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K v K & Ors [2008] EWHC 1561 (Fam)

Judgment concerning a rehearing of previous findings of fact relating to care proceedings in the light of new evidence from the police.

In this judgment Black J had to reconsider findings she had made in a previous hearing after new evidence was revealed by the police during the course of a series of part heard hearings in front of different judges. Her lengthy reconsideration of the facts resulted in her overturning her previous findings and rejecting the father's allegations that he had been stabbed by members of the mother's family and that they had also set light to his home. Instead she found that he and his family had been instigated those incidents.

She also makes remarks at the start of the judgment concerning the difficulties caused by the lack of preparation of the evidence by the lawyers and the police.

______

Neutral Citation Number: [2008] EWHC 1561 (Fam)
Case No: FD07P00684
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/07/2008

Before :

MRS JUSTICE BLACK
- - - - - - - - - - - - - - - - - - - - -
Between :

 J K K   (Applicant)

 - and – 

 R S K  (1st Respondent)

- and –

S K K & S K K (by their Children’s Guardian)   (2nd Respondent)

- and –

London Borough Of Hounslow   (3rd Respondent)

- and –

B S K  (4th Respondent) 

Mr Clive Newton QC and Mr Alan McCormack (instructed by Messrs. Sweetman Burke & Sinker) for the Applicant
Ms. Lorna Meyer QC and Mr Dennis Sharpe (instructed by Challinors) for the 1st Respondent
Ms. Frances Orchover (instructed by Miss Melanie Carew) for the Children by their CAFCASS Guardian
Ms. Maria-Amalia Walker (instructed by London Borough of Hounslow) for the 3rd Respondent
B S K 4th Respondent in person

Hearing dates: 16th-18th April, 21st-22nd April, 3rd July 2008
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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.


.............................

MRS JUSTICE BLACK

This judgment is being handed down in private on 3rd July 2008. It consists of 35 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.


 
Black J:  
1. In September 2007, I gave a judgment making a considerable number of findings of fact in relation to the history of the marriage of J K (M) and R K (F) and in relation to events since that marriage broke down. As can be seen from the judgment, my findings were made after I had read the bundles, heard 4 days of evidence, received written submissions and spent 4 further days in detailed analysis of the evidence with which I had been presented. I lamented in that judgment the fact that I had been provided with very little material independent of the parties to guide me towards a secure evaluation of their diametrically opposed cases. In particular, I remarked upon the dearth of material from the police, despite their frequent involvement with the family. Munby J had ordered in May 2007 that the police produce the material that they had but they had not complied with that order and nobody had chased them up effectively. I made a new order during the September hearing and obtained some material from the police but it was extremely limited. I did the best I could in the circumstances and invited attention to what I had said in Re A (Contact: Risk of Violence) [2005] EWHC 851 (Fam) on the subject of proper preparation for fact finding hearings in cases where there are allegations of domestic violence.

2. The matter was listed for a hearing in October 2007 to consider what orders should be made in relation to the parties’ children, S (born 8 October 2005) and S (born 6 December 2006), in the light of my findings of fact. This hearing had always been listed before a different judge because it was not possible to find one judge to hear both parts of the case within a reasonable time. In the event, the judge was Mrs Justice Baron. She was approached at the hearing by the Surrey police who informed her that they had been conducting further investigations into what had been going on in the family and, in the course of these, had obtained material new evidence in relation to one of the allegations upon which I had adjudicated, that is the allegation that M’s family had stabbed F on 5 May 2007. The police had obtained a report from a pathologist to the effect that “given the nature of the description of events and wound appearances, the likelihood of self-infliction has to be seriously considered”. Mrs Justice Baron had no choice but to list the matter before me for me to reconsider my findings of fact. It was extremely fortunate that it was possible to rearrange the lists with a view to my dealing with that the following week. The re-hearing began but it proved impossible to conclude it within the time then available. It was therefore listed to resume in February 2008. Again, the court time available proved insufficient to conclude the hearing and the matter was adjourned part heard for a second time. The hearing was resumed for the final time in mid April so that the evidence and submissions could be concluded and this judgment given.

3. I will say little about the constant problems that have dogged this case in terms of the obtaining, collating and presentation of evidence because it is more constructive to concentrate on the substantive issues that need to be resolved. Barely a day went by without it being discovered that there was further evidence which should have been available but, for one reason or another, was not. By way of an example of this from the last days of the hearing, Mr Goad, the fire officer, told me during his evidence that the fire fighters who attended the scene of the fire at F’s home would have made statements describing what they saw which would have been provided to the police. These statements had never been made available for these proceedings despite requests for sight of the police material and no one appeared to have asked specifically if such statements existed. Another example concerned the photographs of the fire. As far as I am aware, everyone was using photocopies of one set of photographs until during the third and final resumption of the hearing, B K, M’s uncle who had been joined in the proceedings to answer allegations against him and who was acting in person produced a bundle of photographs which looked much more like originals. Reference to these and other originals revealed features which had been mistaken or overlooked before, such as the fact that blue marking on the burnt door was not just an artefact produced by poor printing of the photographs but real and the fact that what might have been taken for burning of the net curtains in the porch was more likely to be heat damage. When evidence becomes available piecemeal, it is much more difficult to take in its implications than it is when it is presented as a properly collated bundle at the outset. It also leads to frequent adjournments and adjustments to the time estimate. Meeting the challenges to which this gave rise was made immeasurably harder work by virtue of the fact that the hearing was part heard over 6 months.

4. At the outset of the new hearing, we considered the ambit of my reconsideration. My original findings of fact fell into two categories. One category concerned the behaviour of F and his family and of M during the cohabitation of the parties which continued until M left in March 2007. The other category involved the allegations made by F as to attacks of various types that he said had been carried out on himself and his family and friends and for which he laid the blame at the door of M and her family. I made detailed findings in the body of the judgment and I summarised my conclusions in paragraph 99 of my judgment where I said:

“I have formed the clear view that M was badly treated in the paternal household following her marriage and not permitted to take care of her own children. Once she was assisted to leave and told her family her account, they became incensed and embarked on a campaign which may have been by way of revenge or to prevent F from advancing his case for care of the children or perhaps for both reasons. Meanwhile, F’s family has attempted by all means at their disposal to call into question M’s capacity as a mother and a wife and to ensure that she does not obtain care of the children. Nobody therefore emerges from this with credit. The acrimony and aggression will be bound to have an impact on the welfare of the children if it continues.”

5. Paragraphs 82 onwards of the September judgment deal with the allegations made by F against M’s family about the post-separation period. These findings included a finding that F and his family and friends had, as they alleged, been subjected to abusive and violent conduct by M and her family. I specifically considered and rejected M’s submission that this campaign, including the stabbing of F, had been orchestrated by or on behalf of F in order to damage M’s position with the court and other authorities and to weaken her case for care of the children. Plainly, all of the findings in this category have to be revisited in the light of the new evidence about the stabbing. The relevant matters are:

i) Threatening telephone calls alleged to have been made by M’s family to F’s family and associates as follows:

a) On 27 April 2007 to F at work
b) On 29 April 2007 to N, F’s friend
c) On 3 May 2007 to S, F’s sister
ii) Damage to the windscreen of a car in F’s drive on 28 April 2007, alleged to have been caused by B K
iii) Threats made to ST on 1 May 2007 in the drive of his house by the driver of a white van
iv) An assault on F on 4 June 2007 when he was on his way to contact.

6. Mr Newton QC on behalf of M invited me to look again at certain of the findings I had made in relation to the period of cohabitation, notably the allegation that M had engaged in a ritual of some kind involving holding S over a fire in the garden and cutting a piece of her hair off so that it fell into the fire and the allegation that M slapped S. My finding in September was that the ritual had taken place but that it was not established that it was some kind of black magic as F alleged and could have been for luck. As to the slap, in September I rejected a considerable body of evidence produced by F about M maltreating the children but I did accept the evidence of one witness, RI, who described M slapping S on one occasion. I did this because I considered that there was no sufficient reason for RI to allow herself to be persuaded to lie and that on the balance of probability, what she described was true. Having considered my findings on both of these matters, the LA and the guardian nonetheless recommended that M should have care of the children and she has been looking after them on her own for some months now. In the circumstances, my view was that it was not proportionate to allow these findings to be fully reopened although I indicated that, whilst I was not prepared to permit more evidence and cross-examination on this topic, I would be prepared to hear submissions. As for the balance of the allegations including, for instance, the rape allegations which I did not find proved, it did not seem to me that it would be profitable to go back in any way over my earlier decisions. The catalogue of callous and damaging behaviour in which I had already found that the paternal family engaged towards M whilst she was living in their household was extremely damning. A renewed attempt by M to prove extra matters that she had failed to prove at the previous hearing was unnecessary for the purposes of determining what should happen in relation to the children. 

7. After I had concluded the September fact finding hearing and sent out my judgment, a fire occurred at F’s home on 29 September 2007. F alleged that this had been caused by B K. Mr K denied this. It was therefore common ground that the rehearing needed to be expanded to include a consideration of this fresh allegation. There had also been an incident when the children were being handed over at Mr K’s property to F’s family on 30 September 2007 for contact. I determined that I would hear evidence and make findings about this too.

8. I heard oral evidence from the following witnesses during the reopened fact finding hearing: Dr Jerreat (the forensic pathologist instructed as part of the police investigations), Dr Rouse (the forensic pathologist instructed by F), Dr Altaf (the casualty doctor who attended F on the evening he was wounded), F, PSW (a neighbour of F’s), G and S K (F’s brother and sister), NM and ST (both friends of F), M, Mr Jaldweicki (a forensic scientist), Special Constables Wallis and Shine, Mr Goad (a fire investigation officer for Surrey Fire and Rescue Service), DC McAlpine and DS Rambour from the Surrey police, B K, RK and KK (B K’s daughters), the Ks’ neighbour, and the guardian.

9. I also received invaluable assistance from the Surrey police who deputed DC McAlpine to attend on most days of the hearing in October and February. He provided a considerable amount of documentation (notably crime reports and witness statements relating to various matters). He also chased up various enquiries that the police had already set in train and initiated others to assist me. I am most grateful for this service.

10. In looking again at all of the evidence, I remind myself of the terms of Re H and R (Child Sexual Abuse) [1996] 1 FLR 80 HL.

