother’s certain innocence by the end of June 2015. On my reading of the e-mail traffic, this is the only e-mail passing between DS Hudson and Mr Garthwaite about the second (longer) video (see also [99] below). Mr. Garthwaite reports that he did not appreciate the significance of the second (longer) video at this time.

On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

On 29 July, Ms McMullan chased a response from Mr. Garthwaite by e-mail persisting in her request for disclosure; on 17 August Mr. Shiels chased again (also by e-mail) for the police’s disclosure. This disclosure was said to have been delivered by the police to the Local Authority on or about 20 August.

On 31 July, SW1 met with her team manager, and explained to her that she would be concerned about giving evidence in the case as she did not believe that MD was Woman X nor that GD was Girl Y; the expert evidence had, she thought, made this “abundantly clear”. To recap, the Local Authority knew of the conclusions of the LGC Forensics report by this stage, but not of the existence (let alone the significance) of the longer video. The note of the manager reflects inaccurately that “The woman [on the video] is believed to be mum (90% certainty following facial recognition)”; it is not clear to me whether that information had been incorrectly understood by the social work team or whether the note of the conversation is inaccurate. On that day the team manager wrote to the solicitor as follows:

“I am just in supervision with [SW1], having an update regarding this case. On consulting the attached schedule, we are not in agreement with the sections numbered 6 & 7. [SW1] is certain that the child in the images concerned is NOT [GD].Furthermore, she is doubtful that the adult female is mother. Consequently, it would not be appropriate to give evidence to state otherwise… I am aware that the police are not intending to conduct an ABE interview of [GD], so do we need to make a decision at this point as to whether we pursue our own by an ABE trained social worker?” (emphasis in capitals in the original: emphasis by underlining added. Note also that reference to “6 & 7” is an erroneous reference to paragraphs 7 and 8 of the schedule: see above).

Later that day, Ms McMullan telephoned the team manager to seek to reassure her that the Local Authority had proper grounds to proceed on the basis of the video and still image, given that the standard of proof was different in the family court and the criminal court. It appears that a conference was then arranged with counsel in order to discuss the social worker’s concerns. This took place on 13 August. Strangely, none of the notes of the conference record any conversation about the social worker’s concerns. Mr Shiels told me that he recalled no specific conversation about these concerns.

On 21 August, two important events occurred in the history of this case.

During the viewing of the short video at the conference, DS Hudson (and this much is agreed by Ms McMullan and Mr. Shiels), pointed out that Woman X was wearing an unusual blue watch, and informed them that this had not been found during the searches of the family home. Self-evidently it would not have been found in MD’s home, as MD was not Woman X, as DS Hudson well knew. The officer also pointed out that Woman X was wearing a ring on the same finger as MD – again, ostensibly establishing a link between the two, which he knew was merely coincidental.

At the conference, DS Hudson apparently described the superimposition process which had been conducted in or about February 2015, and confirmed that the montage (of Girl Y and GD) was still in the possession of the police. DS Hudson’s evidence to me was that by the end of the conference he believed that the Local Authority was proposing:

SW1 recalls no conversation about, or mention of, America during the conference, which, if she is right, suggests that any such mention may well have occurred before she arrived (which was later than the others), and indeed I so find. Ms McMullan now indicates that she regrets not writing to Mr Garthwaite after the conference to clarify the “throwaway remark” about the origin of the video, and specifically the reference to “America”. Significantly, she is clear that DS Hudson never mentioned then, or indeed at any time up to 18 November at court at the start of the final hearing, the existence of a second (longer) video. She believed that DS Hudson would obtain further information from DFI about the relevance of America, and revert to her. Ms McMullan maintains that had she known, or been advised, that the second video existed, that it originated in America and that MD was certainly not the woman in the short video: (a) the local authority would not have asked to view, let alone actually view, the short video, and (b) the course of the case would have been radically altered.

Mr Shiels shares Ms McMullan’s recollection that DS Hudson did not mention the existence of any other or longer video in the conference, and that he only mentioned, as a possibility, that the video which they had watched may have originated in America, though (says Mr. Shiels) DS Hudson did not appear clear about this and laid no great emphasis upon it. Mr Shiels believes that it would have been perfectly plain to DS Hudson from the discussion at the conference that the Local Authority was going to maintain its case (set out in the schedule – see [31] above) that MD was Woman X; accordingly, Mr. Shiels felt that the video was pivotal in being able to prove that fact, notwithstanding the expert report from LGC Forensics. Mr Shiels did not understand from DS Hudson’s comments that the video had actually been filmed in America (as in fact is proven to be the case) but wondered whether the reference to America was to a shared computer file with an American partner. He recalls the reference to the watch, and to DS Hudson confirming that the police search of the family home had not produced the item. At his request, all existing records relating to police searches of the family’s home was sought as disclosure, and were indeed disclosed. At the conclusion of the conference, Mr Shiels asked DS Hudson if he could prepare a witness statement for the CA 1989 proceedings. Mr. Shiels describes the “focus” of the meeting as:

“… assessing the strength of the local authority’s case and therefore the focus was on obtaining from DS Hudson information which would or could support and strengthen that case.”.

I underline the passage in the quote above to highlight that it appears that the “focus” was not on collating relevant evidence which went either way.

Having heard the various accounts of the conference on 21 August, I find that at the conference:

On 24 August, the father (FD) pleaded guilty to a number of charges of downloading indecent images of children. He was later (30 November) sentenced to a term of imprisonment. It was probably on the 24 August that DS Hudson actually viewed the second (longer) video.

On 27 August, DS Hudson informed the West Yorkshire Police solicitor, Mr. Garthwaite, that all relevant information arising from the investigation into the offences alleged against these parents had been disclosed. This, I find, was not correct; quite apart from anything else, the second (longer) video, which DS Hudson had seen only three days earlier, had not been disclosed. On 8 September, DS Hudson met with SW1 and her team manager in order to discuss the conduct of a proposed ABE interview with GD. Following that meeting, SW1 wrote to Ms McMullan who in turn wrote to Mr Shiels asking for his advice on the ABE interview; specifically, she wanted to know whether SW1 could show GD picture stills of herself alongside a pixelated photograph of the abused child (Girl Y) who was thought to be GD (reference [12(ii)] above). Ms McMullan was explicit about the purpose of this exercise:

“the hope from this is to talk to [GD] about can she remember when each of the photos were taken to see if she identifies the child as herself…” (sic.).

On the following day, 9 September, the mother’s solicitors wrote to the Local Authority asking for confirmation that all relevant material had been disclosed into the CA 1989 proceedings, and specifically whether the Local Authority had any other relevant information about the police evidence which would assist the mother’s legal team in preparing their client’s case. The mother’s solicitor indicated her intention to make an application for permission to instruct an expert to assist with the dating of the Kodak photograph. This request was forwarded to Mr Shiels. It is a matter of record that no response was ever received to this e-mail request.

On 10 September, Mr Shiels wrote to Ms McMullan chasing the witness statement from DS Hudson (see [38] above). Mr Shiels identified a number of specific points which he wished DS Hudson to cover in the statement: namely, that Woman X was wearing a ring on the same finger of her right hand as MD; the unusual feature of the face of the abuser being seen on the video; the fact that the house was cleaned out in both police searches, and that the photo of the mother destroying computer discs can only have been taken or stored between 2014 and 2015; the particular hair style of the child (i.e. similar to GD) . It is to be noted that there is no recorded request for a general statement about the investigation, nor for any evidence which pointed away from the mother’s culpability, nor was there reference to the fact that the watch seen on the video was not found in the house. Mr Shiels told me that he was not purporting to advise on the overall content of the statement, and was not advising that anything should be omitted, but simply giving pointers as to what should be included. Ms McMullan conveyed the request to DS Hudson. When a short first draft of this statement was later produced, it was returned to DS Hudson by Ms McMullan with a request that further identified information be included; Ms McMullan drafted two suggested paragraphs for DS Hudson to consider (“only of course if completely agreed by you”). Ms McMullan’s draft included the statement that the still image of Girl Y “bore a striking resemblance to the daughter of [MD]”. He incorporated those paragraphs and signed the statement. In its completed form, the written evidence from DS Hudson, the Officer in the Case, extended to no more than one-half of a side of A4, reflecting only those matters on which he had been specifically asked to comment and no more. DS Hudson acknowledged that this was of course by no means a full account of the police investigation or of the evidence which been obtained; he said that he did not appreciate at that time that his statement would be used by the Local Authority to seek a finding that MD was Woman X and if that had been made known to him, he would have insisted on making the police view clear. Notably of course the statement is silent on the fact that, on any view, DS Hudson had viewed the longer video by then, and had certain and first-hand knowledge that MD was not Woman X. He accepted that in providing such a limited statement he afforded the opportunity for the Local Authority case to be progressed in the way that it was.

On 11 September, Ms McMullan wrote again to Mr Shiels asking for his advice on the form and content of the ABE interview. Mr. Shiels replied later the same day. He rightly in my view indicated that it was right for the ABE–trained interviewers to make decisions about the interview; however, he professed himself “not so sure” that GD should be asked to confirm that the pixelated photograph was of her, but considered that general questions about her clothing, whether she had ever had a photograph of that nature taken of herself, and whether she had ever seen photographs like that would be permissible.

