Wigan Council v M & Ors (Sexual Abuse: Fact-Finding)

The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification. Their behaviour is always an abuse of power and usually a breach of trust. They destroy families and blight childhoods. They create dread in their victims by convincing them that the consequences of speaking out will be worse than the consequences of silence. They create guilt in their victims by persuading them that they have somehow willingly participated in their own abuse. They burden their victims with secrets. They poison normal relationships, trade on feelings of affection, drive a wedge between their victims and others, and make family and friends take sides. They count on the failure or inability of responsible adults, both relatives and professionals, to protect and support the victims. Faced with exposure, they commonly turn on their victims, try to assassinate their characters, and get others to do the same. Most often, their selfishness is so deep-rooted that they ignore other people’s feelings and are only capable of feeling pity for themselves.

The effects of sexual abuse on the victim can be lifelong, but because of the way perpetrators operate, most abuse goes undetected. It takes courage to ask for help. Victims are beset by feelings of shame, guilt and fear. They should be able to have confidence that their accounts will be adequately investigated and that they will be appropriately supported. Instead, experience shows that the abuse is often compounded by sceptical or inadequate reactions within the family and beyond. It is not always possible to establish where the truth lies, but where it is possible to investigate, there must be a good reason not to do so. The position of a complainant whose allegation is described as ‘unsubstantiated’ is extraordinarily difficult, but sometimes ‘unsubstantiated’ is no more than a euphemism for ‘uninvestigated’.

In this case, a 15-year-old girl (who I will call G) told the police and social services that she had been subject to years of gross sexual and physical abuse by her stepfather, who I will call Mr C. Having done this, she was promptly banished from the family home by her mother and forbidden from having any contact with her four younger siblings. She then found a home with a kindly neighbour who looked after her for a year, largely at her own expense. Although the investigating police officer and the girl’s social worker regarded her allegation as credible, she was treated as a child in need and no child protection procedures were invoked; instead, after five months’ absence, it was Mr C who returned to the family home, while G herself remained outside the family. It might well be asked: what was in it for this young person to confide in the authorities if these were to be the consequences?

Two months after Mr C’s return, the second child in the family, a now 15-year-old boy who I will call B, told the police and social services that he too had been the victim of exactly the same kind of sexual and physical abuse (though during the earlier investigation he had denied it). He now corroborated his sister’s account and added that Mr C had also made him engage in extreme sexual activity with her, something she then confirmed. High among the distressing aspects of the matter, B described how the abuse continued after Mr C was allowed back into the home.

It was only at this stage that steps were taken to protect B and the three younger children at home by placing them in foster care and starting care proceedings. That was nearly a year ago. In the meantime, a decision has been taken by the Crown Prosecution Service that the stepfather is not to be prosecuted for anything. This long overdue fact-finding hearing in family proceedings is therefore the first opportunity for G and B to hear a decision on their allegations against Mr C and the first opportunity that Mr C has had to defend himself.

In a further, and all-too-familiar twist, G returned abruptly to her mother's care after a year with the neighbour. By that stage, the mother (who had herself been an abuse victim in childhood) was at home alone and her new-found willingness to ‘believe’ G had everything to do with her own emotional neediness and nothing to do with any real assessment of allegations that she had until then dismissed out of hand. About two months after G returned to her mother's care, she became pregnant by a much older boyfriend who she had only just met.

This purpose of this hearing is to make findings of fact. Further assessments will be completed in the light of the findings and welfare decisions will be taken for the younger children at a final hearing in six weeks’ time.

This judgment is structured as follows:

The mother, who is now aged 36, has five children:

The father of G and B is Mr P, who has played little part in their lives and no part in this hearing.

The father of the other three children is Mr C, who has also been stepfather to G and B since they were very young. He is now aged 32. He has worked in pubs while claiming benefits.

The mother and Mr C had a fourth child, who sadly died at birth in July 2007.

B has a genetic condition and his diet requires close attention.

During the course of her evidence, the mother described how she herself had been the victim of sexual abuse at an extremely young age.

There is a wealth of information about this family going back some 15 years and contained in the records of social services, schools, health services and the police.

The history begins in 2000, when Mr C began to live with a young woman who had a baby, born in 1999. In October 2000, the baby was found to have a skull fracture and inflicted bruising to the ear and jaw. Care proceedings were taken, in which both the baby’s mother and Mr C were legally represented. The conclusion was that either one of them could have caused the bruising. No findings were made in relation to the skull fracture.

The events concerning that baby are a matter of record only. They play no part in the local authority’s case or of my consideration of the allegations that have been raised in these proceedings.

