AS v TH (False Allegations of Abuse)  EWHC 532 Fam
Application by mother of two children for findings in respect of a series of allegations made against the father of one of the children. Found that the allegations were false; reference made to the guidance professionals should follow in such cases.
This was an application by the mother of the children N and S for findings in respect of a series of allegations made against the father of S, TH.
Prior to August 2014, N lived in his mother's care (in Scotland) and spent time with his father (BC) whilst S lived predominantly with his father TH (also in Scotland) and spent time with his mother. In July 2014 the mother commenced a relationship with ER in England. In August 2014 when both boys were in her care in England, she refused to return, or return them, to Scotland. TH commenced proceedings in Scotland to secure the return of S to his care.
From August 2014 to June 2015 the mother and the boys made a series of serious allegations against TH (considered below in 'findings'). The allegations were of serious emotional, physical and sexual abuse perpetrated by TH against her and both children. Over the course of a nine-day fact-finding hearing Mr Justice MacDonald considered the written and oral evidence of numerous witnesses, to include Scottish and English police officers, social workers, refuge workers, teachers from the boys' schools, CAMHS support workers, the mother and TH. It was not considered appropriate for the children to give evidence. At the end of the hearing counsel for TH put the court and parties on notice that findings would be sought against the mother (also considered below).
Approach by the professionals
Mr Justice MacDonald, in finding none of the allegations made by the mother to be proved, and in fact finding them to be false, criticised in detail the conduct of the professionals. In setting out the legal framework, he referred to the following significant guidance to be followed:
- The case law on the correct approach to allegations of sexual abuse (Re I-A (Allegations of Sexual Abuse)  2 FLR 837, Re H (Minors); Re K (Minors)(Child Abuse: Evidence)  2 FLR 313;
- The Report of the Inquiry into Child Abuse in Cleveland 1987 (the 'Cleveland Report')
- Achieving Best Evidence in Criminal Proceedings (March 2011) ('ABE Guidelines')
- Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland
- HM Government Guidance: Keeping Children Safe in Education (July 2015) and What to do if you're worried a child is abused (March 2015).
In the context of the above guidance the court found that the actions of certain professionals actively contributed to the difficulties in assessing the evidence, 'materially prejudiced the welfare of both children' and contributed to the emotional harm the children had suffered. These breaches included:
- The social worker unquestioningly accepted the mother's account and her failure to make enquiries of the fathers, the extended families, school, doctors or local authorities "was particularly egregious in circumstances where such enquires would have revealed a fundamentally different picture to that being painted by the mother." 
- A failure (by social workers, Detective Constables, Detective Sergeants and teachers) to keep accurate records of what was said by the mother and the children, resulting in accounts of what the children said that were diametrically opposed. 
- A repeated failure by numerous professionals to interview the children in accordance with the ABE Guidelines, in particular repeated questioning of one child in the presence of the other child and their mother, and the repeated use of highly leading questions.
- A failure by agencies to coordinate their intervention: between 11 August 2014 and 29 July 2015, taking the CAMHS intervention into account, the children were questioned by no fewer than nineteen professionals, on twenty occasions for S and forty-four occasions for N, with five different police officers interviewing the boys.
- That ahead of any findings or criminal convictions in respect of the allegation, the CAMHS intervention extended to therapeutic intervention for N by three psychiatrists and over 29 group therapy sessions and six sessions for S on the basis that they had been abused as alleged.
The court did not make a single finding sought by the mother. At TH's request it went further, and made findings that each of the allegations made by the mother was false. The findings are set out in the schedule to the judgment. Of note are the following:
- TH did not rape the mother, nor was he physically violent or abusive and controlling; those allegations were false.
- TH did on occasion physically restrain N and discipline S; however he did not physically abuse N or S as alleged by the mother; those allegations were false;
- TH did not behave in a sexually abusive manner towards N or S, to include taking inappropriate photos and making 'rude movies' either as alleged or at all; all such allegations were false;
- TH did not behave in an emotionally abusive manner towards N or S; all such allegations were false;
- In so far as any allegations were made by N and S, such allegations were done as the result of indirect emotional pressure and direct encouragement of the mother.
- S was removed from Scotland by the mother on 11 August without the consent of TH and was in breach of the orders made by the Sheriff's Court on 12, 15 and 28 August 2014.
- The mother told lies to professionals aimed at preventing the return of S to the care of his father, protecting the mother from compliance with lawful orders made by the Scottish court and preventing professionals from discovering that she had told lies.
- In consequence of the findings set out above, N and S have suffered significant emotional harm as a result of the care given to them by their mother.
Summary by Esther Lieu, barrister, 3PB
Neutral Citation Number:  EWHC 532 (Fam)
Case No: FD15P000036
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE MACDONALD
- - - - - - - - - - - - - - - - - - - - -
- and -
TH First Respondent
- and -
BC Second Respondent
- and –
NC and SH (By their Children's Guardian) Third and Fourth Respondent
Ms Dousha Krish (instructed by Hanne & Co) for the Applicant
Ms Anna McKenna (instructed by Osbornes) for the First Respondent
Mr Ali (instructed by Jacobs Solicitors) for the Second Respondent
Mr Neil Bullock (instructed by CAFCASS Legal) for the Third and Fourth Respondents
Hearing dates: 18, 19, 20, 21, 22, 25, 26, 27 January and 4 February 2016
- - - - - - - - - - - - - - - - - - - - -
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR JUSTICE MACDONALD
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
Mr Justice MacDonald:
1. This is very troubling case. In Re E (A Minor)(Child Abuse: Evidence)  1 FLR 420 at 447H Scott- Baker J observed:
"It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of 'the child must be believed'. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue".
2. Seventeen years later Holman J felt compelled to make similar observations in the case of Leeds City Council v YX & ZX (Assessment of Sexual Abuse)  2 FLR 869 at  as follows:
"I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned."
3. Eight years after the decision in Leeds City Council v YX & ZX and nearly 30 years after the Cleveland Inquiry I have found myself during the course of this hearing asking myself the self-same question as that posed by Holman J.
4. In this matter I am required to determine whether, on the balance of probabilities, certain alleged incidents of serious emotional, physical and sexual abuse have taken place. Those alleged incidents centre on the lives of two children, NC, who is now aged 10, and SH, who is now aged 6, and their mother, AS, the applicant in this case.
5. The findings sought by the mother are set out in the form of a Scott Schedule prepared for these proceedings. In summary, it is alleged that TH, the father of S, has raped the mother on two occasions, perpetrated domestic violence against her and has emotionally, physically and sexually abused both N and S. TH has filed and served replies to the Scott Schedule. He denies each allegation levelled at him. TH currently faces criminal charges in Scotland arising out of the allegations made. He is due to be tried on those criminal charges in July of this year 1. I make clear at the outset that I have found none of the findings sought by the mother to be proved.
6. The father of N is BC who is also a party to these proceedings. No findings are sought against BC.
7. At the conclusion of this hearing counsel for TH put the parties and the court on notice that findings would be sought with respect to the mother. In summary, the findings are that each of the allegations made by the mother and the children are false; that N and S have each been coached or influenced by their mother into making allegations; that the mother has told lies to a series of professionals; that a number of professionals have acted in breach of their professional duty by failing properly to investigate the allegations; and that, in consequence, the children have suffered significant emotional harm. Once again, I make clear at the outset that I have found each of the findings sought by TH to be proved.
8. I have before me and have read seven lever arch files of documentary evidence. I have heard oral evidence from the mother, TH, BC, from a number of family members and from certain of the professionals who have been engaged with the family. At a hearing on 18 December 2015 I decided that it was not in N's best interests to give evidence at this hearing.
9. The applications before the court comprise the mother's application for wardship dated 28 January 2015 and TH's cross application dated 11 March 2015. On 28 January 2015 Newton J determined that the children were habitually resident in this country for the purposes of founding the jurisdiction of this court.
10. I regret that this judgment is, of necessity, lengthy. Its length reflects the factual complexity of this case and the plethora of matters that the court has been required to consider within that complex context in coming to its conclusions.
11. The mother and BC were in a relationship between 2003 and 2007. N was born in Scotland in 2005. The relationship between the mother and BC ended in June 2007.
12. The mother commenced her relationship with TH in 2007 in England. S was born in 2009. In December 2010 the mother and TH moved to Scotland. In light of information from S's nursery (which I deal with in more detail below) the mother now concedes that, in contradistinction to assertions made in her written evidence, TH was substantially involved in the care of S following the parents' separation. Immediately prior to his removal from Scotland in August 2014 I am satisfied that TH was S's primary carer.
13. In June 2014 the mother commenced a relationship with ER in England. ER had previously been in a relationship with a friend of the mothers and ER and his then partner had visited the mother in Scotland in May 2014. In evidence, ER confirmed that when his relationship with his wife broke down his wife entered a women's refuge. ER asserted that she did so only as a ploy to obtain a flat from the local authority.
14. On 10 July 2014 S, with the permission of the mother, went on holiday to Canada with his paternal grandmother, VT, as he had been doing since 2012. TH later joined S in Canada. The mother was fully aware that he would be doing so. The mother took S to Heathrow airport on 10 July 2014 to see him off. TH was present. On the same day, the mother delivered N to his father with a view to N spending three to four weeks with BC.
15. On 31 July 2014, and whilst S was still on holiday in Canada, the mother collected N from BC and left Glasgow with N and went to England where she moved in with ER. Prior to his return to the United Kingdom the mother requested TH allow her contact between 9 August and his commencing school in Scotland on 11 August 2014. By 7 August 2014 TH was growing concerned about the mother's behaviour. TH made contact with his Scottish lawyer for initial advice. However, on 7 August 2014 the mother assured TH she would return S to Scotland in time for the start of school and he agreed to contact taking place.
16. On 9 August 2014 the mother collected S at Heathrow Airport, telling TH that she would return S to TH's care in Scotland in time for the commencement of the school term. Both TH and BC fully anticipated the return to Scotland of their respective sons. I am satisfied that this was also the expectation of N and S and of their respective schools. In oral evidence VT, S's paternal grandmother, said this of S's handover to his mother:
"We had told him that he would be back on Monday to go to school. He was happy and had just had a holiday with me and his father that was lovely. He waved to us and walked away with his mother confident that we had told him the truth."
17. The mother did not return S or N and instead remained in England with both children at the property of ER. The mother's account as to why she did so has varied significantly in the telling. In her statement supporting an injunction application dated 5 September 2014 she states "I was leaving for a new life". In her statement dated 28 January 2015 no reason is given. In her statement dated 13 April 2015 the mother asserts it was because she could no longer take TH's violence and threats and that it was "becoming apparent" that he had made threats to the children. In her statement dated 16 September 2015 the mother states it was because it was because TH was trying to engineer matters in respect of contact. TH commenced proceedings in Scotland to secure the return of S.
18. In the period immediately following 9 August 2014 the mother raised for the first time her allegations against TH of verbal and physical domestic abuse and of rape. In September, October and December 2014 N and S made for the first time allegations of physical and sexual abuse against TH.
19. The allegations made by the mother and each of the children are particularised in the Scott Schedule as follows:
i) That on 4 October 2013 TH raped the mother;
ii) That on 19 April 2014 TH raped the mother;
iii) That TH was at times physically violent towards the mother during the course of their relationship, beginning in 2007;
iv) That TH frequently spoke to the mother in a derogatory manner intended to humiliate her and was abusive and controlling;
v) That TH threatened to abduct S to Canada and that she would not see him again (the Scottish criminal indictment gives the timescale for this alleged conduct, the violence alleged at (iii) and the derogatory comments alleged at (iv) above as being from 1 May 2007 to 31 July 2014);
vi) That TH was physically abusive to N in that he (a) grabbed N at a garage and punched him on his face and head; (b) Put his arms around his neck and choked him; (c) Submerged him underwater in the bath such that N thought he was trying to drown him; (d) Gave him a "Chinese" burn; and (e) Threatened to run him over in his BMW and Audi (the Scottish criminal indictment gives the timescale for this alleged conduct as being from 1 March 2011 to 31 July 2014);
vii) That TH behaved in a sexually abusive manner to N in that he: (a) Asked N "can I put my willy in your butt?"; (b) Lay on top of him from behind whilst N did not have his pyjamas on and TH had boxer shorts on such that TH's penis touched N's bottom at home and in a hotel following S's birth; (c) Tried to put his penis in N's mouth; and (d) Touched him to which N responded that he was a 'dirty old man' (the Scottish criminal indictment gives two periods over which this conduct is alleged to have occurred, being from 13 August 2009 to 30 November 2010 and from 1 March 2011 to 31 July 2014);
viii) That TH behaved in an emotionally abusive manner towards N in that he threatened to put him on the railway line / tracks or run him over if he told anyone, which scared him;
ix) That TH behaved in a sexually inappropriate manner towards S in that he: (a) Asked S whether he could put his willy / 'pot' up his bottom and told S it was a secret; (b) Stuck or attempted to stick his 'willy' in S's mouth (this allegation was made by N); and (c) Wiggled / played with S's penis whilst he sat on his lap (this allegation was made by N);
x) That TH behaved in a physically abusive manner towards S in that he: (a) Put his hands round his neck as if to choke him when he dropped food on the floor; (b) Hit his arm and punched his neck; (c) Gave him wine to drink;
xi) That TH took photographs of S and N naked;
xii) That TH made S watch 'rude movies' with a sexual content;
xiii) That N and S have been diagnosed as suffering from symptoms of post-traumatic stress disorder attributable to TH's behaviour towards the mother, S and N.
20. As I have already noted, on the basis of the evidence that emerged during the course of this hearing, TH now to seeks findings against the mother. The findings set out in Ms McKenna's closing submissions are extensive and wide ranging. They can however be resolved to the following key assertions:
i) That S and N were unlawfully removed from Scotland by their mother on 11 August 2014 and that the mother is in breach of orders made by the Sheriffs Court in Scotland on 12, 15 and 28 August 2014;
ii) That each of the allegations made by the mother and the children is false and did not in fact occur;
iii) As result of pressure brought to bear on them by their mother, and affirmed by the careless actions of certain identified professionals, N and S have each been coached and/ or goaded and/or overtly influenced by their mother into making and repeating false allegations against TH;
iv) That the mother has told lies to a series of professionals with the intention of preventing the return of S to the care of his father, protecting the mother from compliance with the lawful orders made by the Scottish court and securing the criminal conviction of TH;
v) That a number of identified professionals have acted in breach of their professional duty by failing to fully and accurately investigate the allegations made by the mother and the children;
vi) That, in consequence, the children have suffered significant emotional harm as a result of the care given to them by their mother;
vii) That TH and the paternal family of S have acted only with the best interests of S at heart in an attempt to secure the lawful return of S to Scotland in compliance with orders made by the Sheriffs court.
21. I am now required to determine whether the foregoing findings are established on the balance of probabilities on the evidence before the court.
22. In determining the issues before the court, I have considered and applied the following legal principles and statutory and non-statutory guidance.
Burden and standard of proof and evidence
23. The burden of proving a fact is on the party asserting that fact. To prove the fact asserted that fact must be established on the balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. As has been observed, "Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities" (Re B  UKHL 35 at ).
24. The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z  EWHC 31 (Fam)). Where the evidence of a child stands only as hearsay, the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (Re W (Children)(Abuse: Oral Evidence)  1 FLR 1485).
25. If a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure (R v Lucas  QB 720).
26. The court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities (Re T  2 FLR 838 at ).
27. There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B  UKHL 35 at ). However, failure to find a fact proved on the balance of probabilities does not equate without more to a finding that the allegation is false (Re M (Children)  EWCA Civ 388).
28. In principle the approach to fact finding in private family proceedings between parents should be the same as the approach in care proceedings. However, as Baroness Hale cautioned in Re B at :
"…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication."
29. Within this context, it has long been recognised that care must be taken not to focus attention on statements made by the child at the expense of other evidence, particularly where allegations of abuse arise in the context of private law disputes. The Best Practice Guidance of June 1997 Handbook of Best Practice in Children Act Cases Section 4, Annex para (k) cautions that:
"Any investigation which focuses attention on the statements of the child runs the risk of producing a false result if what the child says is unreliable or if the child's primary care taker is unreliable, particularly where the allegation emerges in bitterly contested section 8 proceedings."
Allegations of sexual abuse
30. In accordance with the foregoing general principles, when assessing whether or not allegations of sexual abuse are proved to the requisite standard, the court should focus on all of the relevant evidence in the case, including that from the alleged perpetrator and family members (see Re I-A (Allegations of Sexual Abuse)  2 FLR 837).
31. The court should adopt a two stage process. First, is there evidence of sexual abuse? If so, is there evidence of the identity of the perpetrator (Re H (Minors); Re K (Minors)(Child Abuse: Evidence)  2 FLR 313 and Re H and R (Child Sexual Abuse: Standard of Proof)  1 FLR 643).
32. The Report of the Inquiry into Child Abuse in Cleveland 1987 (hereafter the Cleveland Report) contains a plethora of salient and important guidance with respect to cases involving allegations of sexual abuse. I set out some of that guidance below.
Relevant Statutory Guidance and Non-Statutory Guidance
33. I have in this case heard extensive evidence from those professionals to whom the children made allegations and from those professionals who subsequently assessed the children and/or investigated those allegations (I pause to note that despite the fact that the use of the term "disclosure" to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children's Guardian) used the term "disclosure" to describe what the children had said to them).
