IN THE KINGSTON UPON THAMES COUNTY COURT

19.3.14

Before:
HHJ Corbett
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Between:
A LOCAL AUTHORITY  v R / B CHILDREN
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JUDGMENT
1.	 I have conducted a Fact Finding and Threshold Criteria Split hearing. The welfare hearing was originally listed also during this week but the Local Authority (LA) sought to adjourn that due to not having finalised its care plans, they having decided (pre fact finding) that the children could not be returned to the parents’ care but not having finalised their alternative plans. I agreed and retained the listing for fact finding and Threshold Criteria hearing. The welfare hearing has been listed for 16th June time estimate 5 days.

2.	I am asked by the LA to find as facts matters 2-12 on the composite schedule at A51-56, namely allegations of physical abuse by the mother and/or father against the 2 children L and J and an additional matter pleaded in the draft Threshold ie “the parents are unable to work consistently and openly with professionals”. The parents submit that upon analysis of the evidence none of the findings should be made. The Children’s Guardian has played a full part in the hearing and through counsel has drawn the court’s attention to the strengths and weaknesses of the evidence. 

3.	I have been greatly assisted by all 4 Counsel during the hearing and by their detailed submissions. 

4.	THE LAW

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) [2008] 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) [2013] 2 FLR 874)

BACKGROUND

5.	This is the second set of proceedings involving the parents MB and KR (the parents). The first concerned P, K, L and J and ended after 13 months of proceedings on 12.9.13 when DJ (MC) Arbuthnot made a Supervision Order to the LA. The 2 elder children P and K were to live with their father Mr H.  J and L had been returned to their parents’ home on 11.8.13 along with baby KR who was born during those proceedings on 27.5.13 and had remained living with the parents. The Threshold was agreed by the parties to those proceedings on 12.9.13. 

6.	On 19.9.13 all 3 children (L, J and baby KR) were removed from the parents’ care following an allegation made by J that day at school. The 3 children have been placed separately since 19.9.13 except that since 21.2.14 L moved to join J with maternal aunt MR. 

WITNESSES

7.	The hearing lasted for 5 days and evidence was heard  from the following witnesses:             

      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

CHRONOLOGY

8.	I set out below a detailed history of the relevant events with my observations as to the strength of the evidence and/or my analysis. (references to “children” should be taken to mean L and J unless indicated otherwise). I do not propose to set out each witness’s evidence; I will refer to relevant evidence in the chronology and analysis. I have of course read the entire trial bundle and additional documents prepared and watched L’s Achieving Best Evidence interview (ABE) 4 times. 

9.	Until 28.8.12 L and J had always been in the care of their mother; they were then 3.9y and 2.2y respectively. On that date she assaulted P in their presence, while drunk. Following her arrest the mother agreed to the children being accommodated. L and P were placed together with the mother’s sister MP, J with her sister MR. The LA unsurprisingly commenced care proceedings. 

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. 

10.	On 24.12.12 P assaulted her maternal aunt MP, witnessed by L. Dr H again agreed this was likely to have been a significant memory for L.

11.	On 27.5.13 baby KR was born and remained in the care of his mother. 

12.	On 10.6.13 J approached Ms A a Speech and Language Therapist (SALT) visiting his nursery; she was not his treating SALT. He told her “mummy pushed and hurt me here” and pointed to his right eyebrow; he said and did this twice. She could not see a mark on J. One of the 2 allocated Social Workers, GE, accepted in evidence that this incident could not have happened as described; the mother was not having unsupervised contact with J in this period. The LA does not seek to prove this but it is a relevant complaint as part of the chronology. It is the first time that either child made any complaint against either parent. 

13.	On 10.7.13 GE spoke to J, he said in evidence that he decided not to ask J directly about what he had said on 10.6.13 because he doubted his ability to recall from a month earlier. J told GE that he was happy at home.

