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Home > Judgments > 2015 archive

Re C, D and E (Children) [2015] EWFC 92

Findings of fact relating to threshold in respect of serious and historic abuse perpetrated by A, the father of D (the subject of care proceedings), sought by the local authority on the basis of hearsay evidence.

The local authority sought threshold findings against A, the father of D (the subject of care proceedings with his brother C) in relation to six allegations of sexual abuse for which A had accepted a caution in 1990. A had accepted a caution in respect of the following, that he removed the trousers and underwear of his younger brother, X, and placed his penis into X's anus. Further findings were sought by the local authority that A had told his social worker in 1990, Mr Leek, that he had been both a perpetrator and victim of sexual abuse, and that A had admitted to Mr Coombes, the guardian ad litem in the care proceedings brought in 1990, that he had "done the abuse" to X while denying that he had sexually abused Y, A's younger sister.

Considering the limited oral and written evidence before the Court, Baker J was satisfied that while A did say that he had abused his younger sibling to Mr Leek and Mr Coombes, there were "grave difficulties" in attaching significant weight to these statements for the following reasons:

(i) The quality of evidence before the court was "extremely poor". Baker J noted that the vast majority was hearsay evidence, which lacked clarity as to authorship, clarity as to the source information or any proper detail of what A was alleged to have done. No original source evidence (by way of transcripts of police interviews with A or any complainant, or oral evidence from the source of the information) was adduced. Baker J considered that the key documents relied on contained "considerable elements of ambiguity". Nowhere was there "a clear account of what A [was] alleged to have done".

(ii) A had a highly dysfunctional home life characterised by sexual abuse and inappropriate and inadequate sexual boundaries. In the judge's view, this coloured what A and his siblings said to relevant professionals, and should been seen in the context of A likely suffering from distorted thinking as regards sexual matters.

(iii) A was 12 at the time of the alleged events. In the court's view, the reasons for A making the alleged statements and admissions were "shrouded in uncertainty", as were his motivations for saying them. It was impossible for court now to unpick the threads. Baker J noted that A had given differing accounts for the admissions made and the allegations against him. In oral evidence, A stated that he told H (his effective step-mother) about his father sexually abusing his sister, K, and that H had fabricated the allegations against A as she did not believe him. A said he was pressurised into accepting the allegations by the police. On other occasions, however, A had said that he made the allegations up to get away from his family home.

(iv) Baker J was particularly mindful of the burden of proof in such cases, noting that it was for the local authority to discharge this burden. He stated that "great care" needed to be exercised when dealing with hearsay evidence, in particular in historic cases and with the guidance of Peter Jackson J in the case of Lancashire County Council v The Children and Others [2014] EWHC 3 as to memory in mind. The fact that A had made an admission or acknowledgment of the alleged abuse on a number of occasions, while it went "some way to support the local authority's case that the admissions were true", was "not decisive".

On the balance of probabilities and the evidence before him, Baker J concluded that while it was probable that A was the victim of abuse and "caught up in sexual activity with family members in the household", it had not been proved that A had committed acts of sexual abuse on his younger siblings.

Summary by Anita Rao, barrister, Field Court Chambers
____________________________

Case Number: PL14C00584

IN THE PLYMOUTH FAMILY COURT

The Law Courts
10 Armada Way
Plymouth
Devon
PL1 2ER

Date: 22nd May 2015


BEFORE:

MR JUSTICE BAKER

- - - - - - - - - - - - - - - - -

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF C, D AND E (CHILDREN)


BETWEEN:

  
Devon County Council
 Applicant 
- and - 
S (1) Respondents
C'S FATHER (2)
A (3)
E'S MOTHER (4)
C (5)
D (6)
E (7)
(C, D and E by their children's guardian)
 
- - - - - - - - - - - - - - - - - -

J U D G M E N T
- - - - - - - - - - - - - - - - - -

Ms Tina Cook QC, appeared on behalf of the Applicant
Ms Carla Flexman appeared on behalf of S
Ms Kathryn Skellorn QC, and Mr Zahid Hussain appeared on behalf of A
Mr William Higginson appeared on behalf of the guardian
The Second and Fourth Respondents were not present nor represented
- - - - - - - - - - - - - - - - - -

APPROVED

216 folios in transcript
15,558 words in transcript

IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

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MR JUSTICE BAKER:

Introduction: Background
1. This very sad case illustrates the terrible consequences of sexual abuse within a family and how it affects the lives of succeeding generations.  The proceedings are care proceedings concerning two children whom I will refer to as C and D, aged nine, rising 10, and four respectively.  They are boys born to the same mother, who I shall refer to as S, but have different fathers: the father of C being a man who has played no part in these proceedings, and the father of D being a man hereafter referred to as A.  A also has two other children from previous relationships.

2. As will emerge, the focus of this hearing has been on historic events that allegedly occurred twenty-five years ago in the life of A when he was a boy aged about twelve.  To set that scene I shall describe briefly the history of the current proceedings before going on to consider historic matters.

