Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE KEEHAN
Between :
BIRMINGHAM CITY COUNCIL | Applicant |
- and - | |
(1) CH (2) and (3) L and B (Represented through the Children’s Guardian) | Respondents |
And | |
PH | Intervener |
Deirdre Fottrell QC and Marlene Cayoun (instructed by Birmingham City Council Legal Services) for the Applicant
James Tillyard QC and Peter Anthony (instructed by The Firm Solicitors LLP) for the First Respondent
Lawrence Messling and Yolanda Pemberton (instructed by Anthony Collins Solicitors) for the Second Respondent Child L
Andrew Neaves (instructed by Evans Derry) for the Third Respondent Child B
Damian Garrido QC and Jason Green (instructed by Painters Solicitors) for the Intervener
Hearing dates: 29,30 June and 1,2,3,6,7,8,9,10 July 2015
Judgment
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.
Mr Justice Keehan:
Introduction
In this matter I am concerned with two children, L, who was born on 2 October 1998 and is 16 years of age, and B, who was born on 2 November 2000 and is 14 years of age. Their mother is the First Respondent, CH and their father is JB. He is not a party to these proceedings and has played no part in the same.
L and B have two siblings:
J, who was born on 28 December 1996 and is 18 years of age; and
C, who was born on 22 November 2001 and is 13 years of age.
They have three half siblings:
A, who was born on 1 June 2005 and is 10 years of age;
LH, who was born on 12 May 2006 and is 9 years of age; and
K, who was born on 4 August 2007 and is 7 years of age.
Their father is PH who is an intervener in these proceedings. He began a relationship with the mother in June 2002. They were married but later separated in 2010.
The local authority instituted care proceedings in respect of the four girls in December 2011 on the grounds of chronic neglect. Each of them were made the subject of care orders on 20 August 2012 on the basis that they would remain in long term foster care. They live with Mr and Mrs H with whom they have all been placed since 16 December 2011.
The care proceedings in respect of L and B were instituted in February 2014. They were made the subjects of police protection orders on 25 June 2013, along with their brother J. They were placed in separate foster placements. Both now reside in different residential units.
The local authority contend that the threshold criteria are satisfied in respect of both L and B on the basis of serious and serial sexual abuse within the family.
Findings of Fact
The findings of fact sought by the local authority in satisfaction of the threshold criteria of s 31(2) Children Act 1989 are set out in a schedule dated 26 March 2015. The findings sought are as follows:
Introduction
There are reasonable grounds for believing that the children L and B have suffered significant physical and emotional harm in the care of their mother. The harm is attributable to the care being given to her or likely to be given to them by her not being what it would be reasonable to expect a parent to give their child.
The physical harm which L and B have suffered includes sexual abuse by their stepfather PH. The children have also been exposed to sexual abuse of the sister C by PH.
The two subject children have grown up in a home in which sexual abuse of them and other children was a regular occurrence. The children have experienced poor boundaries in respect of their own sexualized behaviour
The emotional harm has been by way of witnessing the sexual abuse of each other by PH and being forced by him to participate in and be present during the sexual abuse of siblings.
Direct sexual abuse of the children by PH
L and B have been exposed to pornography and sexualised behaviour by PH. They have been threatened with physical violence by PH.
The home environment was one in which there was a high level of sexual abuse of the two children and other children by PH. B and L have been exposed to and aware of the following;
Sexual abuse of the children collectively and individually by PH.
Sexualized behaviour and activity between the children and in particular B, L, and J
Sexualized behaviour between B, L and their sister C
C has been sexually abused by her stepfather PH. B and L were aware of the sexual abuse of their sister by PH and have witnessed it.
J was sexually abused by PH.
J has seen his brothers B and L being sexually abused by PH and in particular the following findings are sought;
PH sexually assaulted B and J when J was 10 or 11 years old.
B was sexually abused by PH on an occasion when J was present. J was told by PH not to tell his mother about this incident and he was threatened by PH
PH behaved in a sexually abusive way toward B, J and L individually. C saw PH kissing each of the boys in a sexual way and following this she saw the boys kiss each other in a sexual way on more than one occasion
The children were exposed to pornographic materials in their own home and elsewhere
The three boys, J, L and B (and their sister C) were exposed to a range of pornographic materials by PH, CB and other adults
The mother was aware that PH had pornographic material including DVDs and that he downloaded them from the internet, sold them and possibly made films.
PH kept pornographic DVDs and films in the home. He sold them to others from the home and he supplied copies to CB. In particular the local authority asserts that;
All of the children were exposed to pornographic images and films in the home of PH
PH regularly brought pornographic films to the family home and these were shown to some or all of the children. The mother was present in the home on at least one occasion when this occurred
That B and L mimicked what they had seen on pornographic films and behaved in a sexualized way with each other and with C
L was shown pornographic films by PH on DVD players in his car
The mother was present on an occasion when PH showed images and films on his computer and on television to the children
PH was selling pornographic DVDs and his clients attended the home when the children were present
That CH was aware that PH kept pornographic materials in his home and told C about it
J was shown pornographic DVDs by CB on a DVD player in his home at the kitchen table in the grandfather’s home
J was shown a film by PH of a woman engaging in sexual activity with a horse and C also saw the same film
J was made to copy pornographic DVDs by PH and that he was made to watch them
The children were exposed to pornographic materials at the home of CB the maternal grandfather.
On one occasion all three boys and C watched a pornographic DVD at this home
J was shown pornographic films on a DVD player in the kitchen by CB
CB frequently bought DVDs and videos from PH, which the latter kept in his own home.
Sexualised behaviour by the Children
As a result of the lack of sexual boundaries and supervision in the home the children were sexualized and on occasion the children engaged in sexual activity with each other. Much of this activity was instigated by PH or it followed on from sexual abuse of the children by PH.
