Fatima & Ors, Re

MR RECORDER JACK: On 6^th November 2022 at half past eleven in the morning, the father found his youngest son, Tamer, unresponsive in bed. The father telephoned for an ambulance. While being taken to hospital in the ambulance, Tamer’s heart stopped beating three times. On each occasion the ambulance attendants were able to revive the child by injecting adrenaline. At the hospital, a crash call was made summoning the emergency resuscitation team. They were able to stabilise him. He was moved to intensive care.

Sadly, on 9^th November 2022, Tamer died. The cause of death was “severe head trauma leading to a complex skull fracture, intracranial bleeding/injury and cardiac arrest.” Tamer was three years and three months old.

The primary cause of death was the fracture of the skull. However, it seems that Tamer already had an older healed subdural haematoma most likely caused by another episode of head injury. This injury could have been accidental or non-accidental. The interaction of the two injuries is not entirely clear. In addition, Tamer had three burn marks from two incidents where he had been scalded. These incidents had already been investigated by professionals. The father said they were accidents. They did not contribute to Tamer’s death.

The mechanism of how Tamer sustained his fatal injury is in dispute. The police are investigating the father’s responsibility for the death. This inquiry is on-going. An unfortunate feature of this case is that the final autopsy report is not yet available. In his second interview with the police, the father said that Tamer had fallen down the stairs at home at about half past midnight. The child was, he said, able to crawl up the stairs to go to bed. The truth of this account is not accepted by the local authority.

There is some evidence supporting the injuries having been caused accidently, rather than by a violent attack. The conclusion of Dr Roger Malcomson, a consultant paediatric pathologist specialising in forensic eye pathology, after examining haemorrhaging around the eyes was that the “overall pattern of eye-related findings broadly favours accidental rather than abusive head trauma”, but in reply to a supplemental question he said that he could not “exclude the mechanism of injury being a single simple inflicted impact to the back of the head.”

The mother and the father had five children together, two girls now aged 9 and 7 and three boys, the two survivors being aged 6 and 5. The parents separated about a year before Tamer’s death. Thereafter the mother saw the children about once or twice a month until July 2022 when the father stopped the mother’s contact. The father was the children’s sole carer after the separation.

As part of the police investigation, Achieving Best Evidence (“ABE”) interviews were conducted with the two girls. Both gave details of sexual abuse inflicted on them by their father.

In addition there is evidence of physical abuse against all the children.

The four surviving children are the subject of the local authority’s application for final care orders. Her Honour Judge Patel made an interim care order on 6^th December 2022. The local authority’s proposal is that the four surviving children should be placed together under a long term fostering arrangement with their current foster parents.

There are no family members available to care for the children. The mother has been assessed for her suitability as their carer. The assessment does not support the immediate return of the children and recommends therapeutic input. Mother does not oppose the local authority’s proposal for long-term foster care on the basis that the local authority confirmed the children can remain in their current placement and will continue to assess reunification of the children to her care.

The father accepts that in view of the undisputed findings of facts set out below the local authority’s plan should be approved. He would like the children to attend a state school rather than the Roman Catholic school they currently attend. In my judgment, however, they are thriving at the Roman Catholic school. The four children are of Muslim heritage, but the Roman Catholic school does not interfere with their religion. The father does not seek any formal order in respect of the children’s schooling and I decline to make any.

In addition, the local authority apply for an order under section 34(4) of the Children Act permitting the local authority to refuse to allow the father contact with his children. In the light of the undisputed findings below, this is unopposed. The order shall last indefinitely until each child reaches his or her majority.

Lastly, the guardian seeks an order under section 91(14) of the 1989 Act to prevent the father making applications in the care proceedings save with leave of the Court. In her position statement of 17^th November 2023, the guardian submitted that an order for a period of four years was appropriate. At the hearing on 20^th November 2023, however, Mr Mansfield submitted on her behalf that the order should be made for an indefinite period, to expire as each child reached his or her majority. This order is supported by the local authority. The mother’s position is neutral.

