A London Local Authority v KB & LB

GH raped KB for whom he had paid, caring responsibilities.

AB misused the Direct Payments made by the Local Authority for care provision by employing her husband GH in breach of the terms and conditions of the payments thereby evidencing a lack of transparency and an element of dishonesty.

AB failed to follow Local Authority guidelines in not seeking police checks or work checks when employing carers, but for which she may have prevented GH from having unfettered access to and opportunity to abuse KB.

AB and/or CD and/or EF abused their positions of trust in having a Lasting Power of Attorney, and care of KB’s financial matters including a bank account in an African country in her name as Company Secretary, despite her known lack of capacity.

AB and/or CD failed to take KB for medical attention in relation to KB’s pregnancy when it should have been apparent to them that she was pregnant due to their intimate care of her.

AB and/or CD and/or EF and/or GH sought KB’s pregnancy to go to full term for financial gain or other motive not in KB’s interests.

AB and/or CD colluded to ensure the pregnancy would not be noticed by medical professionals until it was too late to perform a termination.

As a result of the matters above, AB and/or CD abused their duty of care and failed to protect KB and thus LB by intentionally or negligently permitting GH to have unsupervised access to KB, failing to take KB for medical attention when there were signs of pregnancy, and exposing LB to the risk of future significant emotional harm when he learns of the circumstances of his conception and birth.

The burden of proof lies on the Local Authority that brings the proceedings and identifies the findings it invites the court to make.

The standard of proof is the balance of probabilities, Re B [2008] UKHL 35. If the standard is met, the fact is proved. If it is not met, the fact is not proved. As Lord Hoffman observed in Re B:

“If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one.”

There is no burden on a parent or other party to come up with an alternative explanation and where an alternative explanation for an injury or course of conduct is offered, its rejection by the court does not establish the applicant’s case.

The inherent probability or improbability of an event is a matter to be taken into account when weighing the evidence and deciding whether, on balance, the event occurred, but regard to inherent probabilities does not mean that where a serious allegation is in issue, the standard of proof required is higher.

Findings of fact must be based on evidence not suspicion or speculation - Lord Justice Munby in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12.

The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. This is sometimes described as a need to view the evidence as a broad canvas. As Dame Elizabeth Butler-Sloss, President observed in Re T [2004] EWCA Civ. 558, [2004] 2 FLR 838 at paragraph 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”

In a case where the alleged perpetrator of violence or abuse, or a person accused of dishonesty or fraud, is or may be the subject of criminal prosecution arising out of the same alleged facts, it is important to emphasise that the family court is not determining whether the person concerned is guilty of a specific criminal offence. As Cobb J 81. As I said in F v M [2019] EWHC 3177 at [29], in a passage endorsed by the Court of Appeal in Re H-N [2021] EWCA Civ 448,

"There is a risk in a case such as this, where the alleged conduct at the heart of the fact-finding enquiry is, or could be, of a criminal nature, for the family court to become too distracted by criminal law concepts. Although the family court may be tempted to consider the ingredients of an offence, and any defence available, when considering conduct which may also represent an offence, it is not of course directly concerned with the prosecution of crime."

The role of the Judge in a family case determining findings of fact is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal said in Re R [2018] EWCA Civ 198:

“The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court's eyes open to such risks as the factual determination may have established” [62]

The opinions of medical experts need to be considered in the context of all the other evidence. In A County Council v KD & L [2005] EWHC 144 Fam. at paragraphs 39 to 44, Mr Justice Charles observed:

“It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

The evidence of the parents and any other carers is of the utmost importance. They must have the fullest opportunity to take part in the hearing and the court must form a clear assessment of their credibility and reliability.

It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB 720. In the recent Court of Appeal judgment in A, B, and C (Children) [2021] EWCA 451, Macur LJ advised at [57],

“I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”

In this case the Local Authority alleges that AB, CD and EF are lying about the arrangements for KB’s care, including financial arrangements, to cover up the truth of what they did and how KB came to be raped and then to carry her child to term.

KB suffered severe brain injuries at birth which have resulted in moderate to severe learning disability, epilepsy (now controlled), and some physical disabilities. She needs constant care. She has needed full time care all her life. AB has provided that care to her, assisted by her other daughter, CD, and son, EF, and in recent years by JK. GH has certainly helped out with chores but the extent of his caring role is in dispute.

At all relevant times AB has lived in a house in the Y area of London (“the family home”). From 2012 a flat in the Z area of London was rented in KB’s name (“the flat”). CD lived in that flat. AB, CD and EF say, but GH does not accept, that KB lived most of the time in the flat and sometimes stayed at the family home.

In recent years AB has made a number of visits to the African country of her origin, travelling with KB except for one visit in or about 2017 when she travelled alone for a period of about two weeks, leaving KB in London.

AB founded and runs the Church in London where she is a pastor. It has links to the African country of her origin. GH was also a pastor of the Church until his incarceration for the rape of KB.

AB and GH were married in or around 2013, lived together at the family home from their marriage until in or about 2017, and remain married although GH moved out of the family home that year.

