Appeal court kicks out judge’s ban on police investigation

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The Guardian

A family court judge overreached his powers in making an order blocking the Metropolitan police from interviewing two children who reported allegations of abuse by their father, the court of appeal has found.

An application to review the “highly exceptional order” came before judges at a hearing on 28 June and the appeal was upheld after it was deemed Mr Justice Keehan should not have restricted the actions of the police.

The welfare of the siblings at the centre of the case has been the subject of “long, complex and sad” private family law proceedings detailed in four published judgments.

Following the instruction of two court-appointed experts, Dr Janine Braier and Ms Karen Woodall, who worked with the family over 15 months, the mother was found to have “alienated” the children from their father and in November 2020 they were transferred to his care while she was granted extremely limited access. After initially running away and being retrieved by police the children were said to have settled.

However, as described in the judgment, handed down on Friday by appeal judges Lady Justice Macur, Lord Justice Peter Jackson and Lord Justice Nugee, an email was sent to the children’s school on 15 October 2021 with allegations against the father and apparently signed by both children. It read: “Currently our father has custody of us. In the past we’ve been locked up, searched, hit, pushed, choked.” It went on: “We live in a constant state of terror”, and added: “We have spoken to the police, repeatedly. We have spoken to social services. We have run away time and time again and no one believes us. Karen Woodall. Judge Keehan. Social services. These are the people and organisations that have failed time and time again to help us.”

The school notified police and when officers visited the home they saw no signs of injury or abuse. But when police went to the school the same day, the father arrived to say there was a court order preventing them from speaking to his children. The injunction said that the court was “satisfied the father had not acted inappropriately towards either of the children” and prohibited the Metropolitan police and children’s services from interviewing either child without the judge’s “express order”. It was later varied but was still too limiting in scope, the Met said.

In the meantime the children had applied to be separately represented by their own solicitor to whom they provided “clear and compelling instructions” of their father’s “abuse”. But the application was refused by Keehan.

More allegations surfaced in December 2021 after Woodall, working as the children’s therapist, gave evidence that one of the teenagers alleged they had been repeatedly contacted by their mother, breaching court orders, through a third party.

Woodall produced a report stating that a man had appeared on the street providing them with phones, prompting Keehan to suggest that the children needed bodyguards and were at “exceptional risk of harm”.

At a high court hearing in March an advocate for the police argued for overturning the injunction. But Keehan refused, saying the local authority was satisfied the children were safe in the care of their father, and that questions from the police regarding allegations against either parent would cause the children “emotional and psychological harm”.

Last month a barrister representing the Commissioner for the Metropolitan police told the court of appeal the allegations were of concern to both the police and the public. Richard Howell QC said it was “unsatisfactory” the father had chosen not to involve the police in allegations made by the children about a third party to Woodall. “The fact the father is using the court process to prevent the police from speaking to his children about, in part, allegations against him doesn’t sound right.”

Howell added: “It must be in the wider interest of the children to have a voice and to know the police are there for them. If the police were to speak to the children it would be a wholly independent approach. There is nothing in any submission I make that is anti-mother, anti-father or anti-Woodall.”

Representing the father, Stuart McGhee urged the court to reject the appeal. The barrister said: “The judge has found in favour of the father that he has not posed any risk.” McGhee asked the court to consider earlier remarks by Keehan, which indicated police involvement would distract the children from therapy. “He notes …the most vital thing for the children is not participating in litigation but engaging in therapeutic work with Karen Woodall. Anything that stands in the way of the therapy will cause damage to the children. The judge is saying the focus has to be on repairing the relationship with the father.”

The appeal was accepted on three grounds relating to the court’s power to make an order of this nature including that Keehan was wrong not to discharge the October order and “fell into error” in not paying sufficient heed to the duty of the police to investigate matters in the interests of the children and the wider interests of justice.

Two further grounds relating to the judge’s welfare evaluation and including that Keehan had placed too much weight on the expert report by Woodall, were rejected.

In a judgment upholding the appeal, Macur said there was no indication of how Keehan arrived at the assertion the father had not acted inappropriately.

She added that Keehan in refusing the police’s application said the local authority had “satisfied themselves that the children are safe and well in the care of their father” and there was no further safeguarding role for them. However, Macur noted it was not suggested that the local authority had spoken to either child before reaching that decision.

She said the police, in previous submissions to the court, had failed to highlight the relevant case law, which made it clear how “vanishingly rare will be the circumstances in which a high court should … make a prohibitory order against a public authority exercising statutory powers.”

Macur said there was a “considerable body” of jurisprudence including a 1985 case in which Lord Scarman said: “The high court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by parliament to another public authority.”

“Keehan’s previous findings, that the children were manipulated to make false allegations against the father, do not exclude the possibility that those more recently made were credible, nor do they absolve the Metropolitan police service from its responsibility to consider whether to investigate the allegations,” Macur said.

She said Woodall’s evidence raised allegations of serious criminal activity in which the children appeared to have been stalked and groomed and justifiably led Keehan to question the need for bodyguards.

Macur added: “I find it difficult in those circumstances to understand why he, and leading counsel for the father, considered that Ms Woodall’s evidence would, or should, deter the Metropolitan police service from wishing to proceed with the application.” Jackson and Nugee agreed the appeal should be allowed.

While the important appeal shines a light on the interplay of powers between the Family Division’s emphasis on child welfare and the statutory duties of public bodies, the wider case also raises questions as to the extent and use of court appointed psychological experts in cases where allegations of “parental alienation” are raised.

In documents submitted to the court for the 28 June hearing the Met’s advocates highlighted the role of Woodall, writing: “The concern is as to the appearance or otherwise of her independence and that too much emphasis has been given … to the report and opinions of Ms Woodall in respect of the police speaking to the children. She is seemingly playing a large role in the Metropolitan police Service being unable to even have a preliminary talk with the children.”

A skeleton argument supporting the appeal from the mother’s legal team outlined her concerns that Woodall’s recommendations are relied on by the court despite her not being registered with the regulatory body the Health and Care Professionals Council.

It highlighted guidance from The Association of Clinical Psychologists UK, which notes “only a practitioner psychologist registered with the HCPC such as a clinical psychologist can give a diagnosis or make recommendations about therapeutic interventions.”

The court document also raised questions about Woodall’s independence including a claim that she provided “babysitting and nanny services for a weekend” when the father travelled abroad.

Woodall was not a party to the case. However, in a skeleton argument McGhee claimed the mother had “a strategy to destabilise the children living with their father and disrupt the psychotherapy work which continues with [Woodall], an expert the [mother] has sought (unsuccessfully) to have removed from the case and who continues to work with the children against the clear opposition of the mother.”

Macur referred to the mother’s skeleton argument stating it contained matters with an obvious partisan slant despite the rejection of permission to appeal on welfare grounds.

No criticism was made of Woodall by either the appeal judges or Keehan.

July 17, 2022 at 01:54PM Hannah Summers

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