In 2002, when G was aged 3 and B aged 2, their mother began a relationship with Mr C and moved with the children to live with him in February 2003. Because of Mr C’s previous history, social services carried out an assessment. The risk posed by him to G and B was considered to be low to medium and in July 2003 they were registered under the category of physical abuse. Mr C was allowed to remain in the home.

Both G and B describe Mr C as behaving well towards them at the start. However, a pattern of social services referrals followed.

Accordingly, up to the point when G was 13 and B 12, there had been a steady stream of concerns about possible physical mistreatment, though nothing was ever proved. No concerns arose in respect of the two younger children, by then aged 6 and 2.

In May 2010, the family moved to its last address.

Matters then moved in another direction. In August 2011, the police attended the family home after a statement by a neighbour that Mr C was sexually abusing G. G was spoken to in the street with her mother and Mr C nearby. She denied making any allegation. Mr C was arrested. The mother began to shout at G. The officer decided that a Police Protection Order was necessary. G was then spoken to again and said the allegations were untrue and that she had made them up in order to fit in. As a result, Mr C was released from custody without interview and the PPO was removed.

In January 2013, the youngest child was born.

On 1 July 2013, the NSPCC made a referral to the local authority following a report by an anonymous friend that G was being sexually abused by her step-father, and that it had been going on since 2012. Her mother was said to know about it. The report, which gave details of the allegation, said that if the police were to interview G in front of her parents, she would deny or withdraw the allegation because she was worried about what would happen to her.

In response, the police attended at the family home late at night. G was woken up by Mr C and asked questions in front of her mother. G said she did not know anything about it, had not said anything, and that Mr C had done nothing. The police assessed the call to the NSPCC as malicious and informed social care. After limited further inquiries, no child protection concerns were raised and no further action was taken.

On 20 July 2013, G informed a neighbour, Mrs S, that Mr C had been sexually and physically abusing her, giving details. Mrs S took G, who was very upset, to see two other neighbours and G repeated her account. The three neighbours told G that she should not say these things if they were untrue. G insisted that they were, so they then went with her to the family home and told the mother what she had said. The mother was angry and said that G was an attention-seeker and a liar. Mr C arrived and denied the allegations. Mrs S took G to her house, from where G called the police. She was taken to the police station and interviewed that night. She then went to stay for two nights with one of the neighbours before moving to live with Mrs D, Mrs S's mother, where she remained for the next year. This largely unsupported private fostering arrangement was inappropriately described in evidence by Ms W, the social worker at the time, as G "voting with her feet". In fact she had no option as her mother had openly disowned her, refused to let her stay in the house, and had even to be persuaded to allow the police to collect some of her clothing over the following days. Until the end of the year, B gave G the cold shoulder at school. It was not until the summer of 2014 that G was allowed to have contact with the three younger children, something that greatly distressed her.

On a later occasion during the summer of 2013, G told Mrs S that Mr C had raped her and that on one occasion he had made her and B have sex with each other.

On 3 September, the mother informed the police that she and Mr C had always got on and that there had been no domestic incidents between them.

On 4 September, G told Mrs D that Mr C had raped her.

G was interviewed by police officers under the Achieving Best Evidence procedures on 20 July and 15 September. During these interviews she described regular and persistent sexual abuse by Mr C of the most serious kind, over several years, including:

She also alleged that Mr C had regularly physically assaulted her by punching, hitting, slapping and kicking her. She said that this sexual and physical abuse had gone on over many years and that the mother had been fully aware of it and allowed it to continue.

The DVD recordings of these and later interviews were not seen by any of the social workers or family members until they were finally fully disclosed by the police in October 2014. The original social worker was unaware that the second interview was taking place and did not know that G alleged rape during the course of it.

Mr C was arrested and interviewed by police on 21 July and again on 23 September 2013. He denied all the allegations against him.

On 1 August, the local authority held a strategy meeting. It was decided that the grounds for a Child Protection Conference were not met as the mother was co-operating and Mr C was not in the home.

On 23 September, G was medically examined by Dr Victoria Evans, forensic paediatrician. The examination disclosed two notches to the hymen. It was not possible to say whether these were secondary to penetrative trauma on one or more occasions or whether they were normal variants.

On 4 October, a Child and Family Assessment undertaken by the social worker, Ms W, concluded with the decision that the family would be supported via a Child In Need Plan pending the outcome of the police investigation. As part of the assessment G was spoken to, as were the other children. G said that she felt happy and safe living with Mrs D. B said that there was no truth in G’s allegations. The younger children were also spoken to and at a series of meetings work was done to understand their wishes and feelings and to give them keep-safe work.

