IN THE FAMILY COURT	Case No. PR14C00015
SITTING AT PRESTON
Leyland Courthouse
Lancastergate
Leyland

Monday, 8th December 2014

Before:

HIS HONOUR JUDGE DUGGAN

In the matter of:

Lancashire CC v C (Allegations of Abuse; HHJ Duggan)

______________________

Counsel for the Local Authority:	MS CLARE GRUNDY

Counsel for the Mother:	MS PETA HARRISON

Counsel for the Father:	MISS CHRISTINA CHINNOCK

Solicitor for the Children/Guardian:	MR JOHN NIMMO
______________________

JUDGMENT APPROVED BY THE COURT

Transcribed from the Official Tape Recording by
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

JUDGMENT

HIS HONOUR JUDGE DUGGAN:  
1.	This is the final hearing of the Local Authority’s application for care orders.  The case concerns three children.  I shall use the initials by which they will be known in the anonymised transcript of the judgment. 
PC is a boy, born on 18th October 2006;
JC is his brother, born on 5th December 2009; and
EC is their sister, born on 22nd November 2010.  
They are the children of the mother and father who were both represented before me.  The father did not attend the hearing.  In fact, he had chosen not to attend previous hearings and analysis revealed that it was his choice not to attend the final hearing too.  He has failed to file a statement of evidence as directed.  Although, at an earlier stage, he did sign a response to threshold on 6th November 2014, that was little more than a simple denial of the allegations made against him.  His lawyers withdrew on the second day of the hearing.  The mother attended and made a contribution to the hearing.  The issues were obviously very upsetting for her and there were times when she chose to remain outside the courtroom.
2.	The family originate in Yorkshire.  The mother and father lived together there and the three children were born.  The Yorkshire authorities saw a case of neglect.  In December 2013, the mother and children left the father, the mother alleging physical abuse by the father, and they came to live in Lancashire.  The Lancashire authorities also perceived this to be a case of neglect, albeit neglect at a particularly high level.  It became clear that the mother was unable to meet the needs of the children and she agreed to them being accommodated on 28th February 2014.  The children then went to foster care, initially together.
3.	In foster care, sexualised behaviour on the part of the children was seen and the children made allegations of sexual and physical abuse by their father and by others.  The only significant issue that remains for determination relates to these allegations.  The Local Authority have prepared a schedule alleging that the father is responsible for physical and sexual abuse.  It is alleged that the mother failed to protect the children and, in particular, it is alleged that the mother knew of the abuse.  Initially, the Local Authority sought to prove allegations made by the children concerning abuse by others, in particular, members of the father’s family.  I ruled that it would open a multiplicity of wider issues to try these additional allegations and that, in those circumstances, it was neither necessary nor proportionate to do so.  Accordingly, the allegations have been confined to those made against the parents.  
4.	I say that the only significant remaining issues relate to the allegations of abuse.  This is because the outcome of the case itself is not contested.  The mother accepts that the threshold is met, not least on the grounds of neglect.  The mother accepts the Local Authority’s plan that the children should live in separate foster placements.  The mother’s contact arrangements are agreed.  The mother tells me that she believes the allegations which the children make against their father but it is an important part of the mother’s case that she claims that she was not aware of the sexual allegations at the time.  This, then, is an important issue of fact for me to address.  In addition, I need to consider the Local Authority’s application for permission to refuse contact with the father.  
5.	The Local Authority seek care orders.  The burden of proof rests upon them.  Allegations must be proved on the balance of probabilities.  The parents have no burden to explain anything and the court will not proceed on mere suspicion.  If allegations are not proved on the balance of probabilities, I proceed on the basis that the allegations did not happen.  The Local Authority allegations are, of course, allegations made by the children.  That evidence needs close analysis.  It is, of course, only part of the case.  It is important, also, to analyse the contribution made by the parents.  It is important to consider the allegations against the wider social canvass.  
6.	I have heard from the foster carers, the social worker and the mother.  I have also observed the recorded interviews which the children gave to the police.  The father has been absent and has failed to provide evidence.  The authorities indicate that, in those circumstances, the court is entitled to infer that he is responsible for those matters alleged against him.  I prefer to consider the evidence that I have in detail and to conduct a full analysis as to where that leads me in the case as a whole.  
