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Home > Judgments > 2016 archive

S Local Authority v T, UN and Others [2016] EWFC 41

Complex composite fact-finding and welfare hearing before Keehan J in care proceedings.

UN is the mother of six children, namely R, E, A, P, Q and T. She had been in a number of relationships over the years. Mr X is the father of R and E. Mr Z is the father of A. Mr Y is the father of P and Q. WN is the father of T and remained married to UN at the time of the hearing. Ms B is the former partner of WN and mother of the two remaining children, namely F and L. Their fathers are Mr D and Mr C respectively, neither of whom played an active role in proceedings. F and L remained living with WN following his separation from Ms B in 2011 and a residence order was made in his favour in 2013. All eight children lived with UN and WN.

R is the eldest child, aged 16 at the time of the hearing. In June 2012 he was admitted to a psychiatric unit and during his admission he informed hospital staff that his older sisters BX and AX had sexually assaulted him. In hospital, he displayed inappropriate sexual behaviour, including non-consensual behaviour towards a young female patient. R was upgraded to a ward providing constant observation.

R was discharged from hospital on 26 December 2012 and, in light of his complex needs, life-threatening self-harming behaviour and wholly inappropriate sexual behaviour, the medical advice was that R required a specialist residential placement. Nevertheless, the local authority funding panel refused to sanction this and the only available specialist foster placement was so far away from R's home that a placement at home was the only option remaining.

Throughout 2013, allegations of sexual assault were made by the younger children. In October 2013, R was arrested for assaulting his mother and WN. In January 2014 a referral was made to the police and social services following alleged sexual activity between R and a fellow pupil at school. R subsequently admitted sexually assaulting E. He was convicted in May 2015 of sexually assaulting both E and L.

Care proceedings were issued in relation to the eldest seven children on 18 February 2014 and in relation to T shortly after his birth in April 2014. The matter originally came before a Circuit Judge and a fact-finding judgment was handed down in April 2015, in which adverse findings were made against UN and WN. For reasons not documented in this judgment, an appeal against these findings was allowed by consent without consideration of the merits. The matter came before Keehan J for a re-hearing.

As a preliminary issue, Keehan J determined that the forensic exercise would not be assisted by hearing from the children. He considered that the disadvantages of doing so would be disproportionate and that relevant ABE interviews were sufficient.

Keehan J made a number of findings of sexual abuse between the children, as set out in paragraphs 158 to 161 of His Lordship's judgment. In summary, Keehan J found sexual activity to have occurred in a number of different ways between R, E, F. L and A. He found R to have sexually assaulted E and L.

Keehan J found that such sexual activity had occurred because UN and WN failed to maintain appropriate sexual boundaries within their home. He found that they had failed to protect the children from inappropriate sexual conduct. Specifically, Keehan J determined that UN knew of R's sexual assault on E, despite her denial, and took no appropriate steps to seek medical attention, alert the authorities or take action to safeguard E or the other children. Further, UN encouraged R and E to keep the sexual assault a secret.

Keehan J found that UN and WN knew of the risks posed by R and ought to have known about the further sexual abuse; they 'chose to close their eyes and ears to what was happening in their home'. Keehan J found that UN's avoidant stance arose from her own experience of childhood sexual abuse. He was unable to explain WN's actions.

On the basis of his findings, Keehan J proceeded to determine welfare matters. All parties agreed that E should remain in foster care subject to a care order, F should be placed with his mother, L should remain in foster care under a care order and P and Q should remain with their father, Mr Y, under care orders. Following the fact-finding element of the final hearing, UN and Mr Z conceded that A should remain in long-term foster care. Similarly, UN and WN conceded that T could not return to their care following the findings made and neither opposed the making of care and placement orders.

Summary by Thomas Wilson, barrister, 1 Garden Court Family Law Chambers

_______________________

Neutral Citation Number: [2016] EWFC 41
Case No: VV14C00036
WV14C00006

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/07/2016

Before :

THE HONOURABLE MR JUSTICE KEEHAN

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

Between :

S LOCAL AUTHORITY
 Applicant
 - and - 
UN (1) Respondent
WN (2)
MS B (3)
MR Y (4)
MR D (5)
MR Z (6)
R (7)
THE CHILDREN (8 – 13)
(Through their Children's Guardian)
MR C (14)
 
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr J Weston QC and Miss S Pritchard (instructed by Legal Department, S Local Authority ) for the Applicant
Miss L Meyer QC
and Mr R Hadley (instructed by Walker & Co Solicitors) for the First Respondent
Mr J Tillyard QC
and Mr M Maynard (instructed by Anthony Collins Solicitors) for the Second Respondent
Miss J Slater
(instructed by Smith Dawson Solicitors) for the Third Respondent
Mr G Fairburn
(instructed by Thornes Solicitors) for the Fourth Respodnent
Mr M Hall
(of CBTC Millichips Solicitors) for the Sixth Respondent
Miss C Preen
  (instructed by Pickering's) for the Seventh Respondent
Miss J Bazley QC
and Miss K Gallacher (instructed by Talbots) for the Eighth to Thirteenth Respondents
The Fifth and Fourteenth Respondents being neither present nor represented

Hearing dates: 4 – 15 July 2016
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
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.
.............................

THE HONOURABLE MR JUSTICE KEEHAN
This judgment was delivered in private.  The court gives permission for this anonymised and redacted version of this judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. The redactions have been made to remove all references in this published judgment to the explicit details of sexual activity. The unanonymised and unredacted version of this judgment must not be published in any form without the express permission in writing of the Honourable Mr Justice Keehan.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mr Justice Keehan: 

Introduction 

1 – 13 

Fact Finding and Welfare

14

Court of Appeal 

15 – 21 

Law 

22 – 32

Background  

33 – 65

Children and Evidence

66 – 69

R

70 – 73

E

74 – 83

A

84 – 88

L

89 – 92

F

93 – 96

Evidence: Fact Finding 

97 – 100

Analysis: Fact Finding 

101 – 156

Findings of Fact

157 – 162

Analysis: Welfare

163 – 184

Conclusions  

185 – 199 


Introduction
1. In this matter I am concerned with eight children. They are:

a) R, who is 16;

b) E, who is 12;

c) F, who is 10

d) L, who is 9

e) A who is 9;

f) P, who is 6;

g) Q, who is 3; and

h) T, who is 2.

2. The mother of R, E, A, P, Q and T is the First Respondent, UN.

3. The father of R and E is Mr X. Although he was a party in the original fact finding hearing he is not now a party to these proceedings and has played no part in them.

4. The father of A is the Sixth Respondent, Mr Z.

5. The father of P and Q is the Fourth Respondent, Mr Y.

6. The father of T is the Second Respondent, WN.

7. The mother of F and L is the Third Respondent, Ms B. The father of F is the Fifth Respondent, Mr D. The father of L is the Eight Respondent, Mr C. Although both fathers are parties to these proceedings, neither has played an active role. They did not attend this hearing and nor were they represented at the same, however a short position statement was received from solicitors representing Mr D on the 30 June 2016.

8. The children are all represented by their children's guardian, OM, save for R who, for reasons I shall explain later, is separately represented.

9. The local authority, issued care proceedings in respect of the seven older children on 18 February 2014. Care proceedings were issued in respect of T on 8 April 2014.

10. The care proceedings in respect of R were concluded on 21 August 2015 when, by consent, he was made the subject of a care order, it being agreed that the threshold criteria of s 31(2) Children Act 1989 were satisfied on the ground that he was beyond parental control.

11. There is agreement between the parties that the threshold criteria in respect of each of the other seven children are satisfied. What I have to determine is the basis upon which the threshold criteria are satisfied. In essence the factual issues are:

i) was there sexual activity between the older children, namely R, E, A , F and L and/or did they display sexualised behaviour;

ii) what knowledge, if any, did UN and/or WN have or alternatively ought they to have had of all or any of this sexual activity; and

iii) what steps, if any, did UN and/or WN take or alternatively ought they to have taken in light of the foregoing.

12. In respect of the welfare issues, the parties are agreed that;

i) E should remain in foster care under a care order;

ii) F should be placed with his mother, the Third Respondent, under a care order. The proposed rehabilitation is underway;

iii) L should remain in foster care under a care order; and

iv) P and Q should remain in the care of their father, Mr Y under a care order.