3. The most recent period of local authority involvement with the family started in January 2012 when a referral was made from school suggesting that C, then aged six, had exhibited sexually inappropriate behaviour.  A section 47 investigation was started and identified that A had a criminal record, a history of relationships in which he had been allegedly violent, and further in his background that he, himself, had spent a period in care as a child following allegations of sexual abuse within his own family.  His own father, who I shall refer to hereafter as R, had been convicted of sexual offences against A's sister K and received a substantial custodial sentence.   Furthermore, in 1990, A himself, then aged twelve, had been cautioned for sexual offences involving his younger brother, who I shall refer to hereafter as X. 

4. As a result of these concerns, a child protection conference was convened, following which C and D were made subject of child protection plans.  At the request of social services, A moved out of the family home and was directed not to have any unsupervised contact with either of the children.

5. An assessment was then commissioned from the NSPCC.  In carrying out this assessment, the NSPCC workers interviewed A, who denied that he had committed the offences in respect of which he had received the caution.  The NSPCC assessment identified a number of features of relevance to its assessment of risk, including the fact that A had been raised within a family where sexual abuse had been reported to have occurred; that he had accepted a caution for sexual offences, which he was now denying; that he had spent periods in local authority care as an adolescent; that he had been convicted of a number of criminal offences subsequently in the course of his life; and that he had been involved in a number of unsuccessful relationships, some of which had involved allegations of domestic violence.  The assessors identified a number of risks which led them to recommend in full that he should not have unsupervised contact with any of his children, and should not move back into the family home until such time as a period of treatment or intervention had been successfully completed.

6. Following this assessment, on 26th April 2013, A started private law proceedings seeking contact with C and D, and also with his older son ("E") now aged fourteen.  As a result of concerns that S was unable to protect the children C and D from A, the local authority then started care proceedings on 11th July 2014.  The threshold document filed by the local authority asserted, inter alia, in support of a finding that the children were likely to suffer significant harm, the fact that A had accepted a caution in 1990 for six sexual offences against his brother X.

7. Following the instruction of leading counsel, Ms Kathryn Skellorn, QC, on behalf of A, a lengthy skeleton argument was filed, inter alia challenging the local authority's reliance on the caution in support of its proposed threshold findings.  The legal issues raised led to the case being transferred to me.  At the first hearing before me on 9th March, after legal discussion, it was conceded by the local authority that no reliance could or should be placed on the 1990 caution itself, but rather on the admissions allegedly made by A at or around the time the caution was administered.  I, therefore, directed that the matter be listed for a fact-finding hearing, limited to the findings sought by the local authority that A was responsible for sexual assaults upon his brother and/or sister in or around 1990, and the truth of the admissions that he had made in respect of the same.

8. I also gave extensive directions in an attempt to obtain disclosure of documents from a range of agencies and professionals who had been involved with A and his family at the relevant time, including the local authority in the North of England where A lived with R, his stepmother H, and his siblings, and the local authority in the West Country where A moved to live with his mother after the allegations were made.  Thereafter, thanks to the efforts of a number of people and, in particular, Ms Tina Cook QC, now instructed on behalf of the local authority, who herself visited the North of England and examined a  large number of documents, there has been extensive disclosure of information relating to A and his family. 

9. The fact finding hearing directed by me on 9th March has taken place this week and this judgment sets out my findings in respect of the issues I have considered.

10. I now turn to consider the history of A and his family.  I am very grateful to counsel who have taken the trouble to trawl through the papers, which filled seven lever arch files, and extracted relevant documents and, furthermore, proffered exceedingly useful chronologies. Ms Cook has prepared a shorter chronology identifying the disclosures allegedly made by A.  Ms Skellorn and her junior Mr Hussain have filed a longer more comprehensive chronology, apparently extracted from an even longer working document. From these various documents, I take the following history.  I stress that I am only referring to the points that are most relevant to the fact finding hearing before me. 

11. A's mother G was married first to a man who I shall hereafter refer to as L, by whom she had two children in 1970 and 1972.  That marriage broke down in 1974, following which G formed a relationship with R.  Thereafter, she gave birth to a number of children of whom R was, or allegedly was, the father – a son in 1975 being the first, and followed in 1977 by their second child, A.

12. Meanwhile there were ongoing concerns about the activities of L and the children of L and G, in particular their older son M.  He is a figure who comes in and out of the story spending various times in the household, and in respect of whom there are a number of allegations littering the papers suggesting that he was responsible for acts of sexual abuse perpetrated upon various children.

13. A third child was born to G and R in 1979, namely, a daughter K.  In 1981, the local authority were involved with the family and allegations were made of neglect, poor home conditions, of domestic violence and other concerns.  A further child X was born to the couple in 1982 and a further daughter Y followed in 1984, followed by a fifth child, a boy Z, born in 1986.  

