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Date: 16.01.2018

False Witness (1989)

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The Judge has given permission for this anonymised version of the judgment and any of the facts and matters contained in it to be published on condition always that the names and the addresses of the parties and the children must not be published.

For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.

All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. This is very troubling case. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue". Very important indeed is the account of the child, considered, of course, in an age appropriate way.

An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parentingā€¦Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.

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In this matter I am required to determine whether, on the balance of probabilities, certain alleged incidents of serious emotional, physical and sexual abuse have taken place. Those alleged incidents centre on the lives of two children, NC, who is now aged 10, and SH, who is now aged 6, and their mother, AS, the applicant in this case. The findings sought by the mother are set out in the form of a Scott Schedule prepared for these proceedings.

In summary, it is alleged that TH, the father of S, has raped the mother on two occasions, perpetrated domestic violence against her and has emotionally, physically and sexually abused both N and S. TH has filed and served replies to the Scott Schedule.

He denies each allegation levelled at him. TH currently faces criminal charges in Scotland arising out of the allegations made. He is due to be tried on those criminal charges in July of this year 1. I make clear at the outset that I have found none of the findings sought by the mother to be proved.

The father of N is BC who is also a party to these proceedings. No findings are sought against BC. At the conclusion of this hearing counsel for TH put the parties and the court on notice that findings would be sought with respect to the mother. In summary, the findings are that each of the allegations made by the mother and the children are false; that N and S have each been coached or influenced by their mother into making allegations; that the mother has told lies to a series of professionals; that a number of professionals have acted in breach of their professional duty by failing properly to investigate the allegations; and that, in consequence, the children have suffered significant emotional harm.

Once again, I make clear at the outset that I have found each of the findings sought by TH to be proved. I have before me and have read seven lever arch files of documentary evidence. I have heard oral evidence from the mother, TH, BC, from a number of family members and from certain of the professionals who have been engaged with the family. On 28 January Newton J determined that the children were habitually resident in this country for the purposes of founding the jurisdiction of this court.

I regret that this judgment is, of necessity, lengthy. Its length reflects the factual complexity of this case and the plethora of matters that the court has been required to consider within that complex context in coming to its conclusions. The mother and BC were in a relationship between and N was born in Scotland in The relationship between the mother and BC ended in June The mother commenced her relationship with TH in in England. S was born in In December the mother and TH moved to Scotland.

In June the mother commenced a relationship with ER in England. ER had previously been in a relationship with a friend of the mothers and ER and his then partner had visited the mother in Scotland in May ER asserted that she did so only as a ploy to obtain a flat from the local authority. On 10 July S, with the permission of the mother, went on holiday to Canada with his paternal grandmother, VT, as he had been doing since TH later joined S in Canada.

The mother was fully aware that he would be doing so. The mother took S to Heathrow airport on 10 July to see him off. On the same day, the mother delivered N to his father with a view to N spending three to four weeks with BC. Prior to his return to the United Kingdom the mother requested TH allow her contact between 9 August and his commencing school in Scotland on 11 August TH made contact with his Scottish lawyer for initial advice.

However, on 7 August the mother assured TH she would return S to Scotland in time for the start of school and he agreed to contact taking place.

I am satisfied that this was also the expectation of N and S and of their respective schools. He was happy and had just had a holiday with me and his father that was lovely.

He waved to us and walked away with his mother confident that we had told him the truth. The mother did not return S or N and instead remained in England with both children at the property of ER. In her statement supporting an injunction application dated 5 September she states "I was leaving for a new life".

In her statement dated 28 January no reason is given. In her statement dated 16 September the mother states it was because it was because TH was trying to engineer matters in respect of contact. TH commenced proceedings in Scotland to secure the return of S. In the period immediately following 9 August the mother raised for the first time her allegations against TH of verbal and physical domestic abuse and of rape.

The allegations made by the mother and each of the children are particularised in the Scott Schedule as follows: As I have already noted, on the basis of the evidence that emerged during the course of this hearing, TH now to seeks findings against the mother.

