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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> F (A Minor), Re [2016] EWHC 2149 (Fam) (18 August 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html Cite as: [2016] EWHC 2149 (Fam), [2017] 1 FLR 1304, [2016] Fam Law 1326 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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In the matter of Re F (a minor) |
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Karl Rowley QC for the Local Authority
Fenella Morris QC (instructed by BLM Solicitors) for Dr Harper
Jonathan Cohen QC (instructed by Bury & Walkers LLP) on behalf of the Children's Guardian
Hearing dates: 15th, 16th & 17th August 2016
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Crown Copyright ©
Mr Justice Hayden :
1. Dr Harper has either misread or exaggerated the mother's presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.
2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these 'quotations' by the mother to form his conclusions and recommendations.
3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.
4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.
5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.
6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.
7. Dr Harper inaccurately quotes other experts' reports in a manner that presents a negative impression of the mother.
8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.
9. It is asserted that neither Dr Harper's handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.
"12. The degree of confusion which is possible on this issue is exemplified by the fact that despite the painstaking clarity with which Lord Nicholls explained that having regard to inherent probabilities did not mean that "where a serious allegation is in issue the standard of proof required is higher", Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 cited this very passage as authority for the existence of a "heightened civil standard". This appears to have resulted in submissions that the Family Division should also apply a "heightened civil standard", equivalent to the criminal standard ("in serious cases such as the present, the difference between the two standards is, in truth, largely illusory", per Lord Bingham CJ in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354), in local authority applications for care orders. Dame Elizabeth Butler-Sloss P restored clarity and certainty in re U (A Child) (Department for Education and Skills intervening) [2005] Fam 134,143-144: "
"We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as 'largely illusory'. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act 1989 cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. That test has not been varied nor adjusted by the dicta of Lord Bingham of Cornhill CJ or Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division, on the one hand, between crime and preventative measures taken to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare nor to apply the reasoning in McCann's case [2003] 1 AC 787 to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment therefore…the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the family proceedings courts."
13. My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.
14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that —
"the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
15. I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator."
"the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts."
i) 'I have exercised reasonable care and skill in order to be accurate and complete in preparing this report';
ii) 'I understand that this report will form the evidence to be given under oath or affirmation';
iii) 'I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above';
iv) 'I confirm that I have acted in accordance with the Codes of Practice for Experts'.
"I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true"
"2. I am a Consultant Clinical Psychologist working with local authority and National Health Service Mental Health Teams. I qualified with a BSc in Psychology from the Queens University, Belfast in 2003. In 2004 I qualified with an MSc in Applied Psychology from the University of Ulster and achieved Masters in Research Psychology (MRES) from Queens University Belfast in 2006.
In 2009 I completed a Doctorate in Clinical Psychology at Liverpool University. I hold a Postgraduate Certificate in Family Therapy from the Leeds University (2011) and a Postgraduate Diploma in Cognitive Analytical Therapy (2016)."
"9. I have completed approximately 110 reports for the Family Court and approximately 60 expert reports for young people and parents in criminal proceedings. My expert witness work commenced in 2003 when I worked in Looked After Children services in Northern Ireland. My reports have dealt with the assessment of risk, behavioural difficulties, child abuse, family contact and attachment.
10. I have given oral evidence in the Family Court on approximately 30 occasions."
"12. There are a number of occasions where I have referred toMrsMother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate."
"It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process."
"For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper's account of the 'discussions' that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon."
"We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so."
"Dr Harper's concern about the mother's inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk."
"The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice"