B e f o r e :
THE HONOURABLE MR JUSTICE
BAKER
____________________
Between:
|
A LOCAL AUTHORITY
|
Applicant
|
|
- and -
|
|
|
A MOTHER (1) Z (2) A, B, C AND D (3) to (6) X (7)
|
Respondents
|
____________________
Ruth Henke QC and Margaret Pine-
Coffin
(instructed
by
Local Authority Legal Unit) for the Applicant
Frances Judd QC and Julia
Belyavin
(instructed
by
Stone King) for the First Respondent mother
Leslie Samuels QC and Andrew Grime (instructed
by
Wansboroughs) for the Second Respondent, Z
Deidre
Fottrell QC and Louise Mac Lynn (instructed
by
Royds Withy King) for the
Children
via their guardian
Charles
Hyde QC and Linsey Knowles (instructed
by
Bevirs)
for the Seventh Respondent, X
Hearing
dates:
2nd, 3rd, 4th, 5th, 9th, 10th, 11th , 17th, 18th,19th, 22nd, 23rd and 24th May,
____________________
HTML VERSION OF JUDGMENT APPROVED
____________________
Crown
Copyright
&
copy;
MR JUSTICE
BAKER
:
- This judgment is
delivered
at the
conclusion
of a fact-finding hearing in
care
proceedings
concerning
four
children
referred to in this judgment as A, a
boy
now aged 13,
B,
a girl now aged 9,
C,
a
boy
now aged 7, and
D,
a girl aged 15 months. The allegations made
by
the local authority against the adults responsible for their
care
include sexual abuse, failure to protect, physical abuse, and neglect.
Background
- The mother, who is now aged thirty-seven, has had eight
children
by
six
different
fathers. Her first two
children,
now aged eighteen and seventeen, have lived with their father since they were small
children.
Her third
child,
a girl, E, was
born
in February 2002 and is therefore now aged fifteen. She lived with her mother until 2016
but
then moved to live with her father in
circumstances
described
below.
The mother's fourth
child,
a
boy,
A, was
born
in April 2004 and is therefore now aged thirteen. There is no record of his having any
direct
contact
with his natural father who has
declined
to
be
involved in these proceedings.
- In July 2004, the mother married a man who is, in fact, not the father of any of her
children.
The marriage lasted for only a few weeks and, according to the mother, ended when she
discovered
that her husband had
committed
a sexual offence against her niece. Although the mother and her husband then separated, they remain married. In May 2006, following a relationship with another man, the mother gave
birth
to her fifth
child,
a
boy,
F, now aged eleven. Like E, F has had regular
contact
with his father and is now living with him in
circumstances
described
below.
- In 2005, the mother met another man, X. They started a relationship and, in August 2007, moved into a home together. At that point, therefore, the household
consisted
of the mother, X, and three of the mother's
children
– A, E and F. X remained in the family home for the next seven years.
Both
he and the mother say that he
became
the father figure to all of the
children
and that they shared responsibility for looking after the
children.
Shortly after moving into the property, however, X
began
to sexually abuse A and
continued
doing
so for several years. He made video recordings of the acts of abuse on his mobile phone. The fact that he abused A, and the extent of that abuse, which included rape, are not in
dispute.
What is an issue, however, is whether the mother knew, or ought to have known, about the abuse.
- In May 2008, the mother gave
birth
to her sixth
child,
B,
now aged nine. In March 2010, she gave
birth
to her seventh
child,
C,
now aged seven. X is the father of
both
of these
children.
During
this period and over the next few years, there were several referrals and
complaints
made about the family to social services, some from the school and others
by
anonymous persons. The
complaints
include allegations of neglect and
claims
by
E that she was
being
bullied
at home. Although various assessments and strategy meetings took place, the local authority took no further action about the family. In May 2012, having
carried
out a section 47 assessment in respect of E, the local authority identified that further
core
assessments should
be
carried
out in respect of the other
children.
It seems that no such assessments were ever
completed.
- In 2012, a teenage
boy,
W, then aged fifteen, moved into the family household. In his oral evidence, W
described
meeting X outside the family home when X was working on his
car.
Subsequently, he visited the house with his father, who lived nearby. Then, after one evening when he had visited the mother and X without his father, he had a row with his own mother who told him to leave. The mother in this
case
and X offered to put him up. He said in evidence that he intended only to stay for one night
but
in the event he stayed for several years. Whilst living at the family home, W slept on the sofa or in a spare
bed
in the
boys'
bedroom.
- At some point after W moved in, X started a sexual relationship with him. The fact that a relationship took place is not in
dispute,
but
the
date
on which it started is not agreed. There is also an issue as to when the mother
became
aware of the relationship. She says that she was unaware of what was going until she
discovered
X and W in
bed
together. X alleges that there was also a sexual relationship
between
the mother and W.
Both
the mother and W
deny
this allegation. Meanwhile, the steady pattern of referrals to social services
continued.
In particular, the
children's
schools
complained
about evidence that the
children
were neglected and
being
ill-treated at home. It is now accepted
by
the local authority that its response to these referrals was inadequate.
- On 2 September 2014, the local authority and the police were informed
by
the
Child
Protection and Online Exploitation
Centre
that an individual at the family home had uploaded a number of indecent images and videos of
children.
The police informed social services. On 9 September, X was arrested and a thorough search of the property
carried
out.
During
the search, a police officer informed the mother that the police were in possession of intelligence that X had uploaded indecent images of
children.
She was informed that he would
be
released from
custody
later that
day
on
bail
but
that it would
be
a
condition
of his
bail
that he should have no unsupervised
contact
with
children.
- On 10 September, a section 47 enquiry was
carried
out. All of the
children
were interviewed
but
they made no allegations of abuse. On the same
day,
F went to live with his father. Subsequently, a
child
arrangements order was made in respect of F providing that he should live with his father and have
contact
with his mother. On 14 September, the mother telephoned the police reporting that she was
confused
about the terms of the
bail
conditions
and the additional
conditions
imposed
by
social services
concerning
X's
contact.
The officer in the
case
telephoned her
back
and explained these
conditions
in more
detail.
The mother subsequently signed a written agreement agreeing that she would not allow X to have
contact
with the
children
at home. Inexplicably, that agreement has now
been
lost and there is no precise evidence of its terms. Although she signed an agreement, however, the mother told social services that she
did
not regard him as a risk to the
children.
When the
children
were visited
by
a social worker at school on 19 September, A and
B
said that they missed X, wanted to see him and wanted him to
come
back
home. The local authority made arrangements for
contact
between
X and E, A,
B
and
C.
Because
of the nature of his of alleged offences, he was not allowed to attend a
children's
centre
and thus the local authority arranged for
contact
to take place at the family home, supervised independently.
Despite
the terms of the
bail
conditions,
there were repeated reports that X had visited or stayed at the family home. At a home visit on 30 October, the mother
denied
that X was having any unauthorised
contact
with the
children,
and her
denial
was supported
by
all four
children
and W, who was still living at the property. The mother said that she now accepted that X was a risk. Notwithstanding the mother's assurances, the local authority
continued
to receive reports that he was visiting the property. On 17 November, the social services and police visited the property together.
During
this visit, the mother alleged that the previous social worker had told X that he
could
attend the property as long as the
children
were not present. She said that she suspected that her neighbours were making malicious and untrue
complaints
about X visiting the property.
- On 19 November, social services visited the home of X's father, XX, with whom X was staying, to assess whether XX
could
supervise
contact.
According to the local authority, XX said that he understood that he would not
be
able to leave the
children
alone in the room with X. He said, however, that he
did
not think that X posed a risk to the
children,
adding that social
care
had "
blown
all of this out of hand",
but
he told social services that he would stick to the supervision requirements. Following this visit, a further strategy
discussion
took place to
consider
the renewed
concerns
about X visiting the family home and, in addition, about the
conditions
at the property which were said to have
deteriorated
after X's
departure.
No further action was taken at that stage and for the next few weeks
contact
continued
to take place as
before,
supervised at the family home. In the period leading up to
Christmas
2014, X and the mother made several requests to social services to arrange
contact
on
Christmas
Day,
but
the local authority
declined
to make such arrangements. At the start of the next school term, however,
B
produced a piece of writing about her
Christmas
holidays in which she stated that she had seen her father at her grandmother's house. On 26 January 2015,
B
told a teaching assistant that she had seen her father the
day
before.
- In early 2015, the mother
began
a relationship with another man, hereafter referred to as Z. At this point, the mother told social services that she no longer agreed that X's
contact
could
take place at the family home. X again suggested his father as a possible
contact
supervisor. On 16 April, a family group
conference
took place to
discuss
contact
arrangements and it was agreed that XX would supervise
contact
at his home with effect from 21 April. After a preliminary visit, social services agreed and thereafter X had
contact
with the
children
at his father's home. The local authority now alleges that XX failed to supervise that
contact
adequately.
During
the
course
of 2015, there were ongoing
concerns
about the
children
and the state of the family home. In particular, the school were
concerned
about head lice which were repeatedly seen in
B's
hair.
B
also alleged that her mother was ill-treating her, pulling her hair and shouting at her. The local authority
continued
to receive anonymous
calls
alleging that X was having unauthorised
contact
with the
children
at the family home. As a result, they
conducted
unannounced visits to the property
but
on each occasion X was not present.
- In August 2015, the mother informed social services that she was pregnant with Z's
child.
In October 2015, the probation service informed the local authority that the mother and the
children
were staying over at Z's house at a time when his lodger, who was a registered sex offender, was also present. After a further home visit, the mother agreed not to allow the
children
to
come
into
contact
with Z's lodger.
During
the autumn school term 2015, E, who had
become
increasingly unsettled at home, made a series of
complaints
and allegations about her treatment, for example in
December
2015 alleging that the mother had shouted at and head-
butted
her.
- On 8 February 2016, the police inform social services that they planned to arrest X again following analysis of his telephone. The phone had
been
seized at the time of his first arrest eighteen months earlier
but
had not
been
analysed at that stage, apparently
because
of the huge
demand
for technical analysis of electronic equipment in other
cases.
When X's phone was finally analysed, it was found to
contain
a large number of images and videos of X sexually abusing A. Another strategy
discussion
took place leading to another section 47 investigation. The following
day,
X was arrested again. X's home was searched
by
the police who seized, amongst other items, a
diary
belonging
to X which
disclosed
a number of entries about unsupervised and unauthorised
contact
between
him and the
children.
- In an ABE interview in February 2016, E alleged that X had taken photographs of her naked. On 3 March 2016, E went to live with her father. In April 2016, the mother gave
birth
to her eighth
child,
a girl,
D,
now aged fifteen months, of whom Z is the father. The mother remains in a relationship with Z, although he
continues
to rent a separate flat.
- On 13 May 2016, X having pleaded guilty to a series of offences including the rape and sexual abuse of A, and the possession of indecent images of a
child,
was sentenced to 18 years in prison. Shortly afterwards, W revealed that he had also
been
the victim of sexual abuse
by
X. Subsequently, W was interviewed
by
the police and gave full
details
of the sexual activity with X.
- On 17 May 2016, the local authority started
care
proceedings in respect of A,
B,
C
and
D.
On 24 June the
children
were removed from the family home under an interim
care
order, although it was not until 8 July that a
contested
interim
care
hearing took place
before
Recorder Jacklin QC. At the
conclusion
of the hearing, the recorder found that the safety of the
children
required that they remain in foster
care.
- Meanwhile, on 9 June, the
children's
guardian appointed to represent them in the
care
proceedings had started proceedings in respect of a
breach
of the
children's
Article 8 rights, alleging that the local authority had failed to properly investigate the nature of the images
downloaded/uploaded
by
X; had not adequately evaluated the risks of
contact
between
X and the
children,
and had failed to issue proceedings promptly in February 2016 following X second's arrest when it had
become
clear
that A had suffered sexual abuse. As a result of this further
claim,
in addition to the
care
proceedings, the
case
was transferred to me.
Case
management hearings took place
before
me on 19 October 2016 and 6th February
2017,
and a fact-finding hearing was listed in May
2017.
Following the publication of the judgments in
CZ
v Kirklees
Council
[
2017]
EWFC
11 (
Cobb
J), H v Northamptonshire
CC
and another [
2017]
EWHC 282 ...Fam) (Keehan J) and Luton
BC
v PW, MT & SW [
2017]
EWHC 450 Fam (
Cobb
J again), it
became
clear
that the procedure which had
been
adopted in this
case
for the pursuit of the
children's
human rights
claim
was not in accordance with the rules. In particular, the
claim
had
been
made
by
the
children's
guardian, when, as
Cobb
J made
clear
in the
cases
cited,
the role of the guardian appointed under the
Children
Act 1989 and in accordance with the Family Procedure Rules 2010
does
not extend to representation of
children
for the purposes of pursuing human rights
claims
which are made under the
Civil
Procedure Rules 1998 ("
CPR").
Furthermore, such a
claim
must
be
made in accordance with the regime established under Part 36 of
CPR
and is subject to the
costs
regime under Part 44 of
CPR.
As I remarked at the next
case
management hearing on 12 April, the
consequence
was that the human rights
claim
in this
case
"hit the
buffers".
I therefore adjourned that
claim,
whilst at the same time expressing the view that it should
be
resolved as quickly as possible (the local authority having indicated that it accepted a substantial proportion of the specific allegations on which reliance had
been
placed
by
the guardian when purporting to act for the
claimant),
and invited the Official Solicitor to
consider
representing the
children
in respect of the
claim.
I further
directed
that the
case
should remain in the list
before
me in May for the purposes of a fact-finding hearing.
- That hearing
duly
took place over thirteen
days
between
2 and 23 May, and at the
conclusion
of the hearing I reserved judgment until today.
The issues and hearing
- The findings sought
by
the local authority are extensively set out in a sixteen-page threshold
document.
In summary, they are as follows.
- First, the local authority alleges that X sexually abused A
between
January 2012 and August 2014 in that on
diverse
occasions
between
those
dates
he (a)
caused
A to engage in non-penetrative sexual activity with him (
b)
took indecent photographs of him and (
c)
sexually assaulted and raped him. It is further alleged that X
downloaded
and uploaded images of
child
sexual abuse from and to the internet and posted indecent images and videos of
children
on the internet. All these allegations are accepted
by
X, the mother and Z.
- Secondly, the local authority alleges that, on at least one
but
probably two occasions X, sexually abused E in the family home. The abuse alleged is that he took photographs of her naked for sexual purposes and in
doing
so made to feel uncomfortable. It is further alleged that on at least one occasion he attempted to sexually abuse her, trying to remove her trousers, although she fought him off. These allegations are
denied
by
X
but
accepted
by
the mother.
- Thirdly, the local authority asserts that the mother knew that X was abusing A and E and knew that he posed a risk of sexual abuse to all the
children
in the home. This allegation is
denied
by
the mother. In his response to the threshold
document,
X states "this is for the mother to
comment
on". In support of this allegation, the local authority relies on particular matters
considered
below.
Alternatively, the local authority asserts that the mother ought to have known that X was abusing A and E and thereby posed a risk to the
children.
Again, the mother
denies
this allegation.
- Fourthly, the local authority asserts that it is likely that the other
children
in the family home knew about the abuse
being
perpetrated
by
X and were thereby emotionally and psychologically harmed, or at risk of such harm. In her response to threshold, the mother accepted that E was aware of A
being
abused and that A was aware of X having attempted to abuse E, that this was harmful for
both
children
and that it was therefore possible that the other
children
may
been
aware of the abuse. It is asserted, however, that, given the
children's
ages, they would not necessarily have known or understood what was happening.
- Fifth, the local authority asserts that the mother and X failed to implement or observe appropriate sexual
boundaries
in the property and/or have any insight into such
boundaries.
This allegation, which relates principally to the activities involving W, is
denied
by
the mother
but
accepted
by
X. The local authority relies on a number of particulars in support of this allegation, which are
considered
below.
Linked to this allegation, the local authority also asserts that the mother failed to protect the
children
in the family home from the inappropriate sexual relationship which X had with W when she knew or ought to have known that this posed sexual risk to the
children.
The mother
does
not accept the assertion of failure to protect in this regard.
- Sixth, the local authority seeks various findings in respect of X's
contact
with the
children
after his first arrest in September 2014. It alleges that the mother allowed X to have unauthorised and unsupervised
contact
with the
children
on many occasions
between
September 2014 and February 2016 when he was arrested for the second time. It is the local authority's
case
that, given the risk of harm the mother knew to
be
posed
by
X, she ought not to have allowed such
contact
to take place. The local authority relies on a number of specific allegations in support of this finding. In particular, the local authority alleges that the mother allowed A,
B,
and
C
to stay overnight with X at XX's home when she knew or ought to have known of the risk and further knew or ought to have known that he was effectively unsupervised. The mother
denies
that she knew X posed a
direct
risk to the
children
prior to his second arrest in February 16,
but
further
denies
that she allowed any unauthorised or unsupervised
contact
to take place. She asserts that she relied on the local authority's risk assessment with regard to the suitability of XX to supervise the
contact.
She accepts that the three
children
did
stay overnight at XX's home
but
denies
that she knew or ought to have known that X would
be
present in the property overnight. It is her
case
that she was told and
believed
that he would
be
sleeping in his
car.
- Seventh, the local authority asserts that the mother has associated with – and
continues
to associate with – men who sexually abuse
children,
notwithstanding her knowledge that they pose a sexual risk. The local authority
draws
attention to her association at various times with her husband (to whom she remains married, notwithstanding the fact that they separated over a
decade
ago), X, and also a man
called
R, who is regarded as a serious risk to
children,
having
been
linked to a large number of families for many years, and who has
been
involved, on and off, with the mother for much of her life. The local authority relies in particular on evidence that R attempted to re-establish
contact
with the mother following X's
departure
from the family home and that there has
been
contact
between
R and the mother through the internet. It is asserted that the mother
does
not have sufficient insight into sexually abusive relationships to enable her to protect the
children.
The mother accepts that she remains married to her husband and is aware of his
conviction
for sex offences against a
child
but
relies on the fact that she terminated the relationship when she
became
aware of the allegation against him and has had no
contact
with him for over ten years. She accepts that she has associated with R and acknowledges that, although he has no
criminal
convictions,
he has
been
assessed as posing a sexual risk to
children.
She
denies
that any of her
children
have had unsupervised
contact
with him. She
denies
that she lacks sufficient insight into sexually abusive relationships so as to prevent her from protecting the
children.
She adds that she will
be
willing to undertake further training to help her protect the
children
in future.
- On the
basis
of the specific findings sought in relation to sexual matters as summarised above, the local authority asserts that, had X not
been
arrested a second time and remanded into
custody,
the three
children,
and also
D,
would have
been
at ongoing risk of sexual harm. The mother
does
not accept that there would
be
any ongoing risk of this nature.
- Eighth, the local authority seeks findings in respect of physical harm. It is alleged that X physically harmed the
children
and/or exposed them to his aggression and
cruelty
and thereby to a risk of physical harm. It relies on various allegations made
by
the
children
between
2008 and 2011, notwithstanding the fact that the local authority at that time
did
not take significant steps to protect the
children.
It is asserted that the mother knew about X's
behaviour
and the risk posed to the
children
and yet failed to protect them. In her response to threshold, the mother accepts that she was aware of X's aggressive
character
but
denies
that this gave rise to any risk of significant harm to the
children.
- Furthermore, the local authority asserts that the mother herself physically harmed the
children
and/or exposed them to her own violence, aggression and
cruelty.
These allegations are substantially
denied
by
the mother.
- Ninth, the local authority seeks a number of findings of neglect. It relies on evidence of
chronically
poor living
conditions
for the
children
in the property; on evidence that, when he arrived in
care,
A was malodorous and in
dirty
and ill-fitting
clothes;
on evidence that the mother failed adequately to treat with
B's
infestation with head lice; and on evidence that
C
was sent to school in
dirty
and inappropriate
clothing
and on occasions in soiled underwear. All allegations of neglect are
denied
by
the mother. She accepts that
B
suffered from a head lice problem
but
asserts that she
did
what she
could
to
deal
with this
difficulty,
in
circumstances
where she found that
B
was allergic to some forms of treatment.
- Tenth, the local authority alleges that the mother encouraged the
children
not to tell the truth to professionals about their life in the family home,
both
when she was living with X and subsequently when she was in a relationship with Z. The mother
does
not accept that she
did
anything wrong in this regard.
- Eleventh, the local authority asserts that the
children
have
been
exposed to excessive alcohol
consumption
and the use of unlawful
drugs,
namely
cannabis,
in the family home. This allegation is not accepted
by
the mother. X accepts that he
drank
to excess in the home. Z accepts that he smoked
cannabis
in the garden.
- Twelfth, and finally, the local authority seeks various findings in respect of Z. It is asserted that, insofar as he was a part of the family from the early months of 2015, he was also
culpable
for the failure to protect the
children
from the risk posed
by
X and others after that
date.
Z states that he was informed
by
the mother that A,
B
and
C
stayed at XX's home
but
that X would not
be
present at the property overnight. It is
denied
that Z knew or ought to have known that X will
be
present. The local authority further asserts that Z had
concerns
about the relationship
between
X and W
but
failed to take any steps to intervene. In response, Z states that, whilst he thought that the relationship was strained, he had no reason to
believe
that there was a sexual relationship, or that any sexual abuse was
being
perpetrated on W, until W told him about the relationship it 2016. The local authority relies further on the fact that Z has
been
aggressive in an earlier relationship on an occasion when he was intoxicated and in possession of
cannabis.
Z accepts this allegation. He accepts further that he has smoked
cannabis
regularly
but
asserts that he never smoked it in the family home.
- In their
closing
submissions on
behalf
of the Guardian, Ms Fottrell and Ms Mac Lynn
crystalised
the four key questions arising in this fact-finding hearing in the following terms:
(1) the extent and nature of the sexual abuse of the
children
in the household
by
X;
(2) the extent to which the mother knew or ought to have known about the sexual abuse;
(3) the nature and extent of the mother's failure to protect and
(4) the extent and the nature of Z's failure to protect the
children
after he started his relationship with the mother in early 2015.
- The parties represented at the hearing were the local authority (represented
by
Ruth Henke QC and Margaret Pine-
Coffin),
the mother (represented
by
Frances Judd QC and Julia
Belyavin),
X (represented
by
Charles
Hyde QC and Linsey Knowles), Z (represented
by
Leslie Samuels QC and Andrew Grime) and the
children
(represented
by
Deirdre
Fottrell QC and Louise MacLynn). I am very grateful to all
counsel,
and to their hard-working instructing solicitors, for their efforts in this
case.
Oral evidence was given
by
nineteen witnesses, including various teachers and school staff, M (X's
brother),
XX, E's father, W, the police officer in the
case,
social workers, the mother, X and Z. At the
conclusion
of the hearing,
counsel
prepared
comprehensive
written
closing
submissions
covering
all aspects of this
complex
case.
The law
- The law to
be
applied in
care
proceedings
concerning
allegations of
child
abuse is well established. I have summarised it in a number of reported
cases
(for example, Re JS [2012] EWHC 1370; Re AA (Fact Finding Hearing) [2012] EWHC 2647; and Re IB and EB (
Children)
[2014] EWHC 369) and have those principles, and the authorities from which they are
derived,
firmly in mind. What follows is a summary of those principles, plus some further
comments
of particular relevance to this
case,
derived
in part from
counsel's
submissions.