11. I am being asked to consider, in effect, whether F and his family and friends have deliberately set out to secure false findings about the behaviour of M and her family both by their activities outside the court arena and by their evidence in court. If this were so, it would be a most serious state of affairs. This was very much in my mind when I first made findings in this case. It is hard to believe that anyone would go to the lengths of stabbing or otherwise injuring themselves and/or setting fire to or otherwise damaging their own property and it has required particularly cogent evidence to persuade me even to contemplate that possibility seriously, let alone to find it proved on the balance of probabilities. In my first judgment, I summarised the incidents that had taken place in relation to F and his family and associates and commented:

“I have considered the chances of F having orchestrated this himself. Considering the scale of what occurred, it seems to me unlikely. It would not have been necessary, had his purpose been to damage M’s case, to arrange for so many separate events or to subject himself to actual injury twice.”

I have kept at the forefront of my mind all the matters that I took into account in arriving at the conclusions I set out in that judgment as well as all the new matters which have been placed before me during this protracted rehearing. As before, I have approached my evaluation of the evidence (by which I mean, of course, all of the evidence whether collected for this hearing or available in September) with considerable caution, considering both the detail of the evidence and the overall picture.

12. B K also faces very serious allegations, not least that he deliberately set fire to the K home. Given the seriousness of what is alleged, strong evidence would be required before it would be established on the balance of probability.

13. As the spur to the reopening of my findings of fact was the pathology evidence in relation to the alleged wounding of F on 5 May 2007, I will commence with that matter. At the previous hearing, the wounding (referred to then as a “stabbing”) was merely one of a very large number of allegations that had to be investigated. In that context, it received considerably less attention than it did during the re-hearing. In my previous judgment, I expressed my gratitude to counsel for focussing on the real issues and allowing us to finish the hearing in the time scheduled. In no way do I resile from that but the developments in this case have made me reflect upon the pressures of time that are imposed upon family practitioners and judges by the overloaded state of the lists in the Family Division. To air 82 allegations, including a wounding, several rapes and numerous assaults, properly in 4 days of oral evidence is, on any view, a significant challenge and not one which is to be recommended. It is equally undesirable for the re-hearing to have been fragmented over 6 months because, as it so often does, the pressure of other work made it impossible for the matter to continue without a break until it concluded with a final judgment.

The wound to F’s arm sustained on 5 May 2007
14. The medical records of F’s visit to casualty for treatment following the wounding were available at the first fact finding hearing. They recorded that F had a Y shaped wound. This puzzled me and I asked F about the actions of his assailant in order to explore how such a wound could have resulted. He said:

“It was two movements, but it was so quick that half the time I was just thinking “What’s going on here”, once or twice, it was so quick, it was like up and down kind of thing.”

This did seem to me potentially to explain the shape of the wound.

ccordingly I left the topic and no one else pursued it. In the light of the pathology evidence now available, this is a pity.

15. Dr Jerreat’s report is dated 5 September 2007. This was the Wednesday of the week of the first fact finding hearing and it was not until Monday 17 September that I sent out the resulting judgment. Unfortunately, Dr Jerreat’s report was not disclosed by the police to the parties or to myself during this period. Had it been, it would obviously have had to be taken into account in my findings about the stabbing and I would almost certainly have had to reconvene the parties before venturing any findings at all.

16. The forensic opinions on the wound are based on what can be seen in the photographs of it and what is described by the treating doctor, Dr Altaf. The photographs show a perpendicular wound running down F’s arm with what appear to be Y shapes at the top and the bottom. The photographs were taken on 7 May 2007 after the wound had been sutured at the top and in the middle section and steristrips applied at the top and bottom.  The steristrips make it more difficult to see the wound underneath but there is a length of at least 4 cms which is only stitched and which is clearly visible.

17. In final submissions, Miss Meyer QC, who had the disadvantage of not having been present herself when the doctors all gave evidence, having been instructed later, appeared to be submitting that the medical evidence did not indicate that the wound necessarily incorporated a single solid line. I had some difficulty in understanding this submission because the fact that the wound had a central section some centimetres in length where the appearance was of a single cut had been of fundamental importance to the forensic evidence and had not been challenged when that evidence was being given.

18. Dr Altaf’s drawing of the wound in the clinical notes showed a single line terminating in an upside down Y. The narrative description in the notes reads “Approximately 3 – 4 inches wound < 1 cm deep with Y shaped tail which is 1 mm deep”.

19. In her submissions, Miss Meyer called into question the accuracy of Dr Altaf’s notes and diagram. She did so on the basis that his diagram did not accord precisely with the photographs. There was some debate in submissions as to precisely what Dr Altaf had said about the reliability of his diagram and Miss Meyer submitted that it was questionable because of the busy circumstances in which it was drawn. In order to be sure precisely what the witness himself had said about this, I obtained a disk of the evidence of Dr Altaf and listened to it again.

20. Dr Altaf’s oral evidence was that he remembered the wound and it was exactly as he drew in the diagram. He said it was a Y shape with the lower part being the tails of the Y. He did not think the wound was necessarily Y shaped at the top. He thought that anything which appeared to indicate this on the drawing might in fact be a reference to where he put the sutures. He said that there was a scratch at the top which was different from the line of the wound but he did not remember if it was disconnected from it. He did not mention that scratch in the notes because it was so superficial.  When his attention was invited to the fact that the photographs show a longer lesion on the right hand side of the wound at the bottom than is recorded in his diagram, he conceded that that may be so and explained that he had tried to reproduce exactly what he saw but had been drawing the diagram in an environment where he was having to see other patients. I was in no doubt that when he gave this evidence, which he did at the very end of cross examination on behalf of the guardian, he was doing so in relation to the question of the length of that bottom tail of the Y. He was in no way conceding that the whole of his diagram was questionable nor was there any reason to think that it was, particularly as the most important features of it accorded with the recollection he still had of the wound.

21. Dr Jerreat set out in his report as follows what he thought the photographs showed:

“The upper part of  the wound has two linear incised components then a linear deeper incised component followed by two superficial incised type scratches lowermost.”

22. Dr Rouse’s description of what he saw in the photograph was as follows:

“The photographs show two separate fine incised wounds at the upper end of the wound on the outer upper aspect to the left arm. They appeared to join under the Steristrip although this cannot be confirmed and were not parallel. The main defect appeared to measure up to 6 cm in length. At the lower margin were two further divergent fine incised wounds with the more posterior appearing to measure up to 7 cm in length.”

23. In my view, the evidence established without doubt that the wound had a linear incised central section of at least 4 cm in length and there was no evidence whatsoever that this was anything other than a single line, which is what I find it was. It is also quite clear that there was a lower portion which comprised two divergent incised wounds, making the whole look, to the treating doctor and the forensic experts, like an upside down Y. At the top of the Y were two additional lesions which were described by Dr Altaf as superficial scratches which may or may not have been joined to the top of the linear central section but were certainly near to it.

24. Dr Jerreat gave the following written opinion at the conclusion of his report:

“The wounds seen in the photograph did not match the description given by the victim in his statement. There would have to be at least two separate contacts which would pass from the separate upper sections through the deeper long middle section and tail off superficially in two different directions lowermost. Any other alternative would require at least three impacts from the blade.

It has to be clarified whether the SHO was describing the x2 attempts to stab by the stranger as from his own description of the wound, or whether this was related to him by R K at that time.
Even if there were two separate impacts, it would be highly unlikely that the wounds would be so close as to cause a unified middle deeper section unless the arm were in a fixed position or victim immobile.

In my opinion, given the nature of the description of events and wound appearances, the likelihood of self infliction has to be seriously considered.”

25. When he gave his oral evidence, Dr Jerreat said that although one has to be guarded where one is looking at only one area of injury rather than multiple injuries, on the balance of probabilities he would say that the wound was self-inflicted. He added to the matters raised in his written report in support of this view. He clarified that his opinion about the divergence between the nature of the wound and F’s account of the event was based upon the account F gave in his police statement in which he described the assailant making one action with the knife. Dr Jerreat also said that where a wound is inflicted by an assailant, the victim tends to pull away by reflex from the sharp implement with the result that there tends to be a deeper initial wound which becomes shallower as the knife follows through. This was not the case with F’s wound which was shallower at both the top and bottom where no stitches or steristrip were required than in the middle where 8 stitches were inserted and pieces of steristrip applied. F had said that he bled profusely. Dr Jerreat said that he would not expect that from an incised wound (which is what F’s wound was, in his view, rather than a stabbing). He did consider, however, that an incised wound could be extremely painful which is what F said of this wound.

26. Dr Rouse’s view was firmer than that of Dr Jerreat. He said in his written report:

“5.6 Looking at the totality of the injuries and the imbalance with the history and effects the only reasonable conclusion is that these injuries were self inflicted.”

In his oral evidence he said to me that he was satisfied to the criminal standard of proof that the cause was self-infliction.

27. Dr Rouse’s reasons for his view were clear to Dr Jerreat’s. Firstly, the facts documented by others did not accord with F’s account. The description of the wound depth and recorded blood loss did not accord with F’s description of the effects of the wound. Dr Rouse did not agree with Dr Jerreat’s view that the wound would have been painful. He thought a further divergence between F’s account and the likely facts was that F described considerable pain whereas a stab wound would not be particularly painful because of the lack of force involved and the blocking action of adrenalin in a fight situation. Secondly, he agreed with Dr Jerreat that such a wound could only be generated by a minimum of two separate knife actions whereas F’s police statement described only one action (although Dr Rouse told me that even if it transpired that F had described two actions, he would still be sure that the wound was self-inflicted because of the other factors). Furthermore, Dr Rouse shared Dr Jerreat’s view that a cut inflicted by an assailant would not start superficially, become deep and end superficially as this one did. It would start deeper and become shallower or vice versa, depending on the position of the arm. Thirdly, the presence of two separate knife actions so close together is not seen in an individual who has free and unrestricted movement of his arm.

28. Both Dr Jerreat and Dr Rouse were questioned about the issue of the mobility of the victim’s arm and its impact on the pattern of the wound. Dr Jerreat had been sceptical that someone would suffer the searing pain that F described and then present his arm in the same position for the assailant to strike again. He conceded that someone could be shocked into immobility but pointed out that F in fact described in his statement that he was falling to his right so he would not have been in the same position when any second strike came. Dr Rouse was asked about the possibility of the knife cutting the victim twice in the same place if he was being held by an assailant. He said that even in these circumstances, there is always some movement and one does not see precisely the same point of impact. 

29. Miss Meyer submitted to me that the evidence of the doctors was that the wound could have been caused by as little as 2 cuts. I accept that. She further submitted that it was not inevitable that there was a lengthy part of the wound where more than one cut joined together.