That B and C engaged in sexual activity with each other and that L was present. J witnessed this on one occasion
J and L engaged in sexual activity with C on an occasion in the family home
L repeatedly kissed C in a sexual way and the mother was aware that this happened and saw it on an occasion
PH sexually assaulted C and raped her when some of her siblings were in the home. On an occasion he used a knife to cut her clothes off. Tied her to the bed. The mother returned home during this event. C told her mother after the event and her mother did not believe her or take any steps in response.
That J and B behaved in a sexualized way towards C when PH was present on at least one occasion.
PH touched C in a sexual way when she was not wearing any clothes and CH was aware that this had happened
PH tied C and another child J to a bed naked on at least one occasion. All three boys, L, B and J were in the home and were aware of this happening
On another occasion all three boys B, L and J were in a bedroom with C and they removed her clothes so that she was naked. CH came into the bedroom after this had happened
That on about 3 or 4 occasions J ‘had sex’ with L (his sibling). This sexual activity occurred while they were watching a pornographic film
That B may have walked into a room on an occasion when L and J were engaged in sexual activity with each other
That C walked into a room on an occasion when L and J were engaged in sexual activity with each other
‘That L was present on an occasion when J engaged in sexual activity with C.
J was encouraged to behave in a sexual way towards his siblings by PH
J walked into a room when L and B and C were engaged in sexual activity with each other
PH touched LH and sexually assaulted her on an occasion when L was present
PH tied C to a bed and played a game called ‘Nervous’ which involved him touching her all over naked body
The Children’s mother CH failed to protect the children from pornography, sexual abuse and failed to impose boundaries on the children.
CH failed to protect her children from exposure to pornography or from sexual abuse by PH and that she was aware that L and B were sexualized and behaved in a sexually inappropriate way but failed to take any steps to protect the children. In particular
C told her mother that PH had raped her and the mother did not believe her.
That the mother was aware that there was sexual activity between the children because C told her about this and she witnessed sexual activity between C and J
That the mother was aware that J, L and B had behaved in a sexualized way toward each other and toward C.
C stated to Dr B that her mother would split J and L up to ‘stop them from doing it with each other or with C’.
CH was aware that PH copied and sold pornographic videos and DVDs .
The Children suffered physical violence from PH and were exposed to domestic violence.
PH was physically violent to B, J and on another occasion B was present when PH pulled a knife on CH and threatened her.
L witnessed PH being violent to his mother on at least one occasion
B was aware of or present on an occasion when PH ‘pulled a knife’ on CH
As a result of exposure to sexual materials and activity the children lacked boundaries and were highly sexualized
B brought a mobile phone to school and was showing pictures to children of a man’s penis and of female genitalia in around 2011. B was heard to use sexually explicit language when he was about 9 years old and had a functioning age of about 4 years.
CH sexually abused J and was present when he was sexually abused by others. She failed to impose boundaries and exposed him to adult sexual activities from a young age.
CH has exposed J to inappropriate sexual behaviour and he has seen her having sex with a number of different men including oral sex. Occasions CH had sex in the living room or with her bedroom door open.
CH forced J to participate in sexual activity with several adult males. In particular that;
She showed him how to engage in certain sexual acts including masturbating a man and performing oral sex
That she was present on an occasion when he was forced to anal sex with an unknown male acquaintance of hers
On more than one occasion CH had sex with J
That when he was about 8 or 9 years old his mother required him to participate in sexual activity with a male friend of hers about once a week
On at least one occasion friends of the mother engaged in sexual abuse of J when his mother was present
The mother’s response to the findings of fact sought is set out in a statement dated 24 June 2015. In broad terms she accepted that there had probably been sexual activity between the older children but denied any knowledge of the same or of the children watching pornographic films. She vehemently denied J’s allegations that she had sexually abused him and/or caused him to be sexually abused by a number of men. During the course of her cross examination, however, she resiled from her acceptance of there having been any sexual activity between the older children, save for between C and J.
PH denied all of the allegations made against him.
The parties were agreed that I should consider J, L, B, and C to be victims of, rather than the perpetrators, of any sexual abuse between themselves. I agree. Furthermore, I was urged by Mr Messling, counsel for L, to refer to sexual activity between the children as “sexual activity” rather than to use any other term. I agree and shall do so.
It is agreed by all parties that the care plan for L and B, is to remain in the long term care of the local authority, is the only viable plan for each of them. Further it is thus agreed that I should in due course approve those plans and make care orders in favour of the applicant local authority.
Law
The burden of proving all of the allegations rests on the local authority. The standard of proof is the simple balance of probabilities: Re B (Children) [2008] UKHL 35.
In relation to the gathering and recording of a child’s complaint of sexual abuse, and the court’s approach to weighing evidence obtained in the course of ABE police interviews Hughes LJ (as he then was) said in re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773, at paragraphs 34 and 35:
…. Painful past experience has taught that the greatest care needs to be taken if the risk of obtaining unreliable evidence is to be minimised. Children are often poor historians. They are likely to view interviewers as authority figures. Many are suggestible. Many more wish to please. They do not express themselves clearly or in adult terms, so that what they say can easily be misinterpreted if the listeners are not scrupulous to avoid jumping to conclusions. They may not have understood what was said or done to them or in their presence.