7.	I start with the social background.  Clearly, this was a severe case of neglect.  On arrival in foster care, the two younger children were not toilet trained.  E had little speech.  J was difficult to understand.  The foster carers worked assiduously on these issues with a remarkable degree of success.  I accept the social worker’s account that before the children were accommodated, they were dirty; they were smelly; P had a toilet problem; J was wild and the home circumstances in which they had been living were really quite chaotic.  The paediatrician tells me that all three were showing signs of being neglected children and when the family came from Yorkshire to Lancashire, the local Social Services were notified of their arrival and it was soon apparent that mother accepted that she could not cope and the children came to be accommodated. 
8.	The mother has made consistent allegations against the father of physical abuse.  Having heard the mother, I have no reason to disbelieve her.  As will be apparent later in this judgment, there are words from the children to be taken into account in relation to these allegations alongside the mother’s account but, first, I should turn to the children’s allegations of a sexual nature.  It is important to note that there were no observations of sexualised behaviour from outside the family before the children arrived in foster care.  Indeed, in foster care it was not observed immediately but sexualised behaviour seems to have built up as the children settled into foster care.  The sexual behaviour became very pronounced.  There is a graphic account to be found in the foster carers’ notes and, ultimately, it proved necessary to move the children to separate placements in order to prevent sexual activity taking place between them.  
9.	It is difficult to believe that this sexual behaviour does not find its origins in life before the children were accommodated by the Local Authority.  The grandmother told the social worker that she had seen it before on numerous occasions.  Mother claimed that she was aware of it on only a single occasion but, in the circumstances, I cannot accept this evidence from the mother who I find is minimising the problem as it was apparent at that time.  The children have seen the psychologist, Carol Moore.  She expresses the professional view that it is likely that the children are reflecting both their exposure and their experience of sexual abuse.  
10.	I turn now to the allegations which were made commencing in April 2014.  It is necessary to reflect on the need for caution.  These children were very young, aged 3 to 7 in April 2014.  E’s speech was very difficult to follow.  I have seen that for myself on the DVD recording.  I have the advantage of the view of the intermediaries employed by the police for those interviews.  They warn that all the children may have a wish to please the listener rather than necessarily to give an accurate account.  I am warned that E’s understanding was at a very basic level.  P’s understanding was at a much higher level and he does, of course, speak with a clear voice.  It is necessary to consider the words reported by the foster carers in the context that they were not, in fact, repeated by the children to professionals in the recorded interviews where, of course, all the precautions of Achieving Best Evidence procedures were in place.  However, it seems to me that these are children who needed the security of familiar people around them before they felt comfortable to speak.  
11.	It is significant to me that on 21st June, P told the foster mother that his account was too rude for him to feel able to reveal it either to the social worker or to the WPC who was interviewing him.  Nevertheless, it is necessary to consider closely the approach taken by the foster carers.  They were not professionals.  Their interviews with the children were not recorded.  However, I find their notes to be good.  They were prepared quickly although, of course, they make no pretence to be a completely accurate verbatim account of what transpired.  The foster carers were questioned closely on their approach and I found them to be very impressive.  They did have experience.  They did have training.  They were aware that they must not press the children by questioning.  They were aware of the hazards of leading.  They were clear in evidence that there were occasions when they were tempted to enquire more of the children but they were equally clear that they had not succumbed to that temptation and the notes of what they were told by the children do tend to confirm this degree of appropriate self-discipline.  
12.	There is in the notes at C87 a blemish where the recording, “hole in his trousers,” is transparently inaccurate.  Equally, it is transparently obvious that the foster carers did give praise and support to the children as they spoke to them.  I recognise in this context a risk that the children found and obtained more attention the more graphic the account that they gave.  Against that, it is clear that the foster carers’ disapproval of the children’s language and of their experiences may have had the effect of deterring the children in the more graphic details of their account and the limited nature of the revelations on the recorded interviews may be the product of that.  It does seem as if the foster mother was on the lookout for information concerning sexual abuse by the wider paternal family but there is no sign that this influenced her approach to the children.  
