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B4/2015/1264(A) & B4/2015/2484
Neutral Citation Number:  EWCA Civ 1014
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MRS JUSTICE PAUFFLEY)
Royal Courts of Justice
London, WC2A 2LL
Tuesday, 4 August 2015
B e f o r e:
LORD JUSTICE RYDER
LORD JUSTICE BEAN
IN THE MATTER OF G-D (CHILDREN)
DAR Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr A Taj (instructed by Hanson Young Solicitors) appeared on behalf of the Applicant
Ms H Markham (instructed by Venters Solicitors) appeared on behalf of the Respondent
J U D G M E N T
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1. LORD JUSTICE RYDER: This is an application for the oral reconsideration of
permission to appeal in respect of findings of fact made by Pauffley J on 19 March 2015.
The judgment of the Family Court is reported at  EWFC 26.
2. There are ancillary applications for permission to adduce additional evidence, i.e.
two reports authorised by a Ms Wilson, who is a self-employed trainer and investigator
who was formerly a Detective Constable in the Metropolitan Police, and the content of a
BBC interview with the father of the children concerned.
3. There is also a separate application for permission to appeal a case management decision
made by Pauffley J on 27 July 2015 by which the judge (A) refused to adjourn the next
hearing of the proceedings to which these appeals relate which is due to be heard
6 August 2015 and (B) approved a process that would lead to the redaction of
information from various documents in the court bundle relating to the new hearing,
information which might inter alia identify the whereabouts of the children and the
children’s father and the father’s circumstances.
4. The proceedings concern two children who are known as P and Q. They are aged 10 and
9. Their mother is the Appellant. Their father is one of a number of adults against whom
the most serious allegations have been made of sexual abuse in the context of a satanic
cult. The Local Authority is the London Borough of Barnet and the children have been
separately represented through a children’s guardian.
5. The parents of the two children met in 2003, but had separated by 2006. Private law
children proceedings failed to resolve their disputes. Domestic violence was alleged and
an injunction was granted against the father in 2010. There was no contact between the
father and the children between November 2011 and November 2012.
6. There were no known allegations of sexual abuse, let alone of a satanic cult who abuse
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children, until after October 2013 when the children’s mother met a Mr AC.
During 2014, extensive allegations were made through Mr C which were passed to the
Metropolitan Police. The Local Authority began their own investigations
in September 2014.
7. Achieving best evidence (ABE) interviews of children occurred on three occasions; twice
before the children became subject to police protection on 11 September and once
thereafter. The children were examined by a consultant community paediatrician on
12 September and 16 September 2014.
8. The mother was represented in the court proceedings which followed until
10 December 2014 when she dispensed with her legal team. She may, in fact, have
ceased to use their services in the month before, but nothing in this appeal turns on that
fact. Despite having non-merits and non-means tested legal aid, she then represented
herself until after the finding of fact hearing which is the subject of the appeal to this
9. She was more recently represented in this appeal by Mr Aseem Taj of Hanson Young
solicitors who has instructed Ms Maureen Ngozi Obi-Ezekpazu of counsel. Mr Taj
represents the mother today during counsel’s absence overseas.
10. The Local Authority are represented before this court at my direction. That is because
the documentary materials provided to this court are such that it has been very difficult to
conduct the necessary analysis of them. The court does not have the bundles that were
used in the court below.
11. Mr Taj is a solicitor who does not have higher rights of audience. He appears today
without his counsel of choice and asks for permission to undertake the required advocacy
on behalf of his lay client. No objection has been taken to that course and we permitted
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Mr Taj to appear before us on the basis of an assurance that he was professionally insured
to undertake advocacy services.
12. Mr Taj has presented the Appellant’s case, if I may say so, with a degree of skill and
expertise that would be expected of an advocate before this court. We are grateful to
him. It cannot be said that the Appellant has been prejudiced by the decision that was
taken to present her case in this way.
13. Mr Taj made an application to adjourn today’s hearing before this court via a lengthy
e-mail to the Court of Appeal office at 7.14 pm yesterday. That document and its
annexes highlighted a number of the propositions he sought to advance on the merits and
then, in reliance on the same, submitted that because of the complexity of the case and
unavailability of counsel of choice, this application should be adjourned.
14. That would have had the effect of causing the adjournment of the next hearing of the
Family Court on 6 August 2015, which is one of the issues in the appeals before us.