34. In light of the criticisms that I make in this judgment of the conduct of some of the professionals involved with the children it is important to note the following matters set out in the statutory guidance and non-statutory guidance and, in addition, to note the following further guidance set out in the Cleveland Report.
(i) Initial Contact with a Child alleging Abuse
35. Where a child makes an allegation of abuse to a professional, the relevant guidance for professionals to whom allegations of abuse are reported makes clear the following principles with respect to the initial contact with the child.
36. In the departmental advice What to do if you're worried a child is being abused (HM Government, March 2015) (replacing previous guidance published in 2006) states that before referring to children's services or the Police an attempt should be made to establish the basic facts. Within this context, the following is said at :
"The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information"
And at :
"If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe."
37. The statutory guidance Achieving Best Evidence in Criminal Proceedings (March 2011) (hereafter the ABE Guidelines) makes clear at [2.4] that the need to consider a video recorded interview in respect of the allegations may not be immediately apparent to professionals involved prior to the police being informed. Within this context the ABE Guidelines state at [2.5] that:
"Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present."
38. The ABE Guidance goes on to state at [2.6] under the heading 'Initial Contact with Victims and Witnesses' that a person engaged in early discussion with an alleged victim or witness should, as far as possible, (a) listen, (b) not stop a free recall of events and (c) where it is necessary to ask questions, ask open-ended or specific closed questions rather than forced-choice, leading or multiple questions and ask no more questions than are necessary to take immediate action.
39. Within this context, having examined the ABE guidance, in Re S (A Child)  EWCA Civ 1254 at  the Court of Appeal held that, with respect to initial contact with alleged victims, discussions about the facts in issue in respect of an allegation as distinct from whether and what allegation is being made and against whom, should be rare and should not be a standard practice.
40. Again within the foregoing context, when social workers are speaking to children who have made allegations they must be very careful to consider the purpose of the exchange and whether it is being conducted with a view to taking proceedings to protect the child or for separate therapeutic purposes where the restrictions upon prompting would not apply but the interview would not be for the purposes of court proceedings (Re D (Child Abuse: Interviews)  2 FLR 10).
(ii) Proper Recording
41. The requirement that all professionals responsible for child protection make a clear and comprehensive record of what the child says as soon as possible after it has been said and in the terms used by the child has been well established good practice for many years. The Cleveland Report makes clear at paragraph 13.11 that: "We would emphasise the importance of listening carefully to the initial presentation of information and taking careful notes".
42. The ABE Guidance re-emphasises this statement of good practice under the heading 'Initial Contact with Victims and Witnesses' by making clear that the person speaking with the alleged victim or witness should (a) make a comprehensive note of the discussion, taking care to record the timing, setting and people present as well as what was said by the witness and anybody else present (particularly the actual questions asked of the witness), (b) make a note of the demeanour of the witness and anything else that might be relevant to any subsequent formal interview or the wider investigation and (c) fully record any comments made by the witness or events that might be relevant to the legal process up to the time of the interview.
43. In the context of schools, the departmental advice entitled What to do if you're worried a child is being abused (HM Government, March 2015) makes clear at  that professionals should record in writing all concerns and discussions about a child's welfare, the decisions made and the reasons for those decisions". The statutory Guidance Keeping Children Safe in Education (HM Government, July 2015) makes clear at  that poor practice in relation to safeguarding children includes poor record keeping.
44. The need for professionals working with children to record, as contemporaneously as possible, what the child has said has been recognised and endorsed by the courts as vital in circumstances where, in determining allegations of sexual abuse, it is necessary for the court to examine in detail and with particular care what the child has said (sometimes on a number of different occasions) and the circumstances in which they said it (D v B and Others (Flawed Sexual Abuse Enquiry)  1 FLR 1295). Within this context, it will also be important that, when recording an allegation, the child's own words are used and that those speaking with the child should avoid summarising the account in the interests of neatness or comprehensibility or recording their interpretation of the account.
(iii) Social Work Assessment
45. Following the allegations being made in this case assessments were carried out by the London Borough of Hackney, including an investigation pursuant to s 47 of the Children Act 1989. The London Borough of Westminster and the local authority in whose area the mother and children now reside have also been involved with the children.
46. The Cleveland Report provides extensive guidance on proper social work practice in the context of allegations of sexual abuse. The salient points are as follows (emphasis added):
i) Whatever the nature of presentation, whether the response is immediate, prompt or deferred, the response should be planned and conducted with professional skill. Children's best interests are rarely served by precipitate action. Initial action in securing the widest possible information about the child's circumstances and family background is an essential pre-requisite to careful judgment and purposeful intervention" (para 13.9);
ii) It is necessary to assess the family by looking at the parents individually, the parents' relationship, the vulnerability of the child, the child's situation in the family, the family's social situation, their contacts with extended family etc. as well as considering and recording the family's perspective of events which set the referral in motion (para 13.13);
iii) The principle aim of the social worker's contact with the family at this stage should be to compile a social history, obtaining as comprehensive a picture of relationships and pattern of family life as possible. The quality of the marital relationship and parental skills should be carefully assessed (para 13.19);
iv) Social workers should seek a broadly based assessment of the child. An outline of the child's social development together with information about the important relationships in the child's life is vital information. Where a child is attending playgroup, childminders or school it will be helpful to record the views of those responsible for the child's day to day care (para 13.23);
v) Intervention should proceed as part of a planned and co-ordinated activity between agencies. Children and families should not be subject to multiple examinations and interviews simply because agencies and their staff have failed to plan their work together (para 13.10);
vi) The social worker will need to establish a clear understanding with the Police about how their respective roles are to be co-ordinated (para 13.12);
vii) Throughout the phase of the initial assessment and preliminary decision making, social workers should be conscious of the fact that the presumption that abuse has taken place can have damaging repercussions for the child and the family. Equally, an abnormally low level of alertness to the possibility of child sexual abuse may deter children from subsequently trusting adults sufficiently to reveal the fact of abuse to them (para 13.22).
47. Within this context, and echoing this approach, the statutory guidance Working Together to Safeguard Children (HM Government March 2015) reiterates at  the principles and parameters of good assessment. These principles and parameters include the need for such assessments to be rooted in child development and informed by evidence, to involve children and families, to adopt an integrated approach, to be a continuing process and not an event and to be transparent and open to challenge. The three domains of the assessment specified at  should be the child's developmental needs, the parents' or carers' capacity to respond to those needs and the impact and influence of wider family, community and environmental circumstances. At  the guidance makes clear that the interaction of these domains requires careful investigation during the assessment and that it is important that (a) information is gathered and recorded systematically, (b) information is checked and discussed with the child and their parents/carers where appropriate, (c) differences in views about information are recorded and (d) the impact of what is happening to the child is clearly identified.
Police Interviews of Children
48. Police interviews with children should be conducted in accordance with the ABE Guidelines to which I have already referred. In this case N was interviewed by both English and Scottish police officers and S was interviewed by Scottish officers. In Scotland the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland (The Scottish Government 2011) takes the place of the ABE Guidelines.
49. Whilst DC Glendenning stated that there is no longer a requirement in Scotland to establish in an interview whether a child understands the difference between truth and lies, it would appear that her understanding is not entirely accurate. The Scottish Guidance makes clear that, whilst the Vulnerable Witnesses (Scotland) Act 2004 abolished the competence test in respect of all witnesses, the Vulnerable Witnesses Guidance Pack (Scottish Executive 2006) states in chapter 11 that "the court will still have to make a judgment of the witness's truthfulness and reliability, therefore any interview should still clarify, in age appropriate ways, the witnesses level of understanding".
50. The courts have further endorsed a number of the general principles set out in the ABE Guidelines. It is desirable that interviews with young children should be conducted as soon as possible after any allegations are made (Re M (Minors)(Sexual Abuse: Evidence)  1 FLR 822). Where a child has been interviewed on a number of occasions the court may attach diminishing weight to what is said in the later interviews (Re D (Child Abuse: Interviews)  2 FLR 10). The court will wish to see responses from the child which are neither forced nor led (Re X (A Minor)(Child Abuse: Evidence)  1 FLR 30). It is normally undesirable for a parent to be present during an interview with the child (Re N (Child Abuse: Evidence) 1996 2 FLR 214 and see the Cleveland Report para 12.35). In Re S (A Child)  EWCA Civ 1254 Ryder LJ confirmed that the guidance set out in the Cleveland Report at paragraph 12.34 with respect to interviewing children remain good practice.
51. It is of note that guidance from the Children Act Advisory Committee concerning the Memorandum of Good Practice which preceded the ABE Guidelines, made clear that:
"Any joint child abuse interview conducted by police and social services must follow the memorandum of good practice. Otherwise, not only is the resulting interview of no forensic value, but it may impede or contaminate any further assessment of the child ordered by the court."
52. Where there has, as in this case, been a failure to follow the interviewing guidelines, the court is not compelled to disregard altogether the evidence obtained in interview but may rely on it together with other independent material to form a conclusion (Re B (Allegations of Sexual Abuse: Child's Evidence)  2 FLR 1071). However, where the court finds that no evidential weight can be attached to the interviews the court may only come to a conclusion that relies on the content of those interviews where it has comprehensively reviewed all of the other evidence (TW v A City Council  1 FLR 1597).
The Wider Background
53. Before dealing with each of the specific allegations in detail it is important, having regard to the guidance set out in the Cleveland Report and in Working Together 2015, to examine the broad canvas of available relevant evidence concerning the children's family background, relationships, pattern of family life, social development and involvement with other agencies prior to the point at which the allegations began being made in August 2014. This is something that both DC Glendenning of Police Scotland, and Ms Salamant of the London Borough of Hackney concede they did not do as part of their respective investigations.
54. The mother led a relatively peripatetic existence over the course of the period in question, characterised by difficult inter-personal relationships. The court heard evidence that the mother has lived at twelve different addresses over 7 years with twelve different jobs, that her relationships with her maternal aunt and uncle and own mother have collapsed and that she had difficult relationships with friends, neighbours and co-workers. This evidence was not seriously challenged by the mother. The mother has had no support from any members of her family during the course of these proceedings and has called no witnesses to that which she now alleges took place during this period.
55. The mother's first relationship was with a man called D in 2002 or 2003. The mother told the court that, ultimately, she had to seek a non-molestation injunction against D as a result of his having mental health issues and taking their separation badly. The mother also involved the Police to prevent D from harassing her. The mother conceded that these measures had been effective in protecting her from D.
56. The mother's next relationship was with BC. On 28 June 2007 the mother obtained a without notice non-molestation injunction and a prohibited steps order against BC, alleging physical and verbal abuse of herself and neglect of N. BC accepts that there were difficulties in his relationship with the mother but contends that the mother has significantly exaggerated the true position. Once again, the mother conceded in evidence that the injunction she sought had been effective in protecting her and N.
57. As a result of the mother's allegations, BC was not permitted contact with N for a period of six months. In cross examination by Ms McKenna the mother accepted that the difficulties in her relationship with BC were not sufficient to justify her preventing contact between N and his father in the way that she did for that length of time.
58. Prior to the date given for the end of her relationship with BC in 2007, there are two examples of the mother making statements to professionals regarding BC and N's extended paternal family, which statements are, as the mother now concedes, demonstrably untrue and which foreshadow a concerning aspect of this case.
59. First, N's GP records show that on 19 June 2006 the mother told the general practitioner that BC had bi-polar disorder and made this claim in the injunction proceedings. This was not, as the now mother admits, the case. Second, on 21 June 2006 the mother told a general practitioner that N's paternal grandparents were planning to abduct him to France. In evidence the mother admitted that she had fabricated this serious allegation when speaking to the general practitioner. The mother accepted that what she told the general practitioner was, in fact, not true and claimed that she "overreacted".
60. TH grew up in the care of his parents until his father passed away and then in the care of his mother and his stepfather. The maternal grandmother stated that the family had never been involved with social services and that TH had not had any difficulties at school to speak of. TH has a conviction for drink driving in 2000 and a caution for an assault in 2005 following an altercation outside a nightclub. During his interview by Police Scotland TH accepted that during the course of a friendship with a woman called ND he had acted in a threatening manner to her. He conceded several times during his interview that he was "not very nice to her" and that he had, on one occasion in 2008, leant over her during an argument, that he had frightened her and she had felt threatened. In interview TH stated that this was the only time in his life he had acted this way. Ms Krish says on behalf of the mother that these concessions show an unpleasant side to TH's character.
61. By contrast to D and BC, and notwithstanding the allegations she now levels against him, the mother did not seek injunctive relief against TH during the course of her relationship with him or during the period between her separation from TH and her first raising allegations against him in August 2014. Indeed, the mother only sought an injunction against TH after she had left Scotland and moved to southern England. In cross examination the mother said that, notwithstanding the course of action she took in respect of D and BC and her acceptance that this had been effective in protecting her and N, that it "never occurred to me" to seek an injunction against TH prior to her leaving Scotland.
62. I have had sight of records from N's school and a letter from S's nursery. N attended a primary school for nearly four years between 2010 and July 2014. The school records depict a happy, well liked child who, whilst at times lacking focus, achieved good reports. In particular, I note that a report from N's Out of School Care club, not disputed by the mother, recorded as follows in 2014:
"…any time [BC], gran or [TH] collected N, he was always happy and willing to leave with them. I myself found the three parents/Guardians mentioned to be pleasant to N, affectionate towards him and interested in his day. N has told us great stories about places he has gone and things he has done with [BC], Gran and [TH] that made him really happy."
63. S attended nursery for three years for fifty hours per week between August 2011 and June 2014. The nursery principal and deputy principal have provided unchallenged evidence that the nursery considered S to be residing with his father that S was clean and well presented, that he had very good relationships with all members of staff and was popular with his peers. They make clear that they never had any concerns regarding S's presentation and care. DC Glendenning confirmed in her oral evidence that the nursery told her that there had been no concerns with respect to S, that they had not seen a great deal of the mother but that TH or the paternal grandmother would collect S. The nursery further confirmed that S was happy when he was collected by his father or paternal grandmother and that the nursery had no concerns in respect of a child they considered to be thriving.
64. The information from each of the children's educational establishments discloses no welfare concerns. In respect of both N and S, the mother conceded in evidence that the nursery and school never raised any concerns regarding the children's home environment. I pause to note that, in circumstances where the mother led professionals to believe that making contact with the children's nursery and school would risk her and the children being found by TH, who, she told professionals at various points, was rich and well connected, linked to drug dealers, had access to firearms and may kill the children (none of which assertions were evidenced or, I am satisfied, true), no professional involved with the children in England ever sought or obtained the education records for the children to which I have referred.
65. I have also heard evidence from members of the children's wider family concerning the children's presentation at home prior to August 2014.
66. S's paternal grandmother told me that she was very close to her grandson and noted no concerns with respect to him. She confirmed that S had never said anything to her that caused her worry or concern. NH, TH's brother, likewise expressed no concerns regarding S during the times he had seen him nor any concerns with respect to the care given to S by his father. After the conclusion of the evidence but prior to submissions those representing TH received a letter from NH stating his wish to "withdraw his evidence". It appeared that NH (who is employed in a profession which requires dispassionate and highly technical risk analysis) was worried he had not adopted a perspective sufficiently forensically detached from his loyalty to his family when giving evidence. In his letter NH however reiterated that he had never seen TH harm S or any evidence that he had harmed him.
67. I have of course had regard to the fact that members of TH's family, in indicating that they had no concerns in respect of S or TH's care of him, will feel a degree of loyalty to TH. This, I am satisfied, was caution that led to the correspondence from NH. Within this context, I note when giving her evidence the mother herself confirmed that, as far as she was aware, the children never said anything to members of their extended family indicating concern regarding TH.
68. I further note that the mother gave permission to TH to take S out of the jurisdiction to Canada in 2012, 2013 and 2014, knowing that TH would have care of S during part of these holidays and notwithstanding her assertion that TH regularly threatened to abduct S to Canada. The mother contends that she was pressured by TH into sending S. This is denied by TH. In this context I have been shown a photograph of mother and S, both smiling and seemingly very relaxed, taken by TH at Heathrow airport immediately prior to S's departure to Canada in 2014. The photo appears incongruous with allegation that mother was on that day unhappily acquiescing to pressure from TH, although some caution must be exercised in attaching weight to a moment caught in a still photograph.
69. BC confirmed that he had no major concerns regarding N's presentation prior to him last seeing him in July 2014. He also stated that N had never made any complaint about TH, save that TH would on occasion "moan" at his mother. This evidence was not challenged. The mother in her evidence conceded that N was very close to his father, had contact with him on a regular basis and that, as far as she was aware, N never said anything to BC by way complaint against TH or his home life with TH. N's paternal grandmother, LC was clear that she had no real concerns in respect of N save on one occasion prior to June 2014 when he had a red mark on his arm which he said resulted from his mother giving him a "Chinese" burn. When challenged in cross examination, LC was certain that N did not say this was caused by TH but rather by his mother. TH said in evidence that his relationship with N was fine the last time he saw him in July 2014 and N had asked him to buy him a game in Canada.