13. The principal issues in dispute in respect of welfare at the outset of this hearing were:

i) should A remain in foster care or should she be rehabilitated to the care of her mother and WN;

ii) should T be placed for adoption or remain in foster care or be rehabilitated to the care of his mother and his father; and

iii) what contact should UN and WN have, if any, with R, E, A, P, Q and T and should the same be supervised between some or all of the children.


Fact Finding and Welfare
14. This matter is listed as a composite final hearing. In the first part of the hearing I heard evidence and submissions on the disputed findings of fact sought by the local authority. At the conclusion of this part of the hearing I announced my principal findings of fact but I reserved giving my reasons for making these findings to this judgment. After a short adjournment to enable the parties to digest and formulate their respective responses to my findings, I heard submissions in the second part of this hearing to determine the remaining disputed welfare issues.


Court of Appeal
15. This case was originally listed for hearing before a circuit judge in January 2015. Judgment was handed down on 29 April 2015 followed by a supplemental judgment which was handed down on 12 June. In these judgments findings of fact were made which were adverse to UN and WN.

16. They appealed against these findings to the Court of Appeal. On 11 December 2015 the appeal was allowed by consent without consideration of the merits of the same; the local authority and the children's guardian did not oppose the appeal.

17. In consequence of the First and Second Respondent's appeal certain findings of fact stood and were unaffected by the appeal whereas other findings were overturned and the matter was remitted to the Family Court for a rehearing of some or all of those latter issues. The matter was directed to be listed before me for a case management directions hearing. I decided that the rehearing should take place before me.

18. The findings of fact which stand are as follows:

i) Between about 2006 and 2010 R, then aged between 6 and 10 years, was sexually abused by two of his older female siblings, AX and BX, in that they, who were then teenagers, on a number of occasions separately coerced  him to engaged in sexual activity with them. The acts of abuse took place whilst R was living with Mr X, R's biological father.

ii) The Court finds that R has sexually abused L, when L was aged 6 years, by causing or permitting him to engage in sexual activity and by performing sexual acts upon him.

R contends that these acts were at L's instigation although he accepts that (b) was 'more his fault' however the court accepts L's account and finds that R is minimising his activities.

iii) There is unchallenged evidence from KD a teacher at the boys school describing sexualised behaviour at school between March and May 2014.  This was after their removal into care.

iv) I find it more likely than not that there was inappropriate sexual contact of some form between F, L and A .  There is evidence of sexual behaviour by F and L and disclosure by L to his foster carer that E and A showed him their privates.  In her interview A tried to describe something "rude".  She had disclosed some sexual activity to her foster carer.  I find that sexual activity between the children had taken place as described.

v) Following the first incident of sexual abuse by AX of R, Mr X was made aware of the same by the children but he failed to protect R by (i) preventing such incidents recurring, (ii) putting in place appropriate boundaries and safeguarding measures so as to manage the known risk posed to R, (iii) reporting the incident to the appropriate authorities and / or (iv) seeking medical treatment.

vi) Whilst living with Mr X, R was treated "nastily" by Mr X who:

a)  made him beg for food;

b) locked him in his room all day;

c) In an incident in 2008 as detailed in the video clip the father Mr X failed to protect R from a demeaning and embarrassing incident in which R was also slapped.

vii) I do find in this case that Mr Y with UN failed to ensure that their bedroom door was closed when they were having sexual intercourse and that this allowed R to see them;

viii) The local authority sought a finding that in or about 2010 R informed his mother UN of the sexual abuse of him by AX and BX but she failed to adequately acknowledge and or report that abuse.  I cannot find that UN knew about it.  R may have tried to tell her but she did not understand.  I cannot find that she knew about the activities of D & R";

ix) R and E have both suffered physical abuse whilst in the care of Mr X, causing bruising to their body and marks to their faces. In particular (and in accordance with the findings of District Judge Crowley of 6th June 2011):

a) "On 23rd and 24th April 2010 R was slapped by his father (Mr X) across the face on four occasions;

b) On other occasions the father (Mr X) has regularly over chastised R which on occasion has led to bruising;

c) On 23rd and 24th April 2010 father (Mr X) physically chastised E in which she may have suffered marks to her neck"

x) R has suffered emotional harm as a result of his ill treatment by Mr X.

19. I take account of each of those findings of fact in so far as they are relevant or pertinent to the disputed findings of fact I have to determine.

20. I do not propose to set out in the judgment the findings of fact which were overturned by the Court of Appeal. I consider it more relevant to set out the findings of fact now sought by the local authority at this hearing and do so by reference to the local authority's Schedule of Findings of Fact Sought dated 8 March 2016 [this paragraph has been redacted to remove the schedules which seek findings of explicit sexual activity].

21. I also record in this judgment, by reference to the document setting out the findings sought by the local authority in its Schedule of Findings Sought dated 18 May 2016 [this paragraph has been redacted to remove the schedules which seek findings of explicit sexual activity].


The Law
22. The burden of proving the finding of facts sought rests solely on the local authority. The standard of proof is the balance of probabilities: Re B [2008] UKHL 35.

23. When considering the hearsay evidence of a child I take account of the decision of the Court of Appeal in Re B (Allegation of Sexual Abuse: Child's Evidence) [2006] EWCA Civ 773, [2006] 2 FLR 1071 when it was said:

"Painful past experience has taught that the greatest care needs to be taken if the risk of obtaining unreliable evidence is to be minimised.  Children are often poor historians.  They are likely to view interviewers as authority figures. Many are suggestible.  Many more wish to please.  They do not express themselves clearly or in adult terms, so that what they say can easily be misinterpreted if the listeners are not scrupulous to avoid jumping to conclusions.  They may not have understood what was said or done to them or in their presence. [34]

…for these and many other reasons it is of first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say and equally it is vital that a careful note is taken of what they say and also of any questions which are asked…[35]

…the fact that one is in a family case sailing under the comforting colours of child protection is not a reason to afford unsatisfactory evidence a weight greater than it can properly bear.  That is in nobody's interests, least of all the child's. [43]"

I bear in mind, however, the more recent judgments dealing with the approach to be taken towards the evidence of vulnerable children who have been abused.

24. There are, of course, a very wide range of matters to which the court must have regard when considering disputed issues of fact. In doing so I have well in mind the observations of Ryder J, as he then was in A County Council v A mother and others [2005] 2 FLR 129 , Butler-Sloss P in Re T (Abuse: Standard of Proof) [2004] 2 FLR 838 and Baroness Hale in Re B (Care proceedings: Standard of Proof) [2008] UKHL 35.

25. I pay particular regard to the decision of the President, Sir James Munby, in Re A [2015] EWFC 11. I respectfully agree with all of the fundamental principles he set out in this judgment.

26. Where I find that a witness has lied in oral or written evidence I give myself a modified Lucas direction. Accordingly, I must bear in mind that a witness may lie for a host of reasons. It is only if I am satisfied that there is no reasonable or innocent explanation for their lies that I may take account of the same when considering whether I am satisfied, to the appropriate standard, that I should or may make findings against them.

27. When considering the welfare issues I take full account of the fact that the welfare best interests of each child are my paramount consideration: s 1(1) of the 1989 Act. Furthermore I take account of each of those factors set out in s1 (3) of the 1989 Act ('the welfare checklist') as appear to me to be relevant.

28. When considering an application for a placement order I first consider
and take account of s1 (2) Adoption and Children Act 2002, namely that my paramount consideration is the welfare best interests of the child throughout the whole of his life. I must consider, insofar as each is relevant, the welfare checklist set out in s1 (4) of the 2002 Act.

29. I may only dispense with the consent of a parent who opposes the making of an adoption order if the welfare of the child requires me to do so: s52 of the 2002 Act.

30. Authorising a child to be placed for adoption is an order of last resort and is only to be made when 'nothing else will do' in the welfare best interests of the child.

31. In answering that question I must not simply rule out all options before being left with the option of adoption and then approving that course for the child ('the linear approach'). I must undertake a global and holistic assessment of all of the realistic options for the child and weigh and balance the advantages and disadvantages of each Re B-S [2013] EWCA Civ 1146 (at paragraphs 41 to 46) and Re G [2013] EWCA Civ 965 (paragraphs 49 and 50). Only then will I be in a position to determine which of those various options can properly be said to be in the welfare best interests of the child throughout the whole of his life.