15. Accordingly, we have read all of the documents filed by Mr Taj, which include further
amended grounds, amended skeleton arguments and CPR Part 52 Rule 16.1 statements as
if permission had been given for them to be filed. We heard Mr Taj on all of the issues in
these appeals and applications before deciding whether or not to grant an adjournment.
16. In order to understand the nature of the appeals to this court, it is necessary to set out
some of the background to the hearings. As I have described, the allegations came very
late in the day and only after Mr C came on the scene.
17. The judge described the allegations as follows. I emphasise she found as a fact that the
allegations were untrue. She said:
i. “It was suggested that P and Q were part of a large group of
children from north London who had been sexually abused, made
to abuse one another and that they had belonged to a satanic cult in
which there was significant paedophile activity.
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ii. Specifically, it was said that babies were supplied from all over the
world. They were bought, injected with drugs and then sent by
TNT or DHL to London. The assertions were that babies had been
abused, tortured and then sacrificed. Their throats were slit, blood
was drunk and cult members would then dance wearing babies’
skull (sometimes with blood and hair still attached) on their bodies.
All the cult members wore shoes made of baby skin produced by
the owner of a specified shoe repair shop.
iii. Children, it was alleged, would be anally abused by adult members
of the cult using plastic penises or “willies.”
iv. Christchurch Primary School in Hampstead was said to be where
the “main action” occurred but at least seven other local schools
were named. East Finchley swimming pool was identified as one
of the other meeting venues for the paedophile ring. Rituals were
performed, so it was claimed, in an upstairs room at the
McDonald’s restaurant where the “boss” allowed child sacrifice
because he was a member of the cult. Human babies were
prepared, cooked in the ovens within a secret kitchen and then
eaten by cult members.
v. It was alleged that the children’s father, […], was the leader of the
cult and that others included the children’s headteacher, Ms […],
another teacher, […], the priest at the adjacent church, a large
number of named parents of other children, social workers,
CAFCASS officers and police officers. It was said that, in all,
more than a hundred people were involved in ‘doing sex’ to the
18. The judge’s conclusions can be summarised by taking her own words at paragraphs 16
and 17 of the judgment:
i. “I am able to state with complete conviction that none of the
allegations are true. I am entirely certain that everything Ms D
[that is the mother], her partner AC and the children said about
those matters was fabricated. The claims are baseless. Those who
have sought to perpetuate them are evil and/or foolish.
ii. All the indications are that over a period of some weeks last
summer, P and Q were forced by Mr C and Ms D, working in
partnership, to provide concocted accounts of horrific events. The
stories came about as the result of relentless emotional and
psychological pressure as well as significant physical abuse.”
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19. The amended grounds of appeal are settled by Mr Taj based on an earlier version settled
20. Grounds 1 and 2 are repetitive and stripped of some meaningless phraseology, they
represent a submission that the police investigation (note, not the court proceedings) were
procedurally irregular because there was (A) a lack of prompt investigation, (B) a lack of
effective investigation and (C) a breach of Police and Criminal Evidence Act codes
which separately or together represented a breach of the children’s Article 3 ECHR rights.
21. It is to be noted that the independent legal team representing the children do not support
the mother’s position in this regard.
22. If the submission is to have any effect, it has to be read as asserting that the judge was
wrong in law to place reliance on any of the materials that originated from the police
investigation, including the ABE interviews of the children, and/or that the judge’s factual
conclusions were plainly wrong because of the flawed material upon which the same
were based, i.e. no weight should have been placed on those materials.
23. Ground 3 is a submission that the mother was “prevented from participating” in the fact
finding hearing in breach of her Article 6 ECHR right to a fair trial.
24. Ground 4 is that the judge’s consideration of the expert evidence of a consultant
community paediatrician, Dr Hodes, was wrong, i.e. the judge should have placed much
greater weight on that evidence.
25. As a preliminary observation, questions concerning the weight to be attached to oral and
written evidence that a trial judge has considered are quintessentially for that judge.
Weight has to be considered in context, i.e. with the benefit of all of the bundles of
detailed written evidence, the contemporaneous records and importantly, the impression
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the judge has of the reliability and credibility of each witness.