- The provisions governing the making of a
care
order are set out in s.31 of the
Children
Act 1989 and, in particular, the threshold
criteria,
in s. 31(2), namely that:
"at the relevant
date,
the
children
were suffering or likely to suffer significant harm, as a result of the
care
given to the
child,
or likely to
be
given to the
child,
not
being
what it would
be
reasonable to expect a parent to give."
If the
court
finds that the threshold set out in that sub-section is
crossed,
the
court
then must
determine
what order to make and, in reaching that
decision,
the
court
will apply s.1 of the
Children
Act, making the
child's
welfare its paramount
consideration.
- In
determining
any issues of fact, the
burden
of proof rests on the local authority. It is the local authority that
brings
the proceedings and identifies the findings they invite the
court
to make. The standard of proof is the
balance
of probabilities; that applies
both
when
considering
whether an act of abuse has occurred and also the identity of the perpetrator of that abuse. If the local authority proves an allegation on the
balance
of probabilities, this
court
will treat that fact as established and all future
decisions
concerning
the future of the
children
will
be
based
on that finding. Equally, if the local authority fails to prove an allegation, this
court
will
disregard
the allegation
completely.
- Findings of fact must
be
based
on evidence. Whilst appropriate inferences may
be
brought
on evidence, the
court
must
be
careful
to
distinguish
between
inference and speculation, which must
be
avoided. Hearsay evidence is also admissible if relevant and, in
cases
involving a long family history, it is inevitable that a
considerable
amount of the evidence adduced will
be
hearsay. In weighing up such evidence, I
bear
in mind the important points about hearsay evidence and, in particular, hearsay evidence adduced from local authority files made recently
by
Sir James Munby P, in Re A (A
Child)
[2015]
EWFC
11 and endorsed even more recently
by
the
Court
of Appeal in Re J (A
Child)
[2015] EWCA
Civ
222.
- When
considering
cases
of suspected
child
abuse, the
court
surveys a wide
canvas
and must take into account all the evidence and
consider
each piece of evidence in the
context
of all the other evidence. As
Dame
Elizabeth
Butler-Sloss
P observed in Re T [2004] EWCA
Civ
558:
"Evidence
cannot
be
evaluated and assessed in separate
compartments.
A judge in these
difficult
cases
must have regard to the relevance of each piece of evidence to other evidence, and exercise an overview of the totality of the evidence in order to
come
to the
conclusion
of whether the
case
put forward
by
the local authority has
been
made out to the appropriate standard of proof."
- The evidence of the parents and any other
carers
is of the utmost importance. It is essential that the
court
forms a
clear
assessment of their
credibility
and reliability. They must have the fullest opportunity to take part in the hearing and the
court
is likely to place
considerable
weight on the evidence and impression it forms of them. It is
common
for witnesses in these
cases
to tell lies in the
course
of the investigation and the hearing. The
court
must
be
careful
to
bear
in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and
distress
and the fact that a witness has lied about some matters,
does
not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).
- When
considering
allegations of sexual abuse, it is essential to keep an open mind. This lesson, which
dates
back
at least as far as the
Cleveland
Inquiry, has
been
reiterated on many occasions, for example
by
Wall J in
B
v
B
(
Child
Abuse:
Contact)
[1994] 2 FLR 713 at p 729 and
by
the
Court
of Appeal in TW v A
City
Council
[2011] EWCA
Civ
17.
- Finally, so far as the law is
concerned,
I
bear
in mind the observations of Hedley J in Re L (
Care:
Threshold
Criteria)
[2007] 1 FLR 2050, at para 50:
"society must
be
willing to tolerate very
diverse
standards of parenting, including the eccentric, the
barely
adequate and the inconsistent. It follows too that
children
will inevitably have
both
very
different
experiences of parenting and very unequal
consequences
flowing from it. It means that some
children
will experience
disadvantage
and harm, while others flourish in atmospheres of loving security and emotional stability. These are the
consequences
of our fallible humanity and it is not the provenance of the state to spare
children
all the
consequences
of
defective
parenting. In any event, it simply
could
not
be
done."
The principal witnesses
(1) X
- In assessing X's evidence, it is inevitable that the
court
starts with the fact that he has pleaded guilty to a series of sexual offences of the utmost seriousness involving a young
boy,
A, over a period of several years, for which he has received a very substantial prison sentence. In addition, he has admitted engaging in a sexual relationship with W over a period of years. This relationship was also incontrovertibly abusive, given W's age, and the fact that he had
been
welcomed into the house as a refuge after he fell out with his own mother. As X agreed in evidence, W saw him as a father figure.
- The
court
does
not have any real explanation or account from X himself about his abusive
behaviour
towards A. This is principally
because
X has not given any account of his
behaviour.
His position is, as he said to the police officers at the start of his interview in February 2016, that he "
can't
recall it happening". This was highlighted in his pre-sentence report, in which the probation officer recorded:
"[X] found it very
difficult
to verbalise the motivations or the triggers to his offending. His response from the time he was questioned about these offences
by
the police to his interview for this report is that he
cannot
remember any of the abuse that took place. He
does
not
deny
that the abuse happened and accepts that it has happened
but
states that he
cannot
remember it. [X] was
challenged
on this stating that, given his memory on other aspect of his lifestyle at the time of the offence including the relationship with his partner, it is not
conceivable
that he would not remember the abuse especially as it appeared to occur on a regular
basis
over a significant period of time. He admitted that he was ashamed and guilty of his actions and,
despite
being
encouraged to
discuss
this further in an attempt to ensure the appropriate offending
behaviour
work
can
be
scheduled, he would not
disclose
any further
details.
"[X] was more engaged in
discussing
specific reasons why he started using internet
chat
rooms. He explained to me that he felt isolated in his relationship and [as] if nothing was ever good enough for his partner. He stated she
controlled
him and his movements which restricted him to the family and preventative socialising with anyone else. He stated on internet
chat
sites he felt accepted and that other people
did
not judge him, something he states he had issues with throughout his life. However, when we went on to
discuss
the
child
abuse images and how this started, [X] again stated he
could
not remember. [X] was
directly
asked whether he had a sexual attraction to
children
which he very strongly
denied."
- In his oral evidence, X stood
by
his assertion that he
could
not remember anything about the sexual abuse of A, saying in answer to Miss Henke in
cross-examination
that "I
don't
want to remember" and later, in answer to Miss Judd, "I've tried my
best
to wipe it from my mind". It is, however, plain that he
does
recall some
details
of the offending. He told the probation officer that he had
been
drinking
to excess at the time the offending – 6 to 7
cans
of
beer
and half a
bottle
to a
bottle
of vodka every
day.
Cross-examined
by
Miss Henke, he was able to say that the abuse of A had started after
C
was
born
(i.e. after March 2010) and ended
before
W
came
to live at the house (i.e. in 2013). At one point in
cross-examination,
he said that he had not abused A with anyone in the room. Later, he said that he had photographed A in the presence of other
children,
and then said that he
didn't
know if he had sexually abused A in the presence of the other
children,
adding "I never thought about it". He said that he had never abused A in front of the mother, although she may have
been
in the house. He
denied
sexually abusing E or photographing her naked. He also
denied
uploading or trading photographs of A
but
he said that he had never taken any steps to hide from anyone that he was photographing A in the
bath.
- I
do
not accept X's assertion that he
cannot
remember anything about the sexual abuse he perpetrated on A over a period of over two years. I find that he has
deliberately
chosen
not to speak about it.
- For several months after leaving the family home, X kept a
diary
which was
discovered
by
the police when they searched XX's house after the second arrest. He said that this was the only time in his life that he has kept a
diary.
The
document
demonstrates
a number of X's personality traits – his self-obsession, self-pity, aggression, his anger about the mother's relationship with Z and above all his
desperate
wish to have
contact
with his
children.
Towards the end of the
diary,
there is a passage headed "This is my goodbye" in which he wrote
"Once I have all my tattoos of my kids and my
dad
… I'm
done
with this world and fighting. My kids I know you will
be
heartbroken for a
bit
but
it will get easier as time goes on….Sorry
doesn't
fix it
but
I really am sorry for messing your life's up I still
can't
believe
this has happened I
can't
explain please remember none of what's gone wrong is any of your faults I will always have love you for ever and ever so
don't
waste your tears on me…."
In
cross-examination,
Miss Judd suggested that this was a message for the
children.
X said it was for whoever found it. Later in the
diary,
he recorded the mother as having had two men since they split up and that she had had three or four
different
men
during
the relationship, adding "what a tart", and listing the names of the men, including W and Z. He then added: "eight years she's so-
called
loved me. I only ever slept with her." When Miss Judd put it to him that this was not true, he replied "not entirely". In
closing
submissions, Miss Judd suggested that the
diary
demonstrated
that X was relentless in pursuing his own agenda not only with respect to the
children
but
also as a way of trying to make others see things from his own point of view.
- In the pre-sentence report, the probation officer
concluded
that
"in order to
commit
such serious offences I would assess that [X] would have had significant
cognitive
distortions
…. With regards to a risk of harm I would
currently
assess [X] to pose a high risk of harm specifically to
children.
The nature of this risk is
both
sexual harm and emotional harm as a
consequence."
(2) The mother
- When assessing the mother's evidence, I
bear
in mind the
conclusions
of the
consultant
forensic
clinical
psychologist, Mr Hutchinson, who was asked to
carry
out a
capacity
assessment of the mother, including a full
cognitive
assessment to assess her overall level of functioning. He
concluded
that she was of average
cognitive
ability,
but
presented with
dyslexia
which had a significant adverse impact upon her reading and writing ability. When required to use her literacy skills or oral skills in
circumstances
when she feels she is under scrutiny, she
becomes
more anxious so that her
cognitive
deficits
become
more pronounced. She has some
difficulty
comprehending
more
complex
written language and is unable to follow and
comprehend
long sentences with more
complex
words. As a result, particular
care
was taken to ensure that her oral evidence was taken in
circumstances
that would not put her at a
disadvantage.
- In the light of these
difficulties,
the
court
must exercise
caution
when assessing her evidence and
credibility.
Nonetheless, I have reached the
clear
conclusion
that she was not always truthful in the answers she gave to the
court.
I
bear
in mind, however, the important principle, articulated in the Lucas
case,
that the fact that a witness has
been
untruthful about some matters
does
not mean that all of her evidence is untrue.
- A further
complicating
feature in the assessment of the mother's evidence is that it is manifestly
clear
that she has a fundamental and alarming lack of insight into the effects of her
behaviour
and the
behaviour
of others living with her. This is, of
course,
a matter of fundamental importance when
determining
one of the major issues arising in these proceedings, namely whether she knew at the time about the abuse which X was perpetrating upon her son.
- It has
been
a feature of the mother's adult life that she has had a series of relationships, some short-term, others longer, and has moved, sometimes rapidly, from one relationship to another with little apparent regard for the impact of her
behaviour
on her
children.
The most recent example is her relationship with Z, which started only shortly after the end of her relationship with X, and
developed
very quickly so that Z started staying overnight in the home within a matter of
days.
This is
but
the latest example of a pattern of
behaviour
stretching
back
over a number of years. In his evidence, X's
brother
M put it more
bluntly,
referring to her "track record – eight kids, six
dads".
- I
bear
in mind Hedley J's warning quoted above that that "society must
be
willing to tolerate very
diverse
standards of parenting". Nonetheless it is almost invariably the
case
that a high turnover of partners moving in and out of the family home will have an impact on the
children
living there. The number of relationships
by
itself is therefore a
cause
for
concern.
In addition, as Ms Fottrell submitted in
closing
submissions,
central
to evaluating the evidence in this
case
is the mother's wider history of relationships and associations with men who either sexually abuse
children
or present sexual risk to
children.
It was Ms Fottrell's submission that, when her failure to protect their own
children
from X is
considered
against the
backdrop
of her own personal history, a picture emerges of someone who is
both
incapable of recognising sexual risk to
children
and
disinclined
to protect them from such risks. Ms Fottrell identified a
clear
pattern,
beginning
in early adulthood of the mother,
choosing
to associate with men who pose a sexual risk to
children.