14. It emerged many years later, (although it was not generally known at the time), that R was sexually abusing his daughter K from an early age.  Indeed, it later emerged that sexual abuse was a feature of the household and inappropriate sexual boundaries were put in place.  In 1984, G became friends with a woman, hereafter referred to as H, who herself had a troubled history having worked as a sex worker and having been involved in other concerning activities.  It is therefore the case that A was growing up in a family where a number of concerns existed, not only neglect and other issues of that nature, but also a pattern and history of sexual abuse and inappropriate sexual behaviour.  

15. In 1985, A, then aged eight, was knocked down in a motor accident and sustained very serious injuries which necessitated his admission to hospital for a period of over a year.  He told me in evidence, and it was astonishing to hear, that he was visited by family members only on one or two occasions while he was in hospital, notwithstanding the fact that he was in hospital locally. He was discharged from hospital in 1986, but a year later had to be admitted for a further very prolonged period because of medical problems.  On this occasion, he was admitted to hospital in London.  He told me in evidence that he was not visited by any family members during his stay of over a year in hospital in London, although he was visited by nurses from the hospital in the North of England where he had been admitted on the first occasion. While he was in hospital in London, the relationship between R and G broke down and G left the family home.  Thus, when A was discharged from hospital he went back to the family home in the North of England where his care was entrusted solely to his father, although a few months later the friend H, to whom I've already referred, moved in to live with R and, thereafter, acted in effect as stepmother to the children. Meanwhile, G had met up again with her former husband L and resumed cohabitation with him.  Indeed, as I understand it, they remain living together to this day, over twenty-five years later.

16. A number of other crises occurred in the family, which I do not propose to refer to in this judgment.  Allegations of sexual abuse continued, in particular concerning G's older son M who, as I have said, was a regular visitor to the household in the North of England.  Furthermore, it is clear that the pattern of sexually inappropriate behaviour and, indeed, abuse which had existed prior to G's departure continued after H had moved in.

17. The incidents on which this court has focussed attention took place in May 1990.  On or around 16th May, A left the family home.  The reasons for his leaving remain unclear, although various accounts have been put before me.  A's case now is that he left the home for the following reason. He went into the living room of the house and observed his father R lying on the sofa with K, under a blanket, and acting in a way which he considered to be plainly abusive towards his sister.  A immediately told H what has happened.  H's response was to accuse him of not telling the truth and to threaten that she would report what he had said back to R.  Fearing that he would be beaten, as he had apparently been in the past, A then ran away.  A was reported missing by H who also alleged, it seems, that A had committed acts of sexual abuse upon his younger siblings.  A was found shortly afterwards and was interviewed by the police and it is that interview, or at least the little that we know about that interview, that lies at the heart of this case.  It is said that in the course of that interview he admitted acts of sexual abuse against his younger siblings.  I shall return to deal with what was said, or allegedly said, on that occasion later in this judgment.

18. Following that incident, A was made the subject of a place of safety order (it must be remembered that this was 1990 before the introduction of the Children Act) and placed in a children's home not far from the family home.  The children were all examined medically.  I have seen references to what was allegedly found.  In the report of the consultant paediatrician there is a reference to the findings.  There is also a suggestion that it is the stepmother H who made the allegation that A had abused his siblings.  The paediatrician's conclusion was that there was no definitive evidence of abuse within the family, although the examination of the daughter Y did show signs which were consistent with abuse – consistent, but not diagnostic.

19. The younger children were apparently interviewed by the police some days later on 23rd May.  The records of that put before me are incomplete and unreliable, but there is no evidence that anything was said during these interviews by X or Y to indicate that they had been abused by A.  It is noticeable that R was apparently present when these interviews took place.

20. Further conversations took place in the course of the next few weeks between A and staff at the residential home.  I shall refer to some of those later in this judgment.  Following the place of safety order, an application was made by the local authority for a care order in respect of A, and the local authority began to consider the option of placing him with his mother.  Meanwhile, A started having sessions with a social worker, Richard Leek, whose work was described as being (1) investigating and (2) therapeutic.  In the event, it seems that Mr Leek only saw A on two occasions.  On the basis of what little is known about these sessions, Ms Skellorn raises concerns about whether they were conducted in an appropriate way since it seems that they took place at McDonald's.  I shall refer to things that were apparently said in the course of those sessions later in this judgment.

21. A case conference took place on 17th July 1990, the minutes of which are before me, in which it was recorded, inter alia, that there was going to be no prosecution of A following the allegations.  It was noted that A was unsettled at his residential home and, as already said, that the local authority was looking at the option of placing A with his mother. That, indeed, was the recommendation of the conference and a few days later A moved to live with his mother in the West Country.

