B e f o r e :
|A LOCAL AUTHORITY v R / B CHILDREN|
Crown Copyright ©
The LA has the burden of proving the facts it seeks and of proving that the Threshold Criteria are met. These issues fall to be resolved on the balance of probabilities. The law is clear and the Court follows the guidance given by the House of Lords in Re B (Children)  UKHL 35:
"The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." (Lord Hoffman, para.2)
Baroness Hale said (para.32):
"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof".
If the LA cannot establish the facts to the required standard, they are to be treated as not having taken place. The LA therefore bears the burden of establishing that the parents acted towards the children in the ways that are detailed in the said Scott Schedule. There is no burden on the parents to establish that they did not so act. They are also not required to provide any satisfactory or benign explanation as to why L and J have made statements about their conduct towards them (Re M (Fact Finding Hearing: Burden of Proof)  2 FLR 874)
a) Dr. H Consultant Child and Adolescent Psychiatrist
b) CB and GE, the Allocated Social Workers
c) MR, Maternal Aunt presently caring for L and J
d) Ms. CT, Independent Social Worker
e) The Nursery/School staff Ms S, Ms W, Ms C
f) L's foster carer, HM
g) Both Police Officers who attended at the school, DC K and DC B who conducted the ABE interview of L
h) The Parents MB and KR
Dr H said that such an event would be well remembered by the children. MR told the court that P discussed the incident with her siblings.
This assault was likely to have been a significant memory for L and J, not least because it marked the beginning of their separation from their parents' care until August 2013.
The parents are a couple; the father formally lives in his mother's home in Battersea and the mother in the LA. The father stays with the mother the majority of time.
There was nothing complained of by the children during these 5 weeks. There was no evidence of physical harm noted.
"I was telling T…. who had hurt someone that I didn't like hitting. J was standing nearby. J said "I don't like punching" I said "I wonder who punches you" J said "my daddy do punch me" He continued playing then said "my mummy make me cry". I said I wonder why she makes you cry" J answered "hurt me and smack me and punch me"
I note that the teacher asked "I wonder who punches you" which invites J to suggest someone's name and introduces the idea of "you" ie J being pushed. J himself had not suggested to his teacher that he was the victim of being punched until she suggested it to him. This is an early example of J diverting adult attention to himself.
In my judgment J had the opportunity during these hours to repeat to L what he had said to Ms C.
At 16.50h CB and Ms W the Asst Headteacher spoke to J. CB produced in evidence a note written by her the next day at 8.26am. CB could identify only 3 of the words J said, "L" "Mummy" and "Punch". CB was not certain which way round the words were said. Ms W believed that J said "L punch Mummy" and according to DC B Ms W was sure at the time on 19.9.13 that the words were said that way round.
It is common ground that J had unclear speech that was quite difficult at times to understand.
There are deficiencies in the interview process, which are highlighted by ISW, Ms CT on both her reports. DC B largely accepted these in her evidence. Dr H agreed there were deficiencies.
The deficiencies include the following:
a. adult language was used by the officer e.g. audio, cassette tapes – with no explanation to ensure that she understood;
b. early in the interview DC B referred L back to their conversation of the previous evening rather than allowing the interview to progress more freely. The officer did not accept this criticism in cross examination and said that L was already aware of why she was being interviewed. In circumstances where the DC had not made a note of the discussion the evening before this is an even more concerning technique.
c. L was not asked what made her happy before what made her sad. There was no attempt to introduce any balance.
d. L substitutes 'P' for 'Mummy; this is not properly clarified and nor is the context; The mention of P hurting her was not explored at all, just ignored, in contrast to remarks about her mother which were followed up, indicating that the officer was more interested in mummy than other names.
e. The misleading impression is given to L that some things are believed and others are not without the statements being given the same inference and weight;
f. L was distracted, active and difficult to interview.
g. Constant leading questions were used and there was reinforcement of negative responses in relation to Mummy;
h. No clarification of context, time place, who present or the use of the certain crucial words e.g. 'hit' 'flip' and 'flick'. No exploration of what hit flick etc meant.
i. Clear lack of open-ended questions;
j. Clear examples of the child being rewarded for answers perceived as 'positive' by the interviewer with specific inducements including playing with toys when she is clearly bored of being interviewed;
k. Significant inconsistencies that were not explored – e.g. 'Mummy is a he'; the comment that 'M' the 'baby' had punched her. It turned out that M had in fact merely made baby KR cry, and had not punched at all. This would have been an excellent opportunity for the officer to try to find out what L meant by punch.
l. Significant levels of miscommunications, which were not clarified;
m. There was no social worker present
n. It is significant that L emphatically stated that she liked living at home with no indication of fear
Her professional view, which I accept, is that the mother has undergone a major change since the commencement of the earlier proceedings in August 2012 and that she felt she would know if the mother was lying to her.