70. I have set out above that BC confirmed that he had no major concerns regarding N's presentation. BC did however describe N as having what he termed "hissy fits". BC stated that these would occur if N did not get his own way, if he was fighting with S or if his mother was teasing him. With respect to the latter issue, BC stated that, in his view, the mother had a difficult relationship with N from approximately the age of 3 or 4 and would, on occasion, taunt N by threatening to buy him pink shoes and would mock up photos of him as a ballerina. Both BC and TH gave evidence that the mother would tend to wind N up and would often make matters worse rather than better in terms of his behaviour. Within this context I again recall the evidence of LC that N stated clearly to her that his mother had given him a "Chinese" burn.
71. I am of course, once again, conscious that the evidence of the fathers as to the mother's parenting is given within the context of the respective cases they seek to advance. However, the documentary evidence before the court, and the evidence I have heard from professionals from CAMHS who have worked with N, tends, in my judgment, to corroborate the fathers' evidence of the nature of the mother's relationship with, and her treatment of N. In her Police interview the mother suggested that N's behaviour pre-dated her relationship with TH, she stating in respect of N "he's not the easiest of children but they seemed to get along pretty well at the time we moved in together".
72. Within the bundle there are a series of pictures of N from the mother's phone. Some of those photos, if one adopts a generous interpretation, might be considered "fun", including a photo of N that has been altered using an App that makes a person's face look fat and photos of him to which an App has been used to apply braces. However, other photos are clearly humiliating of N, including photographs taken by the mother of N on the toilet in February 2012 in which he looks plainly embarrassed and uncomfortable. The mother also took photographs of the children naked in the bath in March 2012 (she now alleging that it was TH who took naked photos of the children). There is also a photograph of N mocked up to place him in a pink dress. Through Ms Krish, the Mother sought to claim that some of these pictures were selfies taken by N but the position of N's arms shows this not to be the case.
73. Within the foregoing context, it is of note that when giving evidence Dr Ramirez of CAMHS stated that she observed a heated relationship between N and his mother and took the view that there was a problem in the relationship that was eliciting N's difficult behaviour. Dr Ramirez was clear that the account she had been given of N threatening to jump in front of a tube train included N first saying to his mother "I hate you".
74. Further, Dr Ramirez confirmed that the list of N's concerning behaviours (irritability, anger outbursts, hyper-alertness, flash back of traumatic memories, auditory hallucinations related to traumatic events and risk behaviour) was provided solely by the mother. When N confirmed these behaviours it was always in the presence of his mother. Dr Ramirez made clear that the concerning behaviour described by the mother was not seen by social workers, was not seen in school and was not seen by the CAMHs team. She confirmed that the information provided by the mother and social services (which itself came from the mother) was the main consideration in the children's diagnosis of PTSD. Within this context, I note that the evidence before the court reveals a number of instances over an extended period of time of the mother seeking a diagnosis of autism or ADHD for N and S.
75. Within the context of the exploration of the evidence relating to N's behaviour, TH revealed that he would, on occasion, seek to deal with that behaviour by physically restraining N. During his oral evidence TH conceded that he would, on occasion, physically restrain N when N's behaviour became unmanageable by "pushing him back into his seat in the car" and, possibly, by holding him by his shoulders or otherwise holding him. Within this context, TH conceded that N may well have perceived him as an authoritarian figure who on occasion used physical means to manage N's behaviour. TH mentioned none of these matters in his statements to this court or to the Police.
76. Finally with respect to the wider evidential background to this matter, prior to August 2014 there were no contemporaneous complaints made to the Police or other agencies of domestic or sexual abuse in the household by the mother or either of the boys. There is no medical evidence before the court in relation to the mother's allegations of rape or domestic abuse nor the children's allegations of physical or sexual abuse.
77. Within the foregoing context, in her closing submissions on behalf of the mother, Ms Krish concedes that the evidence before the court in support of the allegations made by the mother and the children is comprised solely of the accounts given by the mother and by the children as follows:
i) The allegations made by the mother to Women's Aid on 11 August 2014, to the Police on 4 September 2014 and to the Family Court on 5 September 2014;
ii) The statements allegedly made by the children to the mother on or around 4 September and 11 September 2014;
iii) The statements of the children to DC Bishop and Ms Salamant on 12 September 2014;
iv) The statements made by N in his ABE interview on 19 September 2014;
v) The statements allegedly made by N to his mother on 3 October 2014
vi) The statements made by the children to Dr Haji on 8 October 2014;
vii) The statements made by N to DC Hackworthy on 29 October 2014;
viii) The statements of N to Ms Lot and Ms Duggan at N's school in September and October 2014;
ix) The statements made by N to Ms Ille on 8 December 2014;
x) The statements of the children to Ms Khanom on 15 December 2014 and the drawings completed by N at this time;
xi) The statements made by each of the children in their respective joint investigative interviews by Police Scotland on 5 March 2015; and
xii) The statements made by N in his joint investigative interview by Police Scotland on 6 June 2015.
78. Ms Krish further concedes, as she must, that this list highlights a troubling feature of this case. Namely, that between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS that I will detail later in this judgment, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other and their mother, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N. Five different police officers were involved with interviewing the boys.
79. Within this context, I turn now to examine the evidence listed at Paragraph 77. As Ms McKenna has skilfully demonstrated during the course of this hearing, when examining the forensic detail of what the mother and the children have said, it is very important to have regard to the context in which the allegations emerged after 9 August 2014 and the actions taken (or not taken) by the various agencies who responded following those allegations being made. In the circumstances, I must deal with this aspect of the evidence in some detail.
The Mother's Allegations against TH
80. The mother contends that she first made allegations against TH to her new partner, ER. The 'Initial Account from Victim' form completed by the Essex Police on 13 August 2014 records the mother as stating she had informed ER on 7 August 2014. In his statement ER says the mother told him on 8 August 2014 that TH had raped her, stating that the mother had told him that she would sleep in N's bed but that TH would keep coming in during the night, that she would say no but that TH would get on top of her and do it anyway.
81. The mother first raised allegations against TH to a professional on 11 August 2015 at 2.04pm. The note of that conversation records the mother as saying that TH coerced to stay at his house and that he forced to have sex on "a few occasions". No mention appears to have been made of domestic abuse. TH asserts that, by reason of a link between his phone and N's iPad, the mother would have seen texts he sent to his Scottish lawyer at 10.21pm on 11 August 2015 setting out his desire to commence proceedings, and that this is what triggered the mother's allegations to Women's Aid at 2.04pm. This was denied by the mother.
82. On 13 August 2014, the day after TH obtained residence and collection orders in Scotland and on the day those orders were served by a process server on the mother's mother, CS, the mother made allegations to the Police. The mother denied in evidence that she went to the Police as a result of learning that court papers from Scotland had been served at her mother's address on that day.
83. The mother told Police on 4 September 2014 that she had attended the Police Station because she had been telephoned by the Police in Scotland and told to take S to the local Police station. The mother also appears to have told BC on 13 August 2014 that TH had raped her. BC made clear in evidence that he did not believe the mother's allegation having regard to his own experience with respect to the false allegations he contends the mother had made against him.
84. The mother's allegations to the Police were recorded in a number of documents. At 6.53pm, at the front office of the local Police Station, the mother is recorded as reporting that TH had raped her "at least four times", the last time being in March 2014 and the previous occasion being in October 2013. She also alleged that TH was manipulative, controlling and would threaten to take S away from her. With respect to physical abuse, the mother alleged that TH had pushed her in the car when S dropped some crisps and that he had "previously assaulted her".
85. In a Domestic Violence Incident Report form completed by the Police the mother is recorded as telling Police Officers that on 4 October 2013, after TH had pestered her for sex for several hours she said "ok then" but at the point sex occurred she said "I don't want to, no, no, no" but he persisted. The mother further alleged that in March of April 2014 and after TH had again pestered her for sex, she awoke at 2.00am to find TH pulling the cover off her and getting on top of her. The mother said she did not struggle or actively resist but was crying. A document completed by the Police at 11.13pm on 13 August 2014 records the mother stating that on this occasion she had woken up to find TH having sex with her against her wishes. At this point the number of rapes alleged by the mother was two and there is no mention of physical or other domestic abuse.
86. The Police also completed an 'Initial Account from Victim' form on 13 August 2014. That form makes clear that the victims own words should be used when it is compiled. The form records that mother told the police that she and TH were having consensual sex up until August 2013. The mother repeats her account of the incident in October 2013 in the terms of the Domestic Violence Incident Report form, stating in addition that she just went along with the sex once it was happening and was crying. She stated that the incident occurred on 4 October 2013 or the early hours of 5 October 2013.
87. With respect to the second incident the 'Initial Account from Victim' form records that the mother told the Police that she sent some pictures to TH of her in her "underwear" prior to that incident. I have had sight of the pictures the mother sent to TH, which pictures depict the mother dressed in lingerie and adopting intimate poses. The mother dates the sending of these pictures to around March 2014. In her oral evidence the mother conceded that the photos were sent by her to TH. She insisted that he asked for them and that she did not intend them to invite intimacy. In the 'Initial Account from Victim' form the mother is recorded as stating that TH pestered her for sex and then, between 2am and 3am came into the room and pulled the covers off her and lay on top of her. The mother states she said she did not want to have sex but just gave in. She states she was crying during the intercourse. The 'Initial Account from Victim' form account contains no account of further incidents nor any account of physical abuse or other domestic abuse.
88. At the conclusion of the 'Initial Account from Victim' form the Police Officer has recorded the following exchange with the mother:
"Question: Why have you reported this now?
Answer: I have finally moved away from him, I feel now is the right time. He is trying to report me for kidnapping my own child."
Within this context, police officer taking the account has noted on the 'Initial Account from Victim' form that the mother's report was prompted by a child custody dispute.
89. On 3 September 2014 the mother demanded that the Police ABE interview her that evening. It is clear from the records of Police that the mother's insistence on being interviewed on that night was tied to her learning that that day TH may have ascertained her whereabouts following the granting to him of a disclosure order by the Scottish court on 28 August 2014. In evidence the mother conceded that she rang the Police to request an ABE interview on being served with the Scottish court papers but denied that this was an attempt to get fabricated allegations on the record as a means of avoiding compliance with the orders of the Scottish court.
90. The Mother was interviewed on 4 September 2014. During this interview (in which the mother made no reference to the ongoing proceedings in respect of the children in Scotland) the mother made very general allegations of domestic abuse, stating that there had been "a little bit of pushin' and shoving but not that much, just a little bit" in the relationship and that she had on one occasion been pushed to the ground. She also made general allegations that TH shouted unpleasant things at her, that he would throw his food at the wall, that he had pushed her in the car when S spilt some crisps and that he was controlling of her and threatened to take S to Canada. Save for the latter, the mother was not able to describe particular instances of domestic abuse over this period. When pressed to do so by Police officers she repeatedly resorted to stating that "I've blocked out almost everything" or "I am just trying to remember, I've blocked so much stuff out".
91. With respect to the first alleged rape in October 2013, in interview the mother said she had got into TH's bed and that "he come through and got on top of me and I asked him to stop and he wouldn't but in the end I just gave in". The mother said this occurred on evening of 4 October 2013 or early hours of 5 October 2013. She stated that she had unzipped her "onesie" and then said "no I don't want it". She changed her account in this respect later in the interview when Police revisited this issue, stating that TH had tugged at her top and that "I don't think he could do it so I just did it". In her oral evidence this account changed again, the mother stating that TH unzipped the onesie half way until the zip got stuck and that "I unzipped the rest of it". In contrast to her account to Police in interview on 13 August 2014 the mother made no mention of, TH pestering her for sex for several hours.
92. In interview the mother also described events leading up to the alleged incident, stating that the family had been out on that evening to celebrate her birthday but that TH had acted in an abusive manner towards her and she had had a horrible night.
93. Within this context I have had sight of photographs, some timed at 2015hrs on that evening, showing selfies of the mother with N and looking happy and relaxed, as do TH and the children in other photographs. The mother further alleged to Police that "I had a horrible night, he didn't even cut ma birthday cake or anything that ended up in the bin" and "Hadn't event cut the cake nothing it was just horrible". However, once again, in the bundle of documents before me are photographs taken at 2115 on the evening of 4 October 2013 on the mother's phone which show clearly TH and the children eating the birthday cake. In addition, there are a number of 'selfies' the mother took on the morning of 5 October 2013 between 1041 and 1121 which show the mother with meticulously applied make up and striking playful and coy poses. Again, whilst caution must be exercised in attaching weight to a moment caught in a still photograph and when considering how a victim of sexual assault may react to an assault, these photos appear incongruous against an allegation that mother had only hours before been raped by TH. In any event, the photos showing TH and the children eating the birthday cake demonstrate that the mother lied to the Police with respect to some of the circumstances surrounding the alleged rape.
94. With respect to the second alleged rape in April 2014, the mother told officers in interview that the father had pestered her for sex every fifteen minutes after she went to bed at 9pm, would not let her get to sleep and had eventually come into the room and got under the covers. He had tried to touch her and stroke her, had taken her jeans off after asking her to unzip them and had sex with her. This account differs substantially from the accounts given to the Police on 13 August 2014 when the mother stated she awoke at 2.00am to find TH pulling the cover off her and getting on top of her and, in a separate record on 13 August 2014 that she had woken to find TH having sex with her against her will. The mother did not tell the Police on 4 September 2014 about the pictures she had sent to TH in March 2014 depicting the mother dressed in lingerie and adopting intimate poses.
95. On 5 September 2014, the day after she had been interviewed by Police the mother made an application for a non-molestation order. In her statement in support, the mother alleged that TH pushed her to the floor when S "was a few weeks old", alleged that there was "bickering and arguing" in March 2011, that TH was unkind about her appearance in January 2013 and that he had threatened to remove S to Canada. The mother also alleged that TH pushed her when in the car, grabbed a packet of crisps from S and tipped them onto the floor and demanded money in May or June 2014. The mother repeated her allegations of rape, stating that in October 2013 she did not want to have sex but TH was persistent and she eventually gave into him and that in April 2014 she again acquiesced to sex because TH said he would keep coming back every 10 to 15 minutes. The mother's statement is completely silent as to the existence of ongoing proceedings in Scotland. She did not inform the English court that there was an order for S's return to that jurisdiction.
96. The mother also dealt with the allegations of rape in a statement to the Scottish Police dated 29 January 2015. In that statement the mother makes no allegations of domestic abuse. With respect to the alleged rape on 4 October 2013 the mother stated that she went to bed at 9 o'clock that it was TH who unzipped nightclothes but that, due to fear, she removed her nightclothes from her legs and that she did not object to sexual intercourse but was crying. Again, this is substantially different from her previous accounts. The same is true of the mother's account of the second alleged rape in April 2014. This time the mother states that she went to bed at 5.30pm fully clothed, that TH asked for sex every 10 minutes or so, that she said "go away, fuck off" but he came in, pulled the covers back, climbed on top of her and removed her trousers and pants. The mother states that she kept saying "no get off" but that "in the end I gave in". In this account the mother states her arms were pinned by her sides.
97. The mother's oral evidence also contained further inconsistences. In evidence the mother said that the last time she and TH had consensual sex was in early 2013. As will be recalled, the 'Initial Account from Victim' completed on 13 August 2014 records that mother told the police that she and TH were having consensual sex up until August 2013. When giving evidence about who unzipped her 'onesie' on 4 October 2014 the mother introduced a further feature to her account, stating that there was an "altercation" between TH undoing the zip halfway and the mother completing that process.
98. Finally in respect of the alleged rapes, I note that when interviewed by DC Glendenning on 5 March 2015 N stated that:
"I heard what happened to my mum twice on her birthday and Easter. On her birthday it was in TH's room and I was in my room and he was em shouting at my mum and my mum was crying and it woke me up so I placed my iPad. On Easter it happened in my room and I was on the sofa and my mum said get off, get off me."
99. Following her Police interview of 4 September 2014 the mother made further allegations to professional regarding TH, and BC, that appear nowhere in her exchanges with Police or professionals up to that date, appear nowhere in statements subsequently made by the mother in these and the criminal proceedings and which are entirely un-evidenced.
100. On 4 September 2014 the mother and the children moved to a refuge. The mother told the refuge that she had fled Scotland was 31 July 2014 and that she was fearful that she would be found by TH, who would harm her and the children. The documents associated with this period, which comprise the referral form to the refuge, a MARAC referral form and a CAADA-DASH risk assessment in respect of TH and BC, make clear that, within the context of her claiming that she was fearful she and the children would be found and harmed by TH, the mother made multiple allegations against TH and against Mr BC.
101. Within this context, the mother alleged that TH was associated with drug dealers, had Police contacts that would allow him to trace the mother, that he had mistreated animals and had threatened or attempted suicide. With respect to BC, the documents show that the mother alleged he had serious mental health problems and often could not care for N properly, that he had used weapons to hurt her, that he had mistreated animals, that he had threatened or attempted suicide. Disclosure from Hackney suggests that the mother alleged that Mr BC punched and kicked her on other occasions not previously raised, namely 21 November 2011 and 1 December 2011. There is no evidence to support these claims and the mother has not pursued them at this hearing. With respect to the proceedings in Scotland, the mother suggested to the refuge that the orders made by the Scottish court may be fake.
102. By 8 October 2015 the mother was stating that the father would collude with S's head teacher to locate her. By 3 December 2015 the mother had alleged that TH's family was very rich that and that he had access to firearms. In the statement in support of her application for wardship dated 28 January 2015 the mother asserted that there was a risk that the father would kill the children to stop them disclosing more information. Further, the mother stated that there were allegations that by various women that TH had raped them and that TH had come to Essex and tried to remove S from his school.
103. The transcript of the first hearing of 28 January 2015 shows that the mother corrected and/or withdrew the allegations concerning other rapes and TH's alleged attendance to remove S from school as "mistakes". The mother conceded in cross examination that there was no evidence to support any of the assertions set out in Paragraphs 101 and 102 above. She further conceded that the TH had never threatened to "kidnap" S, had never threatened her with a gun. As cross examination progressed the mother eventually sought refuge in a bare denial that she had ever said these things and contended that the recordings that demonstrated she had said them were a "mistake" on the part of the people recording what she had said. I am satisfied that each of the allegations made by the mother as set out in Paragraphs 101 and 102 above was untrue.
104. I am reinforced in this conclusion by the fact that during the period in which the mother claimed she needed to be at the refuge because she would be found by TH, who would harm her and the children, the mother was (a) spending time away from the refuge at ER's property notwithstanding that she was aware that TH knew the address of that property, having effected service of the Scottish orders there, (b) was using TH's car on which she repeatedly received parking tickets notwithstanding that she knew that those tickets would be sent to TH with photographs identifying where the car had been ticketed, and (c) had provided her bank details for the purposes of child support notwithstanding that those details would permit her whereabouts to be ascertained. There was therefore a substantial level of dissonance between the mother's stated fear of TH, grounded in the vivid but un-evidenced allegations she was making, and her actions. This dissonance appears to have been lost on professionals.
Allegations made by N and S
(i) Allegations made by N and S on or around 4 September 2014
105. Immediately after she was interviewed by the Police on 4 September 2014 the mother reported that the children had also begun alleging that they had been mistreated by TH. The only person to hear these alleged statements made was the mother.
106. As to any recording of what the children are said to have alleged on or around 4 September 2014, there is in the bundle a three page note prepared by the mother. I was not able to establish precisely when the note was made but it records, under the date 5 September 2014 that S had said that TH tried to choke him after an outing. Under the date 6 September 2014 the note records that N stated TH placed his hands around N's neck when he dropped some chips and around S's neck when he dropped some sausage, that S had said he wanted to live with mummy all of the time but "daddy would go mental and try to send mummy to jail and will kill you" (in her statement to the Scottish Police the mother alleges that at around this time S said "Daddy's going to kill you if you don't take me back"), that TH had hit both children on the back of the head hard for dropping dinner, that N heard TH shout at S, that TH tried to watch N in the bath and TH tried to stick N's head under water. The final page of the notes is undated and may relate to a later date as it deals with a list of allegations which, on the mother case, were not made by N until 11 September 2014.
107. A document provided by the London Borough of Hackney and dated 6 September 2014 records the mother's allegations in far less detail, stating only that S had stated that whilst he was living with his father he dropped a sausage on the floor and that TH grabbed him around the neck. The record from Hackney also records that the mother further alleged that N then stated that TH had done the same to him when he dropped some food, he attempting to hide in a cupboard but being dragged out by TH and held around the neck. The mother alleged that the boys stated these "attacks" had been taking place for about a year.
108. Ahead of the children making allegations on or around 4 September 2014 the mother confirmed in evidence that the children may have overheard her telling ER about TH assaulting a doorman (the act for which he received a caution in 2005). The mother and ER further conceded that the children had been present at a very unpleasant incident prior to September 2014 when they had witnessed ER's previous partner clinging to the bonnet of ER's car and screaming during a contact handover in respect of ER's own children, to which incident a number of police cars and officers attended and as a result of which the boys were extremely upset. The mother admitted that her response to receiving the Scottish papers on 3 September 2014 may have resulted in her "fear" affecting the children. Indeed, in her evidence the mother admitted that she had told N that he was not seeing his father because of "security", that she had told the children that "[TH] had hurt me" and that she had said that that she was "scared of [TH] coming to find us". These exchanges suggest strongly that the children were being spoken to by their mother in wholly inappropriate terms. Further evidence that I shall come to reinforces this conclusion.
109. Within the foregoing context, I note that the mother appeared to foreshadow the allegations made by the boys on 4 September 2014 in her Police interview of that date, just before those allegations were made by the children themselves. In her interview, which commenced at 10.56am on 4 September 2014 the mother stated to Police that "he'd shout at the kinds as well if dropped their dinner things like that". When challenged by Ms McKenna the mother dismissed as a coincidence the fact that the children made allegations in apparently very similar terms for the first time on the same day and only a matter of hours after her own interview.
(ii) Allegation made by N on 11 September 2015
110. On evening of 11 September 2014 the mother reported that N had said that he had been sexually abused by TH around Easter 2014. Once again, there is no detailed recording of what the mother reported N said.
111. As I have alluded to above, there is a brief note in the bundle prepared by the mother. That note records only that "N said he saw [TH] playing with S inappropriately at Easter", that there had been two choking incidents, one in respect of each of N and S, that TH had tried to drown N in the bath, that TH gave N "Chinese" burns, that TH pushed N out of the car at Breakfast Club and that "N said he heard [TH] during both incidents to myself I report re Oct 13 & Easter 14".
112. An entry in the records from Hackney recording the mother's allegations shows that she did not particularise the statements allegedly made by N with respect to the sexual abuse of S, the mother telling the social worker only that N had said that TH had played with S inappropriately and saying "you can imagine the rest" and that it was "gross".
113. The records I have recited do not set out in terms what N said was the nature of the inappropriate play and, indeed, suggest that this information was not relayed by the mother to professionals, she stating only that "you can imagine the rest" and that it was "gross". Ms H from the refuge confirms that no contemporaneous record was made of what the children are alleged to have said to their mother.
114. In the circumstances, there is no record of what the children actually said to the mother on 11 September 2014 and, accordingly, no record of the precise (or even the general) terms of the first allegation of sexual abuse. There is also no account of the circumstances in which the allegation(s) were made, save that the children appear to have been together in the car. Once again, the only person to hear these allegations made was the mother.
115. As with the allegations of physical abuse, in her interview of 4 September 2014 the mother also appeared to foreshadow allegations of sexual abuse by the children, saying of TH that "he'd want S to sleep next to him and he'd always want to have baths with S and things like that which I didn't think was normal" and that "he always wanted to come in when N was in the bath". Within this context, it is of note that, once the allegations of sexual abuse were made by the mother to professionals, the mother appears never to have referred again to this seemingly significant forensic detail in her statements, even when observing that the sexual abuse had only become apparent after the children moved to England. Indeed, in a statement filed in these proceedings the mother asserts firmly that, prior to their allegations, she "was unaware of what was happening to the boys".
116. On 11 September 2014 the mother had been informed by solicitors in Scotland that in circumstances where TH had orders from the Scottish court the police may have to disclose her address to TH. When challenged again by Ms McKenna the mother dismissed as a coincidence the fact that the day she says she first heard N allege sexual abuse of S was the same day she was advised that the orders of the Scottish court would further assist TH to ascertain S's whereabouts in England.
117. I have made reference above to the social worker, Ms Salamant. The refuge made a referral to Hackney Children's Services on 8 September 2014. Hackney commenced a s 47 investigation on 9 September 2015, which assessment was concluded on 23 October 2014. Ms Salamant was the allocated social worker. There were patent deficiencies in her assessment.
118. The assessment was completed solely based on information from the mother or information for which the mother was the only source and, latterly, on information gleaned from the children at a series of meetings and, in respect of N, an ABE interview. During her evidence Ms Salamant conceded that, in complete disregard of the principles of good practice that I have set out above, she at no point contacted either father of the children or any member of the children's extended maternal or paternal families and at no point contacted the children's previous schools or the health services previously engaged with the children. Ms Salamant further conceded that she did not speak to the mother's new partner, ER, nor sought to carry out police checks with respect to him (notwithstanding that the refuge expressed concern regarding this relationship) 2. Indeed, until told in the witness box Ms Salamant did not know his address or that he too had children.
119. Ms Salamant's omissions were grounded in an apparent unquestioning acceptance of the mother's claim that it was too dangerous to contact the fathers, the maternal and paternal extended families, the children's former schools and doctors or the local authorities from whose area they had moved for fear that TH would locate the family. Ms Salamant accepted without question the allegations made by the mother that that TH and BC had "colluded" to find the mother's address in England, that TH was linked to drug dealers, that "someone" may be sent to England to find the family, that TH was seeking to kidnap the children and that her own mother might accept money from TH to disclose the family's whereabouts. Ms Salamant made no efforts to investigate whether these matters that the mother claimed prevented a full assessment were, in fact, credible. As I have already set out above, each of the assertions by the mother were, it transpires, entirely un-evidenced and, I am satisfied, untrue.
120. Finally, and as a consequence perhaps of her one dimensional assessment, it was plain to me having heard her in the witness box that Ms Salamant had proceeded at all times on the basis that the allegations made by the mother and the children regarding domestic and sexual abuse were, without question, true. At no point did Ms Salamant interrogate this assumption.
121. In light of the findings I set out in the Schedule at the conclusion of this judgment, it is sobering to note that when she closed the case on 23 October 2014 Ms Salamant stated that the mother:
"…has taken all the necessary steps to ensure that N and S are safe from harm and has demonstrated a capacity to reflect on her experiences and provide the children with a sense of stability and safety during this uncertain time."
On behalf of the mother, Ms Krish concedes, very properly, that Ms Salamant's assessment, when viewed, as it must be, through the prism of the guidance set out in the Cleveland Report and Working Together to Safeguard Children 2015, was fundamentally flawed and lacked even the basic information upon which to base judgments regarding the welfare of the children or the credibility of their and their mother's allegations.
(iii) Allegations made by N at the pre-ABE Meeting on 12 September 2014
122. As a result of the mother's report of what N and S had said on 11 September 2014 the children were seen at the refuge by two Police Officers, DC Card and DC Bishop, and Ms Salamant. The account of DC Bishop and that of Ms Salamant as to what N said on this occasion are diametrically opposed. Neither DC Bishop nor Ms Salamant took contemporaneous, or near contemporaneous notes of their conversation with the children. S refused to speak despite encouragement from his mother in the presence of the two Police Officers and Ms Salamant.
123. Ms Salamant stated in evidence that upon arrival there was a brief discussion between the adults present in the presence of the children. Ms Salamant stated that this was a "general conversation" at which it was explained to the children that police officers present to ensure they were safe and well. Ms Salamant could not however recall the full conversation. DC Bishop said the mother was with the children for the whole of the introductory conversation during which DC Bishop was talking to the children. In contrast to Ms Salamant, DC Bishop estimated that that conversation lasted 15 to 20 minutes. No record of that conversation was made.
124. With respect to the allegations said to have been made by N, Ms Salamant could not recall what N had actually said nor the context in which he said it. After returning to the office and nearly three hours after the meeting had begun Ms Salamant made an entry in her records, namely that (a) TH had played with S's privates, (b) TH tried to drown me and gave me "Chinese" burns and (c) he witnessed TH hit his mother. Ms Salamant also recorded that "N made a disclosure stating that [the mother] is isolated and is not in touch with friend and family". She conceded that N would not have used the form of language in the record she completed and accepted that her recording was wholly inadequate. She further recalled that the mother had made the same allegations as those she ascribed to N and appeared, ultimately, to be uncertain as to whether that which is recorded in her record came from N or from the mother.
125. Within this context DC Bishop, having also participated in the conversation with N, recorded in her pocket book only that N "stated that his brother's dad had hurt him when he dropped food on the floor." DC Bishop readily conceded that her notes were very poor. DC Bishop was however very clear in her oral evidence that N made only one allegation. DC Bishop said that she did not hear N say anything about the matters recorded by Ms Salamant in the social work records. In my assessment, DC Bishop was a more reliable historian that Ms Salamant.
126. Within this context, on the same day he was seen by DC Card, DC Bishop and Ms Salamant N attended a CAMHS assessment by Dr Lewis. The assessment form completed on that visit on the basis of a history provided by the mother contains no reference to alleged sexual abuse, but only the alleged physical abuse. During his assessment by CAMHS on 12 September 2014 N told the assessor that he was "scared" at the moment and that he was scared that his mother will be put in prison and "they will win", they being BC and TH. Once again, there is a strong suggestion that the mother had been speaking to N in wholly inappropriate terms.
127. Finally, I also note during the CAMHS assessment on 12 September 2014 the mother is recorded as stating that her own mother was is in a care home with mental health problems that "we don't talk about". By contrast, on 22 December 2014 the mother is recorded as telling a general practitioner that her mother was in a warden controlled home and described her mother as having "hypochondria" although not formally diagnosed. The invoice of the process server who served the papers at the address of the mother's mother on 13 August 2014 confirms that the maternal grandmother lives in sheltered accommodation for the elderly.
(iv) ABE Interview of N on 19 September 2014
128. N was ABE interviewed by DC Bishop on 19 September 2014. S refused to be interviewed and DC Bishop was clear that he was, again, very reluctant to speak.
129. In the free narrative phase of the interview N alleged that TH would attack him and S if they dropped anything, intimating that TH had grabbed him around the throat when he dropped some chips, after which N said he had ran and hid in a cupboard. He said that S dropped some sausage on the floor and "got choked. N further stated that on his mother's birthday TH was hurting his mother. N then stated (consistent with what DC Bishop and Dr Lewis had understood on 12 September 2014) that "And that's all". When DC Bishop began exploring matters in more detail, N repeated the allegations that TH had grabbed him round the throat when he dropped some chips and that the same happened to S when he dropped some sausage. He was not able to provide any more detail in respect of these allegations.
130. In response to DC Bishop further pressing N as to whether anything else had happened N then alleged that TH had tried to drown him in the bath by placing his hand on the back of N's head. When DC Bishop again asked whether N could recall anything else he said that TH had hit him on the back of the head and given him a "Chinese" burn when N had spilt a drink. DC Bishop asked N "have you seen anything between S and his dad" to which N responded "well he was touching something on S's body that he shouldn't have been touching" and identified S's "privates". N stated that "Like he, like, just wiggled it, S's one" whilst S was on TH's lap with no trousers.
131. When giving evidence, DC Bishop was candid about what are some deficits in the interviewing technique employed with N. DC Bishop acknowledged asking a number of leading questions, including asking N "have you seen anything between S and his dad". DC Bishop accepted that she introduced the idea that N had seen TH touch S inappropriately "at Easter", N having made no mention of the event occurring at Easter. DC Bishop's conceded that it was likely that she had used the notes that had been prepared by the mother that I have detailed above as a crib during the course of her interview of N and that from that note she had introduced the concept of the incident occurring at Easter. DC Bishop states that the mother handed her these notes on 12 September 2014 during the home visit. DC Bishop acknowledged that the first four allegations made by N in interview emerged in the same order as they were recorded on the note provided by the mother.
132. Within this context DC Bishop told the court that it occurred to her during the interview that N had been prepared for the ABE interview. DC Bishop was concerned that N could not give any more detail than that contained in the list of allegations provided by the mother in writing. As DC Bishop put it, N was only capable of giving a "synopsis". DC Bishop further noted that whilst she kept being contacted by the mother and the social worker with more and more detail about what N was saying, N himself had not able to describe in interview any more than the bare matters on the list provided by the mother. DC Bishop accepted that what additional detail she had managed to get, including the allegation concerning S, was often the result of asking N leading questions. DC Bishop also noted that N displayed no evidence of distress or anxiety when recounting events.
133. DC Bishop said that the outcome of her interview with N was that she informed Ms Salamant that N had told "exactly the same story" as his mother and that he was not able to expand when asked further questions. Within this context DC Bishop said she informed DC Glendenning that it felt like N was going through a checklist and that he was unable to provide extra detail. She also informed DC Glendenning that she considered that the mother was "overly talking" to the children and asked her to speak to the mother as the Officer in Charge in order to try and prevent this from happening. DC Bishop concluded that there was a likelihood that N had been primed to say the things he said.
134. I have had the benefit of seeing the DVD recording of N's interview of 19 September 2014. My impression very much concurs with that of DC Bishop.
(vi) Allegations by N on 3 October 2014
135. On 2 October 2014 Ms Salamant was advised by the Scottish Law Centre that the mother could not ignore the Scottish orders obtained by TH and could face time in prison if she did so. Ms Salamant informed the mother of this at 6.04pm on 2 October.
136. At 10.25pm on 3 October 2014 the mother reported to Ms H at the refuge that N had now disclosed sexual abuse "of the worst kind". Ms H gave evidence at this hearing. She could not remember precisely what the mother had said. Ms H "believes" the mother used the word "rape" in respect of the children. Ms H could not be confident where the children were when the mother talked about "abuse of the worst kind". When she spoke to Ms Salamant later on the same day the mother is recorded as alleging that N had stated that TH had laid on top of S whilst they were both naked on the bed, that TH had approached him from behind and attempted to insert his penis inside him on three occasions. She said N stated that he had not said anything before because it was "dirty" and that TH attempted to do the same thing to him but he refused. As to the manner in which the allegations emerged, the mother states that N "just came out with it". Once again, no one but the mother's was present when N said what he said.