22. The case was thus transferred to the local authority in the West Country, although it is unclear how much documentation or information about the case was transferred to the social workers in the West Country at that stage.  Ms Skellorn submits, on the basis of her examination of the papers, that there was no or very little understanding of what had actually occurred in the family in the North of England, of what A had left behind when he moved to the West Country.

23. The police had, as I have already indicated, decided not to prosecute but instead had decided to administer a caution and this was duly carried out at a police station in the West Country on 10th August.  The record of the caution is put before me and I shall refer to it later in the judgment.  Ms Skellorn and Mr Hussain have made a number of submissions about this process.  Those submissions are set out in a lengthy skeleton argument in which they attack the validity of the caution.  That argument was, of course, about the time when the local authority were seeking to rely on the caution itself as evidence in support of its case in these proceedings and, thus, Ms Skellorn and Mr Hussain understandably point to a number of deficiencies in the process. Ms Skellorn and Mr Hussain continue to rely on the points raised in that document as factors to be taken into account, notwithstanding the fact that the local authority is no longer putting its case in the same way.  Ms Skellorn and Mr Hussain submit that the problems with the caution are relevant where the court is considering the extent to which it can safely rely on the circumstances surrounding the caution as evidence and, in particular, any admission made by A in the course of that process.  I shall return to that aspect of the case later in this judgment.

24. The important point to note about the caution at this stage, however, is that on the face of it A again admitted that he had sexually abused his brother, but it seems that he denied on this occasion any sexually abusive acts towards his sister. Thus an offence concerning her which had been originally included on the form was deleted.

25. At about the same time, a new social worker, Ann Hands, appointed to act as key worker for A, was in contact with Mr Leek and concern was expressed that A was now denying some of the abuse which he had previously admitted.  For the next few weeks, A remained in Devon trying to settle down and receiving support from his social worker Ms Hands.  It should be noted that G's older son, M, with his history of abuse, continued to spend weekends at G's property. On 4th November 1990, M was sentenced for an offence of indecent assault.  It is said in the papers that at that stage he also admitted committing acts of abuse on A and his sister K.

26. The care proceedings continued in the North of England in respect of A.  In the course of those proceedings, a guardian ad litem was appointed to represent A.  That guardian, Mr Coombes, interviewed A as part of his work in the case and his report prepared for the proceedings has been put before me.  I shall refer to what is said in that report, insofar as it is relevant to this case, later in this judgment.

27. In December 1990, a hearing took place in the North of England at the conclusion of the care proceedings.  A travelled to that court hearing with his social worker Ann Hands.  In the course of the journey he alleged, (for the first time so far as can be gleaned from the papers), that his father R had sexually abused K.  That allegation set in train a lengthy investigation which ultimately resulted in a criminal trial in which A and K gave evidence leading to R's conviction and, as I have already said, a lengthy prison sentence.

28. Prior to that, the care proceedings in respect of A concluded with a supervision order made in favour of the local authority in the West Country and A returned to live with his mother in that part of the world.  The lengthy chronology proffered by Ms Skellorn proceeds to set out in exhaustive detail events that happened thereafter as gleaned from the papers.  In the circumstances, however, it is unnecessary for me to refer to that in any further detail.  Suffice to say that A's history continued to be troubled and there were further difficulties at the home of his mother, including allegations, never proved or substantiated, that he had behaved sexually inappropriately towards K in that house, K and the other children having themselves moved to live with their mother following a further court hearing.    As a result of those allegations, A spent a further period in another residential home in the West Country.

29. Thereafter, A's life took on a sad course.  He drifted in and out of care.  At times he was rejected by his family and his life has included periods of homelessness, petty criminal activity, and difficulties in forming relationships with women.  Those relationships which he has enjoyed have tended not to last and have on occasions been characterised by domestic violence.  It is, as I have said, a sad history and all too typical of the history that one comes across in cases where children are brought up in circumstances where they suffer chronic neglect and abuse.

Findings sought by the local authority
30. By its amended schedule of findings, the local authority asserts and invites the court to find that at the relevant date, being the date of which proceedings were started, the children in the household of A and S (their son D and S's older child C) were likely to suffer significant harm, that harm being sexual abuse and emotional harm.  Specifically the local authority invites the court to find as follows:

1) On 10th August 1990, A accepted a caution for six sexual offences towards his brother X.

2) The preconditions of that cautions were that:  (a) an offence had been committed; and (b)  the individual accepts committing the offence.  Furthermore, that A was accompanied on this occasion by an appropriate adult, namely, his mother, when he accepted the caution.

3) The underlying facts of the offence against X were that A removed his trousers and underwear of his 7-year-old brother and placed his penis into his brother's anus, committing the act of buggery. 

4) A subsequently told Richard Leek, the social worker with whom he had sessions, that he has been both a perpetrator and victim of sexual abuse. 

5) A admitted to Mr Coombes, the guardian ad litem in the 1990 care proceedings, that he had, "done the abuse", to X while denying that he had committed any offence towards Y. 