14.	On 22/23.7.13 it was noted that J had an injury to his upper lip/nose area. He gave a variety of explanations; to MR he attributed it to L, to his mother he blamed MRs’ children and also said that all 3 of his cousins has caused it. He said “they beat me up and I beat them all up”.

15.	On 2.7.13 the rehabilitation plan began to the parents. The first unsupervised visit for L and J with their mother was 2.7.13. Before the children moved home full time on 11.8.13 some work was done with them about the move home which focused on practicalities. I accept MRs’ evidence that she was not given any guidance about how to assist J emotionally during this period. The other allocated Social Worker CB was unable to give any evidence as to what, if any, advice the LA gave to either child’s carer. I deal with this below at paragraph 73.

16.	On 11.8.13 L and J moved back to the mother’s care full time. 

17. Between 11.8.13-19.9.13 the family was visited regularly by Social Workers, Family Support Worker, Health Visitor, J was taken to SALT (the mother missed his first appointment but kept subsequent ones), baby KR was taken to appointments including medical and L and J attended school/nursery from the beginning of term, J starting a few days into the term due to a staggered intake.

There was nothing complained of by the children during these 5 weeks. There was no evidence of physical harm noted. 

18.	On 12.9.13 a 12 months Supervision Order was made by DJ (MC) Arbuthnot.  P and K by agreement were to live with their father Mr H, with contact to their mother. The LA arrived at court with a document headed “Schedule of Requirements” which they wished the parents to sign.  This may have been sent via the legal department the day before, but the parents had not seen the list of requirements until the hearing day. There was discussion about this all day at court. 

19.	The parents were willing to sign an amended document called a “Working Agreement” which differed in a few ways. I set these out later at paragraphs 82-83.

20.	Despite the fact that the LA original document was not signed at court the District Judge was presented with an agreed position that the children remain in the care of their parents, the father agreed to a Supervision  Order, mother’s counsel made brief submissions that one was not required and the District Judge made a Supervision Order. All parties on 12.9.13 must have been of the view that the 3 children’s welfare was best met in the care of their mother and father. 

21.	On 19.9.13 J made comments to his nursery teacher Ms C. Her note reads:

“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. 

22.	The school contacted Social Services who called the police. I fully understand why the school took that action, but it appears to me that the Social Workers should have taken time to consider what J said to his teacher in the light of his obvious untruth to the SALT on 10.6.13. The Social Work team did not seek to ask question the illogicality of J saying on 10.6.13 that his mother with whom he had had only supervised contact for 10 months could have injured him on the eyebrow, where in fact there was no visible injury. It was only at the end of day 5 of the hearing, when all of the evidence had been heard and in answer to my question about the schedule that Counsel for the LA confirmed that they did not seek to prove the allegation on 10.6.13. Further the Social Work team knew that J had given varying accounts of the injury to his upper lip on 22/23 July 2013. They were aware by 19.9.13 that J was known to have made false statements.

23.	At the end of the school day on 19.9.13 J and L remained in the room shared by the Nursery and Reception class, which had a pull across divider/partition. They spent a number of hours playing in this room according to the Headteacher Ms S. 

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.

24.	Where was L during the conversation with J?  The Nursery and Reception classes had one large room with floor to ceiling pull across partition/divider. J was in the Nursery side of the room. L was playing on the computer on the Reception side of the room, near to the divider. CB was unclear whether the divider was closed, Ms W said L was on other side of the divider.  Ms C said it is likely that she left the partition open. Ms S was in and out of the room a few times and clearly remembered L in the same room as J, she indicated a distance about 4-5 metres apart. I cannot come to any firm conclusion as to whether the divider was open or closed given these varying accounts – but I can be sure that L was playing on a computer in the Reception end of the room, a few metres away from the conversation with J and there were no other children around apart from J. Even if the divider was fully or partly drawn, L was sitting at a computer near to the divider in a quiet room. L could well have heard the discussion between her brother and CB and DC B. She would have known that to stay behind at school in this way with adults talking to J was unusual. 