137. The mother further alleged to Eli Salamant that she had now noticed S's faeces to be "the size of the one's of a man". She told Ms Salamant that whilst she had thought "nothing of it" she had now looked it up on the Internet and it was an indicator of sexual abuse.
138. Again, no note exists of precisely what N said to his mother 3 October 2014 beyond the recording in the social work records of the mother's account. In her statement to the Scottish Police of 25 November 2014 the mother appears to give a slightly different account to that set out in the records. In that statement the mother says that N said he had seen TH try and hurt S a number of times. When the mother asked him "how" he N demonstrated by lying on the bed and doing a thrusting action. The mother stated that N was really upset and crying. She asked him how many times and he said maybe three times. He said that he saw TH behind S and demonstrated the thrusting again. The mother stated that N alleged that TH had tried it on him from behind but that he pushed him off and called him a "dirty old man". There is no mention in this version of S and N being naked or of N explaining why he had not said anything earlier. The mother makes no mention in her statement of her concerns about the size of S's faeces.
139. By 6 October 2015 the mother had informed Ms H, Ms Salamant, Ms Lot, DC Glendenning, a person named H at the Stratford Child Abuse team, had attempted to contact DC Bishop and was reporting that Ms Lot, the Safeguarding Adviser at N's school, had spoken to N about his allegations.
140. The mother's statement dated 25 November 2014 says that a week after allegations on 3 October 2014 N said that TH had tried to put his thing in his (N's) bottom, had called him "Chucky" and "ugly bastard" and made him watch the film "Chucky". The mother's recall of what N is actually alleged to have said is less than accurate, the mother stating "N told me that he also saw [TH] playing with his 'bits' or something like that as he pointed to his groin" (emphasis added).
141. By 13 October 2014 the Police in England were becoming concerned about the influence the mother was having on the children. On 13 October 2014, following the mother telephoning the police to chase further ABE interviews for the children the Police Investigation Log records that due to what are described as "concerns of over-interviewing / questioning" the children, the Police felt it appropriate to warn the mother that she was not to interview the children or to discuss the situation. In response the mother stated that she found this difficult. The police suggested she provide N with a notebook but that this notebook was to remain private. The mother did not dispute the account set out in the Investigation Log.
142. Within this context, when it was put to her by Ms McKenna the mother denied she had fabricated the allegations she claims were made by N on 3 October 2014 and thereafter concerning the sexual abuse of S and N in an attempt to avoid the import of the Scottish court orders.
(vii) Appointment with Dr Haji on 8 October 2014
143. On 8 October 2014 N and S were taken to see Dr Haji, a general practitioner. It would appear that at the outset of the appointment the mother gave Dr Haji an account of the family's background and of the allegations of sexual abuse in the presence of both N and S. The social work entry records that, in front of S, Dr Haji asked N to describe what he had seen TH doing to S and that (in another slightly different account) N is recorded stated that TH "touched S down below and entered him."
144. Dr Haji records that S was "unfortunately present" when N pointed to his penis and said he tried to put this into S's back passage. Within this context, the social work record of this appointment states that at this point, and several times thereafter, S interjected forcefully and said "that's a lie, that didn't happen". Dr Haji's note records that S shouted that "this had not happened". Within this context Dr Haji is recorded as having contacted children's services to express his initial concern that S (given the context I suspect the recording is mistaken and Dr Haji in fact said N) may have been asked to disclose the sexual assault allegation.
145. I am entirely unclear why Dr Haji saw fit to take a history from the mother of the family's issues in front of the children. Notwithstanding that it produced several forceful, and forensically significant, denials from S, I am equally unclear why Dr Haji considered it to be proper to permit N recite his allegation concerning the sexual abuse of S in S's presence.
(viii) Pre ABE of N and S on 29 October 2014
146. 29 October 2014 DC Hackworthy conducted, at the request of DC Glendenning in Scotland, a further pre-ABE interview with N and S. DC Hackworthy had never met either child and was introduced to them in the presence of their mother. DC Hackworthy made no notes of what was said either in the questions he asked or the responses given by the boys although he told me that he did fill in the CRIS report that appears in the bundle. DC Hackworthy also confirmed that S was present throughout his discussion with N and that S probably was listening to what was being said. DC Hackworthy conceded in cross examination that this was bad practice on his part.
147. DC Hackworthy was clear that S really did not want to speak. He was of the view that S was not suitable for interview, concluding that "I am of the opinion that he does not have the cognitive ability to expand on any potential disclosure he had made to his mother." DC Hackworthy told me that his impression of S was he was adamant that he did not want to speak.
148. DC Hackworthy recorded that N stated that TH had hit him and had hit S. He alleged that TH had come up behind him and that N had said "get off me you dirty old man". This time N said there was no physical contact and this happened once. This time he said he did not tell his mother about it as he forgot but that his memory came back when S had mentioned rude things that TH had done to him (there is no suggestion that S had made such statements up to this point, indeed he had denied the same in the presence of Dr Haji). N was adamant that he did not want to do another ABE interview but he could not explain why.
(ix) Allegations made by N at School
149. Between 23 September 2014 and 3 December 2014 N attended a local school. On 19 September 2015 the refuge informed the school by email that N and S "have disclosed physical abuse from [TH] and also disclosures of sexual abuse". Based on the allegations made by the mother about TH summarised above the refuge asked the school not to contact N's previous school as "[TH] may use this as another way to find the family".
150. In her statement of 29 January 2015 Ms Duggan, a teaching assistant at the school, relates that on occasion she heard N making allegations to his friends. Ms Duggan recalls hearing N saying that a man who was his brother's dad "used to touch me" and "I told him to stop" and "I told him he was a dirty old man". N told Ms Duggan that the man had put his hands round his neck. She recalls that N on one occasion said the man was "like a man in the army, very strict" and that N would often use the word "dirty" in relation to the man. N told Ms Duggan about giving a police statement and was worried he had got the dates wrong.
151. Ms Duggan told the court that if an allegation is made by a child she is required should fill in a "Cause for Concern Form" and hand it to Ms Lot, the Safeguarding Adviser at the school, for Ms Lot to consider and decide whether to refer to social services. Ms Duggan did not follow that procedure in this case and told me that if N said something she would go straight to Ms Lot and make a verbal report. In the circumstances there is no contemporaneous or near contemporaneous record of what N was heard saying by Ms Duggan.
152. In her statement of 29 January 2015 Ms Lot relates that when N arrived at the school he was scared that TH would find him if the school used his surname. Ms Lot further relates that "not long after he started" N told Ms Duggan that TH had tried to strangle him. On another date that Ms Lot was unable to recall she stated that Ms Duggan again notified her that N has made allegations of a sexual nature. Ms Lot states that she saw N who said "father used to let S play with his computer or it might have been his phone. When S was lying down he would lie on him or something like that" and "he would put it in there" and, in response to Ms Lot asking "what?" pointed to his groin area. Ms Lot asked N "what his front bottom" to which N replied "yeah". Ms Lot says she asked N "didn't that hurt S?" but could not recall N's reply. She then asked N how many times this had happened, to which N replied at least two or three. Ms Lot than asked whether TH had "done it to him". N said that TH tried once but he had pushed him away and called him a dirty old man (this appears to differ from what N was heard to say by Ms Duggan but the recording by Ms Duggan and Ms Lot is so poor it is difficult to make a proper comparison). In her statement Ms Lot suggests that, following N making them, the allegations were discussed with the mother in N's presence.
153. In the same way Ms Duggan did not make any written record of what N said, Ms Lot makes clear in her statement that "I have not made notes about any of the disclosures made even the referral to social work was phoned in". In evidence Ms Lot confirmed that she did not make any handwritten notes or typed entry in the school's records and did not make any written referrals. As with Ms Duggan, Ms Lot was unable to remember on what dates N said the things he did or even to remember in accurate terms what he said. Her statement was made two to three months after the events in question. Ms Salamant confirmed that Hackney had not made a record of what Ms Lot told them over the telephone with regard to statements made by N (indeed, Ms Salamant could not recall liaising with Ms Lot at all in this regard).
154. I have seen a copy of the Safeguarding and Child Protection Policy for the school in question. Ms Lot sought to claim during her oral evidence that were a matter was "open" to children's services any referrals were made only by telephone. As Ms Krish points out on behalf of the mother, this was no part of the schools safeguarding policy. That safeguarding policy highlights the responsibility to make a written record using the school's 'Cause for Concern Form'. The policy states specifically:
"If there is a serious concern and the child is in immediate danger the member of staff must inform the NSO immediately. This should be a verbal referral. Once this has taken place the adult concerned must make it a priority to record the incident on a cause for concern form and give to the NSO the same day."
155. The most recent safeguarding training at the school, a copy of which I have also seen, makes clear under that the 'Cause for Concern Form' must include exact information, the name of the child and the date. The training makes clear that the teacher receiving the allegation must not ask questions and should not tell carers of concerns unless part of an agreed strategy.
156. Both Ms Lot and Ms Duggan appear to have failed comprehensively to follow their own school's safeguarding guidance and training and the accepted good practice with regard to the recording of allegations made by children. In the case of Ms Lot, in addition to not making any written record, she proceeded to question N and informed the mother (apparently in N's presence) of what he had said. These are in my judgment serious omissions on the part of a teacher fulfilling a child protection role. As a result, the court is left with no accurate record of what N said and no clear idea of when he said it.
(x) Art Therapy Session with S on 2 December 2014
157. On 2 December 2014 S was spoken to by an art therapist at his school, Ms Gorrel-Barnes, and was also spoken to by the SENCO at the school. By contrast to the position at N's school, there is a comprehensive, near contemporaneous note of this conversation and a completed Safeguarding Concern document.
158. Ms H from the refuge was clear in evidence that the mother told her that S had said to the play therapist on 2 December that he had been made to watch a pornographic film when in Canada. In her undated final statement in these proceedings the mother states that "S disclosed that when he was in Canada with [TH] he was made to watch a film about Father Christmas and chocolate up his bottom". The records of the play therapy session demonstrate that in fact S said nothing about a "pornographic" film or about chocolate being placed up a bottom.
159. S said that he had been to see a film of going to see Santa and Santa had "pulled a boys pants down". He then said that this had really happened and that he had gone with his father to see Santa. Later S said this event was in a book. S stated that "He put chocolate in" (it is unclear where) and that "I couldn't stop laughing" and that if he had told Uncle "he would have laughed and laughed". He said he had told his father, who had told his mother.
160. During the art therapy session S said he had seen his dad recently and that a scratch to his nose had happened at his Uncle's in Canada, both of which assertions could not be true. Within this context, it is of note that when the Art Therapist spoke to S about sharing this story with the school, S said that he was worried he would "have to repeat it eight times".
(xi) Visit to Children by Ms Ille on 8 December 2014
161. On 3 December 2014 the mother and the children moved to a refuge in Westminster. The trigger for that move was the reaction of the Metropolitan Police, on the basis of information provided by the mother, to TH coming to England in an attempt to enforce the orders made by the Scottish Court. The mother told the Police that TH was determined to find her and kidnap the boys. As noted above, the mother now concedes that this is not true. The Metropolitan Police were further instructed by DC Glendenning that "under no circumstances" was TH to be permitted to take the boys, notwithstanding the orders of the Sheriffs' Court.
162. On 8 December 2014 both children were seen by a social worker from Westminster, a Ms Ille. The records demonstrate that the children were repeatedly questioned by the social worker together and in the presence of the mother and in a highly leading manner that paid no heed at all to proper practice.
163. S said that TH had done three things to him but looked at his mother and said "I don't want to say the first part". He said the second part was that TH had choked him when he dropped some food on the floor and the third part was that they went out and everything was OK. Ms Ille then proceeded to question S on the "first part" with the mother encouraging S by saying "it is all right, you can talk, you will not be in trouble". Ms Ille asked S to use the exact words used by TH. S then said TH had asked if he could "put his 'pot' up his bottom". Quite remarkably Ms Ille then asked S if he "let [TH] do that". S did not reply. The mother than asked S the same question before asking him "did daddy ask you to keep it a secret". S replied yes. He refused to say anything else. This entire exchange took place in front of N.
164. In response to the questioning N stated "I thought I saw him trying to put his willy up S's bottom but I do not know if it went up". At this point S said "it never went up". N went on to say that TH did it to him to at around Easter time, saying "basically he tried to stick his willy up my bum while I was playing on my iPad but I don't think it entered" (this account differs from the previous accounts given by N in which he said that TH tried to do it to him but that he pushed him away and called him a "dirty old man"). N alleged that a similar incident had happened at another time and spoke about TH holding him under water in the bath. Again, this entire exchange took place in front of S. In front of both children the mother told Ms Ille that she was "very concerned" that the much more may have happened but that the children are "too scared to disclose".
165. Once again, I am entirely unclear why Ms Ille, a qualified social worker, saw fit to question the children in company of each other and in front of their mother and to allow the mother to participate in that questioning and to reveal her worries and concerns in the presence of the children. Efforts to secure the attendance of Ms Ille for cross examination proved unsuccessful.
(xii) Allegations made to Ms Khanom on 15 December 2014
166. Seven days later, on 15 December 2014, the children were again questioned together regarding things they had said, this time by Ms Khanom, a worker from the refuge. This was shortly after mother had become aware on 10 December 2014 that Police Scotland considered that there was little evidence for sexual abuse and that DC Glendenning considered that she (DC Glendenning) needed to "gather more evidence" in this regard. Ms Khanom confirmed that she has had no child protection training and had never worked with children who had made allegations of sexual abuse. In her statement to the Scottish Police Ms Khanom said she did not really know how to deal with such things. During her oral evidence Ms Khanom said that she did ask "a few questions" of the children but it was unclear what those questions were.
167. In her statement to the Scottish Police (which differs in some respects from the recording from Westminster which details Ms Khanom's report to Ms Ille), Ms Khanom indicates that whilst drawing S stated that TH was going to be in trouble. Ms Khanom asked why and S said "he's done some bad things" but did not elaborate. N drew a picture of a garage and TH. When Ms Khanom asked what it showed, N said he was at a garage and TH grabbed him by the wrist and punched him in the face and head. Ms Khanom then asked N, in a blatantly leading manner (and seemingly by way of a non sequitur) "whether anything else happened in his bedroom about April 2014". N replied by recounting that TH had come into his room, pulled his pants down and asked "Can I put my willy in your butt". N said TH lay on him from behind and he felt dizzy. He was not sure if TH's penis touched his anus.
168. Ms Khanom then asked N "if it had ever happened before". In response N said (in another new version of events) he had got out of the shower naked with a towel around his waist, was lying on his front on his mother and TH's bed and that TH climbed on top of him from behind, to which N responded "get the fuck off me". N said he felt dizzy and was not sure if TH's penis entered his anus. N said that afterwards TH threw clothes at him, told him to get dressed and "he better keep his mouth shut or he would get hurt" (the Westminster children's services records record the threat as "don't tell anyone or he will hit him so hard that he will always remember"). S was present throughout N's account.
169. Ms Khanom recounts in her statement that N then sought to persuade S to speak to Ms Khanom by saying "tell Mohima about Part 1". S stated that "Part 1 is very bad". Ms Khanom asked S "what happened" (thereby implying that something did) and S said TH "put his will in his butt". As I have noted, S had been present throughout N's account to Ms Khanom and it is not at all clear whether, in using the word "his" S was referring to himself or recounting what he had heard N say. Ms Khanom states that she "asked more about it" but that S "shut down". Ms Khanom noted that S displayed a lot of anger towards his brother and that they fought a lot.
(xiii) Joint Investigative Interview of N on 5 March 2015
170. By the time the joint investigative interviews of N and S by Police Scotland took place on 5 March 2015 the children had been questioned about the allegations by DC Bishop and Ms Salamant on 12 September 2014, N had been questioned by DC Bishop in an ABE interview on 19 September 2014, both children had been seen by Dr Haji on 8 October 2014, both children had been questioned by DC Hackworthy on 29 October 2014, N had been spoken to by Ms Duggan and Ms Lot regarding his allegations in September and October 2014, both children had been questioned in a highly leading manner by Ms Ille on 8 December 2014 and by Ms Khanom on 15 December 2014. In addition, prior to the interviews taking place on 5 March 2015 both children had had extensive input from CAMHS. It is plain from the evidence the court heard that the professionals working with CAMHS would regularly discuss matters with the mother in front of the children, with the entire history on which the intervention of CAMHS was based coming from the mother.
171. Within this context, by 5 March 2015 both children had repeatedly heard the other give their respective accounts and be questioned on the same. Throughout the preceding period, both children had been living with their mother who had by this time been assessed by Dr Ramirez as highly anxious, "unconstrained" in front of the boys and unremittingly negative in front of N (who Dr Ramirez considered "idolised" his mother) and who the English Police had, on 13 October 2014, felt compelled to warn about the dangers of over-questioning / over-talking to the children. Further, the children's living arrangements had been highly disrupted since their removal from Scotland in August 2014.
172. N's interview conducted on 5 March 2015 was conducted by two Police officers he had not met and without a social worker present. Prior to interviewing the children DC Glendenning had made no attempt to gain context by speaking to the children's previous schools, health providers save for her contact with S's nursery as recounted above. DC Glendenning confirmed that the mother had given her the erroneous impression that the relationship with N's father had broken down and he was not involved with N. DC Glendenning conceded that she was concerned that the boys had been spoken to by many, many professionals prior to their interviews. However, DC Glendenning's strategy for accounting for this during the interview seemed rather to miss the point, she saying that she approached the interview as if she knew nothing about the allegations. DC Glendenning seemingly failed to appreciate that the problem was rather what the boys knew from speaking in front of each other on multiple occasions, from speaking with multiple professionals and from speaking with their mother ahead of the interview.