On 15 September, the solicitor for the mother notified Mr. Garthwaite by e-mail that it was her intention to apply to the court for permission to instruct an expert to date the Kodak photograph; she also indicated her intention to ask the court for permission to view the short video.

On 17 September, an e-mail ‘conversation’ took place between Mr Garthwaite, DS Hudson and DFI. Mr Garthwaite had passed on the request by the mother’s legal team to view the short video; DFI raised a concern about this to his colleagues, saying:

“We’d established from another recent case of mine that it’s neither [MD] nor [GD] in the video - albeit that the female in the video does have a resemblance to [MD]. We’d technically be showing them an indecent video, of which all parties would need to be aware of and its content…”

DS Hudson asked for legal advice about the position from Mr Garthwaite who told me at this hearing that he did not appreciate until 19 November the relevance of the second (longer) video. On the basis that an order would be sought by the parties for permission to view the video, and that disclaimers would be sought, arrangements were made for the mother and her legal team to view the short video. The mother and her legal team viewed the video on 12 October. There later followed a request by the Children’s Guardian to view the video; this provoked an e-mail from DS Hudson to Mr Garthwaite:

“I’m really not happy with this, we have shown the video to [MD] and her counsel… as discussed and arranged. Now we are being asked to show this video to [GD]’s solicitor and her Guardian; we are being asked to show a Level B Child Abuse video to her Guardian. Why? What protection is in place should her Guardian react in a negative way to this abuse video? It was agreed to show the video to [MD] and her counsel on the basis that counsel has dealt with these issues in the past and [MD] had seen the video in interview. Please confirm that the police and officers involved will have no repercussions in this matter.”

Mr Garthwaite sought to offer reassurance to DS Hudson.

On the same day (17 September), DFI, responding to an internal request for information arising from the mother’s solicitor’s request (above), confirmed to DS Hudson and Mr. Garthwaite that the Kodak photograph was dated 11/03/2009, and that the date would have been recorded as per the device settings on the camera, so (in the view of the police) would be inherently unreliable. Although the images were shown as being created on the computer systems in late 2014, they in fact had a modified date of 24/07/11. This information was not supplied to the Local Authority or to the parties, not even when, on the following day the mother formally sought and obtained permission to instruct her own expert to advise on the creation and dating of the Kodak photograph. Later on the same day, DFI confirmed by e-mail to DS Hudson and Mr Garthwaite that the short video (which the mother’s solicitor had requested to see) did not show either MD nor GD, “albeit that the female in the video does have a resemblance to MD”. DS Hudson commented, in a separate e-mail on the same day, that “what we have is footage of a sex act with a woman who has a remarkable likeness to [MD] … looks like [FD] has found the perfect likeness of his partner”.

Also on the same day, 17 September, SW1 and a colleague undertook the ABE interview of GD. SW1 had no training or experience in ABE interviewing; her colleague had been trained but had never undertaken such an interview. The interview is in my judgment (I have read the transcript) correspondingly clumsy and awkward; the questions are contrived and stilted, perhaps in part due to the fact that SW1, the untrained interviewer, took the lead in asking the majority of the questions. GD was shown photographs and asked where they came from; she was told that they were the photographs from a family photo album. She said that she did not remember any of the photos, but later recalls some (but not the photo which was not of her). SW1 later told HHJ Anderson that she did not think it had been appropriate to show the photograph of Girl Y to GD, but she had been advised she had to do it; she accepts that she told GD that the photo was from a “family album” and although this was not true, she did not intend it to be misleading. This was also the gist of her evidence before me. I deal with the ABE interview more fully later.

Finally, on 17 September, a further meeting took place between DS Hudson, Ms McMullan and Mr Shiels, the purpose of which was for DS Hudson to show the Local Authority legal team the superimposition montage of photographs of GD created earlier in the year. In view of the clearly worded report from LGC Forensics, I was left wondering why this exercise was considered to be useful. Mr Shiels considered the montage to have probative value in identifying GD as Girl Y (“potentially good supporting evidence”), and requested that it be disclosed to the other parties to the proceedings; Mr Shiels indicated that he wished to use it to challenge the evidence of LGC Forensics. Ms McMullan did not share Mr Shiels’ view of the value of this piece of evidence; she accepted that she was asked by Mr. Shiels to disclose the montage but accepts that she did not do so, having “overlooked” the request. She concedes that this was her fault and accepted responsibility for the delay in disclosing this evidence to the other parties. I do not find that the failure to disclose the montage was deliberate. It was, I accept, an oversight.

On 29 September, DFI repeated his concern in writing, to Mr. Garthwaite, about showing the parties “an indecent video in which we now know does not contain [MD]”. No action was taken; Mr Garthwaite told me that this e-mail arrived while he was on leave. He says that he had no recollection of reading this e-mail at any time before November 2015.

On 8 October, SW1 filed her final parenting assessment report on MD with the court. It is a lengthy document extending to over 50 pages. I learned a little of the evolution of the report at the hearing. It passed through at least two editorial hands (the team manager and the Local Authority lawyer) before being filed. Ms McMullan was the final editor and included in the report a number of new sentences. She said that she asked SW1 to check the statement before signing it, having earlier “knocked [it] around a bit”; SW1 told me that she did not check it carefully and only after its filing did she read it thoroughly, and then realised that words had been added with which she was not comfortable, importing views which she did not hold.

On 21 October there was an advocates meeting, following which Mr Shiels sent an e-mail to Ms McMullan asking for questions to be put to DS Hudson, namely whether DFI could produce the evidence as to the provenance and date of the Kodak photograph, and whether he could provide any evidence as to how the video allegedly involving MD and the image allegedly of GD originated. These were important requests, which had been made before (9.9.2015). Ms McMullan passed on Mr Shiels’s request to the police on the following day; Mr. Garthwaite sent a holding reply. On 23 October, at the IRH, HHJ Anderson made a further order for disclosure against West Yorkshire Police requiring them to produce any further evidence as to the origin and dates of the short video, the still image of Girl Y, and the hard disk photo. Ms McMullan chased the request for disclosure on 9 November; DS Hudson replied indicating that “there is no further evidence to submit”. He now explains that he thought that Mr. Garthwaite had disclosed all of the relevant material by that time. This remark illustrates, in my finding, a lack of co-ordination within the West Yorkshire Police in relation to the lines of responsibility for disclosure issues. Ms McMullan forwarded the information to the solicitors for the parties.

On 10 November, Ms McMullan wrote to Mr Shiels: “do you remember [DS Hudson] saying something about the possibility that the video came from America? Don’t know where we can go with this.”. I do not believe that Mr. Shiels replied to this e-mail.

On 12 November, Mr Shiels circulated a written Opening Note for the final hearing; it is a polished and detailed document. The Note, however, does not refer to the possible American origin of the video (about which Mr. Shiels had been reminded only two days earlier) nor the search in vain of the mother’s home for the watch seen on the video. These were material omissions. The Note referred to the superimposition montage. Mr. Shiels plainly mistakenly believed that this had been disclosed by his solicitor, but it had not been (see above: [48] above). Indeed, no other party was aware of its existence. The Local Authority asserted in this note that there was no “significant difference at all” between the image of the mother and the image of Woman X, and that “viewing the videotape suggests to the local authority that there is a very strong resemblance between the female in the video and the mother”. It refers to the evidence of the expert from LGC Forensics as “questionable”, and GD being “defensive” in her ABE interview.

On 13 November, Ms McMullan wrote to DS Hudson and DFI detailing some of the practicalities for the hearing. The e-mail concluded:

“I’m afraid the video of the woman we allege to be [MD] will need to be played in the court room by [DS Hudson]”.

The reply to this e-mail from DFI (on the same day) did not raise any question about the viewing of the video, or the case which was being advanced; this may be surprising given that it was the evidence of DS Hudson and DFI that it was only on their arrival at court five days later that they discovered the nature of the Local Authority’s case about the video.

On 16 November, Ms McMullan served the superimposition montage on the other parties, again confirming that the failure to do so earlier had been due to an oversight.

The final hearing began before HHJ Anderson on 17 November; no evidence was called on the first day. Following discussions between the advocates, Mr. Shiels drafted questions for LGC Forensics to answer about the superimposition montage, namely (a) whether it had been seen before and (b) whether it caused the expert to alter her analysis. As I discuss later, I find that these questions could and indeed should have been asked much earlier. On 18 November, DS Hudson and DFI attended at court to give evidence. It appears that in the pre-hearing conference outside court, DFI informed Mr Shiels of information he had known since 10 June 2015, namely that the short video had originated in America, and was an extract of a longer video. Mr. Shiels’ account from his witness statement repays rehearsing in full:

“I was not told that there was any other version of the video, or a “longer” video … I was very surprised to be told that the origin was clearly in America, rather than merely a possibility. I then asked if they were saying that the woman in the video was in fact probably not [MD]. [DFI] said this was so. I cannot recall if DS Hudson contributed anything to this. If he did, he did not say much. He did not dissent from what [DFI] told me. I immediately communicated this information to the other advocates and then to the court, withdrawing the Local Authority’s case that the mother was the woman in the video…. At no time prior to the 18 November had I been told of the longer video, the origin clearly being in America, and the certainty that the woman was not the mother. If I had known this at an earlier stage, I would immediately have taken the same action that I took at court and withdrawn that allegation against the mother.”