30. Miss Meyer’s submission is plainly correct if more than two strikes had been involved in causing the wound. To take some examples for the sake of argument, the appearance seen might have involved 5 separate strikes – one for each of the upper scratches, one for the central section of the wound and one each for the tails of the Y at the bottom – or it might just possibly have involved 3 separate strikes – a U shaped one causing the top marks, one for the central section of the wound and a V for the bottom tails. In that event, there need not have been any point where the cuts ran together although, to give the appearance that the tails of the Y were joined to the central section, the knife would have had to re-enter (or leave) very close to that central section when each of the lower cuts was made. It seems to me, however, that the difficulty with this argument is that the greater the number of strikes that was involved in causing the wound, the longer the victim had to remain immobile so that the knife re-entered each time close to the existing lesions. The odds against the knife repeatedly hitting a spot so close to the existing lesions by pure chance in the course of a violent assault would seem to be very considerable, particularly as, as Dr Rouse said and I accept, the victim would in fact move, even if being held. I have considered the implications of the small size of the porch where the assault is said to have taken place. The photographs taken in connection with the fire provide some information about this. Whilst the space is limited, it could not possibly be argued that by virtue of that fact alone a person attacked there would have been immobilised, either completely or to the point where it could have any significance to the point in issue.

31. As to the submission that the wound could have been caused by 2 cuts without there being a significant length of the wound where the knife traced the same path on each strike, I cannot accept that. It would have been impossible to produce these injuries by 2 strikes without there being a common central section for both cuts. I was not therefore in any doubt about the existence of a single central incision with associated tails at the bottom making a Y shape nor, indeed, upon the evidence of the doctors as to the variable depth of the lesions. There was therefore an entirely proper foundation for the evidence of both experts about the unlikelihood of a violent assault by a third party producing the pattern seen in F’s wound.

32. In keeping with the back to front way in which the evidence has become available throughout this case, at the time that the doctors gave evidence, it was not known whether the T shirt that F was wearing on the night of the injury had a cut in it coinciding with the wound or not. Each gave evidence therefore as to the impact upon their finding of such a cut. Dr Rouse’s evidence was that it would make his opinion that the wound was self-inflicted untenable. As I understood it, this was because those who harm themselves for fraudulent purposes lift up their clothing before doing so. Dr Jerreat did not agree. He has worked on a data base concerning cases of this type and the information to which he has had access by virtue of this led him to the view that it would be unusual to have a cut in the clothing where an individual has harmed himself but not impossible.

33. Subsequently, the T shirt was produced by DC McAlpine. To my mind, there was no evidence of a cut in it overlying the wound on F’s arm. Miss Meyer submitted that there was something in the vicinity of the sleeve that might be consistent with a cut. It was unfortunate that the shirt, which she had not seen because it was produced before she was instructed, was not available to the court when this submission was made. We were reliant upon the recollections of those present and the note made at the time about what could be seen. My recollection is that I described what I could see and noted it and all the legal representatives were free to add or contradict as they saw fit.

34. It is common ground that there was a rip down the centre front of the T-shirt from the neck for about 10 inches. F said this was caused by the assailant gripping his clothing although it could, of course, equally have been caused by F or someone on his behalf deliberately ripping the shirt. This was not the feature to which Miss Meyer was referring.

35. It appeared that a considerable amount of cutting had been done by the hospital in order to remove the clothing to treat F. This cut was jagged and ran from the bottom hem of the shirt on the left hand side a long way towards the sleeve and everyone agreed upon its position and appearance which could be seen in the photographs taken in court when the shirt was produced. The debate during submissions concerned a further feature on the left hand side of the shirt. This is what Miss Meyer suggested could possibly have been made by a knife.

36. My note definitely supports the existence of something on the left hand side of the shirt in addition to and of a different nature from the hospital cut. Miss Meyer submitted that this extra feature was straighter than the hospital cut. As I understand it, this extra feature was the one that I had described in my note as “?tear” with “fluffier edges”. I had formed the view when the T shirt was produced that it might have been made by the hospital ripping through the last part of the T shirt once they had cut the majority of it with scissors which would have produced a straighter finish than the jagged scissor cut and would be consistent with fluffier edges.  It did not appear to me to have been formed by a knife unless, I suppose, the knife was used by the assailant to rip the shirt material or did so accidentally during a struggle. Certainly, it did not have the appearance that I would have expected if a knife had cut through the fabric to wound F.

37. In view of the length of the T shirt sleeve, the absence of a cut through the material in the vicinity of the wound was not, in fact, contradictory of F’s case. It was impossible to tell precisely where the sleeve would have fallen on F’s arm but undoubtedly it was short and it may not have obstructed the site of the injury in any event.

38. The evidence of Dr Jerreat and Dr Rouse was extremely powerful. It was probably sufficient on its own to merit a positive finding that F’s wound was self-inflicted. However, it seemed to me prudent to consider the totality of the evidence before coming to any conclusions on the issue and I propose to do so below. Before I do, I should deal with the point raised on behalf of F in relation to the method of instruction of Dr Jerreat.

39. Dr Jerreat was instructed by the police and it is fair to say that the “letter of instruction” lacks the neutrality that one requires of a letter of instruction in family proceedings. Miss Meyer QC submits that the police had formed a sceptical view about the wounding from a very early stage and invites attention also to the fact that they failed to take statements until much later or, in the case of the doctor who treated F, at all, and failed to arrange for forensic tests on the door bell or F’s T-shirt. The implication is that the evidence of Dr Jerreat was tainted by the police attitude and the material supplied to him. This is a difficult submission to maintain when one bears in mind that Dr Rouse was instructed by F’s own lawyers and still arrived at the same conclusion as Dr Jerreat but with a greater degree of confidence. I did not consider that Dr Jerreat’s evidence was undermined in any way by the method of his instruction.

40. F relies, as he did at the last hearing, upon the fact that he vomited in the porch at the time of the injury and upon what he said was his raised blood pressure and pulse rate as recorded at hospital as showing that he had been subjected to a violent attack producing physical symptoms. Dr Altaf was asked whether the blood pressure was high. He said the lower figure was a bit high but he would not commit himself to whether it was abnormally so for F because he did not know what F’s blood pressure usually was. Dr Rouse said that blood pressure and pulse rate can go up because of the stress of the hospital environment. Dr Jerreat agreed that the blood pressure was raised and said that raised blood pressure and raised pulse rate were compatible with anxiety and hyperventilation. Vomiting could be due to shock/anxiety. He commented that a shocked person would, however, tend to have a high pulse rate and low blood pressure which was not what was seen here.

41. Having heard all the evidence about the pulse rate, blood pressure and vomiting, all of which could be produced by anxiety, it seemed to me impossible to derive much (if any) support from these features for F’s case. On F’s behalf, it is submitted that these ancillary physical symptoms that F suffered were not consistent with a self-inflicted wound but were consistent with a surprise attack. I cannot accept that. I have no doubt that someone who had cut himself, or arranged to be cut, who was enduring the pain of that and who was furthering a plan to pervert the course of justice by misleading the hospital and the police as to the circumstances of his injury would be feeling extremely anxious, to the extent that he might suffer vomiting, raised blood pressure and increased pulse rate.

42. Attention is also invited on behalf of F to the reaction of his mother on the night of the assault. She was said to have had an asthma attack which needed treatment by paramedics and it is submitted that her reactions, and those of the rest of the K family (which ranged from general distress to, in the case of SK, vomiting), were not the reactions of people who had advance knowledge of the planned assault or had conspired to organise it. The obvious point in response to this is that there would, of course, have been no need for the rest of the K family to be involved in the orchestration of a self-inflicted attack. It could have been organised by F alone or at most, F and one other. If that course had been taken, the other family members who were not in on the secret would have been responding to what they thought was an attack by a third party. Secondly, I saw F’s mother’s reaction during the first hearing when she suffered an asthma attack, provoked simply by the process of proper cross-examination, that prevented her from continuing with her evidence. It is clear, therefore, that she can suffer breathing difficulties in situations of stress falling short of a surprise attack on her son. It is submitted that F would know of the likely severe reaction of his mother to a stressful event and would not therefore put her through it voluntarily. However, I am afraid that I cannot accept that knowing she may have breathing difficulties would be sufficient to deter him from undertaking an exercise which he considered necessary for the greater good of securing the future of the children with him. 

43. There was considerably more examination in the resumed hearing of the circumstances leading up to the alleged attack. The account given by F, his brother and ST was that they were in the back room playing pool and watching a film.SK was upstairs in her mother’s room, she said asleep. F was going to get drinks when the door bell rang. He went to answer it. He does not seem to have taken any steps at all to find out who was there before opening the door. When he opened it, the assailant attacked immediately. He first grabbed F’s T-shirt and, at some point before or after that, said a few words. Like his police witness statement, F’s description in the witness box at the resumed hearing of the actual wounding was of the assailant striking once, having raised his arm above his head with the knife in his hand and brought it down in an arc to cut F’s arm. F said to me that all he remembered was trying to pull away and feeling stinging in his arm. Then he remembered tipping to one side and falling down. At some point during or after the attack, he called out his brother’s name, probably several times. GK and ST came running from the back room and SK was awoken and came down from upstairs. There followed a period of intense activity during which, among other things, F and SK were both sick, the ambulance was called, and PSW was called. Neither ST nor GK went out of the house to see if they could catch sight of the assailant. Nobody could help me as to where the police obtained the information (recorded in their Crime Information System and available at D129 in the bundle) that the suspect ran off, turning right out of the property towards Egham. None of the witnesses remembered seeing any such thing.