GH does not have indefinite leave to remain in this country. He made an unsuccessful claim for asylum. He obtained paid work as a cleaner using a false identity, namely the name and details, including the national insurance number, of a relative, KAS. He had a bank account in the name of KAS. GH has been convicted and sentenced for fraud by obtaining employment using this false identity. It was recorded in the criminal proceedings that he had hidden his employment from the immigration authorities, claiming not to be in work. He was not permitted to work because of his immigration status. Nevertheless, he did work and he appears to have had two cleaning jobs.

Since she was receiving direct payments herself, she had to open a separate bank account for the purpose of managing the direct payments (paragraph 3.1 of the agreement);

To use the direct payments only for services enabling her to achieve the agreed outcomes and to meet the needs agreed in the Plan (3.3).

Not to use the direct payments:

Not to use the direct payments to pay for services from a spouse, civil partner, close relative or other person who lives in your household without our written agreement. (4.3)

AB controlled a number of bank accounts including the Church account, the DP account and the personal account, as well as a joint account with GH. The accounts all appear to have been very active and AB was involved in numerous transactions every week involving different accounts. There may well be other accounts the statements from which I have not seen. She was responsible for transactions which saw money flowing freely between different accounts.

AB purported to employ GH and JK using Direct Payments paid to her pursuant to the Direct Payments Agreement with the Local Authority. They were purportedly paid as carers for KB. AB made monthly payments to GH and JK as evidenced by bank statements from the DP account. Payslips were prepared recording the payments. I reject GH’s evidence that he did not receive payments as a carer for KB. The bank statements show payments being made to him. These arrangements were in place in or around February 2020 and had been in place for several years before then.

I am satisfied that AB knew that GH was not permitted to work in the UK because of his immigration status. They were married and had lived together as husband and wife for several years. They had a joint bank account and close financial arrangements. Documents showing GH’s false name, KAS, were on AB’s laptop. A bank statement at [A77] from the account of “KAS” shows a receipt of £300 on 14 October 2019 from the personal account that AB controlled. There is another £300 payment from the same source a month later. Payments were made to the Church account, which AB controlled, from the KAS account. I find that AB knew that GH was using a false identity and had opened a bank account using that false identity.

JK would, as she told the court, pay some of the money she received from AB as recorded in her payslips, back to AB. The mechanism sometimes used was for JK to make payments to the Church account. This is but one example of financial transactions that give rise to serious concern that AB has used the Church account inappropriately. The amounts she paid back varied and there was no regular pattern of paybacks. I accept JK’s explanation that AB told her that these payments back to her represented remuneration to AB for the care she had provided to KB because JK was not working the number of hours represented on the payslips. JK accepted that her own pay was usually £250 per month, even though the payslips in her name were for over £400 per month. JK struck me as very trusting and naïve and I do not believe that she thought she was doing anything wrong. To her, AB was an authority figure and she did what she was told. Some of these payments back to AB are shown in bank statements, corroborating JK’s account. This arrangement was clearly contrary to the Direct Payments Agreement. It was, and I am satisfied that AB knew that it was, a means of diverting the direct payments to benefit her, AB. The Church account was porous in that payments were made to and from it via personal accounts for AB and other family members. I have no doubt that the monies paid by JK to the Church account were ultimately used for the benefit of AB. There are likely to have been other payments by JK to AB out of her initial payments from the DP account, that were made in cash or through other accounts, but I do not have a comprehensive set of statements to establish the extent of the payments. I reject AB’s evidence that the repayments were arranged due to JK working fewer hours than agreed. If that had been the case then the monthly payment would be reduced or adjusted accordingly, rather than a re-payment being demanded. Further, there would have been a credit within the Direct Payments accounts with excess funds available – but there is no evidence of such credits or excess funds. Her evidence conflicted with that of JK. I am sure that one of the motivations AB had for diverting Direct Payments was that she was providing a great deal of care to KB herself. AB may well have considered that she was entitled to payment for caring for KB in excess of the benefits she received, but the agreement was that the direct payments were for employed carers, not for her. By ensuring that some of the money purportedly paid to JK as a carer was diverted back to benefit her, AB acted dishonestly. She was, I am satisfied, aware of these arrangements because she effectively directed them, and, objectively viewed, they were dishonest. It follows that AB has not been honest with the court about these arrangements. I am sure that she has hidden the true position from the court in order to hide what she knows to have been wrongdoing.