26. There is clear jurisprudence setting out the high hurdle that an Appellant must surmount
to satisfy an appeal court that a finding of fact is perverse. The test was most recently
and conveniently described in the Supreme Court by Lord Wilson in Re: B (A Child)
(Appeal: Care Proceedings)  UKSC 33;  2 FLR 1075 at paragraphs 41 and
27. The Appellant cannot satisfy that test on the materials before this court, including the
new materials that are the subject of the ancillary applications that I have described.
I will return to that conclusion in due course.
28. Before this court, in order to obtain permission, the Appellant must demonstrate a real as
opposed to a fanciful prospect of success. She cannot do so on the material provided to
29. Having dealt with that preliminary conclusion, let me examine each contention and
ground of appeal separately.
30. Logically, one should begin with ground 3. The assertion made is that the mother was
prevented from participating in the fact finding hearing.
31. I have read the transcript of the judge’s consideration of the mother’s position on the first
day of the hearing on 17 February 2015. The mother was not present in court and had no
legal representatives present in court.
32. A McKenzie friend called “Ms McKenzie” asked for permission to represent the mother’s
interests. The judge indicated that she had read a letter from Ms McKenzie, which this
court has not been given, and then read out an e-mail from the mother which was sent to
the judge through her clerk. In that e-mail, the mother said:
i. “I am asking for permission for my McKenzie friend, Belinda
McKenzie, to represent my and my parents’ interests in the court
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33. The interests of the children’s maternal grandparents were not strictly relevant in that they
were not parties to the proceedings, but that is by the way.
34. The judge investigated why the mother was absent given that she had known of the
hearing date for over a month. Ms McKenzie, who had been involved since the mother
had dispensed with the services of her first legal team, told the court that the mother was
at an unknown location somewhere overseas and that she had gone there fearing that she
might be arrested.
35. Ms McKenzie said that the mother felt harassed by a third party. The third party was not
named in court, but Ms McKenzie described the mother’s flight overseas to be the
consequence of the actions of the police relating to the removal of what Ms McKenzie
described as “offending material from the internet”.
36. One can safely deduce from this that the mother feared that someone would take steps to
arrest her and she had decided to leave the country to avoid that event. Although Mr Taj
does not know of her whereabouts and, for example, whether that is overseas or not, in
submissions he confirmed the mother’s rationale for not being present in court at the fact
37. I make no comment on whether the mother was correct as respects her fear. It is beyond
contradiction that all kinds of material about the children, the alleged satanic cult and
many other matters had been posted on the internet. Whether any of these materials is a
contempt of court or a criminal act is not a matter for this court.
38. What is clear, however, is that the mother’s application was to be represented in her
absence by a member of the public who, of necessity, would have to call and
cross-examine witnesses and make submissions as to the facts in issue and questions of
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law in order to put and protect the mother’s case.
39. The judge refused the application. Her reasons are summarised at paragraph 20 of her
i. “Ms D and Mr C have not participated by being present in court. I
am as sure as I can be that their absence has been deliberate. They
have chosen to remain away; but the internet campaign has
continued. Countless online articles have been posted in which the
truth of the satanic abuse claims is asserted repeatedly.
Notwithstanding injunctions restraining Ms D and Sabine McNeill,
one of her supporters, from publishing information from the
proceedings on the internet or elsewhere, such material continues
to be uploaded. “
40. The extended discussion of the judge’s understanding of the background to the mother’s
failure to attend is set out at paragraphs 48 to 58 inclusive of the judgment as follows:
i. “48. The oral evidence began on 17 February. At 08.51 that day,
my clerk received an email from Ms D in which she asked
permission for her McKenzie friend, Belinda McKenzie to
represent her and her parents’ interests in court. Ms D stated that
she had been “prevented from being present in the court” and that
Ms McKenzie had her “formal instruction to convey (her)
position.” Ms McKenzie reiterated that request at the beginning of
the hearing. But, as I explained to Ms McKenzie, in circumstances
where the mother herself was absent, the Practice Guidance
relating to McKenzie friends expressly prohibits such an individual
from acting as the litigant’s agent or from conducting the litigation
on her behalf. In Ms D’s absence, it seemed to me that there was
no proper role for Ms McKenzie.