She gives as examples (1) the mother's long relationship with the man that she
describes
as her "foster
brother",
R, with whom she has maintained a relationship even though she is aware that professionals regard him as presenting a sexual risk to
children;
(2) her marriage to a man who sexually assaulted her fifteen-year-old niece and, most obviously, (3) X himself.
- Ms Fottrell also
drew
attention to aspects of her
background
history with other allegations of sexual abuse within the wider family. She submitted that there is a
clear
pattern of the mother lacking the ability to identify or recognise
circumstances
when
children
are at risk of sexual abuse, and of suggesting that
child
victims of abuse were themselves responsible for what happened to them in some way, for example
describing
her niece who had
been
abused
by
her husband as a "hot girl on her feet". In her oral evidence, the mother
described
her niece as having "thrown herself at anyone", and said that her husband had
been
a fully grown man who should have said no
During
her evidence, the mother was extensively
cross-examined
by
Miss Henke about her relationship with R. She acknowledged that R and his partner had started visiting her again, and that his partner had also
contacted
her via social media. It is plain that the mother has
been
told of the
concerns
about R's sexual abuse of
children
but
it is unclear when she was first told, how much she knows or indeed how much she really understands about the risk he poses. Perhaps the most important aspect of this part of the evidence is that it illustrates that this mother is vulnerable to approaches
by
paedophiles and lacks insight into the risks they pose to her
children.
In answer to a question from the
court,
she said at one point "I really
don't
know why R and his partner may have
been
trying to get friendly with me."
(3) W
- W was initially a reluctant witness in these proceedings who attended the hearing in answer to a summons. He was interviewed
by
the police in June 2016 after the history of his relationship with X
became
known,
but
provided no written statement to any party in these proceedings. When
called
to give oral evidence, however, he willingly answered questions from all
counsel.
- Looking at W's police interview and oral evidence as a whole, there are three particularly striking features. First, he gave a graphic account of his relationship with X. As
described
by
him, X made
determined
advances towards him which he was unable to resist, leading to regular sexual activity over a period of years in various locations
both
at the family home and elsewhere. He
described
X as an intimidating and frightening man who was frequently angry and on occasions violent. Secondly, he spoke in very warm terms about the mother. Although he firmly
denied
that there had ever
been
a sexual relationship
between
them, or that he had ever sat on her knee or flirted with her as
described
by
other witnesses, it was plain from his oral evidence that he had a high opinion of the mother
both
as a person and as a mother.
Cross-examined
by
Miss Judd, he said: "in my eyes she has
done
nothing wrong, nothing at all". Later, when questioned
by
Mr. Hyde he said he thought she was "a lovely woman", and in answer to questions from the
court
he
described
her as "a
brilliant
mum". Thirdly, he had no
concerns
about the way in which the
children
were
being
looked after. He had no
criticism
of the mother's
care.
When questioned about allegations of neglect, for example, or the mother's treatment of E, he
did
not endorse the
criticisms
of the mother. It is also notable that, although he spoke of X as someone who would lose his temper every
day,
he
did
not
criticise
him as a father figure to the
children,
describing
him at one point as "
brilliant"
with them.
- Listening to his evidence, I formed the very
clear
impression that he was keen to take the mother's side and anxious not to say anything
critical
of her. For that reason, his evidence must
be
treated with
caution.
As always, however, I
bear
in mind the Lucas principle. The fact that W may not have told the truth about some things
does
not mean that he has not told the truth about anything.
(4) M and XX
- Finally, I
deal
briefly
with X's
brother
and father, M and XX.
Both
were initially reluctant witnesses. M in particular was plainly aggrieved at
being
summonsed to
court,
but
in the event answered all the questions put
by
counsel.
He was plainly extremely angry with his
brother
because
his own
children
had
been
left unsupervised with X at XX's house. At one point there was a
brief
exchange of words
between
them across the
court
room. M was
bitter
in his
condemnation
of the way X had
behaved,
not only the abuse of A
but
also what he perceived as his manipulation and exploitation of their father, XX. He was also
contemptuous
of the mother and what he
described
as her "track record" with men. In view of his strong feelings, I have taken particular
care
when assessing his evidence,
but
I am satisfied that he was a truthful witness whose evidence I should accept.
- XX, on the other hand, was a much less reliable witness. He is in his late seventies, frail, vulnerable and at times
confused.
He
did
not always understand the questions he was asked in his oral evidence. It was manifestly obvious that he
did
not have a full understanding of what had happened in this
case
and was very reluctant to accept that X was guilty of the offences he has
committed.
He thought it had all
been
"
blown
out of hand". M, who
demonstrated
fierce loyalty to his father, said that he thought XX has not yet accepted X's guilt. It was XX's evidence that he
did
not know about the
child
pornography offences when he was asked to supervise
contact.
He thought – and told M – that the reason for X's
departure
from the family home was
because
his relationship with the mother had
broken
down.
In his evidence, he said that he knew X was subject to
bail
conditions
but
did
not know what the
conditions
were, and that although he was asked to supervise
contact
he
did
not realise that he was supposed to
be
in the same room as the
children.
He said that he supervised
contact
to the
best
of his ability
but
was not able to go upstairs.
- It is to my mind an incomprehensible
dereliction
of
duty
that the local authority approved XX as a
contact
supervisor.
- I am not satisfied that XX's evidence about X's activities when staying at his house is reliable, partly
because
he plainly would not
be
able to supervise
contact
– for example, if he was sleeping
downstairs
and X and the
children
were upstairs –
but
also
because
he plainly
continues
to harbour sympathy towards X.
- I now turn to
consider
the evidence relating to the findings sought
by
the local authority.
Sexual abuse of the
children
- X admits that he sexually abused A over a period of at least two years. The abuse included oral and anal sexual abuse. In addition, he took indecent photographs of A, including photographs of the sexual abuse. The extent of the abuse is reflected in his
conviction
and 18-year prison sentence.
- In addition, the local authority asserts that X sexually abused E. E herself alleges that he photographed her naked as she was getting out of the shower when she was aged ten or eleven. E also stated in her police interview that on one occasion X had suggested that, if she allowed him to photograph her naked, he would allow her to wear make up. She also alleged that on one occasion he pulled her towel away. On another occasion, the mother stated that A had told her that he had seen X trying to remove E's trousers although "she put up a fight". X
denies
the allegations that he sexually abused E
- There is also some evidence that X may have sexually abused
C.
On one occasion,
C
was heard to say at nursery that X had "touched me, that's
bad".
Subsequently, the mother reported to a
child
protection
conference
that
C
had told her that X had touched him in the
bath.
Later, however, the mother suggested that
C
may have
been
confused
and overheard a
discussion
between
her and the social worker about the sexual abuse of A. At one point, A suggested to his foster
carer
that something may have happened to
C.
X
denies
that he sexually abused
C.
Did the mother know about X's sexual abuse of A?
- In support of its allegation that the mother knew that X was abusing A and E and that he posed a risk of sexual abuse to all the
children
in the family home, the local authority relies on the following matters. First it
cites
the layout of the property which, as
demonstrated
in photographs included in the
court
bundle,
is a small three-
bedroom
house. For a number of years, several internal
doors
have
been
missing in the property. There is an open stairwell and no effective soundproofing. At the time when the abuse was taking place, there were five
children
living in the house. The mother and X shared one
bedroom,
E and
B
shared the second
bedroom
and A, JF and
C
shared the third. The local authority asserts that the family was together in the property for most of the time, except when the
children
were at school. The mother and X shared the responsibility for looking after the
children
and, as stated
by
the mother in her police statement, were together most of the time. The evidence of the photographs and videos on X's phone indicated that much of the abuse occurred around
bath
time when, the local authority asserts, the mother and other family members would
be
present in the property and aware of what was going on. The videos also show A
being
vocal while he was
being
abused, protesting about the things that X was trying to
do
to him. In one video,
C's
voice
can
be
heard talking in the
background
while abuse is taking place in the
bathroom.
It is the local authority's
case
that the mother was present on one occasion. The evidence relied on in support of this assertion is
contained
in one video taken
by
X of A naked in the
bath
in which A is heard to say "you leave me to
do
all the
clearing
up again mum". Finally, the local authority rely on the observation made
by
E
during
her ABE interview that it was "kinda obvious" that X was abusing A.
- The mother accepts that A was sexually abused
by
X in the family home over a prolonged period of time. She
denies,
however, that she was aware of the abuse until X's second arrest. She also
denies
being
aware of his
downloading
of indecent images of
children
prior to his first arrest. She also
denies
knowledge of any abuse of E or of the risk of sexual abuse to the
children.
She accepts that the family home is relatively small although
did
not agree in oral evidence that it was "
cramped".
Although there was no
door
to the girls'
bedroom,
no
door
between
the kitchen and living room, and an open stairwell, she
denies
the assertion that the layout of the house was such that anyone in one part of the house would automatically hear suspicious noises elsewhere in the property. She explained that she spent most of her time
downstairs
in the living room. The television would
be
on all
day,
and other televisions would
be
on upstairs in the various
bedrooms.
Miss Judd submits that in those
circumstances
the noise from upstairs would not necessarily have permeated
downstairs,
or at least not in such a way to have alerted the mother to what was going on. She accepts that she and X shared the responsibility of looking after the
children
but
states that X would have time alone with them
by
taking one or more of them out, or
by
offering to
care
for the
children
when the mother went out. Although the mother accepts that E
described
it as "kinda obvious" that X was abusing A, the mother says that it was not obvious to her. She accepted that on one recording A is heard saying "you leave me to
do
all the
clearing
up again mum",
but
she
denies
that she was present when this was said. Miss Judd points out that it is impossible to say from the video whether A is looking at someone
because
his head is not visible when the words are uttered and that it
does
not follow from the fact that A said those words that the mother was in the room. Miss Judd further points out that this video
clip
is the only photograph which suggests that the mother might have
been
present
during
the abuse, or otherwise
been
aware that it was going on.
- In addition to
denying
actual knowledge of the abuse perpetrated
by
X on A and E, the mother further
denies
that she ought to have known that this abuse was taking place, or that he posed a risk to the
children
living in the home. In
cross-examination
by
Miss Henke, the mother accepted that X was very
close
to A, and not as
close
to the other
children.
X used to
buy
more stuff for A than he
bought
for the other
children.
She said that she had noticed this early on and questioned X about it. He had replied that he just wanted to father A
because
his
dad
wasn't around. The mother said that this
behaviour
did
not make her anxious. She thought that X was "stepping up to
be
the father figure A never had. The other
children
used to wind A up
because
they saw their fathers." She
conceded
with hindsight that maybe there were signs she should have seen,
but
she
did
not.
Cross-examined
by
Ms Fottrell, the mother said that it had
been
A who had told her about X photographing E. E herself had never told her. She said that E had
been
wrong when she told the police that she had told her mother about X taking photographs of her. She accepted, however, that E had told her that she was scared of X. On the mother's
behalf,
Miss Judd points out that there is no suggestion from E that the mother had known what X had
been
doing
to her, nor any suggestion that the mother had tried to prevent her from talking to the police about it.
- Miss Judd relies on the fact that, although he may have
been
in the house when some of the abuse of A took place, W was unaware of it until A told him after X's second arrest. In his police interview, W said that X "was the perfect
dad
figure for the kids", adding that "if he was
doing
anything when I moved into the kids [home] then he's a
blooming
good actor". In oral evidence,
cross-examined
by
Miss Judd, he
confirmed
that he had no idea that he was
doing
something to A and reiterated that, if he was, he was a "
blooming
good actor". He added that it had
been
a shock for the
children
when he was arrested. Answering questions from the
court,
however, W said that A was X's favourite amongst the
children,
that they would play together and go out together in the
car.
- Miss Judd further
contends
that the mother was palpably
distressed
at various points
during
the hearing, and earlier at various meetings, when the abuse of A was
being
discussed.