32. I take account of the Article 6 and Article 8 rights of the parents and of the children. Where, however, there is a tension between the Article 8 rights of a child, on the one hand, and the Article 8 rights of the parent, on the other, the rights of the child prevail: Yousef v The Netherlands [2003] 1 FLR 210.  


Background
33. I propose to set out only the principal features of the background to this matter to give a framework to the judgment and to set the case in its historical context.

34. UN has had a number of relationships over the years with namely:

i) Mr X, with whom she was in a relationship from September 1998 to the early part of 2006;

ii) Mr Z from early 2006 to 2008;

iii) Mr Y from June 2008 to 1 July 2012. They had married in March 2010; and

iv) WN from June 2012 to date. They married on 24 August 2013.

35. The Third Respondent, Ms B, is the former partner of the Second Respondent. They were in a relationship between 2006 and mid-2011. Ms B alleges that their relationship was characterised by domestic violence. At the conclusion of their relationship F and L remained in the care of the Second Respondent. A residence order was made in his favour in 2013.

36. For many years it had been believed that the Second Respondent was L's father. His name is on L's birth certificate. DNA testing has more recently established, however, that Mr C is L's father.

37. In early 2006 R went to live with his father, Mr X. He lived with his father's new partner, GX, and his four step sisters. R retuned to live with his mother on 24 April 2010.

38. On 6 June 2011 private law proceedings between UN and Mr X culminated in:

i) findings of fact that Mr Z had been physically violent to R and E;

ii) a residence order in favour of UN in respect of R and E; and

iii) an order for no contact in respect of Mr Z.

39. Shortly before or after the commencement of the relationship between UN and WN, R was admitted to the psychiatric unit of Hospital D Unit L on 12 June 2012. Six weeks later on 25 July R was transferred to G Ward.

40. On the 13 August a young female patient made a complaint against R of sexually inappropriate behaviour some of which was non-consensual. She claimed that R had told her that two of his older sisters had forced him to have sex with them.

41. As a result of these allegations R was transferred to the I hospital and was placed on 'level 4' (ie constant) observations.

42. In early August WN and UN told R that they believed WN was his father. On 9 August, in a family therapy session R asked their permission to share this 'secret' with the therapist.

43. On 15 August two social workers visited UN and WN to discuss the sexual allegations made against R.

44. On 21 August R told two members of I hospital that his older sisters, BX and AX, had had sex with him.

45. On 10 September a female patient reported that R, the only 12 year old boy on the ward, had kept asking her to kiss him. Three days later a fellow male patient alleged that R sexually assaulted him. The accounts of this patient vary and culminated in a retraction and an admission that the initial allegation had been 'a lie'.

46. There followed various meetings between professionals at I hospital some of which included UN and WN and conversations between the then allocated social worker and UN and WN.

47. These meetings included professionals' meetings on 2 October, 19 October and 19 November which culminated in R's discharge from I hospital on 26 November 2012 into the care of UN and WN, after a period of home leave from 23 November.

48. In January 2013 Ms B says F complained his penis was sore and he had difficulties urinating. She saw glitter on his penis. When she asked where the glitter had come from F is alleged to have said that E had put it there. Ms B claims that on returning F and L to WN at the conclusion of contact she told WN about what F had said. It is alleged that WN replied 'Kids will be kids'. WN denies the conversation took place.

49. As a result of F's complaint of having a sore penis Ms B took F to hospital. A diagnosis of balanitis was made and medication was prescribed. There is no reference in the short discharge summary to glitter or blood being found, on clinical examination, on F's penis.

50. In or about May or, perhaps, July 2013 Ms B's sister came upon L lying on top of F in a bedroom. When asked what they were doing they said they were 'sexing'. When further asked from where they had heard this term, L replied they had seen R 'sexing' but neither gave more details. Ms B claimed that she told WN about this incident but he allegedly just laughed off the matter saying they were just young. WN denies the same.

51. On 1 October 2013 R was arrested for an assault on his mother and WN. He was admitted to hospital having allegedly swallowed screws, nuts and bolts. The following day R was placed in foster care. He has not subsequently returned to the care of his mother.

52. A referral was made by R's school to the police and social services on 29 January 2014 in relation to alleged sexual activity by R with a fellow pupil. As a result R was spoken to by a social worker and a police officer on 31 January 2014 during which he admitted sexually abusing E.

53. Subsequently E was seen by a social worker and two police officers. She told them she had been sexually abused by R. On 3 February E underwent an ABE interview in which she spoke in graphic detail about R's sexual activity with her. E was accommodated by the local authority and placed with foster carers with the consent of her mother. She has remained in foster care to date.

54. On the same date R was interviewed under caution in respect of his sexual activity with E. On 13 and 14 May 2015 R was found by the Youth Court to have committed sexual offences against E and L.

55. On 18 February 2014 these care proceedings were issued in respect of all of the children save for, the then unborn, T. Three days later A , F and L were placed in foster care. P was placed in the care of her father, Mr Y. Later, on 5 August, Q joined her sister in her father's care.

56. On 3 March 2014 F told his social worker that E had touched his willy once and put glitter on it. Thereafter in March both F and L were reported to have displayed inappropriate sexual behaviour in school.

57. On 19 March R was further interviewed by the police.

58. T was born on 8 April.

59. L told his foster carer that R had sexually interfered with him. A week later on 13 May L underwent an ABE interview with police.

60. On 19 May R was seen by the Children's Guardian. The following day he sent an email to the guardian in which he alleged for the very first time that his mother and WN had forced him to perform a sex act upon the family dog – a female Husky. R had made no allusion to this allegation in his earlier interview with the police nor in his interview with the guardian.

61. R was further interviewed by the police under caution on 4 June.

62. On 25 July A told her foster carer that F and L 'have sexed me on the landing at home'. A underwent an ABE interview on 15 August.

63. On 28 October R was placed at BM house, a therapeutic placement for boys exhibiting harmful sexual behaviour. I note that the principal reason for moving R to this establishment was because of the very high degree of close supervision to which R would be subject. Nevertheless further episodes of R engaging in consensual sexual activity with, at least, one other resident have been reported.

64. On 1 June 2015 it was reported that L told his foster carer that he had told 'his dad' WN, of R's sexual activity with him.

65. On 17 July R was sentenced to a 2 year supervision order for the rape of E and L.


Children and Evidence

66. I was asked by all parties, as a preliminary issue, in advance of this hearing, to consider whether any of the children who had been interviewed by the police should give evidence at this hearing. I was invited to determine that issue having had the opportunity of viewing the DVDs of the ABE interviews and reading the respective transcripts of the same. I regret the tape recordings of R's interviews under caution were either inaudible or were so distorted as to be unintelligible.

67. No party submitted that I should hear evidence from any of these children.

68. In a preliminary written judgment I said:

i) In these proceedings the local authority seeks divers findings of fact in respect of the alleged sexual abuse of various children and of sexual activity between various children. The findings of fact previously made by HHJ Helen Hughes were recently substantially set aside by the Court of Appeal. The matter is listed before me for a 10 day fact finding hearing commencing 4 July 2016.

ii) Four children make allegations of sexual abuse. They are: E, aged 12, R, aged 16, L, aged 8 and A, aged 9. E, L and A underwent ABE interviews on 3 December 2014, 13 May 2014 and 15 August 2014 respectively. R underwent ABE interviews on 19 March 2014 and 20 June 2014. He was interviewed under caution on 3 February 2014 and 4 June 2014.

iii) The quality of the tape recordings of R's interviews under caution are exceedingly poor. The speaking clock further impairs one's ability to hear what is being said. Thus it is difficult to understand what R is saying let alone to attempt to evaluate what he is saying.

iv) I have watched all of the DVDs, of the children's ABE interviews, paying close attention to those passages identified by the parties and set out in an agreed schedule.

v) No party seeks for any of the children to be called to give evidence at the fact finding hearing. This stance, however, does not relieve me of the task of coming to a decision on whether all or any of the children should give oral evidence.

vi) In considering this matter I proceed on the assumption that all appropriate special measures would be available to support and assist a child witness, including the following:

a) the child would give evidence by video link;

b) the child would have the support of an intermediary,

c) he or she would view the ABE interviews a few days before giving evidence;

d) a visit to the court to familiarise himself/herself with the court room and video suite;

e) the child being provided with a list of agreed/approved written questions that any party would seek to ask the child; and

f) short periods giving evidence interspersed with breaks of an appropriate length.

vii) When considering this issue I have well in mind the judgment of the Supreme Court in Re W [2010] UKSC 12. There is no presumption or starting point that a child should not give oral evidence. In giving the judgment of the court, Lady Hale said at paragraphs 23 to 27:

"The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided. Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given great weight.