During this period, B wrote a number of fulsome tributes about and to Mr C: for example "I love you more than the world". In answer to a question "What is the worst thing about my family?", he wrote "Nothing. Having [G] near him [Mr C] makes me feel uncomfortable in case she says anything else in relation to rumours/allegations about any of my family." At the same time, B told the social workers that G was a liar and that she was "sick in the head and needs to see a doctor."

The mother told the social workers that G was a liar. She flatly denied that G had told her that Mr C was sexually abusing her or that she had ever seen him hit any of the children.

During the preparation of the local authority’s assessment, a meeting took place on 3 October, attended by the mother and by G and B. G was confronted by her mother and brother calling her a liar, while she insisted that she had told the truth. She was very distressed.

On 5 November, the police concluded their investigation and determined that no further action would be taken. They did not refer the matter to the Crown Prosecution Service. Mr C's bail conditions were rescinded and he gradually returned to live with the mother and the younger four children in December after the keep-safe work had been completed.

On 20 December, the local authority closed the case. It referred G to its lowest level of support: Gateway Services. She was not even considered to be a child in need.

G was offered counseling, which began on 21 January 2014. She described ‘years of physical and sexual abuse by stepfather. He also involved her brother’.

On 22 February, the family was busy with preparations for the youngest child's christening on the following day. Mr C and B were together for much of the day, going backwards and forwards between the home and the pub where Mr C was working. CCTV cameras at both locations enable the timing of these comings and goings to be established.

On 25 February, G approached B at school, saying how much she missed him and the family. In response, B told her that he was being abused by Mr C. They agreed that he needed to talk to social services.

That evening, G was helping at a club for young children. She told two adult workers that her brother was being sexually abused at home and that things had happened on the previous Saturday (22 February). She also said that she had been abused herself. The youth club informed the local authority.

On 26 February, the social worker, Ms H, went to the school, where B gave details of physical and sexual abuse by Mr C. He said that he had been too scared to speak out when G made her 2013 allegations but this time he had had enough. A joint home visit was carried out later by Ms H and DC T. The mother and Mr C were told of B’s allegations. The mother said she did not believe B. Mr C was arrested.

On 27 February, B was interviewed by the police under the ABE procedure. In his interview he described sexual abuse by Mr C over many years, including:

B also said that he had been physically abused by Mr C over many years. Like G, he alleged that his mother had known of the physical abuse but had failed to stop it happening and that he had tried to tell her about the sexual abuse years ago but she had not listened.

On 26 February, B and the three younger children were made subject of Police Protection Orders, removed from the parents’ care and placed in foster care.

Having arrived in foster care, the oldest of the three younger children, then aged 10, said "If somebody says something has happened, it’s not true."

On 27 February, Mr C was interviewed again by the police and denied all allegations.

On 28 February, the mother made a police statement in which she said that she did not believe Mr C was capable of abusing the children and that she believed that B was being influenced by G. She said that she had never witnessed anything at home to cause her to suspect that he was sexually or physically abusing them. She had never witnessed him to hit or assault any of the children, or even to discipline them. She said that there had been no opportunity for Mr C to have abused B on 22 February.

On 19 March, G underwent a further ABE interview and repeated her own allegations. She said that B had only just told her of his allegations of sexual abuse. At the end of the interview, G was told that B’s allegations included allegations that they were made to engage in sexual activity together. G said that this had happened but that she had not described it before due to shame and embarrassment.

On 21March, B was medically examined by Dr Denise Smurthwaite, forensic paediatrician, who found no evidence of anogenital injury but concluded that this neither supported nor refuted B’s allegations. A number of small, non-specific scars were found to the body, including scars on the head, which she concluded were supportive of his account of being assaulted, though not diagnostic or conclusive.

On 8 May, the local authority belatedly issued care proceedings in relation to B and the younger three children and interim care orders were made.

On 22 May, the Children’s Guardian interviewed the mother and Mr C, who firmly presented as a couple. On the following day, the Guardian was informed that they had separated, which puzzled her. The parents maintain that they have physically separated since then.

On 9 June, the mother filed a statement in these proceedings saying that she did not know whether the children's allegations were true. She said that she had never witnessed any behaviour between Mr C and the children which would give her any reason to be concerned.

In June, G started to make contact with her mother. In response, the mother contacted G’s father, Mr P, with whom there had been little or no contact for some 10 years. She asked him to look after G and briefly rekindled her own relationship with him, only for it to end in an incident of domestic violence at 2.30 a.m. on 9 August. This was witnessed by G, and the police were called. Neither the mother nor Mr P had informed the local authority of their short-lived reconciliation.

