Hertfordshire County Council v Ms T & Anor

I am concerned with two children, Child A, who is nine years of age, and Child B, who is seven years of age. The mother of both children is Ms T, who is 35 years of age, and the father of both children is Mr J, who is 38 years of age.

On 3 November 2017 the children were made the subject of a police protection order pursuant to s.46 of the Children Act 1989. On 6 November 2017 the parents agreed to the children being accommodated by the local authority pursuant to the provisions of s.20 of the 1989 Act. On 1 December the local authority made an application for an emergency protection order which was granted. It also applied for care orders in respect of both children and the local authority was granted interim care orders on 4 December last year. The children have remained in the care of the local authority since November.

The local authority seeks full care orders in respect of both children with a plan of long term foster care preferably the children remaining with their current carers. The children’s guardian supports the local authority’s application and the care plan for the children. The mother opposes the same and seeks the return of the children to her sole care. The father, having been arrested, as I shall describe in a moment, he has absconded. His whereabouts are unknown and he has played no part in these proceedings.

The father is an Afghanistani national, the mother is Latvian and speaks Russian with some limited English. She has been assisted ably, if I may say so, through these proceedings by a Russian interpreter. In about 2006 the parents met in London. In February 2009 Child A was born. In 2010 the father sustained serious injuries in an attack which left him disabled and a wheelchair user. On 4 June 2011 the parties married and later that month Child B was born. In 2012 the father was sentenced to a term of imprisonment for a violent disorder offence. In 2013 the family became known to the Local Authority A Children’s Services. In November of that year Local Authority A completed a children and family assessment. There were concerns about Child A’s poor behaviour and attendance record at school but no further action was taken.

In late 2016 and/or early 2017 the Local Authority B Children’s Services became involved with the family. Child A had not been attending school for some period of time and it was believed that the family were homeless. In February 2017 the NSPCC made a referral to Local Authority B in respect of alleged physical abuse and/or neglect of the children. On 26 October last year as a result of a joint investigation by the Home Office and the National Crime Agency into people trafficking into the United Kingdom the mother and father were arrested and their mobile phones were seized. An examination of the father’s phone revealed that there were five videos of indecent images of sexual activity with children. Four of those videos related to a man, confirmed to be the father, having sexual intercourse with a twelve year old girl. These were first generation images meaning that they were filmed on the father’s mobile device. There was one video of a young boy around eight years of age being masturbated by a woman.

On 22 November last year the father, in the presence of the mother, showed the social worker Mr W the video of the eight-year-old boy being sexually abused. It was shown so as to demonstrate, it was said, that the child was not Child A. Upon being received into local authority care, the foster carer noted that both children exhibited sexualised behaviour. On 27 November Child A told his foster carer that he had been sexually touched by a man when he was six or seven years old. He said he told his grandmother, the maternal grandmother, who told him not to speak about it or to tell anyone else. On 29 November the Home Office advised the local authority that there was credible intelligence that the mother and father planned to leave the United Kingdom as soon as possible with the children. The following day, the father requested of his GP three months’ medication telling him that he was planning to take a holiday for three months from 5 December. The GP referred that request to the local authority.

On 1 December the mother answered her police bail, the father did not. Since then, his whereabouts have been and remain unknown although he has either directly or through third parties sought to make contact with the mother. On 6 December when speaking to the social worker, Mr W, the mother confirmed that the grandmother had told her of Child A’s allegations of sexual abuse and she confirmed that nothing was done and no report was made. On 5 February this year the then social worker, Ms Z, spoke to the mother about the videos. She was so disturbed by the mother’s reaction, as I shall elaborate in a moment, that she gave the mother time to reflect and arranged a further meeting on 23 February 2018.

The burden of proving that the threshold criteria is satisfied rests solely with the local authority. The standard of proof is the balance of probabilities, Re B [2008] 2 UKHL 35. The threshold criteria are set out in s.31(2) of the Children Act 1989. I must be satisfied that the children have suffered or are at risk of suffering significant harm. I must bear in mind that the welfare best interests of both children are my paramount consideration: s.1(1) of the 1989 Act. In determining this matter I have regard to the welfare checklist set out in s.1(3) of the 1989 Act. At all times I have regard to the Article 6 and Article 8 rights of the children and of the parents but bear in mind that where there is a tension between the Article 8 rights of a child, on the one hand, and of the parent, on the other, the rights of the child prevail, Yousef v The Netherlands [2003] 1 FLR 210.