44. F’s evidence about the wounding was unsatisfactory in a number of ways. I remind myself that I found him to be an untrustworthy witness in the original fact finding hearing, rejecting his account of much that occurred during his cohabitation with M, and that Mr Justice Munby had had cause to record how he had misled the authorities earlier in the proceedings in relation to the children’s passports (see paragraph 13 of my September judgment). Once again, I also remind myself that the fact that a man has lied once, or even more than once, does not mean that he is lying again. However, I cannot ignore the fact that features of his account of 5 May 2007 are suggestive of fabrication. The most obvious of these is the question of how many blows were struck by the assailant. Dr Altaf recorded in the casualty notes under History of Presenting Complaint that there were “x 2 attempts to stab by the stranger on the same arm”. He also recorded that there was profuse bleeding and that F “fell dizzy on the floor” but had no loss of consciousness. I accept his evidence that these pieces of information came from F himself. I am not aware of any other account by F that included two attempts by the assailant to stab him except the one he gave to me in oral evidence during the first fact finding hearing. F’s firm account during the present hearing was that there was one strike only. He said he had stuck to this throughout as he remembered only one. There are a number of difficulties about this. Firstly, F himself has in fact given an inconsistent account of the number of strikes and has not consistently maintained a history of one blow. I must make allowances for the victim of an attack who may have difficulty remembering precisely what occurred but that would be more likely to lead to a vague account or a comment that he simply could not remember than to an assertion at some times that there was one strike and at others that there were two. Secondly, one strike simply could not have caused the injury – that is self-evident without any expert medical evidence but the doctors have confirmed it. Another feature of F’s account that made me suspicious was his inexactness of expression. I am conscious that this may be the product of a tendency to exaggerate e.g. in describing a lot of blood when the evidence of the professionals suggests that the bleeding was not profuse. I take that into account. However, F can have been in no doubt that it was important to describe the events clearly and exactly. In his statement made on 9 May 2007, a few days after the incident, he described that he “fainted or passed out”. This was not what he told the hospital as Dr Altaf’s note makes plain. In oral evidence to me, he first said that “I may have lost consciousness - everything was a blur – I cannot remember if my eyes were closed…. I don’t know if I lost consciousness. I cannot remember if I fainted.” When his statement was put to him, he said he may have fainted or passed out in the sense that he did not know what was going on. He asserted that his version of “fainted or passed out” was that everything goes a blur and he did not know what was going on. It is nonsense to suppose that a perfectly well educated man would think that that state of affairs could properly be described as fainting or passing out. At best, F was intent in his statement on exaggerating what occurred but I cannot ignore the more sinister possibility that he was actually making the account up as he went along and could not therefore present a consistent picture.

45. A further puzzling feature of F’s account is how he could have opened the door to his assailant without any precautions at all at approximately 11 p.m. after a recent history, on his case, of threatening and frightening events orchestrated by M’s family. On Friday 27 April 2007, he says he received 2 abusive telephone calls at work in which he was threatened he would be kidnapped or killed and the children would be killed if he did not drop the appeal he was making in the course of these proceedings. On the night Saturday 28 April 2007, he says B K smashed the windscreen of one of the cars parked in the drive at his home. On 29 April 2007, NM says she received a threatening telephone call to the effect that if F did not withdraw his appeal, he and his family and NM would be killed. On Tuesday 1 May 2007, ST says he was threatened that if he ever went to B’s house, he would be killed. On Thursday 3 May 2007, SK says she had a telephone call from M in which M said she was going to burn the children, the house and the paternal family. Then on 5 May 2007, the doorbell went late at night and F just opened the door. This seems to me incredible. This is a family who assert they were terrified. A receipt was produced in evidence for two nights’ stay for two people at the Thames Lodge Hotel from 1 to 3 May 2007 in the name of Mrs S. SK told me that she and her mother stayed there because they were so concerned for their safety in the light of the incidents. On 3 May 2007 there was a hearing before McFarlane J who gave directions in relation to the appeal. It was not abandoned or disposed of but listed for hearing on 17 May 2007. A focus of the threats as reported by the paternal family was the appeal which the maternal family, on F’s case, were trying to halt. I would have thought that the paternal family would therefore have continued to be just as nervous, if not more, after 3 May 2007 as they were before and yet SK and her mother went to sleep at home again after 3 May 2007 and F unguardedly opened the door late at night to a caller on 5 May 2007. At the last fact finding hearing, I took into account the evidence that F had stayed at the Travelodge during it as indicating real fear on his part in relation to the maternal family. The fuller exploration of matters during this hearing has left me in doubt as to whether anything can be taken at face value with this family. Whilst I can see that the stay in the hotel from 1 to 3 May might be explicable in terms of SK and her mother being afraid, I am not prepared to assume that that was what was behind it nor am I prepared any longer to rely upon the September Travelodge stay as indicating genuine fearfulness. I noted that when ST was asked about the May hotel stay, he said that F and all the family booked into a hotel then because they were scared. I cannot help but be suspicious that this evidence was the product of discussion over the way in which the May hotel stay could be presented as a feature in support of F’s case in relation to the maternal family’s campaign. Looking critically at the evidence as a whole, I have no doubt at all that F and his various family members and friends have discussed the presentation of the case. I have no doubt either that they are all intent upon achieving the best possible outcome for F and that they are not averse to tailoring their evidence to suit this.

46. I was critical of NM's evidence at the last hearing and my view of her did not improve when she came again to give evidence this time. I was interested to see from the police documentation that she did not want to be contacted at her home about the case. She told me that this was because she had not told her family anything about it and did not want to upset them. I thought this odd, bearing in mind the degree to which she said she had been traumatised by her experiences, notably the phone calls she says she received in April and now again in September since my findings. I noted that whatever upset the calls had caused (and she would have had me believe that they were terrifying), she was not sufficiently concerned to go to the bother of changing her mobile phone number. “Why should I change my number for someone else?”, she said in answer to the guardian’s counsel on this point. In her oral evidence before me during this hearing, she was confused and contradictory as to whether she spoke to F after or before she reported the first telephone call to the police. She paused a number of times during her evidence and seemed to have difficulty recalling the threatening conversations to which she said she had been subjected. She said initially in evidence that the September call involved a threat to kill and then conceded that it did not and said she had got mixed up. Her account of how she discovered about F’s wound was incredible. To begin with she seemed to be asserting that hardly anything was said about it. She said “I did not go into it. He was already upset and I did not want to upset him any more.” Later she said that she did mention it to him and he laughed it off and SK may have mentioned it and told her it was a stab but she did not discuss how it happened. It is inconceivable that NM would not have asked about this or, had F been violently assaulted by a third party, had the story volunteered to her in graphic detail. 

47. I am forced to the conclusion that F inflicted the wound he suffered on 5 May 2007 upon himself or deliberately had it inflicted upon him by a member of his family or an associate. I accept the expert evidence of the pathologists and it is that evidence, taken together with my consideration of all the other circumstances, that leads me to my conclusion.

The fire
48. I intend to return later to consider the implications of my finding about the wounding for the other findings that I made against M and her family in relation to the post-separation campaign. Before I do so, I will examine the evidence about the fire which was the other major focus of the resumed hearing.  I am indebted to Miss Meyer QC and Mr Sharpe for the detailed chronology which they produced with their closing submissions and which enabled me to keep track of the documents relevant to this issue. 

49. I will set out first an account of the events which draws for the most part on information from sources other than the K family and those associated with them.

50. At 2.25 a.m. on 29 September 2007, according to the fire investigation notes made by Mr Goad of the Surrey Fire and Rescue Service, the fire brigade was called to F’s address where there was a fire in the porch. The fire station is very close to the address. The fire engine must have set off almost immediately. Special Police Constable Wallis and Special Constable Shine were in a police car in Egham when they saw it travelling with its blue lights on. SC Wallis said in her statement that this was at approximately 2.25 a.m.. SC Shine said it was at about 2.30 a.m.. GK said that the fire station was 2 minutes drive from the K house and the fire brigade arrived within 2 or 3 minutes of being called. 

51. What the fire crew found when they arrived is not the subject of much evidence. Mr Goad told me during his evidence that they would have made statements which would have been given to the police but these statements have never been made available to me. Mr Goad’s Fire Investigation Notes record, under the heading “ Fire characteristics” that flame colour was not noted, smoke was black and there was “smoke logging of area”. It is also recorded that the fire fighters had forced entry to the front door using a sledge hammer to the bottom corner. 

52. The Special Constables followed the fire engine in their car to F’s home. When SC Wallis got out of the car, she could smell smoke and she could see smoke coming from the front of the property. SC Shine said that as the fire service gained entry to the premises, he saw smoke coming from the premises.  SC Wallis saw three women standing outside the front gates. One of them was F’s mother who said she was asthmatic and had inhaled smoke. SC Wallis took her to sit in the police car with JK, F’s great aunt.

53. SC Shine’s evidence is that upon arrival at the scene, he informed police control of the situation on his radio. The printout from the CAD Browser records this as having been done at 2.33 a.m.. I have taken it that this time and the time of the call for the fire brigade (2.25 a.m.) are accurate times so that there had been an absolute maximum of 8 minutes between the call to the fire brigade and the arrival of the fire engine and, of course, GK’s evidence was that it arrived within 2 or 3 minutes of being called.  

54. Having made his radio call, SC Shine was then “immediately approached” by GK who said words to the effect that the fire had been deliberate and had been started by B K. GK then said, “You know all about this, this is an ongoing situation, nothing is going to be done about it.” He said he had seen B pass the premises on the pavement outside.

55. At some point during the night, a cigarette butt was found on the driveway at the premises which had B’s DNA on it. It is F’s case that this corroborates the other evidence that B set fire to the property. Undoubtedly, in normal circumstances, it would do so. In this case, things are rarely what they seem and a more cautious approach must be taken to the evidential value of the butt.

56. In her first police witness statement of 30 September 2007, SC Wallis mentioned nothing about the cigarette butt. She made another statement on 5 November 2007 in which she says that, whilst at the premises, she was informed by “a neighbour” (whose name she said would be found in the “scene log”) about a cigarette butt that was in the driveway. The neighbour informed her that no one in the immediate family smoked and that he believed the cigarette butt to belong to the “uncle of the occupant’s wife”. She says in the statement that the butt was on the driveway close to the left side of the garage door when viewed from the front. She picked it up using a gloved hand. She placed it in an exhibit bag and SC Shine completed the exhibit label and took possession of it.

57. SC Wallis was responsible for keeping the log of the incident. This is what she referred to in her statement as the “scene log”. She started the log at 2.56 a.m.. Her entry relating to the cigarette butt is at 3.50 a.m. recording that PSW pointed out the butt. She records that he told her that GK told him that the front and side electric gates were closed and locked and believes that access to the property “could have been gained through the side entrance” where there is approximately a metre gap at the side of the garage.  The log records at 4.25 a.m. that the cigarette butt “has been placed into evidence bag B3204077 by 6173” (i.e. SC Wallis herself).

58. SC Shine’s typed witness statement of 30 September 2007 does not refer to the cigarette butt although it records GK approaching him and informing him that the fire was deliberate and had been started by B. It is his handwritten statement of 5 November 2007 which deals with the butt, saying:

“Whilst at the premises I was informed by one of the occupants of the house, GK, about a cigarette butt that was on the premises. The cigarette butt was lying on the driveway of the premises about 2 feet in front of the garage door, to the left of the door when viewed from the front. My colleague SC Wallis physically picked up the cigarette butt and placed it into an exhibit bag. I completed the Exhibit label and exhibited it as my exhibit.”

He says that he handed the exhibit to DC Veitch whilst at the scene. 

59. Neither SC Wallis nor SC Shine recorded anything about the cigarette butt in their personal notebooks which are skeletal compared to the log. SC Wallis told me she suspended the use of her notebook when she began the official log.