For these and many other reasons it is of the first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say, and equally it is vital that a careful note is taken of what they say and also of any questions which are asked. All this and many other similar propositions, most of them of simple common sense, are set out in nationally agreed guidelines entitled Achieving Best Evidence in Criminal Proceedings …
Later in relation to evidence which fell well short of being ABE compliant Hughes LJ continued at paragraphs 40 and 42:
There is no question of this evidence being inadmissible for failure to comply with the ABE guidelines, and that has not been suggested in argument for either parent. In a family case evidence of this kind falls to be assessed, however unsatisfactory its origin. To hold otherwise would be to invest the guidelines with the status of the law of evidence and it would invite the question: which failures have the consequence of inadmissibility? Clearly some failures to follow the guidelines will reduce, but by no means eliminate, the value of the evidence. Others may reduce the value almost to vanishing point.
…
… The purpose of the ABE guidelines is not disciplinary; it is to present the court and for that matter the parents with the most reliable evidence which can be obtained. In every case the judge cannot avoid the task of weighing up the evidence, warts and all, and deciding whether or not it has any value or none. Everything will depend on the facts of the case. …
His observations on the approach the courts should adopt in respect of ABE interviews were recently endorsed by the Court of Appeal in Re J (A Child) [2014] EWCA Civ 875.
Mr Tillyard QC and Mr Anthony, on behalf of the mother, referred me to a number of authorities where judges have highlighted the need for a court to examine a child’s allegations of sexual abuse with the greatest of care. I take account of all of them, most especially Re D and Others (Child Abuse: Investigation Procedure) [1995] 3 FCR 581 where Connell J said:
Although the guidelines on interviewing children in the memo of good practice for criminal trials does not have to be strictly adhered to in civil cases the underlying principles are applicable to both care and family cases. Where guidelines were not followed, although evidence is unlikely to be excluded entirely, it is usually of such little weight that the court would not be able to rely upon it.
And Re W (Minors) (Wardship: Evidence) [1990] 1 FLR in which Butler-Sloss LJ (as she then was) observed:
Hearsay evidence is admissible as a matter of law but this evidence and the use to which is put has to be handled with the greatest of care and as such unless the interests of the child make it necessary the rules of natural justice and the rights of the parents are fully and properly observed. …A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon.
I have well in mind the modified Lucas direction when considering lies told by a witness in these proceedings. There may be many reasons why a person may tell a lie, thus it is only if I am satisfied that there are no reasonable explanations for a witness telling a lie that I may take that fact into account when considering the totality of the evidence.
Background
I propose to deal with the essential features of this family’s background which are relevant to the issues in dispute.
The mother and PH began a relationship in June 2002. As long ago as 2006 a deputy head teacher reported her concerns about the neglect of the children and their sexualised behaviour. On 5 May 2007 all of the children, save K who was not born until August 2007, were placed on the local authority’s child protection register under the category of neglect. Thereafter various concerns about the children’s unusual and sexualised behaviour and/or comments are reported to social workers and/or to the police.
On 4 April 2010 the children were the subject of police protection orders and were placed in the care of their maternal grandmother for 3 days consequent upon the arrest of the mother, PH and the maternal grandfather for possession of a large number of fraudulent pornographic DVDs.
On 9 December 2010 PH contacted the X Children’s Centre and reported that L had told him that he had walked in on J “sexually messing” with C. Following this referral the mother was visited by a police officer and a social worker. C was spoken to but she made no disclosures of inappropriate behaviour or of any sexual activity. No further action was taken.
In September 2010 the mother and PH separated and he left the family. He returned to live in his own flat. There is a dispute between them as to whether they were later reconciled for a short period. For the purposes of this fact finding hearing, I do not need to resolve this issue.
Care proceedings were issued in respect of the four girls, C, A, LH and K, in December 2011. On 16 December they were made the subject of interim care orders and placed in foster care where they remain to date. All parties to those proceedings were agreed that the threshold criteria of s31 (2) Children Act 1989 were satisfied. The agreed basis of threshold is set out in a document of 11 April 2012. It provides that:
Neglect
The children have suffered harm as a result of neglectful parenting. The particulars are:-
Throughout the spring and summer terms 2009 K was neglected, attending nursery in a dishevelled and unclean state with bruises on different parts of her body on numerous occasions. There were similar concerns raised about all the other girls throughout the year regarding their poor level of hygiene.
On 30 September 2010 a Child Protection Conference agreed that the First and Second respondents neglected the children in terms of their hygiene, the fact that the children were under achieving at school, had speech and language delay problems, they were aggressive and used offensive language.
In February 2011 K arrived at nursery with the Second respondent with chunks of her hair cut off, probably by her sister C which indicated a lack of supervision.
Emotional Harm
The children have suffered significant emotional harm. The particulars are:-
During February 2010 the relationship between CH and PH had deteriorated and was volatile and emotionally fraught and it was felt that the children’s emotional needs were being harmed as a result of this.
On 4 April 2010 the children were removed under police protection and placed with the maternal grandmother for a period of 3 days following the arrest of the First and Second Respondents who were in possession of fraudulent pornographic DVDs. Home conditions were poor and as a result, the First and Second respondents were charged with neglect. The children had access to sexually explicit material.
LH was referred to Children’s Services for touching her sexual parts and excessive bed wetting which was thought to be as a result of emotional disturbance.
B, the First Respondent's son took the Second Respondent’s mobile phone to school which contained sexually explicit material and sexually explicit pictures of the First Respondent.
On 29 September 2010 C attended school stating that arguments at home between the First and Second Respondents were affecting her, thus causing emotional disturbance.
In February 2011 the First, Second and Third Respondent’s were involved in a verbal altercation which involved the police being called and the children being in a distressed and dishevelled state which has caused them emotional harm.
In August 2011 there were verbal altercations between the First and Second respondents with the Second Respondent accusing the First Respondent of allowing her boyfriend into the home and leaving the children in his care, such arguments causing emotional disturbance to the children.
The Second respondents contact with the children is poor in that he does not interact fully with them or provide them with a stimulating caring and affectionate environment and constantly makes complaints about the First respondent throughout his contact sessions to the children’s detriment causing them emotional harm.