GH denies ever having received payments for caring for KB and so does not make any allegation that he made payments back to AB from the money received from her in the same way as JK. I am sure, notwithstanding his denials, that he did receive payments from AB for caring for KB. There is unambiguous evidence in the bank statements provided to the court of payments being made to him which correspond to the amounts recorded in the payslips. The hours of work for which AB paid GH, as recorded on the payslips and represented by the payments made to his account, were far in excess of the hours he spent doing minor chores for the benefit of AB and KB, such as shopping, ironing, and some domestic cleaning. From 2017 onwards he would visit the family home at weekends, so he was not providing anything more than occasional services, if any, on weekdays. All witnesses told the court that he was not involved in any personal care of KB. All he did was to help with some chores. Yet he was paid through the Direct Payments scheme for 60 hours’ work a month. Statements from one of GH’s bank accounts, in the name of KAS, shows that he withdrew £1,270 from cash points from that account in October 2019 alone [A77]. He clearly conducted many dealings in cash. He told the court that he did shopping for KB. There is no audit trail showing where the money came from to pay for the shopping. There are payments between accounts controlled by AB and accounts controlled by GH, including their joint account. I only have some statements from some accounts but the clear picture is of money passing to and from GH and AB on a frequent basis. It is highly likely, in my judgment, that money from the direct payments, intended to pay for KB’s care, was used by AB and GH for other purposes.

AB has consistently failed to disclose her true relationship with GH. She has said in these proceedings that they were married in a religious ceremony at the church at which she, and later, GH, were ministers in 2013 and there is no dispute about that. However, she wrote a “to whom it may concern letter” stating that she had known GP since he had attended a church service, since when “I began to know him more.” In two other “to whom it may concern” letters dated 14 and 18 February 2020 she writes as a pastor to confirm that GH had been in receipt of support from the Church as a Charitable Organisation for his “living expenses”. Again, there is no mention that they were married. She did not disclose their relationship to the Local Authority when she began to use Direct Payments to pay him for caring for KB. I have noted that the Direct Payments agreement required her to do so. She did not tell the police in interview the true nature of their relationship, giving the impression that he was a family friend and carer, not that they were married. She referred to him as “uncle” to KB’s social worker in August 2020 [F429]. CD and EF sought to explain to the court that “uncle” was a term of endearment to any senior male, but whilst I accept that AB was not intending to suggest that GH was KB’s uncle by relation, the use of the term obscured the true relationship between AB and GH which she neglected to mention. I am satisfied that the reason why AB failed to disclose her true relationship with GH to the social worker, to the Local Authority and to the police, is that she wanted to give the false impression that he was an unrelated, paid carer. In fact, she used the Direct Payments to pay money to him which she and GH then used for purposes other than for providing paid care for KB. As with the arrangements in relation to paybacks from JK, AB was dishonest in her financial dealings regarding the use of Direct Payments purportedly for KB’s care by GH.

Again, I conclude that AB has not been honest with the court about her arrangements involving the use of Direct Payments to give money to GH which was not truly for care services rendered by him and which resulted in financial benefit to him and her. She has misled the court in order to hide her wrongdoing in that respect. Likewise, GH has sought to hide his financial benefit from the misuse of the Direct Payments in order to distance himself from what appears to be fraudulent activity.

I am not satisfied that the evidence establishes that either CD or EF were knowingly involved in any of the financial arrangements involving Direct Payments. AB was very much in charge of those arrangements and there is no evidence that she discussed them with her children or involved them in the transactions. There are payments into the Church account by CD and EF, which they explained to be donations to the Church. They were not regular and I accept that they were genuine. There were payments out to CD and EF from the Church account but they explained their purposes - for example to cover expenses for a particular event - they were occasional and, again, I accept them to be genuine. The evidence does not persuade me that CD or EF were parties to any dishonest arrangements involving the Direct Payments.

The tenancy for the flat is in KB’s name, as were a utility account (water) and a warranty for a washing machine at the flat. Documentary evidence shows that KB was recorded as a secretary of the Church with what purports to be her signature appearing on some Church documents as secretary. An application was completed to open a bank account in an African country with her name and signature appearing. There is also a typed letter in her name suggesting that EF would be living at KB’s home to assist in her care, again purportedly written by KB. She was incapable of understanding the meaning of the documents she was apparently signing or which purported to be in her name. What appears as her signature was, in each case, very probably written by someone else.

As to the arrangements for the flat, I do not infer any dishonesty or malpractice by AB or any other person from the documentary or other evidence. During the course of the hearing I was concerned that the flat was never for KB’s use but was put in her name in order to provide accommodation for CD. However, I accept that KB did live there, albeit she spent a lot of time at the family home, particularly when CD was not around to look after her due to CD’s university or training commitments. AB, CD and EF thought it natural for agreements in relation to the flat to be in KB’s name. I accept that they simply did not think about whether, for example, a warranty should be in KB’s name, because, as they saw it, the flat was hers and so was the washing machine within it. As to the letter about EF living at the flat, purportedly written by KB, I accept that this letter was never sent to anyone. It was AB who wrote the letter, as she accepted. It would have misled a recipient into thinking that KB had written it, but it did not in fact mislead anyone or procure any financial advantage. It does however underline that AB can be casual with the truth.

AB did not give any satisfactory explanation for why KB appeared on documents as the secretary of the Church, or for why her signature should appear on certain Church documents including an application to open a bank account. This is an example of AB misusing KB’s name. AB told the court that the application was not submitted. There is no other evidence on whether or not it was submitted. However, KB’s signature was on the document and she was, apparently, secretary of the charity for a period of time. AB is responsible for those matters. In my judgment it was expedient for AB to use KB as the secretary. It saved time and effort. However, it was plainly wrong to use KB’s name in this way.

