VN & Anor v London Borough of Brent & Ors

The claimants are sisters. SN is 23, having been born on 21 July 1992, and VN is 22, having been born on 22 January 1994. On 19 November 1996, when they were four years old and two years old respectively, they were taken into care by the first defendant, who placed them with Mr and Mrs K, the second and third defendants, as their foster parents. Their claim for damages arises out of that foster care, it being alleged that they were physically abused, emotionally abused, neglected and exploited by the second and third defendants for much of the nine years that they were in their care, until they were removed on 27 May 2005.

The second and third defendants are sued in trespass and negligence. The physical abuse or assaults amounting to trespass involve allegations that the claimants were punched or kicked or slapped, that they were hit with a rolling pin or a dustpan and brush or a hairbrush, had their hair pulled, and were made to eat food until they vomited and were then forced to eat their own vomit. There is also an allegation that they were forced to eat in the garage and on one or more occasions were locked in there overnight.

The allegations of emotional abuse are that the second and third defendants blocked or sabotaged the claimants’ therapy, vilified their mother, asserting inter alia that she was a prostitute and had killed their father, and exposing the claimants to domestic violence when their own marriage started to break down and their was violence between them.

The allegations of neglect and exploitation are that the claimants were forced to act as cleaners and required to clean not just their own room but the house. They were treated as domestic slaves. They were required to wear old and ill-fitting clothes. They were given unsightly “bowl” haircuts, they were only allowed to take showers once a week and were never allowed, in nine years, to clean their teeth; they were sent to the cold dark garage to eat their supper and suffered badly from sleep deprivation because they were required, both in the evening and early morning, to massage the second and third defendants on a daily basis; they had no or very few toys or games, were not permitted to watch the television, and had to keep the door open at all times when using the lavatory.

The claim against the second and third defendants is also expressed in negligence, alleging that the second and third defendants each failed to protect the claimants from harm by their spouse, failed to look after them properly or promote their welfare, and failed in addition to apply the foster care allowance paid to them by the first defendant for the benefit of the claimants. This last allegation is also expressed as a breach of constructive trust. The physical and emotional abuse or neglect and exploitation is also expressed as a claim under the Harassment Act 1997.

Insofar as the first defendant is concerned, it is alleged that it is in breach of its common law duty of care to the claimants, that duty being established by the statutory duties imposed upon it by the Children Act 1989 and accompanying regulations. It is contended on behalf of the claimants that the first defendant, through the professional negligence of its social workers, approved Mr and Mrs K as foster parents when they should not have been approved, placed the claimants with the Ks when they should not have been so placed, and failed to monitor or assess the placement properly. Had it done so, it is alleged that the claimants would have been removed from the Ks’ care before the end of 2004, instead of May 2005. It is also alleged against the first defendant that it is strictly liable for the deliberate torts or negligence of the Ks, without any fault on its part or that of its servants or agents, either because it is vicariously liable for its foster parents or because the common law duty of care owed by the first defendant to the claimants is non-delegable. The First Defendant relies upon the recent Court of Appeal decision in NA v Nottinghamshire CC [2015] EWCA Civ 1139, rejecting vicarious liability or non-delegable duty in these circumstances, which Mr Johnson, the solicitor advocate for the Claimants seeks to distinguish.

The claim is vigorously resisted by all defendants. The second and third defendants are particularly forceful in resisting the personal allegations made against them, denying that any abuse or neglect or exploitation ever took place. The claimants gave evidence, and called their paternal aunt, Madhu Bhatt, and the foster parent who took over their care after the Ks, Varsha Dalia, together with one witness whose statement was read. Mr and Mrs K gave evidence, as did their sons A, now 29, and B, now 26, both of whom directly refuted the claimants’ evidence of abuse, neglect and exploitation. On the contrary, the second and third defendants’ case is that the claimants were brought up as members of their family, were always treated as such, and prospered under their care. They called ten witnesses to give evidence in court, and four more of whose statements were read, all of whom had known or met the girls with various levels of frequency over the nine years they were in the Ks’ care and never saw anything which caused them any concern. The first defendant relied on the evidence of six social workers, five of whom had been involved to a greater or lesser degree with the claimants during the placement. Each said that they did not have any concern about the claimants’ welfare while they were in the Ks’ care.

The conflict in this case is, as can be seen from what has been set out above, stark. It has been described by both medical experts in evidence, both with wide experience of child abuse, as being either most unusual or unique in that the conflict of evidence is so substantial, giving rise to a wide and varied number of possible findings.

I now turn to the facts as the first step in resolving these conflicts.

Mr K was born in India in 1956, and Mrs K in Kenya in 1958. They are both Indian in origin and Hindu by religion. They both came to live in England when they were young, and were married in 1985 by an arranged marriage. Their two sons, A (born in May 1986) and B (born in October 1989), were born when they lived in Coventry and Mr K worked in a restaurant in London. In 1995, they moved to an address in London, NW9, so that Mr K could be nearer to his work. This is a five-bedroom house with a garden.

In late October 1995, the Ks applied to become foster parents. On 14 February 1996, an initial visit interview with the Ks was conducted by Dawn Samuels from the first defendant’s Family Placement Service. It was noted that, although Mrs K had only relatively recently moved to London from Coventry, she was friendly and sociable and making friends with a group of mothers from her children’s school. Further visits were made, references were taken, and no adverse information was obtained from the statutory agencies. On 24 September 1996, Shiree Davis, a social worker, and Sue Matthews, a senior social worker, completed Form F Part I, dealing with information on prospective foster parents. The form included a description of Mr and Mrs Ks house. It was described as having five bedrooms, two bathrooms, and a large living area. On 4 October 1996, Sue Matthews submitted Form F Part II, the assessment of the Ks as foster parents. Her detailed report included notes of the interviews with the referees, both of whom were strongly supportive of the application and to whom Sue Matthews considered considerable weight should be attached.

It is to be noted that, by October 1996, Sue Matthews was able to report that the Ks had by then gathered a great deal of support networks in the area. Mrs K had two sisters in London and two brothers, one in Oxford and one in Coventry, and had made many firm friends in London through her children’s interests.

Sue Matthews recommended that Mr and Mrs K be approved as foster carers for two siblings aged 5 – 12, either sex. This recommendation was, on 4 October 1996, accepted by the Fostering Panel which noted, on the drawing up of the minutes, that subsequently a variation had been agreed for two younger children: CB/6.

Before becoming the Ks’ foster children on 19 November 1996, VN and SN had had a difficult family life. Both their parents, their father JN (born on 9 October 1952) and their mother Mrs N (born on 30 December 1962), originated in India but were living in London. Both parents had severe alcohol problems and Mrs N suffered from depression. She had to look after a disabled relative and her husband himself had physical disabilities. She suffered post-natal depression after VN’s birth. In October 1996, the family was referred to social services as concerns were raised about domestic violence, and bruising and grazing to both claimants. It is pleaded in the Particulars of Claim that the claimants’ mother admitted hitting her children in the period between February and November 1996. The first defendant agreed to try and find a suitable foster placement for the claimants while their mother, now suffering from a serious alcohol problem, attended a three month residential rehabilitation course for alcohol abuse at Hope House. It was initially the first defendant’s intention that the placement with the Ks should only be a temporary one until the claimants’ mother had concluded her course at Hope House.

In fact, Mrs N was an inpatient there for some seven months and the placement with the Ks was extended accordingly.

Contact with their mother for the claimants was supported by the Ks, but created difficulties. In January 1997, VN stated that her mother had hit her with a ruler and SN said that she had burned her with an iron. No evidence of any injury was found, though Mrs N said that SN had been accidentally burned with an iron when she was 10 months old. On 5 February 1997, VN had bruises on her arm and knee upon her return from contact. She said to Mrs K that her mother had hit her with a slipper and pushed her halfway down the stairs. Mrs N alleged that VN had the bruises before she came for contact. Mrs K said that earlier, VN had returned from contact with a bruise or lump on her cheek and nose and her sister said that she had fallen down the stairs. In April 1997, VN told Mrs K that her mother had hit her with a stick on her back during contact, and that she had a red mark on her back. VN said that her mother was being “naughty” to her. On 28 April, VN had a bruise on each shin and said her mother had hit her again with a stick. On 5 May 1997, VN had a bruise on her leg and said that her mother had done it with a shoe. SN had a mark on her back which she said had been caused by her mother hitting her. SN said her mother hit and punched her on the back when no-one else was around. There were other incidents in June 1997 where one or other of the claimants alleged that she had been hit on her forehead or leg with a shoe and on her elbow with a shoe.

These and other similar allegations against their mother were made not only to their foster carers but also to a variety of professionals. SN told Kelly Francou, a social worker, that she did not want to see her mother as her mother hit her. She felt that she was not safe with her mother. She also told Kelly Francou that she did not want the social worker to talk to her mother about the “hitting” as if she did her mother would hit her “twicer”. SN and VN became very reluctant to see their mother and often became very distressed either at, or sometimes during, contact meetings. It got to the point when they almost had to be forced into the car, crying, to be taken to such contact. SN was very upset about contact and had showed disturbing behaviour at school, including biting a fellow pupil. Mrs N initially denied abusing her children and asserted, together with her sisters, that they were being coerced into making the allegations. The sisters asserted that it was Mrs K who was in fact abusing the children. This matter was investigated by the first defendant and found to be ill-founded.

Indeed, later, Mrs N admitted that she had in fact struck her children. She told Dr Maitra, a psychiatrist instructed in the care proceedings, that she had slapped the children on one occasion only, but told Mr Palmer, the Guardian Ad Litem, who saw the children on ten occasions between 4 July 1997 and 19 February 1999, that she accepted that she had hit the children when she was desperate for an alcoholic drink first thing in the morning or if the children were slow leaving the house or if they had made a mess: CB/362, paragraph 6.14. Mr Palmer was appointed as Guardian Ad Litem on 16 June 1997, after the first defendant took out care proceedings in relation to VN and SN. The witness statements of Kelly Francou were also made for the purposes of those care proceedings, the resolution of which I shall turn to later in this description of the facts: F1, 290 – 309.

In addition to the allegations of physical assault, each of the claimants made allegations that, whilst they were visiting her mother at Hope House, they were subject to sexual abuse, not by their mother but by male friends of hers. SN said that she was made to touch one of the men on the front of his pants and VN talked about one of them “weeing in her mouth”: CB/362, 366, paragraphs 6.14 and 7.12.

When a Child Protection Comprehensive Assessment was commenced on 7 October 1996, it was reported on 30 July 1997 by the Guardian Ad Litem that SN had disclosed to him that she had been made to touch the “bottoms of two men in the presence of her mother”. F2/625. She said that VN had also been made to touch the men but VN did not make any disclosure of this.

It was against the background of allegations of physical abuse by the mother on many occasions and sexual abuse by men at the premises where she was being rehabilitated for her alcohol problem that both claimants refused to have any contact with their mother.

It was the claimants’ case that the Ks poisoned their minds against their mother by telling them, amongst other things, that their mother was a prostitute and had killed their father. The source of these statements, however, appears to be the claimants’ paternal aunt, Madhu Bhatt. She is described in the Guardian Ad Litem’s report of 21 February 1999 as having an idealised view of her brother, the claimants’ father, which she presented to the children. She considered that her brother only started drinking seriously, which led to his death, as a result of his failing marriage. The Guardian Ad Litem, Mr Palmer, notes that relations between Mrs N and Mrs Bhatt were not cordial. He describes Mrs Bhatt’s approval and support of the Ks as foster parents as being unambiguous at this time.

Mrs Bhatt was interviewed on 20 February 1998 by Christine Martin, a child psychotherapist, and Esther Block, a clinical psychologist who had been engaged by the first defendant to advise the local authority and court in the care proceedings for the claimants. F10/4483,4. The notes record that Mrs Bhatt seemed tearful when talking about her dead brother and clearly disliked Mrs N, her sister-in-law. “She believed her brother married beneath himself into a Bombay family of prostitutes (the family lives in the prostitute area of Bombay)”. Mrs Bhatt is noted as perceiving Mrs N as uncaring, almost cruel, to her husband and children. Mrs Bhatt believed Mrs N blamed her husband for the disability with which VN was born, namely missing digits to her hand, and was described by Mrs Bhatt as being hysterical about this. Mrs Bhatt heard stories about Mrs N with other men and said that she was perceived as irresponsible and sexualised. She blamed Mrs N for her brother’s drink problem and suggested that Mrs N had beaten up her husband the day before he was admitted finally to hospital. When she denied any bad feelings or conflict between herself and Mrs N, Christine Martin and Esther Block described that as “dishonest”. F10/4484

On 3 June 1999, it is recorded in a Family Placement Service Link visit that Madhu Bhatt was really only expressing interest in SN and not VN, and had recently been told by the Guardian Ad Litem not to talk to the girls negatively about their mother. F4/1643

The Ks were troubled and upset by the claimants’ distress over contact visits with their mother. They found it difficult to cope with the levels of distress the girls felt about these visits. Mr Palmer, the Guardian Ad Litem, and Kelly Francou both describe occasions when the girls had effectively to be forced into the car, with much distress and crying, in order for the visits to take place. Relations between the Ks and Madhu Bhatt were initially very good. There is video footage and photographs of her at the Ks house and being entertained there for her own birthday. Relations between them soured, however, when arguments developed about Madhu Bhatt’s apparent preference for SN over VN and disputes as to who she should take out when she came to visit.

On 16 June 1997, the claimants were put on the Child Protection Register under the category of physical abuse because of their allegations about their mother. This was extended on 2 March 1998 to physical injury and sexual abuse, in view of the claimants’ allegation about sexual abuse on their visits to their mother at Hope House.

The claimants’ welfare and progress at the Ks was regularly monitored by the first defendant. The children settled in well. There was, however, a problem with transport of SN to the school that she was already at when the placement commenced. The school was a considerable distance away from the Ks home and the school which their sons attended, and Mrs K was not a confident driver. The worry about the journey and time it took to carry out the school runs persuaded the first defendant to arrange for taxis or for Mr K to take SN into school late after he had slept on returning home from his evening work. This arrangement was not satisfactory, as SN often arrived quite late at school. When the claimants’ mother did not leave Hope House as expected after the three month period and the first defendant decided to extend the claimants’ placement with the Ks, it was decided that SN should be transferred to a school local to the Ks. This is what in fact happened on 28 March 1997, and there were no further problems with SN’s attendance at school for the remaining eight years that she was with the Ks.

In May 1997, the claimants’ father died. The claimants had no recollection of going to his funeral, but the second and third defendants’ evidence states that Mr K took them to it.