Ms McMullan’s evidence is that she had a conversation with DS Hudson; she says that she told the officer that she did not know that the video had originated in America, to which DS Hudson replied that he thought that Mr Garthwaite had told them.

On 19 November, the expert from LGC Forensics (Ms Jacqueline Pestell) gave evidence; she warned the court about the reliability of the superimposition montage. After her evidence, the Local Authority withdrew the case that the case that GD was Girl Y on the basis that it was “now too weak to sustain”. Following this, Mr. Shiels explained the position to the judge in this way:

“Given Ms Pestell’s evidence and in particular her evidence with respect to the superimposition material, the local authority has no expert evidence with which to contest the critical view that she had of that, not only as an aid to understanding resemblance but also as something potentially misleading…”

Of course, the Local Authority never had any expert evidence to counter the LGC Forensics facial mapping report. In my judgment the superimposition montage did not fit the description of ‘expert evidence’. It may be revealing that Mr Shiels described the superimposition montage in this way. I return to this later (see [113(ii)/(iii)] below).

On 20 November 2015 DS Hudson concluded his evidence, which had been taken over three days, having been questioned by all of the advocates about his pivotal role in the investigation and his account of who knew what and when. At the conclusion of the second day, Mr. Shiels had invited the judge to allow the officer to be treated as a hostile witness; it was increasingly apparent that DS Hudson directly contradicted Mr. Shiels’ personal recollection of events, and was casting blame for the lack of disclosure on others. When the hearing resumed on 23 November, Mr. Shiels indicated his intention to withdraw from the case. He explained his position to HHJ Anderson thus:

“I have reflected upon my position as advocate for the Local Authority and taken into account any potential conflict between my duty to present the Local Authority’s case as it ought to be presented and my interesting reflections upon my own professional standing. The way in which DS Hudson gave his evidence created a conflict between those two matters, and it also raises implications which I have thought through and taken consultation on with a senior colleague as of the further presentation of the Local Authority’s case and, in particular, the social worker’s evidence… The Local Authority must be represented by someone who does not face that particular conflict.”

Substitute counsel was instructed and two days later, the Local Authority indicated to the court its intention to undertake a “wholesale amendment” of its threshold Schedule of Facts. On the same day it confirmed its plan for the children to be returned home to the mother’s care, a position endorsed by the Children’s Guardian. The children returned home on 13 December 2015.

As indicated above, applications under the Human Rights Act 1998 were filed on 10 December 2015 on behalf of the children and on 18 December by the mother. On 13 January 2016, HHJ Anderson joined the West Yorkshire Police as an intervener in the proceedings. The Local Authority filed a Defence on 15 February 2016, making no concession as to the breaches of the Claimants’ Convention Rights, and minimal acknowledgement of the essence of the Claimants’ cases. The Human Rights Act 1998 claim was then transferred for hearing by me, while the care proceedings remained in abeyance. On 26 February 2016, I gave case management directions and identified the four principal questions for the court to consider in determining the applications (see above [9]). I made provision for Mr Shiels, Ms McMullan, DS Hudson, and Mr Garthwaite to apply for intervener status in the proceedings should they so wish, and set down the applications for trial. On 8 March, Mr Shiels indicated his intention to seek intervener status. The West Yorkshire Police filed a robust defence on 4 April 2016; it averred that it had in the main complied with its duty of disclosure, challenged the proposition that any failures had caused any material impact on the proceedings, and disputed that it had been responsible for any breach of Convention Rights of the Claimants, or that the Claimants were entitled to declarations or damages.

On 28 June a settlement meeting took place following which the Local Authority confirmed it would circulate formal concessions. It did so. West Yorkshire Police followed suit. Further concessions documents followed thereafter. In light of the concessions, at a hearing on 20 July 2016, I was invited to direct that there should be no full hearing into the events surrounding these proceedings; I rejected that submission, as I was of the view that the issues that remain outstanding between the parties are matters which involve legitimate enquiry both to the parties in this case, and being of wider importance the other cases.

The history recorded above, and the findings and conclusions set out below, all occur within a context of individual and departmental professional pressure; I have borne in mind the following features of the background:

Professional case-loads: I am extremely conscious of the demands on professionals dealing with complex cases such as this. The pressures of work are incrementally greater and greater year on year in this field; the volumes of public law cases continue to rise to near-crisis levels at present. Baker J alluded to this in Kent CC v. A Mother and Others [2011] EWHC 402 at paras [153-158], and I set out what he said at [156] as I entirely associate myself with the contents, noting that the situation has probably become worse in the intervening five years since he made these points:

“I fully appreciate the pressures on all those who work for local authorities, including social workers and lawyers, as a result of apparently ever-increasing regulation coupled with apparently ever-reducing resources.  The courts must be careful not to impose too onerous a burden on those acting for local authorities, and other parties, lest it becomes simply impossible for them to do their job.  Nonetheless, it seems to me that the rationale behind Charles J's approach is irrefutable.  It is only the local authority lawyer who is professionally equipped to understand the issues before the court, and the principles and processes of disclosure.  In each case, the local authority lawyer must, at an early stage, weigh up the task which confronts him to determine how to fulfil the local authority's legal obligations as to disclosure.  Put simply, he needs to know where the information is stored, whether it be on paper or electronically, and the type and volume of information involved.  Once he or she has carried out that analysis, a plan needs to be drawn up to enable the local authority to comply with its obligations”.

The gravity of the offending: This family’s home rightly became the focus of police and social services investigation in 2014/2015. It is not in dispute that a substantial quantity (c.5,000) of indecent images of children were located on the family’s computers; some were classified at the most serious level. FD pleaded guilty to offences in relation to the same, and was sentenced to a term of imprisonment. It is not forcefully argued that, on the material available, the Local Authority was not justified in instituting proceedings in February 2015, and removing the two children into foster care, on the basis of the information which was then available. I note that the Children’s Guardian supported the removal of the children and their continued placement in foster care in March 2015.

The father’s offending was the main risk factor justifying removal of the children; indeed the mother formally responded to the Schedule of Findings prepared by the Local Authority specifically accepting that:

The mother is right to acknowledge that it is the father who is ultimately responsible for what has happened to the family and that she too must bear some of the blame:

“…if he had not downloaded the images then none of this would have happened. I also acknowledge that it took me some time to believe that he had downloaded the indecent images and that I remained with him, naïvely believing that there was some other explanation”.

She explains that it was a “process” rather than an instant decision to separate from him. Mr. Hayes QC conceded at the IRH that “the mother for a time maintained a relationship with the father and believed his, it turns out, untrue explanation that he had not been downloading images”. The father himself expresses his guilt for the “catastrophic” consequences of his actions for his family.

Duties arising in joint investigation: The respondent public authorities were, and are, under duties to co-operate with each other and safeguard children. This obligation derives principally from statute. Part 2 of the Children Act 2004 sets outa statutory framework for co-operation between local authorities, key partner agencies (‘relevant partners’) and other relevant bodies (‘other bodies or persons’), including the voluntary and community sector, in order to improve the well-being of children in the area. The duty to make these arrangements is placed on the local authority and a duty to co-operate with the local authority is placed on the relevant partners. Section 10 provides the general duty, which is followed by the more specific duty in Section 11 which provides at Section 11(2):

“(2)

Each person and body to whom this section applies must make arrangements for ensuring that–

(a)

their functions are discharged having regard to the need to safeguard and promote the welfare of children; and

(b)

any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.”

Insofar as this provision applies to co-working between the local authority and the police, it was described in R. (on the application of BG) v Chief Constable of the West Midlands [2014] EWHC 4374 (Admin) (Fulford LJ, Nicol J) in this way (at [51]):

“The fundamental obligation to safeguard and promote the welfare of children contained in section 11 is a critical responsibility that is imposed on certain public bodies (including the police and local authorities). It incorporates within our domestic law the essence of the United Kingdom’s international obligations towards children in these circumstances, particularly as set out in Article 3 of the United Nations Convention on the Rights of the Child. Section 11 makes the best interests of the child a primary consideration, given the police must ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children”. (emphasis by underlining added).

(Article 3 of the UNCRC provides that “When adults make decisions, they should think about how their decisions will affect children”). These statutory duties are buttressed by the well-known Guidance ‘Working Together to Safeguard Children’ (March 2015), and include the requirement for each authority, body and/or organisation to collaborate effectively, to be aware of the role which each has to play, and to understand the role of other professionals. There is an emphasis on clear local arrangements for collaboration between professionals and agencies. This guidance is published under section 7 LASSA 1970 and therefore imposes a requirement on the authorities involved to comply. This is of course essential reading for all practitioners.

Working Together emphasises the importance of all organisations having arrangements in place which set out clearly the processes and the principles for sharing information between each other, with other professionals (and indeed with the LSCB) (§1/23). If these processes existed here, they were not obvious. Moreover, the Guidance makes clear that in joint investigations the police often holds important information about children who may be suffering, or likely to suffer, significant harm, as well as those who cause such harm. The Guidance is explicit that the police “should always share this information with other organisations where this is necessary to protect children. Similarly, they can expect other organisations to share information to enable the police to carry out their duties” (§2/20). This general expectation must of course be tempered by the demands of privilege and possible prejudice to the investigation; but in my judgment in this case concerning this family the ‘default’ position appears to have been set against rather than in favour of the responsibility to disclose.