25.	Later DC B and CB spoke with L. There is no contemporaneous note of this “interview” – which is the word used to describe it by CB in her file note. This is poor practice by them both as professionals having discussions/interviews with a 4 year old. CB’s file note says that she did not take a note as DC K was doing so. DC K has confirmed that she was not taking a note and was sitting some 8 metres away. 

26.	CB notes that the police asked L  directly if anyone hurt her at home, she initially said J but then went on to say clearly that mummy had punched her and when asked where she advised it was in the stomach and demonstrated this by punching her own stomach with a closed fist, she made reference to smacking. When asked if she wanted to go home L said no but CB did not know if this was because she was having a great deal of fun on the computer.

27.	DC B told the court that J was playing on the other side of the room about 5 metres away while she was speaking with L.

28.	CB did not note or recall any complaint by L against her father. DC B has no recollection of such a complaint. DC K completed a CRIS report at 19.56h referring to a conversation between DC B, CB and L “L also disclosed to DC B that dad slaps her but it is unknown were [sic]”

29.	DC B agreed in evidence that when she was summarising the conversation to DC K she would also have been discussing the earlier allegations made by J when deciding whether to exercise police powers of protection. 

30.	The only reference to L making an allegation against her father is a note made by DC K who did not hear the relevant conversation. Those who did speak with L were involved in safeguarding and it is highly unlikely that the Social Worker would have failed to note or recall such a complaint by L about her father. 

31.	I find that it is unlikely that L made any allegation against her father in this discussion with CB and DC B.

32.	The lack of any contemporaneous note, the fact that somehow DC K has introduced the idea of a complaint against the father in her CRIS report which even CB does not note, the blunt question by DC B asking if anyone hits her at home, and the evidence that L is happily engaged at the computer, all leads me to have real concerns about what L is alleging, if anything.

33.	The children would have known something significant was happening when they said goodbye to their parents and went off to stay elsewhere. I agree with the submission by Counsel for the father that the children are likely to have realised that complaints of physical abuse attract adult attention.

34.	The police took the 2 children, plus baby KR who had come to school with the mother, into police protection. The parents were allowed to say goodbye. The police and school staff all described the parents as cooperative and appropriate at school that evening, particularly given the circumstances. 

35.	All 3 children were separated in placements. The parents have had only supervised contact since then, 6 months ago.

36.	Later that evening L stated that she did not want to be cared for by her aunt MPand that her aunt had hit her. L subsequently informed her aunt MR that aunt MP had not hit her. The LA view is that there is no truth in what L alleges against MP. L went to an emergency foster placement that night and to a different foster carer MH the next day, where she remained until 21.2.14 when she moved to her aunt MRs’ home following L’s allegations of harm by MH.

37.	J was placed with MR on 19.9.13. On that day J told her 10 year old son that his “mummy burned me daddy punched L in the belly and my mummy and daddy slapped K in the mouth”.  It is a fact that no burn was noted at the Child Protection medical or otherwise. It appears therefore that J was saying something clearly untrue.

38.	On 20.9.13 DC B carried out an ABE interview of  L. I have watched this several times. I have no hesitation in concluding that this was a difficult interview to conduct due to L being very unsettled, but equally that this is a flawed interview. The LA relies upon this interview and asserts that L’s statements are reliable.

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

39.	On 20.9.13 Child Protection medicals were carried out on both children by a doctor who had been given detail of what had been alleged. No unexplained injuries were noted, the children’s presentation was entirely normal, baby KR was said to be thriving. L is noted to be well looked after and thriving, presenting as sociable cheerful and chatty. J was also in good health, well presented and chatty. 