On 23 July, exactly a year after she had started living with Mrs D, G had abruptly left her home without any warning or explanation and with the connivance of her parents had gone briefly to live with Mr P, before moving on to live with her mother after the domestic incident. She remains there, supporting her mother. This placement did not have the approval of the local authority, but its ability to influence the situation was no doubt limited by its laissez-faire attitude to the placement with Mrs D.

On 21 August, the CPS announced that Mr C was not to be prosecuted on the evidence as it stood.

At a court hearing on 10 October, G came to court with her mother. She produced a memory card that she said she had found in the kitchen. Among normal domestic photographs, there is a photograph of B lying on the kitchen floor in his pyjamas. He is wearing his glasses, but his eyes are shut. Some form of white material is being forced into his mouth by a pair of adult hands, probably male. Limited investigations into this photograph continued until the last day of the current hearing. Forensic examination establishes that the photograph could not have been taken after approximately 9 p.m. on 7 March 2013.

On 31 October, G discovered that she was pregnant.

On 26 November, the mother filed a statement saying that, having viewed the ABE interviews, she now believed that both children had been abused. In the same statement, she described witnessing an incident two or three years earlier when she found Mr C seriously physically assaulting G at the bottom of the stairs, to the point that she had to step in between them and had threatened to leave him.

Amazingly, it was not until 13 March 2014 -- some nine months after G's initial allegations -- that the local authority lawyers were consulted. Even then, it took another eight weeks for proceedings to be started. There were then a large number of case management hearings, largely directed to extracting information from the police. I agree with the conclusion reached by the local authority and the officer in the case that there should have been an early meeting between the local authority lawyers and the police so that the latter's files could be inspected. As it was, police disclosure was still arriving on the eve of the hearing.

On 22 October, a psychological report in relation to the ABE interviews was received. This had been authorised by the court and has been referred to as a “validation exercise” or “veracity assessment”. I have addressed this issue in a separate judgment, reported at [2015] EWFC 8.

On 31 October, the case was transferred for hearing at High Court level due to its complexity.

On 4 December, I determined an application by Mr C for a direction that both G and B should give evidence. G had previously been willing to give evidence, but had changed her mind in the light of the stress she was experiencing and her recent pregnancy. B has been willing to give evidence throughout. I directed that both children should give evidence and fixed a ground rules hearing for 13 January. At that hearing, arrangements for the children to give evidence via a video link were agreed and approved, as were the general topics and nature of questioning that they would face. Both children visited the courtroom and video suite a few days before they gave evidence.

The hearing itself took place over a period of ten days. At the outset, I viewed and read G’s three recorded interviews, which together last about 2½ hours, and B’s interview, which lasts for 1 hour and 20 minutes. G and B gave evidence on the first two hearing days, with their evidence in each case lasting for a day with a number of breaks. Although it was an anxious experience for them, both were able to give evidence without undue difficulty, although B tired somewhat towards the end. Both children were helped by the clear and sensitive way in which they were questioned, notably by Mr Rowley QC on behalf of Mr C.

Evidence was given by Mr C and by the mother, lasting about a day in each case. In the mother's case, the court had a recent psychological report showing that her intellectual functioning is in the low average/borderline range. Account was taken of this in counsel’s approach to questioning her, and I bear it in mind as part of the general context of the case.

There were nine other witnesses, namely the three neighbours, Mrs D, the youth club worker, the school pastoral support worker, the two social workers, and the officer in the case. Their evidence was given over the course of three days.

The parties delivered comprehensive written submissions on the ninth day of the hearing.

The local authority has presented an extensive schedule of findings reflecting the detail of the children's allegations of abuse against Mr C and the local authority’s allegation against the mother of failure to protect the children. The burden of proving each and every one of these allegations remains on the local authority and the standard of proof is a simple balance of probabilities.

It is not uncommon for people to tell lies in a case of this kind. Where someone has lied, the reasons for it must be assessed. The fact that someone has lied about one thing does not mean that they are untruthful about another thing, still less everything. The fact that someone gives conflicting accounts of events does not prevent one account from being truthful. The fact that someone gives inaccurate information in good faith does not automatically invalidate their evidence as a whole.

The local authority asks the court to prefer the evidence of the children concerning the alleged abuse to that of the mother and Mr C. It alleges that Mr C has persistently physically and sexually abused the children in the manner they describe, and that their mother failed to protect them, failed to support either of them when they make their allegations and put her own needs for a relationship with Mr C ahead of the needs of her children.