ii. 49. In response to my inquiry, it was established that Ms
McKenzie remained in contact with Ms D. She assured me she
would pass on a message urging the mother to participate by
coming to court and informing her that the hearing would continue
in her absence. Outside court on 17 February, Ms McKenzie
apparently indicated to the local authority’s legal team that Ms D
was in the process of instructing a lawyer. However, at no stage,
has there been any contact with anyone purporting to act on behalf
of Ms D.
iii. 50. The mother has remained absent from the court. Her partner,
AC, was outside the front entrance of the building on 17 February
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as part of the group campaigning for the “return of the
‘Whistleblower Kids’ to their Russian family.” A witness summons
was issued requiring his attendance to answer questions on Friday
20 February. Attempts to serve that summons were unsuccessful.
iv. 51. Earlier attempts at securing Mr C’s participation in the
proceedings because of the likelihood that the local authority
would seek findings against him were wholly unsuccessful. A
series of communications from the local authority’s solicitor went
v. 52. It may be the mother would contend that she has been
prevented from attending this hearing as the result of police action
on the evening of 12 February. DS Paul Speer from Colindale
police station described in evidence what happened firstly on the
morning of 10 February when he spoke with Ms D over the
telephone to discuss the material on the internet. Ms D told
DS Speer that “it was nothing to do with (her).” She did not wish
to speak to him and did not trust the police.
vi. 53. On 12 February, police officers attended at Ms D’s address.
Her car was on the driveway. A gentleman spoke with the police
through the letter box and indicated that he was the mother’s
lawyer. The police explained they were there to discuss possible
offences committed under s.4 of the Harassment Act 1997. They
were denied entry to the property. Whilst the police were waiting
for the means to secure a forced entry, three people climbed out of
a first floor window, ran along the roof line of three or four houses
and climbed down onto some nearby garages where they
disappeared from sight.
vii. 54. The mother has not been seen by anyone in authority since 12
February. There are rumours that she has fled abroad. Her
mother, Mrs G, told me she had had several phone conversations
with her daughter. The last occasion was the day before the
grandparents came to give evidence on 4 March. Ms D had not
said where she was and had not mentioned the court hearing.
Mrs G said she had tried to persuade her daughter to come back.
In response, Ms D had said she was afraid she would be arrested
and would not be able to “fight for the children.” Mrs G also said
that Mr C who they had seen as recently as 17 February had said
that they, the grandparents “should not know” where their daughter
viii. 55. There is no substance in the assertion that the mother has been
prevented from participating at this hearing. If she had been
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arrested on 12 February in connection with harassment allegations,
the overwhelmingly likelihood is that she would have been
released on bail enabling her to come to court on 17 February. If
she had been remanded in custody, I would have been in contact
with the police and prison authorities so as to make appropriate
arrangements for Ms D’s attendance at court.
ix. 56. As it is, Ms Draper has not communicated either with the local
authority or with my clerk at any time since 17 February. Nor has
she had contact with or made any inquiry about the children.
x. 57. Within her position statement for 26 January hearing, written
for her by Ms Sabine McNeill as she later revealed, the mother
made a thinly veiled threat as to what would happen if the children
“were not returned to their mother and grandparents with
immediate effect.” Ms D stated that the consequence would be
“high level embarrassment.” An open letter to Theresa May, the
Home Secretary, posted on the internet, explicitly states that the
Position Statement was “our offer NOT to expose this scandal in
exchange for returning the children.”
xi. 58. The clear message from recent events is that whilst Ms Draper
is prepared to campaign using the internet she is not willing to take
part in this inquiry.”
41. In support of the permission to appeal application there is no material which suggests that
the mother was prevented from participating in the fact finding hearing. The only
material that exists is that to which I have referred. There is no witness statement from
the mother and no application to adduce additional evidence from her relating to her
participation. That is a remarkable omission given the strength with which the mother’s
present lawyers assert that her Article 6 right to a fair trial has been violated.
42. During the hearing today, we have been shown a witness statement signed by the mother
and used at a case management hearing before Pauffley J on 15 July 2015. In that
statement at paragraph 11, the mother refers to her absence and says that the court is
aware of her reasons for the same. She does not set those reasons out.
43. Mr Taj says that she was afraid of being arrested by the police, that an injunction had
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been granted some days before the fact finding hearing which one must assume she was
in breach of or at least that was the allegation, and she feared detention under the
provisions of the Mental Health Act.