40.	On 25.9.13 CB’s statement gives an account that GE visited the children at school and that L appeared relaxed after she was told by GE in answer to her question “you watch me” that she would be watched . GEs’ file note placed a different slant on this, it quite clearly sets out how the children say they want to see their mother and L misses her, and that her mummy makes her happy, and L said “you watch me” and GE said a nice lady would [watch her] . There is no reference at all in GEs’ note to L’s face and body language appearing relaxed after hearing she would be watched. L spoke very positively about her mother, not at all apprehensive about seeing her, despite what CB says (who was not present). J told GE that all his friends hit him and make him sad, but then went happily to sit down and play with another boy. CB’s statement does not accurately reflect GEs’ own file note and gives a misleading impression that L is seeking reassurance that there will be supervision. I also note that L  is a child who knows that she has been “watched” for a year in contact, so someone watching would not be unusual for her.

41.	L’s foster carer MH says that on 1.10.13 L, whilst saying she wants to see her mum said “sometime my mum beat me and then my kidney hurt”. The foster carer reported this to the LA the next day. A note has not been produced by her despite the fact she said she kept a diary. It is not suggested that L knew what a kidney is or where it is.

42.	On 4.10.13 at contact J made a statement that his teacher cut his nose with a knife. His teacher denies this and the allegation appears untrue, but it is noteworthy that he said it. 

43.	On 7.10.13 J made statements to MR. He denied being burnt or hurt by his mother, and said “mummy never hit the baby”. When asked if she did burn him he did not respond. When asked a leading question if she had burned or hurt him he said yes. (this is a very interesting piece of evidence and it seems to me that if asked questions in a certain way J confirms, even though he had retracted what he said. There is no evidence that J was ever burnt by anyone)

44.	On 11.10.13 J said that his escort had hit him and swung him around. This seems unlikely. J said this to MR after she asked why he had been hitting the escort himself, again it appears the allegation may have been made to deflect attention from him own actions. 

45.	On 16.10.13 MR said that J was crying saying K, her son, hit him. MR told the court she was sure that this could not have been true as K was downstairs and she would have seen him go past her. This shows J is capable of telling untruths, and with emotional distress accompanying.

46.	Also that same day a one year old child R accidentally caught J in the face causing a small scratch above the nose. J told MR that R had punched him in the face. This raises a question for me as to whether J knows what “punch” means? And/or whether he deliberately told another untruth.

47.	On 16th and 11th October J volunteered to MR that his mother did not hurt or burn him. 

48.	On 6.11.13 Ms C says that J made a statement that day in circle time. The class were taking turns to say “I don’t like…” Some other children said “I don’t like hitting/punching”, J said “My mum just hit me on the leg”, and went on to say his mum flicked him, hit him in the belly, and punched L in belly and mum smacked him in the belly and face. No contemporaneous note was produced by Ms C. She rang GE 2 weeks later on 20.11.13; he does not recall her referring to a note. If one existed I am surprised that she did not send it to GE. A school safeguarding form completed by Ms S on 21.11.13 differs from the email sent to GE on 20.11.13 as to the latter part. It seems likely that on 20.11.13 Ms C was trying to recall what was said by J on 6.11.13. When reading her 20.11.13 note it appears that J having got the class’ attention adds something extra with each successive sentence. 

49.	Later that day in contact the contact records that J alleges his mother hurt him when she carefully pushed his chair under the table. The note puts the word carefully in bold. This is another example of J making an allegation which is demonstrably untrue.

50.	On 21.11.13 again in front of whole class J said “I am sad when mum hits me in the face and dad punches L in the belly. But not C he don’t do nothing”. GE visited J that day. J said he felt happy when baby KR cuddles him and “then my dad punches me in the belly”. It is odd that J describes himself as happy then discloses physical abuse. J expressed his clear wish to see his parents and go home. 

51.	On 26.11.13 J was taken to see the Asst Head Ms W due to bad behaviour. He said he wanted to talk about that incident later and instead he wanted to talk about his parents then proceeded to say his parents hit him all the time.  J seems to understand that his comments attract attention and that he is trying to deflect attention away from his own behaviour.

52.	On 28.11.13 J said to his teacher in front of other children that he had a gun at his house, following his saying that he loves his parents. His final remark was “that’s all I wanted to say” again indicating an attention seeking performance. 