173. Whilst DC Glendenning stated that she had used the relevant Scottish guidance when conducting the interview of N, DC Glendenning was forced to concede that the interview of N had failed to follow the guidance in significant respects.
174. At the outset of the interview DC Glendenning told N that "If you say something really, really interesting she is going to write it down". DC Glendenning thus created a cue for N whereby he would know what the "interesting" answers were by watching the other officer's pen. DC Glendenning conceded this was the wrong approach.
175. Further, DC Glendenning stated that she realised straight away that N had notes with him. She further stated that she was concerned that it was possible someone had helped him write those notes. In evidence the mother claimed that N compiled these the night before the interview by himself upstairs. She denied that she talked to him about what he should say in the interview. DC Glendenning was clear in her view that the mother had seen the notes prior to the interview and said as much. DC Glendenning was also certain that the mother had known N was writing the notes and had read the notes prior to the start of the interview. DC Glendenning said she was concerned that N had been prepared for the interview.
176. Notwithstanding her concerns that N had been prepared for the interview, DC Glendenning proceeded to interview N with his notes available to him. DC Glendenning justified this course of action by reason of N being "desperate" to have access to the notes. N's desperation to have the notes is clear from the DVD of the interview which I have seen. In particular, it is significant that when it became apparent to N that his notes may be removed, N became flustered and gave a confused answer which indicated that his recollection was not firm.
177. In seeking a free narrative from N DC Glendenning began by with the following exchange:
Q: Och well, so before we came today, did em, did your mum or anything tell you why we were here, why we were coming to speak with you.
A: Em cause this was the last time I'm going to be talking.
Q: Do you know what we're going to be talking about?
A: Em Na, what [TH]'s done.
178. After establishing who "[TH]" is and who S is DC Glendenning proceeded to say to N:
"Okay, em just tell me anything that you think might be important to me that S has done to either yourself or your brother or anybody at all. Em just tell me as much as you can remember."
In addition to confusing matters by calling TH "S", this question plainly signals to N that that the DC Glendenning accepts that TH has done something to N and S.
179. When answering this question DC Glendenning permitted N to read from his prepared note. Within this context, N alleged that TH had threatened to run him over with his car and that this had been happening since S was one, that TH had tried to put his "willy" up the children's "bums" and in their mouths (a new version of events), that TH had punched him in the face at a garage, that he had heard what had happened to his mother on her birthday and at Easter, that TH would not let the mother see S or take him to England and that he thinks his Uncle R is a drug dealer.
180. Having made an unsuccessful attempt to persuade N to put the notes aside, DC Glendenning allowed N to continue by reference to the notes. Within this context N further stated that TH tried to strangle S, that he had tried to drown him and S (another new version of events), that TH was in the shower and showed his "willy" to S (a new allegation), that TH hit him, S and the mother in his car, that TH put his "willy" up his "bum" and did the same to S (again, a new version of events), that TH threatened to throw him of a Loch Ness tour boat (a new allegation), that TH made him watch "Chucky" and rude movies such as "Steve" and that TH took photos of him and S naked (another new allegation). DC Glendenning was clear that, after he had read out his notes, she had the impression that N felt he had said all of the "important stuff". This is readily apparent from watching the DVD, as is the fact that N delivers his recital without any apparent emotion.
181. DC Glendenning then proceeded to explore in more detail that which N had said and read out from his notes. As DC Glendenning was forced to concede during cross examination by Ms McKenna, DC Glendenning proceeded to ask a number of highly leading questions during this part of the interview. During this part of the interview N alleged that TH would lay on top of him and try to put his "willy" up his "bum" but that he would push TH off and swear at him and that this occurred three times. N further alleged that this happened to S "since he was one" and that TH had also tried to put his "willy" in N's mouth since N was "roughly two or three…or four…or three".
182. DC Glendenning next attempted to get N to talk about S. Within this context, the following, highly leading approach was taken by DC Glendenning:
"Q: How did these, how did it make you feel when he did these horrible things?
A: Em it made me feel upset because I thought he'd be nice but he wasn't, he was horrible.
Q: Did you know what these were things, these were wrong when he was trying to do them?
A: No, no I didn't know.
Q: You didn't know. And how do, do you know now.
Q: You just know. Is it just because you are older now.
Q: Okay, and you, you never, ever, well up until recently have you never told your mum.
Q: About these. Is that because [TH] was still in your life?
A: Yeah, yeah.
Q: Okay em so are you glad that you're away from him?
A: And I hope he gets arrested after he broke the Residency Order.
Q: You wanting, you wanting [TH] to go to jail.
Q: Okay. Em also before you've told, you know that you know that he's assault you, he's hurt you.
Q: And things like that and he's hurt, you know he's hurt you and obviously he's done these things that are.
A: Mm hu.
Q: Very dirty and not nice.
Q: Have you ever seen any of this dirty stuff done to your wee brother".
183. Within this context N stated that S "told me" that "daddy put his willy up at my mouth" and had told him about the "bum incident" and "the chips" (the latter incident N having previously ascribed to himself). In this context, the following exchange then took place between DC Glendenning and N:
Q: Tell me about the bum incident.
A: Well em he, would still come out crying and like he would say that a bum.
Q: Have you ever seen [TH] do anything to him?
A: Em yeah, I saw the bum incident.
Q: Tell me, tell me about the one that you've seen with your own eyes not the one that's been told to you.
A: Well, it was the one I told you em that S would normally come out crying to me.
Q: Yeah I mean.
A: What I'm saying.
Q: Did you see what happened in the room before he came out crying?
Q: No so you've never seen [TH] put anything up S's bum.
A: Well one time he had the door open a bit and I'd a wee look.
Q: And what did you see?
A: And I saw like he was em (inaudible).
Q: He was shouting at him?
Q: Did you see him put his willy anywhere near S?
A: Em he nearly put it up his bum but I really don't know if it ended.
Q: You don't know but S was upset.
Q: Okay and S came out crying and told you that he had put.
Q: Up his bum.
184. It can be seen that DC Glendenning, at the conclusion of this exchange, introduces an assertion, with which N agrees, that is not based on what N has said, the exchange at no point including the assertion by N that S had come out of the room and told that TH had placed anything up his backside. Following this exchange, N further alleged that TH had punched S on the nose, would slap and kick him and that he had once seen TH place his "willy" in S's mouth. With respect to the latter allegation, DC Glendenning's questioning was once again problematic:
Q: Okay, em have you ever seen him do anything else with his, with his willy to S?
A: Well I've seen him do the, you know like in different moves and same thing to S like the willy in the mouth.
Q: Have you seen [TH] put his willy in S's mouth?
Q: Actually put it in his mouth.
A: Em I don't know if it, I don't know.
Q: You don't know but that's what it looked like.
185. Once again, DC Glendenning concludes the exchange with an assertion that does not properly follow from what N has said up to that point, with which assertion N simply agrees. At the conclusion of the interview DC Glendenning told N he had been "really, really good" and told him he was "obviously intelligent". DC Glendenning further said to N:
"Em and obviously it is very important for us to get all this information so that you know we can go back and we can look at it and we can see what we can do about [TH] because he shouldn't be allowed to do these things".
(xiv) Joint Investigative Interview of S on 5 March 2015
186. Mother conceded in evidence that prior to his interview on 5 March 2015 ER had spoken to S and told him that if told the truth to the Police during the interview he would be taken fishing by ER. ER confirmed in evidence that he had said to S, "I said 'be a big brave boy, tell the truth, say it, talk to them and I will take you fishing'". ER said he said this once a day or so before the interview on 5 March 2015. S clearly took this on board. He told DC Glendenning during the interview "And I think [ER] said, he isn't my cousin, but he said if I tell that means I get to go fishing".
187. As noted above, by the time of this interview S had repeatedly heard N give his accounts and be questioned on the same. As with N, S had children had been living with his mother, who had been assessed by Dr Ramirez as "unconstrained" in front of the boys. Within this context, it is of note that in his interview on 5 March 2015 S said, in response to being asked why he had nightmares about TH that "…my mum said that my dad hurt someone else and that my dad hurt one of his friends…and he had the called the police as well". S stated he remembered his mother talking to the Police. S further stated that "Mum isn't planning to go out for a nice day, [ER] wasn't planning to go out for a nice day though mum is but she can't, [ER] is but he can't. [TH] is planning to make, to make a very bad thing". As will be seen from one of the passages from the interview set out below, it is also clear that S had overheard his mother making allegations to someone he identified as a "nurse", S telling DC Glendenning in this context that "Mum told that the bad bad, dirty man done it to me".
188. As noted above, DC Hackworthy's had concluded that S was not suitable for interview. S's interview on 5 March 2015 took place in the context of him having little notice that it was going to take place, having been removed early from school for the interview, not having eaten and being given snacks prior to the interview, which he consumed during the interview. It is clear from watching the interview that this creates a distraction for S. The items he was given to snack on during the interview were given to him by his mother immediately before the interview commenced and were considered by S to be treats. As with N, at the outset of S's interview at the outset of the interview DC Glendenning told S that "If you say something really, really interesting she is going to write it down". DC Glendenning thus, once again, created a cue for S whereby he would know what the "interesting" answers were by watching the officer's pen.
189. During the course of his interview S stated that his father had hit him on the arm and had choked him. He said this happened when the mother went to "Nanny S's" with N but his father said he could not go. S also alleged that his father gave him wine (a new allegation). Later S also alleged that TH punched him in the neck (also a new allegation). Thereafter S repeatedly made clear to DC Glendenning that that is the sum of what had happened he has nothing more to say. From watching the interview it is clear that S is very firm in this regard. Notwithstanding this, DC Glendenning continued to push S to reveal further matters. At this point the interview departed even further from the precepts of the guidance.
190. After S has stated eight times that nothing else happened DC Glendenning embarked on the following exchange with S:
Q: Right, what about when you are alone with your dad?
A: When I'm alone with my dad he's been a, he's been nice but when Grandma was, is here, he's been nice when, when she isn't here, she' he hasn't been nice.
Q: OK, has your dad ever done anything dirty to you? Dirty, that you didn't like:
A: Mmm, nothing else.
Q: Nothing else, erm, also its very important today that we find out everything, erm and also we've been speaking to your brother and he said some things that your dad did that wasn't very nice to him, and that were dirty. Had your brother told you about these?
Q: As he ever told you anything that your dad did to him?
A: Mmm mmmm, hasn't seen and I've forgot…nothing.
Q: Nothing, are you sure there's nothing else that's worrying ye and?
A: There's nothing else.
191. Prior to this point S has not used the word "dirty" at any stage. In seeking to explain why she had introduced this DC Glendenning said in evidence that it was because it was "difficult to get him to open up" and she was trying to put "it" in S's terms of something possibly sexual. DC Glendenning appeared initially to be unaware of the forensic difficulties created by the interviewer introducing the concept of "dirty" events in the context of S being alone with TH before S had raised the issue in any way. However, ultimately DC Glendenning accepted in cross examination it was wrong to introduce the word. DC Glendenning accepted that S may well have perceived this as her wanting him to say that his father had done something dirty to him.
192. Notwithstanding that S had again made clear in response to the foregoing questions that nothing else had happened, DC Glendenning still persisted. She next informed S that she was aware that S had said things to Ms Khanom. DC Glendenning conceded in cross examination that she had no note of what it was that S was said to have said to Ms Khanom and, as set out above, that Ms Khanom had no clear recollection. Within this context the following exchange took place:
Q: Can you remember what you told her?
A: I told her the same as I just told you.
Q: Nothing else?
A: I told her a little bit of it but not that much.
Q: I think she says you like to say it in its parts and its part 1 and part 2 when your talking about things.
Q: And that you said that part 1 was dirty, can you, it's really, really important if you could tell me what part 1 is today and then you don't need to tell me again, can you tell me what part 1 is? What your dad did?
A: Mmmm, really don't want to tell that bit.
Q: It's just.
A: I really I really don't like telling that bit.
Q: I know you really don't like telling it but see, N's been very very brave today and he's told us part 1 and part 2, what happened to him. And obviously, we want to make sure that your safe and that you're here safe with your mum so we need to know what [TH] did, so that we can make sure that your nice and safe and make sure if he's a bad person that nothing else will happen to anybody else, do you understand that? And I know it's, it's scary telling strangers about things that happened but it's very very important that we know, so that we can do the right thing and we can make sure that the bad man is dealt with, do you understand that? And Mihema (sic) told me that you told her, so just, if you just told me just that once, then I can sort, I can make it all sorted.
A: Well mummy told the nurse but I don't want told her, the nurse parts1.
Q: I know.
A: Mum told that the bad, bad dirty man done it to me.
Q: I know, but it's good that your mum told us, but we really need you to tell us, so that.
Q: So that we know exactly what happened, you only need to tell it once because that's why the cameras are here cause one you tell it that's it. And then you can go back and nobody will be annoying you again. Understand it is very very important. Could you just tell me it really, really quickly?
A: Mmm, Mmm, I couldn't say it that quickly.
Q: Can't say it that quickly, how about then, we go back, was it, was it in your dad's house? In the flat?
193. It is difficult to know where to start with respect to summarising what is wrong with the approach by DC Glendenning set out above. Indeed, the passage largely speaks for itself as an example of extremely poor interviewing practice. DC Glendenning's questions start from the premise that something "dirty" has happened to S, that TH is the perpetrator (pre-cast by the questioning into the role of the "bad person" and the "bad man"), place emotional pressure on S by telling him that N and his mother are "brave" and "good" for telling what happened and that a statement by him is needed to keep others safe and make promises to S that are unjustified (i.e. if he tells it once he will not have to tell it again). In addition, certain of DC Glendenning's questions were misleading in other respects. In particular, N had not in his interview made his allegations in terms of "part 1" and "part 2". Finally, it is clear that S has plainly overheard his mother making allegations to a "nurse" that "the bad, bad dirty man done it to me".
194. Within this context, DC Glendenning's was forced to concede during cross examination that she had during this phase of the interview placed grave pressure on a five year old child to make an allegation against his father. DC Glendenning further conceded that following this passage of questioning that S may well have felt he had little choice but to give DC Glendenning what she wanted.
195. Following the exchange set out above DC Glendenning then proceeded to question S in detail starting, as can be seen, from the premise that something has happened. S told DC Glendenning that what occurred had occurred in Scotland, that he was wearing the pirate costume that he was wearing in the interview (which seems unlikely) and that N was not present. S said that his father did "a naughty thing". When asked what this was S again limited his allegation to "He. He choked me and he hit me and, and he punched me, and and he, he made me drink that wine".
196. DC Glendenning tried yet again. Finally, after telling DC Glendenning that he only wanted to talk to one person, after it was proposed that the other officer leaves the room, and after DC Glendenning said "And you can quickly tell me what happened and then that's it, would that be OK" S stated that TH "asked me to put his willy in my bum". S went on to state that "he, he only asked though" and "He didn't try he just asked". When DC Glendenning asked "did he ever try and put his willy in your bum" S was adamant that he had not.
197. Still DC Glendenning refused to accept that as the final position and re-introduces Ms Khanom, asking (again without having access to any recording of what S actually said to Ms Khanom) "Right, erm, when you speaking to Mihema (sic) earlier on, she says that your told her that your dad [TH] put his willy in your bum". DC Glendenning did not seek to explore with S different versions he had given to Dr Haji and Ms Ille. When, at the end of this exchange, DC Glendenning askes S "Have you ever touched his willy?" S replies "Mmmm of course not". Later in the interview S states that TH "didn't do anything to mum".
198. Following the interview of S DC Glendenning completed an additional comments form. On that form DC Glendenning recorded her impression of S during the interview as being one of child who "appeared nervous, frightened and confused over what was right or wrong". Within this context, during cross examination regarding the interviews of S and N on 5 March 2015 DC Glendenning conceded that she was concerned during the interviews that both the children had been coached and that that concern never fully left her during the course of those interviews.
(xv) Joint Investigative Interview of N on 11 June 2015
199. The third Police interview of N took place on 11 June 2015 and was again undertaken by DC Glendenning and another officer. Once again, there are significant issues with the interviewing technique adopted by DC Glendenning.
200. At the outset of the interview there is a notable exchange between DC Glendenning and N arising out of N apparently mishearing or misunderstanding a question put to him by DC Glendenning about what his mother had said to him. The answer N gives once again suggests that N may have been coached:
Q: As I say, I am taking you quite far back, do you remember when you, the very first time the Police spoke to you and it was Police from England it wasn't Police from Scotland.
Q: Do you remember they carried out a wee video interview with ye?
Q: Erm, during that interview you remembered two times that you mum, erm your remember your mum being in the room.
Q: With [TH]. Do you remember your mum saying something?
Q: Do you remember what you heard your mum say?
A: Well, erm she sounded off with me and, and like erm, in telling, and was telling me to just say, just erm get off of me and stuff like that.
A: And erm, the first time it happened was, was on my mum's birthday erm, in [TH]'s room and on Easter, it happened, we came out, it happened erm in my room when I was sleeping on the sofa and I heard, heard her saying same things.