Mrs N was discharged from Hope House on 17 June 1997. Because a Police Protection Order had been made, followed by an Interim Care Order on 24 June 1997, contact between the claimants and their mother was only by supervised contact. This, as I have already set out, the children, particularly SN, resisted. In October 1997, the claimants’ mother returned to India to attend her sick mother. It was originally to be an 11 day visit, but was extended because of accidents and illnesses, and it later transpired because she had remarried while she had been there to a Mr X and Y , a businessman from Bombay. She did not disclose the fact that she had remarried until July 1998. It is stated in Mr Palmer’s report of February 1999 in the care proceedings that SN considered her failure to return from India to be a repeat of the previous departures of her mother from her life; the reaction to this was uncompromising. As far as she was concerned, she said her mother could stay in India and she need not bother her any more. When she heard of her mother’s remarriage, she said that that was all right as her mother wouldn’t need to bother her any more: CB/360, paragraphs 6.6 and 6.7. It was as if, Christine Martin said, by her protracted stay in India the mother had abandoned them again. It was the final straw.

In Christine Martin’s report of 10 September 1997 SN had been described as being a “powerful personality”, terrified by her anger. F1/360. Dr Roberts noted dramatic exaggerated emotional responses and SN’s need for “omnipotent control” F1/426. Christine Martin also noted the same, as well as the fact that SN was observed to be manipulating the situation by her pretence to cry CB93.

After the claimants’ mother returned to England in December 1997 and the refusal of further contact by the first claimant, medical experts, social workers and the Guardian Ad Litem assessed the situation and prepared reports for the care proceedings, in which, after a five day hearing, the District Judge gave judgment on 19 March 1999. The judge made a full Care Order, ruling that the claimants should remain with Mr and Mrs K indefinitely, without any suggestion, unless and until there was the clearest possible psychiatric indication that they were ready for it, that they might return to their mother. He considered that a move from Mr and Mrs K in the foreseeable future would be very bad for them. It was envisaged that a contact programme would be embarked upon once the claimants had undergone therapy, and that Mr and Mrs K were capable of and would co-operate in implementing such a programme. CB/31-60

During the course of the evidence which led the judge to the conclusion that Mr and Mrs K should be their carers for the foreseeable future, the judge heard that both claimants were very strongly attached to the Ks, that the relationship between Mrs K and the two girls was warm and affectionate, and that Mrs Ks sympathy and affection for them was “unmistakeable”. CB/45 para 33. Dr Maitra, who gave this evidence before the judge in the care proceedings, was concerned that the Ks would not support therapy because of the intensity of their distrust of the claimants’ mother, Mrs N, together with their own first-hand experience of her and the children’s allegations of physical and sexual abuse either by or during contact visits with their mother.

Dr Roberts, whose evidence as to the Ks’ acceptance of therapy and contact was accepted by the judge, described them as “this caring and well-meaning couple”. CB/46 para 35

None of the evidence, nor the detailed assessments, nor the medical reports, contained anything inconsistent with the claimants being loved, well cared for and happy living with the Ks. In preparation for his detailed assessment Mr Palmer, the Guardian Ad Litem, interviewed the claimants on some ten occasions. He described SN as having formed a very close bond with her foster parents and two foster brothers and she very strongly wished to remain as part of their family. She was unrestrained in her expressions of love and affection for her foster family, and was in the habit of writing little cards telling of her love and devotion. She had a strong feeling of hostility towards her mother, who she described as a witch, and said it was the witch’s fault that her father had died. She was always telling her mother, Mrs N, to stop hitting her and stop using the “F” word.

Mr Palmer recorded VN as a happy and very pretty little girl with a great zest for life. She was described as being extremely affectionate and loved physical contact with her carers. She was very fond of the two sons. She wished to be identified as a child of the foster family, and like her sister called the Ks “mummy and daddy”. She was very well settled both in the foster home and at school. Foremost among VN’s wishes was that she remain with the foster carers “forever”. She told Mr Palmer this repeatedly, saying that she did not want to get hit by her mother. She did not want her mother to join her because she hit her with shoes and slippers: CB/360, 364.

Mr Palmer said in evidence in the care proceedings that the Ks knew that Mrs N had been alleged to be a prostitute and promiscuous, but most of the allegations had been made by Mrs Bhatt, the paternal aunt, who the Ks thought was a trouble-maker. In fact, shortly after the judgment in March 1999, Mr Palmer told Madhu Bhatt on 3 June 1999 not to talk negatively to the girls about their mother. F4/1643

The evidence before the judge in the care proceedings that the Ks provided a loving, safe and secure environment in which the girls could prosper and were happy is supported in the contemporaneous social service notes of that time. For example, in the Foster Carer Review dated 20 April 1998, Dyelia Morgan, the social worker for the carers, expressed the view that:

“Mr and Mrs K are excellent carers and they have provided a wonderful family experience for two very needy children. I am happy to support their re-approval as task-centred carers for school age children 4 – 12.” (F4/1614)

She described the placement as being stable and secure, with the Ks having supported the girls through therapy sessions, traumatic contact sessions, the death of their father, medical problems and other areas of difficulty. The children appeared to her to be happy and thriving in the placement. The team manager, Sue Matthews, noted that both Mr and Mrs K had worked extremely hard to support the two little girls. They had treated them both equally and acted as advocates in the face of what they perceived as unfair treatment from the claimants’ extended families. She stated that having seen the family and the girls together they were obviously confident, warm and relaxed. She congratulated Mr and Mrs K and their sons and extended family in providing such a safe, caring and nurturing placement. It had been a very dramatic start to their fostering career: F1/1614, 1615.

In her Placement Report for Foster Carer Review on 6 February 1998, Kelly Francou described the Ks as having tried their best to make contact with the mother work, and to manage the children’s behaviour afterwards. She was very supportive in her comments about their efforts to deal with the situation: F1/1593, 1594.

From February 1999 until October 2002, Nancy Logue was the senior social worker for SN and VN. She saw the children on a regular basis and reviewed the placement. As Kelly Francou had done, she filled in the form for Looked After Children Review of Arrangements when she conducted her review. Such a review would involve visiting the children some three or four times, usually on arranged visits but very occasionally on unannounced visits. The section of the form stating whether the children had been seen alone or with carers was sometimes filled in and sometimes left blank. She notes in her review of 9 June 1999 that SN is a good and serious pupil, trying hard with all her work and benefiting enormously from a very good relationship between her teacher and Mrs K. Her attendance was 100% and she produced very good work indeed. SN continued to state categorically that she did not wish to have contact with her mother. She had, however, since the court ruling in March 1999 had given some permanency to their placement, become noticeably more positive, playing well with her sister, with whom she had an excellent relationship, enjoying gleeful jokes and active energetic playing: F2/725. VN also was reported as having an excellent relationship with Mrs K, doing well at school, and not wishing to see her mother: F2/735. The reviews and reports of Nancy Logue are thorough and detailed as the care experts accept.

In the review of 20 December 1999, both girls are continuing to achieve well at school and it is noted that SN talks with Mrs K about any problems she has at school. SN is to start therapy in January and Mr and Mrs K have already attended therapy fortnightly to help the girls manage their therapy: F1/767, 778.

In 2000, the first defendant considered whether the Ks should be made permanent foster carers for the claimants. A Foster Carer Profile was prepared by Dyelia Morgan on 16 February, in the conclusion of which she stated:

“It is my view that Mr and Mrs K are extremely motivated and committed to caring for these children on a permanent basis until they are 18 years and beyond. … Their development as foster carers has seen growth in their knowledge and confidence in dealing with difficult situations and working positively with social services in the interest of the child. … They have tried to get the best help for the girls and be as supportive and nurturing as possible. The Ks have offered a valuable fostering resource for Brent. Although it would be disappointing to lose them as task-centred carers, I believe that they will offer S and V an extremely safe, happy and settled family life that is unlikely to be bettered anywhere else. It is significant to note that that is very much what both they, their boys and S and V want. I would fully support them in their application.” (CB/155 – 158)

The first defendant arranged a meeting with the deputy head at Hyde Primary School and with SN and VN’s respective class teachers. All three supported Mr and Mrs K as permanent carers for both the girls. They found Mrs K very helpful, friendly and child-focused, she had daily contact with the school, and was always on time to pick up and drop the children. They all felt that the K family were very supportive and would provide a loving and caring environment, with all the children appearing to be happy and content. They were sociable, with the girls inviting their friends round and vice versa, and “no-one would ever know that S and V were fostered – girls are treated very much a part of this family”: CB/7 – 8.

The references from Bernadette McHugh, the Ks nominated carer for the claimants, and Rita Bell, a close family friend, were equally supportive. Both recommended Mr and Mrs K as permanent foster carers for the girls, Mrs McHugh saying that when they were placed with the Ks “the gates of heaven opened up” for them: 28 March 2000, CB/9. Rita Bell, when interviewed on 3 March 2000, said that Mrs K was a very good mother and Mr K a good father. They were supportive to both their own children and their foster children. They had a good support network and were caring and nurturing individuals. Both their own children and the girls responded well to them. They were strict but did spoil them: F1/78, 79.

A detailed profile of SN and VN was prepared for the application as permanent foster parents by Nancy Logue (Form E, Part I and II). This detailed report and analysis concluded that the placement with the Ks met all of the requirements which each of the children needed, including love, stability and friendship: CB/191, 212.

The Ks were accordingly recommended by the Fostering Panel (CB/11) on 24 March 2000 (F2/916.4) and approved on that date.

SN did attend therapy in 2000, but resented it, whereas VN was found not to require therapy: F2/855. SN made her attitude towards therapy very clear. On 24 January 2000 she told the therapist that she did not want to come and wanted to go home to “auntie” (Mrs K). On 31 January 2000 she said she was missing school, focused on the dolls house in the therapist’s consulting room, and said “do you know what I had to do to get here today … I woke up, cleaned my teeth, walked down the stairs, had my breakfast and watched two hours of children’s TV”: F10/4756, 4758. On 9 March 2000, she rushed out of the room during a therapy session, and on 13 March 2000 she wanted to ensure that she folLogued and was with Mr K for all the time: F10/4773, 4774. On 3 April 2000, she sought to irritate the psychologist, Dr Beryl Cooper, and on 7 April 2000 she said that she did not want to meet Dr Cooper in spite of Mr Ks “helpful encouragement”. He had attended at the therapy together with one of his sons, SN’s foster brother. SN said she wanted to stay at home with her family and play Pokemon. Dr Cooper concluded that it would not be helpful to force her to meet with her: B10/4783, 4787.

A meeting took place on 8 June 2000 between Dr Cooper, Christine Martin, Esther Block, the first defendant’s link worker Fouzia Darr, who had had considerable contact with the claimants, and Nancy Logue. The therapy team’s experience of the case was that the Ks did not want therapy for SN if it was going to distress her and did not appreciate the need for therapy fully enough to sustain them in their efforts to support SN in her attendance. SN had, therefore, been able to successfully engineer an end to therapy. Fouzia Darr stated that she believed that the Ks had supported therapy to the best of their ability and Nancy Logue stated that the Ks took the line of least resistance with the children and SN exploited that approach: F10/4792. On 19 June 2000 Sandra Oxley, a social worker, in reviewing the placement noted that the foster carers had not been supportive of the older child’s therapy and it had broken down. Fauzia Darr replied on 20 June 2000 rejecting the statement that the Ks had not been supportive of therapy and setting out her reasons for saying this: SN would refuse to go or break down – the Ks would bribe her to go and on one occasion took their son, in order to persuade her to get in the car. They did not like to force her when she was already so distressed. F7/3223, 3225. SN exhibited disturbed behaviour after these therapy sessions. F7/3225.

Contact with Madhu Bhatt had become problematical because of her suggested favouritism of SN over VN and her refusal to go out with one or both girls rather than with all the children. The claimants had become increasingly unwilling to go out with Mrs Bhatt. Contact ceased with Madhu Bhatt in January 2001 after the claimants refused to continue with it.

Nancy Logue’s review on 19 June 2000 noted that SN’s relationship with the Ks and their sons was excellent. She called the boys her brothers and they shared computer games and played and squabbled together. Her school reports remained good, very good and excellent. VN’s school reports continued to be excellent, and she also had a good relationship with everyone. She was looking forward to going to India with the family. Nancy Logue described VN as telling her all about her pranks and shrieking with glee. VN did not want contact with Madhu Bhatt, but SN did: F2/839, 856.

In September 2000 Mr K gave up his work and said he and his wife wanted to foster further children.

In Nancy Logue’s review of 27 November 2000, it is noted that VN is one of the brighter children in her class, that she is helped at home with her homework, and that she is happy and progressing well: F2/908.

In the review of 11 May 2001, SN’s interests are described as watching films and videos, Indian films, Pokemon and an Indian board game called Carrom. VN is no longer the “baby”, continues a good relationship with the Ks and their two sons, who she knows as brothers, and they all link up as one family. VN’s interests were described as the same as her sister’s, with the addition of dancing and drawing, and she had shown off her artwork and poems to her social worker. She sometimes helps in the garden watering plants: F2/908, 909, 939, 944.

It is noted in both these reviews of 11 May 2001 that the Ks now foster two little boys, aged 4 and 5, in addition to the claimants. This is a reference to the fact that on 13 February 2001 two young boys, X and Y, were placed with the Ks on an emergency basis. Then 4 and 5, the boys had witnessed their mother assaulting their father, who had died from his injuries. The mother was later charged, and convicted, on 16 November 2001, of murder. The grandparents had also been arrested and held in custody but were later released with no charges brought. X gave a very distressing and detailed account to the police of what he had seen and the gruesome manner in which his father was killed: F6/2616. A care order was made in the first defendant’s favour for the X and Y brothers on 2 August 2001.

On 27 June 2001, a Foster Carer Review was carried out by the Fostering Officer and reviewed by Sue Matthews, a senior social worker. One of the visits carried out for the purposes of this review was unannounced. Mr K objected to this on the grounds that he found it intrusive. The first defendant’s evidence was that this was a common response from foster parents, though I have noted that Nancy Logue made unannounced visits to the Ks and had no problem in being accepted when doing so. The review concluded that the Ks were to be commended for the excellent work they had done with the N girls and with the P boys. There were reservations about their attitude towards savings and the need to accept that there may be some intrusion in family life when the social workers had responsibilities for the children: F4/1867.

In November 2001, a consultation document was filled in by VN. To the question whether there was anything that she would like to see changed about her care, she replied “nothing, I like it here”. This echoes the written comments made by VN at her school, which I shall set out later in this judgment.

A Supervisory Support Record of 5 February 2002 records the comments of Sandie Beswarick about the Ks:

“This home provides a well-balanced and stimulating environment for the children. The foster children are treated as members of the family. Mr and Mrs K are committed foster parents who take the task of fostering very seriously.” (F4/1896)

When Sandie Beswarick and Dyelia Morgan filled in Form F1 Part V in connection with the application for approval of the Ks as foster carers for the X and Y boys, they both supported the approval of Mr and Mrs K as long-term foster carers for X and Y. They stated “they have provided a safe and supportive environment for them, that is culturally, racially and religiously appropriate.” Sandie Beswarick stated she had observed the two boys grow, develop, thrive and express happiness within the placement. There was a significant level of attachment to all family members and she believed that the children’s needs would be fully considered and adequately met: CB/273. In her profile on the Ks in Form F2 for the permanent placement of the X and Y brothers, Sandie Beswarick noted that the Ks appeared to manage their finances adequately and the children always appeared to be very well cared for. At that time, there were no significant debts, although neither of the Ks was then employed: CB/286, 287.