The father originally sought to contest all the matters in dispute. In particular, a live issue until last week was the question whether his daughters should be questioned in relation to the allegations of sexual abuse. Provision was made for a ground-rules hearing and for further ABE interviews to be held potentially on 24^th November 2023. In the event, in the week before the hearing, the father indicated that he did not intend to challenge the girls’ evidence or that of the other witnesses of the local authority. He did not intend to give evidence. The effect would be to shorten the final hearing very considerably from the ten days originally timetabled.

The guardian indicated that she considered the Court should take an inquisitorial role and should direct the father to give evidence, as well as hear some other live evidence. The position of the other parties was that, given the unopposed findings of fact, live evidence was unnecessary.

The guardian submitted that:

“4.

…she views the causation of the death of Tamer as an important factor in this case. It will have important welfare resonance for the children to know what happened to Tamer. The Guardian is also concerned about the potential for that matter to have to be litigated in the future in the event of an application by Father to discharge the care orders.

5.

The Guardian does not plead findings in relation to causation. She wishes to be able to explore the issue of causation with Mr Robinson, Paediatrician, and Father, in oral evidence in an inquisitorial manner.

6.

The court is entitled to make findings that are not pleaded after hearing oral evidence, and it may be that the court is invited to do so.

7.

The Guardian takes the view that such an exploration of what is an important welfare issue for all surviving siblings, should be permitted. It is in accordance with an inquisitorial approach that she would wish to take.

8.

The Guardian wishes to test the evidence in an inquisitorial way to seek to establish the truth.

9.

Wall LJ in GW and PW v Oldham MBC and KPW (A child) [2005] EWCA Civ 1247, [2006] 1 FLR 543notes that it is ‘worth remembering that the guardian (and the solicitor instructed by the guardian) do, in my judgement, have a proactive role to play’which he had previously characterised [in In Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 at para [48]] as meaning that:

‘the… guardian and her solicitor need to be intellectually rigorous, and in my judgment it is for the guardian and the solicitor he or she has instructed carefully to examine the factual sub-stratum of the case, and to advise the judge what evidence is required to enable the judge to reach a just conclusion.’

10.

Accordingly, the Guardian would wish to ask questions of Dr Robinson and Father.”

I refused to follow the guardian’s approach and indicated that all the witnesses could be stood down. The reasons for my decision to allow the witnesses to be stood down are well-summarised by Ms Markham KC and Ms Howell in their submissions for the father (albeit received after I had made the decision):

“The notion that the court should entertain an exploration of causation of Tamer’s death whilst no party seeks findings in relation to the same is strenuously opposed on behalf of the father. In brief:

(a)

there is no legitimate legal basis for such an exercise

(b)

it is unnecessary; on the guardian’s own case, it is futile – she does not seek any findings

(c)

it is disproportionate in light of the significant findings that are inevitable in light of the father’s non-opposition to them

(d)

the father is entitled to know what case he faces – the court is due to start hearing the case proper the working day following the guardian’s position being advanced. If the court were to make additional findings further to such ‘exploration’, it is difficult to see how this would not breach the requirements of fairness

(e)

whilst compellable, the father is not likely to agree to give evidence.”

As to this last point, the right to silence given by section 14 of the Civil Evidence Act 1968 is removed in care proceedings by section 98(1) of the Children Act 1989. Evidence given under compulsion is not admissible in criminal proceedings: see section 98(2) of the 1989 Act. However, whilst the Court can compel a parent to go into the witness box, it cannot in practice make a parent answer questions if he is intent on not doing so. Theoretically, the Court could imprison a witness until the witness gave evidence, but this is very rare. I bear in mind that compelling a man to give evidence in family proceedings when he is potentially facing the gravest of all criminal charges has the scope to be oppressive.

