[View without highlighting]
[Printable RTF version]
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWFC 62
||Case No: WV16C000267
IN THE FAMILY COURT
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR. JUSTICE KEEHAN
|| Wolverhampton City Council
||- and -
X and Y
(Children by their Guardian)
3rd & 4th Respondents
Mr. Jeremy Weston QC and Miss Lakin (instructed by Wolverhampton City Council) for the local authority
Miss Henke QC and Miss Grant (instructed by Sharratts solicitors) for the 1st respondent
Miss Lorna Meyer QC and Miss Gallacher (instructed by D&N solicitors) for the 2nd respondent
Mr. Hadley and Mr. Maynard (instructed by Anthony Collins solicitors) for the newly appointed Children's Guardian
Mr. Stefano Nuvoloni QC and Mrs Helen Arthur (instructed by Askews legal) for the 1st intervener
Miss Catherine Preen and Miss Annabel Hamilton (instructed by Talbots solicitors) for the 2nd intervener
Hearing dates: 3rd, 10th, 11th, 12th, 13th, 14th, 17th, 19th, 20th, 21st, 24th, 25th, 26th, 27th, 28th and 31st July 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr. Justice Keehan :
- This application for care orders is made by Wolverhampton City Council ('the applicant local authority') in respect of two children, X, who was born in 2004 and is 13 years of age, and Y, who was born in 2005 and is 12 years of age. The application was issued on 14 June 2016.
- The mother of the children is JA, the First Respondent. The father of the children is TG, the Second Respondent.
- There are two interveners to these proceedings, ZK, a former partner of the mother who is the First Intervener and UA, the children's maternal grandmother who is the Second Intervener. Findings of Fact are sought against another former partner of the mother's, YQ. He was invited to intervene in these proceedings and to participate in this fact finding hearing. He declined.
- The matter had been listed for a composite hearing, however, the concurrent criminal proceedings proceeded at a slower pace than had been expected: the criminal trial overran into this hearing. Accordingly the commencement of this hearing was delayed which has resulted in the parties agreeing that the court could only complete the fact finding element of this hearing.
- The findings of fact sought by the local authority are set out in an Amended Composite Threshold Document (no. 2) dated 9 May 2017. The full findings sought by the local authority appear in Annexe A to this judgment.
- The findings against the parents and the interveners may be summarised as follows:
a) it is alleged the mother
(i) caused Y emotional harm;
(ii) was neglectful in her care of Y;
(iii) failed to protect X and Y when she knew that X had told her that the father has physically assaulted her and both X and Y had separately told her that the father had acted inappropriately towards each of them respectively;
(iv) gave inconsistent and dishonest accounts to professionals about her respective relationships with YQ and ZK; and
(v) accordingly she knew or ought to have known that X and Y had been subjected to sexual, physical and emotional harm and had failed to protect either of them;
b) it is alleged the father
(i) sexually harmed X and Y;
(ii) had a sexual interest in children more generally;
(iii) physically harmed X and Y;
(iv) emotionally harmed X;
c) it is alleged that ZK sexually harmed X and Y;
d) it is alleged that YQ sexually harmed X and Y;
e) it is alleged that UA;
(i) emotionally harmed Y;
(ii) was told by Y of the father's inappropriate touching of her but failed to take any steps to protect her; and
(iii) accordingly she knew or ought to have known that X and Y had each been sexually, physically and emotionally harmed but she failed to protect either of them; and
f) more generally it is alleged that
(i) both X and Y have displayed inappropriate sexualised behaviour, language and knowledge; and
(ii) when X first arrived at her foster home she was wearing inappropriate underwear.
- In broad terms the parents, ZK, YQ and UA each deny the allegations and assertions made against them.
THE FATHER'S FITNESS TO PLEAD AND CAPACITY
- On 19th April 2017 the father was found by the criminal trial judge to be unfit to plead. He was not discharged but the jury were required to return, not verdicts against him, but rather findings of fact that he did the act alleged or, as the case may be, to acquit him.
- On the basis of the evidence relied on in the criminal proceedings that the father was not fit to plead, the President determined on 12 June 2017 that the father lacked litigation capacity and appointed the Official Solicitor to act as his Litigation Friend (subject to the Official Solicitor accepting the court's invitation to so act and the Official Solicitor subsequently did so).
- In relation to the findings of fact sought, I remind myself that the burden of proof is on the local authority.
- The standard of proof is the simple balance of probabilities: Re B  UKHL 35.
- I remind myself in relation to lies told by a witness that I should take account of a revised Lucas direction. Accordingly I should only have regard to a lie told by a witness if I am satisfied that there is no innocent reason for the witness to have lied in his/her evidence.
- The Court of Appeal considered the application of a Lucas direction Re H-C  EWCA Civ 136. McFarlane LJ emphasised the following at paragraph 100:
"One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton  Crim.L.R. 251.
In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt."
- I entirely accept that the mere fact of a lie being told does not prove the primary case against the party or witness who has been found to have lied to the court.
- Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on mere suspicion, surmise, speculation or assertion: Re A (A Child) (Fact Finding Hearing: Speculation)  1 FLR 1817 and Re A (Application for a Care and Placement Orders: Local Authority Failings)  1 FLR 1.
- There is no obligation on a party to prove the truth of an alternative case put forward by way of a defence and the failure by that party to establish the alternative case on the balance of probabilities does not of itself prove the local authority's case: Re X (No. 3)  EWHC 3651 (Fam) and Re Y (No. 3)  EWHC 503 (Fam).
- When considering the allegations made by X and Y whether in ABE interviews or elsewhere I bear in mind and apply the following:
a) no case of alleged sexual abuse where there is an absence of any probative medical or other direct physical evidence to support a finding can be regarded as straightforward: Re J (A Child)  EWCA Civ 875;
b) the greatest care needs to be taken if the risk of obtaining unreliable evidence from a child is to be minimised. Children are often poor historians and many are suggestible: Re B (Allegation of Sexual Abuse: Child's Evidence)  2 FLR 1071 at paragraphs 34 to 35, 37, 40 and 42 to 43;
c) the 2011 revision of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures;
d) the court must acknowledge and carefully analyse material where there are numerous and substantial deviations from good or acceptable practice in ABE interviews or other procedures adopted for interviewing children and must consider whether or not flaws in the ABE process are so fundamental as to render the resulting interviews wholly unreliable: Re E (A Child) (Family Proceedings Evidence)  EWCA Civ 473 at paragraph 35;
e) a court considering the hearsay evidence of a child must consider what the child has said, the circumstances in which it was said and the circumstances in which any alleged abuse might have occurred: R v B County Council ex parte P  1 FLR 470 at page 478;
f) the extremely helpful summary of the principles to be applied and approach to be taken in cases of alleged sexual abuse set out by MacDonald J in AS v TH (Fake Allegations of Abuse)  EWHC 532 (Fam).
CASE MANAGEMENT ORDERS
- There was an initial case management hearing before District Judge Watson on 23 June 2016 when various directions for disclosure and for the LA to file evidence were given.
- Thereafter the matter was allocated to HHJ Bush who heard a series of case management hearings which culminated in a hearing on 23 November 2016. The relevant recitals in that order are as follows:
- Upon it being recorded that West Midlands Police have recently disclosed material in relation to allegations made by X in relation to both her mother and her father which includes statements from the former solicitor for the child, the former guardian for the child and the foster carer for X.
- And upon it being recorded that it is likely that the former solicitor for the child and the former guardian will to have to give evidence in this matter where issues of their credibility and professional competence may be raised and that the former solicitor for the children in particular is an advocate who frequently appears before all members of the judiciary in Wolverhampton, Birmingham and Walsall and other areas of the Midland Circuit occasionally.
- And upon it being recorded that in those circumstances, the matter is to be referred to Mr. Justice Keehan for consideration as to reallocation to either a judge of the Family Division or a Recorder who does not ordinarily sit on the Midland Circuit.
The matter, therefore, came before me on 6 December 2016. On that occasion I made various directions including the following:
- And upon it being recorded that wherever possible trial counsel must attend all future hearings (unless fixed at short notice or during annual leave) due to the importance of continuity of representation in this case.
1. (i) By no later than 4 p.m on 9th December 2016, Solicitor for the Children shall write to the appropriate manager at [ ] Solicitors informing her that Sinead Noel, the former children's solicitor, employed by them is likely to be a witness of fact in these proceedings and is likely to be the subject of criticism as to her professional conduct;
(ii) By no later than 9th December 2016, the Solicitor for the Children shall write to the CAFCASS Service Manager informing him that AB, the former children's guardian, is likely to be a witness of fact in these proceedings and is likely to be the subject of criticism as to her professional conduct;
(iii) The letters at 1(i) and (ii) shall inform them that any applications by them in relation to the proceedings shall be made by no later than noon on 16th December 2016 marked for the attention of Mr. Justice Keehan. Any application may be sent by email to the clerk to Mr. Justice Keehan.
2. (i) By no later than noon on 12th December 2016, the solicitor for the Local Authority shall write to the Crown Prosecution Service and Defence solicitors of TG, ZK and YQ informing them that the fact-finding hearing in these family proceedings has now been listed before the President of the Family Division on the 6th of March 2017.
(ii) The letters at (i) above shall inform them that any applications raising objection in relation to the family hearing proceeding prior to the criminal trial shall be made by no later than noon on 16th December 2016 marked for the attention of Mr. Justice Keehan. Any application may be sent by email to the clerk to Mr. Justice Keehan.
(iii) By no later than noon on 16th December 2016, the Crown Prosecution Service are invited to confirm in writing to the Local Authority for onward disclosure to the other parties and court whether it is likely that charges will be laid in respect of the recent allegations by X and if not, why not.
3. (i) By no later than noon on 16th December 2016, the solicitors representing the interveners shall identify to all other parties any further disclosure they require by reference to the most recent index served upon them.
(ii) Provided there is no dispute as to their entitlement to the same, the Local Authority shall serve copies of the same on the interveners solicitors by 21st December 2016.
4. By no later than noon on 21st December 2016, the Local Authority shall file and serve:
(i) Together and Apart Assessment
(ii) Statement from Sinead Noel as to the contents of her conversation with Y on 6th September 2016 only.
(iii) Statement from AB as to the contents of her conversation with Y on 6th September 2016 only.
(iv) Statement from Y's foster carer as to conversations (if observed/heard by her) between the former Children's solicitor and Guardian on 6th September 2016 only.
5. By no later than noon on 23rd December 2016, the Local Authority shall file and serve an amended schedule of threshold findings.
6. By no later than noon on 6th January 2017, West Midlands Police shall provide the disclosure set out in the attached order to the Local Authority and the Local Authority shall serve the same forthwith upon the solicitors for the second respondent father. The Local Authority and second respondent father's solicitors shall endeavour to agree any relevant documents within that disclosure for service upon the other parties and interveners. In the event of a dispute about relevant documents, the solicitors for the Local Authority and second respondent father shall promptly issue a joint C2 application for directions in relation to the same.
7. By no later than noon on 16th January 2017, the first and second respondents and interveners shall file their response to the amended schedule of threshold findings.
8. By no later than noon on 27th January 2017, the parties shall file skeleton arguments addressing the issue as to whether the children should give oral evidence at the hearing in paragraph 10 below. The skeleton arguments should also address any special measures to be implemented on behalf of the children, any alternatives available to giving oral evidence such as pre-recorded questioning by video on the basis of agreed questions. For the avoidance of doubt, the skeleton argument on behalf of the children will include details of any relevant welfare matters in relation to the children giving evidence identified by the Guardian.
9. By no later than noon on 1st February2017, the Local Authority shall file an agreed limited bundle for the Re W listed below at paragraph 10 and provide copies of the relevant DVD's of the ABE interviews of Y and X with the same. Permission is granted for the bundle to exceed 350 pages in light of the length of the transcripts of the ABE interviews of the children and the police interviews of the parents and interveners which amount to 208 pages and the need for reports from intermediaries and psychologists involved with the children to be placed before the court also.
10. The matter is listed for a hearing before the President of the Family Division at 10.30 a.m on 6th February 2017 at the Royal Courts Justice (time estimate 1 day). The matters to be considered at that hearing are:
(i) Whether the children should give oral evidence at the hearing in paragraph 10 below ( Re W);
(ii) Directions in respect of the hearing commencing on 6th March 2017 including in particular the identification of witnesses required to give oral evidence and the contents of the trial bundle;
(iii) Whether the hearing can still proceed as a final hearing or requires a split hearing.
11. The Crown Prosecution Service and representatives on behalf of the defendants are invited to attend the hearing.
12. The Local Authority shall file and serve its final evidence and care plans setting out its plan (including on an alternative basis in the event that findings of sexual abuse/failure to protect are not made) by noon on 3rd February 2017.
13. The First and Second Respondent shall file and serve their response to the Local Authority final evidence by noon on 17th February 2017.
14. The Guardian shall file and serve her final analysis and recommendations (including on an alternative basis in the event that findings of sexual abuse/failure to protect are not made) by 9 a.m on 6th March 2017.