A Lasting Power of Attorney for property and affairs was executed on 12 July 2018 under which KB was the donor and AB and CD the donees. The family had instructed a solicitor to deal with this matter. The solicitor had signed section 9 of the LPA form as a witness to the signature of KB (whose name appears not as a signature but in capital letters both in section 9 and section 15). The certificate provider was a general medical practitioner who signed on 12 July 2018 certifying that the donor understood the purpose of the LPA and the scope of authority conferred under it and that they had discussed the LPA with the donor. Clearly they could not have discussed the LPA with KB without realising that she did not have the capacity to understand its purpose and scope. Further, the solicitor should have advised the family that KB did not have capacity to make the LPA. The GP has not been traced. She may have believed she was signing some other form of document. It is possible that she signed without reading. It has certainly not been established that her signature is a forgery.

Naturally, it is concerning that the LPA was made in these circumstances but I heard evidence from Mr Canning, an Investigator at the Office of the Public Guardian, who told the court that the error of making an LPA purportedly in the name of a donor who lacked capacity was not uncommon. I note that, on making investigations, Mr Canning received no response from the solicitor involved in making the LPA nor from the GP who acted as the certificate provider (who, I should make clear, was not the GP who gave evidence at Court and is no longer a GP at his practice). The making of this LPA was clearly in error: it was invalid, and it has subsequently been removed from the register. However, I accept that the family were given erroneous advice that an LPA was the appropriate mechanism for managing KB’s property and affairs and that they followed that advice in good faith.

GH alleges that when he lived with AB from 2013 to 2017, KB was also living there rather than at the flat, and that a room was rented to tenants. He says that CD and EF then lived in the flat. He alleges that a room at the flat was also rented to tenants. He says that after he moved out of the family home in 2017, he would visit the family home and stay over most weekends, which was still the arrangement in early 2020. He denies having been KB’s carer, or being paid to care for her, but says that he would help with cleaning, shopping, and ironing.

JK told me that she knew GH to be AB’s partner but she saw him only rarely at the house. Her evidence was that she would arrive at AB’s house, sometimes waking KB up (indicating that KB had slept there overnight). She would help KB to get ready, to have breakfast, and then to go to the Day Centre. JK was not a master of details and appeared to me to be sometimes confused about what period she was being asked about (2020 or earlier), what days of the week she worked, and where she attended on KB. I accept that she did sometimes provide care for KB in the mornings at the family home but also that she attended on KB at the flat.

The evidence clearly establishes that JK did provide care for KB. She helped her with some personal care, dressing, food preparation and feeding etc. On the other hand, GH’s role was as one of the family who would help out with some shopping or cleaning when he was at the family home, which from 2017 was mostly at weekends only, but he did not provide care services to KB.

Prior to about March 2020, KB did live at the flat and spent most nights there with CD but, when CD was engaged in her studies or on placements away from home, KB would stay at the family home. I am sure that she spent a lot of her time at the family home even prior to March 2020. From March 2020, when the Day Centre closed and then lockdown began due to the Covid-19 pandemic, KB then lived full time at the family home with AB.

I have found that AB was dishonest in her misuse of Direct Payments purportedly used to pay GH as a carer. The dishonesty by AB was not in using GH as a carer without disclosing his relationship to her or his immigration status, it was in using the funds meant to be used to provide for paid carers for KB, for other purposes. In pretending that he was a paid carer AB also had to hide the truth of their relationship. In reality GH did not provide care services for KB beyond what might be expected of a member of her family willing to generally help out when he was around.

As such, but for the dishonest financial arrangements, GH would still have had access to KB, as he had done for several years when living in the family home. It is not that the failure to follow guidelines from the Local Authority that carers should have police or work checks exposed KB to the risk of harm from GH, it was that GH’s membership of the family exposed KB to the risk of harm. I shall return later to the issue of whether that risk was or ought to have been known to AB, CD or EF.

Had formal checks been carried out on GH he would not have been permitted to work as KB’s carer because of his immigration status, not because of any past convictions for sexual assault or other potentially relevant offences. However, whilst he would have been prevented from being a paid carer (which in reality he was not) it would not have prevented him entering the family home and being in close proximity with KB as a member of the family.

On my findings in relation to financial arrangements, it follows that AB knew that GH was using a false identity, that he was working when he should not be working because of his immigration status, and that he, along with AB, was misusing the Direct Payments intended to pay for carers for KB. AB had good reasons therefore to believe that GH was capable of dishonesty.

In the course of these proceedings, during the course of assessment as a potential Special Guardian, AB has alleged that GH was abusive of her in their relationship. She reported that he was physically abusive towards her and manipulative during conversations and arguments. This led to GH moving out of the family home but she had kept the reasons for this to herself until these proceedings. This has come as a distressing surprise to her children CD and EF. GH denies her allegations. However, if they are true, then they gave AB a further reason not only to distrust GH, but also to believe that he was capable of physical violence.