In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors. One will be the issues it has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations. Another will be the quality of the evidence it already has. Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined. Sometimes there will be nothing useful to be gained from the child's oral evidence. The case is built upon a web of behaviour, drawings, stray remarks, injuries and the like, and not upon concrete allegations voiced by the child. The quality of any ABE interview will also be an important factor, as will be the nature of any challenge which the party may wish to make. The court is unlikely to be helped by generalised accusations of lying, or by a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up, or by a cross-examination which is designed to intimidate the child and pave the way for accusations of inconsistency in a future criminal trial. On the other hand, focussed questions which put forward a different explanation for certain events may help the court to do justice between the parties. Also relevant will be the age and maturity of the child and the length of time since the events in question, for these will have a bearing on whether an account now can be as reliable as a near-contemporaneous account, especially if given in a well-conducted ABE interview.

The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child. Further specific factors may be the support which the child has from family or other sources, or the lack of it, the child's own wishes and feelings about giving evidence, and the views of the child's guardian and, where appropriate, those with parental responsibility. We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence. The risk of further delay to the proceedings is also a factor: there is a general principle that delay in determining any question about a child's upbringing is likely to prejudice his welfare: see Children Act 1989, s 1(2). There may also be specific risks of harm to this particular child. Where there are parallel criminal proceedings, the likelihood of the child having to give evidence twice may increase the risk of harm. The parent may be seeking to put his child through this ordeal in order to strengthen his hand in the criminal proceedings rather than to enable the family court to get at the truth. On the other hand, as the family court has to give less weight to the evidence of a child because she has not been called, then that may be damaging too. However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.

But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child's evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an "Old Bailey style" cross examination is the best way of testing that evidence. It may be the best way of casting doubt upon it in the eyes of a jury but that is another matter. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child's stage of development."
viii) Whether true or not, the children give various accounts of the abuse they each suffered and/or the sexual activity in which they were involved. They were the subject of ABE interviews which now occurred some two years ago, and they spoke of events which had, they said, occurred some time before then.

ix) In respect of E, L and A , they are all relatively young. I am satisfied that it would be wholly contrary to the welfare of each child for them to be called to give evidence. They would be required to review and recall matters about which they spoke of some two years ago. Moreover it strikes me as extremely unlikely that any of them being required to give oral evidence would, at this stage, add to the forensic exercise I will have to undertake or to illuminate my path to determining the truth or otherwise of the allegations they have made.

x) The position in respect of R is different insofar as he is now 16 years of age. But his case is also more complex. He was interviewed both as a victim of sexual abuse and as an alleged perpetrator of abuse. He is a very troubled and vulnerable young man.

xi) I am in no doubt that the adverse consequences of requiring him to give oral evidence would be serious. The risk of the same causing him significant emotional and psychological harm are so great that I do not consider it necessary or appropriate to take that risk.

xii) Submissions can be made on the nature, history and quality of his various allegations and on any inconsistencies in his accounts. The forensic exercise I have to undertake is extremely unlikely to be assisted or advanced by R's oral evidence.

xiii) In the premises I come to the clear and firm conclusion that none of these children need to be nor should be required to give evidence at the forthcoming fact finding hearing.

69. There is nothing I have read or heard subsequently that leads me to alter the decisions I made in that preliminary judgment. Quite the reverse - I am reinforced in the conclusions I then reached.


R

70. I consider R to be a deeply troubled young man with complex emotional and psychological problems.

71. Making all possible allowances for those problems he was in my judgment an unimpressive witness during his ABE interviews. I twice watched these interviews carefully. R gave inconsistent accounts of a number of important matters. He was noted by the officers in the case to be keen to please and to give answers he thought they wanted to hear.  I found R to be an unreliable historian and I regret to conclude that it would be imprudent and unsafe to make any findings based on the uncorroborated evidence of R.

72. R alleged WN and UN forced him to have penetrative sex with the family dog. This is an allegation of a very different order from the other allegations of sexual activity in this case. It is the only one that directly involved UN and WN in sexual abuse.

73. I am particularly troubled by R's account of this allegation for the following principal reasons:

i) he made no mention of this event when interviewed by the police on 19.3.14;

ii) he made no mention of it when he was seen by his guardian on 19.5.14;

iii) it is first referred to by R in an email sent to his guardian on the morning of 20.5.14. This reads:

"To OM

When I was at home these are the things I forgot to tell you.
My mom slapped me the same night I was arrested, and she made me pick up dog poo with my hands. She made me do the washing up and ironing by myself. She also made forced me to [perform a sex act upon] the dog.

she also shaved my hair off but really rough.

This is what happened at Mr Xs. He treated me nastily and he made me beg for food, finally his daughters made me do sexual things with them.

from R"

The reference to sexual activity appears in the email almost as an after thought;

iv) in his police interview of 4 June 2014 when he is asked in detail about this allegation and was asked what the dog's reaction was, he said that the dog had an erection; the dog is female;

v) R asserted the event took place in front of his siblings. First I consider it most unlikely that that would have happened. Second, still less, in my judgment, would all of his siblings been laughing as R asserted. Furthermore, none of the other children at any stage have reported or even alluded to such an event.


E
74. E underwent an ABE interview with the police on 4 February 2014. She was 10 years old.

75. She described in detail the sexual abuse perpetrated by R and that it had hurt.

76. It is noteworthy that E uses the term that R 'sexed' me when describing his abuse of her. The term is used by A, F and L. I shall come to the significance of this phrase later in this judgment.

77. After the abuse had ended E confirmed that her bottom hurt and then said 'after a bit it started bleeding and then mum put…..do you know one of them towel?' and a little later she said, 'like a little bit and then [the bleeding] started to get like the towels like getting my blood's getting a little bit bigger and mum put like them towels on me'.

78. E confirmed to the police officer that she was bleeding. E said she told her mother what had happened and 'she never had none of that ointment and then she over the shop for me and then got me some…..a sani towel'.

79. She was asked who knew about this incident and E replied "Mum, it was only Mr Y, Mr Y living with her but my mum just wanted to keep it to herself, she didn't want to tell no one else".

80. E appeared to be giving a truthful account about R's abuse of her and of the aftermath involving bleeding from her bottom and the role of her mother. Her manner and demeanour throughout the interview were consistent with her speaking about what she had experienced. She gave a free flowing narrative account of events interspersed with questions of clarification from the police officer. She did not hesitate or appear to be giving any sort of rehearsed account. She did not give any exaggerated details in her interview. Furthermore, I do not understand how a young ten year old girl could have described, in such detail, the penetrative acts and the aftermath of the same unless she was describing what had actually happened to her.

81. I note E has not wanted and does not want any contact with her mother. I do not, however, draw any inferences from the same when considering her account of this event.

82. In June 2015 E was talking with Mrs K, her foster carer, about her forthcoming holiday. Mrs K recorded in her foster carer's logs that E then said, ' I bet you will be kissing all night', and then said ' her mom and WN were always kissing' and that, ' WN dressed up in  her mom's bra and thong to make us laugh'. Some days later she returned to the foster carer's home from a school trip extremely upset and said 'I wish my mom was arrested for what she done to me'.

83. WN and UN denied in evidence that they were always kissing or that WN dressed up in UN's bra and thong.


A
84. A underwent an ABE interview with the police on 15 August 2014. A was 7 years old.

85. In the course of her interview A said that 'F was sexing me and L was sexing me'. When asked what 'sexing' was she replied 'rude'. When asked what they had done she said 'they done that' and A held the crutch of her trousers. She explained that L and F had done this to her at home and that F had done it to her at school.

86. A said that F and L had said 'let's sex' when they were all upstairs. She reported that at various stages she and/or F and/or L had no clothes on. She demonstrated the actions of the boys touching her in, on or around her vaginal area which hurt her. Her 'mum and dad' were downstairs but she said 'I didn't want to tell the cos I was going to get involved in what I tell – tell mum and dad, so I didn't say anything to them'.

87. Having carefully seen, heard and read what A had to say in her police interview I am satisfied she gave a truthful account. She was coy and twisting her trousers and her hands in the early stages of the interview.  Nonetheless she was clear in her detailed and unprompted account apart from appropriate questions to clarify what she had said in interview. Her evidence was accompanied by clear and graphic physical gestures to demonstrate what she said had been done to her.

