Case No. KH18C00272

48.In addition to relying on extracts from the text messages, that in respect of Mr Weston’s client and Mr Cox’s client are opaque enough possibly to refer to the sexual abuse allegations and their responses to them, Mr Thomas submits there are messages from which legitimate questions can be put concerning drug use, drug dealing and lifestyle more widely. Mr Thomas submits that there is evidential value in the answers to such questions and credibility issues arise. Mr Thomas submits that the Local Authority must be permitted to ask questions on matters that arise from the answers given by the Respondents in their police interviews, in terms of internal inconsistency and on matters where inconsistent accounts are given as between the Respondents. Mr Thomas says there is merit in the Local Authority exploring with a mother why she believed her husband to be capable of sexual abuse of her children but did not express the same belief about her brother. Mr Thomas argues that the Local Authority is entitled to ask questions of the parents concerning the source of the sexual knowledge of the children, that is displayed in the allegations that they have made. It is also the Local Authority’s submission that it must be permitted to explore the dynamics between family members as are apparent in the records in the bundle. Mr Thomas submits there are proper questions to be asked of the Respondents over and above the need for them to respond to the allegations pleaded against them although, argues Mr Thomas, those allegations are reason enough for the Respondents to give oral evidence to answer them. 49.The position of all Respondents is that there is no ‘smoking gun’ buried in the case papers. It is submitted that there is nothing that can be put to any of the lay parties that will heal the local authority’s fatally wounded case. Many of the advocates describe the facts of this case as being unique in their experience. There is, it is submitted, no aspect of the Local Authority’s evidence that is uncontaminated by breaches of the guidance. It is submitted that this is a case in which professionals have done nothing right and everything wrong. There is, it is submitted, breach upon breach. Mr Cox QC submits that the breaches of the guidance have been pernicious throughout the process. He submits that the process is so corrupted that it has removed from the court the tools it relies on to assess the evidence. Mr Cox submits that the product of the investigation has so little evidential value, and the Local Authority case is so damaged, that nothing said under cross-examination by any Respondent can repair that damage. 50.Miss Lee QC reminds the court that the police, when giving oral evidence, conceded that there is nothing contained in the material downloaded from the devices that supports the allegations of sexual abuse. If that is right, as Ms Lee says it is, the Local Authority are wrong to submit that questions about text messages are likely to assist the court to determine the sexual allegations. Ms Lee submits that this is a unique case in which the evidence of all 10 professional witnesses heard have been completely undermined by cross examination. Ms Lee submits that the court should ask itself ‘what is the point in carrying on’ when it would be oppressive for the family members to be forced to answer distressing questions in circumstances where the case has not come up to proof. 51.Mr Weston QC complains that the Local Authority has not properly scrutinised its case to assess whether its evidence can now support the case it seeks to put to the Respondents. Mr Weston submits that the Local Authority has not engaged with, nor properly replied to, the submissions made by all Respondents that the numerous breaches of the guidance have completely undermined the ability of the court to make the findings the Local Authority seeks. It is Mr Weston’s submission that the Local Authority should identity those issues it intends to put in crossexamination, that it submits will cure the deficiencies in its case as, in his submission, no such evidence exists and his client should not be ambushed by something new. 52.Ms Thomas QC submits that her client did not have his device seized so there is nothing in the device download material that can help prove the allegations against him. Ms Thomas describes the Local Authority case as an illogical mess that is hard for her client to respond to. It is not clear, submits Ms Thomas, who the Local Authority are treating as credible witnesses and who they are not. She submits that the withdrawal of some allegations made by one child but the pursuit of others from the same child that were made at the same time and in the same manner is illogical. Ms Thomas observes that the Local Authority were given the opportunity to make additions to their schedule of findings upon receipt of the device download material but, despite a number of extensions of time to do so, no additional findings were pleaded. It is now too late, submits Ms Thomas, for the Local Authority to suggest that there are new matters to be put that come from their examination of that material. 53.Ms Miller, Mr Brown and Ms Baggs all adopt and support the main thrust of the submissions put by others. They submit that the Local Authority’s allegations are unsustainable and cannot now be proved. Nothing can be drawn from any witness in cross-examination to correct the flaws in the investigation and the Respondents should not, they submit, be required to give evidence in these circumstances. 54.Mr Brown reminds the Court that due the particular vulnerabilities of his client, a case management decision was made many months ago that his client would not be required to give oral evidence. He submits the case against his client is over now and it cannot be proved on the evidence as it is now. However, Mr Brown concedes that as Ms Miller’s client is alleged to be present during an abusive incident involving his client, what is said by that witness could possibly be relevant to his client’s position.55.In her written submissions, Ms Hall on behalf of the children, reminds the court of the judgment of Thorpe LJ at paragraph 7 of his judgment in Re S- A-K (children) [2011] EWCA Civ 1834, when he said: "The protection of children in public law proceedings is primarily in the hands of other agencies, but when the case is brought into the judicial arena, the judge is an important partner in the process of child protection. Accordingly, it is incumbent on any judge to dig deep, as deep as is reasonably practicable, before arriving at the conclusion that there is no danger to the child and that the child's account of abusive experience is incredible, not to be believed. It is not a case in which the judge can say that the child is mistaken. A rejection of the local authority's case inevitably carries the conclusion that the child had made a false allegation against her stepfather. That outcome should not be reached without the judge having the best available evidence." 56.Ms Hall supports the Local Authority submissions that the evidence cannot be evaluated until it has all been heard, including the evidence of the Respondents. Although the judgment was given in a private law case, Ms Hall relies on the words of Thorpe LJ in Re R [2008] EWCA Civ 1619 where the following is said: “So, if I were formulating a general test, I would inclined to say that trial judges in preliminary fact-finding hearings involving serious allegations of domestic violence should never terminate the case without hearing all available evidence. It may be dangerous to say 'never', but I can only conceive of a termination that rested on a concession from the applicant that that was inevitable or appropriate at the conclusion of the evidence. So long as the applicant sails on into the gunfire I think the judge has the obligation to hear the case out. His obligation derives from his responsibilities to the child. There are many obvious instances in which what may seem to be a frail case at the conclusion of the applicant's evidence, nonetheless at the conclusion of all the evidence can be seen to be one that is not without substance or foundation” 57.Ms Hall reminds the court of the words of Sir Mark Hedley at paragraph 49 of AA v 25 Others: “It is extremely important to underline that in family proceedings the cost of a mistake either way is equally serious. If I make a finding in this case against a parent when I should not have made a finding, not only would that be a gross injustice to the parent, but it would disturb, upset and possibly frustrate the lives of children throughout the whole of their childhood, if not beyond. If, on the other hand, I were to fail to make a finding when I should have made a finding, it would be to expose children immediately returned to that person's care to wholly unacceptable risk of abuse in the future. The cost either way is equally grave and that is an important factor to bear in mind when one is examining what the purposes of hearings under Part IV actually are.”58.Ms Hall submits that the court should make no determinations until all the evidence is heard.