As explained by Ms Cook in her skeleton argument for the hearing before me on 9th March, the local authority does not rely on the caution per se, but rather on the admissions which the local authority says underpin that caution.

The Law
31. The law to be applied in care proceedings concerning allegations of child abuse is well established and I have summarised it in a number of reported cases, and have those principles and the authorities from which they are derived firmly in mind.  What follows is simply a summary.

32. The provisions going into the making of a care order are set out in section 31 of the Children Act, in particular the threshold criteria in section 31(2).  If the court finds that the threshold set out in that subsection is crossed, the court must then determine what order to make. In reaching that decision,  the court will apply section 1 of the Children Act making the child's welfare its paramount consideration.

33. In determining any issues of fact, the burden of proof rests on the local authority and any other parties seeking findings of fact.  The local authority brings the proceedings and the local authority, therefore, identifies the findings they invite the court to make.  The standard of proof  is the balance of probabilities.  That applies both for 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 who are the subject of the proceedings will be based on that finding.  If the local authority fails to prove the allegation, the court will disregard it completely. 

34. Findings of fact must be based on evidence.  Whilst appropriate inferences may be drawn from evidence, the court must be careful to distinguish between inference and speculation, which must be avoided. The test for admissibility in care proceedings, as for civil proceedings as a rule, is relevance and that extends to evidence of similar fact.  Hearsay evidence is also admissible, if relevant, and cases involving a long family history will inevitably involve a considerable amount of evidence based on hearsay.  In weighing up such evidence, I bear in mind the points made about hearsay evidence in reported authorities and, in particular, hearsay evidence, deduced from local authority files, made recently by Sir James Munby P. in Re A (A Child) [2015] EWFC 11 and endorsed by the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222

35. When considering cases of alleged sexual child abuse, the court inevitably surveys a wide canvas and has to take all the evidence into account and consider each piece of evidence in the context of all the other evidence.  The evidence of parents and other carers is extremely important and it is essential that, insofar as it can, the court forms a clear assessment of their credibility and reliability.  The court acknowledges that it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing.  When considering those lies the court has to bear in mind that a witness may lie for many reasons: shame, loyalty, panic, fear, distress.  The fact that a witness has lied about some matters does not mean that he or she has lied about everything.

36. In this case I attached importance to the following further insights emerging from the decision of Peter Jackson J. in the case of Lancashire County Council v The Children and Others [2014] EWHC 3 paragraph 9 in which he observed that:

"Where repeated accounts are given the court must think carefully about the significance or otherwise of any reported discrepancies.  They may arise for a number of reasons.  One possibility is of course that they are lies designed to hide culpability.  Another is that they are lies told for other reasons.  Further possibilities include faulty recollection or confusion at the time of stress or where the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account.  The possible effect of delay and repeated questioning upon memory should also be considered, as should the effect of one person on hearing accounts given by another.  As memory fades, a desire to iron out wrinkles may not be unnatural; a process that might inelegantly be described as "story-creep" may occur without any necessary inferences of bad faith."

I also bear in mind the observations of Mostyn J in Lancashire County Council v R [2013] EWHC 364 (Fam):

"The assessment of credibility generally involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.  With every day that passes the memory becomes fainter and the imagination more active.  The human capacity for honestly believing something which bears no resemblance to what actually happened is unlimited."

I stress that I had these points in the forefront of my mind throughout this hearing. 

The Evidence
37. The hearing before me lasted for three and a half days plus this day for judgment.  A substantial part of the hearing consisted of a lengthy opening speech by Ms Cook on behalf of the local authority, in which she carefully took me through the documents on which she relies in support of the local authority's case as to the alleged admissions, and a lengthy closing submission by Ms Skellorn, on behalf of A, in which she took me through the chronology that she and Mr Hussain had prepared and identified facts and matters they rely on by way of defence.  I make no criticism of either counsel at taking this course.  Indeed, I encouraged it, for the bulk of the evidence before me as to historical matters consists of copies of record, in particular from the two local authorities concerned. 

38. The only live evidence came from three witnesses: Ms Hands, the social worker in the West Country, who took over as A's key worker shortly after he arrived there in 1990; Maxine Bryant, who had carried out the NSPCC review in 2013; and A himself.  The local authority filed statements from various other witnesses, including Mr Coombes; he was unable to recall anything concerning the case beyond what was set out in the records.

39. The local authority relies principally on five occasions when it is said that A made admissions that he had sexually abused his brother and in some cases his sister.  In addition, the local authority relies on his failure to correct, deny or withdraw his admissions or allegations, on other occasions when he had the opportunity to do so, until sometime after the event.  One example was when speaking of the abuse he said he witnessed R perpetrating on his sister K.  Ms Cook also relies on A's answers in the witness box before me and highlights in particular the shift in his position on the separate and linked issue as to whether he was himself a victim of abuse, in particular at the hands of his half-brother, G's older son.  But the central plank of the local authority case is the admissions and I turn to consider them now.