60. According to SC Wallis’ recording in the log, DC Martin Veitch arrived at 3.37 a.m.. DC Veitch began an investigator’s notebook of his own. The first entry in it is timed 3.30 a.m. and is the address of the premises. The next is at 3.33 a.m. and records the dramatis personae and some of the things that had happened/were happening. This entry appears to span the period from 3.33 a.m. to 4.10 a.m. when the next timed entry is made and it includes this record:

“PSW lives across road.”

followed on the next line by the entry:

“Cigarette spotted by gap.”

61. The question of how the cigarette butt first came to the attention of the police was the subject of exploration during oral evidence. GK denied that he brought it to the attention of the police at any stage. The Ks’ case is that it was PSW, and only PSW, who did that. The contemporaneous recordings and the witness statement of SC Wallis are consistent with that but SC Shine’s evidence contradicted it.

62. SC Wallis gave oral evidence in accordance with her statements and her record in the log. She confirmed that she first learned of the cigarette butt from PSW. She said that was at 3.50 a.m. when she had the log in her hand. She went with him to where the butt was. He stood with her whilst she completed the log entry and drew the picture of the garage to show where it was found. She then informed her colleague. There were no other butts near this one nor any other debris. She recalled picking the butt up wearing first aid gloves. She said this was at 4.25 a.m.. 

63. SC Shine said in oral evidence that GK had drawn his attention to the cigarette butt at the time he made the allegation that the fire had been a deliberate act by B, very early on, a few moments after SC Shine’s arrival. They were in the drive. He thinks GK made a comment to the effect that they did not smoke. SC Shine thought it was strange that someone would have noticed something so small and insignificant so quickly and that GK had very good eyesight but dismissed it from his mind whilst dealing with the immediate incident, trying to get witness details of as many people as possible, and ascertaining whether more resources were needed. He said that SC Wallis was not there at the time GK pointed out the cigarette butt. She was with the Fire Service.

64. As to the circumstances in which he made his further statement, SC Shine said he was contacted by a police officer a couple of days before 5 November. He and SC Wallis were both at the police station when they made their 5 November statements but they did not have any contact with each other. SC Shine said that his 5 November statement was taken in question and answer form by a police officer but he did not recall whom. Initially he said that the officer had asked him whether it was GK who pointed out the cigarette and he answered yes and that that was the first time GK was mentioned between them. Later in his evidence, however, he said that he could not remember which way the particular question was asked except that it was not asked in a leading way so as to identify any particular person. The form of questioning was more “what happened next?” to narrow down what he had done at the scene. The officer might have asked a question such as “when you spoke to GK, what were the first things he said?”.

65. It was put to SC Shine that if it had happened, he would have recorded the fact that GK told him about the cigarette butt in his own notes of events or would have told SC Wallis to put it in the log. He indicated that he wished he had entered the incident in his pocket book but he did not resile in any way from the account he had given involving GK. He did not know whether PSW also mentioned the cigarette butt later. He was prepared to accept that the reason the butt was eventually collected was because SC Wallis called him over saying they needed to collect it. He thought initially that he personally picked it up but remembered no details of this. This was in contrast firstly to SC Wallis who had a clear recollection of picking it up herself and secondly to his own clear, firm and detailed recollection about GK drawing his attention to the butt. Ultimately, he agreed that SC Wallis quite possibly did pick up the cigarette butt and I have little doubt that that is indeed what happened.

66. PSW was telephoned on the night of the fire by SK at about 2.35 a.m.. She did not mention the fire. She just asked him to come and, as she was clearly distressed, he dressed and ran to the house straight away, noticing the fire engines there as he did so. By the time he arrived, F’s mother and JK were already in the police car. He recalls that F’s mother was having an asthma attack. SK and F were distressed. GK told PSW what had happened and GK said he had seen B running away. From that point, PSW thought it was arson. F repeatedly said that GK should have run after B and expressed concern that the house would be regarded as unsafe for the children in view of the fire.

67. PSW thought he was the first person to notice the cigarette butt. He found it when he went to see if anyone had clambered through the gap between the Ks’ house and their neighbours. In his police statement of 21 November 2007, he says that this was “sometime later, although I don’t know exactly when”. In his statement of 17 December 2007 for these proceedings he said it was “once everything had calmed down”. His recollection was that the area where it was was clean. He discussed it with GK immediately to find out if anyone in the family smoked. He thought GK was very surprised and he did not seem to see the significance of what PSW was saying at all. He, PSW, pointed it out to the police officer (no doubt to SC Wallis at 3.50 a.m. as she recorded in the log) and then to the fire officer. He believes it was collected by the Scenes of Crime officer.

68. PSW does not class himself as a family friend of the Ks. He saw himself as a help and advisor and considered that what he did for them, which included regularly accompanying them to and from M’s home to collect and return the children, was valuable experience for him as a mature law student intending to become a solicitor. I dare say that over time he probably began to look at things to an extent from the Ks’ perspective; that would be inevitable. However, I thought he did his best at all times to provide me with a neutral account of those events to which he was a witness. His evidence in no way contradicts the account given by SC Shine that GK mentioned the cigarette butt to him very early on during the incident. I appreciate that PSW thought GK seemed surprised and appeared not to understand the significance of the cigarette butt when he, PSW, discussed it with him but I am afraid that I have absolutely no doubt that, as is the case also with F, GK has the capacity to dissemble effectively when it suits him and could well have done so about this.  

69. ST also gave evidence about the cigarette butt but it was of limited significance. He had seen PSW draw it to the attention of the officer. Nobody had spoken to him, ST, about the cigarette butt before that.

70. Having considered all the evidence on the point, I accept the account given by SC Shine of GK having drawn his attention to the cigarette butt very soon after he arrived on the scene. There were times during his evidence when SC Shine’s recollection was hazy, notably about who picked up the butt, but that evidence had a quite different character to his evidence on this issue. On the other matters, he did not offer any detail and was willing to accept when alternative scenarios were put to him that his recollection may be wrong. On the subject of GK and the cigarette butt, his description of what happened was detailed and he stuck to it. He gave every appearance of giving an entirely honest account. I do not think his recollection was the product of  suggestion by the officer who took his 5 November statement, if indeed leading questions were asked on that occasion. I do not think it was the result of confusion with the occasion when PSW later pointed out the cigarette butt either. There is no reason for SC Shine to wish to concoct evidence against GK or the Ks. The Ks complain that the police were completely ineffective and/or, particularly in the person of DC McAlpine, disposed against them but there is nothing to substantiate such a mindset on the part of the police and, in particular, nothing to suggest that the police would fabricate evidence against them. In all the circumstances, I find on the balance of probabilities that GK pointed out the butt to SC Shine very early on in the proceedings. GK lied about this matter and that is an important consideration in my evaluation of the cause of the fire. It would seem that for some reason he did not want it to be known that he had invited attention to this piece of “evidence” at an early stage and preferred it to be thought that it came to light through PSW. SC Shine clearly thought that it was odd to have noticed and be giving attention to a cigarette butt, even if it might be evidence, when the family had only just escaped from a burning house and GK’s mother was in the throes of an asthma attack. So do I.   

71. Activity by the authorities continued through the night. The Scenes of Crime officer arrived at 8.15 a.m.. His report records that:

“It is believed that the offenders have pulled open the brass metal letter-box flap (which had been stuck originally closed) and have ignited an object, placing it through the letter-box within the uPvc door, causing smoke damage to the interior of the front porch and setting alight the interior door mat and the interior rear of the front door, particularly around the letterbox area and towards the bottom of the door, which as melted all the way through the door creating a hole.

Located on the door mat are two melted blobs of rubbery plastic, possibly believed to be balloons, one blue in colour and the other creamy yellow with red patterns/writing (unable to decode any wording).

Within the porch, two letter-box flaps had been preserved out of the rain and were both smoke damaged. There was also a bottle of what is believed to be J mop floor cleaner, melted and burnt on the floor of the porch to the right hand section of the porch in line with the opening porch window. This is believed to be alien to the scene.”

72. The door mat, the bottle and the letter box flaps were collected by the officer. The door mat and the bottle were analysed and petrol vapour was found in each. This indicated that petrol had been used as an accelerant in starting the fire.

73. Mr Goad is a serving officer with the Fire Service and has been so for 29 years. He is a qualified fire investigator accredited by the Institute of Fire Engineers. His observations led him to believe that the fire had been started either by igniting curtains covering the inside of the front door or by introducing a naked flame through the letter box. This narrowed down to the introduction of a flame through the letter box as it later became apparent that there were no net curtains in that position and the net curtains that are visible in the porch were melted rather than burnt. Mr Goad noted the damage and melting to the bottom of the door. He also noted the “crocodiling” on the inside of it which indicated direct flame. He described himself as 80% certain that the fire started inside the door rather than outside. The evidence of burning inside, the sooting and smoke damage were all in keeping with that. It did not preclude something being pushed through the letter box to start the fire and taking hold internally. The use of an accelerant would explain the rapid development in the immediate area and the heat build up. Mr Goad’s evidence was that bearing in mind that there was petrol spirit there, the fire had been going for 5 minutes maximum, to judge by the level of burning and the damage by heat and smoke. This was in keeping with the evidence about how very quickly the fire service arrived.

74. I want to turn now to the circumstances surrounding the fire before I turn to the accounts that the two families give of their actions on the night of it.

75. I sent out my fact finding judgment to counsel for each party by e-mail on 17 September 2007. It appears that there was some delay in it being disseminated. F’s statement says that it was available to the legal representatives on 21 September 2007 although the guardian had received a copy on 20 September 2007. There was then a misunderstanding as to whether the lawyers could disclose it to M and F.

76. The guardian was in touch with both sides between receiving the judgment herself and the night of the fire. She told both families on 23 September that the judgment was available and that there were “concerns on both sides” but at that stage said no more about the contents.

77. The guardian spoke to RK further and met her on 25 September for a discussion lasting approximately one and a half hours. I am satisfied that she did not give RK any more information as to what was in the judgment at that stage and that RK had not had sight of it herself by that point. Despite cross examination on the subject, there was nothing to suggest that M’s family saw the judgment or learned its contents until M attended at her solicitors’ office on 3 October for it to be translated to her. Until then, all that they knew was that there were “concerns on both sides”.

78. The position with regard to F was different. The guardian made an arrangement to see him at the family home on the evening of 27 September. By then, F had been able to read the judgment and it was discussed with him and with other family members. The guardian told him that in view of my findings about his oppressive behaviour to M, she would not be able to recommend that the children return to his family. She reports that he took this better than she had expected and said he had already discussed with his solicitors sharing the children with M. When F’s mother and SK joined the conversation, the guardian thought they reluctantly accepted her view that the children should live with M.