If the father refused to give evidence, it may be that inferences could be drawn against him: see the discussion in Phipson on Evidence (20^th Ed, 2022) at para 24-60. However, this would be a very unsatisfactory means of determining how Tamer came to sustain his injury. It is not in my judgment in the children’s best interests to make a determination as to whether the father caused Tamer’s death, when the evidence currently available to this Court is not such that any robust conclusion can be drawn. The police are much better placed to decide whether there is sufficient evidence to bring a case in murder or manslaughter against the father. Of course, if it is necessary for the Court to do so, this Court will determine whether on balance of probability Tamer died at his father’s hand or as a result of misadventure. However, given the facts which the father is accepting (or at least not disputing), there is no need in my judgment to decide this aspect of his culpability. Accordingly, I decline to do so.

Counsel for the mother and the local authority have agreed the following facts in assessing whether the threshold for the making of final care orders is met. The father no longer opposes the making of these findings. The guardian’s position in the light of my determination of her application for adducing live evidence was that she also agreed the findings on threshold as below. (Some paragraph numbers are omitted, because they were subsidiary matters on which the parties could not agree. The local authority did not seek determination of these omitted matters but has not updated the numbering.)

“Lack of Supervision / Failure to Seek Timely Medical Attention.

3.

Whilst in the care of the father, there are numerous examples of the children being harmed or placed at risk of harm through his lack of supervision and failure to seek timely medical attention including:

a)

On 10^th April 2019, whilst aged 9 months, Sami suffered a spiral fracture of the left humerus whilst in the care of his father. Within previous public law proceedings, the father accepted that Sami sustained this injury as a result of a lack of supervision.

b)

On 29^th November 2021, Tamer suffered burn injuries through scalding for which the father did not seek medical attention until 1^st December 2021 after having been advised to do so by nursery staff.

c)

On 27^th March 2022, Tamer suffered further burns through scalding when the father left him and Sami (aged 2 and 3 respectively) in the bath alone.

d)

The burn at paragraph c) above occurred at 3pm on 27^th March 2022 but the father did not seek medical attention until 3.34pm on 28^th March 2022 after having been advised to do so by a health visitor.

e)

Despite the fact that all of the children were under the age 9 at the date of the application for public law orders, the father would leave the children unsupervised at home whilst he went shopping.

f)

Despite being only 3 years old at the time he died, the father would leave Tamer at home alone whilst he took the other children to school and when he collected them.

The Death of Tamer

4.

By approximately 12.30am on 6^th November 2022, at the age of 3 years 3 months, Tamer had suffered a number of injuries including a catastrophic head injury involving a skull fracture.

5.

At the point which Tamer suffered his injuries, the father knew or ought to have known that Tamer had suffered significant and serious injuries and failed to seek medical attention for a further 11 hours. The injuries suffered by Tamer eventually led to his death.

6.

If it is true that Tamer had accidentally fallen downstairs at 12.30am on 6^th November 2022, the father failed to provide an explanation to those treating him for Tamer’s condition at the earliest opportunity.

Sexual Abuse

7.

In 2009, when the father was aged 15, the father was convicted of sexual assault on a 16-year-old child and was placed on the sex offenders register for 3 years.

8.

The father has admitted to the sexual touching of the 16-year-old girl mentioned above in 2018.

10.

On a date prior to November 2022, the father licked Maryam’s vagina.

11.

On a date prior to November 2022, the father licked Fatima’s vagina and made her lick/suck his penis.

Exposure to Cannabis

12.

Whilst caring for the children, the father used cannabis.

Inappropriate Chastisement

14.

The father inappropriately chastised the children by smacking and putting chilli in their mouth.

Controlling and Alienating Behaviour

16.

The impact of the father’s behaviour is that the children have been alienated and have damaged attachments to their mother.”