In addition, the mother was also very angry with X. Miss Judd submits that this was patent
during
her evidence and was not manufactured, and is thus further evidence that the mother was unaware of the abuse at the time.
Sexual
boundaries
- The principal evidence on which the local authority relies in support of its allegation that the mother and X failed to implement or observe appropriate sexual
boundaries,
and/or have any insight into the reason for such
boundaries,
concerns
their treatment of W. There are a number of issues
between
the parties on this aspect of the
case,
in particular whether the mother was aware of the relationship
between
X and W, the significance and extent of "play fighting" that took place
between
the three adults, and whether there was a sexual relationship
between
W and the mother.
- The local authority relies on the fact that, when he arrived at the property, W was a vulnerable fifteen-year-old
boy
who sought refuge there after
being
thrown out of his home
by
his own mother. As is
clear
from W's own evidence, he
came
to regard the mother in this
case
as a substitute mother figure and X as a father figure. The local authority asserts that X abused W's trust and established a sexual relationship with him. For a period of years, sexual activity took place regularly
between
X and W in the property and elsewhere, at various times of the
day.
Again, the evidence in support of this is found in W's own evidence,
both
in his interview with the police and his oral evidence
before
this
court.
- The mother's
case
is that she was unaware of the sexual activity
between
X and W until she
discovered
them engaging in sexual activity in
bed
together. The local authority, however, alleges that the mother's knowledge of what was going on went much further and asserts that she was also involved in sexual activity with W. Reliance is placed on an assertion in X's own police interview, repeated in his oral evidence, that the three of them engaged in a "threesome" and that the mother had a sexual relationship with W on other occasions. The local authority also relies on the regular "play fighting" activity that took place
between
the three individuals in the property.
The mother's knowledge about the relationship
between
X and W
- In her response to threshold, the mother accepts that W was fifteen years old when he
came
to live in the family home and that he regarded her as a substitute mother figure and saw X as a father figure. She accepts that there was a sexual relationship
between
X and W
but
in her response to threshold
described
this as "
consensual".
She accepts that X and W used to "play fight" in her presence
but
denied
that she was or should have
been
aware that it was harmful or abusive. She
denies
having a sexual relationship herself with W and in particular
denies
taking part in a "threesome" as alleged.
- It was the evidence of the mother and W that she knew nothing about the sexual activity
between
X and W until one evening when she found them in the
bedroom
together. The mother and W each gave some
detailed
evidence about this incident, although in some respects their evidence was inconsistent – in particular, about what had happened after the incident. In her statement, the mother alleged that she had spoken to W about it and asked if he was ok about it. Her statement
continued;
"X and W
both
agreed that it was a
consensual
relationship. I told W that if X was making him
do
something he was not happy with then he should report it to the
college
or the police. Although I was shocked, I
didn't
think I
could
take the matter any further
because
W was 16 and seemed happy with things. There was no sign that he was
being
forced. As I no longer wanted to
be
in a relationship with X I
did
ask him to leave the house at that point, however he said the tenancy was a joint tenancy and that he was not prepared to leave. I
did
not think that there was anything I
could
do
about it and I knew that the
children
would
be
devastated
if he left. I therefore tried to
carry
on as normal."
- In oral evidence, the mother
confirmed
her allegation that she had found X and W in
bed
together. She said that this happened shortly
before
X's first arrest. She said: "when I found them in
bed
together, I had my suspicions that X was
bisexual
but
he flatly
denied
it. After he was arrested, he admitted it." The mother accepted that she had only told the police about finding them in
bed
together after X's second arrest. She said that it was only after X's second arrest that W had told her that X had abused him. It seems, however, that the mother
did
not tell any professional about W's revelation until after W himself was interviewed
by
the police.
- In his evidence, W agreed that the mother had found him in
bed
with X on one occasion. He provided some
detail
during
his evidence, of how he
came
to
be
in the
bedroom,
what he and X were wearing, and where they were when the mother entered the room. Initially, W said that he and the mother only spoke about it after he told Z about his relationship with X, following X's second arrest. When he was shown the passage from the mother's statement quoted above, he said that he now remembered that she had asked him if he was OK with it and that he had said he was. He added:
"I thought that if I said I wasn't happy there would
be
confrontation
between
her and X and I might get hurt. I remember her saying that if I wasn't happy I
could
go to the police. I agree that I gave the impression that I was happy. I have only just remembered. I remember her asking X to leave the house. I
don't
know if it was
because
of our relationship. I knew she asked him to leave. I told her it was
consensual
because
I knew
by
the sheer size of X of the
damage
he
could
cause
me if I told her he'
d
forced me."
In answer to questions from the
court,
W said that the first time he told the mother that X had touched him when he hadn't wanted it was after he had spent the night with X at XX's house. He said he felt able to tell her
because
X was no longer around and he felt safe. He accepted that when he was interviewed
by
the police he
did
not tell them about the occasion when the mother had walked into the room when he was in
bed
with X.
- In his evidence, M
described
how the mother had told him that she had found X and W in
bed
touching each other. M asked rhetorically in evidence why, having seen that, the mother had
continued
to have W in the house and not told social services what she had seen.
- In his evidence, X
denied
that the mother had ever found him in
bed
with W.
Cross-examined
by
Miss Judd, he said that "their stories
don't
match – I know she
didn't".
Play fighting
- In her evidence, the mother was questioned extensively about the "play fighting" that took place in the property. She said that it took place in the living room, and would involve X, W and herself. She presented herself as
being
reluctant to participate and
disapproving
of the activity. She said that she tried to stop it "
because
my house started getting smashed up". She said that X would start it "pretty much every
day",
throughout the period W was living in the house until X's first arrest. X would start it in the evening after the
children
had gone to
bed,
grabbing hold of W and taking him to the ground forcefully. It would then go on for the rest of the evening until
bedtime.
She tried to stop it, telling them "you're supposed to
be
adults". She
disagreed
with Miss Henke's suggestion that the
children
would have
been
bound
to hear the play fighting going on. Sometimes, she and W would play fight. On these occasions, W would hurt her so that she would have
bruises.
He would tickle her ribs. She said that the
children
did
not witness this, adding "
because
my kids
didn't
need to see things like that". Later in her evidence, the mother accepted that she
did
think there was something wrong in the play fighting
because
W had feelings for her. She said she tried to stop it.
Cross-examined
by
Ms Fottrell, she
described
how she had pinned W to the ground to make him stop play fighting. She said, however, that she
did
not
consider
play fighting to
be
a sexualised activity
but
rather "a
childish
game".
- In his evidence, W agreed that there had
been
play fighting, usually
between
himself and X. Occasionally the mother would
complain
if it got out of hand when ornaments were
damaged.
In
contrast
to the mother's account, W said in evidence (
cross-examined
by
Mr. Samuels) that he engaged in play fighting with the mother very rarely – "once in a
blue
moon – once every three months". He said that she would pin him
down
and tickle him. He said it was "just having a laugh".
Cross-examined
by
Ms Fottrell, W said that the play fighting had
come
to an end when Z objected. Z had told W that, with rumours going round about W and the mother, the play fighting was not exactly going to help, and W had agreed that he had a point.
- There is evidence that play fighting was a feature of the household
before
W arrived. In 2008, E told her head teacher that her mother and X play fight at home and that she
didn't
like it. Subsequently the mother told the head teacher that the family "play fights"
but
E
did
not like it.
The mother's relationship with W
- An insight into the relationship
between
the mother and W
came
from the evidence of M. He
described
how W would sit on her knee, and she on his knee. He
described
W as
being
"like a shadow" around the mother. She
couldn't
go anywhere without him. He thought W was still a
child
but
added "the way they were sitting
didn't
look like mother and
child
– he never left her side".
- The mother was
cross-examined
extensively about her relationship with W. She accepted that W had seen her as a mother figure. She emphatically
denied
that she ever had
been
a sexual relationship with W. She accepted, however, that, on one occasion
before
he moved into the property, there had
been
a game of "spin the
bottle"
in which she had
been
dared
to kiss W, which she said she had refused to
do,
and he had subsequently kissed her on the
cheek.
She said that W had
been
"quite flirty" towards her at times. She added:
"he told me he liked me and wished things
could
go further, and things like that. He wanted me to get with him. After X was arrested, he wanted the relationship. He told me when he first moved in that he fancied me and I told him not to
be
so stupid, it wasn't going to happen, and as soon as X was arrested he wanted something to happen."
The mother
denied
that the play fighting led to a "threesome". She accepted that W's mother and father thought that she was having a relationship with their son
but
insisted it was not true.
Cross-examined
by
Mr Hyde on
behalf
of X, she
denied
ever putting her arms around W. She said that she was not flattered
by
W flirting with her and
denied
X's allegation that she had had sex with W on a number of occasions.
- In his evidence, W
denied
that he had ever had a sexual relationship with the mother. He was aware of rumours in the neighbourhood that they were having a relationship, and indeed that the mother had
become
pregnant
by
him. He said that these rumours had
been
started
by
his own mother and that as a result of the rumours his father had
disowned
him. He said that, on one occasion after his first arrest, X had asked him if he was having a relationship with the mother, and he had replied straight away "no". Answering questions from the
court,
he said that X had asked this after they had spent the night together at XX's house. He
denied
sitting on the mother's knee as alleged
by
M or that she had had her arms round him. He would not agree that he was like a shadow to the mother.
Cross-examined
by
Mr. Hyde, he
did
accept that he had had a
crush
on the mother when he was younger, and that this
continued
when he moved into the house,
but
denied
that he had tried to kiss or touch her. He said that he wouldn't have allowed her to
do
anything to him if she had made any advances, adding "I thought she was a lovely woman".
Cross-examined
by
Ms Fottrell, he said that he
didn't
think it would have
been
obvious to the mother that he had a
crush
on her, although later he admitted that the mother had asked him and he agreed that he
did.
He accepted that they had played spin the
bottle
the
day
before
he moved into the house, in which he had
been
dared
to kiss the mother and had given her "a peck on the
cheek".
He
denied,
however, that after he had moved in he had flirted with her.
Unauthorised and unsupervised
contact
- As stated above, the local authority seeks various findings in respect of X's
contact
with the
children
after his first arrest in September 2014. It alleges that the mother allowed X to have unauthorised and unsupervised
contact
with the
children
on many occasions
between
September 2014 and February 2016 when he was arrested for the second time. It is the local authority's
case
that, given the risk of harm the mother knew to
be
posed
by
X, she ought not to have allowed such
contact
to take place.
- The local authority asserts that the mother knew very shortly after X's first arrest that he was not to have any unauthorised or unsupervised
contact
with the
children.
Such
contact
was in
breach
of his
bail
conditions
and also the written agreement entered into with the social services
department
that he would leave the family home and not have unsupervised
contact
with the
children.
In the early months, it was further stipulated that all
contact
must
be
professionally supervised. The local authority relies on evidence of several
conversations
between
the mother on the one hand and police and social workers on the other as to the terms on which such
contact
had to take place. It is
clear
that she was present on the morning of the arrest and told
by
the officer of the stark fact that X was
considered
to pose a sexual risk to
children.
The police officer who give evidence at the hearing stated that he returned to the property later that
day
and explained the risk to the mother again. A few
days
later, a new social worker visited the property to introduce herself to the mother. When the mother sought to minimise X's activity – asserting that he had told her that he had opened some inappropriate videos and
closed
them as soon as he realised what they were – the social worker
challenged
the mother and said that he had also uploaded images from the internet onto his
computer.
Subsequently, the social workers and police visited the mother on several occasions, updating her as to the investigation and reiterating the message about the risk. In November 2014, following anonymous referrals that the
children
were having unsupervised
contact
with X at the home, a social worker visited and repeated the warning to the mother that she was not to allow X to have
contact
with the
children
outside the local authority arrangements.