The Government-published Guidance: “Information sharing: Advice for practitioners providing safeguarding services to children, young people, parents and carers” (March 2015) contains further essential advice and information. It rightly identifies that:

“Information sharing is vital to safeguarding and promoting the welfare of children and young people. A key factor identified in many serious case reviews (SCRs) has been a failure by practitioners to record information, to share it, to understand its significance and then take appropriate action”.

It reflects a message which resonates with these facts:

“Sharing information is an intrinsic part of any frontline practitioners’ job when working with children and young people. The decisions about how much information to share, with whom and when, can have a profound impact on individuals’ lives.” (p.5).

There is a recognised need for information shared to be accurate

“Information should be accurate and up to date and should clearly distinguish between fact and opinion. If the information is historical then this should be explained”, and delivered in a timely way.

The recording of the sharing of information – so lacking in the instant case – is also emphasised:

“Information sharing decisions should be recorded whether or not the decision is taken to share. If the decision is to share, reasons should be cited including what information has been shared and with whom, in line with organisational procedures.” (emphasis by underlining in the above quotations added).

Of the seven ‘Golden Rules’ promulgated by the Guidance in relation to information sharing, two are of particular relevance (notable, I may add, for the fact that they were not observed) here:

“(6)

Necessary, proportionate, relevant, adequate, accurate, timely and secure: Ensure that the information you share is necessary for the purpose for which you are sharing it, is shared only with those individuals who need to have it, is accurate and up-to-date, is shared in a timely fashion, and is shared securely.

(7)

Keep a record of your decision and the reasons for it – whether it is to share information or not. If you decide to share, then record what you have shared, with whom and for what purpose.” (emphasis added)

These are more fully discussed in the section below under ‘Lessons to be Learned’.

In my judgment, this Local Authority has rightly conceded that it unlawfully interfered with the Article 6 and Article 8 rights of the Claimants in a number of material respects. The Local Authority was not swift in acknowledging its faults; the Defence filed in February 2016 makes minimal concessions. However, I have noted and recorded the concessions which are now made, and insofar as is necessary deal with the particulars in the paragraphs which follow.

Suspension of contact: For a period of time, all contact between the children and their parents was suspended, and when restored, it was heavily circumscribed. The temporary but total severance of the relationship between the children and their parents was a serious step at the point at which the children were removed from their parents’ care; while there may have been sound reasons for this initially, while the police investigation was at an early stage, the Local Authority is right to concede that it should have done more to test the necessity of this suspension continuing for more than a day or so. The CA 1989 imposes duties on them which were not observed (see section 34(1) and section 22(4) CA 1989; there was limited facility to the authority to refuse contact and only for a time-limited period (7 days) where “they [were] satisfied that it is necessary to do so in order to safeguard or promote the child's welfare” (section 34(6))). The police were in my judgment slow-paced in deciding whether to conduct ABE interviews of the children, before deciding not to do so. The Local Authority should have been proactive in testing the police’s decision-making at an earlier stage.

Disclosure: There were, regrettably, repeated failures on behalf of both public authorities to effect disclosure of relevant documents and information in this case. It is well known that it is the duty of the parties and their legal advisers to give full and frank disclosure of all relevant material unless one of the well-established principles of privilege or public interest immunity apply. It is incumbent on a Local Authority to present its case properly, fairly and with due regard to the principles of Article 6 of the ECHR.

My view is that the failures of disclosure in this case largely derive from the conduct of the West Yorkshire Police (see below). However, I am satisfied that the Local Authority solicitor, Ms McMullan failed:

I find that the failure to make prompt and/or complete disclosure materially compromised the ability of the legal teams for the Claimants to prepare their cases. It seems to me that if a more conscientious approach had been taken and had disclosure been made in a timely and appropriate way, the Claimants' solicitors would have been able to press for the Local Authority to re-evaluate its case, potentially by restoring the matter before the court for early determination of the appropriateness of continued interim care orders.

Evidence: The Local Authority was under a duty to place clear and impartial/balanced evidence before the Court. Two witness statements fell under scrutiny in this hearing: those of DS Hudson and SW1. The preparation of the witness statement of DS Hudson was wholly unbecoming of a serious investigation such as this, fell well below ordinary standards of professionalism in its compilation, and the end result was a document which was neither fair nor balanced. There is no or no material evidence that either Ms McMullan or Mr Shiels really addressed themselves to that issue. The Local Authority cannot escape the fact that the written request of DS Hudson to provide only evidence in his statement which was incriminating of the mother caused his contribution to be distorted and partial. I understand and accept that Mr Shiels had addressed his mind only to reminding Ms McMullan of certain matters which ought to be included in the statement, and that his e-mail was

“… intended simply to be a helpful reminder to my instructing solicitor that DS Hudson should include those particular matters when preparing his statement. I was not advising or purporting to advise on the overall content of the statement and I did not advise that anything should be omitted.”

But, as I say, the predictable consequence was that the statement was neither comprehensive nor was it fair to the mother (and children). This materially contributed to the biased picture created by the public authorities, which reinforced and aggravated their other failings. It does not require me to spell out to these experienced lawyers what the statement of DS Hudson should have looked like. Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 at p.772 commented on the importance of:

“… a proper discussion with the relevant witnesses to ensure, so far as possible, that their statements contain a full and proper account of the relevant matters, which include the central matters seen or heard by that witness, the sources of hearsay being recorded by that witness, and the relevant background to and the circumstances in which the matters set out took place; and … a proper consideration of what further information or material should be obtained.”

Late-inserted amendments to the Parenting Risk Assessment of SW1 (2.10.15) were targeted towards implicating the mother; these minor amendments were nonetheless significant and should have been discussed with SW1 (at least specifically drawn to her attention), so that she was aware of what she was signing. SW1 asserted in the final version of her statement that that she agreed with the police view which had been initially expressed (in February 2015) that MD was the woman in the video, and that GD was Girl Y. Of course SW1 had in fact expressed misgivings about this view in July. There was no mention in this statement of the US origin of the video (though, in fairness, SW1 may not have known this fact at the time of signing her statement, though Ms McMullan did know), or of the fact that the police had searched the family home and found no evidence of the watch visible on the video.

Expert evidence: the facial mapping report: Facial mapping is a relatively new – certainly a developing – technique and expertise; it is only reasonably recently that computer software and photographic technology has created more advanced techniques to enable two separate images to be enhanced and aligned in order better to make a comparison. It is now well-established that while an expert in this field will be able to demonstrate similarities (or differences) between a photograph of the alleged perpetrator of crime and a disputed photograph generated in the commission of crime (i.e. CCTV or video footage, or still shot), an expert cannot express an opinion upon the probability that the suspect image is an alleged perpetrator, because there exists no database against which the probability can be measured.

On 9 July, the facial mapping report of LGC Forensics was disclosed to the Local Authority (see [27] above). It is a detailed and thorough report extending to over 40 pages, prepared by experts of apparent distinction in the field. The conclusion of the report was that the imagery evidence lends “no support” to the contention that Woman X and the mother is the same person and reaches the same conclusion (i.e. “no support”) in relation to Girl Y and GD. I have studied the material filed in this case for evidence that this report was properly evaluated by Ms McMullan. I find no such evidence. The value of the report was commented on by Mr. Shiels who says this:

“My view at the time – I expressed to Ms McMullan and the social worker in an e-mail dated 11 July – was that the conclusions of the facial mapping expert (at first appearance negative to the local authority’s case against the mother) needed to be assessed in the light of all the other evidence before the local authority took a view with regards to it and that in order to advise further I needed to view the video allegedly of the mother, which was part of the evidence in the case. This was something which was required to be done to ascertain the strength of the case overall and to decide whether or not to challenge the facial mapping evidence. At this time the local authority wished still to maintain the case against the mother.” (emphasis by underlining)

Of the “other evidence” (see quote) which the Local Authority was considering in its review of the ‘wider canvas’ were (a) the mother’s ‘cosmetic’ separation from the father, (b) the resemblance of GD to Girl Y, (c) the mother’s apparent destruction of computer equipment, (d) some sexualised behaviour of the children in the foster home, and (e) the inherent improbability that the mother would have been unaware that the father was collecting large quantities of indecent images of children on the family computer. Mr. Shiels later in his evidence said this:

“It was my intention to ask [the author of the report from LGC Forensics] to consider [the montage] in cross-examination as evidence which contradicted the facial mapping analysis she had produced with respect to [GD]”.

Of course, I accept that no family case is a trial by expert; it is the judge who is in the position to weigh expert evidence against his/her findings on the other evidence (see A Local Authority v K, D and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at [39](ii)); the expert advises, but the judge decides (Re B (Care: Expert Witnesses) [1996] 1 FLR 667 (at 670C–E) Ward LJ). The Local Authority legal team has a responsibility to review all of the available evidence, and present a case which draws on a range of lay and expert evidence. Ultimately it is a matter for the judge to decide what weight should be given to the expertise put before the court. In this sense, I am not critical of the Local Authority stance.

Moreover, Mr. Shiels and the Local Authority were entitled to proceed on the basis that this process involves, to some considerable extent, a subjective evaluation. They were also entitled to proceed (if they had turned their minds to it, of which there is no obvious evidence that they had) that facial mapping has not attracted strong support in the criminal courts; in this hearing I was referred to R v Gray [2013] EWCA Crim 1001 (per Mitting J) and R v Atkins & another [2009] EWCA Crim 1876, where Hughes LJ (as he then was) described the caution with which any expression of conclusion in relation to evidence of this kind needs to be approached. However, he says:

“An expert who spent years studying this kind of comparison can properly form a judgement as to the significance of what he has found in any particular case. It is a judgement based on his experience.”