201. Within this context, and echoing concerns that had been expressed previously by DC Bishop, by Dr Haji and latterly by DC Glendenning, by this time I note that Westminster social workers had also begun to express concerns regard the mother's actions towards the children. On 26 May 2015 Suzette Easterbrook recorded her view that the mother appeared to talk about her concerns and the children's behaviours in front of the children in a way that was not age appropriate and which may be reinforcing the children's negative behaviours. Ms Easterbrook noted that N had a very strained relationship with his mother and expressed a lot of anger towards her. On 27 July 2015 Ms Easterbrook again recorded her view that the mother engages the children in adult conversations and that her anxiety is shared with the children. Ms Easterbrook expressed the view that the mother lacked boundaries of what she should and should not talk about in front of the children. Within this context, Ms Easterbrook noted that professionals had not experienced first-hand N's difficult behaviours as alleged by the mother. I have had regard to the fact that Ms Easterbrook did not attend for cross-examination.
202. During the course of the interview on 11 June 2015 N stated that one of the events with respect to his mother had occurred on her birthday when he was 5 or 6 (on the mother's evidence this event had occurred when N was 7). N was unable to provide any further details. N dated the alleged sexual abuse of him by TH first to when he was aged 2 or aged 5 and then to the day before S was born (S having been born on 14 August 2009 when N was 4) and at a hotel on the way back from the hospital where S was born. N claimed he was not able to speak at the time and that he had not learnt to speak or write until he was about 7. N also alleged that TH punched and slapped him and threatened to tie him to the train tracks. With respect to S, N related the allegation that S had spilt crisps in the car as a result of which TH had pushed the mother. Once again, at the conclusion of the interview DC Glendenning thanked N for giving "a list of great information".
(xvi) The oral evidence of the mother and TH
203. Finally in relation to the evidence, I had the inestimable benefit of hearing the mother and TH given oral evidence from the witness box. It is important that I set out my impressions of the mother and TH as witnesses when considering the allegations before the court.
204. The mother's oral evidence with respect to the matters set out above was, I am afraid, unconvincing. When challenged on simple details that she might reasonably be expected to recall, such as specific incidents of domestic abuse and dates and times of specific events the mother either failed to answer the question asked or repeatedly and monotonously sought refuge in the stock phrase "my head was all over the place". At other times, when faced with incontrovertible evidence of an inappropriate action on her part, the mother sought to portray herself, unconvincingly, as an innocent victim swept along by well-meaning but misplaced professional advice. More specifically, mother was not able during the course of her oral evidence to give a clear account of the allegations made by the children that only she is said to have heard. As noted above, the mother's oral evidence in relation to the alleged rapes and domestic abuse contained inconsistencies in addition to those revealed in the documentation.
205. Whilst describing repeatedly how the matters in issue had caused her great emotional upset mother displayed an almost complete lack of emotion when giving evidence about what, on her case, must be deeply troubling memories of many years of domestic abuse, rape and the physical and sexual abuse of her children. I of course bear in mind that victims of domestic and sexual abuse respond in a variety of different ways to that abuse, including shutting down emotionally in response to the trauma of such events. However, her almost emotionless recall in respect of all matters was incongruous when set against the troubling matters about which she as giving evidence and the level of upset she sought to describe.
206. Within this context, I also note the mother had wished, at the pre-hearing review, to make an application for special measures when giving evidence on the grounds that she was terrified of TH. In circumstances where the other parties had not had notice of the application, I directed that the application should be made at the commencement of this hearing. No such application was made and the mother gave her evidence in front of TH without any apparent difficulty at all.
207. TH was a very nervous witness. He also, in my view, dissembled on a number of occasions. The accounts he gave with regard to his having to physically restrain N were given for the first time from the witness box. Conversely, I noted that TH was prepared to make concessions against his own interest from the witness box, conceding for example that he had not been very nice to AD, that on occasions he might have gone to the bathroom naked when the children were in the property, that he had used mainstream pornographic sites on the iPad but not in presence of children, that he and the mother likely did have sex on or around 2 April 2014 and that there would have been times when caring for N on his own.
208. I found TH to be genuinely incredulous when forced to deny producing a fake Scottish court orders, forging the mother's signature, faking her Facebook account, having access to guns and colluding with S's head teacher. His denials when accused of raping the mother, domestically abusing her and physically were emphatic, stating "no, no, no" in response to Ms Krish's pressing. TH was adamant that in May 2014 the mother suggested that they move into together and suggested marriage in Las Vegas.
209. TH's answer when it was put to him that he was seeking to find the mother and remove S from her care was particularly illuminating, TH stating "I wanted S's return yes, well yes, but contact at the very least". He did not appear a man bent on abducting or 'kidnapping' S from his mother's care but rather concerned simply to re-establish contact with his son. TH demonstrated significant affection and emotion when discussing his son and the impact of their separation, describing the S he last saw in August 2014 as "happy, healthy, able and intelligent".
210. Having regard to the evidence I have set out in some considerable detail, and having evaluated that evidence according to the legal principles articulated above, I have come to the following conclusions on the evidence available.
211. I am not satisfied on the balance of probabilities that TH raped the mother in October 2013 and April 2014. Whilst I am satisfied that the relationship between the mother and TH was at times mutually antagonistic, that there were unpleasant arguments which centred on, amongst other things, differing views as to domestic cleanliness and that, on occasion, TH said things to the mother which were unpleasant, I am not satisfied on the balance of probabilities that TH was domestically abusive to the mother as she alleges. Further, I am satisfied on the balance of probabilities that the mother's allegations of rape and of domestic abuse are in fact false allegations.
212. Having considered the totality of the evidence, I am satisfied on the balance of probabilities that in July and August 2014 the mother removed N and S respectively from Scotland without the consent of their fathers and that between August 2014 and June 2015 the mother repeatedly lied to professionals about the risks presented to her and the children by TH with the aim of avoiding the effect of court orders he secured to effect S's return to Scotland. I am further satisfied on the balance of probabilities that from August 2014 the mother then proceeded to elaborate those lies over time in an ongoing effort to prevent professionals from properly investigating the case and discovering her deception.
213. Within this context, whilst I am satisfied that TH would on occasion discipline the children for making a mess by shouting and could appear as an oppressive and authoritarian figure to N as he sought to manage N's behaviour using physical restraint, and that TH resorted, on occasion, to physically restraining N, I am not satisfied on the balance of probabilities that TH physically abused either child. I am also not satisfied on the balance of probabilities that TH sexually abused N or S. Further, and once again, I am satisfied on the balance of probabilities that the allegations that TH physically and sexually abused the children are in fact false allegations.
214. Further, I am satisfied on the balance of probabilities that the mother, as a further element of her efforts to avoid the children being returned to Scotland, caused both children to make allegations of physical and sexual abuse against TH that were not true. I am satisfied that the evidence demonstrates that the mother did this both by placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making those allegations known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
215. My reasons for reaching the conclusions I have summarised above are as follows.
216. Save in respect of two allegations of rape, the allegations lack specificity in terms of timing. In relation to the allegations of domestic abuse those allegations are limited to the assertion that TH was "at times" physically violent towards the mother from 2007 and "frequently" spoke to her in a derogatory manner. In relation to the alleged emotional, physical and sexual abuse of both children, the Scott Schedule specifies no dates or times, or even an overall timescale, in respect of these allegations, although the timescale is slightly narrowed in the indictment in the criminal proceedings in Scotland as set out above. This lack of specificity as to timing has presented a challenge when seeking to place the allegations made by the mother and the children within the wider forensic context provided by the evidence before the court. Further, the inability of the mother to specify any particular incident of domestic abuse undermines the credibility of her allegations in this regard.
217. All that can be said is that on the mother's case, during the period between 2007 and August 2014 she was allegedly subjected to sustained and serious verbal and physical violence by TH in the presence of the children and was further subjected to two rapes in October 2013 and April 2014. Further, on the mother's case, prior to 9 August 2014 the children were allegedly subjected to emotional, physical and sexual abuse by TH.
218. Within this context, as set out above, I am satisfied that there were no contemporaneous or proximate reports to Police or other agencies of domestic or sexual abuse in the household. With the exception N's behavioural difficulties which I shall come to again below, prior to August 2014 there is also no evidence in this case of concerns or reports by the children's nursery or school, by medical practitioners or other professionals or, indeed, by the parents themselves and extended family of the children of the type of difficulties that often manifest as sequelae in children who are being exposed to the effects of serious domestic violence or who are suffering sexual abuse. To the contrary, the nursery, the school, each of the parents and the extended family all recall happy, contented and thriving children.
219. I of course bear very closely in mind that it is not unusual for there to be an absence reports to police or statutory and non-statutory agencies and organisations during the currency of an abusive situation where allegations of domestic violence and rape are concerned (fear, shame and stigma acting as powerful incentives against seeking assistance) or where allegations of sexual abuse are concerned (it often being the case that children are frightened or coerced into not revealing the abuse that is taking place). I further bear in mind that victims of domestic and sexual abuse respond in a variety of different ways to the reality of that abuse.
220. However, if the mother is telling the truth about the circumstances that pertained during the period in question, and the children's various descriptions are accurate, then the children's environment would have been a frightening and emotionally damaging place over a period of years. Within this context, the children said nothing to any trusted relative, teacher or other person, including their mother. Further, no relative, teacher, other professional, or on her own case, the mother saw any evidence whatsoever that the children's emotional equilibrium was disturbed to the extent that it resulted in comment from or referral to educational or health agencies. To the contrary, the children were seen by their respective schools and extended family to be happy and healthy and to have a good relationship with TH. In my judgment, the evidence concerning the children's family background, relationships, pattern of family life, social development and involvement with other agencies prior to the point at which the allegations began being made in August 2014 tends against the matters alleged by the mother and the children being true. In considering the allegations of sexual abuse I also bear in mind that it is inherently improbable that a father would abuse his son and his stepson in the manner alleged.
221. There is no medical evidence in this matter, clinical or expert, corroborating the allegations made by the mother and by the children. I of course bear in mind in relation to the allegations of physical and sexual abuse that an absence of medical evidence does not exclude the possibility of such abuse having taken place.
222. I recognise that the mother has maintained her allegations in respect of TH's physical and sexual conduct towards her since August 2014 throughout her engagement with the Police, the Scottish criminal justice system and during these proceedings. I recognise that N has alleged he heard the two alleged rapes in October 2013 and April 2014 (although, as I will come to, there are significant difficulties with this evidence). There is evidence that the relationship between the mother and TH was, at times, antagonistic and difficult and that they were very different in character on issues such as domestic order. The father has admitted that in a former relationship be acted in a manner that caused his partner to be fearful of him. I further recognise that the children have on a significant number of occasions made statements to professionals to the effect that each was abused physically and sexually by TH as I have recounted above. Each child has made allegations of such abuse during the course of ABE interviews. N has drawn pictures depicting the alleged abuse and has exhibited disturbed and difficult behaviour. The father has admitted that he would physically restrain N.
223. I have of course borne carefully in mind at all times that failures by professionals in the investigation of allegations of abuse, and the fact that those failures have to be taken into consideration when considering the weight that can be attached to the various strands of evidence, does not of itself preclude the possibility that those allegations are true. I have also borne in mind that when reporting matters to professionals parents may engage in a misguided attempt to bolster allegations which are true.
224. However, taking all these matters into account, the evidence given by the mother concerning the allegations against her and the accounts of what the children are alleged to have said to her nonetheless presents real problems:
i) The mother previously sought to mislead professionals during her relationship with BC by fabricating an allegation to the general practitioner in 2006 that the paternal family were going to abduct N to France. An allegation the mother conceded is untrue.
ii) The mother sought to mislead professionals and the court as to who was the primary carer of S prior to August 2014. On the evidence set out above, I am satisfied it was TH. The mother accepted in cross examination that her statement of 13 April 2015 gave the wrong impression in this regard. She could not explain why she had not sought to correct it.
iii) The mother has, I am satisfied, told a significant number of lies regarding TH and BC. I am wholly satisfied that she was not telling the truth when she indicated to professionals that TH was associated with drug dealers, had Police contacts that would allow him to trace the mother, that he had mistreated animals and had threatened or attempted suicide and that BC had serious mental health problems and often could not care for N properly, that he had used weapons to hurt her, that he had mistreated animals, that he had threatened or attempted suicide. I am likewise satisfied that the mother lied to professionals when she told them TH would collude with S's head teacher to locate her, that TH's family is very rich and that he had access to firearms. In the statement in support of her application for wardship dated 28 January 2015 the mother grossly and flagrantly exaggerated the true position when she claimed there was a risk that the father would kill the children to stop them disclosing more information.
iv) The lies told by the mother do not inevitably mean that she is lying about other matters (R v Lucas  QB 720). However, they must inevitably affect my assessment of her credibility with respect to other matters she alleges.
v) I am reinforced in this view by my being also satisfied that the mother's lies, and their evolution over time, had a specific dual purpose, namely avoiding the effect of court orders secured by TH in the Scottish courts to effect S's return to his primary care in Scotland and preventing professionals from properly investigating the case and discovering her deception. In this regard there is on the available evidence a strong correlation between the points at which the mother was informed of the key stages of the Scottish litigation and the points at which she made her allegations regarding TH. The mother persistently represented TH's legitimate attempt to enforce a lawful order of the Scottish court as an attempt by a highly dangerous father to find and kidnap or harm the children. The mother's attempts in this regard reached their nadir in these proceedings when she filed a sworn statement in which she asserted that there was a risk that TH would kill the children.
vi) The mother's accounts of the alleged domestic abuse have consistently lacked any substantial detail in terms of timing and the nature of extent of the alleged abuse. Her accounts have contained inconsistencies as between different statements (with some statements being inexplicably silent on the issue altogether) and have ranged from "a little bit of pushin' and shoving but not that much, just a little bit" to alleging TH attempted to throw her down the stairs (which allegation the mother has now withdrawn, claiming she never made it). On 2 October 2014 the mother told a social worker from Hackney that TH had been increasingly violent to her over the last year and a half, to which increase S had been exposed. This alleged increase features nowhere in her allegations to the Police. On 4 November 2014 the mother is recorded as telling the social worker precisely the opposite, namely that the violence has been less severe over the course of the last year.
vii) The mother took no injunctive proceedings in respect of the alleged conduct by TH notwithstanding that she had done so in respect of far lesser alleged conduct by D and BC. The mother's evidence that it had never occurred to her to seek injunctive relief against TH.
viii) The mother's accounts of the alleged incidents of rape given between 11 August 2014 and 29 January 2015 contain manifest inconsistencies. Whilst, latterly, the mother has remained consistent regarding the dates of two alleged rapes, the number of occasions of alleged rape evolved from "a few", to four and finally back to two. With respect to 4 October 2013 the time of the alleged rape moves from late on 4 October 2013 or early in the morning of 5 October 2014 back to 9pm on 4 October 2013. The mother variously unzipped her nightclothes herself, or finished unzipping them after TH had got the zip halfway, or removed them from her legs after TH had completed undoing the zip. Only later did she introduce an alleged altercation to account for this event. With respect to 19 April 2014 the mother's account moves from TH waking the mother by removing the covers at 2.00am in the morning or waking her by having sex with her between 2.00am or 3.00am in the morning, to TH raping her at 9.00pm in the evening after keeping her awake by pestering her, to the rape occurring at 5.30pm in the afternoon.
ix) As I have noted above, the court must exercise caution when considering the significance of a moment of time caught in a photograph. However, certain of the photographs taken by the mother on 4 October 2013 of TH and the children consuming birthday cake do show that the mother lied to the Police regarding the circumstances of that evening. Whilst, again, the court must be careful to avoid assumptions concerning how a person might act following an incident of rape, the content of the photos of the mother on the morning of 5 October 2013 appears incongruous against allegation that mother had only hours before been raped by TH. The photographs the mother sent to TH in March 2014 depicting her in lingerie and adopting intimate poses do not, of course, imply consent in April 2014. They are however incongruous in the context of the mother alleging that TH had raped her in October 2013.
x) These difficulties are, in my judgment, amplified by the fact that, as noted by the Police, the mother's allegations of rape and domestic abuse were made in the context of a dispute concerning the children and only at the point that that dispute became manifest. Again, there is in my judgment a strong correlation between the points at which the mother is informed of the key stages of the Scottish litigation and the points at which she makes her allegations.
xi) There is no corroborating evidence for the mother's allegations in the form of witnessed incidents, contemporaneous Police reports, medical evidence or the like. Whilst N has stated that he heard both incidents of alleged rape, for the reasons set out below I am not satisfied that N's account is reliable and was, as I will find, heavily influenced by his mother.