- In her response to threshold, the mother
denies
that she allowed unauthorised or unsupervised
contact
between
X and the
children.
She asserts that she
complied
with the terms of the
bail
conditions
and the agreement with social services. No
copy
of that agreement has
been
produced,
but
to the
best
of her recollection it provided that X should leave the home and not have unsupervised
contact
with the
children.
It is her understanding that there was no requirement for X not to
come
to the home when the
children
were not present. The mother accepts that the initial arrangement was that
contact
was to
be
professionally supervised and asserts that she
complied
with this requirement.
- The mother was
cross-examined
extensively about this aspect of the
case
in oral evidence. She stood
by
her position that the written agreement provided that she should ensure that X
did
not reside in the family home or have unsupervised
contact
with the
children.
She insisted that after the first arrest X had never had unsupervised
contact
at the family home. She agreed that it was
clear
that he
could
only have
contact
on a supervised
basis.
She said that she knew there was not supposed to
be
any other
contact
and that she stuck to that agreement.
- From April 2015, the local authority permitted
contact
to take place under XX's supervision, including at his home. The mother asserts that she understood that he had
been
assessed
by
the local authority as able to undertake this task and on her
behalf
it is submitted that she was entitled to rely on this assessment. The mother
denies
that she knew or ought to have known that X would
be
present at XX's property when the
children
stayed overnight. It is her
case
that she was told, and
believed,
that X would
be
sleeping in his
car.
X accepts that some of the
children
stayed at XX's house occasionally when he was living there after
being
required to leave the family home. He accepts that he and A (
but
not the other
children)
would sleep in the same
bedroom.
He
denies,
however, sharing a
bed
with A or that there was any sexual activity
between
them there. He says that he slept on the floor. In his evidence, M said that X visited the
children
at XX's house on numerous occasions; that the
children
would sleep there at the same time as X; that the
children
and X would
be
upstairs in the property at the same time; that the mother
did
not stay
but
visited XX's house when the
children
were there at the same time as X and never expressed
concern;
and that X would take the mother and the
children
back
to the family home in his
car.
- It is plain from XX's evidence that he slept
downstairs
at the property while X and the
children
slept upstairs with X and A sharing a
bedroom,
and that X
did
not sleep in the
car
as originally indicated. XX said that the mother was ok with the arrangements, although,
cross-examined
by
Miss Judd, he said that as far as he knew the mother thought that X was sleeping in the
car,
although in later answers he said that she was ok with the arrangements. It was manifestly
clear
from XX's evidence that he was totally incapable of supervising
contact
at his home or indeed anywhere. He suffers from ill-health, has
difficulty
getting upstairs, and sleeps
downstairs,
so was unaware of what was going on upstairs when X was sharing a
bedroom
with the
children,
or on one occasion with W.
- On
behalf
of the guardian, Ms Fottrell submits that the mother's argument that,
because
of the failure of professionals to explain the risk to her she
did
not know or understand the nature of the threat posed
by
X after the first arrest, is self-justifying and
does
not withstand
close
scrutiny. Ms Fottrell submits that the mother's narrative that she was simply following the advice of the local authority when she agreed to
contact
between
the
children
and X is put forward as an excuse or explanation for her own lack of action or vigilance in respect of that
contact;
masks her personal responsibility for
breaching
the supervision agreements; obscures the fact that she
did
not investigate whether
contact
was properly supervised, allows her to abdicate responsibility for her own actions and is a
blanket
explanation for
deceiving
the local authority, the police and the
court
as to the frequency and
duration
of overnight
contact
between
X and
children.
- Ms Fottrell
draws
attention to evidence that the mother was extremely reluctant to
break
off the relationship with X after the first arrest. A week after the first arrest, she was recorded as saying that although she was angry with him she still loved him and was not ready to give up on their relationship. A further week later she was recorded as saying that she and X were spending time
decorating
the
children's
bedrooms.
At the end of October there was an allegation that she spoke of having "
date
nights" with X. At
Christmas
2014, she pressed for the father to
be
allowed additional
contact
on
Christmas
Day.
Ms Fottrell submits that it was the mother who promoted the suggestion of XX as a
contact
supervisor when it should have
been
painfully obvious to the mother that XX
could
not perform the most
basic
supervision of any activity upstairs in the home. Ms Fottrell acknowledges that there is a real issue as to the failure of the local authority to protect the
children
but
submits that that failure must
be
viewed separately from that of the mother and
did
not
cause
the mother's own failure to protect her
children.
Physical harm and violence
- There is
considerable
evidence that X was a man with an unpredictable and aggressive temper. It is the local authority's
case
that on occasions he
committed
acts of physical violence upon the adults and
children
in the home.
- In his oral evidence, M
described
his
brother
as having a
bad
temper and said he had seen him smash his
car
with anything to hand; smash windows; and
drive
his
car
into a wall after an argument. In her oral evidence, the mother
described
how X had a violent temper and had
been
violent and abusive to her. She agreed that, if he was angry, the whole house would know about it. Sometimes he would storm out and smash things, for example his
car.
She said that she was petrified of this
behaviour
and tried to shield the
children
as much as she
could.
He
could
turn angry at any point. She said: "I think we all lived in fear", and "we all felt we were walking on egg shells". She
described
how she had
been
grabbed
by
the throat on one occasion and that the
children
knew that he had
been
violent to her. She agreed that he was verbally abusive every
couple
of
days.
She
denied,
however, that he was physically violent to the
children.
She
did
not recall him ever hitting E, as the
child
herself alleged. She
conceded
that she maybe should have
done
more to protect the
children,
but
added that X kept saying that he was going to the
doctor
to
book
himself into anger management therapy. Ultimately, however, she said: "looking
back
it probably wasn't enough. I should have
been
a lot more forceful and made him leave the house. Maybe I should have told the school."
- In his evidence, W
described
X as "
brilliant"
with the
children.
But
he also spoke in
detailed
terms of X's temper. He said that his fuse was shorter than anyone else's he had ever met. He would lose his temper, go to his
car
and
drive
off. On one occasion, he punched W's jaw when he was reluctant to go out with him, and on another occasion he had intervened in an argument
between
W and the mother and pushed W against the wall. W said that, on a good
day,
X would lose his temper once,
but
on other
days
he would
be
in a
bad
mood all
day
and would take it out on everyone, including the
children.
He said you
didn't
know how to take him – he was like a see-saw. He
could
be
physically aggressive, frightening – a very intimidating person. It was only after X's second arrest that W told someone – in fact, Z – about his abuse at the hands of X.
- The local authority relies on
complaints
made
by
E at school at various times
between
2008 and 2011 – specifically in October 2008 and again in March 2009 and September 2011 – that X had
been
violent to her. In October 2008, E is recorded as saying; "if I'm naughty my
dad
hits me. He hurts me. He picks me up and throws me on the settee and punches my arm. He isn't playing he hurts me. I
don't
think he loves me. He
doesn't
like it when my real
daddy
comes."
In 2009 E alleged at school that X had hit her with a hairbrush. In 2011 she alleged that he had grabbed her, slapped her on the head, lifted her up and
dropped
her on the sofa.
- The local authority further relies on allegations that the mother had herself
been
physically and emotionally abusive to the
children.
It relies, for example, on allegations made
by
E that she had
been
hit
by
the mother. For example, it is alleged that, in about late November 2015, the mother had head-
butted
E and grabbed her arms
dragging
her around the home. It is further alleged that on a number of occasions, E was shut out of the family home. Reliance is also
based
on allegations that the mother has
been
aggressive towards
B
– for example in around February 2015 when it is said that she
combed
her hair too harshly and thereby hurt her. The local authority
draws
attention to a number of occasions in 2015 when
B
was apparently frightened of her mother and reluctant to return home at the end of the school
day.
- X accepts that he has a temper,
but
denies
the allegations that he was violent to E. On his
behalf,
Mr. Hyde identified a
correlation
between
the allegations and
difficulties
in E's
contact
with her own father. He points out that the local authority investigated the allegations when they were made and
concluded
they were unsubstantiated. He also points out that E made no allegation against X of physical abuse and/or
chastisement
in her ABE interview, and that none of the other
children
has made any such allegation. He also
draws
attention to W's evidence that X was "
brilliant"
with the
children
and "when he lost his temper he would take it out on everyone except the kids".
- The mother
denies
the allegations that she herself was ever violent towards the
children.
She
denied
E's allegations in her police interview. She said that, after X left, E had
changed
into a girl that she
did
not recognise and
could
not get through to. She thought E had turned against
because
of X leaving the property. She
denied
losing her temper with E and specifically
denied
E's allegations that she had shouted at her, or
dug
her nails into her arm, or punched, kicked or head-
butted
her. She admitted that she had given her a slap,
but
denied
that it had
been
really hard. Save for that incident, the mother
denies
that she ever hit the
children.
Although she admits shouting at the
children
on occasions, she
denies
that any of the
children
were frightened of her.
- In
closing
submissions, Miss Judd points to an element of uncertainty as to what it was that E actually alleged had happened. It seemed at one point that E was
claiming
that the mother had physically headbutted her,
but
it transpired that she was referring to an incident in which the mother had
brought
her head
close
to E's head without actually touching it. Miss Judd further
contended
that there was also uncertainty about an allegation that E had
been
shut out of the house. Miss Judd also pointed out that none of the
children
had
been
interviewed in accordance with the Achieving
Best
Evidence guidelines in respect of these allegations of violence
by
the mother. Most of E's allegations are now several years old. The local authority investigated at the time and
concluded
there was no need for statutory intervention. Miss Judd therefore submits that the evidence in support of the allegation that the mother was ever violent to
children
(save in respect of the admitted slap) is thin and insufficient to justify a finding.
Neglect
- The local authority accepts that the allegations of neglect
could
be
lost, given the gravity of the other allegations arising in this
case,
but
Miss Henke stresses that the allegations of neglect are important
because
they provide a window into the everyday lives of the
children
in the family home. She
describes
the evidence of neglectful
care
in this
case
as overwhelming. The family home was in poor
condition
for a number of years, with several internal
doors
missing, as is evidence from the photographs provided for this hearing, and accumulated rubbish piled in the garden for a number of years. Attempts to persuade the mother to
clear
the garden were met with a number of excuses. X's
brother
M
described
the house in his oral evidence as "a flipping tip".
Conditions
in the home were
compounded
by
the large number of people living there. When W moved in to the property in August 2012, there were eight people living in the three-
bedroom
property.
- The
court
was presented with a
considerable
amount of evidence about
B's
problem with head lice. On
behalf
the local authority, Miss Henke acknowledges that it is
common
for
children
of school age to have head lice at one stage or another,
but
contends
that for
B
this was
distressing
and prolonged. The
court
heard evidence from a schoolteacher about the many occasions when
B
came
to school with a large volume of nits plainly visible. Furthermore, it is
clear
from the evidence of the teachers, which I accept, that
B
found this acutely
distressing,
on occasions hiding under the table and refusing to go home
because
people were saying she had nits. M
described
how his own
daughter
had
caught
head-lice from
B.
A further acute problem for the school was
C's
soiling
difficulties,
which
continued
for several months, and
culminated
in at least one occasion when he arrived at school on a Monday wearing underpants which he had soiled the previous week and which had apparently
been
unchanged over the weekend. Overall, the local authority asserts that the lack of
care
of the
children
lasted until they were ultimately taken into the
care
of the local authority in June 2016. At that point, the older three
children
were noted to
be
malodorous and wearing ill-fitting
clothes.
- In response, the mother through Miss Judd accepted that the
children's
care
was, at times,
below
that which should have
been
provided. Miss Judd submits, however, that the severity of these
concerns
was not of the persistent and serious nature so as to justify removing the
children
on that
basis
alone. In assessing the evidence of neglect, Miss Judd invited the
court
to
consider
the evidence of the many witnesses who had spoken of the fact that the
children
are
delightful
and well-
behaved.