When considering the evidence, particularly the evidence of the mother, I give myself a revised Lucas direction, namely, I should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied. I also take into account the decision of the Court of Appeal in Re H-C [2016] EWCA civ 136 where McFarlane LJ (as he then was) said at para.100:

“One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the ‘lie’ is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is ‘capable of amounting to a corroboration.’ In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251. ‘In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should, therefore, take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt’.”

I entirely accept that the mere fact of a lie being told does not prove the primary case against the party or the witness should they have been found to have lied to the court. I also bear in mind that there is no obligation on a party to prove the truth of an alternative case put forward by way of defence and the failure by the party to establish the alternative case on the balance of probabilities does not of itself prove the other party’s case, Re X (No 3) [2013] EWHC 3651 Fam and Re Y (No 3) [2016] EWHC 503 Fam.

I was greatly assisted by the evidence of the consultant psychiatrist, Dr Butler, in her immensely helpful report. She said as follows:

“It is my opinion that both children presented with evidence of significant disorder attachment development. There is evidence of heightened anxiety in their narrative about each of their parents. Both children have made allegations of physical abuse against Mr J and they have repeated those allegations to me. There have also been concerns that the children experienced physical neglect and possible emotional abuse and neglect in the care of their parents. I have other concerns about Child A’s presentation. There is some evidence of neuro developmental issues, in particular, social communication issues. He may have some inherent learning difficulties. I am recommending a child psychological assessment of him to clarify these problems. However, within the context of what I believe to have been the dangerous parenting he has experienced throughout his childhood, it will be difficult to say any developmental difficulties are purely due to inherent developmental issues.”

A little later in her report, speaking of the mother, she said as follows:

“She [the mother] described her relationship with Mr J which was characterised by domestic violence. She described him as a man who was repeatedly unfaithful to her and was often violent. He suffered an injury in a fight sometime between Child A’s and Child B’s birth. According to her, he was in a wheelchair as a result. It was difficult to get a clear picture of the extent of his disability. Ms T described Mr J as constantly irritable and she would avoid questioning him about things to avoid confrontation. Even when he was in the wheelchair he would throw things at her if he could not hit her but she denied that the children would have witnessed any of this and said that they barely had heard raised voices.”

“What was particularly concerning about an episode in 2017 was that she told me she had asked Child A what to do. When I challenged her about her level of responsibility this placed on a young child, she said she would only want the children to be happy and what they decided was what would happen. In my opinion, it is likely that Ms T was dependent on the children to guide her in various situations in life. I have little sense that she understood the impact that Mr J’s behaviour would potentially have had on the children; in particular the sexual abuse. I would be concerned if she was collusive in whatever deviant behaviour that was going on in the family home because she seemed to be unable to challenge him at any level.”

“We spoke about concerns in relation to sexual abuse. Ms T has spoken about the videos of the twelve-year-old girl saying she knew he was unfaithful but he was not that low. In my opinion, this is a minimisation of what was actually found on the phone. She seemed unable to understand or accept the seriousness of her husband’s behaviour. Similarly, the video of the eight year old boy, she initially said that somebody sent it to him by Facebook but when I questioned what kind of friends did he have that would see that as acceptable behaviour, she talked about telling him to delete it and he said that it was sad and horrible. However, she really struggled to think about what that might imply about his behaviour and the risk the children would have been exposed to in his care. She told me Child A was never really left alone with his father. However, when I challenged her she then said he had been on holiday with his father. She said he did go to Afghanistan alone with him but said she was on the holiday to Bulgaria dismissing that it was a concern. She said she would never have left him on his own except when they went to a mosque. Later, however, she talked about Child A sleeping in the bed with his father so that he could look at the father’s phone. She said that they did watch videos together. Either this is a gross minimisation of the risks that the father posed to Child A or she is too frightened to say anything about the father as she is still at risk from him.”

“The other possibility is that there was a degree of collusion by her in respect of any abuse of Child A. In particular I think the allegations he has made about sexual abuse by neighbours are very concerning. If Mr J is involved in some sort of paedophile group whereby he is receiving sexually explicit tapes of the abuse of young boys, Child A’s allegations may indicate his father’s involvement in what happened. At the very least they were living close to predatory adults.”