53.	On 30.1.14 J said his parents poked him in the eye. It is inherently unlikely that both parents did that, and I note that the consequences of eye poking were not detected on J. 

54.	On 1.2.14 MR noted some of  L’s hair was missing. L said MH had cut it because it was dirty. On 20.2.14 L repeated to MR that MH had cut her hair with scissors because it was dirty, and said that MH had lied to the GP the day before when she informed him that the hair came out because her mum braided it too tight. The foster carer says that the hair was braided too tightly. The GP note adds nothing evidentially to this. 

55.	On 21.2.14, after a visit to MR, L got upset when told she was going back to MH, and said MH twisted her arm, MR demonstrated when giving evidence what L had shown her.

56.	The Social Workers met L at the contact centre. L said she had been with MH to the GP, and then went on to say she went to the dentist. L alleged that MH twisted her hand so much, she slapped her, she always makes her cry, and she slapped her so hard. Then when asked L said she had been slapped once by MH. She elaborated upon this by saying that she had been taken to the dentist, got a sticker and pointed to a gap in her teeth. MH says L did not go to the dentist but to the GP. The LA investigated and concluded that these allegations are unsubstantiated. It is not my role in this hearing to determine if the foster carer hurt L. I can note is that the foster carer said that she has experienced L lying to her and maintaining the lies even though the truth can be seen. I can also note that the LA relies on the truth of what L says about her parents, but not about her complaints relating to her foster carer. 

57.	MR looked after J from August 2012 to August 2013 then since 19.9.13. She says in her statement that as time has gone on she has found that J will tell lies and can make things up as he goes along especially when he feels he has an audience. She told the court it can be difficult to know when he is lying; sometime he smirks sometimes not, and may say outlandish things like “my daddy eats doors”. 

DISCUSSION

58.	Ms CT an Independent Social Worker (ISW) was involved in the previous proceedings and re-instructed in these. She has over 30 years’ experience in child protection. She had said in her reports that she recommended a veracity expert be instructed. I had ruled that one was not needed. I refused an application by the mother to instruct a child psychiatrist to advise as to veracity. In fact Ms CT said in evidence that she did not recommend such a psychiatrist but an ISW expert in interpreting ABE interviews. Does the fact she made this recommendation detract from her evidence? I did not think so, and found her fair compelling and helpful. She sets out her considerable concern about the ABE process in her report, with which I agree. She told the court that upon watching the ABE she sensed no distress or anxiety from L. I agree with her completely. 

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.

59.	Dr H, Child Psychiatrist also reported in the previous proceedings. She found L’s accounts in interview credible on the subject of her being hurt by her mother. Dr H has not been trained on ABE interview techniques since the 1980s and has not re-read the guidelines recently. She placed reliance upon on the emotional presentation of the children. This was not noted by me when I watched ABE of  L, and as set out earlier, there is clear evidence from MR of J crying when alleging assault by K which was clearly untrue. 

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. 

60.	However, by the end of her oral evidence she appeared to be saying that: the children have experienced physical harm, the degree extent and timing is hard to determine, and it is heightened by their experience of the assault by the mother on P, and P on MP….it is likely the children experienced some treatment they don’t like…..I don’t see L as being deliberately untruthful but I accept a degree of confusion and a degree of emotion as to P…..What I am not sure of is how much of it was new behaviour in the 5 weeks at home, I suspect the mother was attempting to manage L’s challenging behaviour…..I can see the deficiencies of the ABE interview….I find it difficult that a child makes allegations against a parent when they want to be with that parent without there being truth in it…..I feel convinced that there’s no reason L and J made a series of allegations if the period home had not been aversive [sic]…..Children who are not verbal do have powerful memories (when  asked if they could remember pre August 2012).

61.	The LA relies on Dr H to support their contention that the court should make the findings. Dr H conceded that the ABE interview had deficiencies, she herself conducted quite leading examination of L, she agreed that it was not possible to separate the children recounting from their own experience from what had happened to P and that even though that was back in August 2012 children do have powerful memories. 