225. The statements made by the children concerning the allegations against TH likewise present real forensic difficulties:
i) The court has no accurate account of the initial allegations made by the children on 4 and 11 September 2014. The mother was the only witness to the allegations she alleges the children made on these dates (it is of note that the statement of ER dated 23 September 2014 confirms that he had not heard children make allegations and that N had said only that he (ER) was much nicer than TH, who he never wanted to see again). The court must be very wary of placing reliance on the mother's account of the children's initial allegations where, for the reasons set out above, the mother's credibility is so undermined. The same is true in respect of the mother's account of what N allegedly said on 3 October 2014. This caution is further amplified by the fact that the I am satisfied that the mother sought to mislead professionals over what S had said to Ms Gorrel-Barnes on 2 December 2014 by claiming to the refuge that S had been made to watch a pornographic film in Canada. The notes produced by the mother of what the children are alleged to have said in September 2014 are in list form only. I was left entirely unclear as to the circumstances in which they had been made. Indeed, I have grave doubts over whether the children's initial statements were in fact made or, if statements were made, they were anything like that which is alleged by the mother.
ii) There is clear evidence that from the earliest stages the mother influenced the children by exposing them to inappropriate conversations. She admitted in cross examination that in September 2014 she had let the children know that N was not seeing his father because of "security", that she had told the children that "[TH] had hurt me" and that she had said that that she was "scared of [TH] coming to find us". The CAMHS visit on 12 September 2014 provided evidence that N had internalised the mother's fear, stating that he was "scared" at the moment and that he was scared that his mother will be put in prison and "they will win", they being BC and TH. S's interview on 5 March 2015 suggests he too had internalised what the mother was saying, telling DC Glendenning in response to being asked why he had nightmares about TH that "…my mum said that my dad hurt someone else and that my dad hurt one of his friends…and he had the called the police as well", stating that "Mum isn't planning to go out for a nice day, [ER] wasn't planning to go out for a nice day though mum is but she can't, [ER] is but he can't. [TH] is planning to make, to make a very bad thing" and that he overheard his mother making allegations to a "nurse" that "the bad, bad dirty man done it to me". The evidence of Ms Easterbrook in May and July 2015 demonstrates that the concern that the mother was engaging the children in adult conversations and that her anxiety was shared with the children persisted throughout the period with which this court is concerned.
iii) Within this context, it is important to note that over the period in which the mother was conducting herself in this manner both S and N had been removed from their primary carers in Scotland notwithstanding they both expected to return in time for school. They had been introduced to a partner of the mother's and a new family at short notice and with little or no preparation. At some point during September they had been exposed what can only be described as a frightening incident involving an adult clinging to a car bonnet, screaming and the attendance of the Police. The children's environment was accordingly new, insecure, unstable and, on occasions, frightening.
iv) The weight to be attached to the statements of the children must also be evaluated in light of the fact that from 12 September 2014 it is plain that the children were subjected to extensive questioning by multiple professionals in each other's company and often in the company of their mother. In addition to the ABE interview of N on 19 September 2014, the children were seen and questioned by DC Bishop and Ms Salamant on 12 September 2014 (together and in the presence of their mother), by Dr Haji on 8 October 2014 (together and in the presence of their mother), by DC Hackworthy on 29 October 2014 (together), by Ms Duggan and Ms Lot during September and October 2014 (N only), by Ms Gorrel-Barnes on 2 December 2014 (S only), by Ms Ille on 8 December 2014 (together and in the presence of the mother) and by Ms Khanom on 15 December 2014 (together). Thus, on repeated occasions, each child heard the other give his version of events, often in response to highly leading questions, often asked by inexperienced interlocutors.
v) Ahead of their interviews on 5 March 2015 the children also underwent work with CAMHS. Prior to the Joint Investigative interviews on 5 March 2015 N had had five sessions with professionals from CAMHS. Thereafter he had a further twenty six appointments. S had had an art therapy session and one appointment at CAMHS prior to the Joint Investigative Interviews. Thereafter S had ten sessions of Play Therapy. Within this context I note that N never talked to Dr Ramirez about the alleged abuse. Dr Early noted that at no point during her twenty two sessions with her did N say he had been abused by TH, although he spoke about being worried about TH abusing S.
vi) As is plain from the passages set out above, the children's ABE / Joint Investigative Interviews are of poor quality for the reasons I have identified when examining each. The Joint Investigative Interviews undertaken by DC Glendenning in particular were marked by repeated and serious breaches of the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland. Having viewed the videos of the interviews, the concerns apparent from the transcripts in the hearing bundle were reinforced. More broadly, the interviews, and in particular the interviews undertaken on 5 March 2015 and 11 March 2015 took place 6 months after the initial allegations were allegedly made and after the children had been repeatedly questioned in each other's presence and the presence of the mother as set out above. In these circumstances, I have felt unable to attach any weight to the accounts given by children during these interviews.
vii) The accounts that have been provided by the children in respect of the alleged conduct of TH contain significant inconsistencies over time. Whilst care has to be taken in this case when comparing different accounts due to the often parlous state of recordings made by professionals and the manifest deficiencies in the interviews, a comparison of the various accounts reveals significant inconsistencies in N's statements regarding sexual abuse perpetrated against S and his statements regarding allegations of such abuse in respect of himself. Those inconsistencies extend to both the nature and the timing of such alleged incidents. S's limited accounts of alleged sexual abuse likewise contain inconsistencies (in addition to the flat denials S gave in the presence of Dr Haji). The children's allegations of alleged physical abuse are somewhat more consistent, in particular in relation to the consequences of dropping food, but also vary over the time during which the children are repeatedly being spoken to by mother and professionals in each other's presence and in interview.
viii) I have of course considered carefully the provenance of N's behaviour. Reports that a child's behaviour is problematic or deteriorating within the context of allegations having been made of physical and sexual abuse must always be carefully considered as possibly the sequelae of that abuse, or a combination of issues one of which is abuse. N's behaviour has clearly been problematic and has extended to aggression towards his mother, hearing voices and threats to throw himself onto the train tracks. However, there are a number of factors which lead me to conclude that it would be dangerous to rely on this behaviour as evidence that the children have been physically or sexually abused. I am satisfied that N's behaviour pre-dated the mother meeting TH. I am further satisfied that BC and TH are telling the truth when they describe the mother antagonising N and exacerbating his behaviour. The photographs from the mother's phone show a tendency to antagonise or humiliate N. I accept the evidence of the maternal grandmother that she was told by N that his mother gave him a "Chinese" burn. Further, N's behaviour must be considered within the context of the high level of disruption, instability and insecurity he experienced from 31 July 2014 when he was taken to England, which disruption, instability and insecurity would, I am satisfied, have been exacerbated by the mother's "unconstrained" discussions regarding the alleged threat posed by TH.
ix) There is a complete absence of corroborating evidence for the children's statements. The allegations of abuse rely solely on what has been said by the children as reported by the mother and as told by the children to various professionals. There is no witness evidence corroborating the children's accounts, the mother's evidence being that she had never seen TH hit S and had only seen TH strike N once on the arm with an open palm after N had bit him. There are no contemporaneous reports to statutory agencies and no medical evidence. As set out above, the children's presentation and behaviour during the period in question provides no corroborating evidence from agencies or educational establishments or in the form of difficulties arising in the wider social interactions of the mother and the children prior to August 2014.
226. Further, I am satisfied that there is evidence demonstrating on the balance of probabilities that the children, and in particular N, have not only been heavily influenced in what they have been said by the unconstrained conduct and comments of the mother but have, on occasion, been coached by their mother to make allegations and repeat them:
i) The mother has plainly fabricated untrue allegations against TH and BC as set out above, indicating a capacity to fabricate allegations.
ii) The mother clearly foreshadowed the allegations of physical and sexual abuse in the interview of 4 September 2014. However, the mother's case is that she did not know of any physical or sexual abuse of the children during her time with TH and had no concerns in respect of the same and that the children began making statements after her interview on 4 September 2014. This tends strongly to suggest that the mother was in the process of also prefiguring the allegations she would claim, only hours after the interview, had been made by the children.
iii) I am reinforced in this view by the fact that once she had announced that the children were making allegations the mother never again referred to those matters which she alleged in her police interview on 4 September notwithstanding their plain relevance to the Police investigation and to her case in these proceedings.
iv) Having undertaken her interview on 19 September 2014 DC Bishop concluded that there was a likelihood that N had been primed to say the things he said, being capable only of giving answers in the terms of the notes provided to the Police by his mother (again, it being of note that the first four allegations made by N in the interview emerged precisely in the order set out in those notes). DC Bishop felt sufficiently concerned to inform DC Glendenning that she considered that the mother was "overly talking" to the children and asked her to speak to the mother as the Officer in Charge to try and prevent this from happening.
v) In response to a warning given by the English Police to the mother on 13 October 2014 again "over questioning / over sharing" with the children, the mother conceded that she found this difficult.
vi) On 8 October 2014 Dr Haji's was of the view that N had been told to make allegations.
vii) When Ms Gorrel-Barnes, the Art Therapist, spoke to S about sharing his story regarding Father Christmas pulling his trousers down with the school, S said that he was worried if this happened he would "have to repeat it eight times". The mother misled the Hestia refuge by reporting what S had told Ms Gorrel-Barnes as an allegation that S had been made to watch a "pornographic" film.
viii) The fact that both S and N referred to "Part 1" and "Part 2" when speaking to professionals suggests strongly that they had both been provided with a system for recalling allegations. Within this context, it was to his mother that S expressed a reluctance to talk about "Part 1" on 8 December 2015.
ix) Having witnessed N's attachment to his prepared notes in the interview of 5 March 2015 and having concluded the interview, DC Glendenning's was concerned that N had been coached ahead of the interview, stating that this feeling never entirely left her. DC Glendenning's view that children had been coached also applied to S.
x) In his interview of 11 June 2015, apparently having misheard or being confused about a question regarding what his mother had said with respect to the alleged incident of rape at Easter 2014, N said "Well, erm she sounded off with me and, and like erm, in telling, and was telling me to just say, just erm get off of me and stuff like that."
227. Finally, within the foregoing context, I am further satisfied on the evidence that the actions of certain professionals in this case breached well-established principles of good practice, actively contributed to the difficulties that I have set out above and materially prejudiced the welfare of both children:
i) Almost all the professionals and agencies involved with the children proceeded on the unquestioning basis that the mother was telling the truth and failed to interrogate that assumption by carrying out basic enquiries. The most acute example of this was the assessment of Ms Salamant. Ms Krish properly concedes that the social worker never really challenged the mother's account and that the most basic independent professional enquiries were not undertaken. Ms Salamant's failure to challenge the mother's account and accept it at face value meant that she permitted the mother to dictate completely the frame of reference for the actions of the local authority and other agencies and meant that mother succeeded in portraying herself and the children as victims of serious physical and sexual abuse when in fact they were not. Ms Salamant's failure to make enquiries of the fathers, the children's extended families, the children's schools, doctors and previous local authorities was particularly egregious in circumstances where such enquiries would have revealed a fundamentally different picture to that being painted by the mother.
ii) A number of professionals failed in their duty to keep accurate records of what the mother and the children were saying. This failure was particularly acute (a) on 12 September 2014 where neither DC Bishop nor Ms Salamant kept accurate records of their meeting with the family, resulting in accounts of what the children said that were diametrically opposed, (b) at N's school in September and October 2014 where Ms Duggan and Ms Lot failed to make any record at all of the allegations made by N in breach of the schools own safeguarding policy, Ms Lot attempting to pass this failure off as a feature of the case being open to social services and (c) on 29 October 2014 when DS Hackworthy took no notes at all of his pre-ABE interview with N and S. Outside the interviews of the children, not one professional recorded a contemporaneous or near contemporaneous account of what the children said to them.
iii) A number of professionals took it upon themselves to question the children with respect to the allegations outside the regulated confines of an ABE interview. There was a particular failure to follow the guidelines by (a) Dr Haji on 8 October 2014 who proceeded to elicit an account from N in front of S, (b) Ms Lot at N's school between September and October 2015, who took it upon herself to ask multiple questions of N, (b) Ms Ille on 8 December 2014 who repeatedly questioned both children in a highly leading manner (having never met the children) and (d) Ms Khanom who likewise proceeded to question the children in a leading manner.
iv) There was an apparent failure of agencies to co-ordinate their interventions in respect of the children. The most extreme symptom of this was the number of professionals the children were spoken to by in respect of the allegations. As set out above, between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N with five different police officers were involved with interviewing the boys.
v) For the reasons I have set out above both DC Bishop and DC Glendenning failed to apply, in the case of DC Bishop, Achieving Best Evidence, and in the case of DC Glendenning, the Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland. The results of this failure are plain from the passages of the interviews set out above. DC Glendenning conceded that the sole purpose of the interviews on 5 March 2014 was "to get evidence of sexual abuse". DC Glendenning's conduct of the interviews on 5 March 2014 with N and S represent in my judgment particularly serious examples of poor interviewing practice.
vi) Finally, ahead of any findings of fact being made or criminal conviction in respect of the allegations, CAMHS intervention in this case extended to therapeutic intervention for N by three psychiatric and psychological specialists in addition to group therapy over 29 sessions and for S over six Play Therapy sessions on the basis that both children had been abused in the manner alleged by the mother.
228. Standing back to survey the broad canvas of the evidence, I am satisfied for the reasons I have given that not only were the allegations made by the mother and the children false, but further that the allegations made by the children were generated by the mother placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
229. In the case of Re W (A Child)  EWCA Civ 772 Ryder LJ (as he then was) observed as follows with respect to the significance of parents who make or cause to be made false allegations of physical and sexual abuse:
"Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court."
230. Within this context, and having regard to the extensive matters set out above, I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.
231. As I stated at the outset of this judgment, this is a very concerning case. In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland. Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal. Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble. Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.
232. It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm.
233. Child abuse, including child sexual abuse, exists as a terrible reality in society. Professionals charged with safeguarding the welfare of children must be constantly vigilant. As Ms Lot rightly pointed out to me, professionals are trained to adopt an approach by which they recognise that such abuse can happen anywhere. However, in circumstances where false allegations of abuse are also a reality in society, it is essential that this professional vigilance is allied firmly to the rigorous application of practice and procedure designed to ensure the proper investigation of allegations of abuse if injustices are to be avoided.
234. Within this context, this case suggests that it is once again necessary to re-iterate the importance of the principles set out at Paragraphs 22 to 52 above. When investigating allegations of child abuse, including allegations of child sexual abuse, it is imperative that all professionals involved adhere to the law and guidance set out in those paragraphs so as to ensure the rigorous and fair investigation of allegations that is the foundation of ensuring the children concerned are safeguarded.
235. The Children's Guardian attended each day of this fact finding hearing. Having listened to the evidence in this case the Children's Guardian told the court that she considered this case to be "quite extraordinary". Surveying the conduct of professionals in this case she concluded that "it is as if a sort of hysteria took over and prevented people from asking certain questions". I cannot help but agree.
236. That is my judgment.
1 The Office of the Procurator Fiscal has now indicated that the criminal charges against TH will not be pursued.
2 On 2 March 2016 I received a letter from the solicitor acting on behalf of the mother informing me that the mother had been assaulted and threatened by ER at her home on 20 February 2015. The letter stated that ER had been arrested and charged in relation to the incident. N and S were in the property at the time.
SCHEDULE OF FINDINGS
a) TH did not rape the mother on 4 October 2013. The mother's allegation that she was raped by TH on 4 October 2013 is false.
b) TH did not rape the mother on 19 April 2014. The mother's allegation that she was raped by TH on 19 April 2014 is false.
c) TH was not at times physically violent towards the mother during their course of their relationship, beginning in 2007. The mother's allegation that TH was physically violent to her is false.
d) On occasion TH did speak to the mother in a derogatory manner. TH was not however abusive and controlling of the mother. The mother's allegation that TH was abusive and controlling is false.
e) TH did not threaten to abduct S to Canada. The mother consented to S going to Canada on each occasion that he went. The mother's allegation that TH threatened to abduct S is false.
f) Whilst on occasion TH did physically restrain N when he was demonstrating challenging behaviour and did, on occasion, discipline N for making a mess, TH did not physically abuse N whether as alleged or at all. In so far as N has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother.
g) TH did not behave in a sexually abusive manner towards N as alleged or at all. In so far as N has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother.
h) TH has not behaved in an emotionally abusive manner towards N as alleged or at all. In so far as N has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother.
i) Whilst on occasion TH did discipline S for making a mess TH has not behaved in a physically abusive manner towards S whether as alleged or at all. In so far as S has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother.
j) TH has not behaved in a sexually abusive manner towards S whether as alleged or at all. In so far as S has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother.
k) TH has not behaved in an emotionally abusive manner towards S whether as alleged or at all. In so far as S has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother.
l) TH has not taken pictures of S and N naked. In so far as N has alleged these matters he has done so as the result of indirect emotional pressure and direct encouragement from his mother. In so far as the mother has alleged these matters, those allegations have been made falsely.
m) TH has not made S watch 'rude movies' with a sexual content. In so far as the mother has alleged otherwise, those allegations have been made falsely as a result of exaggerating innocent statements made by S.
n) In so far as it represents a valid diagnosis, N and S's diagnoses of PTSD are not attributable to TH's behaviour towards the children.
o) S was removed from Scotland by their mother on 11 August 2014 without the consent of TH and was in breach of orders made by the Sheriffs Court on 12, 15 and 28 August 2014.
p) The mother has told lies to professionals. Those lies were aimed at preventing the return of S to the care of his father, protecting the mother from compliance with the lawful orders made by the Scottish court and preventing professionals discovering that the mother had told lies.
q) In consequence of the findings set out above, the N and S have suffered significant emotional harm as a result of the care given to them by their mother.
r) In attempting act in compliance with orders made by the Sheriff's Court in Scotland TH has acted only to secure the lawful return of S.