However, the expert facial mapping exercise in this case served to ‘eliminate’ the mother; even the initial conclusions (revealing “no support” for the identification) were unambiguous. The Local Authority – Ms McMullan, SW1 (albeit reluctantly) and Mr. Shiels – considered that it could proceed to seek a finding in spite of this expert view, relying on their own ‘lay’ assessment of the visual appearance of MD and GD. This was not an objectively sound approach. The Local Authority had nothing with which to challenge the expertise. The superimposition montage was not expert evidence. At the very least, it would have been better practice for Mr. Shiels to ask questions of the expert pursuant to the provisions of Rule 25.10 and PD25 FPR 2010 well prior to the hearing and, of course, to send her the superimposition montage (a step which was only taken on the first day of the hearing on 17.11.15). Had this rudimentary step been taken this may well have revealed the strength of expert view from Ms Pestell (subsequently revealed in the witness box), namely that this evidence was potentially “misleading”; moreover, of course if he had done so, or attempted to do so, the fact that Ms McMullan had not disclosed the superimposition montage evidence to the other parties in September would have been revealed.

ABE interview: ABE interviews should always be conducted with reference to the March 2011 Guidance: “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures”. Although this guidance is advisory, and is not a legally enforceable code of conduct, as the Guide makes clear “practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts” (see §1.1). This is not the place for a detailed examination of the guidance, but it is essential reading for any professional conducting such an interview, and for those engaged in the preparation of a case which depends upon interview. It was not followed either explicitly in the work undertaken by SW1 and her colleague on 17 September 2015; the Local Authority properly concede the consequent breaches of the Claimants’ Article 6 and Article 8 rights in this regard (see Annex A[1](e)/[2](c)).

In this case, I question why an interview in the ABE format was taking place at all in September 2015, some seven months after the children were received into care; SW1 believed that GD “needed to tell her story”, but what story was it that she “needed” (or was being invited) to tell? Insofar as it was appropriate at all, it was not properly prepared, and the questions asked of GD reveal that the interviewers were at sea; it is to be noted that “[a] well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.” (§2.1). It is clear that there was minimal planning. Recent judicial commentary on ABE interviews is to be found in the Court of Appeal’s decision in Re E [2016] EWCA Civ 473 at [24]-[45], which in turn endorses in large measure what Sir Nicholas Wall P had said in the case of TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597; the following observations are relevant to the facts of this case:

The Local Authority is right to concede the inappropriateness of the ABE interview being conducted by inexperienced social workers, contrary to judicial and other guidance. It is further right for the Local Authority to concede that the photograph of Girl Y should never have been shown to GD. SW1 was wrong to mislead GD that the photographs were all from a “family album”; that was manifestly not so in relation to one of the pictures. One of the lowest points of this blighted history was the act of showing GD an edited version of an illegal download of a child abuse victim lying on her back with her legs apart exposing her genital area (albeit pixelated) under an entirely false pretext that the interviewers believed it was her and that the photograph had been located in a family album. I agree with the mother when she argues that it was “fundamentally wrong” for the Local Authority to interview GD in this way. Had the Children’s Guardian been aware that the interview was to be carried out in this way (and I am satisfied that he was not) he says that he would have “objected in the strongest terms”, and rightly so.

Showing the pixelated photograph to GD, and misleading her as to its provenance, were blatant breaches of GD’s right to be treated fairly by the Local Authority. There is no doubt that the interview itself would have been distressing to GD; the manner in which it was conducted was designed or intended, it seems to me, to produce evidence which falsely implicated the mother. If GD was “defensive” in interview (a point relied on by the Local Authority as part of its “wide canvas”) this is not entirely surprising. The Local Authority knew that GD was not Girl Y by this time and should never have proceeded in its investigation in this way. I accept the Claimants’ case that it was undignified and demeaning for this eight-year-old girl to be put through a formal interview process which was unnecessary and which sought to inveigle her into providing evidence to support a false allegation.

Generally: The Claimants do not specifically assert that the Local Authority set out to mislead the court, or create a false case against the parents. They pleaded a case based on bias; they assert that the Local Authority was partisan and conducted itself in a way which was incompatible with its role in dispassionately analysing evidence and adopting a child-focused stance in line with the evidence. They have maintained that the Local Authority legal team, Ms McMullan and Mr. Shiels, lost objectivity in their professional conduct in this case, and as a consequence focused on only those aspects of the case which were adverse to, or implicated, the parents, and not those parts which might serve to exonerate them.

While I accept that the Local Authority representatives failed dispassionately to analyse the evidence, and tended to focus on those parts which were adverse to the mother, I don’t accept entirely the other criticisms. It seems to me that other factors were in play:

I do not believe that there was any evidence of professional misconduct or negligence on the part of the Local Authority lawyer or social worker; nor do I consider that there was a loss of objectivity, as alleged. Regrettably I sensed that the Local Authority’s case management was rudderless, lacking in supervision, hampered by a lack of clear information, overly influenced by DS Hudson’s misguided perception of the case, at times incoherent, and (as I indicated above: [91](ii)) almost always reactive rather than proactive.

Disclosure: The failures of the West Yorkshire Police to comply with its duty of disclosure in this case were extensive; these failures regrettably pervaded the entire course of the case; I consider that it extended the litigation, and ultimately influenced its outcome.

I am satisfied that the West Yorkshire Police, and specifically (unless otherwise indicated) DS Hudson:

These failures derive from three essential shortcomings in the operations of the West Yorkshire Police in this case:

Surely no party, or lawyer of any experience, in litigation of this (or any) kind still needs reminding of the importance of compliance with court orders: see what I myself have said in F v M [2015] EWHC 3259 (Fam) ([7] et seq.), and for the most recent example London Borough of Redbridge v A, B and E [2016] EWHC 2627 (Fam),published during this hearing. Case management orders are to be obeyed, to be complied with on time and to the letter, and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see also Re W (Children) [2015] 1 FLR 1092). As is evident from my summary at [93](i)(a)-(e) above, this did not happen in this case. The burden of other work is not an excuse for non-compliance with the directions of the court; whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187). As Macdonald J in Redbridge went on to say at [12]: “Case management directions are not mere administrative pedantry”, adding:

“It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.” (emphasis by italics in the original).

Macdonald J’s observations apply, in my judgment, with equal force to the responsibilities of the police.

Had orders been complied with faithfully and conscientiously, the flaws in this investigation are likely to have been avoided, or at least exposed at an earlier time. Moreover, MD was put to the trouble, and the State was put to the expense, of obtaining independent expert advice about the Kodak photograph showing her destroying a hard disk drive; her expert in due course confirmed the date of creation of the photograph as 11 March 2009 – a fact known to the police for several months (March 2015), but not disclosed by them. Had the police revealed its knowledge earlier an important plank of the Local Authority’s case would have been removed, for the authority had sought to use this evidence that the mother had been, or was likely to have been, recently engaged in the business of destroying evidence (i.e. in the period between the first search of the family home and the arrest of the parents in reliance on the photograph which (it maintained) was not visible on the computer system before 2014) as part of its “wide canvas” of evidence implicating her in the abuse (see [82] above).

Second (longer) video: I find that DS Hudson did not inform the Local Authority (or indeed any of the other parties) of the existence of the second (longer) video until 18 November. He had multiple opportunities to do so:

In his evidence before HHJ Anderson and before me DS Hudson sought to divert responsibility for the failure to disclose the second (longer) video onto Mr. Garthwaite, with whom, he said, he had corresponded on the subject. I have seen no correspondence from DS Hudson to Mr. Garthwaite in which he requests that the existence of the second (longer) video be disclosed to the Local Authority, let alone the respondent parents. I reject his case about this. Regrettably, as I mention elsewhere, Mr. Garthwaite knew of the existence of the second video, but did not appreciate its significance (see [30] above).

The short video / the superimposition montage: It is obvious from the internal e-mails passing within the West Yorkshire Police at the material time that serious misgivings were expressed by DFI, and separately indeed by DS Hudson, to Mr. Garthwaite about the appropriateness of facilitating the viewing by the lay parties and their lawyers of the short video; this was particularly in light of the fact that it was known that this had no relevance to the investigation of, or the public law proceedings concerning, this family. The situation which arose in relation to this highlights vividly the lack of strategic leadership in the management of the joint investigation and in its relationship with the Local Authority, and the failure of Mr. Garthwaite (as the solicitor for the force) to gain an understanding of the significance of the evidence.

Misled the Local Authority: I am satisfied that DS Hudson caused or encouraged the Local Authority to believe that Woman X could be the mother. This is evidenced by the fact that at the conference on 21 August 2015,

DS Hudson showed the Local Authority lawyers the superimposition montage on 17 September; the only plausible explanation for the officer presenting this evidence to the Local Authority at that time is that he was encouraging the authority to pursue a case that Girl Y was indeed GD in the still image, even though he knew that this was, on the evidence of the expert not so (and when he knew also, on his viewing of the longer video, that GD was not the girl in the video either).