13.	The first reports were from P when he revealed that he had seen his father viewing pornography online.  The mother agrees that the father did do this.  P, himself, is consistent on the subject.  He even remembered the website address for his own use when he was given an iPad in foster care some months later.  E also speaks about exposure to online pornography.  The next report is when P alleges domestic violence which is support for the mother’s account.  Not only did P reveal this to the foster carer but, significantly, this was an allegation that P repeated to the police during the recorded interview, even though he did say that this was all that had happened in the household.  
14.	The first allegations of sexual abuse were allegations against members of a wider family but then, on 27th April, P hesitatingly added and then quickly retracted a sexual allegation against the father.  The following day, 28th April, E spoke about “daddy’s knife” in a context which it is not possible clearly to understand.  On 30th April, P was overheard encouraging J to speak of oral sexual abuse of E by the father.  E confirmed this allegation.  She refers to her “fairy” and there is some confusion, particularly in the recorded interview, as to what this meant but that confusion is swept away as the mother, in evidence, was able to confirm that “fairy” was E’s word for her private parts.  E spoke in similar terms on 19th June and went on to corroborate the mother’s account of a violent rape by the father of the mother in E’s presence.  Both P and J gave a similar account on 21st August.  
15.	In June over the next few days, the children gave a compelling account of oral sexual activity involving father and child or father instigating sexual activity between the children themselves.  There is in the papers a confusing reference to a “sword.”  It is not necessary for me to analyse that further because it refers to the involvement of wider family members rather than the father himself.  The father, absent from this hearing, denies all the allegations made against him save that he accepts that the mother and he were, on occasion, interrupted during sexual activity which, he claims, was consensual.
16.	Overall, I find the children’s account to be compelling.  I accept that it would be much easier for them to speak to the foster mother than it would be during the two recorded sessions.  I accept that the approach taken by the foster carers was appropriate.  P was the oldest child.  He was clearly the most able.  He was the easiest to understand and he has clearly taken the lead in describing the experiences of these children.  The mother says that she believes the children and, in important elements, she does corroborate what they say.  In addition, the children are consistent between themselves and their account is consistent with their behaviour and with their subsequent presentation.  Of course, they do identify the involvement of others but they do consistently include their father in their accounts even though, with the police, they were manifestly evasive about the father’s involvement.  
17.	I find, then, that the father did expose the mother to physical and sexual abuse in front of the children.  I find that this did include forced sexual intercourse.  I find that the father did physically assault the children.  He did show P and E online pornography.  The father did engage in indecent touching of the children involving his and their private parts and including oral contact.  I find he encouraged the children to engage in sexual activity between themselves. 
18.	I turn now to the mother.  The only issue is whether she was aware of the father’s abuse so that this became an element of her failure to protect.  The mother accepts that she was aware of the father’s physical abuse.  She says she tried to say something but the father ignored her.  She was scared to do more although, eventually, built up the courage to leave him.  I have the psychological report on the mother from Dr Mosher.  The court, of course, followed his advice when the mother came to give evidence.  The social work assessment by Mr Webb reflects the approach by Dr Mosher.  This was a vulnerable woman with a mild learning disability.  She had an inability to foresee risk and danger.  
19.	She was aware of a number of things.  She was aware of the father’s violence to the children and to herself.  She was aware that the father forced her to be involved in sexual activity with him in front of the children.  She was aware that his distorted sexual boundaries also extended to sharing with the children computer porn.  She knew that the children engaged in sexual activity between themselves.  The Local Authority argue that the mother knew that the father and others were engaged in the sexual abuse of the children.  There is no direct evidence.  There is no specific complaint.  The Local Authority draw attention to the fact that this was a small house and, in that context, they argue that the mother must have been aware of what was going on.  The mother counters by saying that there were times when she was out; there were times when she was asleep and, of course, her medication may have contributed in that regard.  The evidence does not, in my judgment, establish any deliberate escape on the mother’s part through the taking of medication.  