They can however be resolved to the following key assertions: I am now required to determine whether the foregoing findings are established on the balance of probabilities on the evidence before the court.

Family Law Week: AS v TH (False Allegations of Abuse) [2016] EWHC 532 Fam

In determining the issues before the court, I have considered and applied the following legal principles and statutory and non-statutory guidance. Burden and standard of proof and evidence The burden of proving a fact is on the party asserting that fact. To prove the fact asserted that fact must be established on the balance of probabilities.

The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. As has been observed, "Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities" Re B [] UKHL 35 at [15].

The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors A County Council v A Mother, A Father and X, Y and Z [] EWHC 31 Fam.

Where the evidence of a child stands only as hearsay, the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination Re W Children Abuse: Oral Evidence [] 1 FLR If a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure R v Lucas [] QB The court must not evaluate and assess the available evidence in separate compartments.

Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities Re T [] 2 FLR at [33].

There is no room for a finding by the court that something might have happened. However, failure to find a fact proved on the balance of probabilities does not equate without more to a finding that the allegation is false Re M Children [] EWCA Civ In principle the approach to fact finding in private family proceedings between parents should be the same as the approach in care proceedings. However, as Baroness Hale cautioned in Re B at [29]: Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent.

This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. Within this context, it has long been recognised that care must be taken not to focus attention on statements made by the child at the expense of other evidence, particularly where allegations of abuse arise in the context of private law disputes.

In accordance with the foregoing general principles, when assessing whether or not allegations of sexual abuse are proved to the requisite standard, the court should focus on all of the relevant evidence in the case, including that from the alleged perpetrator and family members see Re I-A Allegations of Sexual Abuse [] 2 FLR The court should adopt a two stage process.

First, is there evidence of sexual abuse? Standard of Proof [] 1 FLR The Report of the Inquiry into Child Abuse in Cleveland hereafter the Cleveland Report contains a plethora of salient and important guidance with respect to cases involving allegations of sexual abuse. I set out some of that guidance below. In light of the criticisms that I make in this judgment of the conduct of some of the professionals involved with the children it is important to note the following matters set out in the statutory guidance and non-statutory guidance and, in addition, to note the following further guidance set out in the Cleveland Report.

Where a child makes an allegation of abuse to a professional, the relevant guidance for professionals to whom allegations of abuse are reported makes clear the following principles with respect to the initial contact with the child.

Within this context, the following is said at [28]: You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information" And at [29]: Within this context the ABE Guidelines state at [2.

Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present. The ABE Guidance goes on to state at [2.

Within this context, having examined the ABE guidance, in Re S A Child [] EWCA Civ at [16] the Court of Appeal held that, with respect to initial contact with alleged victims, discussions about the facts in issue in respect of an allegation as distinct from whether and what allegation is being made and against whom, should be rare and should not be a standard practice.

Again within the foregoing context, when social workers are speaking to children who have made allegations they must be very careful to consider the purpose of the exchange and whether it is being conducted with a view to taking proceedings to protect the child or for separate therapeutic purposes where the restrictions upon prompting would not apply but the interview would not be for the purposes of court proceedings Re D Child Abuse: Interviews [] 2 FLR The requirement that all professionals responsible for child protection make a clear and comprehensive record of what the child says as soon as possible after it has been said and in the terms used by the child has been well established good practice for many years.

The Cleveland Report makes clear at paragraph The statutory Guidance Keeping Children Safe in Education HM Government, July makes clear at [19] that poor practice in relation to safeguarding children includes poor record keeping.

The need for professionals working with children to record, as contemporaneously as possible, what the child has said has been recognised and endorsed by the courts as vital in circumstances where, in determining allegations of sexual abuse, it is necessary for the court to examine in detail and with particular care what the child has said sometimes on a number of different occasions and the circumstances in which they said it D v B and Others Flawed Sexual Abuse Enquiry [] 1 FLR Following the allegations being made in this case assessments were carried out by the London Borough of Hackney, including an investigation pursuant to s 47 of the Children Act