The Adoption and Permanency Panel approved the placement of the X and Y brothers with the Ks on 8 July 2002. Both Sandie Beswarick and Dyelia Morgan gave evidence, and the Panel recommended that the Ks were approved as long-term foster carers for the X and Y brothers: CB/300 – 309. Sandie Beswarick had noted Mr K as being chauvinistic, inflexible and stubborn, but was able to work through the difficulties. F6/2612, 2704, May and July 2002.

In the review of 14 October 2002, Nancy Logue noted that VN’s work was classified as excellent at school and her behaviour impeccable. She described VN as a happy, fun-loving girl who made lots of friends easily. As this was her last review, Nancy Logue said that she was sure that the new social worker would get along fine with VN as she was a fascinating little girl who was interested in everybody: F3/1092, 1093.

An equally positive review was expressed on 24 March 2003, when a new social worker, Helen Skillen, noted the excellent progress of both girls and their enjoyment of having new younger brothers to play with. Both were happy, settled and content, with no emotional or behavioural difficulties: F3/1161, 1172.

The review from another new social worker, Sarah Pinnington, on 15 September 2003 was also positive, stating that SN and VN get on well with the K family and the X and Y brothers. The review meeting, which took place on the same date, is equally favourable, with another social worker present, Dawn Samuels, stating that she had known the family in a more distant way for a long time and believed it to be an excellent placement: F3/1246.

The review on 2 March 2004 by the social worker Sarah Pinnington is equally positive and reports no concern about VN or SN. The review meeting of the same date with Sarah Pinnington and Christine Mannington was in similar vein. F3/1272-1287.2, 1297-1300

Problems were, however, developing at this time in relation to the Ks attitude towards therapy for the X and Y brothers. A new social worker for the X and Y brothers, Khalid Quadri, was appointed to their case at the end of 2003. A difficult relationship developed between him and the Ks as exemplified by the incident when he was seeing the X and Y brothers alone, and said that Mr K intervened and objected to this which evoked the response from Mr Quadri that Brent Social Services were the parents, and the Ks the carers with the consequence that Brent could see the children alone when they wished without his permission.

On 23 April 2004 a professionals meeting took place about the X and Y brothers. Concern was expressed about the Ks negative attitude towards therapy. Contact with the boys’ grandmother had caused problems and the grandmother had expressed the view that the children were scared of the carers. Mr Quadri said that he thought the boys were scared, and another social worker, Irene Hackett, mentioned a similar concern. The Ks kept on saying to the social workers that the children were not ready for contact. The Ks had expressed the view that the boys had found visiting their mother in prison serving her sentence for the murder of their father, very difficult and very distressing. They took the view that contact with the family as a whole, or therapy aimed at that, caused problems in the boys’ lives. Other social workers for the boys had not found similar problems. Thus at the initial Permanency Planning Meeting held on 29 May 2002 Dyelia Morgan, Sandie Beswarick, the boys’ new social worker, Antoinette Harris, met to discuss permanency planning in relation to the X and Y boys and identified the strength of the foster carers as “very positive in their approach to children. They are lavish with praise and very comforting for the children. They have continued to be seriously dedicated to SN and VN”. Both carers were described as being excellent with young children, always able to prioritise the children’s needs. F6/2620.1, 2620. 2.

The difficult relationship between Mr Quadri and the Ks continued and in 2005 they refused to allow him to make unannounced visits and requested his removal. He in turn criticised the Ks for being resistant to therapy sessions for the brothers and stated that they were both judgmental and negative towards the maternal relatives of the children.

On 20 May 2004, in a letter from the first defendant Mr and Mrs K were informed that if co-operation with the social worker did not occur, the worse case scenario would be that the placement would need to end; therapy for the boys was to be reviewed and Mr and Mrs K agreed to support it. F7/3401,3402

The relationship between the Ks and the brothers’ social workers did not improve and in February 2005 the first defendant decided to remove them. Because however the Ks, and later only Mr K, applied for a residency order in respect of the X and Y boys under the Children Act 1989, it was agreed to delay their removal until his application was determined.

The review in respect of the girls on 26 August 2004 and the review meeting of the same date, note the outstanding performance in school by both girls and their receiving of merit awards from the Mayor for their excellent educational achievements in November 2003. The girls still resisted contact and the importance of building up an album of information about the birth family, it’s history and the children’s past was emphasised. The issue of savings was raised. This had been a continuing area of dispute between Social Services and the Ks in spite of the fact they had reached an agreement on 9 February 2001 with Barry Ryan, the then Service Unit Manager for Family Placements, that they did not have to open a Building Society account but could build up money to buy gold in the girls’ late teens, and also for use in taking them on holiday to India. No official policy was in place but in fact the Ks were prevailed upon to open a Building Society account which they did by the end of 2004.

On 14 February 2005 at a Review Arrangements meeting in relation to the claimants it was noted that the removal of the boys would have repercussions on VN and SN and there should be a review without the children or foster parents present. F3/1386. When Sonia Patel, the then social worker for the claimants reviewed the situation on 15 February 2005, she described the placement as “Very stable. With good progress still being made at school.” F3/1412.

On 3 March 2005, Sonia Patel made a home visit to the Ks house. In her report (F3/1420-1423) she describes SN saying to her that she was happy with the way that things were, and that she was happy at both school and home. NS was positive when she spoke about the Ks and said that she and VN were planning on getting a present for their mum (Mrs K). She enjoyed going to the temple with the Ks and spoke good Hindi. Her bond with the Ks was observed to be warm. SN showed Sonia Patel her bedroom which she shared with her sister. Sonia Patel noted that it was a box room with a bunk bed, small in size and cramped with toys and games for the children and clean and tidy. VN also said that she enjoyed being at school, that Mrs K attended the parent’s evening and that she was happy with the way things were both at the school and home. VN was very positive when she spoke about Mr and Mrs K, saying that she enjoyed going shopping with her mum and that things in general were good for her. She attended homework club and dance classes on a regular basis and she showed Sonia Patel a dance that she was going to perform with other pupils at her school.

It is now apparent that in 2005, and perhaps to a lesser extent in 2004, the Ks were experiencing marital difficulties. By May 2005, Mrs K had already instructed solicitors with the intention of obtaining a divorce. They began to vie with each other for the attention and affection of the children so as to ensure that they would keep them. Serious arguments developed and the police were called. The first detailed police record is on 23 June 2004 when the police were called to the Ks address after Mrs K had alleged that her husband and she had had an argument, and that he had pushed her. When the police arrived, there was no answer and no further contact was made. There is a brief reference to an earlier complaint emanating from this house in 2000 but there is no detailed police report or note of any such occurrence. There is no proper basis upon which the court can draw any safe inference upon any event, if such occurred, in 2000 in the absence of a complete lack of any information about it.

In 2005, it appears that the police were called by Mrs K to their house; on 25 May 2005, 22 June 2005 and 14 August 2005. Each of these related to arguments about the divorce but one, on 22 June 2005 involved an allegation that Mr K had grabbed Mrs Ks arm causing bruising and swelling. It is clear from the reports that the dispute was a very bitter one. Mrs K said that she was divorcing her husband because of his gambling habit; that she had been abused by him for years and that he had once been arrested when they lived in Coventry for assaulting her. There is no evidence before the court relating to this allegation. On 25 May 2005 when the police visited the 2 sons and the 4 foster children were all present in the house. Mr K informed the police that he had raised with Brent Council the issue as to the way Mrs K spoke to the children when she became cross. F15/6895. On 22 June 2005 it was noted in the police report that Mr K had made one of the foster children write a letter to Social Services stating that Mrs K was abusive and that the children were then taken away. The reason for doing that was that he wanted to get Mrs K arrested and taken out of the house so that he could have it for himself. Mrs K told the police that the marriage had been failing for a long time.

On 19 May 2005 Mr and Mrs K informed their link worker, Illrette Cummings, that they were divorcing. In fact the divorce proceedings had been commenced on 3 May 2005. Ms Cummings said that she was most concerned about she was told about the debts acquired through gambling by Mr K of at least £100,000.00. Mr K said he would do everything possible to ensure Mrs K would not be able to work as a foster carer again and would ensure she went to prison for the way she treated the children. He said that Mrs K was angry and shouted a lot and hit the children. F8/3541, 3542.

On 25 May 2005 Mr K gave Ms Cummings a letter written by SN alleging that she had been struck by Mrs K. In the letter SN writes that Mrs K swore at them, shouted, hit her and VN with various objects such as a pan and brush and shoes, and stated that when she grew up she would die a very bad death, saying she was just like her real mum, a snake and a piece of rubbish. There is a dispute as to the circumstances in which this letter was written. It is common ground that it came to be written because Mr K asked SN to write it. What she was asked to write however is in dispute; Mr K says that he asked her to write the letter, using her imagination and ascribing to Mrs K what in fact had been done to her by her mother. The claimant’s case is that SN was asked to write what Mrs K had done to her.

As a result of this letter, the boys were removed from the Ks on 26 May and the claimants on 27 May 2005 and each placed with alternative foster parents.

The first defendant rightly reported the matter to the police. The claimants were interviewed on 15 June 2005. SN said in that interview that it was ok at first and then when she grew up and did a lot of bad things, Mrs K hit her with a hairbrush. Mr K would tell her to stop as would A and B. She used to throw things at them and hit them with a dustpan and brush giving her marks and bruises and cuts. That would happen when she was angry with SN. These bruises were on SN’s back usually but there would be red scratches and bruises on her legs. No one else apart from her sister saw those bruises. She used to hear Mr and Mrs K arguing and shouting at each other and A or B would go downstairs and tell them to stop it, or break it up. Mr K used to gamble. Mrs K used to hit her whenever she was naughty. She also used to hit her with shoes and hit her sister but not as much as her. She could not remember the first time that Mrs K hit her, nor the last time, perhaps when she was in Year 7 when she was eleven. At the time of the interview she was 12 and a half. She said that when she had marks on her back they were not like proper scratches but long red lines but she didn’t know what caused them. They were not bruises on her back but cuts. Mostly Mr K did not hit her but one or two times might have given her a little slap on the face.

In her interview VN said that it was good living with the Ks and said there was nothing bad about it. She said that the reason for them leaving was because Mr and Mrs K were fighting and Social Services thought it would be better for them to take a break from the house. The fighting was verbal fighting. Their arguing made her worry that something bad might happen to one of them. If she was naughty she sometimes might be shouted at and given a smack on her face. She was not able to say when that first happened. When asked whether anyone had hit with anything other than their hand, she said that she could not remember. She had not seen Mr or Mrs K use anything else to hit people with other than a hand. Her sister received scratches from being hit a few months ago on her back but she didn’t know which way the scratches went. When asked whether anything had concerned her or alarmed her when living with Mr and Mrs K she said “just them fighting, between themselves”.

Mrs K was interviewed by the police but there is no copy of that and it appears that Mr K was not interviewed. Neither of the Ks were prosecuted.

On 27 May 2005 the first defendant conducted a strategy meeting about SN and VN. The meeting included Illrette Cummings, Dyelia Morgan, Khalid Quadri the X and Y brothers’ social worker, Sonia Patel the student social worker for SN and VN. The record of the meeting shows that Dyelia Morgan said that no major concerns had been flagged but the school had expressed concern over the children coming late to school and their appearances being unkempt at times. This can only refer to the first 3 months when the placement was temporary and SN had not moved to a school closer to the Ks’ house. Dyelia Morgan is also recorded as saying that she initially had concerns about the placement apparently as Mr and Mrs K found the involvement of Social Services intrusive. This was balanced however by the fact that this was a good cultural match and the children were doing ok. The decision was made to note that the carers preferred to be left alone. She also had reservations about the placing of the X and Y brothers there as that might be the last straw. This expression of concern is to be compared with Dyelia Morgan’s statement and indeed her contemporaneous comments about it. On 20 July 2005, it is recorded that the girls had indicated that they did not wish to return to the Ks.

On 25 September 2005 DJ White gave judgment on Mr Ks application for a residence order in respect of the X and Y brothers. The judge refused Mr Ks application but noted that the Guardian Ad Litem had said in her evidence that she would still have supported the boys remaining with Mr and Mrs K were it not for the breakdown of the marriage and the allegations and cross-allegations made at the time. The judge said:-

“I have no doubt from the background here that Mr and Mrs K stepped up to the parapet, to coin a phrase, when the boys’ need was greatest. That they cared for the boys. They loved them and they provided care for them initially which they desperately needed. With the breakdown of their marriage however circumstances have changed, and like the guardian it is probably not necessary to dwell unduly on who is right and who is wrong, who is telling the truth and who is not about all the circumstances leading up to the breakdown of the marriage.”

The judge cited the views of Dr Dora Black of the Traumatic Stress Clinic who expressed the view in January 2002 that the older X boy must not be forced to see his mother or his grandparents against his will. The matter should only be raised again after he had had therapy. The problems which affected the Ks in the antipathy towards therapy and contact can be seen in Para 14 of the judge’s judgment citing the guardian’s description of B by Mrs K. The boys, when they first went to the Ks, were scared, nervous, lost, bewildered and perplexed, and feared that their mother would kill them. B was so disturbed that he would not go to the toilet but excreted in the bedroom dustbin. In one of her reports the guardian said that Mr and Mrs K comforted and cared for the boys, providing consistent parenting and very positive nurturing. They handled the disclosure appropriately and professionally, and had been carrying out very good parenting. There was a strong attachment between them and the boys who were well settled emotionally.

The rejection of the need for therapy by the Ks was one of the causes of the difficult relationship between them and Mr Quadri.

On 18 November 2005 there was an End of Investigation Meeting conducted by the first defendant. It is recorded that Ms Cummings explained that Mr and Mrs K were good at promoting positive relationships between the boys and girls and that for a long time she had been of the view that the children were in a good placement. She was aware that the girls wanted to have contact with the boys since leaving the placement. Ms Patel noticed the bond between the Ks and the girls appeared to be very strong, natural and warm. There was nothing untoward going on from her perspective. Ms Patel said that after the girls had left the Ks, they did complain about eating separately at the Ks and said they had never been taken on trips on the 2003 visit to India. It was however noted that Mr Quadri had a very different view from his observation. Ms Patel said that at the time she was against the girls being moved from the placement; from her experiences and observations it was not the right decision. Ms Morgan also said that she had mixed feelings about the children leaving. Various issues were raised about kicks; not understanding the need for therapy, not being happy with unannounced visits, nor being happy with the social worker seeing the children alone (though Ms Patel did not experience any such difficulty or unhappiness when she visited the girls), not complying with the department’s savings policy, not attending, as far as Mr K was concerned, training, negatively influencing the boys’ contact arrangements, not allowing contact in their home, complaining about inexperienced social workers (Mr K challenging or raising his voice or shouting at social workers), Mrs K’s inability to deal with the girls’ disclosure of sexual abuse affecting her judgement as to the girls’ birth parents, lack of support network, lack of therapy, breakdown of the marriage, a lack of children’s clothes, not being in good condition when they left the Ks and finally, on the children’s visit to India, their being left alone with Mr Ks sister for five weeks instead of travelling round the country with the rest of the family.