79. At about midday on 28 September 2007, GK reported to the police that the padlock had been stolen from one of the front gates at his property.

80. At 11.31 p.m. on 28 September 2007 (some 3 hours before the fire) NM reported to the police that she had received a threatening telephone call. The number of the telephone making the call was withheld. She identified the caller as M and said that she said “It’s Jessy [sic]. I told you not to give evidence but you still did not listen. There is nothing going to be left of them and the same will happen to you. Listen you Paki bitch I told you not to give evidence. If you all carry on like this you will lose the girls completely.” The police CAD record refers to NM being hysterical and very distressed but not wanting the police to come to her address because she was worried about the stress on her family and she did not want them to know about the phone calls.

81. Enquiries by the police established that a call was indeed made to NM’s mobile number at the relevant time. The number of the telephone which made the call was identified but it was a pay as you go phone and the purchaser of it was not known. It was ascertained, however, that that call (and the other threatening phone calls which have been made from time to time) was made using a cell site in Heston which is in the vicinity of K home rather than the K property. 

82. M denies making this call.

83. What is particularly interesting is the reaction in the K household to learning of it. F told me that NM phoned him at 11 ish that evening and said that she had had a phone call from M threatening her. F was asleep when NM called. Having spoken to her, he went to tell GK in his bedroom that NM had phoned. ST was there. F said they had a conversation lasting 20 or 30 minutes. When he heard about the call to NM, GK said “she has gone all Bollywood again”. F said they then started to have a go at the police who they thought did not do anything and were useless as far as they were concerned. GK expressed the view that the house was fully secure and it was up to NM to speak to the police.  F went back to bed and slept. He told me that so many things had been done to him and his family and it comes to a point when one gets used to things. He did not think the house would be attacked that night.

84. GK’s account is that F looked concerned about the call to NM. GK did say she was getting all Bollywood again and they should ignore it. They had security precautions – gates padlocked, door locks and window locks - and no one could enter. He did not think anyone could come through the gap from the neighbours. He said to me, “I felt my house was a fortress.” He did not think anything would happen that night. They “chilled out”.

85. These accounts by F and GK are extraordinary. According to their version of events, there had been repeated unpleasant and violent incidents involving their family and friends including F being stabbed at his own front door. They had been afraid enough for some family members to move to a hotel on two occasions. Yet faced with yet another threat, they ignore NM’s extreme distress, ignore the gap in the side hedge, which was plainly large enough for someone to get into the property, decide that everything is secure, conclude nothing is going to happen and “chill out”. I do not find this in the least bit credible.

86. Furthermore, this is not the only respect in which the Ks have failed to take the sort of security precautions which would, in my view, have been expected of someone subjected to what they said they had suffered. I refer to their failure to obtain a CCTV system to cover their property. They had had a system before but it broke before M left the home. On 6 July 2007, the police records report that the Ks have changed the locks on all the doors and stepped up their security system. The record continues, “CCTV is in the pipeline but the system that GK wants is around three and a half thousand pounds with all the other arrangements he has made recently this he will do next month”. When I asked GK what he in fact did about this, he told me that he did not get the £3,500 system but got a £150 system instead. That was rubbish so he took it back and got a refund. He never got another system. I find this incomprehensible if the Ks were really as frightened as they say. Had a camera been installed, it might have shown some of what happened on the night of the fire. One cannot help but ask whether the Ks would not have wished this.

87. The credibility of the K brothers’ accounts of their response to the telephone call is not assisted by ST’s evidence which contradicts it. ST told me that when the phone call came, F was really worried and sleepy. He said, “They were frightened.” He was asked expressly whether they treated it as just another bit of Bollywood and he said they did not. He said GK was worried as well.

88. ST has been a close and loyal friend to the Ks throughout much of these proceedings. He used to go to their house late at night and stayed overnight on an impromptu basis sufficiently often to leave a spare toothbrush there. He had a spare remote control to let himself in through the front gate. He told me he used to visit 2 or 3 times a week. Prior to the last part of this protracted hearing, this had changed. ST told me that he had last seen the Ks two or three months before he gave evidence. He had changed his job to work in a cousin’s shop and moved from Egham to London. It takes an hour to drive from Streatham where he is now living to Egham but he had not gone over. He had spoken to GK on the telephone but only every two or three weeks. It appeared he had not explained what he was doing to the Ks. When he was asked about this changed pattern, ST said that after the fire happened, he lost his stomach for going to their house. It was a frightening experience. He feared for his life and felt he owed it to his family in Sri Lanka to stay alive. If this is correct, and the fire was the spur, it is curious that although the fire was at the end of September, he did not move completely until February and he said that he remained very involved with the Ks until February. I could not help but consider whether the reason for ST’s distancing himself from the Ks was a determination not to allow himself to be involved in any more dishonest activities. It will be recalled that he was present in the household on the day of the faked wounding. It would have been possible for him to be an innocent witness to this if it had been staged by F alone but he may have been aware of what was going on. He either suffered or witnessed other incidents. I would be prepared to accept that the fire was indeed the last straw but I am not convinced that that was because he considered he was in danger from physical injury in future as opposed to jeopardy by virtue of having been party to the presentation of false evidence.

89. In examining the circumstances surrounding the fire, I want now to look at what happened the day after it, that is during the day time of Saturday 29 September, the fire having occurred in the early hours of the morning, and the day after that.

90. There was due to be contact that day. The guardian was to observe it. On her way to do so, the police told her about the fire and that they were going to arrest B.  When she arrived at the K house just after 9 a.m., B opened the door to her. She thought he looked as if he had just got up and was lacking in sleep and he had blood shot eyes but he was very relaxed and genial and did not appear anxious. They had light hearted general conversation. Contact had to be postponed with excuses being made to M’s family until B was arrested which took place at his place of work around noon. The guardian said M became very anxious, during the wait for contact, that something must have happened as F’s family were always on time for contact. B was interviewed and denied the charges and was released on bail very late that night. 

91. The day after, 30 September, there was an incident at contact. It is common ground that B behaved inappropriately. He later accepted a caution for an offence against s 5 of the Public Order Act. He admits that he was making a scene, shouting and using abusive language, but he does not admit threatening to kill any of the K family.

92. I heard a very considerable amount of evidence about what happened that day. It was not all consistent. Different people heard and saw different things. On the whole, there were two camps: the Ks and their neighbour supporting B’s account and the Ks and PSW on the other side. The closest thing to a contemporaneous record of events is the handwritten note prepared by PSW, much of which was prepared in the car leaving the incident. B had been drinking during the night following his release from custody. It is common ground that he was angry and he was seeking to talk with the Ks about the situation but PSW indicated that they were just there to collect the girls. PSW notes that B said “You tell that fat cow your mother to watch out if I get arrested again.” and B concedes that he did say something of the sort. PSW records that B said, in English “You dirty fucking cunt I am going to kill you” and in Punjabi “I am going to fucking kill you you mother fucker. I am just waiting for the right time.” As PSW does not speak Punjabi, this must have been translated to him. None of B’s witnesses heard threats to kill. KK did hear her father use the Punjabi words for mother fucker and sister fucker.

93. It is difficult to make detailed findings about what precisely was said during the course of the incident. Witnesses to this sort of event inevitably differ in their recollections and their evidence is likely to diverge, even when they are attempting to be truthful. On balance, I accept the thrust of PSW's notes of what was said. It seems to me that B probably did make some sort of threat to kill members of the K family. I do not find it proved that this in any way indicated that he had ever actually intended to do so or, still less, that he had already taken steps to do so. It did indicate, however, how very angry he was about his arrest for arson the night before. 

94. There was another small incident that occurred during the course of the handover which was not in the same category as the abuse, threats and shouting. RK's statement of 3 October 2007 records that she saw GK drop something on the floor and bend down to pick it up. As he stood up he placed his hand on his teeth and began laughing towards her father. RK says, “I did not understand what this meant to signify between them?” The next thing she describes in her  statement is her father swearing at the Ks. RK was looking out from the house window.

95. I wondered whether what RK said she saw was connected in any way with the finding of the cigarette butt on the Ks’ drive. There were two principal possibilities as to how that butt got there. The straightforward one was that B dropped it when he was on the drive. He did not admit having been to the property at all recently so the obvious time when he would have dropped it, on this scenario, was when he went to set fire to the house. The other possibility, virtually incredible in many cases but not at all in this one, given that F had earlier been prepared to stage a wounding of himself to further his case in relation to the children, was that the K family had collected the butt and put it on the drive themselves with a view to implicating B in the arson. If RK was right, it was possible, it seemed to me, that GK was engaged in some very ill-advised taunting or crowing because he had framed B. RK’s statement was potentially particularly powerful because it was made at a stage when the K family would have had no incentive to manufacture evidence to deal with the butt because they would not have known of its discovery.  

96. Ultimately, I concluded that it was not safe to rely upon this alleged gesture as any indicator in relation to the arson and I have not done so. The first point is that it is not only consistent with the Ks having framed B by means of the butt. It is also consistent with them having been subjected to a genuine attack by him and rejoicing in the knowledge that they had found a cigarette butt that he had dropped on the driveway which would prove that. 

97. The second point is that the evidence was far from clear as to whether GK made any gesture at all and if so what it was. GK denied it. SK did not see anything like that. PSW did not see GK drop anything, pick it up and put it to his mouth. He doubted that it happened without him seeing as he was walking towards GK who was in full view. He did not see GK make gestures or smirk either. M described him making rather different gestures, one a gesture of greeting with his hands together and the other putting his thumb on his mouth and waving his open hand, both by way of insult she thought. 

98. I turn then to the accounts that each side of the family gave of the night of the fire in respect of matters that are not already covered by more independent witnesses and documentation and that I have not covered already.

99. At the Ks’ house, the whole family was at home. JK was also staying. I have heard accounts of what happened from F, GK and SK. They all came across as extremely angry and to varying degrees, contemptuous, in the witness box. As was the case at the first fact finding hearing, they continue to radiate arrogance and a belief in their own worth in contrast to what they see as the considerable failings and prejudices of others. What follows is the K version of the night based on what they told me.

100. ST came round at about 11 p.m. Most of the household was asleep. Just after 11 p.m., F went into GK’s room to tell him about the phone call that NM had received, as I have already outlined. He went back to bed. ST and GK were playing a computer game in GK’s bedroom and then put on a DVD. The bedroom lights were off. At about 2.20 a.m., JK came to GK’s room and said there was a noise coming from the front door.