Witness statement of DS Hudson (dated 22 September 2015): The West Yorkshire Police rightly concede that the witness statement of DS Hudson (22.9.15) was seriously misleading in both what it contains and in what it does not contain (see the concession at Annex B [6] below). I was unconvinced by DS Hudson’s protestations that he did not realise that by providing such a limited statement, and indeed by providing only the material he did, a wholly distorted view would be given of the investigation and its outcomes. It is well-established now that by the time he provided the statement, he knew that MD was not Woman X, yet the statement tended to point to the contrary conclusion. For instance, his statement includes this paragraph:

“The footage of the images and videos recovered from the forensic examination identified a video containing footage of a women (sic.) with the facial appearance of [MD], the face of the women (sic.) in the footage can be seen, not a common factor as those abusing children do not want to be identified, also the woman wore a ring on her right hand finger which is the same hand [MD] wears a ring as seen in other family footage of her”.

The statement further referred to DS Hudson’s belief that Girl Y bore a striking resemblance to GD. This statement drew attention only to those pieces of evidence which implicated the mother; he failed to refer to the following crucial facts:

DS Hudson told HHJ Anderson that he understood the purpose of the statement was “to outline my involvement with the family”, and separately “to provide a snapshot of my investigation into [MD]”. He conceded at that hearing that he had been in “error” in providing the statement which he did. He further told HHJ Anderson that he knew at the time of providing the statement that the Local Authority was continuing to pursue the finding that MD was Woman X, a contradiction from the evidence placed before me. There was the occasional sign in his oral evidence before HHJ Anderson (of which I have the transcript) of his confused thinking, for instance posing the rhetorical question (when probed about his knowledge of the video originating in the US): “who am I to know that she has not been on holiday to America?” (later dismissed by him as a “throwaway remark” for which he apologised). It was that confused thinking, coupled with an unworthy desire to see MD proven to be Woman X, which I believe permeated his dealings with the Local Authority. At this hearing he has acknowledged that:

“… in providing such a limited statement, without expressly confirming the use to which it would be put, I afforded the opportunity for the Local Authority case to be progressed in the way that it was… I can see now that I was overly-reliant on the Local Authority legal representatives in dictating the content and scope of my statement…”

Failure of recording: It has been important to my investigation to know when DS Hudson viewed the second (longer) video; although I am satisfied that from 23 July at the latest he was aware from DFI that MD was not Woman X, he had not seen this with his own eyes. It is therefore a source of forensic frustration, and not inconsiderable consternation, that the evidence adduced before me revealed such lax arrangements for the recording of viewing or distribution of such highly sensitive materials. DFI made no note of when he found or viewed the second (longer) video, nor when DS Hudson viewed the second (longer) video; yet more concerning is that DS Hudson was provided with a copy of the short video and/or the longer video, but no record was made of when he was provided with them, or their ultimate whereabouts. After his retirement, the second (longer) video was found in the secure safe of his office; no steps had been taken to return it to the Digital Forensic Unit.

Generally: DS Hudson appeared affronted that his investigation and his conduct of it was being called into question in this enquiry. DS Hudson had, I have found (see [13] above), declared himself at the strategy meeting in February 2015 to be 90% sure that MD was Woman X, and 99% sure that GD was Girl Y. In my judgment he struggled to shake off those beliefs; the social worker had the sense that he still thought it could be the mother when he met with the Local Authority representatives on 21 August 2015. The mother recorded in her written evidence that she felt that DS Hudson strongly believed throughout the investigation that she was Woman X. When DFI gave his evidence to HHJ Anderson in November he described DS Hudson’s reaction to seeing the longer video in July/August thus:

“I’d given him clear proof that it wasn’t what he thought from the start but then from there, there was also… He was still convinced of the likeness that was there…” (my emphasis by underlining)

His evidence frankly gave me the same impression.

As I say, DS Hudson believed that the Local Authority was “looking to pursue” the allegation that MD was Woman X in the care proceedings even when he knew that she was not that woman; at no time did he challenge the Local Authority as to the appropriateness of this pursuit. This belief in the mother’s likely guilt (alternatively his wish to see her proven as the perpetrator of abuse) is consistent with, and provides a unifying explanation for, his conduct in:

DS Hudson as officer in the case carried much sway with the Local Authority. In his sharing of information, he did not faithfully observe the ‘Golden Principles’ discussed at [71] above (viz. “Necessary, proportionate, relevant, adequate, accurate, timely and secure”). His less than professional approach regrettably contaminated the family proceedings. He was not, in my judgment, effectively supervised by DI Walker during the months under review. She concedes as much. This was a failing on her part, which I consider contributed to the unchecked mischief in this investigation.

I note that Head of Legal Services at West Yorkshire Police has made a referral to the Professional Standards Department of the police in relation to the conduct of DS Hudson; the Professional Standards Department has indicated that it intends to await the outcome of this hearing.

It was Mr. Garthwaite’s clear role as Legal Adviser to the force to take responsibility for the force’s compliance with the disclosure orders, to be proactive over the disclosure of material more generally, and to have a hand in (or oversight over) the preparation of DS Hudson’s witness statement. My impression was that he was rather detached from these processes, dipping in when unavoidably required to do so, and otherwise placing reliance and responsibility, to an unwarranted extent, on the actions and judgment of the investigating officer. His e-mail to DS Hudson of 21 July (see [29] above), shows a lack of discipline in communication; regrettably, the use of the vernacular (“pin a case”) may well have given a false impression to the officer about the intentions, the judgment and indeed the integrity, of the Local Authority in the prosecution of its case. His lack of appreciation of the significance of the second (longer) video (which would have been apparent on minimal enquiry) contributed to the failings of his department, and of the investigation.

There is no doubt that the Local Authority legal team was under joint and several duties to observe essential principles of fairness, and comply with orders of the court; each owed a duty to the court in the administration of justice. Each had a duty not to mislead the court, knowingly or recklessly, and to provide a competent standard of work. In that regard, what I have said about the Local Authority team above in some respects applies to Mr. Shiels.

Mr Shiels, an experienced family practitioner, was instructed as counsel on 16 March 2015, receiving his instructions from time to time from a solicitor whom he regarded as “very able and experienced” and with whom he described enjoying a “good working relationship”. There was, apparently, no formal brief or instructions as such; Mr Shiels received his instructions relatively informally through e-mails and telephone conversations. He attended altogether seven directions hearings in the case prior to the final hearing listed in November 2015.

There are clear duties imposed on counsel to observe a duty to the court in the administration of justice, to act with honesty and integrity, and not to behave in a way which is likely to diminish the trust and confidence which the public places in the individual barrister and/or in the profession (see the Bar Standards Board Handbook, Core Duties).

I have, in reviewing Mr. Shiels’ role, as I have with others, endeavoured not to apply too exacting a standard by viewing the conduct through the lens of hindsight. Mr. Shiels’ approach to the case he was instructed to present, reflected in his advice to his instructing solicitor, appears to me to have been more bullish than it was cautious; that is not a criticism as such, nor a mark of professional irregularity. He was of course evaluating the case in the context (to which I have alluded above) of serious criminal offending within the family home; I consider that this backdrop may have influenced (perhaps to a disproportionate extent) his intention to seek serious findings against the mother which on the evidence were, objectively viewed, likely to be beyond his reach. Central to Mr. Shiels’ advice was that the LGC Forensics report may be wrong, and that there was much extraneous evidence (including the superimposition montage) which could knit together to establish a finding that MD was Woman X and that GD was Girl Y on the preponderance of probabilities. While Mr. Shiels was entitled to the view that the expert evidence may indeed be wrong, and that it was in any event only part of the forensic picture, I discerned limited if any evidence on the papers before me that he had properly thought through how this might be presented to the court. I say so for the following reasons:

Mr Shiels’s failure to mention in his detailed Opening Note the possible (as he knew it to be) US origin of the video recording, and/or the failure of the police to locate the watch worn by Woman X in the search of the family home, is harder to understand or explain. I am not satisfied that these omissions were deliberate (in the sense that he sought to paint a misleading picture), but I am concerned that he was “focused” (see [38]) rather too firmly on constructing a case against the mother, encouraged perhaps by the police, rather than in presenting a truly balanced account. Mr. Shiels’ failure to mention these facts contributed to the Article 6 breaches conceded by the Local Authority (see Annex A[1](a)/(b)/(h)).

I found Mr. Shiels to be a straightforward and honest witness. I do not view his conduct in this case as falling below the standards of a practising barrister. The opinions he formed were, I am satisfied, genuinely held and fashioned by the information he was given. He was unlikely to have been unaffected by DS Hudson’s zeal. It turns out that in a number of respects his judgment turned out to be wrong; but exercise of judgment is after all in the realms of art not science, and it is easy to view decisions in hindsight:

“Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent” Saif Ali v Sidney Mitchell [1980] AC 198 at 231.

Local Authorities and the Police Child Investigation Teams carry a heavy burden of responsibility in the discharge of their safeguarding duties, and in the joint investigation of offences involving children. This judgment, given within proceedings brought under the HRA 1998 for declarations and damages, reveals how much can go wrong, with appalling consequences for the family involved, particularly for the children.

The culpability identified in this case is in my judgment both individual and systemic. In very large measure, the culpability is conceded. The damage has been significant; for a period of many months, two children were separated from their mother against whom allegations of the most serious form of abuse were levelled, while all the while, evidence was available which served to exonerate her.