All four children wet themselves and attend school smelling of urine and are often seen in inappropriate clothing.
The children have a low level of attachment to the Second Respondent who has very low parenting skills.
C is desperate for love, care and attention and tends to get quickly attached to those who could give her positive and focussed attention. She is also lacking emotional stability and if she remains at home these issues will continue to manifest themselves.
Impairment of Health and Development
As a result of the parenting they have received, the children’s health and development have been impaired. The particulars are:-
In November 2010, the first Respondent missed 3 very important appointments for A’s optical care which A needed to attend to obtain new glasses to assist in correcting her squint.
All four children are under achieving at school. They have speech and language delay and are unable to build effective relationships with other children due to the emotionally unstable environment they have been subjected to.
C (DOB 22/12/2001) is the eldest of the four girls and is very protective of all her female siblings. She is seen by numerous professionals as being almost a mother figure to the girls, her school report states that she craves positive attention and is always trying to please. She attends school unkempt and in an unhygienic state all of which is impairing her health development.
For the purposes of the care proceedings the girls underwent an assessment by Dr B, a psychologist. On 4 June 2012 LH told her that “my brothers used to show all of us their private boy parts”. On 6 June 2012 C told her that:
she would tell her mother that the boys were snogging and that her mother would split up J and L to stop them “doing it”;
PH made porn movies and he and the boys used to watch them; he put them on loads of times;
her brothers would act scenes from the porn movies with her, each other and their male friends;
one game involved J and his friend being tied up naked on a bed;
she saw J holding her sister, kissing them, dancing ‘sexy’ in front of them and encouraging them to dance ‘sexy’ for him; and
her brothers would kiss, snog and hug her.
On 16 July 2012 C underwent her first ABE interview during which she spoke of PH having exposed the children to pornographic films and to there having been sexual activity between the siblings.
On 20 August 2012 care orders were made in respect of C, A, LH, and K.
On 20 January 2013 C had a long discussion with her foster carer, Mrs H, during which she said that J had had sex with her. The following day C again spoke to her foster carer and said “how horrible it was” but that she was relieved she had told Mrs H.
These allegations were referred to the local authority. The social worker, Nicola Moy, visited C on 5 February 2013 and spoke to C about what she had said to her foster carer. Ms Moy reported that C told her that she had not told the police about her allegations before, because prior to January 2013 she believed she might be returning home to her mother. It is of note that C only gave full and detailed accounts of what had allegedly happened to her and her siblings once she knew, in late 2012, that she would not be returning to her mother’s care.
C underwent her second ABE interview on 17 April 2013. She was further ABE interviewed by the police on 24 April and then on 3 September 2013.
Between June and October 2013 J was interviewed on six occasions. On 4 July and 4 September 2013 he underwent ABE interviews as a victim of sexual abuse. On 25 June, 25 July, 10 September, and 22 October 2013 he was interviewed under caution as a suspected perpetrator of sexual abuse. I will consider the events surrounding J’s divers police interviews in detail later in this judgment at paragraphs 45-55 below.
L was interviewed by the police under caution on 25 June and 1 October 2013. In his first interview he denied there had been any inter sibling sexual activity but alleged that PH had:
exposed them to pornography;
physically abused J; and
sexually abused LH.
He gave a no comment interview on 1 October. L, who attended on two days of this hearing, maintains his denial that he was a victim of direct sexual abuse or that he was involved in any sexual activity with any of his siblings. He asserts, however, that PH was physically abusive and that he exposed the children to pornography; both of which matters, he says, his mother was well aware.
B was ABE interviewed by the police on 25 September 2013 and on 8 May 2014. In his first interview he spoke to a limited degree about sexual activity between him and his older siblings. In his second interview he said he had engaged in sexual activity with C on one occasion and alleged that J and L had engaged in sexual activity with him.
CH was interviewed under caution on 17 July, 23 September, and 30 October 2013. In her first interview she asserted she was not aware of any sexual abuse. She accepted that there had been pornographic films in the family home. She said C does not lie. For the majority of her second interview the mother answered no comment. In her third interview she denied the allegations J had made against her.
PH was interviewed under caution on 25 June, 16 August, and 11 October 2013. In his first interview he denied:
exposing the children to pornography;
inter sibling sexual activity; and
sexually abusing any of the children.
Similarly in his third interview he denied all allegations made against him and asserted that the maternal family, but especially the maternal grandfather, were to blame for the children’s exposure to pornography.
Shortly after the police investigation began into the allegations of sexual abuse, J, L, and B were placed in care on 25 June 2013. Initially J and L were in the same placement but they were moved into separate foster placements on 12 July 2013.
On 27 February 2014 L and B were made subject to interim care orders.
Throughout 2013 and 2014 there are multiple references to L and B using sexualised language and/or of them speaking of various sexual experiences each of them claimed to have had.
Evidence
I viewed extracts of the ABE interviews of C and J identified by the parties and I have read the ABE interviews and/or under caution interviews of C, J, L, B, the mother, and of PH.
It was agreed by the parties that neither L nor B should be called to give evidence at this hearing. They did not wish to give evidence and it was considered prejudicial to their welfare to require them to do so. I agreed.
In contrast C and J were keen to give evidence. All parties agreed that they should be permitted to give evidence at the fact finding hearing. I agreed that subject to certain special measures that they should do so. Prior to giving evidence C had the opportunity to watch the DVD recordings of her ABE interviews and was provided with the written questions she would be asked by leading counsel for the mother and PH respectively. She gave evidence by video link from another court centre. I permitted counsel for the mother and PH to ask some supplemental questions which had not been provided to C in advance. I indicated to counsel at an earlier directions hearing that I expected C’s evidence to be concluded in the course of one court day. I am most grateful to all counsel that that goal was comfortably achieved.