40. The first is a record of a case conference that took place in the North of England on 7th June 1990.  I read the relevant part of that record:

"On Wednesday, 16th May, R and H reported A missing from home.  Whilst enquiries about the family background were being made, H said that the other children at home had made allegations that A had indecently assaulted them.  A was found and did not want to return home.  His parents did not want him at home and a Place of Safety Order was taken and he was duly placed at the residential home.  A was interviewed the following day by the police.  He admitted he had committed an act of buggery against his younger brother X, and had indecently assaulted his sister Y by touching her.  Asked where he had got the idea for doing this, he said that his older brother, G's older son, had anally abused him.  A will be charged with indecent assault and buggery.  During the interview, A said that he did not want to return home and that he would prefer to go to the West Country and live with his mother.  The police were concerned about A's sexual awareness and he also talked about X being sexually aware and said that he had found X masturbating and this had aroused him.  When he had buggered X, he had also asked him to please A with oral sex.  He knew what to do as he had seen his natural mother and father performing sexual acts."

41. A number of reported points about this record should be made at the outset.  First, this is a hearsay note.  There is no indication who was making the report to the case conference, although it is likely to have been the police, who were present.  There is no record of any interview of A.  No such record has been produced.  We merely have the summary in this case conference record.  It is, indeed, a summary and contains little detail of what A actually said.  In his evidence, A said that he had no recollection of being interviewed in the north.  Furthermore, the case conference record contains no detail of the complaint which triggered the interview.   It is not clear whether the complainant was X or Y or R, or H, and no details of what was said by the complainant are included in any document put before me.  If  X and/or Y were interviewed, no record of that interview exists or has been produced to this court.  

42. In the course of the hearing, Ms Bryant from the NSPCC was cross-examined about statements within her report which appear to give details of complaints made on this occasion.  These details were not produced in any records that had at that stage been available to the court.  Ms Bryant checked on her computer and subsequently produced the computerised records from the police force in the north which included notes to this effect:

"12-year-old brother removed trousers and underpants of 7-year-old brother and placed his penis into his brother's anus committing the act of buggery." 

and:

"Brother of complainant approaches her when she is bed, takes down her pyjamas and touches her on the vagina with his hand for sexual gratification." 

The use of the words "brother" and "complainant" in these records might suggest that the children had indeed made a complaint but it is far too uncertain to allow any conclusion to be drawn as to the identity of the complainant – in other words, whether the complaint was made by the children themselves, or by their stepmother or father.

43. The second "admission" concerning sexual activity was allegedly made to the social worker Mr Richard Leek with whom A had two sessions of counselling work in July/August 1990.  Mr Leek has not given evidence before me.  The best evidence available from him is a handwritten note appended to the minutes of a later case conference in August.  The local authority relies on this note and I, therefore, read the relevant parts in full:

"I started working with A at the beginning of July at which point he had disclosed that he was both a perpetrator and a victim.  He was extremely open and apparently willing to discuss what had happened and accepted that it was important to do so.  However, in discussion with A, it soon became clear that:

a) He was able to use a variety of strategies to avoid discussing things by evasion.
 
b) He was extremely naive regarding any emotional issues, particularly pertaining to sexuality.
 
c) He had been sucked into an offending culture at the residential home and was clearly stating that he found this behaviour attractive and exciting. 

Staff at the residential home hold great concerns for him, feeling that he was particularly vulnerable to any form of exploitation both by other residents and people outside of the home.  A disclosed that he had buggered his younger brother on two occasions and that he had been buggered himself on one occasion.  He was able to offer positive and negative feelings associated with his role as a perpetrator, ie, it felt good, or b) it did not seem right because he was a boy.  However, as might be expected, the insights lacked emotional depth.  I feel that the issues around his positive feelings need a good deal more exploration and confrontation.  He also needs to explore the emotional consequences. There is some room here for using his own empathy as a victim, as he was very clear that the worst direct consequence for him of being abused was that he had disclosed it to his father and stepmother who refused to believe him."

44. References to his complex feelings in this note concerning the alleged abuse adds a degree of weight to the local authority case.  Plainly, A was talking about conflicted feelings about something that had happened, but it is not clear to me whether Mr Leek's note was recording a fresh admission or simply referring back to earlier admissions to the police, or someone else unknown.  Again there is, in my judgment, insufficient detail.  On the face of it, this record does contain acknowledgment that A had both inflicted and experienced sexual abuse, but with a child of this age in a family where abuse was, as is now clear, rife and the boundaries between victim and perpetrator amongst his sibling group are likely to have become blurred, it would have been interesting to know more about Mr Leek's conversation with A, but no further evidence was available.