In the past GH had taken KB to a movement class but AB had received reports that he was uncaring of her when attending and so AB stopped arrangements whereby GH would take KB to places. This gave AB reason to be concerned about GH’s care of KB.

Notwithstanding these causes for concern about GH, the evidence in this case does not disclose anything about GH’s past conduct or general behaviour that would have led AB or anyone else to suspect that he might be capable of sexually abusing or raping KB. Before the rape happened, there was no foreseeable risk that he would commit such a crime against KB or anyone else.

AB told the court that she would never leave KB alone with GH. However, she had no grounds to fear leaving them alone whilst she was in another part of the house, or for leaving them alone in the house for a few minutes to run an errand or to do some work for the Church. GH had lived in the family home for several years until 2017. He had maintained regular and substantial contact with AB and the family, including with KB. There is no evidence that he had every touched her inappropriately before the rape.

AB is clearly very committed to her daughter. Although I have found that she has been dishonest in relation to financial matters and thereby has deprived KB of additional professional care, she has never intended to do, or viewed herself as doing anything detrimental to KB. I am sure that the way AB saw things, she was extracting what was due to her from the Direct Payments. She was dishonest but she did not believe it was harmful to KB. She was KB’s carer for a lot of the time and had been throughout her childhood. KB appears to have been well cared for in terms of her physical health and wellbeing, her relationships within the family, and her emotional wellbeing. Had AB had any belief that GH might sexually abuse or rape KB there is no doubt that she would have taken steps to prevent him having any access to her. AB did not have any such belief. She did not doubt that GH would treat KB as a member of his family and as a professed Christian of faith.

KB cannot speak to the events in late February or early March 2020 when she was raped by GH – she does not have the capacity to do so. There is no evidence that she has ever alluded to the events. I have referred to GH’s accounts to the police in interview and to the Crown Court through his probation report. To this court he gave a new and different account. He said that AB had tricked him by leaving him alone with KB during the daytime having, as he said he believed, encouraged or coached KB to take off her clothes and go to him. AB had then returned after 20 minutes, earlier than expected, and found KB and GH having sexual intercourse. His evidence left me entirely unclear as to the motive AB would have for “tricking” him in this way. Moreover, it would be a curious plan by AB given that there was no history of KB being intimate with GH and, on GH’s account, AB was only gone for 20 minutes. How could she possibly have known that on return she would find KB and GH having sexual intercourse even if she had encouraged KB to go to GH naked? GH had not previously alleged that AB had played such a role, it would be wholly contrary to AB’s protectiveness and love of KB to do what GH alleged, and it is almost inconceivable that KB would be capable of following such an instruction. GH’s allegations were wholly incredible and very hurtful to KB’s family. By making such allegations GH showed, once more, his failure to take any responsibility for his actions. I reject without hesitation any suggestion that AB played any role in “setting up” a sexual encounter between KB and GH or that KB approached GH in a sexualised manner. Nothing in her previous or subsequent conduct has shown any sexualised behaviour or such disinhibition.

However, I am sure that what GH told me was truthful to this limited extent – he raped KB when AB was out of the house. At the time when the rape occurred GH would have had no opportunity to rape KB anywhere except inside the family home. In my judgement, it is most unlikely that the rape took place when someone else was in the family home. GH is unlikely to have taken the risk of being discovered raping KB with someone else in the house. On the evidence I have received, KB is unlikely to have been silent in the circumstances which would have been foreign to her and therefore likely to distress her. The layout of the house is such that it would have been unlikely, if not impossible, for sexual intercourse to have taken place unnoticed by anyone else who was at home at the time. Considering all these matters alongside GH’s own evidence, I conclude that it is highly probable that GH raped KB in the family home when no-one else was present.

Other than the admission that the rape took place when GH was alone with KB in the family home, GH’s evidence about the rape lacks any credibility and I reject it. The Local Authority has not alleged that AB, CD or EF, were complicit in or present at the time of the rape or that they knew in the immediate aftermath what had occurred. The evidence establishes that on the balance of probabilities GH raped KB when left alone with her in the family home. That is his own evidence and it accords with the other evidence in the case. Accordingly, I do not accept AB’s evidence that she never left KB alone with GH. She has maintained that stance throughout these proceedings: it is what she told the authorities and it was what she has told CD and EF. However, I find it not to be credible. AB had no reason to protect KB from GH in that way and it would been natural for her sometimes to go out from the house to run errands or to do some work associated with her Church. She was a very busy woman and could not take KB everywhere with her. Leaving KB with another family member would be an entirely natural thing for her to do. At the relevant time, AB regarded GH as a member of the family. I conclude that AB has misled the court, her children, and others about leaving KB alone with GH because she wants to avoid being accused of being negligent in relation to her daughter’s care. She is afraid of being accused of allowing GH to rape KB by leaving them alone together and so she has denied ever having done so. I find that she did leave them alone, that it was natural to do so, and that she had no reason not to do so. There is no evidence that GH had acted inappropriately with KB previously, no evidence that he had been guilty of sexual assault or other sexually inappropriate behaviour with others previously, and he had spent a great deal of time with KB at the family home over several years without giving cause of concern that she needed protecting from him.

