Strand, London, WC2A 2LL
B e f o r e :
| BIRMINGHAM CITY COUNCIL
|- and -
(2) and (3) L and B
(Represented through the Children's Guardian)
James Tillyard QC and Peter Anthony (instructed by The Firm Solicitors LLP) for the First Respondent
Lawrence Messling and Yolanda Pemberton (instructed by Anthony Collins Solicitors) for the Second Respondent Child L
Andrew Neaves (instructed by Evans Derry) for the Third Respondent Child B
Damian Garrido QC and Jason Green (instructed by Painters Solicitors) for the Intervener
Hearing dates: 29,30 June and 1,2,3,6,7,8,9,10 July 2015
Crown Copyright ©
Mr Justice Keehan:
a) J, who was born on 28 December 1996 and is 18 years of age; and
b) C, who was born on 22 November 2001 and is 13 years of age.
a) A, who was born on 1 June 2005 and is 10 years of age;
b) LH, who was born on 12 May 2006 and is 9 years of age; and
c) K, who was born on 4 August 2007 and is 7 years of age.
Findings of Fact
1. There are reasonable grounds for believing that the children L and B have suffered significant physical and emotional harm in the care of their mother. The harm is attributable to the care being given to her or likely to be given to them by her not being what it would be reasonable to expect a parent to give their child.
2. The physical harm which L and B have suffered includes sexual abuse by their stepfather PH. The children have also been exposed to sexual abuse of the sister C by PH.
3. The two subject children have grown up in a home in which sexual abuse of them and other children was a regular occurrence. The children have experienced poor boundaries in respect of their own sexualized behaviour
4. The emotional harm has been by way of witnessing the sexual abuse of each other by PH and being forced by him to participate in and be present during the sexual abuse of siblings.
Direct sexual abuse of the children by PH
5. L and B have been exposed to pornography and sexualised behaviour by PH. They have been threatened with physical violence by PH.
6. The home environment was one in which there was a high level of sexual abuse of the two children and other children by PH. B and L have been exposed to and aware of the following;
a. Sexual abuse of the children collectively and individually by PH.
b. Sexualized behaviour and activity between the children and in particular B, L, and J
c. Sexualized behaviour between B, L and their sister C
7. C has been sexually abused by her stepfather PH. B and L were aware of the sexual abuse of their sister by PH and have witnessed it.
8. J was sexually abused by PH.
9. J has seen his brothers B and L being sexually abused by PH and in particular the following findings are sought;
i. PH sexually assaulted B and J when J was 10 or 11 years old.
ii. B was sexually abused by PH on an occasion when J was present. J was told by PH not to tell his mother about this incident and he was threatened by PH
iii. PH behaved in a sexually abusive way toward B, J and L individually. C saw PH kissing each of the boys in a sexual way and following this she saw the boys kiss each other in a sexual way on more than one occasion
The children were exposed to pornographic materials in their own home and elsewhere
10. The three boys, J, L and B (and their sister C) were exposed to a range of pornographic materials by PH, CB and other adults
11. The mother was aware that PH had pornographic material including DVDs and that he downloaded them from the internet, sold them and possibly made films.
12. PH kept pornographic DVDs and films in the home. He sold them to others from the home and he supplied copies to CB. In particular the local authority asserts that;
a. All of the children were exposed to pornographic images and films in the home of PH
b. PH regularly brought pornographic films to the family home and these were shown to some or all of the children. The mother was present in the home on at least one occasion when this occurred
c. That B and L mimicked what they had seen on pornographic films and behaved in a sexualized way with each other and with C
d. L was shown pornographic films by PH on DVD players in his car
e. The mother was present on an occasion when PH showed images and films on his computer and on television to the children
f. PH was selling pornographic DVDs and his clients attended the home when the children were present
g. That CH was aware that PH kept pornographic materials in his home and told C about it
h. J was shown pornographic DVDs by CB on a DVD player in his home at the kitchen table in the grandfather's home
i. J was shown a film by PH of a woman engaging in sexual activity with a horse and C also saw the same film
i. J was made to copy pornographic DVDs by PH and that he was made to watch them
13. The children were exposed to pornographic materials at the home of CB the maternal grandfather.
i. On one occasion all three boys and C watched a pornographic DVD at this home
ii. J was shown pornographic films on a DVD player in the kitchen by CB
iii. CB frequently bought DVDs and videos from PH, which the latter kept in his own home.