45. Thirdly, there is the occasion where the caution was administered on 10th August 1990.  This took place in the police station in the West Country.  In addition to A and the police officer, his mother was present, as was a social worker, Mr Ball.  The form prepared contained seven offences: six relating to X and one relating to Y.  The one relating to Y is crossed out and the words "not admitted" written alongside.  In a box headed, "Acknowledgement of caution", which includes the words, "I admit the six ["7" is crossed out] offences shown above for which I now receive an official caution", A has apparently added his signature. This has apparently been witnessed by his mother and the police officer.

46. In his evidence, A accepted that he had signed a caution but said he did so because he had been subjected to pressure by the police, told that he would not be allowed to leave until the issue was resolved, and that he, therefore, signed the document to get away.  On his behalf, Ms Skellorn makes a number of technical criticisms of the way the caution was administered and, indeed, the fact that it was administered at all.  Ms Cook acknowledges that there may be legal problems with the lawfulness of the caution but relies on the admission contained within it.  She also draws attention to the fact that A felt able to deny the alleged offence involving Y, but chose not to deny the offences involving X.

47. Fourthly, there is a statement contained in the report of Mr Coombes who was, as I said, appointed guardian ad litem for A in the 1990 care proceedings.  In his report dated 27th November 1990 in a passage headed, "A's own story and wishes", Mr Coombes states as follows:

"A told me that his life in the North of England had been, "awful".  When his brother was still with the family, his father would get drunk and hit them.  After H arrived, this changed but things got worse in other ways.  He did not feel as if he was wanted and considered he was treated like a 2-year-old.  They were over-strict and it was getting worse.  In May, his father hit him again and he ran away and went to see a man who he knew to have been a sexual offender.  He did not feel threatened, however, as that man's own mother and father were there.  A says that he had previously told his father of his own sexual abuse by his older stepbrother and that his father did not believe him.  After going to the police, A did not wish to return home.  He went to the children's home where he considers he was still treated badly, like a 2-year-old.  As a result he ran away and stayed with friends; this lasted for a week.  A admitted to me that he had, "done the abuse", to X but denied doing anything with Y.  He agrees that he will co-operate with social services and attend the groups as requested."

Mr Coombes was contacted and asked to make a statement, but had no further recollections concerning this case – unsurprisingly as it was twenty-five years ago.  Reference to A having sexually abused his brother in this report is fleeting and, again, gives no further detail, although it is broadly consistent with what he appears to have said at the police station.

48. The fifth "admission" relied on by the local authority is also contained in Mr Coombes' report of 27th November in which he recounts a conversation with the key worker at the children's home in the north, where A had been admitted following the Place of Safety Order.  Mr Coombes records that key worker's impression as follows:

"His impression of A's family life, gained from A himself, was one of confusion within the family.  A claimed that his father drunk a lot before H arrived and had soft porn videos.  A then began sexually experimenting with X.  He plainly remained angry that he was not believed when he first told his father about his own abuse by his stepbrother."

This is, of course, in rather different terms and gives a slightly different impression of sexual experimentation as opposed to abuse.  Once again, however, there is no detail of what was said to have occurred. 

49. Ms Cook also draws attention to a number of other strands in the evidence.  In a record of a conversation with a social worker in the summer of 1990, A is said to have said that he had, "admitted everything he's done with X", adding that, "I don't want to think about it anymore.  Not until I have to."  Ms Cook further  notes a record made after R had been convicted at trial at which A had, as I have said, given evidence, in which A is said to have acknowledged that he needed help, "for his offending and abuse".  Some years later in 1994, X is recorded as having said that A along with R and other members of the family had been involved in abusing him and the other younger children.  There is also reference to X saying similar things to his foster carer.  The records are in reports quoting extracts from other documents.  Clearly, the hearsay is at several hands.  There are other references to allegations of abuse by A in a psychologist's report concerning X in which X is said to have made similar allegations about being abused by his father and brothers. When considering these documents, I bear in mind what I have been told about X: namely, that he has a learning disability.  The psychologist's report, to which I have just referred, which dates from early 1997 describes X as then being about four to five years behind his chronological age.  It also refers to X, then a teenager, having abused younger children himself.

50. A has given a variety of explanations at different times for the admissions that he is said to have made and the allegations made against him.  His evidence before me was to the effect that the allegations had been fabricated by his stepmother H because he had told her that he had seen his father sexually abusing his sister K.  He says that he has no recollection of being interviewed by the police in the North of England; the interview referred to in the case conference to which I have referred above. As for the interview in the West of England, which led to the caution being administered, it is A's case that he was pressurised into admitting the allegations, in the way that I have described above.  On other occasions, A has suggested that he made the allegations up to get away from the family home where he was being ill-treated so that he could go to live with his mother.  Ms Cook relies on his various inconsistent explanations in support of the local authority's case that the admissions were, in fact, genuine. 