GH mentioned male lodgers as potential perpetrators to the police. In the light of his admission they can be discounted as perpetrators but, in any event, GH’s evidence about lodgers was inconsistent with other evidence and I do not accept it. He appeared to allege that there were lodgers in the family home in February or March 2020, at the time of the rape, but there is no evidence to corroborate that allegation. I accept the family’s evidence that two men had stayed at the family home for a short period some months earlier.

The arrangements for the care of KB changed when the Coronavirus pandemic began and lockdown restrictions were introduced. The Day Centre closed and KB lived with AB in the family home full time. JK stopped visiting; CD lived in the flat, EF was busy with his studies and going to the gym, and AB assumed all the care responsibilities for KB. Such were KB’s disabilities that she would need assistance with personal care including at the time of her periods. The rape must have taken place in late February or very early March 2020 given the subsequent dating of the pregnancy. AB consulted KB’s GP about missed periods for the first time by an e-consult (online form) on 30 July 2020. By then KB must have missed at least four and possibly five periods. AB wrote on the form completed on 30 July 2020, that the first day of KB’s last menstrual period had been on 22 May 2020. This cannot have been correct.

On the same day, Thursday 30 July, a telephone consultation took place. AB told the GP that there had been “several months” of amenorrhoea, and that KB “used to have slightly irregular periods, but was every month before this … not sexually active and never has been but noticed breasts are swollen and stomach is swollen.” I take this to be reliable evidence that KB’s periods had been regular for some time prior to March 2020. The GP’s advice was to do a pregnancy test and to call back if positive. The test was done, and repeated, and both were positive but AB did not call the GP back. Instead she, and CD and EF (who knew of the positive test on 30 July but were not party to the advice given to AB by the GP) waited until the arranged appointment on Monday 3 August. At that appointment it was recorded “AB seemed initially cheerful in the consultation – stated she would have to look after the baby and that she was glad KB was not suffering from any sickness … [she] seemed to be expecting KB to continue the pregnancy.” The GP pointed out that as KB was unable to consent to sexual intercourse “we would be concerned about rape” which “seems to have come as a shock to AB.” In relation to KB’s periods, it is recorded by the GP that “she knows sometimes periods can be irregular and that is why she did not think about it much more since then and only after noticing the stomach swelling and breast swelling she thought something is not right.”

Dr Clarke, Consultant Obstetrician and Gynaecologist, told the court that she would not be surprised at all that AB did not know KB was pregnant as it was the last thing she would have imagined. No-one ever expected KB to be pregnant and that lack of expectation will have affected their views as to why she had missed her periods and put on weight. The senior GP at the practice also gave evidence saying that he believed it would be “possible to miss [that KB was pregnant] at this stage in the pregnancy.” He thought that given KB’s normal weight it would be possible even at 24 weeks pregnancy not to notice that KB was pregnant from her physical appearance.

In her police interview AB said that she thought something might be “wrong” with KB in May and that she tried to make an appointment at the GP but was unable to do so. There is no record of any contact with the GP surgery in May 2020 but there were unrelated e-consultations made by AB in June and early July 2020 with no mention of concerns about missed periods. I find that AB did not, as she says she recalls, contact the GP surgery about KB’s missed periods in May 2020. She may have thought about doing so but she did not actually make contact.

CD had no dealings with KB’s personal care from about the beginning of March to the end of July 2020. She would have seen KB but I have already noted the senior GP’s view about KB’s physical appearance. I accept her evidence that AB did not tell her that KB had missed a number of her periods.

Several professionals noted that AB’s attitude to the discovery of KB’s pregnancy was strikingly complacent. She did not seem alarmed or concerned for KB but, rather, appeared to be happy or at least remarkably resigned to the fact that she was going to have a baby. The Local Authority contends that AB’s attitude indicates that she had known about, and become reconciled to, the pregnancy for some time before alerting healthcare professionals. AB’s response to questioning about this during the hearing, supported by CD and EF, was that she had spent much of KB’s life being determinedly positive so as to avoid distress to KB. Also, her Christian faith and general personality gave her strength to present a cheerful demeanour even in difficult circumstances. She would put on a “mask” to present to the world. There may also have been an element of denial and an inability to confront the implications of the pregnancy including that KB had been raped.

The Local Authority initially sought to rely on evidence that a list of boy’s names had been found on AB’s computer, apparently downloaded prior to the diagnosis of the pregnancy. This, it contended, suggested that AB knew of the pregnancy at an earlier date. However, in large part due to investigations by CD, ultimately the Local Authority has accepted that it cannot rely on that evidence to prove that AB or CD knew of or suspected the pregnancy prior to the end of July 2020. It does maintain that allegation but does not rely on the list of names as evidence to prove it.