44. None of these propositions is evidenced before us, but even if one or more of them are
right, that would only go to strengthen the judge’s finding of fact that the mother was
deliberately absent from the hearing, i.e. she was making a choice not to participate.
45. It should be recollected that the mother had previously chosen to divest herself of her
lawyers for reasons which she is entitled to keep to herself. The judge invited her to
participate and she chose not to do so.
46. The mother could have attended the court as a litigant in person with or without her
McKenzie friend, and insofar as it was proper, she would have been assisted by the court
to put her case. She could have requested a telephone or video link. She could have
requested an adjournment.
47. She did none of these things because she chose not to participate. There is a finding of
fact from the judge to that effect. In my judgment, the judge had ample material upon
which to base her conclusion. Accordingly, it is wrong to say that the mother was
“prevented from participating” in the hearing.
48. Given that factual proposition and the absence of any evidence of a contrary case,
ground 3 is, in my judgment, unsustainable.
49. Mr Taj does not attempt to support the submission that the mother’s Article 6 rights were
violated by her lack of participation by reference to case law, the Rules or the Practice
Directions of the court. No case is put to this court that there is any Strasbourg or
domestic jurisprudence which requires the court to go further than it did.
50. The judge decided that in the absence of the mother, it was not possible under the Rules
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to allow a member of the public to represent her interests. That is equally a proposition
that is not challenged before us.
51. The transcript reveals that the judge invited the mother to attend and participate at any
time, having first ascertained that Ms McKenzie was in touch with her and having then
obtained Ms McKenzie’s agreement to pass on the invitation to her. It was to be of no
avail, but the judge took the precaution of making the offer.
52. The Appellant cannot rely on her own choice to invoke an Article 6 claim in the absence
of any evidence or challenge that (A) her interests could not have been protected if she
had taken advantage of the legal services that were available or (B) she had a
vulnerability that prevented her accessing those services.
53. Turning then to grounds 1 and 2. These grounds depend upon the weight to be placed
upon police investigative materials. It is the police investigation that is alleged to be
procedurally irregular and not the court’s process.
54. An examination of the judge’s judgment identifies the flaw in the Appellant’s argument.
The judgment does not place exclusive or even predominant reliance upon the police
investigative materials. The judge considers the uncontentious background, the way the
allegations came to light, the burden and standard of proof and how to evaluate the
weight to be given to hearsay evidence.
55. She considered the highly significant materials that originated from the mother and Mr C.
There were 16 mobile telephone video clips of conversations with the children, albeit that
some of them may have been duplications, and a video recording made on
4 September 2014 of Mr C, with some limited involvement of the mother, engaged in a
prolonged discussion with the children.
56. The judge records at paragraphs 101 to 103 of the judgment how the mother and Mr C
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influenced the children long before the police investigation was relevant. She said:
i. “101. On Mr C’s and Ms D’s own account, the children were
subjected to ten separate interrogations over a period of four weeks
interspersed with ‘brainstorming’ sessions in which Mr C and Ms D
came up with or worked out what they – and possibly the children
– put forward as having happened. In the context of what P and Q
later describe was done to them by Mr C in that four week period,
it is clear that they were effectively persecuted so as to compel
them to tell false stories.
ii. 102. There is every reason to conclude that over the course of the
four weeks spent abroad last summer, the children’s minds were
filled with ever more elaborate, fantastical and sexually explicit
stories. Over time, more and more detail was supplied to the
central core of the fabricated story. ‘Brainstorming’ brought about
expanded versions of events. More and more individuals were
named as participants within the cult. Venues for abusive
activities grew in number, spread across Hampstead and Highgate.
Ever more sexually explicit details were woven in to the fabric of
the fantasies in an attempt to make the children’s accounts
believable and seemingly authentic.
iii. 103. By the time the children arrived at the airport for the journey
back to England, at Mr C’s and Ms D’s instigation, they were able
to ‘speak to camera’ about the stories concocted during the
brainstorming. The obvious purpose of the film clips was to
provide ‘proof’. It was part of a deliberate plan by Mr C and Ms D.
The children do as they are told. They do so forthrightly, without
inhibition and with apparent conviction.”