51. In his oral evidence, A emphatically denied that he had ever abused any child, including X or Y.  His position on whether he, himself, has been abused seemed to evolve so that by the end he appeared to be denying it completely or at least denying that he had any recollection of it.  He refused to acknowledge that there was any legitimate concern about the safety of his own children in the light of his admissions about his behaviour towards X and Y, and seems to see himself as a victim of the local authority actions.  All he wants to do, he says, is to have a chance to be a father to his kids.

Discussion and Conclusion
52. Drawing these strands together, I am satisfied that A did say on several occasions words to the effect that he had abused his younger siblings but, having given the matter careful consideration, I find that there are grave difficulties in attaching significant weight to these statements for the following reasons. 

53. First, the quality of the evidence put before me is extremely poor, consisting as it does of records containing hearsay information.  No one has been called to give oral evidence on these conversations, so that Ms Skellorn has been unable to test the strength of the evidence.  The key documents to which I have referred contained considerable elements of ambiguity.  Nowhere is there a clear account of what A is alleged to have done.   

54. Secondly, at the time he made the statements A was a boy aged only 12 years.  On any view, he was a highly vulnerable young man, a victim of physical and emotional abuse over a prolonged period of time, and possibly, indeed probably in my view, sexual abuse as well.  The reasons for his making the statements as he did are now shrouded in uncertainty.  It is impossible for this court to unpick these threads and determine the truth.  A's motivation for saying what he said, whatever it was, is also unclear.  The fact that he made an admission or acknowledgment on a number of occasions goes some way to support the local authority's case that the admissions were true, but, in my view, it is not decisive.

55. Thirdly, what is clear is that A's family life was highly dysfunctional.  His father was violent and a serious sexual predator.  Sexual abuse was a regular feature of the home and the lives of his son and, indeed, probably all of the members of that household.  There were manifestly no or no adequate sexual boundaries.  This inevitably colours anything said by A and the other children, since it is likely that all of them were suffering from highly distorted thinking about sexual matters.

56. Fourthly, in carrying out my analysis of these issues, I am acutely aware of the legal principles to which I have referred above, the importance of which Ms Cook fairly acknowledged during her submissions.  In particular, the importance of ensuring that the burden of proof remained on the local authority at all times, notwithstanding the fact that A has made admissions in the past.  Furthermore, I bear in mind the great care that needs to be exercised when dealing with hearsay evidence and, in particular, in historic cases given all that is now known about memory, particularly the observations made by Mr Justice Peter Jackson in the passage quoted above. 

57. Plainly, A is a very damaged individual with many problems in his life which are, in my view, attributable to a very great extent to his own appalling upbringing.  I think it very possible, indeed probable, that A was himself a victim of abuse, and that he was caught up in sexual activity with family members in the household.  But, on balance, I find the local authority has not proved that he has committed acts of sexual abuse upon his younger siblings.   All further decisions concerning his children, the children in this case, will therefore be based on that finding.  There are, I stress, a number of other issues of concern about A, his character and background, which will undoubtedly impinge upon those decisions. 

58. In closing I would like to draw attention to two aspects of this case that should be emphasised.  The first is that there was the failure on the part of the parties to agree a proper court bundle in accordance with a practice direction.  This meant that the court had to deal with no fewer than 17 bundles; for a hearing that lasted less than a week, this was simply unacceptable.  Efforts were made to agree a smaller bundle.  They failed.  I am not going to conduct an inquest into what happened, but I want to stress that this court will no longer tolerate that sort of unsatisfactory case management in future.

59. Secondly, this case has demonstrated yet again the importance of professional advocacy in family proceedings.  It would have been impossible for this case to have been concluded without advocates, as might well have been the case if they had remained private law proceedings.  It was only through hearing the case presented and argued professionally by experienced specialist counsel that I was able to reach my conclusion.  In particular, I wish to acknowledge the conspicuously fair and professional way in which Ms Cook put forward her case on behalf of the local authority.  It might be thought odd that I single her out, and in doing so I do not wish to imply any criticism of the hard work and efforts of A's legal team, but it was hearing the local authority case set out with clarity and fairness on behalf of the authority by Ms Cook, and her equally clear and fair cross-examination of A, that led me to find a way to make a decision in this difficult case.  The primary purpose of advocacy in family cases is to assist the court in arriving at the right decision.  A family court needs advocates with experience, wisdom and skill to ensure that justice is done.  This has been demonstrated yet again in this case.  Without specialist advocates, the family justice system cannot function effectively.

Postscript
Following the conclusion of the finding of fact hearing, A co-operated with a detailed psychological and risk assessment by a Consultant Psychologist.  The expert was asked to identify any residual effects of A's own abusive and traumatic childhood upon his parenting and to specifically identify any risk of sexual abuse or domestic violence that he may now pose. 

The report was favourable to A.  The Local Authority accepted that the s 31(2) threshold criteria could not be satisfied and sought permission to withdraw the care proceedings.  The Children's Guardian supported that course.

A resumed unsupervised visiting and staying contact with his birth children D and E.