Weighing all the evidence with care - some of which tends to show that AB is likely to have known of the pregnancy before the positive tests, some of which tends to show that AB is not likely to have known of the pregnancy before that time - I am not persuaded that on the balance of probabilities AB deliberately hid KB’s pregnancy knowing that she was pregnant. Neither am I persuaded that CD participated in KB’s personal care in February to July 2020 and would have known from dealing with KB’s personal care that she had missed her periods from March 2020 onwards. I accept that for CD the news of the pregnancy at the end of July 2020 was a complete surprise.

By the end of May 2020 AB will have known that KB had missed her periods for three months having recently had regular periods. KB may have had some irregularity in her menstrual cycle previously but AB told KB’s GP in August 2020 that more recently KB’s periods had been regular up to the point where she stopped having them. I accept AB’s evidence that it did not cross her mind that KB had missed her periods because she was pregnant. She had no basis for believing that KB had engaged in sexual intercourse. I have found that GH raped KB when AB was absent and that AB was not aware of what had happened at the time or in the aftermath. It was unthinkable to her that KB might be pregnant. I accept her evidence that she initially thought that KB had just missed her periods because from time to time that can happen and because KB’s periods had been irregular in the past. Nevertheless, by the end of May it was evident that KB had a health issue having not had a period for three months. Furthermore, on the basis of AB’s oral evidence, it appears that by the end of June 2020 she noticed that KB was putting on weight. I accept AB’s evidence that she ultimately thought that KB might have fibroids rather than that she might be pregnant, but AB was able to contact the GP’s surgery, including using their on-line referral system, and she should have done so by the end of June 2020 given the several missed periods and unexplained weight gain. I emphasise that I accept that it did not cross AB’s mind that KB might be pregnant until very close to or at the time when the pregnancy was confirmed. CD told me, and I accept, that AB did not discuss the missed period with her. She did discuss KB’s weight gain which AB thought might be due to fibroids and CD thought might be due to a bowel problem. I do not criticise CD for failing to ensure medical advice or attention was secured for KB before the end of July 2020.

At no stage after it was discovered that KB was pregnant, did AB, CD or EF raise the possibility of termination of the pregnancy. There was no urgency by them upon conducting the positive pregnancy tests at home on 30 July to alert the GP. They waited until the appointment on 3 August to inform the GP of the positive tests. However, the contemporaneous medical records show that following the appointment on 3 August 2020, neither was there any urgency on the part of healthcare professionals to address the issue of termination. KB was taken to the Maternity Assessment Unit on 3 August and a scan confirmed the pregnancy which was dated at 22 weeks and 3 days. The first appointment with an obstetrician appears to have been with Dr Clarke on 27 August 2020 when KB was 25 weeks pregnant. Dr Clarke says that she “confirmed with AB that termination of pregnancy was not something that she or the family were considering and AB explained that she would prefer KB to be delivered by elective caesarean section rather than have a trial of labour.” Dr Clarke’s next involvement was on 27 September 2020 when KB was at over 29 weeks of pregnancy and Dr Clarke’s view was that a caesarean section would be in KB’s best interests and proposed to carry out a sterilisation procedure at the time of the elective caesarean section. Applications were made to the Court of Protection in relation to best interest decisions regarding the management of the pregnancy, delivery and sterilisation (not ultimately pursued) on 30 October 2020.

Given the importance of the 24^th week of pregnancy to the conditions for performing a termination under the Abortion Act 1967, the correct presumption that KB could not consent to intercourse and so had become pregnant after rape, and the impact of continuing the pregnancy for KB, the absence of urgent discussion about termination with the family by healthcare professionals following the scan on 3 August 2020, at 22 weeks 3 days, is troubling. AB’s noted reaction can be explained by denial, desire to protect KB from distress, her faith, naivety, or a number of other psychological factors at play, but it was incumbent on healthcare professionals to note the urgency of the decision whether to terminate the pregnancy, to discuss that with AB and the family, and to consider whether an application to court was necessary. I note, as submitted by Ms Keehan in her helpful written submissions, that it is not at all certain that had a best interests decision been made in early August 2020, that it would have resulted in termination of the pregnancy. However, this was clearly something that should have been discussed with the family whatever indications they have about their initial views.

I have already found that AB, CD and EF did not know that KB was pregnant until 30 July 2020. The evidence does not establish that they colluded to avoid KB having a termination in the immediate aftermath of the discovery of the pregnancy. Having heard them give evidence, I am satisfied that none of them held religious or moral views against abortion in any circumstances. Had termination been addressed with them between 3 August 2020 and the 24^th week of pregnancy, they would have seriously considered what was in KB’s best interests, whether or not that consideration would have resulted in a decision to terminate.

GH raped KB in or around late February or very early March 2020. He did so when they were alone in the family home. There is no evidence that he raped her on any previous or subsequent occasion. I dismiss any suggestion that AB was complicit in encouraging or facilitating the rape, or that she knew it had happened. For the avoidance of doubt, neither CD nor EF knew about the rape or did anything to allow it to happen.

