[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Family Court Decisions (High Court Judges) |
||
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> A and B (Findings against social worker) (Rev 1) [2016] EWFC 68 (11 July 2016) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2016/68.html Cite as: [2016] EWFC 68 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Case No: BS15C00190
Neutral citation no. [2016] EWFC 68
IN THE FAMILY COURT
ON APPEAL FROM
FAMILY COURT SITTING AT BRISTOL
Bristol Civil and Family Justice Centre
2 Redcliff Street
Bristol
BS1 6GR
Monday, 11 July 2016
BEFORE:
----------------------
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A AND B (FINDINGS AGAINST SOCIAL WORKER)
BETWEEN:
Appellant
- and -
A MOTHER (1)
RespondentS
----------------------
KATHERYN SKELLORN QC (instructed by Messrs Withy King) appeared on behalf of Linda Fraser
FRANCES JUDD QC and LUCY REED (instructed by Messrs Kelcey & Hall) appeared on behalf of the Mother
CHARLOTTE PITTS (instructed by Bristol City Council) appeared on behalf of the Local Authority
----------------------
Digital Transcript of WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London, EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Web: www.DTIGLOBAL.com Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
----------------------
----------------------
IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
1. MR JUSTICE BAKER: This is an application for permission to appeal by a social worker, Linda Fraser against findings made by District Judge Exton in a judgment in care proceedings delivered on 9 March 2016, [2016] EWFC B115. The application for permission to appeal was initially listed before His Honour Judge Wildblood QC, but by his order of 6 June he adjourned the matter for a composite hearing before me of the application for permission to appeal with appeal listed immediately thereafter if permission granted with a time estimate of two days, to include reading and judgment writing. I heard the matter in London last week on 6 July and reserved judgment until today, 11 July, in Bristol.
5. In the course of the proceedings, a case management hearing took place on 2 July 2015 before District Judge Exton to consider various procedural issues. At that hearing, the District Judge made various case management directions, amongst which was a direction for disclosure of various documents, including "case logs of observations by the local authority supporting its assessment of the relationship between the siblings and the mother".
8. Following the hearing, counsel on behalf of the mother prepared a schedule of findings against Ms Fraser and the local authority which she invited the court to consider at the next hearing on 23 July 2015. The schedule included allegations that Ms Fraser had edited logs in breach of the local authority's policies and also that she had contacted a jointly- instructed expert without notice to the other parties, all with a view to bolstering the local authority's case, and further that she had lied about these matters in her evidence on 13 and 14 July. I shall consider the schedule in greater detail below. The order made on 23 rd July, in addition to making provisions for the determination of the outstanding substantive issues in the proceedings, also included case management directions in respect of the proposed findings against Ms Fraser. District Judge Exton recited in the order that she was of the view that, if Ms Fraser was seeking to challenge the proposed findings, expert analysis of the local authority's computer system might be necessary. She gave directions requiring the local authority to disclose documents about that system and further copies of case logs concerning the family. By that point, Ms Fraser had been signed off work on health grounds and the court gave further directions seeking clarification about this, as well as giving provisional directions concerning any application by Ms Fraser to intervene in the proceedings. At the next hearing on 13 August, Ms Fraser was given permission to intervene, but problems in obtaining analysis of the local authority's computer systems and ongoing problems with her health meant that the court was not in a position to resolve issues immediately. As a result, the judge decided not to make final orders in the care proceedings at that stage, keeping the proceedings open, in effect, so that the investigation into Ms Fraser's conduct could be continued, but recorded that professionals working with the family should be aware of the plan for the children to remain with the mother.
9. At this point, it should be observed that some judges in District Judge Exton's position might have decided at that stage that, given the priority for the Family Court to resolve issues concerning the welfare of children, the better course would have been to bring the proceedings to an end with final orders and leave issues concerning allegations about Ms Fraser's conduct and veracity for another process, either a disciplinary process or possibly other court proceedings. District Judge Exton chose not to do that, resolving that an investigation into the complaints about the evidence were a matter for her. No party has sought to argue before me that District Judge Exton was acting ultra vires and accordingly, I shall not comment further on that point.
10. By the next hearing on 6 November, Ms Fraser had responded to the mother's schedule of proposed findings and also filed a statement, setting out her account of her actions insofar as she was able to explain them, and also giving details of her health problems. Although she has at all times been capacitious, her statement gives details of significant adverse symptoms attributable to a diagnosed anxiety and depressive disorder and the continuing symptoms and impact on her functioning. By 6 November, she remained too ill to attend court and give evidence. On her behalf, Miss Katheryn Skellorn QC, put forward a number of concessions in her position statement which amounted, it is submitted, to a sufficient record of Ms Fraser's professional failings, mis-judgment and lack of probity and it was therefore argued that any further fact-finding process on this issue would be unnecessary and disproportionate. District Judge Exton disagreed and drafted an order indicating that, at the next hearing, Ms Fraser would be required to address the following three issues: (1) her motivation in editing case recordings and whether the edits were made with the intention of bolstering the local authority's case and damaging the mother's; (2) Ms Fraser's truthfulness and her assertion that she did not intentionally lie in her earlier evidence; (3) the extent to which Ms Fraser's conduct may have impacted on the case and, if so, in what way in particular the editing may have undermined the evidence base.
"Due to the cognitive effects of her depression, I am concerned that her ability to give evidence may be impaired. She describes ongoing symptoms of poor concentration and mental shelling. She also finds it difficult to interpret the subtext of other people's verbal communication at present, eg, sarcasm or humour. I think it very important that the court is aware that her current medical condition will impair her performance when giving evidence to some degree"
According to the agreed note of hearing, Miss Skellorn submitted that, although the GP had expressed that opinion and further indicated that more expert assistance might be required, Ms Fraser did not want to delay the matter any longer. Ms Fraser believed that special measures would be sufficient, those measures being short questions, regular breaks and the opportunity to pause if she wanted to consider the point. According to the agreed note, the District Judge said that if Ms Fraser needed a break at any stage, she just had to indicate, adding that Ms Fraser should not feel embarrassed at any point.
13. After hearing submissions, District Judge Exton reserved judgment. On 10 February 2016 she sent out a draft judgment for comment. That prompted requests for clarification by both Ms Fraser and the mother. On 9 March 2016, an amended version was circulated and on 22 March the judgment was finally handed down.
16. First, she considered the allegations that on a number of occasions Ms Fraser had improperly, and contrary to the policy of the local authority, obtained authorisation to "unfinalise" a finalised log and edit it. The first and principal focus of the judge was on the log of 16 December. She noted Ms Fraser's evidence that she did not recall making any amendments, but nonetheless took full responsibility for the alterations. The judge commented that "this makes no sense whatsoever". She noted that Ms Fraser had been present in court on 2 July when the order for disclosure of the case logs was made and concluded that on the same afternoon Ms Fraser had altered PM's record of 16 December 2014 incident. The judge did not believe Ms Fraser's evidence that she could not remember or explain her actions. She further found that Ms Fraser did not consult PM about those matters on 2 July, accepting PM's evidence on that point, and she did not accept Ms Fraser's evidence as to how she had acquired the information to alter the record. District Judge Exton concluded on this point:
"I am afraid that my very clear impression is that she altered the case note to bolster the local authority's case."
"Generally the above findings illustrate on the part of Ms Fraser (a) a negative attitude towards the mother; (b) a disregard for the importance of contemporaneous records and evidential probity; (c) a willingness to manufacture, manipulate or distort evidence after the fact; (d) a contempt for the court process and in the face of the court; (e) a disregard for professional colleagues; (f) a failure to adhere to the HCPC standards of proficiency for social workers; and (g) dishonesty."
On this the judge merely commented, "I have to agree".
"36. Following my draft judgment, I have been asked to address the medical evidence provided by Ms Fraser in November 2015 and January 2016 and the degree, if any, to which it has been taken into account in reaching the findings made.
The judge then, in further response to the request for clarification, addressed matters drawn to her attention about Ms Fraser's position statement and closing submissions. In the course of doing so, she indicated that she had taken account of those oral submissions made at the conclusion of the case but said that she had analysed carefully all the findings sought and the submissions made did not alter her findings.
