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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Kirklees Council v A & B & Ors (Care proceedings: Fact-finding) , Re  EWFC 68 (04 August 2015)
Cite as: , Re  EWFC 68
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Sitting at LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF K (born 3rd November 2011) & L (born 1st October 2013) (Children)
and A (born 4th March 2008), B (born 30th September 2010) & C (born 2nd May 2014) (Children)
Strand, London, WC2A 2LL
B e f o r e :
Re A (Fact-finding)
| Kirklees Council
GM & GF
K & L (Children)
A, B & C (Children)
4th & 5th Respondents
6th & 7th Respondents
3rd, 4th and 5th Respondents
Vikki Horspool (solicitor) for the First Respondent X
Samantha Sanders (solicitor) for the Second Respondent MS
Franklyn Zakers (instructed by Makin Dixon solicitors) for the 3rd Respondent SU
Louise Hill and Andrew Sugden (solicitor) for the 4th and 5th Respondents GM and GF
Melissa Murphy (solicitor) for the First Respondent SB
Will Tyler QC and Claire Murden (instructed by Jordans solicitors) for the 2nd Respondent FA
Joanne Astbury and Jane Leadbetter (solicitor) for the Respondent children K & L and A
Hearing dates: 22nd – 26th June & 1st July 2015
Crown Copyright ©
The Honourable Ms Justice Russell DBE:
Findings against FA
[In respect of Y] 1. Between approximately 1998 and a date in, or prior to, 2007 FA repeatedly sexually abused his niece Y. When the abuse started FA would have been approximately 13/14 years of age and Y 5/6 years of age. The abuse stopped when FA was 20/21 years of age and Y 12/13 years of age. The sexual abuse consisted of the following:
a) Indecent touching;
b) Taking indecent images of Y;
c) Digital penetration;
d) Forcing Y to engage in oral sex upon him;
e) Forcing Y to masturbate him;
f) Masturbating himself whilst in Y's presence;
g) On one occasion vaginal rape.
[In respect of Z] 2. Between approximately 1998 and a date in, or prior to, 2007 FA repeatedly sexually abused his niece Z. When the abuse first took place FA would have been approximately 14 years of age and Z would have been approximately 5 years of age. The sexual abuse consisted of the following:
a) Indecent touching;
b) Forcing Z to engage in oral sex upon him;
c) Masturbating himself whilst in Z's presence.
Findings against GM and GF
1. The sexual abuse perpetrated upon Y and Z by FA took place in the home of GM and GF and whilst on family holidays. GM and GF failed to protect their granddaughters Y and Z from the sexual abuse perpetrated by their son.
2. Following Y making the complaint of sexual abuse to the police, GM exerted emotional pressure upon her to encourage her to retract the complaint.
3. In 2009 GM made it clear that she did not believe Y's complaint of sexual abuse and would not support her if she maintained it.
4. In 2013 following Y giving birth, GM told her to drop it/leave it in the past. GM was referring to Y's allegations of childhood sexual abuse against FA. GM intended to intimidate Y and place her under emotional pressure not to pursue the complaint of sexual abuse.
5. Prior to making a complaint to the police in June 2009, Z told GM that FA had been sexually abusing her. GM made it clear that she did not believe Z. GM did not take any steps to inform any person in authority of this information.
6. In 2014 GM placed Z under emotional pressure not to restore her allegations against FA.
7. On one occasion when Z told GM that FA had been sexually abusing her, GM slapped her.
8. GM used excessive physical chastisement upon Z. This included hitting Z with a belt on more than one occasion.
9. GF used excessive physical chastisement upon Z. This included slapping her to [sic] the face and on occasion hitting her with a belt.
"If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one."
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof."
Evidence & conduct of the trial
"While some people are gifted with the power of consecutive and orderly narration, a great many are not. Many tell their experiences in a confused and anthropological manner. They put things in which they ought to leave out, and they leave things out which ought to go in. That is especially likely to be so when they are suddenly and unexpectedly caught up in an official investigation into something which is very worrying such as the apparent sexual abuse of a child..."
History & background
Local authority's case and evidence
"When I went to the police on the first occasion, my grandmother, [GM] told me to "leave it". She found out I had gone to the police and persuaded me to drop all charges against him. She said at the time that I was only making the allegations as I didn't want to live with her."
Q: " Just describe to me everything that happened on that occasion.
A: Like how it's begun like.
A: I was just playing on the computer and he just walked in... and I just carried on like playing and he's been in his boxers and he's told me to stand up so I did and he's sat down on the computer chair and he's told me to take his pants off so I did and he's pulled his boxers down to his ankles told me to sit on him but when I sat down I just sat like on his knee kind of thing... and he said no not there he said further back and erm he grabbed his penis and then when I sat down he put in place and then pushed me down and I started crying saying it was hurting he erm wunt let me go I were crying then he just carried on pushing me down until he'd finished while I were crying
Q: So I think I know where he's put it but where did he put his penis then?
A: In my vagina."
Q: ".. how did it finish ... that time?
A: When he ejaculated he told me to when I got up he told me to go and clean myself I were dirty and then I were bleeding as well so I went to the bathroom still crying and then afterwards cleaned himself up and just went back into his bedroom and I just laid on my bed crying and I was sore... it was really swollen and sore ... quite painful."
"then he'd do it when we went abroad get all the brolleys he'd put em all round so no one could see in two sun beds and he'd do things to me then come round to the apartment...".
"... I just know that my mum had come back from Court and said that she's been questioned about me raping her and she said no ..."
FA's case and evidence
GM's and GF's case and evidence
"Personality disorder of this nature and degree is inevitably accompanied by a most unpromising genetic background alongside a history of serious abuse, neglect or adversity in childhood, and [Z] is no exception. These factors are aetiological. It is highly likely that members of her family themselves suffer personality dysfunction. Her mother, sister and uncle like [Z] are all involved with Social Care in respect of their children. [Z]'s grandparents may, given her description of them, subscribe to personality dysfunction furthermore. In addition, [Z]'s mother is said to abuse alcohol and be depressed, her sister abuses alcohol and her brother abuses alcohol and drugs. It is of course very difficult to disentangle genetic effects from those of poor parenting. Again, [Z] endured a quite appalling childhood in most respects, and it is difficult to imagine how any young person would emerge with their personality unscathed. An unrealistic degree of robustness and resilience would be required to escape the consequences of such an upbringing. Neither did she benefit from protective factors, such as an unusual degree of intelligence, a particular talent, or positive support from an adult outside the family. As [Z] has indicated regrettably services failed to protect her, she was abused by her parents and grandparents throughout. I do tend to accept [Z]'s account of what happened given the nature and degree of personality disorder. Apart from physical and emotional abuse, [Z] also suffered sexual abuse and no one protected her from this. Regarding [Z]'s father, he played no part in her early life, and when she did go to him for help he suggested an incestuous relationship. There seems to have been no one who protected or cared for [Z] during her childhood as they should have done and I reiterate it is difficult to understand how any young person could have survived this. [Z]'s genetic background and her childhood adversity are, I would emphasise to her, not her fault."
Final Analysis of the local authority's evidence