These issues in the main part have been adopted by Mr Johnson, the solicitor advocate on behalf of the claimants, in his criticism of the first defendant and the Ks. Many of these issues are however highly contentious with, on the face of the document, conflicting evidence. I shall deal with these issues in so far as they have been adopted by Mr Johnson. The Strategy Meeting noted Mrs Ks police interview and the allegations that each of the Ks made against each other. The lawyer present, a Mr Gandhi, said that Mr K did not deny any of the allegations made against him in court, which is presumably a reference to the judgment of DJ White on 25 September 2005. The judgment does not however deal with the extent of gambling debts admitted nor whether Mr K gave the children money to encourage them to say negative things about Mrs K nor that he had subjected her to domestic violence. I am not sure of the precise basis for Mr Gandhi making this statement, though he is right in later stating as is recorded, that Mr K had asserted that Mrs K had hit the girls.

The meeting concluded with a recommendation that Mr and Mrs K should be deregistered as indeed they subsequently were in 2007. Mrs K complained about this decision to the Ombudsman, but her complaint was dismissed.

On 6 September 2005, Mrs K obtained employment at The Michael Sobell Sinai School as a lunchtime and break time supervisor, one-to-one with children with special educational needs and with small groups of children. In a reference from the deputy head teacher in 2013, it was stated that Mrs K had always been found to be patient with children, and supportive of their needs. She was keen to help the teachers within various year groups or departments and happy to work as part of a large team. The Deputy Head Teacher had no concern with Mrs K working one to one with children, she had always shown kindness and professionalism at all times. A second reference on 5 December 2013 from Mrs Ks line manager at the school described Mrs K as reliable and hardworking, discharging her obligations towards the children scrupulously and stated there had never been any concern whatsoever about her behavioural performance in the school setting in terms of her relationships with the children with whom she worked.

It is accepted in the claimant’s skeleton argument that there is nothing in the social service records that shows that the first defendant knew or suspected that there was ongoing physical ill treatment of the claimants. Indeed the voluminous social service records extending to more than 15 lever arch files, contain nothing which shows or suggests signs of or concerns about any physical abuse of the claimants by the Ks. It was only when Mr K handed SN’s letter to Ms Cummings that the issue arose. It is also accepted by the claimants’ solicitor advocate that the claimant’s medical examination showed them to be in good health. This is the case throughout their time in care. He also concedes that the educational records show little in the way of issues with the exception of SN being late to school during the first three months of temporary placement. In fact they are almost entirely unstinting in their praise of the Claimants’ achievements, attitude, popularity and happiness.

These are consistently good throughout. They show happy, engaged, hardworking children doing consistently well in their work. In 1998 at Hyde Primary School VN is described as a happy, mature, confident child, a popular class member who has made friends. She is enthusiastic and has good self esteem. F12/5636. Both sisters are described as being “two very good children” at the Hyde. In a later report in 2000 VN is described as making friends easily, achieving excellent results. She likes performing, is able to present herself well, has a cheerful disposition and is extremely likable. “A pleasure to teach”. F12/5639. VN herself commented in 2000 about how much she liked school and particular subjects and when asked if there is anything at school that she worries about replied “no but if I have a bad day I talk to my mum and dad”. F12/5650. The excellent references from the four teachers and the Deputy Head Teacher in 2000 confirm the all round good performance of the girls at school up to that time.

The same pattern continues through to 2004. In 2003 SN is described as extremely well mannered and cooperative, good or very good in all subjects. F12/5265. Again in 2003 when asked to comment about whether there was a teacher or anyone else who really helped her with her education SN replied “my mum and the teachers help me”. What she liked doing out of school was watching telly, dressing up, reading and computer games. F12/5263. VN is described in 2003 at the Hyde as gaining much from school and giving much in return, increasingly confident and enthusiastic, with well presented work, an indication of the pride she takes in it. In that year VN wrote a lengthy comment in which she said she felt happy because she liked everything and always wanted to be in the juniors. In an enthusiastic note she said that literacy was her best subject, she loved it so much she wanted to cry. F12/5682.

After she left Hyde Primary School SN went for a short period of time to St Mary’s but was bullied there and so was moved to Preston Manor. In 2004 she was described as a lively and enthusiastic person showing good motivation with her work. She had performed well, participated well in group work and class discussion. VN is described in 2004 as being a “real character” and a lot of fun to have in the class. She had a positive attitude to most learning tasks. F12/5696.

The Preston Manor High School report for SN, 2004-2005, in July 2005, the month after she had been removed from the Ks, stated that she had maintained her hard work and positive behaviour throughout the year. She proved to be a valuable asset to the class, producing high standards of work and providing positive input in class discussions. She was a very pleasant young lady and the member of staff looked forward to watching her progress into year 9. F12/5306. She had a particularly complimentary report in Drama in which she was making excellent progress. F12/5308. On 21 June 2005 the English and Literacy teacher had written to Mr and Mrs K as follows:-

“I am writing to congratulate S for making very promising progress in English this term. S has made superb contributions to discussions in lessons and has put enormous effort into producing class work of a high standard. S is a most enthusiastic reader and writer. I have been very impressed by the commitment that S has shown in English so far this term. With sustained effort I am certain she will enjoy every success in the future. Congratulations!” F12/5251.

The end of year report for VN in 2005 was equally good. She was praised for consistent hard work throughout the year, achieving a good standard of results in all areas of learning. She was described as diligent and conscientious in her work habits and able to work independently. She took pride in her work, had a mature outlook on her learning, and a positive approach. She displayed confidence within the classroom and really contributed to class discussions. Her ideas and insights were often sophisticated. F12/5702.

There are also letters and drawings in the school bundle. One from SN when she was 7 years old stating that she likes school very much, had some lovely friends and loved her aunty, uncle, brothers and sister very much. The letter states:-

“I love aunty and uncle because they care for me and love me very much. I love my brothers because they do funny jokes on me and make me laugh. I would like to stay with my lovely family for ever and ever.” TB/676.

VN wrote a letter when she was 6 years old with a drawing which is in the school file. She described having a birthday on 22 April 2000 in which she had loads of presents and a big party and said that Demi was her best friend. TB/677. Another letter from SN when she was 7 also in the school file describes how she started swimming and continues “my friend is Mayuri because she lets me come to her house and she comes to my house…I love my house very much.” TB/678.

Mr and Mrs K produced a bundle of family photographs starting in 1998 and continuing to 2005. I was informed this was a limited selection of the photographs taken, and that there were others which could not be found and which went with the girls when they left. As with any photograph they each show a particular moment in time and a particular mood or facial expression at the time they were taken. They do, however, represent a photographic history of every year from 1998 to when the girls left in May 2005. They need to be looked at as a whole, but in summary they show birthday parties held at the Ks’ house for SN or VN, or at a Sports Centre, or McDonalds at the birthday party for Mayuri, SN’s friend. They show family gatherings, the girls performing on the stage at school, a visit to the Neasden Hindu Temple, to a park in North-West London, to India in 2000 and on the beach in Brighton. They show the girls dressed in various different items of clothing including saris and school uniform.

The overall impression created by them is of a happy, integrated family enjoying themselves at particular events or outings or on holiday.

There is also a video showing various different events with the Claimants at home with the Ks, at a birthday party, in India travelling around with the Ks and A and B, and dancing at a birthday party. The Claimants accepted that these films and photographs were genuine and not faked and VN said in evidence that she could not explain them. SN said that there were some good times as well as bad.

The resolution of such a stark conflict of evidence is often a difficult task. It requires a thorough and careful analysis of the facts and of the evidence. I am particularly conscious of the fact that the emotional disruption to the lives of the Claimants from a very early age and years in care need to be taken into account when assessing their evidence. They are both intelligent and articulate young women and have achieved considerable academic success, having graduated from university or being about to do so. This is a serious achievement for which much credit is due. Professor Maden, the consultant psychiatrist for the First Defendant, said that only a very small proportion of those in care achieve such academic success with outstanding performance at school at the level achieved by the Claimants. Such success puts them in the cream of the cream in educational attainment for looked after children. Nevertheless the serious disruption in their early lives will have taken its toll, and may explain the fact that they were diffident rather than confident when giving evidence, and indeed somewhat apprehensive. The court can, in any event, be an intimidating experience but the difficulty with giving evidence about their early lives and the fact that they were in care from such an early age may help to explain that. One of the striking features about their evidence was the number of occasions that they each said they could not remember, even when prompted with clear photographs or the videos.

Mr and Mrs K gave their evidence in a confident, coherent and, on occasion, emotional manner. Both struck me as decisive people who knew their own minds, good communicators who enjoyed much of life. Their sons, A and B were also confident and highly intelligent and A, in particular, performed the role I permitted him, as occasional advocate on behalf of his parents with considerable coherence and skill. They were very supportive of their parents in their evidence and I take into account that, as it might be said, the Ks were a tight-knit, supportive family group in presenting their case.

A considerable number of witnesses gave evidence as to what the Ks family were like and what they saw of the Claimants, some over many years with regular contact through the school or as relatives. Those who saw the most of the Claimants and had real contact with them were inevitably the most helpful. Thus Bernadette McHugh and Rita Bell, each of whom saw the Claimants on a regular basis and had personal contact with them, were of greater value than those witnesses who saw them less frequently.

I have taken into account those witnesses whose statements were admitted in evidence under the Civil Evidence Act or otherwise were not available for cross-examination, and their evidence must be considered with that in mind. It is inevitably, therefore, less valuable than had they given oral evidence. This is particularly so in the case of Dyelia Morgan because of the apparent inconsistency between the contents of her witness statement and her reports on the one hand, and what she said at the meetings which took place in 2005 after the Claimants had been removed from the Ks.

The care experts gave helpful evidence though I found Mr Rod Jones, the care expert on behalf of the Claimants, to be, in some parts of his evidence, pedantic, relying upon form rather than substance, and relying heavily on hindsight. Ms Felicity Schofield, the care expert on behalf of the First Defendant, gave clear pragmatic evidence based on experience.

It was agreed between the consultant psychiatrists, Dr Trevor Friedman on behalf of the Claimants, and Professor Anthony Maden on behalf of the First Defendant, that neither of the Claimants suffered or has suffered from an identifiable psychiatric illness. SN showed signs of a maladaptive personality including difficulties with intimate relationships and lack of confidence and self esteem but VN did not. If there had been abuse as alleged that could explain SN’s psychological problem but it could also have been caused by her early childhood with her alcoholic parents, abuse or neglect at her mother’s hand, divided loyalties between their natural mother and the foster carer and being in care. They both agreed that it was common for children not to disclose abuse or neglect when it was ongoing, and that the case was very unusual because of the extent of the conflict between the claimants’ and defendants’ accounts. The employment prospects for both young women were good. No treatment was necessary for VN but SN might possibly benefit from cognitive behavioural therapy.

The Claimants called their aunt, Madhu Bhatt, who made it clear in her evidence that she did hold the Claimants’ mother responsible for her brother’s death. The evidence of Viba Mantrawadi was admitted under the Civil Evidence Act. I now turn to the Claimants’ case. I shall deal firstly, as Mr Johnson, on behalf of the Claimants and Mr Adam Weitzman on behalf of the First Defendant, both did, with the allegations of abuse, neglect and exploitation against the Second and Third Defendants.

The Claimants’ case in the pleadings and in their witness statements was that the abuse, neglect and exploitation happened almost throughout their time with the Ks, or at least as far back as SN could remember, on a daily basis. This applied to the physical assaults and to the massage and to them being treated as domestic slaves. VN confirmed this in her evidence stating that she was hit, kicked or punched on a daily basis throughout and that massage took place on a daily basis between 5 and 8am in the morning and 8 to midnight in the evening. The exception was that although they said they were made to eat in the garage they were only made to sleep in it once. At school, VN said they were bullied because of their unwashed clothes, that she was constantly hungry because she was starved and sleep deprived, and that she thought about once a week she was covered in bruises and scratches but the teachers did not notice. She was very unhappy both at the Ks and at school. They were not taken out with the family, or allowed a shower more than once a week, and never allowed to brush their teeth. She did not brush her teeth between the ages of 2 and 11, she said in evidence. She did not tell anyone of the abuse because she was scared and did not know what would happen if she did tell. They were told what to say to the outside world by the Ks.

When she was shown the school reports indicating that she was happy and successful at school, rather than unhappy and unable to concentrate and doing badly, she said that school was an escape. Sometime after she was 10 Mrs K suddenly started to be nice to her and both of them asked her who she would prefer to live with if Mr and Mrs K got divorced. TB/420. When shown the photographs of her enjoying herself at a birthday party dressed in a very nice dress or playing on Brighton Beach with X and Y in a swimming costume she said that she could not remember. She could not explain the photographs or the videos but accepted they were not faked. She said she was very pleased when they left the Ks.

SN said that they were treated as slaves as far back as she could remember. They were abused every day, hit and kicked with the rolling pin, dustpan and brush or hair brush which left visible marks but were never seen by the teachers. She was obliged to eat her vomit on one occasion. It was aubergine which she had retched up. She had to massage Mr K usually by walking on his legs from 4 or 5am in the morning and also around 8 to 12 in the evening. She did have nice clothes as well as bad clothes. She could not explain why she said in her witness statement that she did not have any friends at school, when the letter that she had written, and the school documents, showed that she had a number of friends and one particular close one, Mayuri who came to her parties and appears in the photographs. She did not know why she had said that. She accepted the photographs appeared to show a perfectly normal, happy scene but said that does not mean the abuse did not happen when people left the house. She was happy when friends like Mayuri were there but that did not mean to say the abuse did not take place.

She accepted that she told Mr Palmer, the GAL, that she wanted to remain with the Ks, but that was not inconsistent with being treated like a slave. She agreed that it seemed from the school records that she was doing well at school so that the Ks may have made some space and time for her to do good homework. A and B were there when they were hit, but did nothing to stop it. SN also said that toward the end of their time there Mrs K started to be nice to them. Mr K did ask her to write a letter after she had been beaten by Mrs K but he did not say it was to help him with his divorce. In her statement to the police she said she was 11 when she was last hit, but she said she could not remember when that was. The whole time she was with the Ks she only cleaned her teeth three or four times a year when people came, though she did not have her own toothbrush. When in January 2000 she told Dr Cooper that she had cleaned her teeth she said she was not sure whether the abuse had started by then. It may not have done. She did not know.