Unfortunately matters did not proceed so smoothly in the case of J. On the morning he attended to give evidence it became evident at the start of his evidence that he had only seen the DVDs of his ABE interviews but he had not had the opportunity to read the transcripts of his interviews conducted under caution. Accordingly, and with his agreement, I had to adjourn his oral evidence for 2 days to give him the opportunity to read those transcripts.
I do not know how this state of affairs occurred. It was extremely regrettable; however, J appeared to take this turn of events in his stride and did not seem to be unduly affected by having to return on another day to give his evidence. He, like his sister, C, gave evidence by video link from another court centre. J was an adult when he gave evidence albeit, in my judgment, a vulnerable adult. Accordingly, as opposed to receiving a list of written questions he was going to be asked, I was satisfied that he should receive, in advance of him giving evidence, a note from leading counsel for the mother and for PH respectively of the topics about which he would be questioned. As with C, I indicated at a directions hearing that I expected J’s evidence to be completed within one day. Save for the unfortunate event discovered on the first occasion he attended court, his evidence was completed within one day.
The Police
The majority of the police interviews of the children, the mother and of PH were undertaken by DC Roberts and/or by DC Grant. There was some criticism of the police conduct of the interviews undertaken with C but of most concern and significance is the chronology of J’s interviews and the allegations he made in them or subsequently.
I do not find the conduct of any of C’s ABE interviews materially departed from the ABE Guidelines and/or materially influenced what she said in each of those interviews.
J was first interviewed on 25 June 2013. When the allegation that he had raped C was put to him he replied that his “head wasn’t in the right place” because he had been raped and sexually abused by two male friends. J then proceeded to give a detailed and convincing account of the rape and abuse. All of it, as J shortly afterwards admitted, was a complete invention and a lie. He told me in evidence that he told this lie on the spur of the moment because they had made his life a misery by bullying him and he wanted to make their lives a misery in retaliation.
Mr Tillyard QC and Mr Anthony submit that his ability to lie so convincingly and with such alacrity suggests that J is a very accomplished and determined liar; possibly so.
J underwent an ABE interview on 4 July 2013 when he again admitted engaging in sexual activity with C, alleged he had been assaulted by PH and asserted that PH and his mother had a violent relationship.
On 25 July he was again interviewed under caution for the offence of attempting to pervert the course of justice by making a false allegation of rape. He admitted the allegation was false. In that interview, however, the police told him that “it is probably (sic) this will be the final interview it is important that you don’t hold back in connection with other people….you have grown up within a family it is obvious that would have had an influence on your behaviour… now is the opportunity to tell us about it”. Then at the end of the interview the police officers thought he had more to tell them and that they were still treating him as a suspect. With the benefit of hindsight that was a most unfortunate way to deal with this vulnerable young man; it put him under an immense amount of pressure.
J asked to see the police again and on 4 September 2013 he underwent a second ABE interview. He told me in evidence that he had intended to tell the truth but yet again he lied; he told me he does not know why he did so. He lied about the role and knowledge of his mother in sexual activity between the children and about PH.
After this interview the police told J’s male foster carer, Mr A, that “unless [J] told them the rest of what was going on he would be arrested again and interviewed as a rapist and a suspect”. Mr A confirmed that he passed this message onto J.
At the outset of his next police interview on 10 September 2013, this time under caution, J is told “you need to know this may be your last opportunity before the evidence is presented and a decisions is made about whether you are a victim or an offender…at the moment there is no evidence that you have given us other than you are an offender”. And then towards the end of the interview DC Grant said “ I asked you last week to have a think and make sure you had an adequate reason for what has happened because otherwise all I have is you… you were a child and I can’t understand why a child has sex with another child. For no reason. What is the reason? Who else have you had sex with”.
Once again a most inappropriate degree of pressure is put on J to make further allegations relating to sexual activity with others. Nevertheless when asked directly “Have you ever had sexual contact with your mother?”, J said “no”.
I accept the submission made on behalf of the mother that it is clear that at the end of this interview the police were still treating him as a suspect. The result, in my judgment, is that J then made, as he now readily accepts, a completely false allegation of rape against PH. He handed over the detailed written account to Mr A, who forwarded it to the police. To J’s considerable surprise, the police took no action and did not seek to interview him again. He told me in evidence that by making these allegations he “thought I would get out of trouble and he [PH] would be in trouble”.
On 21 October 2013 J was once again in trouble. He made a threat to rape a young girl which was reported. J told me it was just a joke; others did not consider it to be so. J was then requested to report to the police station to alter his bail conditions. Mr A recorded that after being given this news J told him that he is going to start talking and that he would tell the police everything about his mother. He was then interviewed the very next day. During the course of that interview on 22 October 2013, J made extremely serious allegations against his mother of her sexually abusing him and causing him to have sex with her and a number of men. No one else has made any such allegations against the mother.
In light of (i) his repeated and admitted lies, (ii) the pressure put upon him by the police and (iii) the circumstances in which he made his allegations of sexual abuse against his mother, I have to proceed with extreme caution before making any finding against the mother on the basis of J’s evidence.
Nicola Moy
The social worker, Nicola Moy, visited C on 5 February 2013 in light of what she had told her foster carer on 20 January. Mr Garrido QC and Mr Green, submit that Ms Moy’s conduct of this interview was “wholly inappropriate and went far beyond any proper preliminary investigation in advance of an ABE interview”. They made complaint about Ms Moy’s various accounts of this conversation, of which there are three.