15. The matter is listed for final hearing commencing at 10. 30 a.m. on 6th March 2017 (time estimate 15 days) at Birmingham Civil Justice Centre, Bull Street, Birmingham before the President of the Family Division. Parties to attend at 9.30 a.m.
At a hearing on 6 February 2017 the President made the following principal orders and directions:
16. Costs in the application.
1. The hearing listed to commence on 6th March 2017 with a time estimate of 15 days before the President of the Family Division is hereby vacated.
2. Permission in principle is granted to the local authority to amend its threshold document to include allegations relating to CD and child pornography. The Local Authority shall serve an amended threshold document including such allegations by no later than 2 p.m on 20th March 2017. The amended threshold document shall be prepared as a Scott Schedule including responses to the existing threshold documents received thus far. The Schedule shall number each allegation in the left hand column.
3. By no later than 2 p.m on 3rd April 2017, the parties shall respond (if so advised) to the amended threshold document.
4. Upon receipt of the responses referred to in paragraph 2, the Local Authority shall compile a composite threshold document containing all responses to be circulated to all parties for agreement as to its accuracy by no later than 2 p.m on 10th April 2017.
13. The matter shall be listed for a Case Management Hearing at 10.30 a.m on 4th April 2017 at the Royal Courts of Justice before the President of the Family Division . The Crown Prosecution Service are invited to attend and/or be represented at that hearing.
14. The following timetable shall apply in relation to the evidence required for the final hearing listed before Mr. Justice Keehan to commence on 3rd July 2017 with a time estimate of 25 days:
1. By no later than 2 p.m on 2nd June 2017, the Local Authority shall file and serve its final evidence and care plans.
2. By no later than 2 pm on 16th June 2017, the First and Second Respondent shall file and serve their evidence in response.
3. By no later than 2 p.m on 30th June 2017, the Guardian shall file and serve her final analysis and recommendations.
15. Costs in the application.
On 6 April 2017 the President approved the following order the relevant parts of which are:
1. There be permission to the Solicitors for the 2nd Respondent to disclose to the Official Solicitor the following documents:
2. Current Index to the care proceedings bundle
3. Case Summary
4. Schedule of Findings sought by the Local Authority
5. Assessment of Mr TG by Clinical Psychologist Dr EP dated the 26th September 2016
6. The addendum Report of Clinical Psychologist Dr EP dated the 30th September 2016
7. Psychiatric Assessment of Mr TG by Dr EJ, Consultant Forensic Psychiatrist dated 22nd December 2016
8. Psychiatric Assessment of Mr TG by Dr EQ, Consultant Forensic Psychiatrist dated 21st February 2017
9. The documents referred to in paragraph 1 (a) – (g) shall be disclosed to the official solicitor by 4pm on the 10th April 2017.
10. The official solicitor shall notify the 2nd Respondent's solicitors by 4pm on the 20th April 2017 whether:
(a) It is appropriate for them to provide a response to any invitation to act on Mr TG's behalf in advance of receipt of the psychiatric report commissioned by the CPS
(b) Any additional papers they seek release of filed within the care proceedings
(c) Whether they consider it is appropriate to consent to act for Mr TG
The matter was listed for a further case management hearing before the President on 21 June 2017. The principal and relevant parts of that order are:
(d) There be no order as to costs
1. The matter shall remain listed before Mr Justice Keehan between 3 July 2017 and 4 August 2017 at the Birmingham Family Court, Birmingham Civil Justice Centre, Bull Street, Birmingham on the following basis:
(i) The first day of the hearing shall be utilised as an IRH/PTR at shall be listed at 14.00, with advocates to attend at 13.00. The attendance of the father and Mr. ZK is excused in the event that they are required to attend before the Wolverhampton Crown Court.
(ii) Subject to the approach preferred by Mr Justice Keehan, oral evidence shall commence on 10 July 2017.
(iii) The matter will now take place as a fact-finding hearing only, with the welfare stage to be re-timetabled following the conclusion of this hearing.
5. The restrictions regarding disclosure not being provided to the mother or the interveners put in place by the Order of 6th February 2017 and in relation to the transcripts of witness evidence obtained from the criminal trial remain in force until further order. For the avoidance of doubt, the restriction in relation to the transcripts also applies to the father. This issue shall be reconsidered during the course of the hearing commencing on 3rd July 2017.
6. By no later than 4 p.m. on 27th June 2017, the Local Authority shall file and serve an interim witness template which contains a running order of witnesses for the fact finding hearing, including the date(s) and time estimates for the evidence of each witness where possible. A further updated template will be provided by no later than 10 a.m on 3rd July 2017.
7. Permission is granted for the bundle to exceed 350 pages. A copy of the limited bundle agreed between the parties is to be delivered to the Birmingham Civil Justice Centre by 2 p.m on 27th June 2017 along with a copy of the full bundle in electronic format (on disk).
8. Any further documents to be included in the limited bundle shall be considered at the hearing on 3rd July 2017.
11. The local authority shall obtain, file and serve transcripts of evidence obtained from relevant witnesses in the criminal proceedings on an expedited basis. The following consequential provisions shall apply:
a) The remaining witnesses from whom such evidence is required is as follows:
Police Constable A
(Evidence from the above witnesses has already been given and has been requested from the transcribers)
(Evidence from the above defence witnesses is anticipated to occur between 22nd June and 30th June 2017).
b) Such transcripts as are sought shall, in the first instance be paid for by the local authority;
c) However, thereafter, the costs of those transcripts shall be divided as between local authority and all other parties (i.e. 1/6 shares);
d) At the hearing on 3rd July 2017, the court will consider the cost of the transcripts and apportion the same as between the parties.
12. Costs in the application.
The matter was listed before me for an IRH on 3 July 2017. The fact finding hearing began on 10 July 2017.
The mother and the father began a relationship in about 1996. They married on 21 July 2002.
X was born in 2004. Y was born in 2005. Later that year the maternal grandfather died.
In 2007 the parents separated and thereafter shared the care of the children. The father remained living in the former matrimonial home and the mother went to live with the maternal grandmother.
In August 2007 an anonymous call to Childline, alleging that the children were suffering sexual abuse, physical abuse and neglect, was referred to the local authority. An initial assessment of the family was undertaken by the local authority but the children remained living with the parents under the shared care arrangement.
On 17 January 2008 the father issued a residence application in respect of both children. This was followed by a counter application made by the mother on 3 April 2008.
On 13 July 2008 the allocated social worker filed a S.7 report for the purposes of the private law proceedings in which she:
a) noted no concerns about the children in the care of the father to whom both appeared to relate well; and
In September 2008 X was seen to become 'panicky in school' and 'hysterical' when she thought she was going to father's home. Further X was noted to be displaying changed behaviour in terms of sexually inappropriate behaviour and being overly affectionate to other children. At the same time Y was complaining that her nappy hurt her when it was changed. In consequence the local authority arranged for a child protection medical to be undertaken by both of the children.
b) recommended that no order be made and that the existing shared care arrangement continue.
They were medically examined on 29 September 2008. The clinician concluded that the findings demonstrated X had been sexually abused and were suggestive that Y had been sexually abused. No allegations of sexual abuse were then made by either child.
In October 2008 the father was interviewed by the police but denied sexually abusing either of his children. There followed a police interview of the mother in which she denied involvement in or knowledge of the sexual abuse of either of her daughters.
On 20 October 2008 an initial child protection conference was held and the children were made the subject of child protection plans under the category of sexual abuse.
In November 2008 the results of the forensic swabs were negative. Therefore the police investigation was closed.
During the course of this investigation the father's contact was restricted to supervised contact at a contact centre. After the close of the police investigation the restrictions were relaxed so that his contact was supervised by the paternal grandparents.
ZK's contact with the children, with whom the mother continued to deny she was in a relationship, was to be supervised by the mother or the maternal grandmother.
A parenting assessment of the parents recommended that the children remain in the care of the mother.
In March 2009 an independent paediatrician reviewed the conclusions of the child protection medical and advised that she did not agree with the same.
By April 2009 the court, in the private law proceedings, approved the father having unsupervised visiting, but not staying, contact with the children.
On 26 June 2009 the child protection plans came to an end and the children were the subject of child in need plans.
In July 2009 the children's contact with the father was reported to be positive, there were no further signs of inappropriate sexualised behaviour, two trial sessions of overnight contact with the father were successful and the court approved the father having regular overnight weekend contact but did not endorse a return to the previous shared care arrangement because the children needed a secure home base during the school term.
On 23 March 2010 the private law proceedings concluded with a shared residence order being made in favour of the parents.
In mid 2011 the mother began a relationship with ZK.
In early 2012 the mother ended her relationship with ZK.
Thereafter in 2012 YQ moved into her family home and they began a relationship.
On 18 October 2012 CD was ABE interviewed by the police. She alleged her brother and two other males had raped her.
On 8 May 2013 the mother denied to social care professionals that she was in a relationship with YQ.
CD underwent further ABE interviews with the police in August 2013. In those interviews she described how she and her sisters were sexually abused by various men who visited her family home and all of whom would pay money to her father or one of her uncles. On 23 January 2014 she alleged the father, the second respondent, had sexually abused her between 2005 and 2008.
On 3 February 2014 the father and YQ were arrested for allegedly raping CD. The father denied the allegations. He has not since had any direct or indirect contact with the children.
On the same date both X and Y underwent full medical examination. The conclusions of these medical examinations neither proved nor excluded the possibility that either child had been sexually abused.
The children were immediately placed with emergency foster carers pursuant to the mother's consent to s.20 accommodation.
The father was interviewed by the police in respect of CD's allegation of rape on 4 February 2014. He denied the same and denied knowing her. He asserted that the images downloaded on his computer of children were not for sexual gratification.
On 11 February 2014 both children were spoken to by the police as part of a child sexual abuse operation. Neither X nor Y made any allegations against their father or another male of sexually abusing them.
On the same day the mother denied being in a sexual relationship with YQ.
On 26 February 2014 CD, at an identification parade identified the father and YQ as people who had raped her.
At a professionals' meeting on 5 March 2014 it was agreed that in the absence of the mother being charged with any offences, the children should be returned to her care with the support of the maternal grandmother. The children returned to the care of the mother on 20 March 2014.
On 10 April 2014 X told a school teacher that her father had made her strip naked.
On 1 July 2014 Y said that the reason why her Dad was in prison was because he had 'touched her privates'.
On 3 July 2014 X underwent an ABE interview with the assistance of an intermediary. She made no allegations of a sexual nature but did say that she was sad when with her father because he smacked her and swore at her. Initially she said her father had put her in the street naked but then she retracted this allegation and said that this has not happened.
In a further police interview of 14 July 2014 the father maintained his denial of CD's allegations.
On 18 July 2014 the police spoke with Y with the assistance of an intermediary. The latter concluded that Y was not capable of being cross-examined. It was therefore decided not to require her to participate in an ABE interview.
X said at school that her father had always sworn at her and had told her he was going to throw her out of the house naked.
On 15 April 2015 Y told FZ, a social care professional, that '[first name of YQ] touched my privates when I was in the bath on Sunday night before school'.
On 16 April 2015 the maternal grandmother telephoned FB and reported that X had said she did not want to be called [X's surname] because 'her father used to send her outside naked'.
On 13 May 2015 the father made various comments to the police which gave rise to serious concerns about the state of his mental health. He was assessed by paramedics and a mental health nurse.
During play therapy work with FZ on 3 June 2015, Y said that 'my Dad and [first name of YQ] touched my privates'. This was accompanied by graphic physical gestures. Later she said that [first name of YQ] had only touched X's privates. In a further session on 15 July 2015 Y, in terms, repeated these allegations.
After an assessment by an intermediary, Y underwent an ABE interview with the police on 21 August 2015.
On 26 October 2015 the father was interviewed by the police in respect of Y's allegations. He denied the same. YQ was interviewed by the police about Y's allegations on 2 November 2015. He, too, denied them.
The mother made a statement to the police on 6 November 2015 in which she acknowledged she had known YQ for some 11-12 years but denied he had ever been present at the children's bath times or bed times.
On 8 December 2015 Y told a school teacher that her father and [first name of YQ] had touched her privates when she was in bed at her mother's house, it had happened 54 times and her mother and maternal grandmother were in bed at the time.
Y is recorded as having said at school on 5 February 2016 that 'I am actually going to college but my Dad you know last Saturday in care my Dad touched my privates and even [first name of YQ] but he escaped from prison and now at college'.
On 11 February 2016 Y is reported as having alleged that her father, YQ and ZK had 'touched her privates'. When X was told what Y had said, she responded 'well she is lying, they never touched her'.
The mother and maternal grandmother signed a written agreement on 15 February 2016 that ZK and GE, a family friend and neighbour, were not to (a) have contact with the children and (b) visit or enter the family home. Both the mother and the maternal grandmother asserted that neither were presently engaged in a relationship.
On 22 February 2016 Y was recorded by the school as saying she did not like KE, GE's son, because he told her to take her uniform off and it was not up to him to tell her. A few days later on 25 February she said at school that 'GE and KE still came round even though teachers and police banned them.'