27. The submissions on Ms Fraser's behalf as set out in her amended skeleton argument supplemented oral submissions by Miss Skellorn are lengthy and detailed, but can be summarised as follows. It is submitted that District Judge Exton's decision was wrong and/or represented an injustice to Ms Fraser because of serious procedural and other irregularities. The following specific grounds are relied on. First, it is submitted that the structure of the court's enquiry was unclear. Although at the directions hearing in November 2015 the judge had summarised three issues as recited above to be determined at the final hearing, when it came to writing he judgment District Judge Exton had reverted to the earlier schedule of findings filed by the mother as the primary framework. Miss Skellorn submits that this was wrong and unfair. Ms Fraser had previously made a number of concessions and offered an apology which were sufficient to record the extent of her own failings in this case. In the circumstances, the three issue framework, as it was characterised by Miss Skellorn, which came about in the light of the concessions, should have been followed by the judge in her analysis and judgment. It is submitted that District Judge Exton lost sight of the reasons for the mother's schedule being overtaken by the three issue framework, and further lost sight of necessity and proportionality in the light of Ms Fraser's concessions. The judge had persisted in adopting the approach based on the mother's schedule of findings notwithstanding the submissions made by Miss Skellorn at the hearing and in the subsequent request for clarification.
28. Secondly, it is submitted that District Judge Exton failed to reflect and/or adequate consider the medical evidence concerning Ms Fraser's condition, taking the view that it all post-dated the hearing on 13 and 14 July. District Judge Exton omitted to consider and weigh any effect that Ms Fraser's medical condition may have had on her actions, evidence and recall at various points in the litigation, despite relying on the inconsistencies in her evidence to her disadvantage when making the findings. Miss Skellorn submits that, although the final judgment refers to the medical issue in the passage quoted above, at no point did the judge consider the impact of Ms Fraser's health on her evidence, and in particular her failure to recall editing the logs or to explain her reasons for doing so. It is asserted that the judge failed to appreciate the significance of the medical situation to her enquiry, even when prompted by the requests for clarification.
29. Thirdly, it is submitted that District Judge Exton failed to record in or engage with the majority of the closing submissions made by Miss Skellorn. A summary of those submissions was attached to the grounds of appeal and I have considered them all carefully. In her oral submissions, Miss Skellorn emphasises in particular: (1) other evidence that Ms Fraser had approached the case in a balanced way; (2) the fact that, had she wished to undermine the mother's case, she could easily have altered her own case logs and not those of other workers; (3) the need to distinguish what Miss Skellorn describes as "scenario one2, namely a specific exercise of bolstering the local authority's case, from "scenario two", namely a desire to edit the log simply to make up for gaps or errors in the records; (4) a number of factors pointing to scenario two; (5) the significance of Ms Fraser's earlier concessions; and (6) failure to give herself a " Lucas" direction.
30. Fourthly, Miss Skellorn submits that, whether as a result of the complaints as summarised above or otherwise, the judgment was linear and an inadequate analysis of the totality of the evidence. It failed to constitute a sufficiently wide assessment of each area of the evidence upon the other areas of evidence. In making this submission, Miss Skellorn cites as authority my decision in Re IB & EB [2014] EWHC 369 (Fam) and other cases in which I summarise the approach to be adopted in fact-finding hearings in care cases. Miss Skellorn submits that cross-checking evidence on one aspect against the evidence on other aspects would have demonstrated the fallacy in the judge's findings. There was, she submits, a failure to carry out a global, dynamic and holistic analysis of the evidence. She continues:
"It was incumbent upon the lower court where (a) the appellant had admitted a failure ion probity in her oral evidence and (b) where the learned district judge's own three issue analysis was to explore motivation and the intent to hide untruthfulness, for the judge to self-direct following Lucas as per the closing submissions. This is also a case where the lower court relied upon recall, consistency and demeanour as evidence of credibility or untruthfulness, not only did potentially relevant medical evidence fall by the wayside, but there was no appropriate self-direction on issues of memory and credibility."
In this context, Miss Skellorn cites the well-known dicta of Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam).
"From the ... the single question asked by the learned district judge at the conclusion of the appellant's oral closing submissions on 22 January in response to counsel's offer to render any further assistance required by the court, the learned district judge stated that the appellant had attended court on 2 July and had heard her order for case notes in the face of the local authority opposition, the learned district judge then said words to the effect, of 'I didn't say existing case notes, but I meant that. What led Ms Fraser to think that she had the right to alter the existing case notes?'"