In her contemporaneous record she noted “I asked her if any other family members had touched her and she put her head down and said no, I knew this was not the truth, after further talking to her about being honest and sharing everything with me, she told me that her stepfather, PH, ‘would come into my bedroom, lay on top of me, kiss me and snog me and he used to put his hands down my pants and touch my vagina’. C said he never put his penis inside her. I did not want to take this further as this is a police matter…”.
In her later police statement Ms Moy omitted the phrase “I knew this was not the truth” and replaced it with “I questioned this.” Then in her statement for these proceedings neither of the foregoing statements appear but Ms Moy stated “I knew [C] appeared embarrassed”.
In cross examination Ms Moy could not explain why there were three slightly different accounts of her conversation with C. Ms Moy told me, and I accept, that she did not tell C that she thought C was not telling the truth. She did concede, however, that she should not have asked C so many questions. She said she had believed the children had been sexually abused but that “I had not set out to prove anything”.
I accept that Ms Moy went too far in her questioning of C which was contrary to good practice. Ms Moy now accepts this criticism. I do not find however, that there is any sinister explanation for the different versions of her meeting with C. I find it was simple human error. I note, for example, that Ms Moy told me that when she made her statement for these proceedings she did not have available to her, her contemporaneous notes nor her police statement. She was, she said, relying on her memory and on an earlier written s37 report. Moreover I am satisfied that Ms Moy’s approach to and conduct of her 5 February meeting with C did not have any adverse influence or effect on the divers accounts C gave to the police in her subsequent ABE interviews, the first of which was some two months later on 17 April.
The Foster Carers
C’s foster carers are Mr and Mrs H. J’s foster carers are Mr and Mrs A. I heard brief oral evidence from Mrs H and Mr and Mrs A. In my judgment C and J, given their very neglectful and damaging upbringing when living at home, are immensely lucky to each have such devoted and caring foster carers.
Mrs H told me that C cannot regulate her emotions properly. She can create an account of her own making but in her head it is right.
Similarly Mr A told me that there were occasions when J lied. He lied a lot in the early days, said Mr A but that had got less and less. Mrs A gave evidence in similar vein.
I was impressed with all three foster carers. I unreservedly accept their evidence and find that they received the disclosures made by C and J in a caring, compassionate and child focussed manner.
The Mother
I found the mother to be a particularly unsatisfactory and unreliable witness. When her daughter C gave evidence of being sexually abused or of engaging in sexually activity with her siblings, she evinced no emotion or distress whatsoever. When she came to give her evidence her demeanour was even more extraordinary. For most of her evidence her answers were interspersed with her laughing or giggling or smirking. I do not doubt she may have been nervous – although she gave no impression of being so. I have never seen a parent in a care case let alone one where the most serious allegations of intrafamilial sexual abuse over a period of years have been made, give evidence in such a manner.
I give just one stark example. She was being asked whether she had ever walked in on C and J when they were engaged in sexual activity. She told me she “had never walked in on them”. When giving that answer the mother was laughing and smiling; utterly extraordinary behaviour.
I am led to the conclusion that she did not appreciate the severe degree of the allegations and that, for her, loose sexual boundaries and mores were the norm.
I regret to find that she lied on numerous occasions throughout her evidence. I give five examples of the most flagrant lies. First, in a statement filed shortly before the start of this fact finding hearing the mother conceded, that sexual activity between her older children, J, L, B, and C, had probably occurred. When pressed, however, by Ms Fottrell QC, on behalf of the local authority, she resiled from those concessions save for two – namely that B and C had engaged in sexual activity and that PH encouraged J to behave in a sexual way towards his siblings. Then a few moments later she accepted that J and C had engaged in sexual activity over a period of six years. Thus either her concessions were false and a lie or she lied in her evidence when she resiled from the same.
Second, having accepted that J and C engaged in sexual activity over a period of six years, minutes later she minimised the frequency of the same. She asserted that J lived for a period of time at his maternal grandmother’s home and would not have been at the family home on school nights. Although it is true that for some two years after starting at secondary school J did spend time living at his grandmother’s house, that does not explain the mother’s acceptance and then minimisation of sexual activity between J and C.
Third, the four girls were taken into care in 2011 on the grounds of longstanding and seriously neglectful care by the mother and PH. An agreed basis of threshold, acknowledging this neglect, was filed at court on 11 April 2012. When asked about her care and supervision of the children, the mother said she did do the housework. She denied she was drunk or that she slept on the sofa for most of the day. She claimed she had wanted to contest the basis of that threshold but was advised there was no point. She claimed not to be aware of the agreed basis of that threshold. She told me that the children were not neglected, they were not dirty and unkempt and that the washing machine was constantly on. All of this evidence was a lie and is palpable nonsense. The very considerable body of available evidence demonstrates overwhelmingly the degree of chronic and severe neglect of all seven of the children.
Fourth, PH gave an account of hearing L call down from upstairs that J was playing with C’s private parts. He later reported this claim to the X Children’s Centre on 9 December 2010. J recalls hearing his and C’s name being used followed by a serious argument between PH and the mother after which, he said, she threw PH out of the house. This accorded with PH’ account. The mother was in the same room as her husband but in evidence maintained she heard nothing and, in particular, did not hear what L is supposed to have said.
On the basis of PH’ evidence and that of J and especially in light of the former’s report of the same to the children’s centre, I am satisfied that L did shout about J and C and that an argument followed. I am in no doubt that the mother is lying and that she heard what L had said.
Fifth and, in my judgment, far more serious and sinister is the mother’s response to my question as to what action she had taken, if any, after a visit by a police officer and a social worker consequent upon PH’ report to the children’s centre. The mother began her answer by saying she had been more vigilant, but then she paused and said that she had always been vigilant and that every time the children came home from school and again at bedtime she stood on the landing to ensure that the boys did not go into the girls’ rooms and that the girls did not go into the boys’ rooms. She said she had always ensured that the boys and the girls were in separate rooms and dressed separately. She had never made such a statement before; not in her many police interviews nor in her discussion with social workers, nor in her court statements nor in her response to threshold.