On 26 February 2016 in a meeting with the social worker, HA, the mother is said to have denied ever having been in a partner relationship with ZK.
In March 2016 X told a school teacher that things were difficult at home. She said her 'Mum and Nan were fed up with Y and called her a "blabbermouth".' X continued that her 'Nan is crying a lot and wants to die like my Uncle'.
On 7 March 2016 Y said to a member of staff at her youth club 'OK you slapper'. She said her Nan had taught her to say it.
On 6 April 2016 the mother made a police statement in which she referred to her relationships with ZK and YQ. In respect of the former she said they were in a relationship from September 2012 but he was never left alone with the children. They separated in December 2012 because he has been unfaithful. Thereafter from December 2015 he visited her home as a friend but never stayed overnight. In respect of the latter, she said that he moved into her home in late 2010 and early 2011 for about one year. She said she began a relationship with him 3 months after he had moved in but even then he continued, as before, to sleep on the sofa. He was never left alone with the children.
On 25 April 2016 Y underwent a further ABE interview with an intermediary present.
ZK was interviewed by the police on 18 May 2016. He denied ever having been alone with either X or Y although he accepted that from time to time he had taken X to the local shops.
On 24 May 2016 the maternal grandmother told a social worker that ZK had never stayed overnight at the family home but later said, in the same telephone conversation, that he had stayed once about 4 years previously.
A social worker and a police officer visited X on 26 May 2016 to discuss with her the allegations made by Y in her most recent ABE interview. She said that no person had ever not followed the rule about her body being her own but that her father has used a sponge to wash her and Y when they were in the bath or shower. She further said she had told her father that she preferred to wash herself but he refused to listen and would swear at them. She also spoke about YQ and ZK visiting the family home. She told the social worker and police officer that she did not feel safe at her father's home nor the home of her paternal grandparents.
On 14 June 2016 X and Y are removed from the care their mother and placed in foster care.
These care applications were issued by the local authority on 14 June 2016. On the same day X was seen by a social worker in her foster placement and said that what Y had alleged was not true.
The mother was arrested and interviewed by the police on 15 June 2016. In the interview she repeated her previous assertion that neither ZK nor YQ had been left alone with either of the children. On the following day the mother was granted police bail with a condition that she was not to have any contact with the children.
The mother is said to have breached her bail conditions on or about 17 June 2016 by visiting the children's school to drop off some clothes: the arrangement agreed was that the maternal grandmother would drop off any clothes the girls required.
On 2 July 2016 X told her foster carer's daughter that Y was telling lies about their father.
In his first witness statement, dated 11 July 2016, the father calls into question the paternity of Y, suggested DNA tests be performed and said that the mother was with ZK, YQ, [first name of ZK] [first name of YQ]s or GY at the time of Y's conception.
On 30 July 2016 X told her foster carer that her father made her and Y undress in front of him and that he smacked them. She said she had told her mother about these matters and she shouted at the father.
Y made further graphic allegations of sexual abuse against her father to her foster carer on 6 August 2016.
On 9 August 2016 the results of DNA testing established that the father was the biological parent of Y.
On 26 August 2016 during a session with a social worker who was reading a 'Do you have a secret' book with X, X said her father would inappropriately touch her. She asserted she always told her mother, the maternal grandmother and GE about these events.
On 30 August 2016 the then children's guardian and the then guardian's solicitor visited X in her foster placement. On 6 September they visited Y in her foster carer's home.
On 10 September 2016 Y told her foster carer that her mother, the maternal grandmother, GE and X had all told her not to say anything about the "bad things".
At an Advocates' meeting on 12 September 2016 it was revealed for the first time that X made allegations of sexual abuse to the then guardian and the then children's solicitor when they met with her on 30 August. These allegations had not been referred to the local authority nor to the police. The meeting was terminated and an urgent directions hearing was sought.
During the course of an assessment by a psychologist on 26 September 2016 the father asserted that it must have been the police who put the child pornography onto his computer.
On 30 September 2016 X underwent an ABE interview: an intermediary was present.
At a court hearing on the same day the appointment of the children's guardian and of the children's solicitor were terminated and a new children's guardian and solicitor were appointed.
The father was arrested in respect of the sexual abuse of X on 1 November 2016 but an interview could not proceed because the father was admitted to hospital. The following day the mother was interviewed by the police. She denied X had told her about the father's inappropriate behaviour towards her and denied ever hearing X talk about the same to the maternal grandmother.
On 4 November 2016 the police were able to conduct an interview with the father in respect of X's allegations.
The criminal trial of the father and others commenced on 20 April 2017 at the Crown Court at Wolverhampton.
I have read and considered all the statements, reports, interviews and documents which I was invited by counsel to take into account. I have read and considered the relevant extracts of X's and Y's ABE interviews as requested by all parties. I have also read the transcripts of the evidence given by various relevant witnesses during the course of the criminal trial.
The Nursery and the School
I heard evidence from X's and Y's teachers and teaching assistants namely, HD, of XYZ Nursery, HG, HH and HJ, teachers at ABC School, JB, JD and FY, teaching and learning support assistants at ABC School, and FB, the school welfare officer and Child Safeguarding head at ABC School.
X attended XYZ Nursery from September 2007 and moved to ABC School in September 2009. Y attended XYZ Nursery from September 2008 and moved to DEF School in September 2010. She attended ABC School from 2014.
ABC School is a highly dedicated and supportive school for children with learning difficulties and/or behavioural problems. HD from XYZ Nursery and the staff from ABC School were cross examined up hill and down dale over a period of four days. To what end and for what purpose I did not then and I do not now understand. Each were cross examined at length about their respective practices in record keeping and in respect of comments made to them by and/or overheard by them in respect of X and/or Y.
The height of the cases put by the various adult respondents was that the staff were very close to and/or supportive of both girls. It was not suggested to any of the staff at the nursery nor at ABC School that their record keeping of what the girls had been recorded as saying was deficient or inaccurate, still less an invention, whether by negligence or intent.
My very clear conclusions in respect of each and every member of staff referred to in paragraph 104 above may be summarised in the following principal propositions and findings:
a) all of these members of staff were committed and dedicated to the wellbeing of X and/or Y;
For the sake of completeness I add observations on three particular members of the teaching staff:
b) all were well versed in the guiding principles of child protection and safeguarding and of the essential need to record accurately and at the first practical opportunity material or relevant comments made by both children;
c) all well knew and observed the requirement to record positive as well as negative comments about the adults in their lives as well as to record, if practicable, any questions asked by them in response to or in clarification of comments made by either child;
d) all knew X and/or Y well and were completely aware of their difficulties, foibles and needs;
e) each and every one of them made faithful and accurate records of what either child said to them or which they overheard them make;
f) I expressly reject any notion, whether expressly put to any of them or not, that their respective relationships with or support of X and/or Y in any way coloured or influenced their recordings of the children's comments; and
g) without any hesitation I commend the dedicated support and help which each of these members of staff afforded to X and/or Y.
a) HD was asked to perform the monumental task of recalling events from 8 to 9 years ago. She did so where she could with great alacrity and detail. The description of the change in X's behaviour after she returned to nursery in September 2008 was stark and compelling. She was clear that something of great significance had changed in X over the summer holiday of 2008. She would scream when she went into the toilet, she was not the compliant little girl she had been in the term before and she would often say 'no' she did not want to go home: this reluctance was mostly in respect of going to her father's home but was, with the same reaction and behaviour, sometimes expressed in going to the home of her mother and maternal grandmother. HD was a careful and impressive witness;
During the course of the time they each attended the nursery and school X and Y made various comments or disclosures to members of the teaching staff or support staff. The principal comments and/or disclosures are set out in paragraphs 218 and 224 below.
b) HH plainly enjoyed a close relationship with Y. Like a number of other pupils, Y would seek her out to spend time with her at lunch breaks. I am wholly satisfied that HH maintained a wholly professional relationship with Y whilst at the same time being alive to her needs and wholly supportive of them;
c) FB introduced a far more rigorous and effective system for recording child welfare and child protection/safeguarding issues than her predecessor. She had a close and supportive relationship with X and with Y. She was a most careful, compelling and impressive witness.
I have not the slightest hesitation in accepting the entirety of the evidence given by each of these three witnesses. For the avoidance of any doubt this does not undermine any of my earlier comments and findings about the teaching staff in general but these three were especially convincing and compelling witnesses.
I have no hesitation in accepting that their respective accounts of comments or disclosures made by X or Y are truthful and accurate.
I wish to express my thanks and gratitude for the care and support they each have given to X and Y. I hope very much my comments will be conveyed to them, all of whom had to endure the experience of giving evidence in court and being challenged about their respective account of events.
KE is X's foster carer. She was assisted from time to time in caring for X by her daughter, KF. I heard short evidence from both of them. KE told me that X was terrified of her father. KF gave brief evidence of her involvement with X. She told me that X became quite defensive and agitated whenever she was corrected about any matter or anything she had said.
KF is Y's foster carer. She told me that Y was very grubby, did not have good personal hygiene and did not change her clothes regularly. Her evidence is in very marked contrast to the evidence given on this issue by the mother and by the maternal grandmother. It is far more in accordance with evidence by the members of staff at ABC School about the state of Y frequently on her arrival at school. I have no hesitation in accepting and preferring the evidence of KF.
When listening to the mother's evidence and when evaluating the same, I have had well in mind the opinions and recommendations of EM, an educational psychologist, who undertook an assessment of the mother's cognitive functioning. His report is dated 5 May 2016. As a preliminary matter I note his report has the following preamble, "This report has a useful lifetime of 12 months. After that, if there are still concerns, a new assessment should be completed." An update was not sought. Nevertheless the report provides a useful insight into the limitations of the mother's cognitive functioning.
His principal conclusions were as follows:
"In my opinion, based on this evidence in this Report, JA has no general learning difficulties and she is not dyslexic. Her verbal skills are similar to her visual skills and both are in the low range. The evidence suggests that she does have a particular problem with her working memory. This affects her ability to attend to things and therefore her ability to remember things, learn new information and to carry out complex activities.
However, as she has an underactive thyroid, for which the common signs are tiredness, weight gain and feelings of depression, anyone working with her should deal with these issues and how they impact on her daily life as part of any interventions with her and her family."
The report was prepared primarily for the purpose of advising professionals working with the mother how best they should communicate with her.
The mother was, nevertheless, a deeply unsatisfactory witness. During the course of her cross examination by Mr. Weston QC, on behalf of the local authority, she admitted and accepted she had lied on repeated occasions. Her evidence when being cross examined was characterised by extremely lengthy pauses between the end of a question and the mother providing an answer. She was unable to give any explanation whatsoever as to why she was taking so very, very long to answer many of the questions she was asked; which were simple and straightforward.
In consequence of the time taken by the mother to answer questions in cross examination it was not possible to complete the mother's evidence on Friday 21 July. When she resumed on the morning of Monday 24 July it very quickly became apparent that the mother was not well and was struggling to give evidence. I adjourned for a short period during which the mother was seen by a court first aider. I was told that the mother was extremely stressed, suffering from anxiety and experiencing panic attacks. I was advised she was not in any condition to continue giving evidence. I adjourned over to Tuesday 25 July.
The mother was not at court on the following day. Ms Henke QC told me the mother had attended a walk in centre on the previous afternoon where she was referred to the local accident and emergency department where she was seen but not admitted. The mother had secured an appointment with her general practitioner for Tuesday afternoon. ES, the mother's GP, provided the court with a short report of his consultation with the mother which reads as follows:
"JA is a registered patient at the practice. With regard to your letter of 25/7/2017 I can provide the following information. She has a diagnosis of anxiety and depression. This has been present since November 2016. She did see the community mental health team in January 2017 who confirmed the diagnosis and referred her on to the wellbeing service. We have had no correspondence from that service so we do not know if she has ever been seen. Currently she is very anxious and did attend A+E at New Cross on 24/7/17 and was given a short course of diazepam. She was prescribed some amitriptyline 10mg at night for her anxiety back in June which she reports helps. Her prognosis remains uncertain as anxiety and depression can last for many years and be aggravated by stress full situations. She was seen today at the surgery and though she is anxious there is no physical reason why she is not fit to give oral evidence in court this week."
On the morning of Wednesday 26 July Ms Henke QC told me this mother was still feeling very anxious and, for no given reason, would prefer to return to court to complete her evidence on Friday 28 July. I was not prepared to accept this unjustified delay in these proceedings. The mother was directed to attend court at 2pm: she so attended and completed evidence during the course of the following day.