All the findings above are born out by the evidence, which is helpfully cross-referenced in the original of the threshold document. I have viewed the ABE interviews in which the girls gave evidence of the sexual abuse they had received. The girls gave their accounts in an apparently convincing manner. I am of course aware of the risk of collusion. Indeed in a close-knit sibling group as exists here, it would be surprising if Fatima and Maryam had not discussed between themselves what their father had done. If there had been further questioning conducted in accordance with my directions at a ground rules hearing, this is a matter which would have been explored further. In absence of any challenge to the girls’ evidence, I accept the truth of what they say.

I find that the facts set out above have been proven on balance of probabilities.

The guardian seeks an order under section 91(14) preventing the father making any applications in the care proceedings without leave of the Court. The guardian originally sought an order for four years, but in his oral submissions Mr Mansfield submitted that an indefinite order lasting until each child’s majority should be made. Although during argument the making of an order was discussed to cover all potential proceedings regarding the children, in the event only an order in respect of potential applications under care orders was sought (namely, applications to discharge or applications for contact under section 34).

The test for the making of a section 91(14) order was originally very strenuous, requiring in effect repeated unmeritorious applications. The sub-section is, however, now to very different effect after section 91A of the 1989 Act was inserted by the Domestic Abuse Act 2021 with effect from 19^th May 2022: see The Domestic Abuse Act 2021 (Commencement No 4) Regulation 2021 reg 2(1)(b).

The relevant statutory provisions now provide:

“91(14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court. For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision).

…

91A(1) This section makes further provision about orders under section 91(14) (referred to in this section as ‘section 91(14) orders’).

(2)

The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—

(a)

the child concerned, or

(b)

another individual (‘the relevant individual’),

at risk of harm.

(3)

In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to ‘harm’ is to be read as a reference to ill-treatment or the impairment of physical or mental health.

(4)

Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.

(5)

A section 91(14) order may be made by the court— (a) on an application made— …(ii) by or on behalf of the child concerned…

(6)

In this section, ‘the child concerned’ means the child referred to in section 91(14).”

Practice Direction 12Q gives examples of circumstance in which a section 91(14) order might be appropriate:

“2.2

The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.

2.3

These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person’s conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse. A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.”

Para 4.1 deals with the duration of a section 91(14) order, but gives little concrete guidance. The matter is left to the discretion of the Court, although the Court must give reasons.

The guardian (whose submissions were supported by the local authority) submitted:

“12.

The children will each need to have extensive therapeutic support. This support will be long term and it is not possible to put a timeframe on this support. It is likely to cover a timespan of years and may need to be revisited. For example, when Fatima and Maryam start to reach puberty and then adolescence and all that may flow from that in terms of understanding safe and appropriate sexual relationships, boundaries and the long term resonance of familial sexual abuse for them, and indeed impacting on the whole sibling group.

13.

This sibling group are placed together, and have the benefit of the same placement since removal from their father. The Foster carers have provided a commitment to care for the children long term. The welfare of each child in the sibling group directly impacts on the welfare of all siblings; they are each other’s primary emotional supports.

14.

Harm therefore would likely be caused to each of the siblings in the event Father was to make an application. The findings, if made fully, are extremely serious. The welfare of the children remains paramount and their welfare requires the making of the section 91(14) order.

15.

Therapeutic support and intervention for Fatima and Maryam will need to deal with complex matters including sexual abuse and sibling bereavement. For Rayyan and Sami it will need to include sibling bereavement. The therapeutic intervention will be complicated further by additional factors:

a.

Fatima misses Father and would like to see him.

b.

Maryam thought living with Father was good.

c.

Rayyan struggled to focus in the session with the CG since his attention span is short he has been referred to the Educational Psychologist for further investigation that may indicate ADHD/ASD but may also be attachment related.

d.

Sami continues to make allegations about the care received by Father.

e.

The children have suffered so much loss already; they thrive off each other.

16.