Neither of them watched television save when the Ks were out nor did she recall ever playing on a computer. SN was also told what to say by the Ks to others. She was hostile to her mother because of what Mrs K said and had no memory of her aunt telling her bad things about her mother.

The picture painted in the pleadings, witness statements and indeed to both Dr Friedman and Professor Maden was of a hostile, abusive, unfriendly and deprived life of drudgery, where neither girl was treated as, or accepted as, a member of the family. When confronted with the contemporaneous school reports, social service reviews, GAL reports, judgments of the court, health records, the photographs and the videos showing a very different picture, SN conceded that there had been good times as well as bad, that they did have some good clothes as well as second hand ones and that she had achieved well at school. None of this, however, she said meant that abuse had not occurred. The house became a very different place after guests or friends had left.

VN did not change her evidence significantly save to, in effect, withdraw the suggestion in her witness statements that she was unhappy at school and had done badly there. Both Claimants said that they could not remember, on a significant number of occasions, particularly relating to the photographs or the video. I fully accept that it cannot be expected that their memories would go back to the beginning of the placement, they were only 2 and 4 respectively at that time. Nevertheless, as Professor Maden said, one would have expected their memory to have been jogged of events in later years by the photographs and it was surprising that they were able to recall adverse events but very few of the events that showed them participating as equal members of the family. To remember only the bad and not the good when prompted by photographs was unusual, Professor Maden said.

Mr Johnson put forward two explanations for this dissonance in the evidence, firstly, that the Ks were, in effect, skilled at deceiving social workers, school teachers, Guardians, judges and indeed family and friends as to the real truth of what was happening in their family. The picture that the Ks presented and required the girls to present to the rest of the world was a friendly, valuable and close knit family of which the girls were part whereas in truth it was abusive and exploitative. He relies on the letter which SN wrote which Mr K handed to social services, the statements to the police by both Claimants, the allegations of abuse made after the girls left as set out in the strategy meeting in May 2005 and the End of Investigation Meeting in November 2005. The effect of his submission is that although not apparent, the abuse must have been going on, hidden from view. His second, alternative explanation is set out in his closing submissions at paragraph 30 where he submits that the court can make a finding that the Claimants “suffered some abuse/neglect, but not over the period that they allege”. He points as an example of how this can happen to the case of Pierce v Doncaster Metropolitan Council [2007] AER 188 where the court accepted that there may in such cases be a degree of exaggeration and dramatisation of what took place because of the Claimant’s disorientation and personality disorder. Here, Mr Johnson submits the Claimants came into care at a very young age in difficult and confusing circumstances and were still relatively young when they left the placement. Their memories could therefore not match those of adults.

The Defendants submit that neither of these approaches can explain the disparity between the case presented by the Claimants either in the pleadings, the witness statements to the doctors or in the evidence, and the situation demonstrated in the school reports, the social service reviews, the judgment and the Defendants’ evidence. Furthermore, it is submitted by the Defendants that the Claimants must be able to give, as clever and articulate individuals, a truthful account of what in essence happened to them, and if in fact their case is found to be greatly exaggerated they should not be permitted to invite the court to make alternative, lesser findings, quite different to the case they have presented. My approach, however, is to say that the Claimants’ case does not have to be established in full in order to succeed; it is sufficient if part of their allegations are found to be true by the court, though in the course of considering the evidence in making such findings the court will have to weigh the extent to which their evidence remains reliable, if substantial adverse findings are made about their evidence as a whole.

Physical abuse

The Claimants made no allegations of abuse until SN was asked to write a letter about Mrs K by Mr K in May 2005. The contents of that letter, the interviews with the police and the further disclosures made after the girls had been removed from the Ks, recorded in the Strategy Meetings in May and June and in the End of Investigation Meeting November 2015, are the occasions when the claimants alleged abuse. The evidence, apart from that of the Claimants, on the issue is Mr K’s assertion to Ilrette Cummings on 19 May 2005 that his wife had hit both Claimants and that he would ensure that she did not work as a foster carer again and be imprisoned.

The fact that no complaint was made by the Claimant until 2005 is not decisive; as the psychiatrists agreed it was not uncommon for young children to find it difficult to disclose abuse, and hence for them to disclose it later rather than sooner. This does not alter the fact that one must look carefully at what was seen and observed by others of the way in which the Claimants were treated by the Ks.

None of the social workers, school teachers, psychiatrists, psychologists, therapists, or the GAL, saw or heard anything to make them concerned about the children’s welfare or which suggested in any way that they may be the subject of physical abuse. The allegations made by the maternal aunts against the Ks at the beginning of the placement were found by the First Defendant to be without foundation. Their allegations were made upon the basis that it was the Ks who were assaulting the children, not Mrs N, their mother. The allegations made against their mother by the Claimants were however made to other professionals as well as to the Ks and it transpired that the mother herself admitted that she had struck them. I am satisfied there was no basis in the allegations by the maternal aunts.

Whilst the children may not have alleged abuse themselves it is surprising that none of the professionals at any time noticed anything whatever which raised their suspicions.

School teachers in particular, seeing the children everyday for a number of hours, are in a very good position to notice either subtle or gross changes in a child’s behaviour; in other words something which might suggest abuse. If, however, as the Claimants said in evidence, they were arriving at school with visible bruises or scratches on a weekly basis it is difficult to see how these would have been missed by school teachers.

There were however here no apparent changes in behaviour or bruising or scratching noted in any of the substantial school records. On the contrary, the school records show that the Claimants were happy at school, indeed loved it, were hard working and successful, lively, good participators, and had many friends. At no time was any troubling behaviour observed nor any bruising or scratching seen. The school teachers were consulted on every occasion that a review took place and provided the detailed glowing reference in 2000 when the Ks were applying for the placement of the Claimants to become permanent. C7,8. As Mr Weitzman submits, the fact that the only criticism made of Mrs K in the glowing reference in 2000 was not taking VN into hospital when she had hurt her nose by falling in the playground illustrates the level of observation and awareness at that school. The detail, not merely in the reference but also in the records generally, confirms that.

Nor did any social worker or GAL or doctor or therapist observe any injuries of any kind or any behaviour giving rise to concern about physical assault during the 8½ years the Claimants were with the Ks. Nor did the Claimants complain to any of those that saw them, including those whom they knew well and were at ease with such as Nancy Logue, their social worker from 1999 to October 2002 or Rita Bell, the family friend. As stated earlier it is not uncommon for children not to disclose abuse but it is to be noted in this case that the Claimants were able to disclose physical abuse by their mother to Kelly Frankou, the social worker, Mr Palmer, the GAL, and doctors and therapists. They saw social workers such as Kelly Frankou and Nancy Logue on a regular basis between 1997 and 2002 and saw Mr Palmer, the GAL, on 10 occasions in 18 months between 1997 and 1999. None of the records, reviews or witness statements from these individuals raised any question of abuse, save the Claimants’ complaint of abuse by their own mother, and sexual abuse by men when visiting her at Hope House. Indeed, until SN’s letter in May 2005 alleging abuse against the Ks, the view of all social workers responsible for the Claimants’ care was that the Ks provided a happy family home for the girls in which they were able to prosper and develop.

As I have set out above in detail, the school records show that SN made very good progress in class, was interesting and creative and a pleasure to teach in December 1999. F12/5249, 5301. In 2002/2003 SN’s own comments state that her mother and her teachers helped her with her education, and that she liked watching telly and dressing up, reading and computing games. F12/5263. She was clearly happy at primary school as she describes in her own letter, F12/5303, where she also states that her best friend is Mayuri and they visit each other’s houses and she adds that she loves her own house very much. In 2004/2005 a report showed that she did exceptionally well that year at Preston Manor, was a valuable asset to the class, producing a high standard of work with positive input in class. She had made excellent progress. F12/5306. The letter of 21 June 2005 to the Ks, one month after she had been removed from the placement, refers to her superb contributions in discussions, enormous effort in producing class work of a high standard and her enthusiasm and commitment. F12/5291.

VN is described as a happy, mature, confident child and a popular class member with good self esteem in April 1998, F12/5636, as making friends very easily, achieving an excellent result in 2000, F12/5639, with the teacher’s comment that she was sure that the stability that VN now enjoyed at home was having a very positive effect on her performance at school. F12/5640. Again, like her sister SN, she notes that her “mum helps with homework”. F12/5669. In 2003 it is noted that she gains much from school and gives much in return. F12/5676 and in 2004 it is noted that she is a lot of fun to have in the class. F12/5696. In July 2005 she receives an excellent report in her final year at the Hyde Primary School and is described as having sophisticated insights and ideas. F12/5702. In her own written comments she states that if she has a bad day she talks to her mum or dad, F12/5650, that she is happy in the juniors, F12/5681, and speaks of her confidence in learning and her best subjects. F12/5700, 5705.

These school reports and the Claimants’ own comments are inconsistent in my judgment with a pattern of regular abuse against them, whether it be daily or weekly, and whether it gives rise to bruising and scratching on a weekly basis.

The social workers’ comments and reviews reveal a similar picture. Again the pattern is consistent throughout the years until May 2005. I have referred to these records in detail earlier in this judgment and will only highlight some here. In her report of October 1998 referred to in the judgment of the District Judge in the care proceedings relating to the Claimants in 1999, Dr Maitra, the consultant psychiatrist, stated that she observed the relationship between Mrs K and the two girls to be warm and affectionate and that Mrs Ks sympathy and affection for them was unmistakable. CB/46 paragraph 33. On 18 June 2002 Sandie Beswarick stated that she had noted that all the children were treated fairly and individually but also as if they were all birth children of Mr and Mrs K. CB/240, 241. Deylia Morgan, the social worker responsible for the carers as opposed to the children, countersigned this report. Earlier in April 1998 in the foster carer review she had stated that the Ks were excellent carers and provided a wonderful family experience. Sue Matthew confirmed this on the same date congratulating the Ks for providing such a safe, caring and nurturing placement. F4/1614, 1615.

There are regular references throughout the records of the children being happy, with a good relationship with their foster parents and sons. F3/1089, 1093, 1421. The only reservation was SN’s resistance to contact with her mother, therapy and the distress that she showed on these matters.

In spite of Mr Quadri’s reservations about the girls when he was social worker for the X and Y brothers from the end of 2003, the reviews from the social workers dealing with the girls continued in the same vein up to the end of the placement. Thus on 15 February 2005 the placement was described as “very stable” and on 3 March 2005 SN was described as being happy at school and home and that the bond between her and the Ks was observed to be warm. SN was very positive about the Ks and said that she and her sister were planning to get a present for their mum, i.e. Mrs K. At the same visit in March 2005 VN saw the same social worker as her sister, Sonia Patel, and showed her a dance that she was going to perform with other people in her school. She enjoyed being at school and said that Mrs K attended parents’ evenings. The bond between her and Mrs K was observed to be strong and VN was positive when she spoke about them and said that she enjoyed going shopping with Mrs K and things in general were good for her. She attended homework club and dance classes on a regular basis. F3/1424-1426.

These records are, on the face of it, inconsistent with a regular abusive relationship by the Ks toward the Claimants.

Abuse was however alleged by the Claimants in SN’s letter of May 2005 and their police interviews on 15 June 2005. At that time SN was 1 month short of her 13^th birthday and VN was nearly 11½. SN stated in her letter that Mrs K hit her sometimes with various objects such as a pan and brush and shoes. It that letter and in her interview SN only disclosed assaults by Mrs K, not Mr K. She did not mention being forced to be a domestic slave or being deprived of food or proper clothing. She was unable to remember when the abuse had first started, or the last time that it happened but thought that she may have been in year 7 at that time, about 11 years old. This would have made the last abuse sometime between 1 and 2 years before the police interview. She said that both Mr K and A tried to intervene on her behalf and said that Mr K had not hit her save for slapping her face on a couple of occasions when she had been very naughty. She stated that she had been hit with a dustpan but that her sister was never hit with an object only slapped. No reference was made to rolling pins or hairbrushes. The level of abuse alleged in the police statement is very different from the level of abuse now alleged (police interviews CB310-319).

VN gave a markedly different account to the police to the one that she has given in these proceedings. She said that she was slapped on the face when naughty from the age of about 9 and had not been hit with anything. When asked if she had seen the Ks use anything else apart from their hands to hit people with she initially said no, but later said that her sister had been hit with a dustpan. She had noted scratches on her sister’s back, it appears on one occasion, she thought before Christmas. She said that the X and Y boys were also hit but not often, though the X and Y brothers have not made those allegations themselves. The GAL who gave evidence in Mr Ks residency application made no mention of any physical abuse of the boys and said that but for the breakdown of the marriage and the allegations she would have recommended that the X and Y brothers stay with the Ks. She praised the care given by the Ks for the boys CB/346. Mr Weitzman submits that had the boys told the GAL that assaults had occurred and that had been given in evidence it would have been considered in the judge’s judgment but it was not. VN when asked initially how it had been living with the Ks replied “good” and to the question what was bad about it replied “nothing”. She thought that they had been removed from the house because the Ks were fighting, which she later explained as meaning arguing by shouting at each other. When asked about whether arguing concerned her she replied that she was worried that something bad might happen to one of them.

It is submitted on behalf of the First Defendant that the allegations in the letter and interviews were not true. Mr and Mrs K denied that they had ever assaulted the children and that denial was supported by the evidence of their sons A and B. It simply did not happen they said. At the time when SN’s letter was handed over to the social services Mr and Mrs K were in the throes of a very hostile divorce. Mr K said that he had asked SN to write the letter describing what her mother had done to her and her sister as if it had been done by Mrs K. He did this because his feelings of hostility towards his wife were intense and he wanted both the house and the custody of the foster children. He told Ilrette Cummings on 25 May 2005, according to her statement of 13 September 2005 (F8/3504), that he would do everything he could to prevent her caring for children including having her sent to prison. When SN had written the letter Mr K passed it on to Ms Cummings, and hence to the First Defendant. Mrs K told the police on 22 June 2005 that her husband had made SN write the letter so that she would be arrested and he could have the house. It was accepted by Mr K in cross-examination that this conduct was a disgraceful thing to do. In itself it justified the removal of the foster children and when combined with the making of the allegations, whether true or not, and the hostile state of the relationship between Mr and Mrs K, made it inevitable.

Mr Weitzman on behalf of the First Defendant submits that all the evidence contradicts even the small, limited description of physical abuse, and that the contemporaneous documentation supports the proposition that Mr K had asked SN to make false allegations against Mrs K to assist him in the divorce proceedings, that the allegations in interview in relation to the X and Y brothers were not correct, and that the allegations about the Claimants were very different from those which were made in these proceedings.