On the first day the mother gave evidence, and by way of example only, I refer to the following principal circumstances in which the mother accepted and admitted she had lied:
a) the mother was called as a witness in the criminal trial as a defence witness for YQ. She admitted that she lied to the jury when she gave evidence in support of YQ;
When the mother resumed her evidence, I regret to find, the lies continued. Once again I offer the following as the principal examples of the same, namely;
b) the mother lied in interview with the police on 15 June 2016 when she denied ZK had ever spent a night at her home. In evidence before me she accepted that he had frequently and regularly stayed at her home;
c) during the course of cross examination by leading counsel for the Crown in the criminal trial she admitted she had pretended – and lied – that YQ and ZK has never been left alone with Y. When asked in these proceedings why she had lied about YQ and ZK being left alone with Y, she was unable to answer despite being given several opportunities to do so; and
d) the mother gave a false account in her response to threshold in respect of the circumstances in which X received an inappropriate bra. In the latter she asserted a friend had given it and other clothing items to X whereas in her oral evidence she admitted she had bought the bra for X.
a) during a meeting with a social worker on 26 February 2016 the mother is recorded as saying she was never in a relationship with ZK and that he never stayed the night at her home. This is completely contradictory of the mother's own evidence of her relationship with ZK and of his habit of sleeping over in her home. The mother said she had told the social worker that she was in a relationship with ZK between 2010 to 2011 and that she had said he had stayed overnight. I note that social worker was not challenged about this aspect of her evidence on behalf of the mother. I am in no doubt that the social worker's account is accurate and that the mother lied in her evidence on this issue;
When the mother was cross-examined on behalf of ZK there was an obvious and significant change in her demeanour. The long, long pauses were absent. Instead there was an immediate and ready response with apparent easy recollection of events. The contrast with her earlier evidence was very stark. She was very ready to excuse and exculpate ZK. One explanation is that the mother felt on safe ground and was telling the truth, at last. The other is that she was seeking to protect ZK. For reasons I shall give later in respect of the evidence of the mother, the maternal grandmother and ZK. I am wholly satisfied it is the latter.
b) the mother asserted that ZK has not come to her home in 2015 prior to Christmas Day 2015. In a meeting with the school on 16 November 2015 the mother had accepted that he had visited before that date. Further in a statement she has asserted that ZK had visited her home once or twice per week between November 2015 and February 2016. I find the mother is lying on this issue;
c) the mother admitted lying about the fact she had been in a relationship with YQ. She could not explain why she had lied. I warned her that if she could not explain why she had lied I may draw an adverse inference that she had lied to protect herself and/or YQ from adverse findings. She said she had said she had not been in a relationship for very long. I am sure this was a lie and a lie told immediately after I had given the mother the clearest indication of the consequences of being untruthful on this issue;
d) the mother lied about the children especially Y being clean and in clean clothes when going to school. The notion that Y was perfectly clean and tidy when she got on the school minibus from home and arrived at school shortly thereafter from the minibus in a soiled and/or dirty condition is utterly absurd and incredible;
e) the mother's accounts of X or Y telling her that the father had smacked X is confused and contradictory and is wholly contrary to the version of events set out in her response to threshold. I am in no doubt that she is lying about this issue. She said she had forgotten to mention it in her statement or to mention it to the police in her interview of 15 June 2016; and
f) when cross examined by Ms Preen on behalf of the maternal grandmother, the mother performed a complete volte face in respect of her earlier evidence that she and her mother had both been present on the day YQ arrived at their home and told them he had just been released from prison. Her new version, after spending the night with her mother, was that only she was present when YQ said this and she had not subsequently told her mother. I am sure that on both accounts the mother is now lying.
Further I find the following aspects of the mother's evidence to be extremely troubling:
a) despite the overwhelming evidence over many years from the girls nursery and then the girls' school of both girls exhibiting sexualised behaviour, the mother denied ever seeing any sexualised behaviour by either X or Y;
The combination of the mother's admitted lies, the troubling aspects of her evidence as set out above and the mother's presentation during her evidence and reluctance to attend to complete her evidence, leads me to form serious adverse views of her evidence and to make serious adverse finding against her.
b) the mother said in her oral evidence that she now believed the father, YQ and ZK had sexually abused X and Y but she was repeatedly unable to explain what she had read or, more pertinently, heard in the evidence that had persuaded her to accept the children's allegations are true. I cannot discern any additional relevant material which was elicited in oral evidence which was not clear and apparent from the filed statements, reports and documents;
c) in the context of a case where it is alleged that both of her daughters have been sexually abused by their father and by two former partners of the mother, it was extraordinarily surprising that the mother categorised as 'the biggest mistake I ever made' the fact that a friend and neighbour, GE, had been allowed to play an extensive role in the life of her family. (There is no suggestion whatsoever that GE is implicated in the alleged sexual abuse of the children);
d) she asserted that the girls did not and do not have the intellectual ability to lie. This begs the question why the mother did not believe the children at a much earlier time. The mother could not provide any credible answer, indeed no answer at all;
e) in contrast to her evidence at the criminal trial the mother maintained that neither X or Y had ever been left unsupervised by either herself and/or the grandmother. The mother was unable to explain why;
f) the mother was asked whether she believed YQ was innocent when she gave evidence in his defence. She said no. She could not, however, explain why she did not say that to the jury or anything close to the truth;
g) worse still she admitted and accepted she did not put her daughter's interests first when giving evidence at the criminal trial. She could not explain why she failed to do so;
h) the mother told me she thought the father was watching child pornography at the family home before the parents separated and therefore she always took the children with her when she went out. She otherwise did nothing about this concern. She did not mention or raise the matter with any professional and, in particular, any social worker;
i) during her evidence at the criminal trial, when cross examined by leading counsel for the Crown, the mother had accepted that on an occasion when Y went with ZK to the local shops, she had 'secretly' followed them. In her evidence in these proceedings the mother denied she had 'secretly' followed them. She said by reason of her mobility problems she simply walked more slowly than they did. The mother could give no explanation for why she had accepted at the criminal trial that she had 'secretly' followed Y and ZK;
j) the mother had asserted that the girls behaviour at home had been perfectly normal. When asked whether the witnesses from ABC School were lying when they had described one or other of the girls exhibiting sexualised behaviour, the mother had replied 'I don't know'. When asked if HD from the girls' nursery school was lying when she described observing sexualised behaviour by X, she replied an emphatic 'no';
k) the mother asserted that neither the nursery, the school nor the social workers had ever reported sexualised behaviour by the girls to her. This assertion is wholly incompatible with the mother's response to threshold. She could not explain nor account for the discrepancy;
l) the mother accepted the reported behaviours of the girls was evidence or suggestive of the girls having suffered sexual abuse. The mother could not explain the failure to recognise or accept the same in her response to threshold; and
m) the mother accepted that X's episodes of or attempts at self harm resulted from her having been sexually abused. She said she had asked X in 2015 to tell her why she was harming herself. She said X refused to answer saying if she did she would go into care. The mother did not report this conversation to any professional – teaching or social work – with whom she had considerable contact. When asked why not the mother could not give an answer. She then said 'I thought I had given an account in my statements and/or police interviews': she had not.
For the avoidance of any doubt, in reaching those conclusions, I have had well in mind the modified Lucas direction and the Court of Appeal decision in Re H-C (above). I cannot find nor discern any innocent explanation for the mother's identified lies.
In the criminal trial the father was found unfit to plead. Thereafter he was found by the President to lack litigation capacity to conduct these proceedings on 12 June 2017. The Official Solicitor, therefore, consented to act as his litigation friend. Subsequently on 22 June 2017 the father was detained and continues to be detained pursuant to s.2 of the Mental Health Act 1983.
In light of his detention under the 1983 Act leading counsel for the father submitted that he should not be called to give evidence in these proceedings. No party took issue with this approach. The father was not called.
When considering the findings sought against the father I take full account of the fact that he was not afforded the opportunity to speak in his defence against the charges he faced in the criminal proceedings nor to defend himself in oral evidence against the findings of fact sought against him in these proceedings.
The father did give his account to some extent in his various police interviews. He underwent four police interviews on 4 February 2014, 14 July 2014, 26 October 2015 and 4 November 2016.
In the course of his interview of 4 February 2014 the father accepted that analysis of computer would find illegal images of children, albeit he only admitted to possession to the lowest level of indecent images.
A number of images graded from category A to C were found upon forensic examination of the father's computer. A number of videos graded from category A to C were also found on the father's computer hard drive. Some were said to be user accessible and others to be user inaccessible. Unfortunately the police evidence, as set out in the relevant witness statements does not establish which images and/or videos set out in a schedule were accessible or inaccessible. It is clear, however, in my judgment, that the father had available to him and viewed a considerable number of indecent images and videos of children and/or young people under the age of 18 which enables me to conclude that he had a sexual interest in children.
In his police interviews the father denied the allegations that he had sexually abused X and Y.
The Maternal Grandmother
The maternal grandmother was a completely unsatisfactory witness. She sought to portray herself as an over protective grandmother and latterly as a joint carer: she was neither.
She lied in very significant parts of her evidence. I give the following as examples:
a) in her evidence in chief she said that the mother had never spoken to her about the private law proceedings between the parents in respect of the girls nor about the possibility of them having been sexually abused. Later in her evidence she accepted that she was aware and had been told by the mother of the medical evidence which supported the proposition that both children had been sexually abused;
In February/March 2016 HA, the then social worker undertook an assessment of the family. She made various recordings where the mother and/or the maternal grandmother gave information to her. In the course of a meeting on 26 February 2016 the mother said she and ZK 'have never engaged in a partner relationship and he has never stayed overnight at the family home'. On the basis of their evidence to the court this was a blatant lie because the mother had been in a relationship with ZK and he has stayed overnight at their home. The maternal grandmother accepted this was a lie by the mother but asserted she 'was not at this meeting. I was not invited to any meeting by the social worker. She must have got it wrong.'
b) the maternal grandmother denied that there was any issue about either of the girls, especially Y, going to school in a clean and tidy condition. The maternal grandmother could not, however, provide any explanation as to how Y could leave home in a clean and well pressed uniform, be transported to school in a mini bus and then arrive at school in a dirty and dishevelled state. The maternal grandmother said in evidence that the school was 'making up' the allegations about Y arriving at school in a dirty and soiled condition. This allegation was not put to any teacher who gave evidence. I am in no doubt that the maternal grandmother is lying;
c) she asserted in evidence that she and the mother only discussed the issue of the girls having been sexually abused by the father and never discussed any other allegations made by the girls. Given the lengthy period of time over which the girls had made allegations of sexual abuse and the lengthy involvement of social workers and the police with this family, I find the maternal grandmother's evidence to be wholly incredible;
d) she denied the mother had told her about the mother's conversation with X in which she asked her daughter about her self harming. Given the alleged closeness of the relationship between the mother and the maternal grandmother, this denial is again incredible;
e) the maternal grandmother said she thought the red and blue lacy bras the mother had bought for X were inappropriate for a girl of her then age. She could not, however, explain why she had not thrown away the same or asked her daughter to do so. I warned the maternal grandmother that a failure to explain that omission might lead me to conclude that she thought the bras were appropriate. In the absence of any explanation from the maternal grandmother, I do so conclude and find she was lying when she said she had thought the bras to be inappropriate;
f) on 15 November 2015 Y is recorded as telling a member of staff at her school that ZK had bought her a present. The maternal grandmother asserted that Y was wrong because the only time she could remember ZK coming to her home in 2015 was on Christmas Day for dinner. She claimed not to remember a meeting held at the school on 16 November 2015 when Y's conversation was discussed. Neither the mother nor the maternal grandmother denied ZK had bought Y a playstation 2 and had set it up at the family home for her. I am satisfied that FB's note of this meeting is accurate and that the grandmother is lying about ZK visiting the family home before Christmas Day 2015. When asked why she was minimising the visits made by ZK to the family home at this time, she could give no answer other than to say 'I am not lying'. I am satisfied that she was and that she was seeking to minimise ZK's visits to the family home;
HA confirmed that the maternal grandmother was present at this meeting. I prefer the evidence of HA. On the basis of HA's note of that meeting and her oral evidence to me, I am completely satisfied that the grandmother was present at that meeting and that her denial of the same is false.
a) I am satisfied that the social worker did not get it wrong. There was no challenge to HA as to her recordings relating to matters reported to her by the maternal grandmother. I find the maternal grandmother is lying and was content to collude with the mother imparting false information to the social worker.
The grandmother said in evidence that the fact the girls were 'developing' and wanted to dress downstairs was the factor in causing her to ask YQ to leave the family home. There are a number of curious features about this evidence, namely:
b) The maternal grandmother denied she had known when YQ came to stay with the family that he had just come out of prison. In the mother's statement to the police made on 6 November 2015, she said that YQ knocked on the door one day and said "he had just come out of prison and had nowhere to go. My mum being the way she is allowed [first name of YQ] to stay …" In her evidence the mother changed her account and said YQ had told her he had come out of prison some hours after he had arrived at the family home when only the mother was present. The maternal grandmother said that her daughter had never told her YQ had been in prison. She said she had asked her daughter on the first day of this hearing about this and "she said she had forgotten to tell me. I believed her." I am satisfied that the mother gave a truthful account in her police statement and both the mother and the maternal grandmother were present when YQ said he had just come out of prison. I am therefore satisfied that, in changing her account during her evidence, the mother is lying and in denying any knowledge of YQ being in prison, the maternal grandmother is lying; and
c) The maternal grandmother asserted YQ was not involved in assisting Y with her writing practice and homework. When it was pointed out that YQ's name and signature appeared in Y's notebook, the maternal grandmother asserted she had not said that in evidence. She then changed her story to say 'he must only have helped on one occasion.' I am in no doubt the maternal grandmother was lying. I shall set out later in this judgment why the grandmother should have sought to deny or minimise YQ's role in the lives of the girls.
a) why was YQ not asked to leave earlier;
I am very concerned about this aspect of the evidence because it appears to illustrate the loose sexual and moral boundaries which existed in the family home.
b) why were the girls not simply told to dress upstairs; and
c) this behaviour chimes with what the girls each allege against their father, of being required to dress downstairs in front of him.