Such therapy cannot take place during live court proceedings. The therapeutic support services are clear about that in the social work evidence and that is the reason why support is not yet in place. It would be wholly inimical to all of the children’s welfare interests as a sibling group who mutually depend on each other for emotional support and their emotional wellbeing, for there to be a very real risk that such future therapeutic intervention be interrupted due to live court proceedings.”

These considerations would amount to strong grounds for making a section 91(14) order, but only if there were any real risk of the father making any application for contact with his children. The father does not speak good English, and certainly not enough to act as a litigant in person. He is highly unlikely to meet the merits test so as to be able to apply for legal aid. These considerations alone would make any application by the father highly unlikely.

Further the father has — and it is right that the Court should give him credit for this — put his children first by not requiring his daughters to be examined further on their allegations and by allowing the Court to find proven the very serious allegations of fact made against him without his calling evidence or making submissions to the contrary. He did that with the benefit of the advice of both leading and junior counsel. He must be aware that in the light of these concessions the prospects of his seeing his children again any time soon is minimal. In my judgment, for these reasons again the father is most unlikely to make an application.

Moreover, even if the father did attempt to seek an order for contact, the Court is not powerless to deal with such an abusive application. It is true that FPR rule 4.4, which permits the Court to strike out abusive claims, does not extend to Part 12. However, the Court still has strong case management powers. Mr Mansfield submits that, if any application were made, the children would automatically have to be added as parties and that the guardian would then need to discuss the application with the children causing the feared disruption. However, it would be open to a judge hearing an abusive application by a parent for contact to order a final hearing to determine the matter summarily, thereby minimising any impact on the children.

The law on the new section 91(14) was conveniently summarised by Her Honour Judge Vincent in Re S and T (Care — fact finding — FII — emotional abuse) [2023] EWFC 195, where she said:

“65.

I have been referred to the cases of Re A (A child) (Supervised contact) [2021] EWCA Civ 1749, [2022] 1 FLR 1019, and A Local Authority v F and others [2022] EWFC 127, in which Gwynneth Knowles J considered sections 91(14) and 91A, summarised the relevant parts of Black LJ’s leading judgment in Re A, and directed herself that section 91A(2) gives greater latitude to the Court to make section 91(14) orders than the previous guidance from Butler-Sloss LJ, in the case of Re P (Section 91(14)) (Guidelines) (Residence and Religious Heritage) sub nom: In Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15:

‘Section 91A(2) provides that an order may be appropriate if the child is at risk of harm, harm being defined in accordance with section 31(9) of the Children Act 1989 to mean “the ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”. The risk that harm may arise to a child under the age of 18 unless the making of applications is restrained is not qualified by words such as “serious” or “significant” and neither is the degree of harm that a child may experience. I observe that, insofar as the risk that harm may arise to a child is concerned, section 91A(2) sits a little uneasily alongside guideline 7 of the Re P guidelines which states that there must be a “serious risk” [the judge’s emphasis] “that, without the imposition of the restriction, the child or primary carers will be subject to unacceptable strain”. Correctly applied to a child’s circumstances, section 91A(2) gives a court greater latitude to make section 91(14) orders than the Re P guidelines do. Thus, in coming to my decision in this case, I have applied the new statutory approach to harm set out in s.91A(2) rather than guideline 7 of the Re P guidelines and, in so doing, I have adopted the ordinary civil standard of proof. That course is consistent with the modern approach of the Court of Appeal in Re A as outlined above.’

67.

In his note, [counsel for the applicant mother] has helpfully drawn together from all this source material the following formulation, setting out what he (with agreement of the other parties) contends should be the Court’s approach to an application for a section 91(14) order:

a.

If findings of domestic abuse are made, even if the victim did not apply for this relief, the court is now bound to consider whether or not to make a section 91(14) order.

b.

While such an order is ‘the exception and not the rule’, it does not follow that the case or its circumstances must somehow be adjudged to be ‘exceptional’before such an order could be made.

c.