She moved on to consider the issue of the mother’s contact with the children. She said:

“She stood in the one place for most of the contact. She spent most of her time engaging with Child B who I think is an easier child to engage with because she is a more compliant child. She really struggled with Child A, often either ignoring him or dismissing his attempts to engage with him. Any boundaries or rules she tried to put down the children tended to ignore. In the end, it was the social worker who had to stop Child A throwing balls out of the ball pit or bringing food into it. In the end, when the children were leaving, it was very chaotic and she had no control over the situation. She found it difficult to tell them it was over, that they had to leave in a way that could have reassured them. It was the social worker and I who had to step in. The social worker told me that in a previous contact she brings lots of gifts and usually the focus of contact is around the gifts.”

In relation to sexualised behaviour Dr Butler observed the following:

“In my opinion, there is a significant risk that Child A has been sexually abused in the care of his parents. His father was in possession of child pornography including pornography depicting the abuse of a young boy by a woman. My concern is that Child A was at the very least being groomed in some way by his father given that he would spend time in bed with him and they would watch videos on his phone. Child A and his sister are sexualised with each other. The foster carers are vigilant to that and keep them separate and/or fully supervised. The foster carer told me that she is now of the opinion that Child A is the one who tries these behaviours and would watch them for some time.

“She said recently that they had been at another foster placement where he encouraged a child there to touch Child B. When I asked him about touching, he said, ‘Yeah, yeah, she didn’t let me but I do that at home. I'm just used to it.’ He then tried to change the subject. There is a risk that home is a sexualised environment such that Child A talks about being used to it. It leaves questions as to Ms T’s understanding of what was going on and her collusion with that.”

In relation to Child B, Dr Butler said:

“In my opinion, Child B is presenting with Compulsive Compliant/ Compulsive Caregiving attachment strategy (Type A: Dynamic Maturational Model of Attachment – Crittenden 2001). Children who develop this attachment pattern do so in the face of persistently unavailable care. It also develops when children have to managed unpredictable but repeated danger. They learn that it is best not to present their needs or distress to adults as at best it may not elicit any response or at worst it can provoke attack. Children develop the strategy of being pleasing and helpful as a means of being closer to their carer even though the focus is on the carer’s needs not theirs.”

Finally, in relation to Dr Butler’s view as to whether the mother could care for the children and meet their needs, she said:

“Sadly, I do not think Ms T is in a position to care for the children. I would be concerned if she remains under threat from Mr J. I don’t think she is engaging meaningfully in the process, in particular thinking about the children’s experiences and the risk they have been exposed to. She needs to engage herself in domestic violence services and also get some help to understand the risk to the children in terms of sexual abuse. I have questions as to whether she remains unable to engage because of the risk posed to her by Mr J. I think there is a possibility she may be frightened that he would kill her.”

In the course of giving her evidence, Dr Butler confirmed the conclusions of her report. She told me that the mother minimises what the father has done to the children and that the mother, in her view, did not feel that she needed to undertake therapy. She said that the mother characterised the father’s sexual abuse of a twelve year old girl as an affair and put the blame on the girl. In terms of therapeutic work and other support work that the mother needs to undertake, Dr Butler was of the opinion that it would take at least a year and that the mother would need to be a safe parent before any therapeutic work could be undertaken between the mother and the children.

Mr W, the first social worker, gave evidence and told me of his meeting with the parents first on 22 May 2017 and then with the mother alone on 6 December 2017. He told me that when the father showed him the video of the eight-year-old boy in the presence of the mother to prove that it was not Child A who was being sexually abused, the mother was present throughout and the father took the lead but there was no reaction from the mother at all and, in particular, she was not distressed. Further, although she could see what was on the phone she did not show any disgust or shock. The social worker gained no sense that the mother was disapproving of what was seen on the video.

On 6 December Mr W spoke to the mother about Child A’s allegations of sexual abuse. The mother told him:

“She had been aware of this and it had happened a year ago. She said she was not sure what to do because she said that she believed him but she also didn’t believe him as well. He had told grandmother who told the mother. The mother said she was pregnant with Child B at the time. I asked her who she thought it was and she said she was not sure.”

Perhaps the most disturbing part of the social work evidence came from Ms Z, detailing her discussions with the mother on 5 February this year and then on 23 February this year. In her assessment she set out details of those discussions. She told me as is recorded in that report:

“Regarding the allegation made by Child A that he was touched inappropriately by a Muslim man Ms T said Child A told her about this about one and a half years ago. She advised her that the abuse happened when she was pregnant with Child B and they were living in a shared house at that time. Child A told her he was touched on his bottom and the man also touched his penis. Ms T said that at first, she thought Child A was joking. I found this shocking because children normally joke about things that happen in everyday life and not about serious issues such as sexual abuse. I explained to her that Child A and Child B spoke about watching adult pornography on a mobile phone. She claimed to have no knowledge of this and never observed the children watching anything inappropriate. She could not understand why the children would say that.”