From the evidence of the maternal grandmother and the mother it is clear that over a period of very many years a succession of men who were not relatives were permitted to live at the house with the mother, the grandmother and the girls. It would appear that little or no checks were undertaken or questions asked before the men were allowed to move in and in the case of ZK and YQ, the mother entered into sexual relationships with both them.
The mother was at school with ZK. They kept in contact thereafter. In about 2005 he moved in as a lodger at the parents' home at 98 GHI Street. He remained living there until the parents separated: the father staying in the family home and the mother and the children moving to live with the maternal grandmother at 33 JKL Road.
Shortly thereafter he moved next door to lodge with YQ and his then partner at 96 GHI Street. YQ and his partner had been long time next door neighbours and friends of the mother and the father. ZK remained living at YQ's home until he returned to live with his father and then elsewhere.
YQ and, for some period of time, ZK lived at 97 GHI Street when the father lived alone at 98 GHI Street but, from time to time, had contact with X and Y at the former family home.
After the parents' separation, ZK told me that the mother had told him that the father had been accused of sexually abusing X. Further, he told me that the mother had asked him to visit the girls when they were staying with the father to make sure the children were safe.
In 2011 the mother, the maternal grandmother and ZK told me that the mother and the maternal grandmother met ZK by happenchance in the community after an absence of several years. As a result of that chance meeting ZK was invited to move in to lodge at the family home at 33 JKL Road. Shortly thereafter the mother began a sexual relationship with ZK although it was denied that he stayed overnight at the family home.
ZK and YQ had remained friends throughout this period and saw each other fairly regularly – meeting at a particular local café. YQ alleged he saw ZK chatting regularly in the café with a woman referred to as 'LB'. He formed the view that ZK was 'two timing' the mother and told her so. In consequence the mother ended her relationship.
In February 2012 both YQ and ZK are present at the family home and have an argument which develops into a fight. There is an issue about what was the cause of the same: suffice it to say that the mother, the grandmother and ZK are agreed that it led to the grandmother asking ZK to leave her home. Thereafter they each claim he had no contact with the family until 2015.
YQ served a term of imprisonment for an assault on his former partner. Shortly after his release from prison in late 2012 he attended the home of the mother and the maternal grandmother. They agreed he could lodge with them and the girls. Shortly after he moved in he and the mother began a relationship. They and the maternal grandmother asserted that he always slept downstairs on the sofa. The mother and the maternal grandmother claimed he was never left alone with the girls.
The relationship between ZK and the mother ended in about January 2014. The maternal grandmother alleged he left the family home at her request in the circumstances referred to in paragraph 148 above.
I note this was just three weeks or so before the father and YQ were arrested on 3 February 2014 for sexual offences in relation to CD.
I regret to find that ZK was a deeply unimpressive and unreliable witness.
He denied sexually abusing Y and/or X.
In his witness statement, signed and dated 4 days before he gave his evidence he asserted that:
a) the maternal grandmother asked him to come and live with her, the mother and the girls at 33 JKL Road in 2011; and
When challenged by counsel for the maternal grandmother, Ms Preen, that the maternal grandmother had prompted him, ZK replied that she probably had not prompted him. When I asked why he had confirmed his statements were true at the start of his evidence earlier that day, there was a very, very long pause before he replied. He said he had got that wrong and apologised. I told him I could not understand how he made such a mistake. There was another very long pause before he replied 'I just thought she did'. I warned ZK that unless he give the court an explanation for his contradictory evidence I was likely to conclude he was lying. No explanation was forthcoming. I am in no doubt ZK was lying and I so find. Why he was lying, I will consider later in this judgment.
b) the maternal grandmother had prompted and encouraged him to begin a relationship with the mother and to become engaged to her.
Ms Preen then challenged his evidence that the maternal grandmother had invited him to come and live with them. He said in response that he had asked the mother if he could stay with them and thought that she has asked the maternal grandmother, but obviously she did not. When asked why he was once again giving a different account, there was a very long pause before he gave a completely irrelevant and inconsequential answer. I am satisfied and find that ZK was lying about the circumstances in which he came to live in the maternal grandmother's home with the mother and the girls.
In his statement ZK gave an account of an argument he had with YQ at the maternal grandmother's home in February 2012. The girls were present in the house. The argument developed into a fight between the two men leading the maternal grandmother to tell ZK to leave. In his statement he said 'an argument broke out between [first name of YQ] and I, because I did not think it was appropriate that a man with his criminal record and behaviour should be around the children, as he was volatile and aggressive.' I interpolate that in his evidence ZK denied he had sexually abused X or Y, he said he had not laid a finger on them, but asserted that is was YQ and/or the father who had abused them. In his evidence he told me that he had not told the maternal grandmother that YQ had been in prison because he thought the mother would have done so. He then said the argument was about 'LB', a woman who was or would become ZK's partner. As very much an afterthought he added the argument was also about YQ's record.
There is no reference in his statement to LB being the subject of the argument. Once more I conclude that Mr ZK is being untruthful and is lying to the court.
Ms Meyer QC, leading counsel for the father, cross examined ZK about his knowledge of and relationship with the SD/CD family.
For the avoidance of any doubt I am aware that CD has not alleged that ZK sexually abused her, no such findings are sought in these proceedings and ZK is not on trial in the current criminal proceedings for any offence in relation to CD.
So it is all the more remarkable at the very evident change in ZK's demeanour when he was asked questions about the SD/CD family by Ms Meyer.
He told me that he did not know CD and had not sexually abused her. He knew her mother and late father and his step mother who lived on GHI Street: the parents lived on MNO Street. He said CD knew him as a friend of YQ, against whom she has made allegations of sexual abuse. He repeated that he knew her father, PD, but mostly he knew 'his missus', SD. ZK then paused for a very very long time, cleared his throat several times before venturing an answer to the question asked that he spoke to SD occasionally and that he knew TD and PD. These latter two are accused by CD in the criminal proceedings of organising and charging money for her serial sexual abuse by a considerable number of men including the father and YQ. It was plain and palpable that ZK was being very very evasive in his answers about the SD/CD family and especially in respect of SD and CD. His extremely marked change in demeanour led me to the clear conclusion that he was not telling me the truth about his knowledge of or involvement with the SD/CD family. I shall consider the implications of this finding later in this judgment.
An issue arose about the date when ZK took Y to the local shops and whether the mother was with them or followed them. So far as I am concerned the date is irrelevant. In his statement ZK said he, Y and the mother went to the shops on Christmas Day 2015. The mother in her evidence denied this event was on Christmas Day but agreed there was a visit to the local shops with ZK and Y. Her account was that because of her lack of mobility she lagged behind and ZK and Y went on ahead.
This version of events is in marked contrast to the mother's evidence at the criminal trial where she claimed that she had secretly followed ZK and Y on their visit to the shops, on whatever date it had taken place. This version was consistent with the account given earlier to the police by the mother. In evidence before me the mother could not remember and/or denied the evidence she had given in the criminal trial.
This evidence more probably than not reflects on the mother's denial of knowledge than it does on ZK.
I refer to paragraphs 142 to 151 above where I set out the involvement of YQ with the mother, the father, the maternal grandmother, ZK and the two girls.
YQ did not respond to the invitation to intervene in these proceedings. He did not attend on any day, was not represented and did not, of course, give evidence. He is a defendant in the concurrent criminal proceedings and is charged with raping CD and sexually abusing Y. He gave evidence in his defence at the criminal trial and I have a transcript.
In cross examination by leading counsel for the Crown he denied knowing CD and denied her allegation that he had raped her. He accepted he had lived next door to the mother and the father on GHI Street and that he had later been a lodger at the maternal grandmother's home for, as he said, about one year. He denied sexually touching Y.
He could not explain why two young people who did not know each other should both make entirely false allegations of rape and sexual abuse against him.
Three particular aspects of his evidence at the criminal trial in relation to Y are of note:
a) he asserted that Y would come up to him and put her arms around his neck and give him 'like a slight peck on the cheek.' When asked how often this would happen, he replied 'not very'. Neither the mother nor the maternal grandmother have ever reported or given evidence about Y hugging and/or kissing YQ; and
I do not readily understand why, if YQ had not sexually abused Y, he could not give an immediate and straightforward answer to a perfectly simple question. I am in no doubt that his constantly shifting answers were to avoid the conclusion that there were times when he was upstairs in this family's home and free to enter any bedroom. I am satisfied that he was so free and his evidence about a 'house rule' is simply a ruse and a falsehood.
b) in cross examination he accepted that he had not told off Y or otherwise given her any cause or reason to make false allegations against him; and
c) leading counsel for the Crown asked him whether he has used the first floor bathroom at 33 JKL Road during the night. As his cross examination progressed on this topic so did his answers:
(i) first he said, no;
(ii) then well maybe once;
(iii) then not once but once every two or maybe three weeks;
(iv) and then not regularly but once every so often; and finally
(v) if I needed the toilet at night I would go upstairs when [the mother] was upstairs on the landing".
He asserted this was the 'house rules'. When pushed further on this topic he eventually responded that whatever time of day it was 'if I need to go, I would go. You guarantee, when I did go at night time, one of the adults was upstairs.'
The Former Children's Guardian and the Former Solicitor for the Children
On 30 August 2016 the then children's guardian, AB, and the children's solicitor, Ms Noel, visited X in her foster placement for the purpose of speaking with her, ostensibly to gain her wishes and feelings about giving evidence at this hearing.
During the course of this interview X is recorded as having made a number of disclosures relating to her having been sexually abused.
On 6 September 2016 AB and Ms Noel paid a similar visit to Y.
At an advocates' meeting the disclosures made by X in her interview on 30 August were revealed. It became apparent that no referral in respect of those disclosures had been made to the local authority nor to the police. The advocates' meeting was immediately terminated and an urgent directions hearing was sought before the then allocated judge.
The children's guardian and the children's solicitor were ordered to disclose their notes on both interviews with the children and to file and serve witness statements.
On 30 September 2016 the appointment of the children's guardian and the children's solicitor were terminated and a new guardian and solicitor were appointed for the children. I am, understandably, asked to make clear in this judgment that the current children's guardian, the current children's solicitor and counsel instructed by him at this hearing had no part and no involvement, whatsoever, in the events of 30 August or 6 September 2016.
The guardian and solicitor's interview of Y on 6 September 2016 could be the subject of considerable criticism, however, for the purposes of this judgment I focus on the interview with X on 30 August where the most egregious errors occurred.
X was subjected to an almost two hour cross examination conducted principally, if not exclusively, by Ms Noel: I stop short of categorising it as an interrogation. I have never seen the like of it before and I hope never to see a repetition of it again. X was asked leading questions on innumerable occasion, she was contradicted repeatedly by Ms Noel and when X denied a particular treatment or abuse by her father the question was put again and again, effectively denying the child the opportunity of being heard.
A particularly egregious question was asked by Ms Noel when she asked 'Did your dad ever push the sponge or his fingers inside your private?' X replied 'no I don't think so but it was painful'. The question was repeated and the answer was the same save hurt replaced painful. Ms Noel then asked 'did dad ever get into bed with you'. Answer no. Prior to this interview and prior to these questions X had never asserted that the father had inserted his fingers into her vagina nor that he got into bed with her.
Prior to this 'interview' X had not said that she had told her mother of the father's alleged sexual abuse of her.
At the time of both X's and Y's interviews the children's guardian and the children's solicitor knew that there was an ongoing police investigation into these allegations of sexual abuse and ongoing enquiries by the local authority.
Both AB and Ms Noel accepted their respective contemporaneous notes of the two interviews were not a verbatim transcript of the interviews. As the lead questioner Ms Noel's notes were more comprehensive than AB's but neither recorded all questions asked nor all the answers given.
AB is a very experienced children's guardian of longstanding. I was very concerned about her welfare and well being when she came to give evidence.
My order of 6 December 2016 was received by Cafcass. She was the subject of internal disciplinary procedures of which it is not necessary for the purposes of this judgment to say any more. She has since been reinstated.
The guardian had just returned from holiday. She knew the purpose of the visit was at my request to establish X's views about giving evidence. She met Ms Noel outside the foster carer's home and there was a limited discussion about how the interview should proceed. She told me, and I accept, she agreed Ms Noel should take the lead in asking questions as she had not been present at the last court hearing. It was she said, and I accept, the one and only time she had allowed a children's solicitor to take the lead in asking questions of a child. She had not, at that time, viewed the children's ABE interviews nor had Ms Noel.