57. The judge then went on to consider the ABE interviews conducted by the police with the
children. She described the content of those interviews in great detail. Then at
paragraphs 116 to 118 she comes to a conclusion in the following terms:
i. “Again and again, as I watched the interviews of 5 and 11
September my sense was that the children, for the most part, were
in the realms of fantasy. There was an urgency and an excitement
about what they were saying as the detail became ever more
elaborate. It was as if they had been transported away from reality
and into dream land. There were obvious parallels in what P was
saying with some aspects of the story line in C.S. Lewis’ ‘The Lion
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the Witch and the Wardrobe.’.
ii. 117. There was no change in the presentation of either child when
they described apparently horrific acts as experienced by them and
others. There did not appear to be any emotional connection with
what they were saying except that they seemed energised.
iii. 118. The other significant deduction is that material supplied by P
relating to the physical abuse of both children by Mr C in order to
get them to talk should alert any sensible observer to the potential
for false reporting.”
58. The judge’s findings of fact are not dependent on her impression of the ABE interviews.
There was much more. In reality, the mother and Mr C created the case against
themselves by their own extended and arguably abusive investigation of the children,
which was critical to the impression to which the judge came.
59. This court is asked to allow an application to adduce additional evidence in the form of
two reports from a person who describes herself as a trainer and investigator, Ms Wilson.
I have read her reports de bene esse, that is as if they were prepared without prejudice to
whether they should be admitted by this court.
60. If they were prepared by reference to the documents that originated out of the
Family Court proceedings, they are arguably prepared in breach of the Rules of the
Family Court because they were prepared without the court’s permission. That is why the
Family Court took steps to direct that the documents used to construct reports should be
retained so that any subsequent question of impropriety could be examined.
61. It is submitted that the reports were written for the purpose of being adduced in judicial
review proceedings relating presumably to the alleged unlawfulness of the police
investigation. This court has not been taken to any documentation from those
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62. On the assumption that that submission is correct, the author of the report should not have
used Family Court documents without the consent of the Family Court and the reports
still cannot be used in the Family Court without that court’s permission. That is an
elementary proposition of procedural law.
63. Having considered the content of the two reports, I cannot find anything in the same of
sufficient importance to justify them being received into evidence.
64. It is rarely, if ever, the case that a specialist family judge needs evidence from an expert
on the veracity, that is the reliability and credibility, of what a child is saying in an ABE
interview. There is repeated jurisprudence to that effect in the Family Court. That is an
essential part of the judge’s function. A judge would have to closely reason why it would
be necessary to have an expert to advise on the child’s veracity.
65. Good practice in interview technique in ABE interviews is very well-known. All family
judges are expected to be conversant with it. More than half of the content of
Ms Wilson’s reports simply sets out that good practice. There is no value added in that
part of her evidence.
66. Turning then to the importance of the application to adduce her reports as additional
evidence; that is to demonstrate that the retraction by the children of their allegations was
unreliable. To do that, the mother would have had to apply for permission to rely on
Ms Wilson’s reports, which she did not do, and then cross-examine witnesses about the
67. I note that Ms Wilson does not say in terms that the retractions are unreliable, but it may
be that if she had given oral evidence she could have said more about that topic.
68. None of what I have read is, I am afraid, sufficient to dislodge the judge’s own
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impression of the children’s hearsay evidence, gathered as it was from the mobile phone
footage of 16 discussions, the extended video of the children prepared by the mother and
Mr C and the ABE interviews which the judge had read and watched. The judge was
entitled to come to the conclusions that she did.
69. Speaking entirely for myself, I would not have permitted an expert like Ms Wilson to be
instructed to give evidence and the force and clarity of the judge’s conclusions are not
undermined by anything that that expert has written.
70. I ought to note for the record that Mr Taj submits that he has not seen the mobile phone
and video materials that the judge relied upon and he cannot, therefore, speculate on their
cogency. Likewise, neither can this court.
71. Ground 4 relates to the treatment by the judge of the evidence of the paediatrician,
Dr Hodes. The judge disagreed with Dr Hodes’ opinion. She reasoned that disagreement
in a number of ways, including (A) the opinion was unusual in that it treated reflex anal
dilatation as being definitive of sexual abuse and (B) clear review of Dr Hodes’
examination conclusions was to the effect that they were indicative of a normal variant in
the children, not sexual abuse.
72. Given the care with which paediatricians normally describe their findings in this
specialist field, the judge’s observations were well within the range of appropriate
comments from a specialist family judge.