88. The officer asked whether what the boys had done to her hurt her. She eventually replied 'it just makes me sore and do my head it'.  I note the police officer referred to whether this hurt her, A's reply that 'it makes me sore' are her own words unprompted by the officer using that term.


F

89. F was not the subject of an ABE interview with the police.

90. On 3 March 2014 F was seen by his then social worker, Social worker M. He was almost 8 years old. He told Social worker M that he felt safe living with his foster carers and thought he was removed from his home into foster care because his brother L had shown 'his private parts at school'. The social worker's log then records 'F stated that he never did it and no one has asked him to but that his big sister (E) did touch his willy once and put glitter on his willy but does not know why she did this'.

91. In the days following this visit F and L's school reported both boys exhibiting sexually inappropriate behaviour at school.

92. There are no other reports of F talking about inappropriate sexual behaviour or engaging in sexual activity with any of his siblings.


L
93. L underwent an ABE interview on 13 May 2014. He was 6 years old.

94. L described to the police officer what he said R had done to him.

95. The account given by L of R's rape of him and of other sexual activity involving R is particularly detailed and graphic. I am entirely satisfied that L's account taken with his demeanour during the ABE interview is wholly consistent with L describing events he experienced with R.

96. There is a reference in a contact supervisors log to L making some reference on 1 June 2015 to telling his father, WN, of R's abuse of him. WN denies the same. The author of the note in the log was not called to give evidence. It appears from the note that she questioned L about various matters – I do not suggest inappropriately. In the premises I agree with Mr Tillyard's submission that it would be unsafe and unfair for me to make any finding against WN based solely on this one short note.


Evidence: Fact Finding

97. I read all of the statements, reports and documents which I was invited to read or to which I was referred to during the hearing. I viewed the DVD recordings of R's, E's, A 's and L's ABE interviews on two occasions, before this hearing and during the course of the same.

98. I am immensely grateful to leading and junior counsel for the local authority for a most helpful written opening and accompanying written materials. I am most grateful for leading and junior counsel for the other parties for their position statements which clearly identified the issues in dispute. I am indebted to all counsel for the focussed written submissions filed on the fact finding aspect of this case.

99. I heard oral evidence from the social workers, Social worker C, Social worker D, Social worker M, Social worker O, Social worker H; a ward manager at I hospital, Nurse K; a psychologist, Dr V; E's foster carer, Mrs K; Mr Y, Ms B, her partner Ms M, UN and WN.

100. Of note, no party required the attendance of any of the police officers to give evidence at this hearing who were involved in:

a) speaking with the older children prior to them being interviewed;

b) who conducted the various ABE interviews with R, E, A and L; or

c) who undertook R's interviews under caution.


Analysis: Fact Finding
101. WN and UN made serious and serial criticisms of the local authority in respect of its care and placement decisions in respect of R. I have some sympathy with those criticisms.

102. In the lead up to R's discharge from I hospital in November 2012 it had been the unanimous view of the professionals at that unit that R required placement in a specialist residential unit. Their concerns centred upon R's complex needs, the risk he posed to himself of life threatening self harming and to his episodes of wholly inappropriate sexual behaviour towards a number of fellow patients. The local authority's funding panel, however, refused to approve resources for his placement at such a unit. Instead it was proposed that R should be placed in a specialist foster placement. It was the consensus of all professionals involved with R that the identified foster home was so far away from R's family home that such a placement would be contrary to his welfare best interests. One option was left – a placement at home.

103. It is right to note that UN strongly opposed R's placement in a residential unit. She strongly wanted R to return home. She and WN sought to assure the professionals that they would be able to supervise R at all times especially around his siblings.

104. It was in late November 2012 that R was discharged from I hospital to his mother's home. Regrettably the support package that was supposed to be offered to R and his family was not all that it had been planned to be or should have been.

105. It is unfortunate that the local authority only now criticises UN and WN for their failure to supervise R closely and at all times when he was in their home. It ought to have been clear from November 2012 that they would have struggled to do so given the enormous great demands on their time with seven and then eight children to be cared for in the home.

106. I accept the submission made on behalf of UN and WN that R had in the past and subsequently when placed at BM house, where he was under the closest supervision, continued to be involved in inappropriate sexual activity with fellow residents. WN and UN characterised R as manipulative. I agree, but recognise that R was himself the victim of sexual abuse by his paternal family members when he was a young child.

107. There is, nevertheless, a qualitative difference between a young person living in residential care with a corporate parent and a young person living in the home of his mother and his siblings. The latter have an emotional and psychological connection with and to the young person, namely R.

108. Mrs K is E's foster carer. On 14 June this year E was enjoying contact with her sisters P and Q. Mr Y, their father with whom they live, was present. At some point he engaged Mrs K in conversation. Her account  of the same is set out in her witness statement of 28 June this year, the relevant part of which reads as follows:

"Towards the end of contact when the children were still playing outside in the garden on the trampoline, Mr Y said to me "Can I tell you something?", I light heartedly said "go on then", not knowing what he was going to tell me but thinking that maybe he had a new girlfriend or perhaps he had something to tell me about the family. Mr Y said "You won't tell anyone will you?", again; light heartedly I said I didn't have anyone to tell (meaning we didn't socialise in the same circles so there was no one to tell).

Mr Y went on to tell me that with all this that has happened with the children, and looking back, he said "I think she must have known what happened". Mr Y continued to tell me he remembered one day when he was out the front of the house talking to a friend, when UN came out of the house. Mr Y asked her where she was going and he said that UN had told him she was going to buy some tampons for E as she had started her period. Mr Y said he was very surprised and questioned E's age. Mr Y said that UN had told him that some children start their periods early. At the time Mr Y said he didn't talk of such things and if his wife had said this then he thought she was right and perhaps 1% of girls did start their periods early. Mr Y said that he had asked if his friend knew this too although he said he didn't.

Mr Y continued to say that if he had known he would have "beat him up and kicked him out the house". Mr Y was referring to R.

I asked Mr Y if he had given this information to a Social Worker and he said "No, as it would cause arguments with UN".

I told Mr Y that I would have to inform the Social Worker of what he had said. Mr Y told me that "I'll deny it and say I wonder where she got that from", meaning me. The conversation ended. Mr Y and I did not speak about this conversation again."

109. Mr Y filed a statement in response but, more importantly, he gave evidence about this conversation. Mrs K was clear and confident that her statement contained a full and accurate account of her conversation with Mr Y. She did not waver from that stance in cross-examination.

110. Mr Y agreed with every line of Mrs K's statement as being a fair and accurate account of his conversation with her save for one crucial passage namely:

"Mr Y continued to tell me he remembered one day when he was out the front of the house talking to a friend, when UN came out of the house. Mr Y asked her where she was going and he said that UN had told him she was going to buy some tampons for E as she had started her period. Mr Y said he was very surprised and questioned E's age."

111. Mr Y asserted that Mrs K had misinterpreted what he had said to her in the above passage. Part of his case was that his broad regional accent may have caused Mrs K not to understand him. Mrs K was clear that she had lived in the region for most of her life and had no difficulty whatsoever in understanding Mr Y.

112. His explanation was that he was not referring to UN in this disputed part of the conversation. Rather he contends that he told Mrs K that he was at the home of a friend called U. He was discussing aspects of this case with U when he went outside for a cigarette. At some point U came out of her house and he continued his conversation with her by referring to what E had said in her police interview alleging that her mother had gone across to the shop to buy her some sani towels.

113. I have the greatest difficulty understanding or accepting Mr Y's version of events for the following principal reasons:

i) early in his evidence Mr Y explained that he had spoken to Mrs K because he had no one to speak to about the case and he simply needed someone to speak to about this matter. I do not understand how this account sits with Mr Y's later account that he had been talking in some explicit detail with his friend U;

ii) 'U' neither filed a statement about this issue nor was she called to give evidence;

iii) given that Mr Y had effectively started his conversation with Mrs K by saying 'I think [UN] must have known what happened', his account of what he said to Mrs K is a complete non sequitur. It makes no sense at all; and

iv) in contrast what Mrs K recorded he then said to her makes perfect sense, namely that Mr Y then explained why he believed that UN 'must have known what happened'.