62.	The more I heard from Dr H the more I felt her oral evidence had moved significantly away from her written reports.  

63.	No complaint was ever made by the children to the Children’s Guardian who has seen them in a variety of settings in both proceedings.

64.	The parents each gave clear and measured evidence. They are clearly bewildered and frustrated by this second process. I gained the clear view that the mother lives daily with the consequences for her family of her assault on P. They both appeared uncomprehending of why the children have said what they have. They deny any assault on either of L or J. I did not get the impression that either was covering up for the other. They were cross examined by Counsel for the LA about the allegations. I was impressed by the mother’s quiet dignity in such trying circumstances as this case, which she knows began with her originally. I found each of them quite credible witnesses.

65.	The children’s various statements lack any context as to time, date and surrounding circumstances. They are never asked by the adults, tell me more, or are you sure, who else was there, who saw this. The allegations against the parents appear to have been accepted by the LA at face value, unlike the allegations made about others eg MH.

66.	There is no medical evidence to corroborate the allegations of ill treatment. To the contrary the Child Protection medical notes they are well cared for. 

67.	The parents had worked hard to achieve the children’s return home in August 2013, after a year’s separation. The mother had a criminal conviction relating to her assault on another child. The parents were under scrutiny from a variety of professionals from 11.8.13 to 19.9.13, with a 12 months Supervision Order, Social Work visits at least once a week, Family Support Worker, school, SALT attendance, GP attendance, probation and the mother having had a suspended sentence of imprisonment. There is no evidence of their inability to control the children’s behaviour appropriately. It is inherently unlikely that the parents having been closely observed in supervised contact for a year would during the 5 week period which they describe as “joyous” beat, hit, punch and flick their 2 children, 2 children in relation to whom there had never been a previous allegation of abuse. The contact notes refer to appropriate and happy times spent in supervised contact, and no allegation was ever made by either child against the father during his unsupervised contact times.

68.	The mother was engaged with the programme of work set out by the LA. During this 5 week period there was no concern raised by any professional about the care the children were receiving, the school felt the children settled well, and that she engaged well with the school, and the children’s behaviour was not of any concern. 

69.	The first complaint made by J on 12.6.13 was clearly false. A momentum seems to have built since then. The professionals who knew J from nursery school agreed he had SALT difficulties. 

70.	Both children have made some demonstrably untrue assertions. Those who have provided care for L have known her to make false assertions, MR and MH. Both children have enjoyed the attention their remarks have brought. Both children refer to hitting their parents back which leads one to imagine that they are “fighting” in play rather than abuse. When the children have made remarks about their parents hurting them, they have not been accompanied by signs of fear or distress. To the contrary the remarks are often made accompanied by positive remarks about their parents and/or wanting to go home or see them. J has been obviously distressed when making allegations against his cousin, which were in fact untrue. 

71.	J makes numerous allegations mentioning his father, it is surprising that L makes no reference to these if they had indeed occurred. This suggests that any allegations J makes against his father are unreliable. 

72.	Why are children saying these things, about their parents and other adults and children? It is not necessary for me to decide this in order to make fact finding decisions (Re M 2013 2FLR 874) but I have tried to look at all of the evidence and work it out.

73.	I consider it likely that these 2 children are confused about the return home, trying to make sense of why (and it from the Social Workers’ evidence that no real work was carried out with them about that) and confused at then being separated from each other again. MR told the court that no specific advice was given to her as to preparing J for his return home. CB told the court that she could not recall any specific work being done with the children or their carers to prepare for the return home. GE has produced 2 file notes of visits. Having read these I am not satisfied that any proper explanatory and preparatory work was done with the children to explain their permanent return home, and I accept MRs’ evidence that she received no advice about this. This may well have contributed to the children’s confusion. The exercise which the 2 Social Workers carried out on 9.7.13 and 18.7.13 respectively with a drawing of 3 houses and talking about who lives in each may well have caused confusion. 