When asked why she had not referred the disclosures made by X to the police, she said Ms Noel advised her that she needed to consult with counsel then instructed on behalf of the children.
AB conceded her note taking of the interview was not as thorough as it should have been. She readily acknowledged that she should have stopped the questioning as soon as disclosures had been made. She candidly told me that X wanted to talk and because AB believed the children had not been listened to she was open to let X, and then Y on 6 September, talk. She said she was uneasy at some of the questions the girls were asked by Ms Noel and now realised she should have stopped it.
It was immediately obvious from the moment AB stepped into the witness box that she was racked with guilt and remorse. Only a few minutes into her evidence she became distressed and I adjourned for a short period to enable her to compose herself. She readily acknowledged the grave and serious professional errors she had committed in allowing these interviews to progress as they did – most especially in respect of X – and for not terminating them at an early stage.
I accept the guardian's errors and professional misjudgement in this case were grave and serious. Nevertheless I accept her regret and remorse at her actions and omission are entirely genuine and sincere.
I only wish I could make the same observations in respect of Ms Noel: I regret I cannot.
Ms Noel has been a solicitor for 11 years. She has been on the Children's Panel for 6 years but this was the first case of sexual abuse in which she had acted for the children. I do not understand why a solicitor so inexperienced in acting for children should have come to be appointed in as complex and serious case as this one.
I was moved to comment during the course of Ms Noel's evidence that by her actions during the interview with X she had run a coach and horses through 20 years plus of child abuse inquiries and of the approach to interviewing children in cases of alleged sexual abuse. I see no reason, on reflection, to withdraw those comments.
At the conclusion of Ms Noel's evidence, in very marked contrast to that of the former children's guardian, I had no sense that Ms Noel had any real appreciation of what she had done or of the extremely serious professional errors she had committed. She appeared to be almost a naïve innocent who had little or no idea of what she had done.
It is right that I set out with particularity her evidence, most especially to highlight those matters which cause me to make the foregoing observations.
Ms Noel told me that her visit to X was the first time she had met X. She said that the language she used when asking questions of X and the length of the interview – some 2 hours – was "possibly" inappropriate for a child with learning difficulties. On repeated occasion Ms Noel had told X how brave she was being in answering the questions. On reflection, she said, such comments could have been seen by X as a clue as to what she was expected to say and to talk about. She said that 'it may appear but was not my intention.'
Ms Noel had had no training in how to speak with children involved in court proceedings. She knew X had made disclosures to the police and to her foster carers. Why, therefore, she was asked did she embark on this lengthy questioning of X? She replied that at the time she wanted to clarify what X was saying. With the benefit of hindsight, she accepted she should not have done so and should have stopped asking questions. She said she did not know she had asked X directed or leading questions. When it was put to her that she was cross examining X, Ms Noel replied 'I suppose so, yes'.
She confirmed her notes were not a verbatim record and that she had not noted X's demeanour during the course of the interview. She accepted she had probably got some questions and answers missing from her notes and in that sense her notes could be misleading.
Ms Noel asserted she had only seen the DVDs of the girls' interviews after she had seen X on 30 August and Y on 6 September. She had not reported X's disclosures to the local authority because counsel then instructed by her had advised her to wait until after counsel had met with her and the guardian in conference.
Ms Noel accepted that in acting as she did she had badly let the children down. She accepted there was a risk of the children, especially X, being 'set up' to make fake allegations. She accepted there were not insignificant differences between her contemporaneous notes of her meetings with X and with Y and those set out in her statement which she had prepared and signed in December.
Ms Noel was specifically asked if she had approved and authorised the contents of a position statement provided to the court for hearing on 16 September 2016. She said she could not remember. When reminded that she had emailed the same to the court, she replied 'I would have read it'. The position baldly states that in the interview with the guardian and the solicitor X had made disclosures of a sexual nature against her father and had made disclosures in relation to the state of knowledge of the mother and the maternal grandmother. At no point is any reference made to the circumstances in which X said these things, namely that she had been subjected to an intense and prolonged period of cross examination.
I am sorry to observe that Ms Noel's many acknowledgments of error and of professional misjudgement were made, in my judgment, very begrudgingly.
In conclusion I find that in relation to interview undertaken with X on 30 August 2016:
a) she was inappropriately questioned by Ms Noel;
The breaches of good practice were so legion in the interview conducted with X that I have concluded that it would be unwise and unsafe for me to rely on any comments made by X. I will have to consider later in this judgment the extent, if at all, to which this interview with X on 30 August tainted the subsequent ABE interview undertaken by the police with X on 30 September 2016.
b) the interview lasted for a wholly excessive length of time;
c) the conduct of the interview took no account that X suffered from learning difficulties;
d) she was repeatedly asked leading questions;
e) frequently leading questions were repeated even after X had answered in the negative to the proposition implicit in the question;
f) there was absolutely no justification for embarking on this sustained questioning of X;
g) the exercise was wholly detrimental to X's welfare and seriously imperilled a police investigation;
h) the conduct of the interview led to a real possibility that X would be led into making false allegations;
i) the conduct of the interview was wholly contrary to the intended purpose of the visit, namely to establish X's wishes and feelings about giving evidence in this fact finding hearing; and
j) the record keeping of AB and Ms Noel was very poor. Not all questions and answers were recorded or accurately recorded. No reference is made to X's demeanour during the interview or to any perceived change in her demeanour.
One of the worst examples of these very poorly conducted interviews arose in Y's interview on 6 September. She alleged for the very first time that she told her grandmother of the sexual abuse she had suffered. For the reasons I have given in relation to X's interview, I pay no regard to this comment at all. To the extent that I find, if at all, that the grandmother knew about the sexual abuse of both girls, I shall rely on the other evidence before me.
The issues of whether I should name Ms Noel in this judgment and/or she should be referred to her professional disciplinary body is to be determined at separate hearing. None of the parties to these proceedings wish to be heard on these issues: the matter is left to the court. I will, however, hear submissions on behalf of Ms Noel at that hearing. At the hearing on 18 August I read and heard submissions from counsel on behalf of Ms Noel. I was asked to show compassion to Ms Noel and not name her in the judgment. A number of personal and professional reasons were advanced. I do not propose to set them out in this judgment. I took account of all those submissions but concluded that the public interest and the need for transparency overwhelmingly required me to name Ms Noel. Accordingly her name appears in the published version of this judgment.
I have read the police ABE interviews of CD. I have viewed those sections of the DVDs of her ABE interviews I was invited by the parties to consider.
When the police raided CD's family home they found a bare mattress on the floor of a downstairs room which was surrounded by a number of chairs. It was here that CD alleged that she, her siblings and others were subjected to sexual abuse by a large number of males.
I found CD's ABE interviews to be compelling. She was understandably reluctant to speak about and hesitant when she did so of the details of gross and depraved sexual abuse to which she had been subjected. In contrast to the case advanced by the father, what I found to be particularly compelling was that part of her ABE interview on 23 January 2014 when she was asked to identify people or neighbours who may have known about the abuse she had suffered. She named a woman and her male partner, LD and LF, who lived across the road from her family home in MNO Street. She did not suggest either of them were involved in the abuse.
I mention this fact in response to the father's assertion that CD had identified him simply on the basis that he was a man known by CD to live locally: in terms, she had chosen him as an abuser at random. I reject that assertion on the basis that:
a) she had not identified all known local males as her abusers;
The fact that CD had incorrectly identified one accused male does not deter me from finding that CD's evidence of her abuse was cogent and credible and that her identification of the father was compelling.
b) she correctly identified him as having lived at 98 GHI Street; and
c) in her video identification of him she had asserted that she was 100% sure he had raped her.
I am in no doubt on the totality of the evidence, especially the father's possession of indecent images and movies, that the father did rape and sexually abuse CD as she alleged in her police interviews, in her oral evidence at the criminal trial and in her testimony to this court. For similar reasons I find CD's evidence compelling in respect of YQ.
X, like her sister Y, suffers from learning difficulties albeit to a lesser extent. Nevertheless she is a forceful young person who is well able to express her views.
For the reasons I have already given I have no regard to the interview conducted with X by the former children's guardian and the former children's solicitor on 30 August 2016, nor do I have any regard to what was allegedly said by X during the course of that interview.
X gave a number of ABE interviews to the police on 3 July 2014 and 30 September 2016. In relation to the last in September 2016 I have to consider to what extent, if any, X's disclosures or comments in this interview were adversely influenced or affected by the conduct of the August interview. I am wholly satisfied that it was not influenced or affected by the same or, at least, not to any significant or material degree. I watched all of the agreed excerpts of X's ABE interviews save the last in September 2016 which I viewed in full. What was of note was X's almost throwaway but emphatic comment that she was frightened of her father. This comment was made in the context of X describing how she would pick at her lips and at her fingers and nails. I am satisfied on the basis of X's entirely appropriate demeanour generally and her demeanour and comments in this particular section of her last ABE interview that X was telling the truth about her father.
In the course of this ABE interview X spoke of her father's insistence that she and Y get dressed in the morning downstairs in front of him. X said she did not want to do this and was embarrassed to do so, not least because her breasts were beginning to develop. X's body language at this time was entirely appropriate and instructive. She placed her hands over her breast and turned away, side on, to the camera saying her father insisted she turn round and face him. I am entirely satisfied that X was giving an honest and truthful account.
It is said on behalf of the adult respondents that there are inconsistencies in X's disclosures and allegations. I agree there are but in my judgment:
a) they are to be expected in a young person with X's difficulties; and
Save as referred to in paragraph 263 below, no respondent submitted that in the course of X's ABE interviews there was any substantial or material failure by the police to follow the Achieving Best Evidence Guidelines. The same observation applied in respect of Y's ABE interviews.
b) they do not detract from the essential core of X's allegations.
Furthermore and in corroboration of the foregoing I take into account the theme of complaints and allegations made by X against her father to her nursery teacher, school teachers and/or teachings assistants. The following is an extract of the principal allegations:
a) During September 2008 X was regularly seen by staff at her nursery school to become very upset when having to leave nursery to be taken to her father's home;
Further I take into account the record of an interview undertaken by the social worker, HA, and police officer, Dectective Constable B, with X on 26 August 2016. I note this visit took place a few days before the fateful visit by the then children's guardian and children's solicitor on 30 August 2016. HA records the relevant part of this interview as follows:
b) On 26 June 2009 X told HD that '[first name of ZK]'s back' and that he slept in her bed whilst she slept in her grandmother's bed;
c) On 10 April 2014 X told HJ that 'I hate my dad … He makes me strip naked. I don't like it';
d) On 27 October 2014 HH recorded X saying that her father touched 'my boobies' and later 'in youth swimming club he pulled my swimming costume down'. When asked if she had told anyone she replied 'my mom';
e) On 23 February 2015 X told FZ in respect of picking her lips that 'I worry that I'm going to see my dad in case he takes me back to his house. Makes my tummy worse because it reminds me of bad problems.';
f) On 2 March 2015 X spoke to HH and said 'I don't like him [her father] he always swears at me and said he was going to throw me out naked.';
g) On 11 July 2016 X told her foster carer 'I'm not [TG's surname], I go a [JA's surname] because that's my dad's name and I hate him. He treats me badly and is unkind to me';
h) On 30 July 2016 X told her that her father 'made me and my sister undress in front of him and I told him I don't want to. I want to go in another room. He said he would throw us outside in the street naked if we don't.';
i) On 9 October 2016 X said to her foster carer 'I know I am safe with you from [first name of TG]. I call him [first name of TG] because he is not my dad. I hate him.'
"During the part of the book about 'bad secrets', X reported her father would rub her chest and private parts, years ago, at his house, always on Saturday, something which she told her mother about. X asserted she hated her father's scent. X informed her father would have asked her to strip and would then rub her with the bumpy part of the sponge, doing this hard to the extent that she would feel pain the following morning. X stated that is all she could remember, informing that she had a "banging headache". X made reference to her parents subsequently arguing and sibling Y winding the puppy up (unclear which) and blaming her, stating this is the reason that she hates Y.
On her own volition X made reference to getting told off by her father and at times having to clean the puppy's sick and poo.
X asserted always telling her mother, nan and aunty (confirming this was GE), which leads to her aunty "having a go at her father", stating that she is like the Police and her "boss" is a male called LG."
I recognise and take account of the fact that this was not a formally recorded interview, the above is not a verbatim record and the questions asked of X are not recorded. Nonetheless from all I have read and heard I am in no doubt about the integrity and professionalism of either HA or Detective Constable B. I am satisfied this note accurately reflects what X said in this interview unprompted and not led by questions asked by either HA or Detective Constable B.
Y has severe learning difficulties and has difficulties expressing herself coherently. In considering her allegations and disclosures I have had regard to, as I have in respect of X, the professional reports upon her functioning and cognitive abilities.