114. In my judgment Mrs K was an impressive witness who gave her evidence in a clear and measured fashion. This is in very marked contrast to Mr Y. I found him to be a singularly unimpressive witness. His evidence was, at best, confusing and in the ultimate analysis incomprehensible.

115. I prefer the evidence of Mrs K; Mr Y lied in his written and oral evidence about their conversation of the 14 June 2016.

116. I ask myself why he is lying. I can think of no innocent explanation. His account that he feared he would be in trouble for talking about the case might explain his immediate reaction to Mrs K that he would deny the conversation – although in my judgment it does not. This does not however provide any excuse for him lying in his evidence because on either scenario – his or Mrs K's – he was talking to a third party about the case.

117. I conclude that Mr Y denies Mrs K's account of his conversation with her because he knows that it plainly implicates UN in knowing about the abuse E suffered at the hands of R. Why would Mr Y wish to protect UN from that finding? I do not know because he has failed to give a truthful account.

118. I am inclined to find that he was telling Mrs K the truth. In which case it would mean there was an occasion when UN left the house and told Mr Y she was going to get some sanitary towels for E. Before reaching a concluded view, I must consider UN's response to the fact of this conversation which she denies having taken place.

119. I heard evidence from F's mother, Ms B, who is the former partner of WN about two events, the first relating to F and the second involving F and L. Ms B was supported in her account of events by her partner, Ms M.

120. It was said that in that in January 2013 F had a painful penis and could not urinate. At some point Ms B that said she saw glitter and blood on F's penis. She asserted that F said that E had put glitter on his penis. Ms B took F to hospital. She alleged that in a telephone call to WN on 5 January 2013 she alerted him to the fact that she was taking F to hospital and told him of F's allegation. WN denied the latter. Further Ms B said that when she returned F and L to WN's care on the following day – at the conclusion of her contact with the boys – she repeated to WN what F had told her.

121. The second event is said to have occurred sometime between May and July 2013 when Ms B's sister had seen L lying on top of F in the early morning in their bedroom. When asked what they had been doing, it is said one or other or both of the boys said they had been 'sexing'. Ms B once more asserted that on returning the boys to WN's care on a Sunday evening she repeated these matters to him; WN denied the same.

122. Ms B and Ms M both gave evidence at the hearing. Ms B was very unclear and hesitant about the sequence of events described above. Ms M was, I regret to say, an even more unimpressive witness. She was truculent and extremely hesitant. Her evidence was punctuated by very long pauses when she had been asked seemingly clear and innocuous questions by Mr Tillyard QC, on behalf of WN. At one point in her evidence she stormed out of court. I rose. She returned. Her general demeanour was unchanged. When I asked why she had left court part way through her evidence, aside from commenting that leading counsel was 'doing her head in', she declined to provide any explanation for her sudden departure.

123. I remind myself that these alleged events arose in the midst of a contested private law dispute between Ms B and WN over the care arrangements for F and L in 2013. In her statement for this hearing Ms B claimed that WN had obtained the order he sought as a result of the lies he had told in those proceedings. Ms B was not able to elaborate before me as to what those lies were.

124. WN asserted in his evidence that Ms B had coached F to make the allegation that E had put glitter on his penis. That allegation was not put to Ms B when she gave her evidence (before WN had given his oral evidence). In closing submissions that allegation was not pursued on behalf of WN. Indeed the concession was made that:

"The first is that some stage F did have some glitter on his penis and E had in some way put it there – maybe when they were doing arts and crafts as he told Ms B. It is unlikely that this whole thing is a complete fabrication on the part of Ms B and the children have referred to it when speaking to others after the event…

…we suggest that F probably did mention to Ms B that weekend that E had put glitter on his penis…"

125. On the basis of that concession and taking into account what F said to his foster carer about E putting glitter on his penis, I am satisfied that this event did occur. Accordingly I am satisfied, on the balance of probabilities, that in the course of sexual activity between F and E, she put glitter on his penis. I do not see how she could have 'innocently' put glitter on his penis in the ordinary course of an arts and craft activity.

126. Furthermore I am satisfied that Ms B and Ms M accurately report that F and L explained what they were doing in their bedroom, when seen by Ms B's sister, 'sexing'. It is a phrase used by both the boys and independently, in relation to other events, by both E and A.

127. It may be that both Ms B and Ms M are telling the truth that in respect of the 'glitter' incident and the 'sexing' incident that Ms B told WN of the same when the children were returned to WN at the conclusion of staying contact. I regret, however, that given they were both such unsatisfactory witnesses and that these allegations of telling WN arose in the course of disputed private law proceedings, I am not persuaded on the balance of probabilities that either occurred. Accordingly I decline to make the finding that Ms B did tell WN.

128. It is acknowledged by all parties that Ms B reported the 'glitter on the penis' episode to the CAFCASS officer appointed in the private law proceedings. This officer referred the matter to the local authority who contacted WN. I shall refer to the significance of this referral later in this judgment but the fact that Ms B reported the matter to CAFCASS does not alter my previous conclusions set out above.


WN and UN

129. I readily recognise the burden on WN and UN of caring for seven and then eight children, on the birth of T. I further recognise the enormous great burden and challenge that caring for R presented, for UN, before his admission to hospital in July 2012 and then, for both of them, after his discharge in November 2012.

130. I accept that the standards in the home and the physical care of the children were invariably good. I was referred to by Miss Meyer QC, leading counsel for the mother, in closing submissions, and accept, a number of references where social workers and other professionals had commented favourably on the mother's physical care of the children and of her co-operation with them.

131. WN and UN were in late 2012 very keen that R should return home. They were eager to impress upon the professionals, both at I hospital and the social workers, that they were more than equal to the challenge of caring for R in their home and that they would ensure that he was supervised at all times.

132. UN is of low/borderline intellectual ability. I had the benefit of the report of 15 May 2014 from Dr Allen, a chartered clinical psychologist, outlining the consequences of her assessed intellectual ability and what steps should properly be taken to accommodate the same and to ensure she was able to give of her best in evidence. His guidelines were adhered to and I ensured that UN had regular breaks in her evidence and that counsel asked short easily understandable questions which avoided the use of complex language or professional jargon.  

133. Nevertheless having made all due allowances for UN's difficulties and WN's nervousness, I regret to find that they were very deeply unimpressive witnesses. I go further, I am satisfied so that I am sure that both of them repeatedly lied to me in crucial parts of their evidence. I have carefully considered whether there are any innocent explanations for the divers lies. I am wholly satisfied that there are none whatsoever.

134. I have reached these stark conclusions for the principal reasons that I set out below.

135. I note first that both Mrs and WN were clear in their evidence that they accepted the children's accounts of sexual activity between themselves, notably the evidence of E, A, F and L, because of the graphic nature of what they each described and, most importantly, because in the case of UN, 'if that is what the children said it must be true'.

136. Of course that acceptance of the children's primary allegations does not explain why, for example, UN does not accept E's account of having told her mother of R's abuse of her or of her mother dealing with her rectal bleeding with the use of sanitary products. UN offers a bare denial of E's account along with an assertion that she saw no signs of sexual activity between her older children.

137. These bare denials set against the powerful evidence given by E in her ABE interview taken with what I find to be Mr Y's truthful account of his conversation with Mrs K of 14 June 2016, lead me to the clear and unhesitating conclusion that E is telling the truth. UN knew at the time that R had anally raped E. I am wholly satisfied that she told both children to keep quiet. Very very sadly I am driven to the conclusion that she did so because of her own tragic experiences of being a victim of sexual abuse as a child. I entirely accept that in rational moments and, especially when giving evidence in court, she would express the view that she would report such matters to the authorities, but her own defensive mechanisms to avoid or not to confront issues of abuse led her to want to conceal what E had told her. I am in no doubt that E gave a truthful account of these events in her ABE interview.

138. For like reasons I am entirely satisfied that Mr Y was speaking the truth in the account that Mrs K reported: see paragraph 118 above. I unhesitatingly reject the contrary bald denial offered by UN and Mr Y; they are both plainly lying.

139. Both WN and UN deny ever having heard any of the older children using the terms 'sex me' or 'sexing'. It is a term referred to by E, A, F and L. I cannot accept that this term was not overheard by WN or UN at any point during the time the children were with them and especially after November 2012 when R returned to the family home.