101. GK says he turned off the television. The main curtains were drawn back already. He tried to look through the net curtains onto the drive but could not see anything so drew them. He could not see anything but the security light was on. He had not noticed this before as his attention was on the TV. He looked right and saw B K run along the pavement across the gates which were closed. As he ran past the gates, he looked towards the front door then carried on running, turning into Wavendene Avenue. At that point the fire alarm went off.

102. JK has not been available to give oral evidence. This is said to be because she has returned to India. Her written evidence in her police statement and her statement for these proceedings is therefore untested which reduces its weight. Her police statement recounts hearing a bang whilst in the bathroom, coming out and telling GK, and seeing a man outside the gate on the footpath from GK’s window. GK said he was B. In her police statement, she could only describe him as of medium stature “because it was dark”; in her statement for  these proceedings she said she saw an Asian male. She did not know B herself.

103. ST made a police statement about the fire on 29 September 2007. He did not have an interpreter because the police did not think he needed one. The statement is very fluent. There are omission marks showing where things were added to the text at the time of the statement in a way that suggests no lack of understanding on his part. However, when he reread his statement with an interpreter at court on 7 February 2008, ST sought to make further changes to it. The issue was raised as to whether he had sought to do this in order to align his account with GK’s rather than because of any failure to express himself clearly in the first instance.

104. ST’s statement implies that the main curtains of the room were closed. He wished to amend this to make clear, in line with GK, that they were already drawn back when the incident happened. The statement says he had a clear view out of the window “through the net curtain”. He wished to amend that to say that the net curtain was open. His account in his police statement of seeing B was that “he was standing on the pavement just outside the driveway of the house next door. B ran along the pavement and past Elmwood and then disappeared from sight”. ST refers twice to B “standing” there.

105. GK immediately ran downstairs towards the porch. ST followed him down. As GK got midway down the stairs, he could see flames through the glass door separating the porch from the living room. As soon as he got to the living room, he shouted in Punjabi, “There’s a fire” and called 999. ST went upstairs again and warned the other occupants.  The front door was on fire and there was a considerable amount of smoke in the porch area. He opened the side windows in the living room as there was a strong smell of smoke. Everyone started coming downstairs.

106. I turn to B’s account. His account of the evening involved drinking a considerable amount, firstly at a pub then at his brother’s shop and then at home where he finally arrived at some time after 10 p.m.. Drinking appears to have been a regular feature of his life until RK got home from the USA at the beginning of March and told him to cut down. It is fair to say that his account was imprecise/variable as to timings and as to some of the sequence of events. This may not be surprising bearing in mind the influence of alcohol.

107. To put the Ks’ evidence in context, I remind myself that the 999 call to the fire brigade was logged at 2.25 a.m.. It is safe to surmise that whoever lit it must have been in the vicinity for 5 minutes at the very least, therefore in place by 2.20 a.m.. It has been a working assumption that the journey between the Ks’ house and the K residence could be done by car in approximately 30 minutes at that time of day. It follows that B, if he was the arsonist, would have had to leave his home at the latest by 1.50 a.m.. He could not have been home much before 3 a.m.. These timings would have left him little time to park and take even rudimentary precautions before attacking the house.

108. The bare bones of B’s story are that M made him dinner at about 11 p.m.. She went upstairs. He stayed downstairs watching TV, preoccupied about his daughter, RK, who he was intending to pick up from the station after her night out in town but who had not rung. The last train would have left central London at about midnight and arrived at a local station at about 12.40 a.m.. B had heard nothing and therefore inferred that RK was not on the train. He went upstairs to speak to his wife with whom he was angry because she had given RK permission to stay out late. He rang RK’s mobile telephone at least 9 times but it went to answerphone each time. There was a message from RK which B thought was to the effect that she was in a taxi but he could not remember the source of that information. He thought it may have been Kamaldeep. He thought the message was that RK would be home in 5 minutes. She then arrived home in a car.

109. Certain information was obtained from the various mobile telephones of the K household. Two pieces of important information were obtained. Firstly, consistently with B’s account, RK’s telephone showed about 9 missed calls from her father. The evidence about when they were made was not quite clear but they seem to have been made after midnight. Secondly, during the interview of 2 February 2008, the police put to B that their enquiries with regard to his mobile phone showed that he had received a call at 1.13 a.m. on 29 September 2007 from ***********. He told the police that that used to be RK's number but she had changed it and it is now a family number. RK has produced a telephone bill for 9 October 2007 in her name showing that number and another one. She indicated that she thought she tried to call and he did not pick up the phone. KK gave evidence that she had a communication from RK to the effect that she would be home in 10 minutes. RK said it was a message she sent 10 or 15 minutes before she got home and it was to the effect that she would be home in 5 minutes. That message was not confirmed by telephone records but neither was there anything by way of telephone evidence to call it into question. KK said that all her messages were deleted when she changed her contract so she was not able to prove the message. 

110. B’s wife did not come to give evidence. RK, KK and M gave evidence in support of his alibi.

111. RK’s account to the police in her statement of 29 September 2007 was that she arrived home at about twenty past one in the morning. Her father opened the door before she could get her key out. He was a bit annoyed with her because she had not answered her phone. She went up to her room, changed and lay on her bed, staying awake for an hour or so. She looked at the clock and it was past 2 a.m.. She went to the bathroom. Her father was sleeping downstairs and she could hear him snoring in the lounge.

112. RK expanded on this account in oral evidence. She said she had spoken to her father for about 5 minutes upon her arrival home. He was quite concerned and upset thinking that something might have happened to her. She had had quite a few drinks. The reason she stayed up because she was feeling quite sick because she has a regurgitation problem and she ultimately was sick. She was unable to say how long after 2 a.m. it was when she went to the bathroom. It could have been anything up to 2.59 a.m..

113. KK had been shopping with her mother but was in by the time B returned at around 10 p.m. She said in her police statement that she spoke briefly to him about television programmes and then went to her bedroom, leaving him watching TV. She remembered him coming upstairs and speaking to her mother regarding her sister and that she was not picking up her phone. A short time later RK returned and KK could hear her and B having words. She had a telephone call from RK’s friend at about 1.30 a.m. to check that RK was alright. She did not sleep that night. She did not hear anyone going out or coming in.

114. KK gave more detail in the witness box. It was put to her that she would have included this detail in her police statement had it really been true. However, I found convincing her explanation that it was the first time she had given a statement and she did not know what detail to include.

115. She said both she and B had been trying to contact RK who was not answering. When she went down to tell him that she had had a text from RK which she said was at 1.10 a.m., B had the sofa cushions on the floor and a duvet on him and the television on.

116. She told me that once RK had come home and gone upstairs, her mother wanted to say something to RK about her not picking up the phone and KK stopped her mother even going to the lavatory because she feared that on the way she would tackle RK on this, though in the end she had to go and did not in fact have words with RK. After that, KK could not get to sleep and half an hour or so later she heard S make a noise or scream and a minute or two later M went downstairs.

117. M gave her account of the night of the fire to the police on 1 October 2007. She was in all night with the children. She confirmed B’s account of returning at about 10 p.m. and having dinner, made by her, at about 11 p.m.. She went to bed after serving him dinner. Her daughter woke at about 2.30 a.m. for a feed as normal. She went downstairs with the child and made her a bottle of milk. She saw the light on in the living room and B asleep on the floor on some cushions. He was snoring. She turned off the light, made the milk and went back upstairs with the baby to feed her. When she came downstairs at about 6.30 to 7 a.m., B was asleep in the living room. 

118.  M was picked up in cross examination on the fact that she said everyone was in that night (except for B’s wife and KK going out to do some shopping) and did not mention RK having been out. I noted this but did not set a lot of store by it. It was suggested that it showed she did not have a proper memory of that night but I did not infer that from it. 

119. Her assertion that the time was about 2.30 a.m. when her daughter woke was challenged. She remained firm that it was between 2 and 2.30 a.m.. That seemed to be largely to do with the child’s routine, which is what she had said to the police. In oral evidence, she also said she had a clock and saw the time.

120. I have set out some of the detail of the evidence about the night of the fire, all of which I have considered carefully. In determining what it establishes, I must also stand back and look at the whole picture. To an extent, this process involves a degree of speculation. This is inevitable when the circumstances of an incident cannot be established by reliable eye witnesses or by scientific or other means. I have considered the rival scenarios advanced by the two parents. Although none of the parties advanced any alternative hypothesis to explain the fire, I have also considered whether there might be any feasible explanation other than that it was caused by one side of the family or the other or by someone on their behalf.

121. F’s case is that B caused the fire. He has produced evidence from GK, ST and JK that they saw a man leaving the scene of the fire. JK does not know B but the other two say that they were able to identify the man as him. This evidence is potentially corroborated by the finding of a cigarette butt with B’s DNA on it.

122. F argues that the K family had a number of possible motives for arson. The first such motive would be revenge. On the findings that I made in the first full hearing, they have reason to be aggrieved at the K family because of the way in which M was treated during her marriage. B’s own feelings towards the Ks were demonstrated on 30 September in a display of temper at the contact handover and threats to kill members of the K family. He has a conspiracy conviction related to arson and therefore is not a stranger to this type of crime. Furthermore, information from the telephone companies has established that mobile telephone calls were made to the K family and friends from a cell site in the vicinity of the K house which the K family say were threatening. The second motive would be to influence decisions as to the welfare of the children. Although they did not know the detail of my fact finding judgment on the night of the fire, the Ks knew that I had expressed concerns about both sides so might have been particularly worried at that time about what decisions the court would take about residence and contact. Even without the spur of that information from the guardian about the judgment, M has been anxious to ensure that she cares for the girls herself and that contact between the girls and F is limited and supervised. F’s argument is that the fire was a device to improve her case by making it look as if it would be dangerous for the children to be with F or at his home.

123. F would also argue that he himself had a positive disincentive to fake an arson attack because it damaged his case in that, as the evidence shows he said on the very night of the fire, it added ammunition to the argument that his home was not a safe place for the children. Why, he would ask, should he take a step that could (and, as it transpired, actually did) lead to his contact with them being curtailed? He also relies on the cessation of trouble since his contact was curtailed which he would argue can be attributed to M and her family having got what they wanted in terms of the care of the children untrammelled by much contact with him.