I shall come back to this when I have considered the other main items of the Claimants’ case.

The medical reports together with the school medical checks indicate that at all times the girls were developing well physically and mentally. There is no evidence that either of them suffered in any way from inadequate or insufficient diet. The evidence of the Ks is that the whole family ate the same food together. VN was not, as she alleges, the Ks slave, given water with cereal which caused her to vomit and then forced to eat that vomit. Nor was SN forced to eat aubergine which she disliked, nor was she forced to eat her own vomit. The photographs at P13, 14, 16, 33, 40, 41 and 73 show the Claimants at home or elsewhere at parties or outside venues enjoying food with the other people present. Mrs K said that SN particularly liked chocolate spread and drinking milk which appears to be what is shown in photograph P41. A and B confirmed that the Claimants ate the same food as they did, usually together, unless A, as he got older, came in rather later than his brother.

I am not satisfied on the evidence that there was any failure by the Ks to provide the Claimants with a proper and healthy diet. The use of the term “starvation” by VN is a serious exaggeration. The medical evidence and school evidence indicates that the girls were vigorous and healthy. I do not accept the assertions that they were required to eat their own vomit.

This allegation, which the Claimants repeated in evidence was that they were required to massage Mr and Mrs K between the hours of about 4 or 5am to 8am in the morning and then between 8pm and midnight every night. They said that this happened on a daily basis. In fact Mr K was at work in the evenings until midnight until 2000 and also in 2003 and 2004. In the morning he would have been sleeping. I am satisfied on the evidence of Mrs K and B and A that she got up in the mornings to prepare breakfast for the children and did not have the time nor wanted to receive massage. When SN saw the therapist, Ms Cooper on 31 February she told her “do you know what I had to do to come here today. I woke up, cleaned my teeth, walked downstairs, had my breakfast, then watched two hours of children’s TV.” F10/4758. This is a direct quote recorded by Ms Cooper and appears as if it was SN seeking to describe a normal day.

If the Claimants’ account was correct it would have meant that they only had some 4 to 5 hours of sleep a night at an age when they would have needed well in excess of 8 hours. It is inevitable that had that occurred they would have been very tired and their performance in school would have been affected. If this had continued on a regular basis for much of the placement, as the Claimants allege, it is unlikely that their inevitable tiredness would have been missed by the teachers. In fact, as is set out above, both Claimants did extremely well at school and there were no such comments about tiredness.

I find this allegation highly improbable. I do not know whether there were some occasion where the children massaged their foster parents and that has been elevated into allegations of abuse or whether no massage ever occurred, but I am satisfied that massaging for hours a day on a regular basis did not occur. I prefer the evidence of the Ks upon this issue.

The Claimants state that they did not brush their teeth in the almost 9 years that they were with the Ks. SN said that she did in fact brush her teeth some three or four times a year when people visited but did not have her own toothbrush. The Claimants had no problems with their teeth as the statutory medical checks show. Mr Johnson relies upon the fact that the X and Y boys had dental problems after they had left the Ks but the nature, extent and cause of those problems is not known. What is clear on the evidence is that the Claimants’ teeth were entirely healthy. Sohini Minawala described in her witness statement that the girls cleaned their teeth twice a day whenever they stayed with her in Coventry and when she stayed at the Ks’ house.

Mr K told me in evidence that not only did the girls brush their teeth in the mornings but often showed their teeth to him to demonstrate that they had done the best job. I accept that evidence, and reject the Claimants’ evidence upon this issue.

The Claimants alleged that they were not allowed to shower more than once a week, and were as a consequence, when combined with old and ill-fitting and dirty clothing, bullied at school and friendless. There is no evidence from any witnesses to support this allegation which is strongly refuted by the Ks. I reject it. Sohini Minawala states that the girls had daily showers and Christine Mannington states that the children’s clothing and hygiene never gave rise to any concern. The girls were, on the evidence, well dressed (see below) and, as I set out next, were happy at school with many friends.

The Claimants contend that they did not have toys or games, were not allowed to play games or watch the television save when the Ks were out, and were dressed in ill-fitting, old, smelly and dirty clothes. It was the latter problem which VN said caused her to be bullied at school and not to have friends.

The evidence of both Nancy Logue and Sonia Patel, F3/1426, was that there were toys and games for the children. One of the Ks’ witnesses, Sher Begum described toys and the Indian board game Carrom. A and B describe a doll’s house, computer and games console, Pokemon cards and televisions. The school records contain comments from the girls indicating that they did indeed play games including Pokemon and Carrom and used the computer. One of their friends stated that one of their favourite activities was watching telly. A and B said that they watched together in the evenings during tea, sometimes in the mornings, as SN herself had described to Dr Cooper, and at weekends.

As to clothes, the photographs show the Claimants in pretty party dresses, normal day clothes, saris and in school uniform. From the photographs it appears that all these items of clothing are smart and of good quality. SN said that some of her clothes were good and some not so good which may be true but there is nothing to suggest the children were deprived of proper or good clothing. Indeed the photographs, on the occasions they were taken, suggest the opposite. School records show that SN stated she liked shopping with Mrs K, and Rita Bell, who was a good family friend and often stayed overnight at weekends during the year, described going to the Claimants’ bedroom to help pick saris from a wardrobe which was full of attractive clothes. She also described going shopping with them for new clothes. The social workers, for example, Nancy Logue and Christine Mannington described the Claimants as well dressed, as did Sohini Miniwala.

The reference in the End of Investigation Meeting report 18 November 2005 to a box of old and dirty clothes found when the children left the Ks does not affect my findings on how the Claimants were dressed during the placement. There is no evidence as to what these old clothes were, whose they were, or whether they had been current clothes or not. No safe inference, which has any weight, can be drawn from the contents of the box compared to the strong contemporaneous evidence of how well the girls were dressed, the purchase of new clothes for them, and their substantial wardrobe of good quality clothes. Nor does the evidence that one of the X and Y boys once had a hole in one of his shoes affect my findings.

The Claimants’ allegations are against the weight of the evidence, and I reject them.

The Claimants allege that their hair was often cut short, not merely shorter than they would have wished, but so short and in such a manner as to be abusive. VN said that her hair as shown in photograph 3 was shorter than she would have wanted it and that shown in photograph 13, the first photograph of 2000, was pointed out to me as a haircut that amounted to bad treatment.

There is no proper basis upon which such a haircut could be described as abusive treatment. I note that on 12 May 1999 Nancy Logue commented in one of her manuscript reports that SN had her hair styled beautifully and looked very smart. The photographs show that whether the girls’ hair be short or long it is smart. None of the photographs indicate that their hair was cut by Mrs K putting a bowl on their heads and cutting around it as alleged in paragraph 20 of her witness statement by VN. TB2/418.

VN states that because of the dirty and smelly clothes they were obliged to wear at school she was bullied and they did not have many friends. SN said that she did not have any friends at school partly because of the fact that she and her sister were not kept clean and were dressed in old, ill-fitting clothes. TB2/439. As I had already set out in this judgment it is clear from the school records that both VN and SN were happy and popular at school and not isolated. Although SN said she had no friends in her first statement, in her second statement she accepted, after receiving Mayuri Hirani’s statement, that Mayuri was her best friend. Although she did not in her second statement say that Mayuri came to her house in fact she did as can be seen in SN’s letter, F12/5303, Mayuri Hirani’s statement and photograph P16.

The photograph appeared to indicate that the Claimants were well integrated and relaxed in the company of the K family. The school records confirm that they played various games on the computer and Pokemon and Carrom with A and B. The photographs show trips to a park which VN said she could not remember, a trip to the beach, photograph 51 and 52, which the Claimants were unable to remember, to India in 2000, photograph 23-29 and 2003 (DVD) and to particular events such as the Ideal Home Exhibition, photographs 73-74. The evidence of Nancy Logue, A, B and the witnesses called on behalf of the Ks indicated that they regularly played with other children.

Many of the photographs show the claimants enjoying themselves and having fun with family and friends. Some show them looking resplendent in party dresses or in their saris, e.g. photograph 53 and 66. One of the photographs, photo 75, dated 19 May 2005 shows SN and VN at A’s birthday celebration at the Ks’ house and photo 76 shows SN at that celebration. Those photographs, in which it appears that SN and VN are participating as members of the family activity, were taken seven days before they were removed from the Ks’ house.

It is difficult, on the evidence, to avoid the conclusion that the Claimants must have known that they had friends at school, played with those friends at their home and at the friends’ home, as the evidence is quite clear that this is so. It appears to be equally clear that they went on outings to the beach or to the Ideal Home Exhibition or to many different sites in India in 2000, to McDonalds and to other places. It is also surprising that when shown the photographs during cross-examination their memories were often not jogged as to their participation in the event shown. Photographs of India, for example, show quite clearly that, far from being kept at the house where they were staying, they went on several trips to places such as the Taj Mahal and others. There is no suggestion that their memories have been adversely affected by events in their lives and their academic success at school and university belies that. I feel forced to conclude that various parts of their evidence on this aspect of the case have been seriously exaggerated.

The picture painted by the Claimants of a life of drudgery at the Ks’, with enforced housework and no or very little participation with the family, is at odds with the evidence. The evidence in particular of Rita Bell, Bernadette McHugh and Nancy Logue, all of whom were at the Ks’ house on a regular basis, is that they saw no such thing. On the contrary, they saw happy integrated girls treated as part of the family. I do not regard the evidence of those witnesses, nor indeed the school records or the social workers’ reports, to be consistent with domestic slavery or isolation. I do not accept the Claimants’ evidence on this issue.

The Claimants allege that they were made to eat meals in a garage and on one night made to sleep there overnight. The evidence of Mr Reg Wray, a builder who had worked at the Ks’ house on several occasions, described a pit in one of the garages, which would have rendered being there overnight very difficult if not impossible. The evidence suggests that access to and space in the garages was limited. I am not satisfied, on the balance of probabilities, that the Claimants are accurate in their evidence upon this issue.

I have therefore concluded that a number of the allegations made by the Claimants are either exaggerated or not established. I am entirely clear, based on the evidence before me, that there was no regular physical abuse or general neglect or exploitation of the children by the Ks. On the contrary, I am satisfied on the evidence that the Ks provided a loving family environment in which the children prospered, both at school and in their social relationships. They have grown into intelligent, articulate, successful young women with university education and good career prospects, and the Ks are in part responsible for that – as is Varsha Dalia. I reject the Claimants’ evidence that they were treated as domestic slaves or exploited.

Whilst I am quite satisfied on the evidence that there was no regular pattern of physical abuse, as alleged by the Claimants, and that the evidence simply does not permit such a level of abuse going on and being hidden from the rest of the world, the question remains as to whether there were isolated incidents over a much shorter period of time involving physical abuse. Does the letter from SN invited by Mr K, and given by him to social services, his own allegations against his wife, and the allegations of abuse in the police interviews indicate the probability that that abuse occurred? Mr Johnson submits that the allegations made post removal of the children, and set out and considered with hindsight by social services in the Strategy Meeting of 27 May 2005, July 2005 and the End of Investigation Meeting in November 2005 corroborate physical and emotional abuse and neglect. He also submits that there was domestic violence between the Ks and that such violence, exposed to the Claimants, amounted to emotional abuse or was in itself “similar fact” evidence which showed that the Ks were the sort of people who could physically abuse their children. Thus, Mr Johnson submits, taking the evidence as a whole, the court can make a finding that the Claimants suffered some abuse or neglect but not over the period that they allege.

I do not accept those submissions. Mr K’s hostility towards his wife during the early stages of the divorce proceedings was so powerful that he was prepared to try and ensure that she was sent to prison, if necessary by making false allegations against her. As Mr Weitzman submits, there is some support for this in the contemporaneous documentation, i.e. the allegations made to Ilrette Cummings of the First Defendant in May 2005. Disgraceful though it may have been, it appears that Mr K was prepared to go that far in his determination to secure the matrimonial home and the foster children. It is to be noted that he continued with a residency application in relation to the boys, to try and secure them for him to care for. It is also correct, as Mr Weitzman submits, that the allegations in the police interview are very different from those which are now made and that the allegations insofar as the X and Y brothers were concerned were not correct. The allegations in the letter and the police interviews are therefore open to doubt.

I do not find any considerable assistance in the First Defendant’s investigations into matters after the removal of the Claimants. The complaints and concerns are expressed with hindsight, save for those of Mr Quadri, with whom the Ks had fallen out, and who was dealing with the X and Y brothers and not the Claimants. I do not know, because there is no evidence before the court, what concerns Dialia Morgan had from the beginning, except perhaps those relating to therapy. But as she was unable to attend for cross-examination, the inconsistencies between that statement in the post removal reports and her earlier contemporaneous documents and witness statement are unresolved. Mr Quadri was not called to give evidence, nor was Sonia Patel nor Ilrette Cummings.

Nor does the evidence of incidents between Mr and Mrs K to which the police were called give the court any significant assistance. Firstly, any domestic violence was restricted to a push, and the grabbing of an arm at the most (those were denied) and Mr Johnson’s argument of “similar fact” is unsustainable. The proposition that someone who has pushed his spouse or grabbed her arm hard is likely to have beaten his children is not one which carries any weight. The evidential doctrine of “similar fact” is inapplicable here.

What the court must do is to assess such evidence as it has with care. I have found that the Claimants’ evidence is in parts improbable and in parts exaggerated. I do not need to find a cause for this, but note that one of the explanations which has been put forward by Professor Maden is that being let down yet again by their carers concentrating on their marital dispute rather than them, caused them to demonise the Ks just in the same way as they may have demonised their mother earlier.

I saw Mr and Mrs K, particularly Mrs K, in the witness box over a considerable period of time. I am satisfied that both the Ks are decisive people, well able to hold their own, as they demonstrated over finance issues with the First Defendant, and that they liked to get their own way. I formed the impression that Mrs K could be strict, if not on occasion stern, but that was an attitude which she would take as much with her own children as with the foster children. I note in particular that from September 2005 to at least 2015 Mrs K worked at a primary school, one-to-one with children with special educational needs. Her references from the school say that she was always found to be patient with children and supportive of their needs and showed kindness and professionalism. There had never been any concern whatsoever about her behaviour or performance in the school setting or in her relationship with the children with whom she worked. [TB3/635, 6366] This supports the view that one of Mrs Ks motives for fostering children was that she enjoyed working with them and wanted to help them.

I have also given careful consideration to the evidence of A and B, who were in a good position to see what happened to the Claimants throughout their time with the Ks. B was only two years older than SN and I am satisfied that the relationship between them was close and friendly, as it was between all the children. The Claimants expressed fondness for their brothers and, according to Nancy Logue’s evidence, said that they loved them because they were like Teletubbies. I did consider that they underplayed the extent to which their parents shouted at each other, which in my judgment was greater than they admitted, but I formed the clear view that they were giving the court an accurate account when they said that they saw no physical abuse of the girls and were never asked to, nor had to, intervene to stop it.