140. UN, but to a greater degree WN, both sought to deny that they were aware of the risk that the professionals thought R posed to his siblings of inappropriate sexual behaviour if and when he returned to the family home. I entirely accept that the advice of I hospital was not to 'focus' on the risk of sexual abuse, but that is not to say they advised that R posed no risk to his siblings.

141. I am entirely satisfied that WN and UN were advised of and well knew of the risk of sexual abuse and/or sexually inappropriate behaviour that R posed to his younger siblings prior to his return home in November 2012. This issue was raised with WN and UN on several occasions by the staff at I hospital and by the social workers. I rely, in particular, on the account given by the deputy ward manager Nurse K of a telephone conversation with WN and UN on 13 August 2012 during which she gave full details of R's inappropriate sexual behaviour in the hospital.  I have no hesitation in accepting Nurse K's account of that conversation.

142. This issue leads me to refer to two matters which caused me very great concern. Unfortunately neither leading counsel for UN or leading counsel for WN were, with the greatest of respect to both of them, able to alleviate my concerns. First, UN became upset during the telephone conversation with Nurse K on 13 August 2012 and asked WN to speak to her. It is not entirely clear what details were reported to UN and what details were reported to WN. In a sense it matters not because the essential issue is what happened afterwards. WN told me in evidence he could not remember what was said during this telephone call but he did remember that UN became very distressed during the telephone call. After the call ended they both claim neither of them discussed what Nurse K said or why UN became so upset.

143. I remind myself that this telephone call was made within days of UN telling WN she believed WN was R's biological father and them telling R of this claim. Despite all the meetings and appointments WN and UN had to attend at this time, how does one forget that one's son has been accused of serious sexually inappropriate behaviour? Why did they, as they both claim, never discuss the telephone call or the reason for UN's distress? If true, it demonstrates a truly staggering disregard for R's welfare and an ability to ignore the blindingly obvious and grave issues.

144. I simply do not accept either of them are telling me the truth. I am driven to the conclusion that they are both lying. I cannot discern any innocent reason for either of them doing so. I find they are lying to conceal the truth about what was happening in their home.

145. The second issue relates to the allegation that E put glitter on F's penis. This was reported by the local authority to WN. He accepts he was so notified. UN claimed WN did not mention this allegation or this telephone call to her. His failure to do so concerned her. In marked contrast WN asserted that he did mention the allegation and the telephone call to UN but she was busy at the time and said they would discuss it later but they did not. Why not?

146. WN said he spoke to F who denied the allegation. No one spoke to E. Why not? Neither parent was able to explain that singular and serious omission.

147. The local authority did not seek to investigate this allegation at the time. It was wrong not to do so but its failure does not alleviate the duty on WN and UN to protect their children. This was an allegation that one of their children had acted sexually inappropriately with another one of their children. Yet these parents effectively did nothing. They neither discussed the matter with each other nor took any steps to afford protection, or a greater degree of protection, to their children to cover the possibility that something was amiss in their household.

148. The only possible explanation for their failure to discuss the same – and I am satisfied they could have found time to discuss this matter if they had wanted to – is either (i) they are lying or (ii) they did not want to consider the allegation of sexually inappropriate behaviours. They wanted to pretend it had not happened and the allegation had not been made. Either is equally serious. I am entirely satisfied that both WN and UN have taken the stance not to be open and honest with this court about what was going on in their household.

149. The sexual activity which was taking place in the mother's home and then in the home of WN and UN was extreme and serious in relation to children of such tender years. Nevertheless neither of them claimed to have heard or to have seen anything at all .They did not even hear any inappropriate language on the part of any of the five older children, for example, the phrase 'sexing'. R may have been manipulative and accomplished in concealing his sexually inappropriate behaviour but the same cannot be said of E, A, F and L.

150. It is very tempting to conclude that in all of the circumstances of this case, R's abuse of E aside, that the parents must have known about the serious sexual activity taking place between their children. In my judgment, however, I must resist that temptation.

151. I am entirely satisfied on the totality of the evidence, and find, that WN and UN ought to have known about the sexual activity. They chose to close their eyes and ears to what was happening in their home. As a result no steps whatsoever were taken to protect these children.

152. In terms of child protection this finding is as grave and as serious as a finding that they knew about the sexual activity. Especially in the circumstances where UN, at least, knew that R had sexually abused E, as I have found, and they both knew of the real risk of sexual abuse that R posed to his siblings.

153. I am in no doubt that the mother's avoidant stance arises from her own distress and the emotional and psychological damage resulting from her own childhood experiences of being sexually abused. I do not understand why WN acted as he did.

154. One final matter. UN believed, apparently, that R was conceived as a result of a 'one night stand' with WN on her 18th birthday. A moment's thought would have revealed WN could not have been R's father unless UN had an eleven month pregnancy. Nevertheless, within days of beginning their relationship UN told WN she believed he was R's father. He accepted the news without a second thought.

155. Then within days, and knowing R was in an exceptionally vulnerable state and self harming, they told him they believed WN was his father without first speaking to a single professional involved in R's care. The lack of thought about the potential impact on R is extraordinary. Worse still R appears to have thought this news was a secret. In a family therapy session R asked the permission of WN and UN to share this 'secret'. WN denied this news was a secret but he could not explain why he did not correct R and say it was not a secret.

156. This episode is very troubling. Whilst it does not assist me in determining the state of knowledge of sexual activity on the part of WN and UN, it does provide an insight into their functioning, namely the fact that they could act and behave in callous disregard for the welfare best interests of one of the children. 


Findings of Fact

157. On the totality of the evidence that I have seen, read and heard and for the reasons I have set out above I make the following findings of fact. Save where I have expressed myself to be satisfied beyond all reasonable doubt, I make each of the findings of fact on the balance of probabilities.

158. With reference to the local authority's Schedule of Finding of Facts Sought dated 8 March 2016, I make the following findings of fact:

i) within the household of UN and WN the following children were involved in sexual activity:

a) R and E;

b) E and F;

c) F and L;

d) R and L;

e) F and A;

f) L and A;

ii) On one occasion in 2010 R sexually assaulted E. R was found by the Youth Court to have committed a sexual assault against E.

iii) R has sexually abused L when L was 6 years old, in the ways alleged by the local authority.

iv) In or about December 2012 or January 2013 E placed glitter on F's penis. It was a sexual activity. F was 7 years old at the time.

v) L and F have engaged in sexual activity with one another.

vi) F and L have, on more than one occasion, indecently assaulted A as alleged.

159. With reference to the local authority's Schedule of Finding of Facts Sought dated 18 May 2016, I make the following findings of fact:

i) Both before and after they commenced a relationship in about Summer 2012 UN and WN each failed to maintain appropriate sexual boundaries in their homes and for the children in their care;

ii) R, E, A, F and L have been involved in sexualised contact;

iii) In 2015 R was found by the Youth Court to have sexually assaulted E in 2010 whilst living in the home of UN. When R was about 12 and L was about 6 R sexually assaulted L, which was found by the Youth Court in 2015, caused L to perform sexual acts upon him;

iv) The behaviour described in paragraphs (ii), (iii), (iv) above has resulted from:

a) the failure of UN and WN, both individually and collectively, to maintain appropriate sexual behaviours in their home; and

b) UN and WN each having failed to protect the children from inappropriate sexual conduct despite the fact that UN knew in respect of E and R and both ought to have known that such conduct was taking place.

v) In about 2010 E told UN that R had sexually abused her in the way alleged. UN failed to seek medical attention for E, to notify the authorities, to take action to safeguard E, to protect her from further abuse and to protect the other children within the home from suffering sexual abuse by R.

vi) UN and WN knew or ought to have known that R posed a risk of sexual harm to the other children in their home when he was returned to their care in November 2012 because:

a) in about 2010 E informed UN that R has sexually assaulted her. UN failed to act appropriately on this information;

b) UN told R and E not to tell anyone about R's sexual abuse of E; and I add

c) both were well aware of R's reported proclivities to engage in inappropriate sexual activity with fellow patients at I hospital in mid to late 2012.

vii) By reason of the matters set out above at the time the local authority initiated protective arrangements E, F, A and L were suffering and likely to suffer significant physical, sexual and/or emotional harm and P, Q and T were likely to suffer significant physical, sexual and/or emotional abuse attributable to the care likely to be given to them if an order were not made not being what it would be reasonable to a parent to give them;

viii) thus the threshold criteria of s31(2) 1989 Act are satisfied in respect of each child.