“I asked Ms T whether she had knowledge of the video which was found by the police on Mr J’s mobile phone of a twelve-year-old Bulgarian girl who was being abused. She informed me she saw the video at the police station after they were arrested in November 2017. She recognised the girl as she had attended her birthday party in Bulgaria. The girl’s sister is married to Mr J’s cousin. I asked how she felt when she saw this video of a twelve year old girl. Her response was, ‘I will kill this little girl with my bare hands if I see them again.’ She went on to say she was aware that Mr J was cheating on her but never thought this was with children. I advised Ms T that I was shocked by her response. I explained to her that this girl was only twelve years old and, therefore, still a child and not able to make informed decisions about sex. Mr J was an adult and from a professional view Mr J took advantage of the girl and committed a serious offence by having sex with a twelve-year-old.”

“I revisited the issue of child sexual abuse when I met with Ms T on 23 February of this year hoping she had had time to think and reflect on the issue. Her mother, Mrs L, was again present during this session. I asked her what her views on child sex abuse were. I explained that they must have come across such issues in Latvia or since they had been living in the United Kingdom. Ms T said she did not know. She went on to say that what she saw when she went back to Bulgaria she thinks that Mr J and the girl were laughing behind her back. She said she was angry with both Mr J and the twelve-year-old girl.”

“Mrs L’s views were that the parent of the girl should be prosecuted as well for allowing their daughter to have a sexual relationship with Mr J. I advised Ms T that I was deeply concerned about her own ability to protect her children as it was clear that she was not able to detect child abuse.”

In her evidence, Ms Z told me that the mother’s response to the video of the twelve-year-old girl being raped was astonishing. The mother was angry that the father was cheating on her and not that the child was being sexually abused. When asked whether the mother had demonstrated any reflection during the course of the second meeting on 23 February Ms Z said she had no sense that she had done so nor that the mother had any sense of what constituted child sexual abuse. The mother, she told me, had not acknowledged that she had done anything wrong or that there were any deficiencies in her parenting of the children. She told me that the children were very well placed with the current foster carers where they are stable and settled and that it was in the children’s best interests that they should remain there.

She had revisited the issue of Skype contact or telephone contact taking place in between what was supposed to be bi-monthly direct contact between the mother and the children and told me that if the local authority could be assured that safe Skype contact could be arranged, it would be in the interests of the children for that to take place.

The female foster carer did not give evidence but I read a statement which had been prepared on her behalf. In this statement she set out in graphic detail incidents, by way of example only, of both of the children exhibiting sexualised behaviour. Both of them have spoken of being physically abused principally by their father but also by their mother. On 12 February of this year Child B told another six-year-old child that her mother had hit her with a belt, that her Nan had hit her with a stick on her bare bottom and her dad had slapped her with a very strong hand. Two days later, Child A told the male foster carer that his dad tried to pop his brain by swishing his head with two hands.

These, as I indicated, are mere examples of:

The mother gave evidence. I take full account that the mother gave evidence through the services of a Russian interpreter. I accept that she is the victim of domestic abuse at the hands of the father and I further accept that she was nervous and anxious when giving her evidence. Nevertheless, having taken account of all of those matters, I regret to reach the conclusion that she was a wholly unsatisfactory witness. She repeatedly lied in her evidence. I can discern no innocent or good reason for her telling those lies. I find that she lied to deceive the court and to cover up her actions or those of the father. By way of example only, I find that the mother lied on the following six occasions:

The mother, in my judgment, completely lacks any insight into the damage done to these children in the care of her and the father and she has consistently and continues to minimise his actions towards the children and her actions towards the children. It is truly shocking that a mother should express anger towards a vulnerable twelve year old girl who is being repeatedly sexually abused by her husband, the father. To categorise what was taking place as the girl having an affair with the father demonstrates a skewed and perverted view of sexual abuse to a very, very high degree.