I agree with her that it is troubling that the children have actually made complaints of physical harm. Her professional view is that they cannot be perceived as truthful in origin.
Ms CT told the court that she felt the children had been removed prematurely when L and J had only been home a few weeks and had not been given an opportunity to settle.
In evidence she gave a great deal of consideration to the possibility put to her that the children have a memory of the assault on P, and by P on her aunt MP.
In her own interview with L Dr H asked her what happens if she is naughty. When L said "nothing" Dr H said that sometimes when people are angry they shouted or smacked. Then L said "she shouted and she slapped". At paragraph 95 of her report Dr H skims over this exchange and her role in it by saying, baldly, "L told me her mother shouted and slapped".
I was very concerned to read these parts of the report. Dr H had not accept L saying "nothing" in response to her question and Dr H herself suggested shouting or smacking. Dr H herself agreed in evidence that this was not the ideal way of getting information from L. It gave me real concerns about the way Dr H had approached her instruction.
The LA relies on evidence that J was aggressive in the waiting room for the Child Protection medical and hit a child. Given that J had been removed from school by Social Workers the day before, taken to his aunt's home, taken to hospital for a medical, if he was acting out, there is no possible connection to his mother's care in my judgment. He was probably very confused by the events of the preceding day and weeks.
According to his teacher there was nothing remarkable about J's behaviour until after he was removed on 19.9.13. The Headteacher Ms S said the incidents of concern seemed to have occurred after this date.
The parents had supervised contact with the children; any suggestions from the children that they were being aggressive because the mother told them to are incompatible with the contact supervision records which reveal nothing of the sort. I have not been shown all of the contact notes but the LA has referred me to various notes on different points.
Any incidents of aggression cannot be linked to parental care.
The LA seeks a finding that "the parents are unable to work consistently and openly with professionals."
The LA asserts in submissions that the parents are able to work with some professionals at times and that that their engagement is not always consistent. This is probably accurate.
The LA submits that they rely on the fact that there were difficulties in reaching an agreement with the parents at court on the last day on the previous proceedings on 12.9.13.
I cannot see how the LA can rely on this as a relevant factor in this Threshold Criteria in these proceedings. It was of great importance to the Social Workers who gave evidence before me; they kept referring back to it and to the one missed SALT appointment for J. In any event the LA provided a "Schedule of Requirements" document on 12.9.13, it was rightly re-titled "Working Agreement" but the LA still sought that it be signed up to. After legal advice and discussions the parents made it clear that they would sign the amended "Working Agreement" document which I have seen. It is entirely reasonable, and I note that the District Judge went on to make Supervision Orders, agreeing that the children's welfare was best met in the care of their parents.
The parents have attended all core group, Child Protection meetings and Looked After Children reviews from August 2012 to date. The mother did not attend J's first SALT appointment; she has attended the rest successfully. Her probation officer on 16.7.13 suggested the distance to the SALT was excessive for the parents.
The mother has engaged and co-operated with Meanwhile Therapy, and willing to engage with the Family Recovery Project. GE in cross examination accepted that there was very little the parents haven't got the children to and that the parents have put in an incredible amount of effort. He said that the father was for the most part reasonable and easy to work with.
On 19.9.13 according to the school staff the parents co-operated patiently in the most difficult of circumstances.
The parents have demonstrated a working relationship with a number of professionals.
The mother wished to breast feed baby KR, it took the LA 2 weeks to provide a breast pump. This is hardly working in co-operation with parents who hold parental responsibility.
The LA relies on inappropriate comments made by the parents in contact and 4 contact notes were provided. I will be frank; I thought I had been given the wrong notes. There is almost nothing untoward at all in these notes. The mother is referred therein to being discreet in her discussions with the supervisor and if anything I was pleased to read such positive accounts from the independent sources at contact.
I am not at all satisfied that "the parents are unable to work consistently and openly with professionals."
Even if I were so satisfied – in circumstances where no other finding is made, this one line alone cannot found the basis for threshold criteria being met.
The parents mistrust the Social Work team. There is a Supervision Order in force, the LA must advise, assist and befriend the family. The parents must allow them to do this. I strongly encourage senior management to approve a change of SW team. A fresh approach to this family is vital. Working in co-operation with this team would be very difficult for any family given the Social Workers' clear view, even before the fact finding hearing, that the children could not be returned to their parents, a Social Work team who made arrangements for an adoption family finding Social Worker to visit the children during the days of this hearing (fortunately this was stopped before it took place), a Social Work team who have not, in my view, taken a proportionate and measured view of the evidence as it arose.
The 2 children need therapeutic input to help them make sense of the events of their young lives.