As the Guidance Working Together rightly identifies (§4/1), “when things go wrong” in a co-worked safeguarding investigation:

“… there needs to be a rigorous, objective analysis of what happened and why, so that important lessons can be learnt and services improved to reduce the risk of future harm to children. These processes should be transparent, with findings of reviews shared publicly. The findings are not only important for the professionals involved locally in cases. Everyone across the country has an interest in understanding both what works well and also why things can go wrong”

I have sought to undertake that sort of analysis here.

There is now no dispute that the Article 6 and Article 8 rights of these Claimants were breached by these public authorities in a number of significant respects during the course of this joint investigation. These Claimants were in my judgement subjected to a largely inexcusable failure of professional good practice, with serious consequences for them all.

I have no material doubt that the Local Authority and the West Yorkshire Police were acting entirely properly in taking protective measures in relation to the two children, GD and BD, when their parents were arrested – again, on the information then known, entirely legitimately – on 25 February 2015. The suspension of all contact in the period immediately after removal was reasonable while the parents were being interviewed, but is harder to explain or justify once that immediate period post-arrest had passed. The Local Authority of course had duties to promote contact (see [75] above). It was incumbent on the Local Authority and the police to review conscientiously, together, the enforced separation of the children from their parents after the point at which the police were informed that the mother was excluded from consideration as Woman X in the short video on 31 March 2015. By 12 June 2015, that picture was clear to the police at least; the report from LGC Forensics shortly thereafter confirmed this.

When the second (longer) video was discovered in June, and the significance of it understood by the Officer in the Case no later than 23 July 2015, with the mother being yet more definitively exonerated, the continued separation became, in my judgment, yet harder to justify. I accept that there were residual concerns about the willingness of the mother to accept the culpability of the father for the downloading of multiple indecent images, and that this had implications for her ability to protect the children from the risk thus posed; those concerns may have justified a cautious approach to rehabilitation but would not have excluded this. The fact is that no one in the Local Authority considered it, or had the chance to consider it, as it was forced to make key strategic decisions in ignorance of the true facts. The First and Second Claimants contend (reference their Claim) that rehabilitation should have been considered and advanced “at least by 21 August 2015 if not sooner”. I accept that contention.

The Claimants have argued that there have been many failings of the public authorities, many of which are conceded. They contend that these failings when viewed collectively showed a lack of objectivity on the part of the Local Authority lawyers – counsel and solicitor.

For my part, I am not sure that the failures in this case can or should be explained simply by a loss of objectivity. Rather they can and should be explained by a combination of the following factors, many of which were (as I have indicated) systemic (see [118] above):

DI Walker, his supervisor, has acknowledged that DS Hudson “was drawn into informal and unsupervised communications and disclosures to the Local Authority social workers and legal representatives”. I do not believe that he was ‘drawn’ in by the Local Authority; rather he chose to conduct himself in this way. Underlying his approach to working with the Local Authority was a wish to see the mother successfully proved in the civil court to be Woman X.

DS Hudson’s actions in showing a photograph of a child other than GD to the parents in interview to see if one of them (wrongly) identified her as GD was, in my view, unethical. Ms McMullan was entitled to describe it as trickery (reference 25 June 2015 e-mail), and it was wholly unfitting of a senior police officer. The notion that a false identification of GD as Girl Y might justify an ABE interview of GD “to see if she can recall the incident” displayed no regard to the integrity of investigation, and was potentially abusive to GD herself. The potentially corrupting impact on this investigation of these particular steps was compounded by the actions of the Local Authority, which by their social worker showed GD the photograph of Girl Y with much the same objective. These were, as I have earlier observed, low points in this investigation. The adult parties and their lawyers in this case would be entitled to regard the viewing (in October 2015) of the video of grossly depraved sexual conduct between an adult female and an infant as worse or lower still – particularly, when it was known that the video had no relevance to this mother and this child. It is now rightly acknowledged by the Police that this was a violation of the Claimants’ Article 8 rights (see Annex B [7]), and in my judgment a serious one.

This is a case in which all of the Claimants have been more focused on obtaining declarations and findings which “do justice to the case”; they are nonetheless entitled in my judgment to receive an award of damages, pursuant to section 8(3) of the Human Rights Act 1998, the court being of the view that the award is necessary to afford just satisfaction to them. I have been addressed on the range of awards made by the Courts in similar cases (although they are highly fact-sensitive), and conclude that the awards which have been agreed in this case are both reasonable and proportionate. I approve them.

I have no hesitation in making the declarations sought by the Claimants and identified in [8] (above). The breaches of the Claimants Article 6 and Article 8 rights on these facts are profound, obvious and wide-ranging.

In view of the admitted failings in this case, I invited the parties and their legal representatives to consider and make submissions at the conclusion of the hearing on the lessons which could or should be learned from this case. There was a broad measure of agreement, though no absolute consensus, about what these lessons may be. Miss Irving QC makes the legitimate point that there is nothing new in any of the lessons to be learned from this history and this litigation; guidance is already available in statute (including the Police and Criminal Evidence Act 1984), the Procedure Rules (the Family Procedure Rules 2010), the 2013 Protocol and Good Practice Model on disclosure of information in cases of alleged child abuse, Working Together, Achieving Best Evidence Guidance, Information Sharing (Advice for practitioners providing safeguarding services to children, young people, parents and carers) (March 2015) which was prepared for all frontline practitioners and senior managers working with children, and of course through case-law, specifically Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 at pp.772-779 and re-affirmed by Baker J in Kent CC v. A Mother and Others [2011] EWHC 402 (Baker J) at paras 153-158: see above). There is, she submits and I accept, no need for further new guidance; there is however a need for those who are engaged in investigations and proceedings of this kind to familiarise themselves with all the guidance available, understand it and implement it.

Charles J summarised the sort of situation which has arisen here, in Re R, when he said:

“[T]he lesson is to take care to ensure that each of the parties and their respective legal advisers take proper steps in, and in respect of, the preparation of cases and thus perform [their] duties … These are general and well-known duties. They have to be performed having regard to the issues in each case”.

He commented on the failings in that case which resonate with the failings here:

“Particular aspects of the performance of those duties that were not fulfilled in this case were:

(a)

the preparation of the initial statements and the exercise relating to disclosure were not properly carried out by the local authority and were not carried out by a person with the requisite training and experience;

(b)

disclosure of the contemporaneous notes of witnesses, including the guardian, was not properly considered, first by and on behalf of the local authority and then by the other parties and their legal advisers;

(c)

the instructions and information given to the police prior to the memorandum interviews and then the experts who were instructed later, as to the extent and nature of the allegations of sexual abuse were incomplete, as a result largely of the failures set out above; and

(d)

little or no consideration seems to have been given to what further information should be sought by the local authority or provided by the respondents.”

What follows is not a comprehensive guide to good practice, but some points which require specific attention as lessons to be learned from the experiences of this case:

By direction of 20 July, I gave the Legal Aid Agency (“LAA”) the opportunity to file submissions, and make representations, as to the incidence of the statutory charge on the agreed award of damages. A helpful written submission was made, augmented by oral representations from counsel.

The LAA confirms that on 10 March 2015, both children were issued civil legal aid certificates to be represented in the public law proceedings under the Children Act 1989. The mother also had the benefit of a certificate from February 2015. The combined costs which their solicitors are entitled to be paid for representing them under a high cost case contract is presently agreed at a significant amount. The scope of the children’s legal aid certificates is limited to allowing them to be represented in care proceedings; to be represented on an application for a supervision order and also to be represented on an application for a declaration under the Human Rights Act 1998. The LAA contends that the costs paid under the certificates will attach as a statutory charge to the agreed award of damages and this will have the inevitable effect of extinguishing those damages entirely, unless the costs of the whole proceedings are paid by the public authorities. It is acknowledged that there are specific exemptions to the statutory charge which are set out in regulation 5 of the Civil Legal Aid (Statutory Charge Regulations 2013, however, damages awarded under the Human Rights Act are not included in the list of exempted property.

The LAA submits that the statutory charge arises as a matter of law under section 25 LASPO 2012 and not from any decision made by the Legal Aid Agency on the Lord Chancellor’s behalf. A challenge therefore to the impact of the charge is viable only by way of judicial review. I was taken to the decisions of R (Faulkner) v. Director of Legal Aid Casework [2016] EWHC 717 (Admin)

I have been addressed as to whether a discretion could be afforded under either regulation 8 or regulation 9 of the Civil Legal Aid (Statutory Charge Regulations 2013, but am satisfied, having considered the argument, that it cannot.

I caused enquiry to be made of the LAA whether it would make any difference to the stance of the LAA that the children’s and the mother’s certificates were granted on a non-means, non-merits basis. The LAA make clear that the terms on which funding is offered (i.e. whether it is non-means and non-merits tested funding) does not have any effect on the operation of section 25 LASPO 2012. The test is whether property has been recovered or preserved in proceedings where civil legal aid services have been provided or in connection with those proceedings.

The LAA finally contend that if the children each recover a sum of damages, unless those damages exceed the significant amount of costs that are to be paid under their certificates, or the public bodies agree to pay the costs of the care proceedings as well as the costs of the Human Rights Act applications, the damages will be extinguished by the children’s statutory charge liability.