Y underwent two ABE interviews on 21 August 2015 and 25 April 2016. I watched extracts of the DVDs of these interviews as requested by counsel. Although it was often difficult to understand what Y was saying, her demeanour and body language was very striking and informative. At the first mention of her father, by way of example, the change in Y's demeanour is dramatic. She had appeared relatively relaxed and comfortable in the interview room. When her father is mentioned she collapses back onto the sofa on which she is sitting, puts her hands over her face and immediately pulls her knees up to her face and wraps her arms around her legs: effectively wrapped into a tight ball. She remains in this position, not communicating with either the police officer or the intermediary, for a significant period of time.
Like X, Y made disclosures and allegations to her nursery teacher, school teachers and/or teaching assistants. There are, I accept, inconsistencies in Y's comments, disclosures and interviews. She has little or no concept of time. Such inconsistencies are hardly surprising in a child with severe learning disabilities who is speaking about events which occurred many months or even years ago. In her disclosures or comments made at nursery and school over a considerable period of time a consistent theme emerges.
The following are the principal examples which have led me to conclude there is a consistent theme in respect of what Y has reported, namely:
a) on 1 July 2014 in conversation with a fellow pupil Y said 'my dad's in prison and [first name of YQ] too'. In response to the question why is he, she replied 'He tried to touch my privates'. In response to another pupil she said 'He touched my privates';
In my judgment these series of comments by Y are, taken together, powerful evidence of the abuse she alleges she suffered from the father, YQ and ZK. She spoke either to fellow pupils, unaware a teacher could hear her, or to her teachers or to her foster carer all of whom it is clear she trusted and with whom she felt safe.
b) on 3 June 2015 Y told FZ that 'My dad and [first name of YQ] touched my privates … Here when we were asleep' and she pointed and rubbed her vagina. When they spoke about keep safe work and that daddy should not have touched privates, Y interjected and said 'Don't forget [first name of YQ]';
c) on 15 July 2015 Y said to LH that her father had been bad 'cause he's been silly and touched our privates when we were in the bath' and added '[first name of YQ] touched my privates when I was in the bath on Sunday night';
d) on 15 November 2015 Y told HJ that [first name of ZK] came for tea on Saturday and that he had given her a Playstation 2 and was coming today with more games. She continued 'He lives in the flats near me. He's not staying cus he's a man. We under police protection.' She then mentioned 'Only [first name of YQ] stayed before. [first name of YQ] is in the police station and my dad.' A little later she said 'when we was in Class 1 2 mens tried to touch our privates';
e) on 8 December 2015 Y told DC '[first name of YQ] and dad touched in my privates, both of them.' She touched her groin and continues 'come into my bedroom and touched my privates, 33 JKL Road';
f) on the same day she told HJ that [first name of ZK] had given them a Christmas tree.' She said he had come round and she helped him put the tree up. The mother and maternal grandmother accepted in evidence that he had given them a Christmas tree but in marked contrast with their evidence, Y continued he comes round a lot;
g) in similar vein, Y told HH on 6 January 2016 that [first name of ZK] 'comes to my house every day, every school day';
h) on 11 February 2016 she whispered to FY that 'last year: Class 1 dad, [first name of YQ] and [first name of ZK] touched our privates';
i) on 12 June 2016 when chatting to her foster carer, KF, Y said 'my dad used to hit me and sister X. He made us sit on the stairs every Saturday when we go to his house but not now as he is in prison. She then said 'my dad, [first name of ZK] and [first name of YQ] … You know. You know down there [she pointed to her groin] Them do it to me and X as me and X share a bedroom', she added 'Also you know [first name of YQ], [first name of ZK] and my dad touch me down there'. The foster carer noted that Y nodded her head towards her private parts and looked tearful;
j) on 22 June 2016 HJ overheard Y say to a classmate 'cus of [first name of TG], [first name of YQ] and [first name of ZK] and what they did ya know. Them fault.";
k) on 12 July 2016 Y told her foster carer about her father, whom she called [first name of TG], touching her and X and then said '[first name of YQ] and [first name of ZK] and [first name of TG] come into the bedroom late in the dark and touch me and X private. I hate [first name of TG]';
l) on 6 August 2016 and 10 September 2016 Y was speaking to her foster carer about her father abusing her and X and said she had told her mother and maternal grandmother but they had told her not to tell anyone. In the latter conversation she included X and GE telling not to say anything about 'the bad things';
m) on 11 September she told her foster carer, having noticed police cars go by, it's a fire and me hope [first name of YQ], [first name of ZK] and me Dad [first name of TG] is in there because me don't want to see their faces ever again.' In response to being told that was not a nice thing to say she replied 'Well me don't want to see me Dad [first name of TG] or [first name of ZK] or [first name of YQ] face again me hope it's a fire and they get killed'; and
n) after giving evidence at the criminal trial on 18 May 2017 Y said to HJ 'I went to court to say about three mens. They go to prison now [at which she put her fist in the air and said 'yes'] I don't go again thank God. They can't touch me and X again. And nobody else. Ya know the three mens.'
I accept when directly asked, during the course of her evidence at the criminal trial, whether ZK had abused her, she said 'no'. This single answer, however, has to be considered in the context of the totality of the evidence before me.
As I mentioned in paragraph 3 above, the criminal trial encountered several complications which resulted in the trial seriously overrunning the initial time estimate. It had been intended that the trial would be concluded by mid June, some three weeks before this fact finding hearing was listed to commence. The President, at the hearing on 21 June 2017, approved this hearing being delayed by one week, to commence 10 July, and being limited to a finding of fact hearing.
The prospect of commencing this hearing at a time when the criminal trial was continuing could have given rise to any number of legal issues and practical problems. I wish to express my gratitude to HHJ Ward, who presided over the criminal trial, for his exceedingly helpful co-operation and liaison with me which either prevented any insuperable difficulties occurring or resolved all legal issues and practical problems (e.g. the transcripts of the evidence of relevant witness in these proceedings were provided by the Crown Court to the legal representatives on a daily basis with the caveat that the contents should not be discussed with their respective lay clients. Once the jury had retired to consider its verdicts, HHJ Ward removed the caveat.)
The evidence in these proceedings concluded on 27 July. The parties provided the court with detailed written submissions and spoke to the same on 31 July. At the conclusion I reserved judgment.
On 4 August 2017 I was notified by HHJ Ward that the jury had returned verdicts on all counts of the indictment against each defendant save (a) for an count upon which they could not agree and (b) where the count was an alternative to a more serious offence. In the case of the father and one other defendant who had been found unfit to plead, the jury did not, of course, return verdicts but found he did the act in respect of each count against him.
The verdicts, or finding in the case of the father and one other defendant, were as follows:
a) The Father
(i) Did the act: rape of CD on no fewer than 3 occasions between 9 June 2007 and 10 June 2010 when she was under the age of 13.
(ii) Did the act: sexual assault of a child under 13, namely on no fewer than 10 occasions between 30 June 2007 and 4 February 2014 intentionally sexually touched Y's vagina when she was in bed;
(iii) Did the act: sexual assault of a child under 13, namely on no fewer than 10 occasions between 30 June 2007 and 4 February 2014 intentionally sexually assaulted Y when she was getting in or out of the bath;
(iv) Did the act: distributing an indecent photograph of a child namely on 10 January 2014 distributed one indecent image of a child (Category B) attached to an email sent to a third party;
(v) Did the act: distributing an indecent photograph of a child namely on 10 January 2014 distributed one indecent image of a child (Category B) attached to an email sent to a different third party;
(vi) Did the act: possession of indecent photographs of a child namely on 3 February 2014 had in his possession 4 indecent moving images of children (Category A);
(vii) Did the act: possession of indecent photographs of a child namely on 3 February 2014 had in his possession 2 indecent still images of children (Category B); and
(viii) Did the act: possession of indecent photographs of a child namely on 3 February 2014 had in his possession 18indecent still images of children (Category C).
(i) Guilty: rape of CD on no fewer than 3 occasions between 9 June 2005 and 10 June 2010 when she was under the age of 13;
(ii) Guilty: sexual assault of a child under the age of 13 namely on a day between 30 June 2007 and 4 February 2014 intentionally sexually assaulted Y by touching her vagina; and
(iii) Guilty: sexual assault of a child under the age of 13 namely on a day, other than in (ii) above, between 30 June 2007 and 4 February 2014 intentionally sexually assaulted Y by touching her vagina.
(i) Guilty: sexual assault of a child under the age of 13 namely on a day between 1 September 2013 and 30 July 2014 intentionally sexually assaulted Y by touching her vagina; and
(ii) Guilty: sexual assault of a child under the age of 13 namely on a day, other than in (i) above, between 1 September 2013 and 30 July 2014 intentionally sexually assaulted Y by touching her vagina.
d) The SD/CD family
(i) SD, CD's mother was convicted of one count of child cruelty by failing to protect CD from sexual activity with men and two counts of child cruelty by failing to protect her from sexual assaults by her brother QD;
(ii) PD, CD's grandfather, was convicted of one count of vaginal rape, one count of oral rape and two counts of sexual activity with CD, all at times when she was under the age of 13 years and one count of vaginal rape jointly with another;
(iii) QD, CD's brother, was convicted of one count of vaginal rape when CD was under the age of 13 years, four counts of penile penetration of her vagina, two counts of penile penetration of her mouth, three counts of sexual activity including penile penetration, oral touching or touching her vagina and two counts of attempted penile penetration;
e) Other defendants
(i) Two men, LP and LQ were both convicted of vaginal rape of CD when she was under the age of 13 years; and
(ii) LR was found to have done the act namely vaginal rape of CD jointly with another and of sexual activity with CD.
All three of them were known associates of the adult members of the SD/CD family.
The provisions of s.11 Civil Evidence Act 1968 provide that:
(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or [F1of a service offence (anywhere)]F1 shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.
(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or [F2of a service offence]F2—
(a) he shall be taken to have committed that offence unless the contrary is proved; and
Accordingly as a matter of law, and in the absence of the contrary being proved, I would be entitled to find these convictions in respect of ZK and YQ are proof of the findings sought by the local authority.
(b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.
Upon learning of the verdicts of the jury I invited the parties, by email sent by my clerk, to make further submissions in light of the convictions of YQ and ZK and the findings of fact in respect of the father. I received supplemental submissions on behalf of the father.
In supplemental submissions Ms Meyer QC and Ms Gallacher assert that a finding by the jury that the father 'did the act' in respect of any count on the indictment is not a 'conviction' for the purposes of s.11 (1) & (2) of the Civil Evidence Act 1968. I agree.
The procedure for a jury finding a defendant who has been found unfit to plead, did the act alleged was introduced by s.4A of the Criminal Procedure (insanity) Act 1964. Lord Bingham made plain in R v H  UKHL 1 at paragraph 16 that the procedure under s.4A is not a determination of a criminal charge nor is it a conviction.
The wording of s.11 (1) & (2) which refers only to a 'conviction; is to be contrasted with the wording of s.11(3) and s.13 of the 1968 Act. In the latter the phrase 'a conviction or a finding of fact' is included in those sections. The interpretation provisions of the 1968 Act, s.18, do not contain a definition of the term 'conviction'.
Accordingly I am satisfied the provisions of s.11(2)(a) do not apply to a finding by a jury that a defendant 'did the act'.
Further and in any event, I had embarked on my consideration of the evidence before the jury returned its verdicts and findings of fact. I propose to continue in the same vein and not to take account of the conviction of or findings of fact made against the father, YQ and/or ZK in my determination of whether I make findings of fact in these proceedings as sought by the local authority. If I do so, any finding will be based on the totality of the evidence the court has heard and read during the course of this hearing.
ANALYSIS – OVERVIEW
When embarking on the exercise of drawing the numerous strands of evidence together and analysing the same throughout this judgment, I have had well in mind the authorities and guidance referred to in paragraphs 10 to 17 above.
I have taken account of all the original written submissions and the addendum submissions.
I have read and taken into account the assessment reports filed, namely:
a) ET of X on 8 July 2007;
I have re-read the ABE interviews of X, Y and CD and once more viewed extracts from the DVDs of their respective police interviews. I have re-read the police interviews given by the mother, the father, YQ and ZK.
b) EU of X of 10 October 2008;
c) EV of Y of 23 July 2014;
d) EW of Y of 31 July 2015;
e) EM of the mother of 5 May 2016;
f) EX of Y of 21 May 2016;
g) EW of X of 30 September 2016;
h) EP of ZK of 11 October 2016; and
i) the reports set out in a supplemental bundle relating to the father's mental health and the deterioration of the same.
Counsel for a number of the respondents acknowledged in their closing submissions that the court was likely to conclude that their respective clients had lied in their evidence to the court, namely the mother, the maternal grandmother and ZK. The issue is what significance or weight I should place upon their respective lies and, most importantly what conclusions I should draw from the same.
The mother went further – Ms Henke QC told me in her closing submissions that the mother conceded that she ought to have known that X and Y were being sexually abused when in her care or that of the father.
I have been referred to a number of authorities on the issue of the extent to which a court may rely upon the proven lies of a witness; most particularly the recent case of Re H-C: see paragraph 13 above. I entirely accept that the mere fact of a lie being told does not prove the primary against the party or witness who has been found to have lied to the court.