The court should bear in mind that such orders represent a protective filter — not a bar on applications — and that there is considerable scope for their use in appropriate cases.

d.

Whether the court makes an order is a matter for the court’s discretion. There are many and varied circumstances in which it may be appropriate to make such an order. These may include cases in which there have been multiple applications (‘repeated and unreasonable’), but that is not a necessary prerequisite. They may also include cases in which the court considers that an application would put the child concerned, or another individual, at risk of harm (without the need to find the ‘risk’to be ‘serious’ or the likely ‘harm’ to be ‘significant’ or ‘serious’).

e.

Subject to any inconsistency with the above, the Re P guidelines continue to apply.

f.

If the court decides to make an order, it must consider:

(i)

its duration, as to which, any term imposed should be proportionate to the harm the court is seeking to avoid, and in relation to which decision the court must explain its reasons;

(ii)

whether the order should apply to all or only certain types of application under the [Children Act] 1989;

(iii)

whether service of any subsequent application for leave should be prohibited pending initial judicial determination of that application.

g.

In all of this, the welfare of the child is paramount. That said, any interference with a parent’s otherwise unfettered right of access to the court, including the duration of any such prohibition pending permission, must be proportionate to the harm the court is seeking to avoid.”

I agree that the risk of harm identified in section 91A(2) need not be serious harm, so that the Court has jurisdiction to make a section 91(14) order as soon as a risk, however slight, of harm is shown. Nonetheless, in my judgment the risk of the harm occurring is a very material consideration when the Court comes to exercise its discretion as to whether to make an order and, if so, for how long. If the Court were to make indefinite section 91(14) orders based on small risks, section 91(14) would very soon cease to be the exception and become a standard order in many care proceedings.

Ms Howell, appearing for the father, did not oppose the making of a section 91(14) order. She submitted that the order should be made for four years. This was the period originally sought by the guardian, but as noted, the guardian subsequently sought to make the order last indefinitely. Mr Mansfield explained the basis for the change as being that there was no obvious cut-off point. The difficulty with this submission is that almost any finite period of time is going to be arbitrary. The logical conclusion of Mr Mansfield’s submission is that an indefinite order should be the default position, but I do not accept that. An order should not be for any longer that is reasonably required to protect against the harm which is established.

Given the very low risk of the father making such an application, in my judgment no period longer than the four years conceded by Ms Howell is appropriate. I am doubtful whether an order is necessary at all, but the father no doubt wants to put an end to this litigation. Since I have jurisdiction to make the order, I shall not go behind his concession of four years.

I turn to the welfare checklist in section 1(3) of the Children Act 1989. As to the children’s wishes, the guardian records that Fatima and probably Maryam wish to see their father, however, they are at an age where they will have little appreciation of their best interests, so I attach little weight to this consideration. The children’s physical, emotional and education needs are being fully met with their current placement where it is intended they remain long-term. A change in their circumstances is likely to be deleterious. The current and proposed arrangements meet the children’s needs in the light of their age, sex and background. The main characteristic which is relevant is that the girls at least appear to be keen Muslims. The current arrangements are satisfactory in that regard. The current arrangements will avoid harm. Neither the father nor the mother are capable of caring for the children safely.

In these circumstances, I shall grant the final care orders sought by the local authority. I shall order that the children Fatima, Maryam, Rayyan and Sami be placed in the care of Leicester City Council; that pursuant to section 34(4) of the Children Act 1989 the local authority be permitted to refuse contact between the children and their father during the minority of the children or until further order; and that pursuant to section 91(14) of the Children Act 1989, no application may be made by the father for the discharge of the care orders or any order in respect of contact until 24^th November 2027 without leave of the Court. There shall be no order for costs, save that there be a detailed assessment of the legally aided parties’ costs.

The police seek disclosure of certain documents to assist them in their criminal investigation. There is no objection from the parties to the making of such an order and in my judgment it is appropriate to permit this disclosure.