The guardian told me that he remained of the same view as set out in his final analysis of 12 July of this year. I gained a real sense during the course of his evidence that the evidence, particularly that of the mother, had reinforced him in his conclusion that he had reached in his report. In the report he told me:

“From my meeting with the her and the assessment of the social worker I have come to the same conclusion that Ms T has little insight into her husband’s behaviour, the abuse and how this has impacted on her thoughts. Furthermore, Dr Butler raises serious concerns about the possibility that Ms T was collusive in whatever deviant behaviour was going on in the family home because she seemed to be unable to challenge him at any level. When I asked Ms T if she went to the assessment with her solicitor she replied, ‘Yes,’ and said she was disappointed by Dr Butler’s suggestion of having contact six times a year. Ms T did not acknowledge any of the concerns raised by Dr Butler and the abuse experienced by the children and the risks posed by her husband.”

“The dynamics between Child A and his mother are complex and unclear. Dr Butler observed Child A trying to put a banana down his mother’s top and trying to get her to look down her top in contact. I am concerned that Ms T minimises the sexualised behaviour of Child A and also to concerns raised by the local authority. As much as she is able to show affection and warmth at the contact and is able to meet the children’s basic needs, Ms T seems unable to address the emotional needs of the children and acknowledge her responsibility in failing to protect them from abusive behaviour or witnessing domestic violence.”

“Given the risks identified by the professionals and Ms T’s lack of insight into the concerns, I support the care plan of the local authority. I do not consider that Ms T has the ability to meet the children’s emotional needs, to act protectively in the future or to address the serious finding that the children have been exposed to danger. I am of the view that the children would be at very real risk of harm directly and indirectly were they to be returned to the care of either parent.”

The guardian told me in his oral evidence that he had met the children and the foster carers at the beginning of this placement and just recently. He told me that the children had a good attachment to the foster carers and they were very settled. He was impressed with the love and the care that was given by the foster carers to these two children. He acknowledged that the children’s first preference would be to wish to return to the care of their mother but if that could not happen, they would wish to remain with their current foster carers. The mother’s evidence, he told me, had caused him great concern. It demonstrated a lack of insight and the therapeutic help she would need to become a safe parent would take as long as three years.

I am entirely satisfied that the threshold criteria of s.31(2) of the 1989 Act is satisfied for the reasons I will give in a moment. The children have, I am satisfied, suffered physical, emotional, psychological and sexual abuse and are at risk of doing so in the future were they to be returned to the care of their mother. They have suffered that harm most especially at the hands of their father but also, I regret to find, at the hands of their mother. The father is a dangerous man. He has been domestically abusive to the mother, he has been physically abusive to the children and he has exposed them to sexual activity and abuse.

The mother asserts that she has reported all attempts at contact by the father made either directly by him or by third parties since he absconded on 1 December. That may be so but the father during the course of their relationship demonstrated a degree of control over the mother and she suffered a degree of fear that she was not able to protect herself, that I have very real concerns about what the future will hold in either there being a relationship between the mother and the father and/or the father forcing himself upon the mother. I note that notwithstanding having had the benefit of legal advice, the mother has taken no steps to initiate court proceedings against the father nor has she taken any steps to move from what is the family home.

I have no doubt that the mother loves her children very much indeed. I have no doubt that they love her. I accept that she is able to give them a good standard of physical care but I am satisfied that:

The local authority set out seven factual assertions which they assert satisfy the threshold criteria of s.31(2) of the Children Act 1989. Taking account of:

The result is that the mother is not a safe parent. The children would be at very real risk of suffering serious physical, sexual, emotional and psychological harm if they were returned to her care. If the father reappears in their lives the risk of harm to the children may properly be characterised as grave. There is no prospect of this mother making sufficient or sustained changes so as to be a safe parent in the foreseeable future commensurate with the needs of the children. I am wholly satisfied that the only safe necessary and proportionate outcome in this case in the welfare best interests of the children is that they are made the subject of care orders and remain in the long term care of their current foster carers.

Accordingly, I will make care orders in respect of both Child A and Child B. I approve the plan of the local authority for both children to remain in long term foster care. I have been told that the matching process of the children with these foster carers will not be complete for about twelve months so as to ensure that the children are truly settled in placement. I express the hope that the local authority at the end of that process will approve the match so that the children who have settled so very well and who are so very happy and so very well cared for by these foster carers may remain living with them. I approve the plan but make no order, as I am requested not to, in relation to contact. The contact will take place directly six times a year. In the intervening time there should be safe Skype and/or telephone contact between the mother and the children.