160. I make further findings of fact as follows:

i) I find that Mr Y gave a truthful account to Mrs K on 14 June 2016 of a conversation he had with UN in or about 2010 that she was going to  purchase sanitary towels for E;

ii) at that time and to date E has not started to menstruate;

iii) UN and WN's actions and approach are a matter of grave concern and demonstrate a serious indifference to issues of inappropriate sexual behaviour by the children and to affording them each appropriate protection;

iv) UN and WN ought to have known of sexual activity between R, E, A, F and L as found and set out above.

v) For the avoidance of any doubt I make it clear that I do not make the findings of fact sought by the local authority beyond those which I have expressly made

161. I do not make the findings of fact sought by the guardian namely neglect in respect of E and R. I completely understand why the guardian invited the court to consider the same, but I do not consider it necessary or proportionate to do so. The findings of fact sought do not materially add to the welfare issues which it now falls for me to determine.


Analysis: Welfare

162. After announcing my principal findings of fact I adjourned to enable the parties to digest and to formulate their respective cases on the welfare issues.

163. When the court reconvened I was invited by Mr Tillyard QC to give reasons for my principal findings and to inform the parties whether I had made a decision on other findings upon which I had reserved the same for further consideration. With the consent of all parties and in order to assist their discussions I read out from my working draft judgment those paragraphs dealing with the children's allegations, my analysis of the evidence of the adult parties and my findings of fact.

164. After a short adjournment I was told that the local authority maintained its position on the orders it sought in respect of E, A, L, F and T, namely:

a) long term foster care for E, A and L under the auspices of a care order;

b) in respect of F, the plan of placement with his mother is well advanced and it is proposed that the placement should be under the auspices of a Care order; and

c) the placement of T for adoption.

165. In respect of P and Q the local authority's stance had altered somewhat in as much as it is now proposed that they should remain living with their father under the auspices of a care order rather than a child arrangements order.

166. Mr Y, in the light of my findings accepted that his daughters, P and Q should be made the subject of care orders.

167. The guardian endorsed the local authority's proposal that F, P and Q should all be the subject of care orders but be permitted to live with their parent.

168. All parties are agreed that E and L should remain in long term foster care and should be made the subject of care orders.

169. Mr Z agreed with the local authority's plan that A should remain placed in long term foster care under a care order. UN had hoped to secure the return of A to her care. In light, however, of my findings against her and my reasons for the same, she recognised that this was not a feasible or arguable option. Accordingly she neither consented to nor opposed the order sought and care plan advanced by the local authority.

170. A was engaged in sexual activity by her older siblings when living with her mother and WN. There is a substantial risk that she would be exposed to sexual, emotional and/or psychological harm if she were returned to the care of her mother and WN. I have no confidence that either of them would afford her the necessary degree of protection to keep her safe.

171. I regret that the mother's avoidant approach to sexual matters would leave A exposed to a real risk of future harm. In all of the circumstances I am wholly satisfied that the only option which would ensure her protection is long term foster care. She has to date been safe, happy and settled with her current foster carers. I have no reason to doubt that A will not continue to thrive in that environment or, if the need arises, another foster home.

172. Both WN and UN had wished to secure the return of T to their joint care or to the care of one or other of them as a sole carer. They have each accepted, however, that in light of my findings against each of them and my reasons for the same, it is neither feasible nor arguable to seek that option. Thus neither consented to but did not actively oppose the making of:

i) a care order in respect of T; and

ii) a placement order authorising his placement for adoption.

173. WN and UN are to be commended for taking this realistic stance. I recognise, notwithstanding what I found and said about them earlier in this judgment, that that must have been a very difficult and painful decision for them to reach.

174. T has not suffered the harm which the older children were subject to. Nevertheless I am satisfied, for the reasons set out in the fact finding element of this judgment and for the reasons set out above in respect of A, that he would  be at substantial risk of suffering sexual, emotional and/or psychological harm if he were returned to the care of his mother and/or his father.

175. There are five options open to the court in respect of T:

i) a placement with his mother and father;

ii) a placement with his mother;

iii) a placement with his father;

iv) a placement in long term foster care; and

v) adoption.

176. I remind myself T is only two years of age.

177. A placement with one or other or both of his parents would have the very great benefit of T living with his birth family and being able to maintain contact with his siblings. The latter, in particular, is a very significant factor in favour of one of these options. The maintenance of those relationships would plainly be of inestimable benefit to T throughout the whole of his life. This factor has caused me to pause and reflect.

178. The disadvantage of any one of these three options is to expose T to a substantial risk of him suffering serious sexual, emotional and/or psychological future harm.

179. A placement in long term foster care would also have the benefit, in all likelihood, of enabling T to maintain relationships with his siblings. The enormous great disadvantage of this option and especially for so young a child, is that he would have a corporate parent throughout his minority, he would be subject to regular reviews and be at risk, from time to time, of having to move to new foster carers. He would not have the benefit of a secure stable placement with a permanent family.

180. The final option is adoption. This would have the singular benefit of providing T with a permanent family in which he could grow up and thrive in a safe and secure environment.

181. The disadvantages are obvious. His legal ties to his natural family would be terminated. He would lose, at least, for his minority and very possibly for the whole of his life, his relationships with his parents but, more importantly in my judgment, with his siblings.

182. I have very well in mind the guidance given by the President Sir James Munby in Re B-S [2013] EWCA Civ 1146 and McFarlane LJ in Re G [2013] EWCA Civ 965. I may only conclude that adoption is the appropriate course to approve where I am satisfied that nothing else will do in the welfare best interests of T.

183. Accordingly I have to weigh and balance the benefits of a permanent family against the loss of ties and relationships with his parents and his siblings. I have reached the very clear conclusion that noting else will do in T's welfare best interests other than him being placed for adoption. I am wholly satisfied that this is the only option which will allow T to live in a safe, secure and permanent family which will best enable him to achieve his full potential during his minority and throughout the whole of his life.


Conclusions
184. I approve the care plans for E, F, L, P and Q. I am satisfied it is in the welfare best interests of each of these children to make care orders in respect of each of them.

185. For the reasons I have given above I am wholly satisfied that the only realistic option for the care of A is long term foster care. In the premises I approve the care plan for her. It is in the welfare best interests of A to be made the subject of a care order.

186. T cannot return to the care of his mother and/or his father. A placement in long term foster care at his tender years would be wholly inimicable to his welfare best interests. The only option is adoption and nothing else will do. Accordingly I am satisfied that it is in T's welfare best interests that:

i) he is made the subject of a care order;

ii) I dispense with his parents' consent to adoption on the ground that his welfare requires me to do so; and

iii) T is made the subject of a placement order.

187. The future placements for these children has been on hold for a considerable period of time. I very much hope that each of them will now be able to lead safe, secure and stable lives in nurturing environments.

188. The local authority has set out its proposals for contact between the siblings and between the adult parties and the children. These are agreed by all parties, including the guardian, save for two areas of dispute.

189. In respect of F and L, the local authority proposes they should have contact together with WN and UN four times per year for four hours supervised in the community.

190. In respect of A, P and Q, the local authority proposes they should have contact together with WN and UN six times per year for four hours supervised in the community.

191. It is agreed that in addition there may be indirect contact by way of letters and cards to all of the above children.

192. The guardian agrees with and supports these proposals for contact.

193. WN and UN submit that they or, at least WN, should have contact with F and L six times per year and they should both have contact with A, P and Q on twelve occasions per year.

194. I appreciate and accept that the children generally enjoy the contact they have with WN and UN. The purpose of contact changes considerably once decisions have been made that the children are not to return to their care and the children's respective long term placements lie elsewhere.

195. A balance has to be struck between maintaining the relationships between the children and WN and UN and ensuring their stability and security in their placements. It is important that the message is received and understood by the children and the adults that these are their respective long term placements.

196. WN may not be F or L's biological father, but, if not their psychological parent, he is an important parent figure; F has been having contact seventeen times per year with WN and L weekly contact. A reduction, even a phased reduction to four times per year is too severe. The balance is struck in the children's welfare best interest at six times per year.

197. In respect of A, P and Q I agree with the opinion of the social worker and the guardian that the balance is struck in their welfare best interests at six occasions per year. Monthly contact is in my judgment too frequent in the circumstances of this case. It is inconsistent with the long term plan for all three children.

198. I note the local authority will keep the frequency of contact with all of these children  actively under consideration at the periodic LAC Reviews.