AB having caring responsibilities for KB, a disabled and dependent woman, misused the Direct Payments made by the Local Authority for caring provision by causing direct payments intended for the employment of paid carers for KB, to be diverted to the financial benefit of herself and her husband, GH, in breach of the terms and conditions of the payments, to assist in the care of KB, evidencing a lack of transparency and dishonesty. By misusing direct payments in this way, AB prevented KB from having more paid care and assistance which would have been of benefit to her. AB thereby placed her own financial needs above the care needs of her daughter.

AB did not follow guidelines from the Local Authority to seek police checks or work checks when employing a carer. However, GH was not truly employed as a carer for KB but was named as a paid carer in order to divert direct payments to the benefit of AB and GH. It is not proven that had police or other checks being performed by AB that GH would not have had unfettered access to and availability/opportunity to abuse KB, because GH was a member of the family and would have had such access in that capacity. Therefore there is no link between the dishonest misuse of the direct payments and the rape or any failure to protect KB from being raped by GH. I do not consider that AB was negligent or at fault for leaving KB alone with GH on the occasion of the rape, as I have found she did. I criticise her for failing to admit that she left them alone, but not for leaving them alone. There was nothing in GH’s history or his previous dealings with KB to give rise to a foreseeable risk that he would act as he did.

The making of the LPA was a result of erroneous professional advice and was not an abuse of their positions of trust by AB, CD and/or EF. However, separately from the making of the LPA, AB, but not CD or EF, caused KB’s name to be used in relation to an application for a bank account in an African country, using KB’s name as the Secretary of the Church despite her known lack of capacity. By doing so AB acted dishonestly. It is not proved that the application was relied upon by the bank and that a bank account was opened as a result of the dishonest use of KB’s name and purported signature.

It is not proved that AB and/or CD knew KB was pregnant prior to positive pregnancy tests on 30 July 2020. AB ought to have sought medical attention for KB for missed periods and weight gain by the end of June 2020 but it is not proved that AB knew or ought to have known that KB was pregnant before 30 July 2020. CD was not involved in KB’s personal care between February and August 2020 and did not know and had no grounds to know that KB was or might be pregnant before 30 July 2020.

It is not proved that AB and/or CD and/or EF and/or GH sought the pregnancy to go to full term for reasons of financial gain or other motive not in the interests of KB. In closing submissions the Local Authority accepted that there is limited evidence to make out this allegation against EF or GH. In my judgment it ought to have made a similar concession in relation to CD. As for AB, firstly I have found that she did not know of the pregnancy before 30 July 2020 (neither did CD or EF). Secondly, although the family delayed from 30 July 2020 to 3 August 2020 in informing the GP or the positive pregnancy test, I am satisfied that they did so when in shock and mindful of an appointment having been made. In any event, only AB had been party to the advice to contact the GP if the test was positive. The delay of four days did not materially affect the decision to continue the pregnancy. I am not satisfied that the evidence proves that AB or CD took any steps to prevent or delay medical professionals knowing about the pregnancy once they knew about it nor that they avoided, prevented or delayed discussions about termination. Indeed in my judgment, the greater responsibility for the failure expeditiously to consider termination lies with the healthcare professionals. Further, no financial or other motive for concealing the pregnancy or continuing it has been satisfactorily established.

It is not proved that AB and/or CD colluded to ensure the pregnancy would not be noted by medics until a stage in all likelihood too late to terminate and/or expressed a wish for the pregnancy to go full term in the full knowledge that Mother could not care for a child; and considered names for the baby, including the subsequent chosen name, prior to full disclosure of the pregnancy to professionals. As already noted, the Local Authority does not rely on the evidence of the finding of a list of names on AB’s computer. Furthermore, the same considerations as I have set out in the previous sub-paragraph apply to the allegation under consideration here.

In relation to the eighth, summary allegation, I find that AB has dishonestly misused the system of direct payments which were intended exclusively for the benefit of KB but which AB misused to divert monies to herself and GH for their financial benefit. However, such dishonest misuse did not afford GH access to KB, which he used to rape her, which he would not otherwise have had as AB’s husband. GH’s rape of KB was opportunistic. It occurred when they were alone in AB’s home. There is no evidence that he has raped her on any other occasion. AB, CD and EF are not responsible for GH having raped KB by intentionally or negligently permitting him or allowing him the opportunity to do so. They had no grounds to believe that leaving KB alone with GH would expose her to the risk of being sexually assaulted by him. AB ought to have sought medical attention for KB by late June 2020 and had she done so the pregnancy is likely to have been detected about one month earlier than was in fact the case. However, AB did not know and it is not proved that she ought to have known that KB was showing signs of pregnancy. What might have been obvious signs of pregnancy in a sexually active woman, were not obvious signs of pregnancy in a woman whom it was reasonably assumed had never had sexual intercourse. KB and LB were put at risk of pre-birth complications and the risk of harm during delivery, and LB is at risk of future significant emotional harm when he learns of the circumstances of his conception. However, those risks were not the foreseeable consequences of any deliberate or negligent acts or omissions by AB, CD or EF.

APPENDIX ONE

SCOTT SCHEDULE