73. The point taken on the appeal is not that the judge was not entitled to reason a contrary
view as she did, but that she should have directed a second medical opinion to be
prepared before doing so. That was a course the judge could have taken, but the question
is whether that course was necessary. I cannot see that it was.
74. The paediatrician’s opinion was but one element in the evidence that was available to the
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judge. It was clearly a bold opinion at odds with the published reports and advice in the
specialist profession of paediatrics of which the expert was a member and the judge was
entitled to take note of that.
75. It cannot be said that the judge’s findings were plainly wrong because of the way she
analysed the evidence of Dr Hodes. The highest Mr Taj can put this submission on this
ground is that counsel for the Local Authority and the children did not properly
summarise Dr Hodes’ opinion in their cross-examination of the police witnesses at the
fact finding hearing, i.e. he submits that the advocates minimised the effect of the
76. First of all, I am not persuaded that they did, in fact, do that, but that is a side issue. It
was the judge who weighed up all of the evidence and this was but one part. Even if she
had accepted the evidence of Dr Hodes, the overall balance of the evidence was still
against sexual abuse.
77. Finally, in respect of the first appeal against the findings of fact, there is an application to
adduce the additional evidence of a BBC interview with the father conducted after the
fact finding hearing in April 2015. It is said in that interview that the father sets out a
false version of the police investigation of him and that that can be used to cast doubt on
78. I remind myself that there are many reasons for someone not telling the truth, not all of
which are indicative of them being an abuser. Even if the Appellant is correct about the
light in which this interview casts the father, I cannot see how it can materially effect the
judge’s factual conclusions which centre on the children’s treatment by Mr C and the
79. The second appeal relates to the hearing on 27 July 2015 when the judge refused an
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adjournment of the 6 August 2015 hearing and authorised the redaction of documents to
be used in that hearing.
80. Dealing first with the redaction, this court has not seen either the original or the redacted
documents. We have only an unapproved note of judgment. It is not possible to say
whether the redactions go beyond anything that might be appropriate which might, for
example, include withholding the whereabouts of the children and the father given the
nature and extent of the internet activity in this case. It is simply impossible to say
whether the redactions are disproportionate.
81. In any event, it is apparent that the judge has given the mother effective liberty to apply
on 6 August 2015 to see anything that has been redacted or, to put it more accurately, to
challenge those redactions.
82. An appeal on the basis of redactions not yet demonstrated is precipate and given the fact
that public funding has been made available to the mother since a few days before
15 July 2015, I do not accept that the redactions in themselves prevent proper preparation
of her case for the hearing on 6 August 2015. I do not accept Mr Taj’s submission that he
cannot instruct counsel for the 6 August hearing. That is simply not right.
83. The mother should make her applications on 6 August 2015, as she has been invited to by
the judge. If she objects to any redactions that have been made and if she is not happy
with the order then made, her right of appeal to this court is preserved.
84. On the question of the adjournment of that hearing, I am very disturbed to be told today
that counsel is not formally instructed, despite the fact that legal aid has been granted. It
would be unacceptable to wait for counsel to return from holiday and then say to the
court below that no steps have been taken to prepare and so a adjournment must be
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85. There is no evidence before this court about the availability of a specialist family
advocate for the hearing on 6 August 2015 and I am not persuaded that such
unavailability is the case. In a case of this complexity, junior counsel or an advocate with
a HCA authorisation could prepare the same in the time that remains.
86. An adjournment decision is a case management decision quintessentially within the
allocated judge’s discretion. It is very rare indeed for this court to intervene. I have no
basis to intervene. The case can be prepared and now should be.
87. Accordingly, I refuse permission to appeal the findings of fact made on 15 March 2015.
I refuse permission to appeal the case management orders made on 27 July 2015.
88. Although I have admitted the additional evidence without prejudice to whether it should
be adduced as additional evidence, I would refuse each of those applications and those
materials are not before this court or the court below.
89. I would refuse the application for an adjournment of today’s hearing. It is plain that
Mr Taj was extremely well prepared and perfectly capable of presenting the Appellant’s
90. I have considered all of the submissions in the appellant’s amended grounds and skeleton
and have concluded that there is no realistic prospect of success in any of them.
91. LORD JUSTICE BEAN: I agree.
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