Miss Skellorn commented that the judge's question was asked in the context of having just received very detailed closing submissions which had explored Ms Fraser's concessions, apologies and explanation of her thought processes and actions in making amendments to the case notes. Miss Skellorn submitted that the District Judge's questions gave a clear impression that she was not prepared to engage with the submissions and/or had discounted the summary. This is, Miss Skellorn submits, evidence of bias.
35. In her written response, Ms Reed reminded the court of the leading authority of the caution which an appellate court must exercise in considering an appeal on findings of fact in family cases: Piglowska v Piglowski [1999] 2 FLR 763. Ms Reed submits that District Judge Exton saw and heard Ms Fraser give evidence on two occasions spread over three different days and was able to witness her shifts in position in real time and her changes in demeanour. It is submitted that this court should be very slow to interfere with findings of fact based on the oral evidence of witnesses given in the context of an evolving and dynamic trial process.
36. It is further submitted on behalf of the mother that a judge is not obliged to deal with every argument or identify every factor which weighs in the judgment. The essential features of a judgment are that it should enable the parties and any appellate tribunal to understand the reasoning essential to the judge's decision: see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409. In this case, Miss Judd and Miss Reed submit that there were no material omissions in the judgment. The findings were underpinned by a wealth of evidence, in particular Ms Fraser's own written and oral evidence. The judge was uniquely able to assess that evidence.
37. Counsel for the mother invite the court to reject the submission that the process was unfair to Ms Fraser. The fact that it was protracted and took several months to resolve were attributable to Ms Fraser's health problems and the court's desire to be fair to her. They invite the court to reject the submission that the failure to structure the judgment in accordance with the so-called three issue framework particularised in the order of 6 November was unfair. The schedule of findings filed by the mother underpinned those issues and Ms Fraser was able to adduce and challenge evidence on all matters set out in the schedule. It is Ms Reed's case that Miss Skellorn's submissions addressed each of those findings. It is important to note that Ms Fraser conceded that she had edited the logs after 2 July hearing, although she could not recall doing so. It is therefore submitted that the findings either reflected the concessions or properly flowed from those concessions and the other primary facts. In short, it is submitted the judge simply disbelieved Ms Fraser's evidence.
38. As for Ms Fraser's medical condition, Ms Reed noted that Ms Fraser's own evidence was that she had not sought any medical attention or been off sick prior to giving evidence in July and had not considered herself unwell. She conceded on 11 January that there was no evidence that she had been unwell at the hearing in July. The judge was entitled to rely on her own impression, says Ms Reed, having seen Ms Fraser give evidence in July. It is submitted that Ms Fraser did not adduce any evidence that came close to demonstrating that she was unfit to give evidence at that hearing in July. Any suggestion that her health may have affected her evidence at that point was mere speculation. In any event, it is submitted on behalf of the mother that the medical evidence, such as it is, is not of a quality or reliability to justify any significant weight being attached to it. It consists of a brief letter from a GP. There was no letter of instruction in respect of that GP, or certainly no such letter has been produced. The opinion was based on self-report. There was no suggestion of a lack of capacity. There was no application to adjourn the hearing in January and it was considered that special measures would be sufficient.
39. Ms Reed in her written document acknowledged that the judge did not deal with the detail of the medical evidence filed, but it was not accepted on behalf of the mother that the evidence available to the judge was capable of significantly impacting upon the conclusions reached. The judge was entitled to and did rely on her own impression of Ms Fraser when giving evidence.
Discussion and conclusion
40. In Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Lewison LJ at paragraph 114 observed that:
Lewison LJ then listed the cases, all from the House of Lords or Supreme Court, including Piglowski (supra) in which this principle has been explored. He continued:
" The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
41. These observations are relevant to all those - judges, lawyers and parties - involved in any appeal when an attempt is made to challenge factual findings. It seems to me they are particularly relevant to this appeal. The factual enquiry which District Judge Exton was conducting arose out of events within the proceedings themselves. The core questions were: (1) Had Ms Fraser altered the records? (2) If so why? (3) Had she lied about those actions? The judge had ordered disclosure of the records. Ms Fraser had, as is unchallenged, altered them prior to disclosure. At the hearing on 13 and 14 July, Ms Fraser had given evidence about what she had done. In my judgment, District Judge Exton was uniquely placed to evaluate these events and it would be extremely difficult for any appellate court to interfere with her findings.
43. Next it is said that the judgment is linear and not holistic an allusion, I assume, to the criticisms of judgments made in a different context by the Court of Appeal in the series of cases culminating in the decision in Re B-S [2013] EWCA Civ 1146. But, as Miss Judd demonstrated in oral submissions, there is in fact a logic and structure in the judgment which it is not surprising because it follows the logic and structure of Ms Reed's schedule of findings. The schedule and the findings start with the specific factual allegations that Ms Fraser altered records, then proceed to address Ms Fraser's untruthful evidence about those alterations, then the question of motive and finally conclusions about Ms Fraser's conduct. It is, of course, right that a judge has to consider each piece of evidence in the context of all the other evidence, but in analysing and explaining her reasoning, the judge has to start somewhere, and to my mind, there is nothing inherently wrong with District Judge Exton's approach. I agree with Miss Judd that the logical place to start was with the December 2014 log. To my mind, it is entirely understandable that the District Judge followed the carefully-crafted structure of Ms Reed's schedule. In any event, at various points in the judgment, the judge did cross-check the evidence against other evidence. All in all, the judge's familiarity with issues in this case, because of the way in which they arose, put her in the best position to determine how to conduct this analysis.
"She accepts that she denied making the edits during cross-examination. This was, she thinks, because she was being showered with questions that were accusing her of having falsified information and it was "out of the blue" that someone would interpret amending the case notes in that way. She did not think she had falsified anything. She states that she did not lie intentionally. She says that she should have asked for a short break or found some way of slowing it down and explaining that there was no sinister intent or falsification involved. She was very shocked at the suggestions that were being put to her and this affected how she responded.
I hope given my 16 years of experience as a district judge that I would be sensitive and conscious of a witness who was in some distress. This was not the impression I had of Linda Fraser when she gave her evidence at the July 2015 final hearing. As I have said earlier, she was absolutely adamant that she had not edited the notes. I have highlighted in my notebook the phrase she used, namely 'I did not edit those notes'. I asked her why she'd gone through the notes on a 'quality assurance' basis and, although I have noted no answer to that question in my notebook, the transcript indicates she responded as follows, 'In terms of sending them off, I wanted to make sure that everything was there and correct to be sent off'. Again, in my view, this was too much of a coincidence. She could have reflected or asked for a break. The note was only altered a few days before the final hearing, the afternoon following the hearing when I ordered disclosure. She also made significant alterations. It beggars belief, in my view, that she could not remember that she could not remember that she had altered that note."
46. In this passage, the judge demonstrates to my mind that she was fully aware of the argument that Ms Fraser's health or stress or destress may have affected her evidence and her recall. District Judge Exton drew on her experience in assessing witnesses in rejecting this suggestion. To my mind, this is a paradigm example of how it is the trial judge who is best able to carry out the evaluation of evidence in reaching findings. The judge found no reason to think that Ms Fraser's powers of recall were affected in any way, particularly when the events she was being asked to recall occurred only eleven days previously.
47. In short, I see no prospect of any appellate court concluding that District Judge Exton was wrong. Her finding that Ms Fraser had altered the records was unchallenged. Her finding that she did not believe Ms Fraser's evidence that she could not remember what had happened is unassailable. The conclusion that she drew as to motive was entirely within her discretion. I am satisfied that, in recording the conclusions that she had done, that she had taken into account all Miss Skellorn's submissions, as she said she did. The District Judge concluded that her findings illustrated the points made by Ms Reed in her document: a negative attitude towards the mother; a disregard of the importance of contemporaneous records and evidential probity; a willingness to manufacture, manipulate or distort evidence after the fact; a contempt for the court process and in the face of the court; a disregard for professional colleagues, a failure to adhere to professional standards, and dishonesty. She did not explain her reasons for accepting this characterisation of Ms Fraser's actions, merely recording that she agreed with the mother's case, but her rationale is, to my mind, manifestly clear from the preceding paragraphs of her judgment.
- - - - - -