There were no reports of
difficult
behaviour
in foster
care
or at school. Miss Judd submits that these positive features must
be
attributable to the
care
received from their mother.
- So far as the head lice problem is
concerned,
Miss Judd points out that this problem only affected
B,
and not E or A,
both
of whom attended the same school, and was attributable at least in part to the problems of
B's
allergic reaction to some of the treatments. She adds that the evidence from the school suggests that the problem had largely abated
by
the summer of 2015.
By
the time of the
child
protection
case
conference
in May 2016, shortly
before
the
children
were taken into
care,
it was reported that
B's
presentation at school had improved.
Cross-examined
by
Miss Judd,
B's
schoolteacher AE
conceded
that
cleanliness
in general was not a significant issue for
B.
It is accepted on
behalf
the mother that
C
had an issue with soiling,
but
it is pointed out that the evidence suggests that this occurred over a relatively limited period, after X left the family home, when the mother was likely to have struggled to
care
for the
children
by
herself. It is the mother's
case
that
by
early 2016 the home
conditions
in the property had improved, a point
confirmed
by
M in
cross-examination.
In her evidence, the mother accepted that there had
been
complaints
about the state of the garden
because
of the amount of rubbish there,
but
added that she had eventually
cleared
the garden after X's first arrest.
- In his oral evidence, W stated that the house was always
clean,
that the
children
were not unwashed or
dirty,
that whenever
C
had an accident he would always get
cleaned
up.
Suppression
- The local authority schedule of findings includes a number of particular allegations to the effect that the mother sought to suppress the truth about what had
been
happening, in particular
by
telling the
children
not to talk to professionals. Examples include instances of E telling school staff that she would
be
in trouble if the mother found out that she had spoken about things that happened at home. The mother
denies
these allegations. For reasons set out
below,
I
do
not
consider
it proportionate or necessary to
consider
these matters in greater
detail.
Allegations against Z
- On
behalf
of the local authority, Miss Henke submits that Z is a passive man who is manifestly incapable of effectively
challenging
the mother and therefore lacks the
capacity
to provide the
children,
and in particular his
daughter
D,
with sufficient protection. As evidence of his passivity, Miss Henke
cites
the fact that he agreed to look after the
children
from an early stage in the relationship even though he was unhappy about
doing
so, and his reluctance to step in and stop the play fighting
between
W and the mother even though he thought it was inappropriate.
Both
Miss Henke and Ms Fottrell also rely on Z's failure to
challenge
the mother's apparent acceptance of R's visits or take active steps to prevent him visiting the home, even though he knew of allegations of
child
abuse against R and felt uneasy about the man.
- Miss Henke submits that the most worrying example of Z's passive attitude, and inability to protect the
children,
was the fact that, notwithstanding his attendance at the family group
conferences,
he failed to take active steps to prevent X having
contact
with the
children
at XX's house. On
behalf
of the guardian, Ms Fottrell submits that Z was, in effect,
complicit
in the
deception
concerning
X's
contact
because
he
did
not speak up about it either at the time or after the second arrest.
- Miss Henke points to inconsistencies in Z's accounts about his knowledge of his lodger's
criminal
activities, and
disputes
his assertion that he
did
not know the nature of his lodger's offending until after the latter was
convicted.
An alternative suggestion
by
Miss Henke is that this is another example of Z's passivity and lack of protective instinct. Ms Fottrell
describes
Z's
conduct
and evidence in respect of the issue
concerning
his lodger as evasive and minimising - at one point, Z gave an account of his lodger's
conduct
as
being
that he was "made to" touch his stepsister in respect of whom he had
been
charged
with incest.
Both
Miss Henke and Ms Fottrell
draw
attention to inconsistencies about some of the
details
of Z's evidence
concerning
his lodger, for example where he slept when the
children
were staying at the house. One notable piece of evidence about this issue was the explanation given
by
Z, and supported
by
the mother, that he had not thought it was up to him to tell her about the lodger's offending,
but
rather leaving it to the lodger himself to
do
so.
Both
Miss Henke and Ms Fottrell
draw
attention to matters from Z's
background
as providing further
cause
for
concern
as to his
capacity
to protect the
children
and in particular his
daughter,
D
- in particular, the fact that as a young man he had a
child
who was placed for adoption; an incident of reported
domestic
violence involving a previous girlfriend; and issues with alcohol and
cannabis
use. In respect of this latter issue, Miss Henke submits that the extent of his
cannabis
habit must have had some effect on his
demeanour
and
behaviour.
- Overall, the local authority and guardian
content
that there is
considerable
evidence that Z lacks the
capacity
to protect his
daughter.
Ms Fottrell
describes
him as
directly
complicit
in the mother's failure to protect
children,
unable to manage, recognise or reduce the risk from X, R or his lodger, and willing to
back
up the mother very
dangerously
when he should have
confronted
her or
cooperated
with the local authority to protect the
children.
- In response, Mr Samuels
describes
his
client
as a relatively peripheral figure in the local authority's
case
in this fact-finding process and points out that he was
barely
referred to at all either the local authority's opening note or in the evidence. In short, it is Mr Samuels'
case
that Z was never part of the protective plan for the
children
and it would therefore
be
unfair to make findings against him of
culpability
for failure to protect. Furthermore, as he was not responsible for the
children,
it would
be
unfair to ascribe
blame
to Z for any neglect suffered
by
the
children.
- Mr Samuels
draws
attention to evidence that his
client
was a positive influence on the
children's
lives. All of the
children
liked him. Although the local authority
complains
about his alleged failure to protect the
children,
there is no
criticism
of his
behaviour
towards them. The
comments
about his
behaviour
in
contact
sessions have
been
wholly favourable. He has
demonstrated
that he has the
capacity
to meet the
day-to-day
needs of his
daughter.
Mr Samuels
draws
attention to many examples of positive
comments
about Z in the
contact
records.
- Mr Samuels submits that there is nothing in Z's
background
that gives rise to significant
concern
about his parenting
capacity.
Z accepts that he agreed to the adoption of his
child,
but
says that this was the right
decision
for that
child
at that time. He acknowledges that he has smoked
cannabis
on a regular
basis
and that on one occasion he was involved in a physical scuffle with his former partner.
- Z only entered the family home after X left. He was therefore not present
during
the period when X was regularly abusing A in the property and having a sexual relationship with W. Manifestly, no
blame
attaches to him in respect of any failure to protect the
children
before
his arrival and Mr Samuels submits that it would
be
also wrong to make any finding against Z in respect of X's ongoing
contact
with the
children.
At all times, responsibility for protecting the
children
lay with the mother. Furthermore, Mr Samuels
contends
that it is unfair to
criticise
Z when the local authority plainly failed to appreciate the extent of the risk posed
by
X and furthermore positively approved XX as a
contact
supervisor. Although he attended family group
conferences,
Z was not regularly involved in wider
conversations
between
the local authority and the mother about
child
protection issues. He was not himself part of the plan. In those
circumstances,
it would not
be
fair to
criticise
Z for failure to protect the
children.
Discussion and
conclusions
- Having
considered
all the evidence, I
conclude
that X is a
cunning
and manipulative paedophile. He systematically set about grooming A and W, using similar methods, and his abuse of
both
boys
was of a similar nature and frequency. It was relentless, extreme and profoundly
damaging.
X has
been
highly selective about what he says he
can
remember, and self-serving in everything he says, including the
diary.
I
conclude
that he is lying when he says he
cannot
remember
details
of his offending. He has
been
deliberately
selective about what he has
chosen
to share with this
court
and other professionals. He has also at times minimised his
behaviour
and attributed
blame
to others. He sought to explain his approaches to the internet
chat
rooms
by
complaining
of feeling isolated and
controlled
by
the mother. In
cross-examination,
he
denied
that he
been
trying to
blame
the mother for his
behaviour
but
it is plain that to some extent this is exactly what he was seeking to
do.
The evidence shows that he has an aggressive temper and is
capable
of intimidation.
Contrary
to his assertions that the mother was
controlling
him, I find that it was he who was manipulative and
controlling
in his relationships within the household
- On
balance,
I find it more likely than not that he
continued
sexually abusing A when they shared a
bedroom
at XX's house. I note the examples of inappropriate
contact
between
X and A
during
contact
(stroking his hand, allowing A to sit on his knee). Given his predilections, it is to my mind extremely unlikely that he would
be
able to refrain from abusing A when they shared a
bedroom
at XX's home. XX was
completely
ineffective as a
contact
supervisor, and I accept M's assessment that X intimidated and exploited his father, and that XX would struggle to see what was going on
between
X and the
children.
M had
been
unaware
before
he gave evidence that XX had
been
supposed to
be
supervising
contact.
- E has not given oral evidence
before
me and I must therefore treat her allegations, set out
during
her ABE interview, with
caution.
On a
balance
of probabilities, I find that she told the truth to the police when she said that X photographed her naked in the
bathroom
on one occasion. In other respects, however, her allegations about his
behaviour
are not sufficiently
detailed
or
clear
to enable the
court
to make findings. Similarly, although there is some evidence to suggest that X may have abused
C,
I
do
not think it sufficiently
clear
to support a finding on a
balance
of probabilities. It is, however, manifestly
clear
that, had it not
been
for the
discovery
of the photos on his phone, X would have remained in the home and, in all probability, move on to abusing
C
in the same way that he abused A and W.
- I have
carefully
considered
what is, perhaps, the most important issue in
dispute
at this hearing –
did
the mother actually know that her son A was
being
sexually abused
by
her partner X? The mother emphatically
denies
it
but
there is
considerable
circumstantial
evidence to suggest that she may have known what was going on. I acknowledge in particular the small size of the property and the fact that X seems to have
been
fairly open when photographing A. Perhaps the most striking piece of evidence is E's statement to the police officer that it was "kinda obvious". As noted above, E has not given oral evidence and I must
be
careful
to avoid speculating and over-interpreting what she has said. I understand her to mean that it was never
discussed
that X was abusing A
but
obvious to her that this was going on. The question is: if it was never
discussed,
can
the
court
conclude
that it was obvious to the mother? I accept that it would
be
obvious to most people
but,
as Ms Fottrell observed, the picture that emerges from the totality of the evidence in this
case
is that the mother is someone who is incapable of recognising sexual risks to
children.
I looked several times at the video
clip
from X's phone in which A, standing naked in the
bath,
is heard to say "you leave me to
do
all the
clearing
up again mum". I have
concluded
that the mother was not present when this
clip
was recorded. The person to whom a remark is addressed is not necessarily present and, had the mother
been
present, I think it likely she would have responded.
- Although the mother is manifestly lax about sexual matters in many respects, including her own
behaviour,
the evidence
does
not
demonstrate
that she is or would
be
indifferent to the sexual abuse of her own
children.
On a
balance
of probabilities, I find that the local authority has not proved to the requisite standard that the mother actually knew that A was
being
sexually abused
by
X.
- I have no hesitation, however, in
concluding
that she ought to have known that the sexual abuse was taking place. If it was "kinda obvious" to E, it should have
been
obvious to the mother. There were sufficient indications that ought to have alerted any responsible parent to the fact that abuse was going on in the house. I
do
not accept Ms Fottrell's submission that the mother was
disinclined
to protect her
children
from such risks,
but
I
do
agree that she was utterly incapable of protecting them.
- I am satisfied that E knew, at some level, about X's abuse of A,
based
on her
comments
in the police interview. The other
children
may also
been
aware at some level that abuse was going on,
but
I think the local authority is right to
concede
that they
did
not necessarily have a full understanding of what was happening.
- For a number of reasons, including X's paedophile tendencies and the mother's
complete
lack of awareness about sexual risk, there was a serious lack of sexual
boundaries
in the home. I accept W's account of the
brutally
abusive treatment he received at the hands of X. Again, after
careful
consideration,
I accept the mother's account, supported
by
W, that she only
became
aware of the sexual activity
between
X and W when she found them in
bed
together.