I do not doubt that the atmosphere became strained and difficult during 2005 when the Ks marital crisis was rising to a peak, and that there was shouting and loss of temper. I am also clear that Mrs K was a strict person who could be stern as well as caring and loving, and that in 2005 life may have become more difficult for all in the house.

Did tempers get so lost that the girls were physically abused during this tense period? I have considered with care the evidence of the Ks and A and B and I do not accept that during this time, or indeed at any time, Mr and Mrs K resorted to hitting or kicking the Claimants in any way. The Claimants have not satisfied me, when I look at all the evidence and particularly that of A and B, that this occurred.

It is also to be noted that in the Claimants’ witness statements it is said that Mrs K and Mr K started to become nice during the last months of their placement, and that in her police statement SN said that the last time she was hit was when she was 11, over a year before the last stormy months.

On balance I prefer the account given to me by the Ks and A and B to that given to me by the Claimants, and I am not satisfied on the balance of probabilities that the Claimants have established that any physical abuse at all occurred.

I turn now to emotional abuse.

Vilifying the Claimants’ mother

The Claimants allege that Mrs K told them that their mother was a bad person, that she had breast cancer and would die from this, that she was a prostitute who slept with a knife under her pillow, that she had killed their father and would kill them. The Claimants also allege that Mrs K said that God would burn them in his hottest oil.

I am satisfied that the statement about the Claimants’ mother, Mrs N, being a prostitute, and killing the Claimants’ father, emanated from the paternal aunt, Mrs Madhu Bhatt. She idolised her brother, the Claimants’ father, and took the view that Mrs N had been responsible for his death, beating him the day before his final visit to hospital. I accept the account taken by Christine Martin and Esther Block on 20 February 1998 to this effect. [F10/4483,4]

Mrs Bhatt said in evidence that she did indeed hold the Claimants’ mother responsible for the death of her brother. I am satisfied that she told Esther Block and Christine Martin what is recorded in their note and that they were correct in seeing Mrs Bhatt as perceiving Mrs N as uncaring, almost cruel to her husband and children. I am satisfied in the circumstances that Mrs Bhatt did indeed say negative things to the children about their mother.

It is likely that the Ks’ minds would have been affected by the Claimants reporting to them that their mother had physically abused them and that they had been sexually abused whilst in her care. No doubt Mrs Bhatt’s views would have been made known to them and they would have been affected by those too. Whilst it is clear that they themselves had a negative view of Mrs N, no doubt obtained from these sources, I am not satisfied that they vilified her to the Claimants. As District Judge White found in March 1999, whatever their views about Mrs N, the Ks were prepared to co-operate in facilitating therapy for the Claimants which might enable them to resume contact with their mother. I have no doubt that the information the Ks received about the Claimants’ mother and what she had done to her children distressed them, but it did not cause them to vilify her as alleged. Any vilification which did happen is more likely to have come from the Aunt, who was warned by Mr Palmer, the GAL, not to make negative remarks about their mother to the Claimants.

Therapy

Mr Johnson submits that the Ks sabotaged the Claimants’ therapy. In fact it was determined that VN did not need therapy, so the allegation relates to SN only.

It is clear from the statements of Kelly Francou that the Claimants were very distressed by their mother hitting them, as she admitted she had, and became as a consequence very resistant to seeing her. Perhaps this is not too surprising if they were both regularly hit and had been exposed to sexual abuse whilst in her care. There are graphic descriptions of them resisting being taken to contact with their mother, kicking and screaming when taken to the car. [CB/42]

This must have been very distressing for the Ks themselves. It would not be surprising if they were also upset by the allegations which the maternal aunts and the mother had made against them, which the First Defendant had considered and rejected. But, as the First Defendant submits, District Judge White found in March 1999 that they were not possessive or jealous and were prepared to and capable of supporting therapy. It is implicit in this finding by the judge that he had accepted that Mr and Mrs K were not seeking to vilify the Claimants’ mother or seeking in any other way to prevent therapy, even though that might lead to further contact. [CB/65]

After the judgment in March 2000 the Ks attended a counsellor at Warranty House for instruction on the effects of therapy on SN. [F2/696.1-696.4]

SN’s hostility to seeing her mother was clear, as found by District Judge White. Her attitude to therapy which might lead to such contact was equally strong. She was difficult and disruptive with the therapists and wanted to be at school. On 7 April 2000 she could only be persuaded to go if B went with her, which he did with Mr K. Nevertheless Dr Cooper records that SN “was adamant about not wanting to meet with me, in spite of Mr Ks helpful encouragement”. [F10/4783] On 13 March 2000 SN had “role played a strict bossy teacher who confronted her child during a spelling test”. She left the room and wanted to wait for Mr K, who had left the room, in the waiting room. [F10/4774]

Eventually, on 8 June 2000, it was decided to end the therapy. Fouzia, a link social worker, said that she believed that the Ks had supported therapy to the best of their ability, citing two occasions when they had taken positive steps to help her to come for therapy. The view of Christine Martin, Esther Block and Dr Cooper was that the Ks did not want therapy for SN if it was going to distress her and did not therefore appreciate the need for therapy fully enough to sustain them in their efforts to support her in attendance. In those circumstances SN had been able to “successfully engineer” an end to therapy. It was decided that the Ks were not able to support SN through that very difficult phase in therapy. [F10/4792]

This evidence does not satisfy me that the Ks either set out to or wanted to sabotage the therapy, as Mr Johnson has submitted. On the contrary, they gave their support to it as best they could and tried to encourage her to go to therapy in spite of her very difficult behaviour and serious distress. Incidents described by more than one social worker of her having to be taken kicking and screaming to the car to go to contact, which therapy was designed to renew, can only have made the whole process distressing for them, yet they still appear to have succeeded in persuading SN to go to the therapists on several occasions. Eventually it was the therapists’ decision to bring therapy to an end, not because the Ks were deliberately trying to sabotage it, but because they found it too difficult to manage SN’s own resistance and difficult behaviour. Their conduct cannot, in my judgment, be properly described as emotional abuse.

Exposing the Claimants to domestic violence

The two incidents reported by the police of physical contact between the Ks, namely pushing and grabbing an arm, both occurred outside the house. Neither Claimant refers to seeing any domestic violence, but both refer to arguing and hearing shouting. They were not, on the evidence, exposed to domestic violence. I accept that the Ks sought to have their arguments and disputes when the children were not present but upstairs, though doubtless their arguing was on occasions loud enough to cause the children to hear it. I am not satisfied that arguing or shouting or disputes between the Ks reached such a level that it could be described as exposing the Claimants to domestic violence and I do not consider that the Ks’ behaviour towards each other, whilst unfortunate and regrettable, amounted to emotional abuse.

As I have found that the Claimants have not established their allegations, the case in negligence against the Ks for failing to report each other must fail.

Mr Johnson submits that the essence of this claim is that the Ks spent the money intended to be spent on the Claimants upon themselves. They refused to make savings until November 2004 and if pocket money was paid, it is unclear how that was done. The K family finances must have been under considerable strain when Mr K gave up his job and even greater strain later when he had gambling debts of £55,000 with a £110,000 limit on his credit card.

It is, I am told by Felicity Schofield, not uncommon for neither foster parent to be working. It does not follow from their financial situation that the fostering allowance was not properly and fully spent upon the children. Contrary to the Claimants’ evidence, the Claimants were well dressed and well fed. I am satisfied on the evidence as a whole, but in particular Rita Bell’s evidence, that they had plenty of good clothes and the photographs show that some of those were extremely smart. The evidence of Varsha Dalia confirmed that the fostering allowance was effectively enough for a child’s everyday needs with a small sum left over. She spent that on treats such as holidays. It was not saved. The Ks also took the girls on expeditions, again as the photographs demonstrate, paid for their air fares and holiday in India and other local UK trips. There were plenty of toys and equipment such as TVs and games consoles. I accept the evidence of the Ks that the allowance was properly spent on the children and do not accept the proposition that they diverted it and spent it on themselves.

The fostering allowance did allow for pocket money, leisure and personal items, but did not allow for savings. The Foster/Care Allowances Rates and Guidance April 2000/2001 F146609-12 makes it clear that the appropriate pocket money level was a matter of discussion with the parents and children, and one of the factors to take into account was continuity within the home situation and consistency within the foster carers’ own family situation. Here the Ks did not give their two sons pocket money but paid for extra trips and treats as and when needed. Initially they applied the same system to the Claimants but were prevailed upon later to give them pocket money. It appears that in February 2005 [F3/1405] VN was for example receiving pocket money of £3.50 a week with a recent increase. I accept the Ks’ evidence on this issue.

The Ks were resistant to making savings for the girls, but instead agreed with the First Defendant to provide the girls with a dowry, which meant starting to buy gold and other such items when they were 18. In fact they were eventually prevailed upon to open Building Society accounts for the girls to create savings, which they did in November 2004.

There was, however, no statutory requirement upon foster parents to make savings, nor did the fostering allowance, unlike pocket money, include any element for savings. It cannot, in my judgment, properly be contended in these circumstances that by making no savings until November 2004 the Ks were wrongly diverting the fostering allowance for their own use.

I find that pocket money was provided in the same way as it was for the two sons and that the fostering allowance was properly spent on the Claimants for their benefit and wellbeing and not diverted by the Ks for their own use. The care experts are agreed that in any event any failure properly to pay pocket money or savings until November 2004 would not per se have merited the removal of the Claimants from the placement.

The argument on Constructive Trust put forward on the Claimants’ behalf must therefore also fail. The allowance was not diverted but needed for the children’s care and so spent. The tables upon which Mr Johnson seeks to rely in the Schedule of Loss cannot alter the finding of fact that I have made.

I have found the failure to create savings accounts until November 2004 was not a breach of any obligation by the Ks, as there was none. In any event, Mr Weitzman points out that there has been no loss from savings not being made earlier because the First Defendant made up any shortfall to what they considered to be the appropriate level. This was their normal practice.

Furthermore, the concept of constructive trust is inapt in these circumstances. The payment of the allowance by the First Defendant to foster parents did not create a constructive trust between the Claimants and the First Defendant obliging the First Defendant to make further payments.

Mr Johnson has reformulated the allegations of negligence as pleaded, resulting in the withdrawal of some or the reducing in their effect of others. Those upon which he now relies are set out in his written closing submissions at paragraph 38 onwards.

Wrongly approving the Ks as foster parents

It is alleged that the First Defendant failed adequately to check the accommodation, the agency checks, the references, transport, or health and safety. These allegations are based upon the evidence of Mr Jones. His criticisms, save one, are rejected by Ms Schofield.

Mr Jones criticises the checking of the Coventry address, that is, the address at which the Ks lived before they moved to London. The form making the request from the police and probation, however, included the full Coventry address and the police reply “no trace” clearly applied to both addresses. Mr Jones would not accept that. There were, however, as Ms Schofield accepted, no checks made with Coventry Social Services. Those should have been made but, had they been, the information would have been received that there were no problems with regard to the Ks’ bringing up of their own children. Such a check would have made no difference. I accept Ms Schofield’s evidence that Mr Jones’ requirement that any short-term rented premises by Mr K or the Ks in London for a short period of time should also have been checked was not necessary. Again, had it been done, no problems would have emerged.

Mr Jones criticised the checking of references, but had made the mistake of thinking that references were not obtained because they were not listed on Form F1. In fact they were listed on a separate sheet of paper. Detailed and favourable references were obtained and followed up and, as set out earlier in this judgment, the comment made that weight should be attached to them.

Mr Jones also alleged that there had been a failure to inspect the bedrooms at the Ks’ house. He based this allegation on details given in the F1 form. F4/1509. That recorded the fact that there were five bedrooms in the house but did not list any detail about them. Ms Schofield states that the form did not allow sufficient space for further entry nor was it the practice for such detailed recording at that time and that the entry inevitably meant that the rooms had been inspected by the Social Services who had in fact been to the premises on a number of occasions. It should be noted that it has never been Mr Jones’s case that the bedroom was inappropriate, merely that the form was filled in in such a way as to suggest there had not been an inspection of it beforehand. I prefer the evidence of Ms Schofield.

I also accept Ms Schofield’s evidence that a detailed investigation into finances, which Mr Jones said should have taken place, was not required at that time. Nor was the tenure of the house, though the property was in fact owned by the Ks. Mr Jones made an error about the number of visits made to the property as well as the period over which the assessment was made. This was an unfortunate error, like his failure to appreciate that proper references had been obtained and indeed followed up.

Mr Jones also commented on the End of Investigation Meeting notes of 18 November 2005, in particular Dielia Morgan stating that the Ks were socially isolated. This was in fact simply not the case as Mrs K built up a substantial network of friends, starting with fellow parents at her children’s schools. She had a supportive network of both friends and relations as is shown in the Social Service record and the evidence of the witnesses. The photographs and videos support this. I am quite satisfied, having seen Mr and Mrs K give their evidence, that they were a lively couple who had friends and enjoyed their company. Mr Jones relied upon this reference attributed to Dielia Morgan in the November 2005 report without noting that in all her earlier assessments of the Ks she and others had expressed the view that they had support in the community. CB156-158, CB275-288, CB280, CB300-330, F6/2605-2614. There is no merit in Mr Jones’s criticism.

Mr Johnson, on behalf of the Claimants, also relies upon the End of Investigation Meeting of 18 November 2005 and to Dielia Morgan’s statement therein that she had concerns from the outset. It is not known what those concerns were as they are not spelt out in the report, but it looks as if they may apply to therapy. In any event they run counter to the numerous statements by Dielia Morgan in the contemporaneous records of her lack of concern and approval for the way in which the Ks were bringing up their children and the foster children. It demonstrates the danger of relying upon partial quotations without understanding their meaning or context, made after the event either with hindsight or regret.

Mr Jones also contends that health and safety cannot have been properly checked in view of the fact that in March 2001 there were neither fire doors nor smoke alarms in the house. In fact, as Mr Weitzman points out, the actual entry states “smoke alarms to be bought” but I would question whether the form is even applicable to the Ks’ house as the next entry relating to first aid states “Mercy has equipment…” which appears to refer to another person. F4/1807-1808. Furthermore, a document relating to the Ks’ house, which appears to be dated September 1998, answers the question “Are smoke alarms in working order?” with “Yes”. F4/1623. This evidence does not suggest that there was any error in making health and safety assessments at the time and in any event the absence of fire doors or smoke alarms would not, on the evidence of Ms Schofield, have prevented registration of good foster parents.