Why has the mother not mentioned this account before? In my judgment I am completely satisfied that there is only one reason and that is because it is a blatant lie. Furthermore it is a lie told for only one reason and that is a wholly misguided attempt to avoid findings being made that she was well aware of the sexual abuse and sexual activity taking place in her home.
J and C both gave accounts of being engaged in sexual activity over a prolonged period of years in the family home. The mother could give no explanation of how such activity could have gone on for so long a time when she saw and heard nothing. Her false account of her vigilance made that denial of any knowledge of any sexual activity between her older children far, far less credible. Indeed I am driven to that conclusion, to the extent that I am sure, that this mother knew her older children were regularly engaged in sexual activity in the family home.
PH
Like the mother, I found PH to be a deeply unimpressive and unreliable witness. He lied repeatedly throughout his evidence. Moreover he had a deviant approach and attitude to appropriate sexual conduct and behaviour.
He had an insouciant manner when describing domestic violence between himself and the mother. He asserted there were only two occasions when there was domestic violence and on each occasion he asserted the mother assaulted him, but on both of those occasions the mother came off the worse. On one of those occasions he knocked some of the mother’s teeth out – on his account defending himself. He expressed no regret about those events and demonstrated a could not care less attitude. J and C were consistent and clear that arguments and violence were a constant feature of the relationship between the mother and PH. I prefer the mother’s and their accounts and reject the explanations given by PH. He was a violent partner though I suspect the mother was no better.
PH exhibited an enormously relaxed approach to the children’s exposure to pornographic material despite his denials that they ever watched the same with him, I mention just seven examples which, in my judgment, graphically illustrates that approach:
he told me that his business of copying and selling pornographic DVDs was a full time concern and especially at weekends pornographic DVDs would be strewn around the living room at the family home;
they would take the children, in turn, to accompany them to car boot sales where they would sell the pornographic DVDs;
he saw nothing wrong in taking the children to car boot sales when they sold pornographic DVDs;
He attended one of the children’s nurseries wearing a tee shirt bearing the caption “I love a blow job”. He could see nothing wrong in doing so nor could he explain why he had done so, other than “I just put it on”. When directly asked whether it had been inappropriate to do so, he replied “yes it was just one mistake”. I am not satisfied that PH really believed he had done anything wrong by attending the nursery in that t-shirt;
when asked what the effect of watching a pornographic film would be on a 7 year old, PH paused for a very long time before giving the answers “ it would not be right” and that “it would have a lot of effect”. The extreme amount of time it took him to give what all right thinking people would instantly consider, to be the obvious answer, gives me a very clear insight into the warped thinking of PH;
On the occasion when L shouted down that J was acting inappropriately in a bedroom, neither he nor the mother went upstairs to see what was going on. He could offer no explanation as to why no adult did go upstairs; and
he admitted at the age of 30 to joining in the middle of the night, a young teenage girl to sleep on the sofa in the family home. He was wearing pyjamas and a dressing gown. He simply could not appreciate that that was wholly inappropriate conduct but merely complained that the mother had – unfairly in his view – wrongly accused him of having had sex with the young girl when she found them on the sofa in the morning. I note, however, that he subsequently allowed this young person to stay alone with him at his flat for a week or so because, he said, she had no where else to stay.
I refer to seven occasions, by way of example only, where I find PH lied in his evidence. First, in answer to questions from his own leading counsel, he sought to assert that he had only kept pornographic DVDs in his car – and when he had previously referred to keeping them at his home, by his ‘home’ he claimed that meant his car. That was a factitious and stupid lie. Moments later he admitted to keeping 20 pornographic DVDs at the mother’s home and 500 pornographic DVDs at his flat.
Second, he asserted that the mother and the social worker, Nicola Moy had put the children up to make their allegations against him. Moments later he conceded that he no longer believed the mother was involved because of subsequent allegations made against her. The idea that the social worker caused the children to make allegations of sexual abuse against PH is wholly contrary to the weight of the evidence and is fanciful. It is a lie told by PH solely as a mean to avoid findings being made against him.
Third, given he had in his possession such a vast number of pornographic DVDs and had a full time business copying and selling the same, the notion that he was “not into porn really” or that he had “only ever watched two porn films in his life” is wholly contrary to the weight of the evidence and absurd. He was lying and he did so solely for the purpose of avoiding findings being made against him.
Fourth, he claimed that the children would not have known that the DVDs strewn about the living room were pornographic films because he “did not do covers for porn”. I reject that account as a lie because I prefer and accept the evidence of the children; in particular J and L who well knew PH copied pornographic DVDs and sold them for profit.
Fifth, he denied allowing the children or any of them to watch pornographic DVDs. That denial is contrary to the consistent evidence of J, C, L, and B – whatever untruths or contradictions may otherwise appear in their accounts – they watched pornographic DVDs with PH. I prefer and accept their evidence and reject PH’ denials. He is lying. I note and accept the evidence of J and C that their mother would return home when they were watching pornographic DVDs with PH and that she would switch off the same.
Sixth, in his cross examination by Ms Fottrell QC PH sought to suggest he was infrequently at the mother’s home, I asked him why then had he earlier referred to the mother’s bedroom as “his bedroom”. He said he had been stupid and then suggested he had been referring to the bedroom at his flat. That was a lie. Shortly afterwards he agreed he was constantly present at the mother’s house. When asked why he had said he was there infrequently, he replied “different reasons”. He was pressed to provide an explanation. Ultimately I warned him that if he did not provide an explanation for the untruthful statement then I would be likely to draw an adverse inference. He lamely replied that he did not know why he had lied.