But
the question asked
by
M in the
course
of his evidence was extremely perceptive. Having seen X in
bed
with W, why
did
she
continue
to have X in the house and why
did
she fail to tell social services?
- It has
been
particularly
difficult
for this
court
to untangle the evidence
concerning
the mother's own relationship with W.
Both
W and the mother herself insist that there was no sexual relationship
between
them. X asserts that on one occasion they engaged in a threesome and that W and the mother had sexual relations on other occasions. W accepts that he had a
crush
on the mother,
but
denies
flirting with her. The mother states that W
did
flirt with her,
but
denies
doing
anything to encourage him. Again, however, I accept the evidence of M about their
behaviour.
I find that W sat on the mother's knee, that she sat on his knee, that she put her arms round him, and that he followed her around "like a shadow". In short, he was
besotted
with her and she
did
nothing to
discourage
him. Such
behaviour
was manifestly inappropriate, given their respective ages and the
circumstances
in which he had
come
into the house. It was particularly inappropriate
conduct
for her own
children
to witness, as I am satisfied they
did.
- The question is whether the relationship went further. The mother
denies
it, as
does
W. W still harbours feelings for the mother and would, I accept,
be
capable
of falsifying his account to support her
case.
The only evidence that there was sexual activity
between
them
comes
from X. In my judgment, he is a wholly unreliable witness with his own agenda, who has
behaved
deceitfully
in abusing others within the house about which he
continues
to withhold information. After
careful
consideration,
I therefore
conclude
that the evidence is insufficient to lead to a finding on a
balance
of probabilities that the mother had a full sexual relationship with W. In my judgment, however, her highly inappropriate
behaviour
towards him was further serious evidence of her lack of understanding of sexual
boundaries,
and was in itself abusive
behaviour
towards a
boy
whom she was supposed to
be
looking after.
- In this
context,
I find that the play fighting that took place on a regular
basis
in the property
between
the three adults was wholly inappropriate and in some respects a sexualised activity. It was utterly inappropriate for X and the mother to engage in such
behaviour
with W. In so far as the mother tried to stop it, her efforts were feeble and ineffective. I find that the
children
must have witnessed this play fighting on occasions. I find that it was only when Z intervened that the
behaviour
came
to an end.
- The mother's
culpability
for failing to protect the
children
from X after the first arrest must
be
assessed in the light of the local authority's manifest
breach
of its responsibilities towards the
children.
In its response to the human rights
claim
brought
on
behalf
of the
children
by
the guardian, the local authority accepts that it failed to properly appreciate or assess the risk X posed the
children;
failed to
convene
a
child
protection
case
conference
following X's first arrest; failed to implement a
child
safety plan which was fit for purpose; failed to make safe
contact
arrangements
between
the
children
and X; failed to
carry
out any adequate assessment of XX's suitability to supervise X's
contact
with the
children
and failed to assess the risk of him
doing
so adequately or at all; and failed to
carry
out any adequate assessment of the mother or her ability to protect the
children
from the risk posed
by
X to the
children.
The local authority accepts that XX was an ineffective
contact
supervisor and that the
children
were thus exposed to a
continued
risk of harm from which they ought to have
been
protected. In addition, in the light of X's
behaviour
during
contact,
the local authority accepts that it failed adequately to appreciate the potential for X to use
contact
to groom the
children
and wrongly saw his physical touching and interaction with the
children
as an expression of genuine affection, failing to
be
alert to the possibility that such
behaviour
reinforced
behaviour
learnt at home which might have
been
abusive.
- Miss Judd submits that there is no
contemporaneous
evidence that the mother was ever told after the
discovery
of the
child
pornography on X's
computer
that he was a risk to the
children.
She further submits that there is, and was at the time, a lack of
clarity
about the restrictions on
contact,
in particular whether or not X
could
visit the property when the
children
were absent. I accept that at the time the mother expressed some
confusion
about the
bail
conditions.
I also take into account that, inexplicably, the local authority is unable to produce a
copy
of the written agreement signed
by
the mother after the first arrest.
But
I think it more likely than not that she was told
by
the police and the social workers about the nature of the material found on the
computer
and that it was not safe for the
children
to
be
left alone with X. It is the mother's
case
that she
did
not appreciate the risk that X posed to the
children
after the first arrest.
But
any mother with an appropriate awareness of sexual risk would have realised that a man in possession of pornographic images of
children
posed a risk to
children.
The risk was
clearly
understood
by
others, including the fathers of the older
children
who stopped all
contact
with X at that point.
- Miss Judd submits that, if the local authority was prepared to rely on XX as a suitable
contact
supervisor, the mother was entitled to rely on their assessment. Furthermore, there was apparently no attempt
by
the local authority to restrict indirect
contact
and, as a result, as is
clear
from the
diary,
X had frequent and unrestricted indirect
contact
after leaving the family home. However,
despite
the local authority's manifold failings, I find that a substantial proportion of the responsibility for X's unauthorised and unsupervised
contact
with the
children
after September 2014 lies with the mother. I find that in the early stages she was extremely reluctant to accept that X had
done
anything seriously wrong, and failed to appreciate the risk to the
children.
She wanted to
carry
on the relationship and to resume living with X. She plainly invited him to the house when the
children
were not there and, on a
balance
of probabilities, I find that she also allowed him to visit the property when they were there. This
continued
until the mother started a relationship with Z. From April 2015, the father had
contact
at X's house. This unquestionably included unauthorised overnight
contact.
I find that the mother knew that X was sleeping in the property. I
do
not accept her evidence that she thought he was sleeping in the
car.
Although the local authority had approved XX as a supervisor, any reasonable mother with a modicum of awareness of risk would have realised he
could
not effectively supervise
contact.
- I accept that the mother has associated with – and
continues
to associate with – men who sexually abuse
children,
notwithstanding her knowledge that they pose a sexual risk. Her evidence about her husband's activities, and her involvement with R, are yet further evidence that she is sadly lacking awareness of the risk of sexual abuse. In
closing
submissions, Miss Judd accepted on
behalf
of the mother that she failed to protect
children
from sexual harm
by
failing to
be
sufficiently alert to signs that X was abusing A, and W, and also
by
failing to appreciate that X would use
contact
at XX's home to have unsupervised
contact
with the
children.
It is accepted that the mother was insufficiently attuned to, and suspicious of what lay
behind,
X's
behaviour
towards A – for example, the play fighting and the
closeness
between
them. She should have
been
put on guard when she saw X in
bed
with W,
but
instead failed to see how inappropriate it was. Miss Judd added that her
client
accepted that she is in need of assistance and education to help understand how to protect the
children
in future. In my judgment, the mother's
current
lack of awareness and understanding about sexual risk is a very great impediment to her
capacity
to
care
safely for her
children.
- Turning to the allegations of physical abuse, I accept the various
descriptions
given
by
the mother, W and M as to X's violent
character
and temper. I accept that he
can
be
intimidating, frightening and aggressive, and is prone to sudden
changes
of mood – a seesaw, to use W's word. I accept W's account of X's violent and threatening
behaviour
during
their relationship, forcing him to have sexual relations. I have thought
carefully
about the allegations that X was violent to E,
but
conclude
that,
despite
the repeated allegations, the evidence is not sufficiently strong to lead to a finding that he physically assaulted her. E
did
not repeat the allegations in her ABE interview and
did
not give oral evidence
before
me. Such evidence as there is is therefore
contained
in local authority records and school referrals. For similar reasons, I
do
not find that the evidence is sufficient to lead to a finding that the
children
were ever physically assaulted
by
the mother. The evidence of the
children's
allegations is largely
contained
again in the local authority's records. As Miss Judd points out, there are some inconsistencies in the
children's
accounts. I
do
accept that the mother shouted at the
children,
especially at E in the period leading up to her move to her live with her own father after X's arrest when the mother was manifestly struggling to look after the
children
by
herself,
but
I am not satisfied that the mother ever physically assaulted the
children.
- Miss Henke
describes
neglect as a fundamental failure to achieve the
basic
requirement of
caring
for
children,
adding that, in order to grow into stable adults
capable
of managing their own lives,
children
need to
be
secure that the adults
caring
for them will keep them safe, reasonably
clean,
nourish them and ensure they have appropriate
clothes
and living
conditions.
I agree.
But
the level of neglect in this household was not on a scale that is often encountered in
care
proceedings. The local authority was aware of many of the
concerns
about the physical
care
of the
children
but
concluded
that they were not on a scale to justify statutory intervention. Had it not
been
for the local authority's eventual realisation of the extent of sexual abuse in the family, it is in my judgment likely the proceedings would never have
been
started. The extent of the sexual abuse, the level of sexual risk and the magnitude of the failure to protect
children
from sexual abuse
dwarf
the features of neglect in this
case.
- I
do
find that
children's
living
conditions
in the family home were poor. I also find that the mother failed adequately to treat
B's
head lice. I
do
not accept the mother's explanation of
B's
allergic reaction to
certain
medications as providing a full or reasonable excuse for her failure to tackle the problem. I accept the evidence of school staff that
C
was sent to school on occasions in soiled underwear, although this seems to have
been
confined
to a relatively short period. I also accept the local authority's evidence that, when he arrived in
care,
J was malodorous and in
dirty
and ill-fitting
clothes.
I agree that the neglect, and the
consequential
shame and indignity suffered
by
the
children,
was harmful. Accordingly I
do
make the specific findings of neglect sought
by
the local authority,
but
I repeat that the level of neglect was not on a scale frequently encountered in
care
proceedings, nor as serious as the level of sexual abuse, and the risk of sexual abuse, that existed in this family.
- In my judgment, the allegation that the mother sought to suppress the truth of what was happening at the house is supported
by
little evidence of substance. Put at its highest, it adds only marginally to the local authority's
case.
I
do
not propose to make any findings on this aspect. The most substantial evidence of the mother's failure to
cooperate
with the authorities lay in her failure to
comply
with the local authority's requirement that X should not have any unauthorised or unsupervised
contact
after the first arrest. In addition, I
do
not
consider
that the allegations of
drinking
or
drug
use add anything of substance to this
case.
- I turn finally to the allegations against Z. I agree with Miss Henke's
description
of Z as a rather passive figure. That accorded with my impression of him in his oral evidence. Importantly, however, unlike the mother, who had a startling lack of awareness of sexual
boundaries
and whose protective instincts are manifestly very limited, I found that Z had an understanding of the need for
boundaries
and an awareness of sexual risk,
but
failed in a number of respects to take proactive steps which would normally
be
expected of someone in his position. He knew of the
charges
that had
been
levelled against X after his first arrest. When present
during
contact,
he noticed the way in which A sat on X's knee, which, as he acknowledged in
cross
examination
by
Ms Fottrell, made him think that A was infatuated with X, and agreed that they had a
bond
that was
closer
than that
between
father and son. He
did
not, however,
challenge
the mother about this nor take any other action
because,
in my judgment, his protective instincts are not sufficiently
developed.
This is
consistent
with his attitude other issues – for example, the play fighting
between
the mother and W, his attitude to his former lodger's offending, and R's attempts to get
close
to the family after X's
departure.
- In short, I
conclude
that Z ought to have realised that the
children
were at risk from X, and taken more active steps to ensure that the
children
did
not have unsupervised
contact
with him. He has an awareness of the risk of abuse, and the need to take appropriate steps to protect
children,
but
his passive
character
and his relationship with the mother stopped him intervening. His
culpability
for failure to protect is not as serious as the mother's. It is possible that, with help, he may acquire a greater
capacity
to safeguard his
daughter.
There are aspects of his past
behaviour
which suggest a
degree
of fecklessness, notably his
cannabis
habit,
but
in my judgment these are not so serious as to exclude him as a potential
carer
for
D.
Following this fact finding hearing, I anticipate that he will undergo further assessment to test his responses and to establish whether he
does
indeed have the
capacity
to
care
for his
daughter.