Mr Weitzman submits that subsequent evidence proved that Ks approval had been correct. The judgment in March 1999 and all the professionals in the interim, he submits, identified the Ks as caring and able foster parents. There is nothing to suggest that further evidence would have come to light if there had been further investigations which would have affected approval. I am satisfied that the First Defendant made a thorough assessment of the Ks as foster parents, visited their home on many occasions, inspected it, and took strong supportive references and interviewed the referees. It is not surprising, on the evidence, that Ms Schofield should have said in evidence that the approval process and the form were in keeping with the practice at the time and that “absolutely this is an adequate assessment”. I agree with her and regret that I have to conclude that Mr Jones’s criticisms were based on error, inaccurate consideration of the material and hindsight.

(b) Confirming the Ks as permanent foster carers on 24 March 2000 and (c) failing to investigate domestic violence incidents, have both been withdrawn.

Failing to follow up on the recommendations of the court on 9 March 1999 and the care plan on 9 June 1999 including therapy, contact with paternal aunt and indirect contact with their mother.

The First Defendant set in motion the therapy sessions for SN. They organised training for the Ks, and the therapy sessions to which SN was taken by Mr K. It was the view of some social workers including Fousia Darr that Mr and Mrs K had supported therapy to the best of their ability and Ms Cooper, the psychotherapist, referred to Mr Ks “helpful encouragement”. It is clear that the Ks found it very difficult to support SN through the therapy, her strong resistance to it, and her difficult behaviour as instanced by the therapist herself. SN was able to engineer an end to the therapy as supporting her was not manageable for the Ks. In this sense the Ks did not fully support therapy. It may be that as the care experts accept, the situation could have been handled better but the task was difficult for the Ks facing such distress and resistance. I do not consider that the First Defendant fell below the appropriate standard of care in seeking to assist and further therapy given the difficulties which the foster parents faced. I have already found that the Ks themselves were not guilty of seeking to sabotage the therapy. Ms Schofield says that any concern over therapy was not sufficient to prevent the placement being made permanent and both experts agree that opposition to therapy alone would not have been enough to remove the Claimants from the placement.

The girls showed resistance to contact with Aunt Mhadu after favouritism had been shown to SN and a dispute had arisen as to whether they should all go out together. The First Defendant took steps to try to resolve this situation. It arranged supervised contact but the Claimants would not accept it. F5/2280, 2286, 2292. The First Defendant had also sought to encourage and bring about indirect contact with the Claimants’ mother but this was also rejected. F2/725, 839, F5/2209, 2214, 2248. The First Defendant wrote to Mrs Bhatt on 19 January 2001 informing her that the children did not wish to see her any more and suggested contact in writing F7/3274. I can see no failure amounting to negligence on the part of the First Defendant in dealing with the issue of contact, nor would it have been a cause, in the circumstances, for removing the children from the placement.

Failing to resolve the issue of savings and pocket money.

The care experts agree that there was no statutory duty on the First Defendant to ensure either pocket money or savings though they agree that the payment of pocket money was well established. I have set out earlier that the family system was to be taken into account when considering pocket money and that as the Ks did not pay pocket money to their sons per se but gave them treats or other sums when needed it was acceptable for them to adopt the same practice in relation to the foster children. In fact they later began to pay pocket money to the girls in any event. There can equally be no duty upon the First Defendant to resolve the issue on pocket money any further than that which had been reached, and hence no breach. The care experts agree that the decision by the First Defendant to accept the Ks plan for saving money after they were 18 for a dowry was unacceptable but the First Defendant had no power to enforce a decision to save upon the Ks as there was no obligation upon the Ks to do so, even if it had become accepted good practice. They were in fact so persuaded later by November 2004, but in my judgment the First Defendant cannot be criticised for seeking to press them into doing so any earlier. It is to be noted that the fostering allowance does not include any element for savings.

In any event it is agreed that such issues would not have ended the placement.

Failing to investigate the Ks financial situation properly

Mr Johnson submits that after Mr K had given up his job and requested to foster more children the First Defendant should have made greater enquiries into his financial situation. Ms Schofield’s evidence was that finances per se should not be a significant issue in fostering situations because the allowance had to meet the cost of the placement. Foster parents were often in receipt of state benefits. It was not therefore the practice to enquire into finances unless particular circumstances demanded it.

In fact the family finances were considered in 2002 when the X and Y brothers were permanently placed. CB/286. The Panel considering the matter on 8 July 2002 state, “The children are always well dressed and the couple managed well financially… They would borrow money from their families if they were ever in financial difficulty”. Consequently, it was felt that the couple would be able to manage successfully in the future. There is no evidence, as I have found, that the Ks diverted any of the foster allowance for their own benefit. On the contrary the evidence suggests that the foster allowance was fully and properly spent on the girls. It is right that later in 2004 and 2005 Mr K developed substantial gambling debts but there is no evidence that this had any effect upon the Claimants, save in so far as it created arguments between Mr and Mrs K, some of which the Claimants would have been aware. The gambling debts, which I was told had neither been repaid or demanded, may have created a strain on the household, but there is no evidence that it affected the Claimants financially or should have been known of by the First Defendant. I am not satisfied that there was any negligence by the First Defendant in failing to investigate the financial situation of the Ks. It is agreed that in any event financial problems would not have ended the placement on its own.

Failing to address issues of health and safety

I have earlier dealt with the accommodation, fire guards and fire alarms and now deal with the issue of seatbelts. The Ks transported four children in the rear of their car using one seatbelt for the middle two. This is criticised by Mr Jones as being unsafe and it is indeed difficult to see how it could constitute the proper wearing of a lawful seatbelt. The First Defendant raised this and Mrs K said that she had spoken to a policeman who confirmed that he was happy with the arrangement. Mrs K did not however remember this conversation in evidence.

Foster carers are placed in a difficult situation. Most, including Mr K, could not be expected to buy another car to deal with the problem, nor would any local authority require them to do so. A working, if not entirely satisfactory solution, was found by two children sharing the middle seatbelt. The First Defendant could not have compelled the purchase of another vehicle and were entitled to accept Mrs Ks explanation when given. It is agreed by the experts that this issue would not have justified removing the Claimants from a good foster placement.

Confirming the emergency placement of the X and Y brothers and then failing to consider properly or review that foster placement.

Mr Johnson submits that the First Defendant failed to apply the statutory requirement relating to the “Rule of Three” and failed to consider properly the issues of training, transport, the provision of pocket money, the establishment of savings accounts, safety, non-co-operation with therapy, exclusive attachment and blocked contact with the family. Had that information been properly gathered the Ks would, Mr Johnson submits, have been considered unsuitable foster parents and the Claimants would have been removed to a suitable placement.

Mr Jones relies upon the Rule of Three which limits the maximum number of children that can be fostered by one family, without it becoming a children’s home, to three, subject to an appropriate exemption being granted.

Mr Jones contends that the statutory duty under schedule 7 of the 1989 Children’s Act, and hence the Rule of Three, was not considered. In fact it is noted in the record of the Panel’s deliberations that the “Panel agreed the variation of Mr and Mrs Ks approved status from two permanent children to include two task-centred children specifically for Y and X P”. (F4/1818).

This recommendation signed by the Assistant Director of Social Services on 27 May 2001 constituted a retrospective exemption for the X and Y brothers’ emergency placement on 13 February 2001 in the opinion of Ms Schofield. It is implicit, she said, in the recommendation that the criteria under schedule 7 and guidelines would have been considered as the specific issue under consideration was the increase from two children to four children. An exemption to the Rule of Three was therefore, he said, obtained by the First Defendant. I accept her evidence.

I have already dealt with the other matters which it is said should have been taken into account as at 4 May 2001, namely transport, pocket money, savings, safety, therapy and contact, and deal now with the issue of training.

It is correct that Mrs K had no further training after the X and Y s’ were placed and that Mr K did not attend training, though his wife briefed him as to what had occurred. Ongoing training was not however mandatory and many foster parents, particularly long term ones, did not regularly attend. Training was often left to the primary carer. Ms Schofield’s evidence is that a lack of training would never have been a reason to end the placement as the Ks were providing good care for both the Claimants and then the X and Y ’s.

Mr Jones adds exclusive attachment of the children to the Ks as another ground of criticism though this is not shared or echoed by Ms Schofield. It is true that the girls had a strong bond with the Ks and the sons but that was a result of the quality of the care and affection they received. There is no proper basis for this criticism on the evidence.

It is Mr Johnson’s case that these various issues, none of which in themselves would cause the children to be removed, should be considered cumulatively and, had that been done, the Claimants would have been removed. I do not accept that submission. None of the issues on training, transport, pocket money, savings, safety, therapy or contact, either individually or taken together, could constitute grounds for removing the girls at a time when the care they were given by the Ks as members of their family was of a very good quality.

It should also be noted that all the professionals, including the GAL, had supported the placement of the X and Y brothers whilst being fully aware of the history of the issues that had arisen between Social Services and the First Defendant.

Failing to visit or see the Claimants on their own or appoint an independent visitor

Had such visits been undertaken the social workers would have built up a degree of trust with the children which would have enabled them to make disclosure about the abuse that they now allege, Mr Johnson submits, with the same being true of an independent visitor. If the Ks had been highly resistant or unco-operative about unsupervised visits that would have been taken into account and also led to the conclusion that they were unsuitable foster parents and that the Claimants should have been removed. Mr Johnson also relies upon the concerns which had built up around the X and Y boys as set out in the judgment of District Judge White on 19 September 2005, CB/333-349 and the GAL report of 19 September 2005. F8/3510. He submits that proper assessment of the Claimants on their own in the light of the issues in their placement and the concerns about the X and Y s should have led to their removal before November 2004.

Both care experts criticise the First Defendant’s record keeping. It is not, for example, unusual for the boxes on the Looked after Reviews indicating whether the child was seen alone or with the carers are not filled in. Nevertheless it remains the case that many of the forms do show that there were visits to the child alone. I heard the evidence from Nancy Logue, which I accept, that she often saw the girls alone over the period of nearly three and a half years when she was their social worker. She would take the Claimants to their bedroom and speak to them. Sarah Pinnington also told me that it was her practice to see the children alone (see e.g. F3/1281). I accept her evidence.

As I understand the care evidence, social workers did not have to see the children alone on every single visit. Furthermore, the care evidence and the medical evidence indicates that it is common for abused children not to disclose to social workers either on review or visits. The Claimants knew Nancy Logue well and had a good relationship with her; they did not disclose anything to her even though they saw her regularly and on their own. They saw the GAL Mr Palmer in 1999 on ten occasions alone, but never disclosed any abuse to him.

I am however quite satisfied on the evidence that the social workers who visited the Ks saw the Claimants frequently on their own right through until Sonia Patel, the last social worker before their removal. They also got on well with her.

It is also right that some unannounced visits were made even though they were not then a requirement. Nancy Logue made more than one unannounced visit and was accepted by the Ks, and a foster worker saw the whole family in an unannounced visit in March 1999. F4/1647.

The purpose of seeing the children alone was to enable the sort of relationship to be built up between the social worker and them which would enable disclosure of matters which ought to be disclosed. I am satisfied that the First Defendant’s employees adequately performed that task.

From the time that Mr Quadri became the X and Y brothers’ social worker in late 2003 and for some time earlier with his predecessor Ms Peiterse, a difficult relationship built up between the Ks and the social workers, particularly with Mr Quadri. In March 2004 Mr Quadri considered that the Ks were denying him access to the boys and the Ks regarded him as being dismissive of them as “only foster parents”.

The boys were observed on occasions to be very quiet or apprehensive, reserved or fearful. (See judgment of District Judge White, September 2005 CB/328-340).

But the boys had had an exceptionally traumatic experience, having witnessed their mother kill their father. They were taken straight to the Ks on an emergency basis and the Ks received praise for the care that they were giving them. The GAL who gave evidence before District judge White described the Ks as having provided “consistent parenting and very positive nurturing”. When in June 2002 the First Defendant prepared form FF1 to consider the Ks as long term foster parents for the X and Y s’, they record that there was a strong bond between the Ks and the boys, that the boys wanted to stay there, that the Ks were committed to helping contact although the boys did not want to see their mother or maternal grandmother, who it had been said might have been involved in the murder, CB271-272; that the Ks would co-operate with counselling and take the boys to therapy. A and B were also consulted and were happy for the placement to continue (CB282). They had also been consulted and interviewed when the Ks first applied to become foster parents, (as indeed they had been interviewed when the Ks first applied to be foster parents).

Dielia Morgan had supported the placement on 8 July 2002 (CB300-309) and both girls had stated that they liked the X and Y brothers to Nancy Logue (F2/927, 939).

The main concern however was the Ks attitude towards supporting the boys through therapy. This concern was such that on 7 February 2005 the First Defendant determined that they should be removed from Ks care. Mr McNally, the Service Unit Manager wrote to them on that date. The main basis of the decision was their need for therapy and the reluctance of the Ks to support them in that in their difficult and tragic family circumstances. Mr McNally said that he wanted to make it clear that he did not intend any criticism of the Ks and recognised that the decision was painful for them and the family and would also be difficult for the boys. (F6/2808, 2809). In the notes of a meeting on 9 November 2004 CAMHS reported that they had observed that the Ks were committed reliable carers to the boys and that they clearly cared about them and treated them as integrated family members. District Judge White concluded on the evidence that Mr Ks residency application could not succeed. He respected what Mr K had done for the boys but he had not satisfied him that the needs of the boys for permanence and stability could be met by returning them to the highly unstable fraught and emotional atmosphere that existed in his home. The judge noted that the GAL, expressed the view that in spite of the concerns held she would have still supported the boys remaining with Mr and Mrs K were it not for the break down of the marriage and the awful allegations and cross-allegations made. CB346.

Meanwhile the evidence shows that the girls were content and prospering. Until the letter was written by SN in May 2005 no concerns had been expressed about the girls and both appeared to be thriving and happy and content at school where they were performing very well. The situation with the X and Y boys was specific and different. I am satisfied that it did not give rise to a need to remove the girls. I accept the opinion of Ms Schofield that there was no basis for either investigation or to remove them in November 2004 as Mr Jones contends for, and that that would have been contrary to their interests. It was not therefore negligent of the First Defendant or its employees to fail to investigate further the parallel with the X and Y brothers’ case or to remove the girls before May 2005 when they were removed.

I therefore reject the Claimants’ case against the First Defendant. Negligence has not been established to my satisfaction and the claim for the return of the foster care allowance or part of it, either under constructive trust or any other basis, is not justified.

In view of my findings that there is no liability against either the First Defendant or the Second or Third Defendants these issues do not arise. As they have been argued I would simply add that had I found liability against the Second and Third Defendants I would have considered myself bound by the decision in NA v Nottinghamshire County Council [2015] EWCA Civ 1139. The Children Act 1989 and subsequent regulations do not in my opinion affect the heart of the decision in NA. I would therefore have rejected the Claimants’ arguments on both vicarious liability and non-delegable duty.

The issue of quantum does not arise.

The Claimants’ claims against all Defendants are dismissed.