74.	Dr H and Ms CT agreed that the children’s statements could reflect their trying to process the significant events of the past ie the mother’s assault on P and P’s assault on her aunt MP. Perhaps they were trying to make sense of why they had been removed from their parents care in August 2012? Perhaps they were unsure how long they would remain there? Ms CT thought this might fit. Dr H said it was not possible to separate what may be the children’s experience of the parents, and what may be trauma from other incidents they have witnessed

75.	It is accepted that the children had frequent contact with P from August 2012, L was placed with P initially. It is more likely than not that the children will have heard P talk about being hit by their mother. MR told the court that the family (rightly) disapproved of the mother’s assault on P and that the family spoke about this when the children were both in and out of the house. 

76.	Ms C said that J was desperate for attention a lot of the time. His allegations made in June and September gave him attention it seems. I accept MRs’ evidence that J liked to have an audience, as his carer for over a year she will know him well. 

77.	It appears that hitting and rough play was part of the children’s lives, with each other and with their cousins. 

78.	On 19.9.13 as every day L and J had a lot of access to each other in class and in playground. Once school ended at 3.15pm they had open access to each other until the police arrived almost 2 hours later. I have dealt with this in some detail in the chronology above. 

79.	The parents co-operated with the children leaving with the Social Workers on 19.9.13, this co-operation is likely to have assisted the children. The mother says that J had wet himself; she felt this as she hugged him, there was no challenge to this evidence. CB said there was further wetting since the parents had left. I cannot draw from the LA evidence that the children showed little distress which is in some way corroborative of a complaint of ill treatment.

80.	ALLEGATION 10

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.

81.	I have considered with some care all of the oral and written evidence and ABE interview. The evidence taken as a whole does not come even close to the necessary standard of proof of a balance of probabilities. I am not at all satisfied that either parent together or apart has physically harmed L or J. The allegations in the schedule 2-12 are dismissed.

82.	WORKING WITH PROFESSIONALS

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. 

83.	At the time of the making of the Supervision Order on 12.9.13 the parents were willing to sign a Working Agreement but at that stage the father was not convinced of the need for him to engage in the Family Recovery Project given the evidence in the earlier proceedings. He said in evidence that he was willing to consider engaging in the Family Recovery Project but had not come to a decision (by 7 days later when this case began again) wanting more information as to its time commitments and how it might affect his college/work before he decided. The father has not sought to prevent the mother or the children engaging.

84.	The mother did not want the children to see her sisters until she had resolved the issues in the sisters’ relationship and wanted to introduce contact when she felt it appropriate. The mother did not want the Social Workers to see children at school, but was willing for them to be seen at home. She submitted a Supervision Order was not necessary, given that she had agreed to the amended Written Agreement. There is no issue that the mother has engaged with the services set out in the working agreement. 

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. 

85.	I am entirely satisfied that the parents have worked openly with a number of professionals namely CAMHS, Ms CT, the police, the mother with probation, the school and the Children’s Guardian.

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. 

86.	The parents have been living under huge strain. The children returned home after one year and then all 3 were removed after 5 weeks of L and J at home, baby KR then aged less than 4 months. Despite a positive kinship assessment of the father’s mother upon the LA’s own instruction, the Social Work team refused to place any of the children with her, and have not provided any real explanation as to why they do not follow this positive recommendation. The LA position one week after removal last September was that there should be no further assessments or rehabilitation. I agree with Ms CT that this was completely inappropriate.

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. 

87.	The LA were right to investigate once J had made his allegations, but a proper and detailed analysis of the evidence leads me in no doubt at all that the findings sought should be dismissed.

88.	I encourage the father to find out more about the Family Recovery Project and to give it serious consideration. 

The 2 children need therapeutic input to help them make sense of the events of their young lives. 

89.	The Threshold Criteria not being met, I encourage the parties to have discussions about the children’s return home, how they can be prepared for that and how it can be properly explained, I fully expect the parents to co-operate with a s20 agreement for a short time to enable the return home to have the best possible chance of success.

MC 19.3.14