It used to be the case (prior to April 2005) that the first £2,500-£3,000 of money or property recovered in respect of claims under certain enactments was exempt from the statutory charge. This began as an exemption of £2,500 under the Legal Aid Act 1974 and continued through to the Access to Justice Act 1999. In around 2002, the exemption was increased to £3,000, before being abolished in April 2005 by regulation 14(a), (b) of the Community Legal Service (Financial) (Amendment) Regulations 2005 in relation to funding applications made after 1 April 2005.

Following the hearing, the judgment of Keehan J in P v Local Authority [2016] EWHC 2779 (Fam) has been reported. In this case, the Judge held that the damages sought (and agreed) were not as a matter of fact related to a breach of an injunction made in the wardship proceedings. On the facts of that case there was no legal or factual connection between the wardship proceedings and the young person’s claim under the Human Rights Act 1998. The Judge invited the young person’s solicitor to issue a freestanding claim under Part 8 CPR for damages, within which he would make the agreed award of damages on the papers. Consequently, the statutory charge was entirely avoided

I have not heard detailed submissions on the effect of P v Local Authority and indeed what, if any, impact it has on the outcome for these Claimants. My provisional view is that it would be difficult for the Claimants successfully to contend that the Human Rights Act award does not arise in "proceedings in connection with which the [civil legal] services were provided". If the parties wish to address me further on this, they may do so.

I propose to invite HHJ Anderson to determine the issue of the costs of the care proceedings, as she has had conduct of the care proceedings.

That is my judgment.

The Local Authority accepts that GD, BD and MD are entitled to a declaration that it acted in breach of their right to a fair trial pursuant to Article 6 of the ECHR, having regard to the following admitted facts:

The Local Authority accepts that GD, BD and MD are entitled to a declaration that it acted in breach of their qualified right to a “private and family life” pursuant to Article 8 of the ECHR, having regard to the following admitted facts:

From 25February 2015 until 18 November 2015, the Police were under a duty to disclose information to the Local Authority, subject to their right to withhold such information if it was likely to prejudice their criminal investigation. The criminal investigation involving MD concluded on 9 July 2015. Any unjustified failure to disclose information could have caused an injustice to MD and resulted in interim plans for the children being implemented on a false basis of fact.

On 1 April 2015, the Police were told orally by LGC Forensics Limited that expert facial imagery showed that Woman X was not MD, and that there was a better suspect, namely MD’s sister. The police considered from that point that MD had been eliminated from being the woman performing the act of sexual abuse in the video. (The Police indicate that this information was shared with the Local Authority and was disclosed to Moylan J on 7 May 2015; it was not however shared with the other parties, and in particular was not shared with MD).

By 9 July 2015, the Police had accepted that MD had not been involved in the sexual abuse of GD and the suspicions about her were unfounded.

In March 2015 the Police had evidence about the source and date of the photograph of MD destroying the hard drive of the computer. They established that the source was a Kodak camera and the device setting recorded a date of 11 March 2009. The date was not definitive evidence as it depended on the accuracy of the settings of the camera at the time the picture was taken.

In June 2015, the Police became aware of the existence of a second video showing the same sexual abuse of the child. It was a longer version of the first video. Features of the video revealed that it originated from the USA and was likely to have been downloaded from the Internet. The perpetrator and the child could be seen clearly in this video.

On 22 September 2015, DS Hudson provided a witness statement to the Local Authority for the purpose of the care proceedings. The statement only included information requested by the Local Authority and did not include an analysis of the police investigation law all the available evidence in the case. Specifically, the statement of DS Hudson did not include the following:

On 12 October 2015, MD watched the video of the sexual abuse of Girl Y by Woman X. The Police did not consider at the time that Woman X was MD or that Girl Y was GD. The Police knew that the viewing of the video would be extremely distressing and that it showed the depraved actions of someone else, and that the child in the video was the victim of the most appalling behaviour. The video depicted in close-up a girl being subjected to oral sex by a female. It was upsetting and distressing for MD to be shown an illegal video of child abuse, with the implication that it was her. The Police made arrangements for the viewing of the video to take place in compliance with an order of the court.

The West Yorkshire Police accept that during the course of the care proceedings after 9 July 2015 they failed to comply with their duty of disclosure and there were other failings. It is accepted that:

The West Yorkshire Police accept that their failures could have caused an injustice to MD and resulted in interim plans for the children being implemented on a false basis of fact. It is accepted that the viewing of the video also caused distress and upset to MD.

The West Yorkshire Police accept that their conduct constituted a breach of MD’s and the children’s human rights under Article 6 and Article 8 of the ECHR in that their ability to determine their approach to issues in the care proceedings was on the basis of their incomplete knowledge of the evidence. This could have impacted on their approach to contact and interim care orders, and the timing of the resolution of the care proceedings.

The Chief Constable apologises for the failings of her force in this case.

This is a claim for damages and declarations under the Human Rights Act 1998. The Claimants are two children and their mother. This judgment is delivered at the conclusion of a seven-day hearing held in Bradford. The case has exposed serious and systemic flaws in the decision-making and information-sharing of a joint investigation involving West Yorkshire Police and Wakefield Metropolitan District Council.

On 25 February 2015, two children – a girl (GD) then aged 7, and a boy (BD) then aged 2½ – were removed from their family home under police protection measures and placed in foster care; this followed the arrest of their parents on suspicion of involvement in the downloading and distribution of indecent images of children. On the 27 February 2015, the children were made the subjects of interim care orders in favour of Wakefield Metropolitan District Council (the “Local Authority”). In August 2015, their father (FD) pleaded guilty to 6 specimen counts relating to these offences, and was later sentenced to a term of imprisonment.

At the time of the parents’ arrest, the officer in charge of the investigation from the West Yorkshire Police (DS Hudson) expressed himself to be 90% certain that the children’s mother (MD) was a woman (Woman X) recorded on video (the short video) performing oral sex with a young female child who it was believed to be GD; this video footage was found on the parents’ computer. The police officer further believed (with 99% certainty) that GD had been photographed in a sexually provocative pose displaying her genitals, on a still image also found on the parents’ computer (Girl Y).

For a period of many days after their reception into care, the children had no contact with their parents; when contact was reinstated it was closely supervised. The children remained in foster care, separated from their parents, for 9½ months returning to live with their mother in December 2015.

The history now apparent reveals that on 31 March 2015, DS Hudson had been advised by forensic experts that the mother was not Woman X and had been “eliminated” on the basis of expert assessment. This was later confirmed in a written report from the forensic expert on 12 June 2015. The Police did not divulge this information to the Local Authority until 24 June, and not to the mother until 9 July 2015.

On 10 June 2015, a second (longer) video recording was discovered by the West Yorkshire Police in the context of a different investigation, of which the first (short) video was clearly an excerpt. This was a crucial discovery. This longer video showed: (a) that the film was recorded in the United State of America, (b) that the mother was definitively not Woman X, and that (c) that GD was definitively not the girl being abused. This information was not shared with the Local Authority, nor with the Respondent parents, until the final hearing. At a meeting on 21 August 2015 DS Hudson advised representatives of the Local Authority (its solicitor, Ms Anne McMullan, and the instructed counsel Mr Ian Shiels) in passing that the short video probably originated in the USA. He did not refer to the existence of the longer video. It was only on the second day of the final hearing of the public law applications some months later, on 18 November 2015, that the Local Authority advised the mother, father and Children’s Guardian of the American origin of the video, and on the same day, the Police informed all parties (the Local Authority and the respondent parents) for the first time of the existence of the longer video.

In the meantime, the Police interviewed the parents under caution, putting the still image of Girl Y to them to see if they would (erroneously) identify her as their daughter; at the time the police knew that the still image was not a picture of GD. Unsurprisingly neither the parents nor GD acknowledged the still image to be a photograph of GD; I describe this as “one of the lowest points of this blighted history” – see [88/89] and [126] above. Separately, the Local Authority social worker conducted an ABE interview with GD, and similarly put the still image of Girl Y to her for her comment/recognition; at the time, the social worker knew that the still image was not of GD. The ABE interview was conducted by inexperienced social workers and the lead questioning by social worker who had not received any training in the conduct of such interviews.

The Local Authority pursued a case in the public law proceedings that the mother was Woman X and that GD was Girl Y. They commissioned a witness statement from DS Hudson who had overall management of the investigation of the offences to file in the Family Court. The statement in its final form was four paragraphs long and contained only information which incriminated the mother, no information which exculpated her, and provided no context. This statement was signed at a time when DS Hudson knew for sure that the mother was not Woman X, but he did not say so.

The police facilitated the viewing by the parties and their lawyers of the video-recording of the depraved conduct of the adult female, when they knew that the video footage had no probative value in the case.

This judgment contains many criticisms of the professionals involved in the investigation; in forming my views, I have made due allowance for the pressure under which they were working in a complex investigation of this kind. In my judgment, the failures in this case can be explained by a combination of the following factors, many of which were systemic within each of the investigating authorities (see [124] above):

In this Executive Summary I have done no more than to identify some of the more glaring features of an investigation which was conducted in a way which I declare to have profoundly and obviously breached the Article 6 and Article 8 ECHR rights of this mother and these children. The Local Authority and the Police have made significant concessions as to their unprofessional conduct, set out in Annex A and Annex B above, and have agreed to compensate all three in damages (£10,000 for the mother, and £5,000 for each child). Both the Local Authority and the Police have made full apologies to the Claimants, and rightly so.

Important lessons are to be learned from this case. I have summarised these at [129]-[131] of the judgment.