124. F also invites me to consider the difficulties in faking an arson attack. It would inevitably subject his mother to extreme stress and, as he would have known, would be likely to provoke breathing difficulties for her. Other family members would also be distressed. It would be impossible to assume that the fire engine would arrive speedily and there would have been a risk of significant damage to the house and danger to the occupants. Arrangements would have to be made to collect the cigarette butt to plant. How, it is asked, would father’s family reliably have identified a cigarette butt in the garden of B’s house as B’s when the neighbour smokes as well? How would someone have got in, unspotted by the K’s security camera, to pick the butt up?

125. Not only therefore are there positive indicators that B was responsible for the fire, there are also practical obstacles in the way of a staged arson attack.

126. Notwithstanding this, the alternative case, advanced by M, is that F or his family did indeed set their own porch alight. They could have set fire to it from inside or, in the interests of realism, pushed accelerant and a light through the letter box as an outsider would have done. There was some evidence that the letter box had been sealed which, if correct, would have complicated the process for an outsider who would have had to take time dealing with the sealant whereas the Ks would not. The security light would have been likely to come on once the presence of someone in the drive was detected and this possibility would no doubt have concerned an attacker. GK said that the light had indeed come on but he did not notice it until after he had been alerted to the incident by JK. His main curtains were open and he and ST were watching a film. Nobody had investigated whether it was possible to see the flickering light of the television through the net curtained window at night but I would have thought it might well be. If so, I would have expected the knowledge that some of the household were still up also to have discouraged a would-be attacker.

127. On the Ks’ case, the arsonist was incredibly careless. It is not only that he ignored the danger that the security light might give him away to the family, particularly if he noticed that someone was still up watching television. The discovery of his cigarette butt on the driveway also indicates considerable negligence as he would have been likely to realise that leaving something of that nature behind would increase the risks of his detection. When one thinks rather more about the precise circumstances in which he may have come to drop it there, it becomes apparent that he may have been risking not only detection but also personal injury. Whilst it is not impossible that he arrived with the butt of an already smoked cigarette, it is difficult to see why he would do this and it is much more likely that he smoked the cigarette at or near the site. He therefore ran the risk that the glowing tip might have given away his presence, either standing on or by the driveway or approaching or leaving the house. If he was smoking it whilst carrying accelerant, the risks of personal injury are obvious. He would surely have been unlikely to linger on the driveway for sufficient time to light up and smoke a cigarette after depositing the accelerant and the means to ignite it through the letter box but if he did, that would not only have increased the risk of detection but also put himself in danger from the developing fire.

128. There was someone else’s DNA on the cigarette butt as well as B’s. It was explored whether this supported the proposition that it had been planted on the drive. I was satisfied that it did not. The DNA was not sufficient for it to be associated with any particular individual and there were a number of ways in which secondary DNA could have got on the butt, not least when it was transferred, in circumstances which are unknown, from the simple plastic evidence bag into which it was placed at the scene to a tube inside a plastic bag which is how the forensic scientist found it when it arrived for testing.

129. I have no doubt that, contrary to F’s submissions, it was possible for the K family to have collected a cigarette smoked by B to plant. One possibility was to collect it from his garden when everyone was out. Another was to instruct someone unknown to B to follow him and pick up a cigarette end discarded by B, for instance in the street or outside a public house.

130. I find the evidence as to the “discovery” of the cigarette butt on the drive highly suspicious. The evidence about GK pointing it out to SC Shine is extraordinary on at least two grounds. Firstly, I entirely share SC Shine’s surprise that GK had noticed this tiny item at the side of the driveway so quickly in all the excitement of the escape from the house, the activities of the fire services and police, and his mother’s medical difficulties. It would have been possible for him to do so, I suppose, but it would have been a very lucky chance. Secondly, if GK really had discovered the cigarette butt in this way, why should he deny that he had done so? I appreciate that people sometimes misguidedly lie to bolster the truth and it could be argued that GK wanted it to be thought that PSW had found the item in order to put beyond doubt the genuineness of this piece of evidence. However, there is also a very strong possibility that GK disowned the finding of the butt because he, or to his knowledge someone else in the family, had planted it and he did not want anything at all to lead to speculation along these lines.

131. Clearly, a staged arson attack involves danger to people and property. The damage in this case was, however, limited. The fire brigade arrived very quickly as there was a good chance they would, the station being so close. Indeed, it would have been simplicity itself for someone to have popped round to the fire station immediately before the fire was started to check that the fire engine was not out on another call. The evidence of Mr Goad was that the fire had been burning for a maximum of 5 minutes before it was extinguished. I found it very difficult to see how all that the Ks described, from the noise heard by JK, through the sighting of B, the calling of the fire service, the evacuation of the family, the arrival of the fire engine and the deployment of the hoses could have taken place in such a short time if none of the family had had any advance idea of what was going to happen. I am not prepared to go so far as to say it would have been impossible but the timing was extremely tight.

132. I must also take into account the evidence about the alleged call to N. I have commented already on the extraordinary response of GK and F to this, even on their own case, and upon the suspicious divergence of their evidence from ST’s. The relaxed attitude that the two of them say they ultimately took to the call and its possible implications mirrored their evidence about the way in which the door was answered with no precautions on the night of the “wounding”.

133. Whereas M’s family only knew in general terms that there were concerns expressed about both sides in my judgment, F’s side knew that I had made significant findings of fact against them in relation to their treatment of M and, furthermore, that the guardian did not consider in the circumstances that she could recommend that they have care of the children. They appeared quite accepting of this when she saw them. That is not in character with the determined way in which they have approached issues in relation to the children during the currency of the proceedings, pursuing their objectives by diverse means. The history of applications last year is well documented in Munby J’s judgments and in the papers. I remind myself of what occurred over the children’s passports, with F attempting illicitly to obtain new passports and lying blatantly about his activities. I remind myself also that the K family were prepared to take steps to attempt to establish that M was mentally ill and asserted that she was incapable of caring for the children when events have proved very clearly that neither is the case. Now I have found, on clear evidence, that F was prepared to wound himself (or to be wounded by someone acting on his behalf). This does not establish that he was behind the fire at his home but it is nonetheless a powerful consideration in my determination as to what happened that night. It shows the lengths to which F is prepared to go in his fight with M and her family and in relation to the children. He was prepared to plan and execute an elaborate deception and to endure a painful wound to serve his ends. He was also prepared to lie to all and sundry, including the police and the courts, about what had happened in a deliberate attempt to mislead the authorities and achieve what he wants.

134. I take into account that F seems to have understood, in the immediate aftermath of the fire, that the arson would potentially limit his contact with the children because people would be anxious that they would be caught up in a future attack upon him. This factor, whilst a possible indicator against the arson having been started by F or on his behalf, is not, in the particular circumstances of this case,  sufficient to lead me to discard the possibility that F was nevertheless prepared to attempt to gain advantage in relation to the children by this means or, if that was not possible (as he may by then have thought to be the case in the light of the guardian’s advice), revenge against the K family. Early on in the proceedings, he preferred the children to be taken into care than to remain with M. It is possible that he had reverted to that state of mind and hoped that concerns about the presence of an arsonist in the house where M was living would be sufficient to lead the local authority to remove the children.

135. I have considered the evidence of M’s side of the family very carefully. Whilst they are anxious about contact between the girls and the F’s family and seek to limit it, I am not convinced they would go so far as to set light to F’s house to prevent it. I take into account the flaws in the alibi evidence provided for B in relation to the night of the fire. I take into account the possibility that his family members may have been lying deliberately to support him. I take into account that B denied making the threats to kill I have found he made on 30 September and no one else from the K side admitted to hearing them so B at least, and possibly others, are not always entirely reliable witnesses.

136. There was independent corroborative evidence of communications with RK in the early hours of the morning and I accept entirely that this was an evening when she did stay out later than she was meant to, celebrating the end of her job, and when the family were cross and anxious as a result. Notwithstanding the criticisms made on F’s behalf of the quality of the evidence of the K household in relation to B’s presence there from about 10 p.m. onwards, I found the witnesses credible and I accept that B was seen/heard at the family home by members of the family in the early hours of the morning and again when they got up in the morning.  I also take into account that if the timings given by the Ks for the night of the fire were correct, it might just have been possible for him to get to and from the Ks’ property and still have been seen in his own home when he was. This would depend, however, on M (who I think probably principally relied on her child’s normal routine for her timings) having been mistaken about the time of the feed. Even then, the timings would have been almost impossibly tight and B would have had to manage to leave and return to the rather disturbed and wakeful household without anyone hearing him and to conceal before, and afterwards (including next morning when the guardian came and found him relaxed and chatting), the agitation that the dangerous exercise would no doubt have generated in him. 

137. I come to my findings therefore in relation to the extremely improbable allegations made about the fire which was undoubtedly not an accident and was started deliberately by someone. On the one hand there is the allegation that B K set the Ks’ house alight and on the other that the Ks set their own house alight. If there is anything to choose between these allegations in terms of their improbability, it might be thought that of the two, it is more improbable that the Ks set fire to their own house. Clearly, I look for particularly cogent evidence before finding allegations such as this established on the balance of probability.

138. I do not find it established that B set the Ks’ house alight. Indeed, I find that the evidence is sufficient to satisfy me that he did not.

139. I have considered the possibility that an unrelated person happened to choose to set light to the house that night. That would require two coincidences at least. The first would be that in the midst of all the trouble between the two families, someone completely unrelated chose to target the Ks or made a random attack on their home. The second and much more extraordinary coincidence would be that B’s cigarette butt just happened to appear on the drive on or around the same night. No one suggested that B had been on the drive legitimately in recent times. The Ks said he had been there earlier in the year when he smashed the windscreen but that was months before and this was a relatively fresh cigarette butt on a rather clean drive. I hardly need comment on the vanishingly improbable notion that a random attacker would carelessly have dropped a cigarette butt with B’s DNA on it. So, if the fire was caused by an unrelated person, the puzzle remains as to how it got there. In all the circumstances, I reject the idea that the fire was related neither to the activities of the Ks nor to the activities of the Ks.

140. Despite the extreme unlikelihood of the Ks setting fire to their own house, I have been satisfied by the totality of the evidence that either they or an agent on their behalf did exactly this.

The other findings reconsidered
141. In the light of my conclusion in relation to the wounding and the fire, I have looked again at my finding in relation to the incident of the bonfire in the garden towards the end of the marriage. Given that my finding about this depended heavily on the evidence of F and N, it seems to me unsafe to leave it to stand and I discharge that finding. I am not prepared to say that there was not some sort of ceremony but I certainly do not find it established now that there was.

142. As neither F nor, in my view, his family or friends (N and ST) can be trusted to give a truthful account of anything, all the findings that I made against M and her family in relation to the post-separation campaign must be overturned as well.

Future
143. I will consider any consequential directions when this judgment is handed down.