I readily acknowledge and accept that a witness may tell a lie for all manner of reasons: some quite innocent, others told out of embarrassment or shame rather than guilt. I have considered the lies admitted or found by me to be lies of the mother, the maternal grandmother, YQ and ZK.
The mother told not one but numerous lies. In judgment I am entitled to view those lies collectively. I set out her lies in paragraphs 122 and 123 above. I am satisfied there is no innocent reason or reasons for any of those deliberate untruths. The sole objective, I find, is an attempt to distance herself from the abuse of the girls as they allege and to enable her to deny any knowledge of the ill treatment to which they were both subject over a prolonged period of time. Her very late concession that she ought to have known of the abuse is the clearest indication of her recognition of the nature and gravity of the lies she admitted telling or which the court was likely to find proved.
Similarly the maternal grandmother told numerous lies. The differences from the mother are (a) she did not admit telling any untruths and (b) she has not made any concession that, on reflection, she ought to have known of the abuse. On the contrary and in the face of the weight of the evidence she maintains a robust denial of any knowledge whatsoever.
I am satisfied that considering the maternal grandmother's lies collectively there is no innocent reason for the same. I find that the maternal grandmother has lied to distance herself (a) from the mother's lies and (b) to distance herself from a finding that she knew of the ill treatment to which both had been subjected over a period of years.
I did not hear evidence from YQ but I have a transcript of his evidence and set out his responses to the question did he go upstairs at the JA family home to go to the toilet at night at paragraph 170 above. A perfectly simple question to which, one would have thought, an honest witness would have been able to give a perfectly straightforward answer, but he could not and did not. Why?
That in changing his account on so many occasions in the course of just a few minutes, I find it inevitable that I should conclude he was lying. The only reasonable explanation is that he was seeking to avoid anyone concluding that he had the opportunity to enter either of the girls' bedrooms at night, especially, in light of the charges he faced, Y's bedroom. I do not consider this to be the approach of an otherwise innocent man.
ZK may have wanted to distance himself from the SD/CD family because he knew from his own knowledge or from local gossip what was said to have taken place at the SD/CD family home and/or the abuse suffered by girls of that family. If this was the totality of ZK's lies or the only unsatisfactory and concerning aspect of his evidence, this might be an understandable and innocent reason: but it was not.
As I have set out in paragraph 155 to 162 above, ZK told numerous lies and he could not give any, or any credible, reason or excuse for lying in his evidence to this court. Considering his lies collectively I am satisfied there is no innocent reason or reasons for the same.
I found CD to be a very compelling witness: not only in what she said in her various police ABE interviews but also by her presentation and demeanour particularly in her later interviews I can discern no reason why she would make false allegations of rape and/or sexual abuse against the father or YQ.
No party in these proceedings has made any submission that there were any substantial breaches of the Guidance in the conduct of the ABE interviews. I have not found any breaches which would cause me to conclude that those parts of those interviews relating to the father were unreliable.
I have rejected the father's assertion that CD identified him as one of abusers on the basis solely that he was a man whom she has seen in the locality. Save for that their defence is one of not knowing CD and a bare denial of her allegations.
In the premises I am totally satisfied that on the balance of probabilities CD's allegations against the father and YQ are true.
X has learning difficulties and Y learning disabilities. Neither are able to focus or concentrate on one subject for more than a few minutes, although X's difficulties are not as severe as Y's.
In respect of their allegation against the father they are reasonably clear that it took place at the former family home on GHI Street when they were having contact with the father. They are also reasonably clear that it took place before, during or after a bath or downstairs when they were made to dress in front of him. He would, they both allege, smack them or slap them. There is no clarity about over what specific period or how often it occurred.
If I am satisfied that what the girls have described in fact occurred the precise details about when and how often it occurred would not, in my judgment, preclude me from finding sexual abuse as alleged had occurred. Given both girls have learning difficulties or disabilities it is not at all surprising that these details are absent nor does it detract from the fact that they are telling the truth.
I acknowledge that X's and Y's allegations against the father were made during and after the separation of the parents and in the wake of acrimonious private law proceedings. There is nothing in the evidence, especially from the girls themselves that suggests that they have been coached or persuaded to make these allegations.
The adult respondents have rightly submitted that in each of the girls' ABE interviews there were some examples of a failure to adhere to the Guidance. Thus, on occasions:
a) a question is somewhat leading;
I accept these breaches occurred but for two principal reasons I do not accept they render any one of the two ABE interviews each child underwent unreliable, namely:
b) a question is asked for X and Y to tell the officers what they had earlier told someone else; or
c) they were praised for answering a question or series of questions.
a) the breaches were not so numerous nor so substantial nor occurred at so crucial an aspect of each interview as to devalue or undermine the reliability of the answer(s) that followed; and
b) I do not have to rely solely on the interviews. What the girls said in their interviews reflects, if not exactly mirrors, what they had previously said to or had been heard to say by the nursery or the school.
On the totality of the evidence and in particularly what both X and Y have repeatedly alleged and on their respective demeanour in the course of the ABE interviews referred to in paragraphs 214 and 222 above, I am wholly satisfied that both are giving me a truthful account of being sexually abused and physically abused by their father.
In relation to the allegations against YQ and ZK, these are only made by Y and not by X. It would be pure speculation on my part to consider why X has not made any allegations against either man when Y has. I confine myself to the observation that X was more reticent at speaking of such matters and was more closely allied with her mother and maternal grandmother against Y being 'a blabbermouth'.
As with her allegations against the father, Y provides few details about the context, the circumstances in which, the specific period(s) over which or the regularity of the sexual abuse she alleges she and X suffered at the hands of YQ and ZK.
The observations I made in respect of the ABE interviews of X and Y about the allegations against their father, apply with equal measure to the allegations made against YQ and ZK.
The context of allegations against YQ and ZK arise in a completely different context from those against the father. These were men known to the mother, the maternal grandmother as friends and/or former neighbours. They were invited by the mother and/or the maternal grandmother to come and stay at the family's home at 33 JKL Road albeit at different times. The mother formed an intimate relationship with each man. I can discern no reason why Y would harbour a grudge against either nor for there being any reason for her to make false allegations against either of them.
The lack of detail from Y about the times and places in the sexual abuse she alleges against YQ and ZK took place prevents me from coming to a clear conclusion about where the alleged abuse took place. The evidence does not suggest that YQ was a regular visitor when the family lived in GHI Street. It may be that he visited the father at GHI Street at times when the girls were having staying contact with the father but there is no evidence which enables me to find that did happen.
Whilst the girls are unclear about dates and times, as far I can discern from the evidence, neither makes any contemporaneous allegation against ZK at any time when he lodged with the family at GHI Street.
In the premises the evidence drives me to conclude that the only realistic opportunity either YQ or ZK had to sexually abuse the girls was when they respectively lived in the maternal grandmother's home.
What evidence do I have to evaluate the truth of Y's allegations against YQ? It is fourfold:
a) what Y said in her ABE interviews;
On the basis of the totality of that evidence I am satisfied that Y has given a truthful account of her and X being sexually abused by YQ over a prolonged period of time. I cannot make a specific finding over how long a period and how frequently he did so: but that does not detract from my clear finding that he did so.
b) what she is recorded as saying by her teachers or teaching assistants at school;
c) the lies found to be told by YQ at his trial; and
d) my finding that he raped CD.
What evidence do I have to evaluate the truth of Y's allegations against ZK? It is threefold:
a) what Y said in her ABE interviews;
On the basis of the totality of this evidence I am satisfied that Y has given a truthful account of her and X being sexually abused by ZK over a prolonged period of time. I cannot make a finding over how long a period and how frequently he did so: but that does not detract from my clear finding that he did so.
b) what she is recorded as saying by her teachers or teaching assistants at school; and
c) the lies I have found that ZK told in his evidence to this court.
Notwithstanding the fact that both X and Y had potentially been sexually abused had been raised in the course of the private law proceedings between the mother and the father in 2008, the mother and the maternal grandmother agreed or acquiesced to a succession of men staying at their home at 33 JKL Road. The mother, the maternal grandmother, ZK and YQ have all been found to be lying about the circumstances in which each man came to be living with them.
I have come to the very clear conclusion based on all the evidence I heard and read that the moral boundaries in this household were low. I am also completely satisfied that when the mother and the maternal grandmother tell me that they now believe that what the girls are alleging is true is a lie. There is absolutely nothing that has emerged in the oral evidence during this case that would lead any rational individual to a different conclusion to that which was evident on the papers or, more importantly, that which was known or should have been known to the mother or the maternal grandmother.
My conclusions about their lies and about the reasons for them as set out above, led me to the clear conclusion that I am satisfied, beyond all reasonable doubt, that this mother and this maternal grandmother well knew of sexual abuse to which X and Y had been subjected.
They operated an open house to all waifs and strays. The mother entered an intimate relationship with two of them, ZK and YQ. I gain no sense whatsoever that the mother or the grandmother sought to give any thought, still less any priority, to the welfare best interests of the girls in agreeing to these arrangements with these men.
In this context it is pertinent for me to refer to a comment made by a social worker after the visit on 17 March 2016. The comment is "The tempo of the family home was relatively relaxed although UA and JA were seemingly anxious about what the children were going to share, particularly X." On one view this was an entirely innocent comment relating to what else the children might disclose. In the light of my other conclusions I do not ascribe so generous a view to this comment. I am satisfied it is yet further evidence that the mother and the maternal grandmother knew and feared what the children would say to school teachers, social workers and the police about their lives, their abuse and their ill-treatment.
FINDINGS OF FACT
On the totality of the evidence and for the reasons I have previously given I am wholly satisfied that:
a) the father, over a period of years, repeatedly sexually and physically abused X and Y;
Accordingly I make all of the principal findings of fact sought by the local authority in its Revised Schedule of 9 May 2017.
b) the father raped CD;
c) the father had a sexual interest in children, both male and female;
d) YQ, over a period of years repeatedly sexually abused X and Y;
e) ZK, over a period of years, sexually abused X and Y;
f) X and Y, as a result of the sexual abuse they had both suffered, exhibited inappropriate sexualised behaviour.
g) the mother knew that X and Y were being sexually abused by the father, YQ and ZK, not least because X and Y told her;
h) the maternal grandmother knew that X and Y were being sexually abused by the father, YQ and ZK, not least because X and Y told her;
i) both X and Y were told by the mother and the maternal grandmother, from time to time, not to talk about or to report to professionals the abuse to which they were and had been subjected; and
j) neither the mother nor the maternal grandmother were open or honest to professionals in respect of the abuse to which the girls were subjected nor in respect of the mother's relationships with YQ and ZK.
In respect of what I shall term the secondary findings of fact I do not consider it either necessary or appropriate to make findings. For the avoidance of doubt this relates to findings no. 10, 10A, 10B and 12 of the schedule set out in Annexe A to this judgment.
I have, quite understandably, had a vast mass of documentary evidence to consider in this case in reaching my findings of fact: extending to 26 lever arch files of statements, reports, transcripts of interviews and case recordings in addition to a comprehensive set of position statements and closing submissions.
I accept I have not and in reality could not and should not have dealt with every bye way in the evidence or every detail of the same. I have striven to focus on the principal evidence and reasons for making the aforementioned findings of fact.
The following overarching conclusions guided and led me to make the findings of fact I have made, namely
a) the close relationships and interconnections between the principal players, i.e. the mother, the father, the maternal grandmother, YQ and ZK;
X and Y were subjected to sustained and prolonged sexual abuse in their father's and mother's homes over a period of years. They were further subjected to physical abuse by their father. They were failed to an exceptionally serious degree by those whose duty it was to protect them: their father, their mother and their grandmother.
b) the fact that the mother had had intimate relationships with all three men accused of abusing X and Y and especially that in respect of the latter two, neither girl had ever said anything that might give either of them cause for making false allegations against either of them;
c) the lies told by the mother, the maternal grandmother, ZK and YQ went so far beyond the scope of being the lies of an innocent party;
d) having read the girls' ABE interviews and, in particular, viewed the relevant parts of their DVDs I was left with a clearly determined conclusion that what they were saying, despite all of the lack of detail and clarity was true: it was an expression, on however many occasion and whatever circumstances, of what they had experienced or seen their sibling experience;
e) the totality of the evidence led me to a clear conclusion that the father, ZK and YQ, given their respective very close and daily contact with the girls had much, much more than the mere opportunity to sexually abuse the girls. I am satisfied that not only did each have the opportunity but they took it as alleged by X and/or Y.
I will have to determine in due course what I consider to be the appropriate future long term placements for X and for Y in the welfare best interests of both children.
Finally I wish to express my gratitude to all leading and junior counsel and to their respective instructing solicitors for (a) their very considerable endeavours in their preparation of this case and (b) for their skilful presentation of their respective cases which clarified the issues and brought the case to the conclusion of the evidence and submission well within the time estimate of 20 days.
The 'Final Amended Threshold Document' dated 31st July 2017 has been annexed to the unanonymised judgment but has been removed from this judgment to preserve confidentiality.
Copyright Policy |
Donate to BAILII