On the basis of the foregoing I am entirely satisfied that PH lied repeatedly in his evidence to avoid findings being made against him and because of a guilty conscience. On the totality of my findings against PH set out in paragraphs 76 to 84 above, I am wholly satisfied that he was grooming C for the purposes of sexually abusing her, he encouraged sexual activity between the children, he was aware of sexual activity between the children and he is a predatory paedophile.
I find his “good deed” of reporting L’s allegations of inappropriate behaviour by J towards C, was nothing of the sort. It was borne out of malice towards the mother with whom he had the argument which followed L’s comment in the family home.
C
It is submitted on behalf of the mother and on behalf of PH that C’s accounts in her police interviews are sometimes contradictory, sometimes fanciful and at other occasions simply untrue. I entirely agree that is the case. In light of her neglectful, damaging and abusive upbringing, I am not at all surprised that that is so. It is very sadly and often the case that abused children – in whatever circumstances, have a real difficulty in distinguishing fact from fantasy. It is quite another matter to contend that I should ignore or reject everything that C has alleged or said in the police interviews.
I recognise and accept that young victims of emotional, psychological and sexual abuse will often invent or exaggerate the abuse they have in fact suffered. Accordingly, I approach with real caution the allegations made by C.
The contradictions and discrepancies in C’s divers accounts do not, in my judgment, detract from the essential truth of her principal allegations. She has plainly been exposed to pornographic material. She has been sexually abused. She has engaged in sexual activity with J from a very young age which continued over a period of many years.
I am entirely satisfied that C was engaged in sexual activity with J and B when they lived at home.
C spoke of PH abusing her sexually. She may be mistaken or have exaggerated the acts he did; for example tying her to a bed with pink wool; although I note that the police late found pink wool at the mother’ home. Nonetheless I am completely satisfied given my findings in respect of PH and the accounts given by C that he sexually abused C as described on multiple occasions.
I watched C very carefully when she gave her evidence to me. I am in no doubt that the essence of what she said to me was true. She has been sexually abused from a very early age. She has principally been involved from an early age in sexual activity with J. I am wholly satisfied from the totality of her evidence that she has been involved in sexual activity with her other older siblings and with PH. I accept all of the details she recounts may not be entirely accurate, but the truth of the kernel of her complaints I am sure. Thus I am satisfied that PH has sexually abused C on more than one occasion. I am satisfied that he groomed her for the purposes of sexually abusing her by involving her in watching pornographic DVDs.
J and C have both independently accepted that over a prolonged period of time they have engaged in sexual activity.
J
I listened to and considered J’s oral evidence with very particular care. I reminded myself of the extreme caution with which I should approach my assessment of his evidence in light of the events and circumstances set out in paragraphs 45 to 55 above. Nonetheless I was very impressed with J as a witness. He gave his evidence readily, openly and coherently. He was disarmingly frank about making false allegations against his two male friends and PH. He readily acknowledged he had lied to the police.
He repeated the allegations he had made in his interview of 22 October 2013 against his mother. He asserted they were true. J has known for a very long time now that he will not face prosecution resulting from events which occurred in the family home or arising from his false allegations of rape. Yet he maintains the truth of his allegations against his mother when he has quickly and readily withdrawn past false allegations. Why does he do so? What benefit, if any, is there in him maintaining the same?
For a long period he was loyal to and protective of his mother. Then, as he told me, “I felt a bit bad she is still my mum. She did not help me so why should I help her. I came out with the truth in the end. I had to get out of trouble and my mum did not help me. She should have told the truth about what had happened and so should I have”. A little later he said, “Mum did walk in on me and C having sex. It is true”.
I do not understand why, if J’s allegations against the mother were false, he has not said so especially when he came – willingly – to give his evidence at this hearing. I have considered J’s allegations with great care. In the premises and for the reasons set out above I am not prepared to find that he is lying in his account on these matters. But, on the other hand am I able to make a positive finding of fact against the mother that she did sexually abuse J as he has alleged? I regret to conclude that it would be unsafe for me to do so.
Whilst I do not find that J is lying, I have to take full account of the circumstances in which the allegations come to be made. Having done so, I cannot make a finding on the balance of probabilities that the mother sexually abused J as he has alleged. There is no corroboration of these allegations which would be essential before I could make such a finding. None of the other children have made any similar sort of allegation either that they were sexually abused by their mother or that they had witnessed J being abused by her.
Findings
For the avoidance of any doubt, I should make it clear beyond peradventure that my adverse findings against the mother and PH are principally based on my assessment of their respective characters and evidence. On the basis of quite overwhelming evidence I am satisfied so that I am sure that the children lived in a household where:
they were seriously neglected;
they were exposed to pornography on a frequent basis;
the older children were permitted to engage in sexual activity between themselves;
the mother knew full well what was taking place and did nothing to stop the same;
PH groomed C and ultimately sexually abused her.
I have no hesitation in making all of the findings of fact sought by the local authority as set out in paragraph 8 above save for paragraphs 2,4,6,8,9,20 and 21. I agree with the local authority’s final stance that it would be unsafe to make findings that PH had directly sexually abused J, L, or B.
Conclusion
In the premises I find that the threshold criteria of s31 (2) Children Act 1989 are satisfied in respect of L and B. I agree, as is accepted by all parties, they should both remain in the care of the local authority subject to care orders.
Before I make final care orders in respect of each of them I am asked, on behalf of L in particular, to await revised final care plans. I am content to do so.
I would wish to express my gratitude to all counsel for the helpful and expeditious manner in which they have each conducted this difficult matter. I am most grateful to them and to their respective instructing solicitors.