The mother’s case is that she now believes the children in almost every respect and acknowledges that she should have done more to protect them. She says that she now feels very strongly that she has ‘let her children down and that she should have done more to listen to them, be there for them and protect them.’ On her behalf, attention is drawn to the psychological report as providing some assistance in interpreting her behaviour and the way in which she gave her evidence. It is said that she did not receive the help that she should have had from social services to enable her to consider her children's allegations properly. The local authority not only let down the children, but let her down also. The lack of child protection procedures or a prosecution will have misled her in relation to the risks.

Mr C's case is that the children's allegations are completely untrue. At all events, the Court cannot be satisfied to the requisite standard of probability that physical and sexual abuse has occurred. He contends that he has been a devoted father to all the children. There is no probative medical evidence. It is intrinsically unlikely that some of the extensive abuse alleged could have been carried out in such a crowded home. The mother’s recent conversion to believing the children and attacking Mr C should carry no weight. G is an unreliable witness who has made complaints and retracted them. There are contradictions between her account and B’s. The objective evidence about 22 February shows that B’s account of being abused on that date cannot be true.

G and B stand by their allegations and on their behalf detailed submissions are made as to their credibility and as to shortcomings in the professional response.

On behalf of the Children's Guardian, it is submitted that the evidence points against Mr C. The children have remained consistent and do not appear to have exaggerated or embellished their evidence. The adults have been inconsistent in their evidence on major events and issues. The mother says that she accepts her failure to protect the children but shows little insight into how that was.

In this case I am satisfied to a very high degree of probability of the following four findings of fact.

(1) Mr C sexually abused G and B for a period of years up to July 2013 in the case of G and February 2014 in the case of B. The abuse occurred in the home and at Mr C’s workplaces. It escalated from touching the children’s private parts, to making them touch his private parts, to fellating B and forcing B to fellate him, to attempted rape and rape of G and attempted buggery of B, and finally to making the children perform sex acts on each other. The children were forced to take part in these activities and were reduced to silence by Mr C’s threats about the consequences of speaking out.

(2) Mr C routinely subjected the two children to physical violence that went beyond, and often well beyond, reasonable chastisement. This included hitting, kicking, punching, slapping, biting, pushing and even hanging them over the banisters.

I reach these conclusions for the following reasons:

(3) The mother is guilty of a grave failure to protect G and B from the sexually and physically abusive behaviour of Mr C. She knew that they were being physically abused and suspected that they were being sexually abused. She witnessed physical violence towards them on more occasions than she admits. At separate times when they were younger, both children clearly told her that Mr C was sexually abusing them. She turned a blind eye. Had she told the authorities what she knew, rather than concealing it for Mr C's benefit, the children's ordeal would have been much shorter and less damaging.After G made her allegations, the mother colluded with Mr C to discredit her, coach the other children to say that she was a liar, and punish her by cutting off all family contact.

I reach those conclusions for these reasons:

(4) Despite clear warning signs, the statutory agencies did not protect these children. Further significant harm thereby came to G by being excluded from the home and to B by remaining there.

The following is a non-exclusive list of the practice issues raised by the evidence:

The threshold conditions for intervention in the case of B and the younger three children are overwhelmingly met on the basis of my first three findings of fact.

I direct that a copy of this judgment is disclosed to the police, the CPS and the local authority’s senior social services management.

I will now hear from the parties as to the preparations for the final stage of these proceedings.

Further assessments have established that the mother cannot meet the needs of the children, that Mr C continues to deny all allegations against him, and that a close relative is able to meet the needs of the three younger children.

With the consent of all parties, care orders were made in relation to all four children.

B (16) remains in foster care, with his wish to return to live with his mother being kept under active review, and with a plan for regular contact with G and the younger children.

The younger children (11, 6 and 2) have been placed with a relative with a plan for supervised contact with their mother six times a year and with their father, Mr C, four times a year, and with regular contact with G and B . The intention is that a Special Guardianship Order might be made in favour of the relative in due course.

The local authority has been notified of damages claims on behalf of G and B.

G (17) has moved away to live with her father and her boyfriend. Her baby is due in the summer.

On 8 December, the local authority was informed by the CPS that the matter had been considered by a Category 4 independent prosecuting barrister, who concurred with the view of the original CPS lawyer and that of the in-house specialist senior counsel that the Evidential Stage for prosecution as set out in the Code for Crown Prosecutors is not met and that accordingly no charges are to brought against Mr C unless further and compelling evidence came to light.

In the light of this, I release this judgment for publication on Bailii in accordance with the President’s Guidance on the publication of judgments in family proceedings.