20.	Significantly, the children support their mother.  P told the police that mother was kind.  He insisted that he did not tell the mother.  The mother did not know.  Similarly, J, with the police, said that mother “did not hurt us.  Only father and his family.”  With the foster carers too, P was clear that he did not tell anyone else, apart from the foster carer, about his experiences and I infer that that meant that he did not tell his mother.  He had only one criticism to make of mother, to be found in the papers at C88, where P says that mother told him to shut up and go to bed on an occasion of complaint.  Mother accepts this.  She explains that it was an occasion when P complained of father’s physical abuse and, on the evidence, that could well be right.  
21.	I conclude that it is not established, on the balance of probabilities, either that the mother was present or that the mother was aware of sexual abuse.  This, of course, reflects the mother’s personal psychological weakness.  A reasonable parent would have seen clear warning signs and would have identified the risk of sexual abuse.  Distorted sexual boundaries were surely apparent to a reasonable parent in this household.  A reasonable parent would have separated more quickly and would not have returned P to the father for a short spell after making the separation.  
Threshold
22.	The Local Authority have prepared a detailed schedule.  In my judgment, it is not possible to identify individual episodes of abuse so I prefer the findings to be in the narrative form of this judgment.  I have prepared a few words in writing by way of summary, which can be recorded in today’s order.  It is clear that the threshold was met, not only through the suffering of harm but through the likelihood that suffering of significant harm would continue without Local Authority intervention.  
Care Plan
23.	The care plan for foster care is supported by all present.  On paper, the father did not agree although the guardian, in discussion, came to the view that father had conceded.  By my findings, it is clearly established that the emotional and physical safety of the children would be jeopardised to a wholly unacceptable degree if they were in the father’s care.  P is old enough for his views to be entitled to weight.  He says that he would prefer to be with father, indicating that he is prepared to give his father another chance in spite of the allegations that he makes against him.  Nevertheless, he does seem reconciled to foster care and, in my judgment, the separation of father and children has been necessary and remains entirely so.  I approve the Local Authority’s care plan.
24.	The remaining issue is the Local Authority’s application for permission to refuse contact to the father.  At face value, P would want contact while the others are too young for weight to be attached to their preferences.  Normally, children in foster care would derive advantage through direct contact with both parents.  There has been no direct contact with father recently.  A recent birthday present for P from father produced a very adverse reaction from the child.  He was pleased to receive a present.  He held onto it and indicated his pleasure but the memory which the gift carried with it undoubtedly produced a deterioration in the child’s presentation.  His soiling resumed at a time when it had become an issue from the past.  I have not heard from the father but it is difficult to imagine that his approach to contact would involve any degree of confession or contrition for the abuse for which he is responsible.  These are very damaged children as a consequence.  They must learn new ways and overcome their memories of the past and, in that context, I accept the unanimous professional advice, including the advice of the psychologist, that contact with the father would be detrimental to these children.  
25.	In conclusion, I grant an order recording the findings in the brief summary which I have distributed.  The threshold is therefore met.  I grant care orders to the Local Authority.  I give permission to refuse contact to the father under section 34(4) of the Children Act 1989.  I direct the children’s solicitor to disclose to the independent reviewing officer the judgment, order and final care plans, together with a copy of the guardian’s report.  As discussed, the children’s solicitor should obtain, file and serve an anonymised transcript of this judgment, the reasonable cost of which should be divided equally between the parties and the reasonable cost on public funding certificates and, finally, there should be a detailed public funding assessment of the costs of the parents and the children.  
[Judgment ends]
Approved 26/3/15
RD