Sexualised behaviour by the Children
14. As a result of the lack of sexual boundaries and supervision in the home the children were sexualized and on occasion the children engaged in sexual activity with each other. Much of this activity was instigated by PH or it followed on from sexual abuse of the children by PH.
i. That B and C engaged in sexual activity with each other and that L was present. J witnessed this on one occasion
ii. J and L engaged in sexual activity with C on an occasion in the family home
iii. L repeatedly kissed C in a sexual way and the mother was aware that this happened and saw it on an occasion
iv. PH sexually assaulted C and raped her when some of her siblings were in the home. On an occasion he used a knife to cut her clothes off. Tied her to the bed. The mother returned home during this event. C told her mother after the event and her mother did not believe her or take any steps in response.
v. That J and B behaved in a sexualized way towards C when PH was present on at least one occasion.
vi. PH touched C in a sexual way when she was not wearing any clothes and CH was aware that this had happened
vii. PH tied C and another child J to a bed naked on at least one occasion. All three boys, L, B and J were in the home and were aware of this happening
viii. On another occasion all three boys B, L and J were in a bedroom with C and they removed her clothes so that she was naked. CH came into the bedroom after this had happened
ix. That on about 3 or 4 occasions J 'had sex' with L (his sibling). This sexual activity occurred while they were watching a pornographic film
x. That B may have walked into a room on an occasion when L and J were engaged in sexual activity with each other
xi. That C walked into a room on an occasion when L and J were engaged in sexual activity with each other
xii. 'That L was present on an occasion when J engaged in sexual activity with C.
xiii. J was encouraged to behave in a sexual way towards his siblings by PH
xiv. J walked into a room when L and B and C were engaged in sexual activity with each other
xv. PH touched LH and sexually assaulted her on an occasion when L was present
xvi. PH tied C to a bed and played a game called 'Nervous' which involved him touching her all over naked body
The Children's mother CH failed to protect the children from pornography, sexual abuse and failed to impose boundaries on the children.
15. CH failed to protect her children from exposure to pornography or from sexual abuse by PH and that she was aware that L and B were sexualized and behaved in a sexually inappropriate way but failed to take any steps to protect the children. In particular
i. C told her mother that PH had raped her and the mother did not believe her.
ii. That the mother was aware that there was sexual activity between the children because C told her about this and she witnessed sexual activity between C and J
iii. That the mother was aware that J, L and B had behaved in a sexualized way toward each other and toward C.
iv. C stated to Dr B that her mother would split J and L up to 'stop them from doing it with each other or with C'.
v. CH was aware that PH copied and sold pornographic videos and DVDs .
The Children suffered physical violence from PH and were exposed to domestic violence.
16. PH was physically violent to B, J and on another occasion B was present when PH pulled a knife on CH and threatened her.
17. L witnessed PH being violent to his mother on at least one occasion
18. B was aware of or present on an occasion when PH 'pulled a knife' on CH
As a result of exposure to sexual materials and activity the children lacked boundaries and were highly sexualized
19. B brought a mobile phone to school and was showing pictures to children of a man's penis and of female genitalia in around 2011. B was heard to use sexually explicit language when he was about 9 years old and had a functioning age of about 4 years.
CH sexually abused J and was present when he was sexually abused by others. She failed to impose boundaries and exposed him to adult sexual activities from a young age.
20. CH has exposed J to inappropriate sexual behaviour and he has seen her having sex with a number of different men including oral sex. Occasions CH had sex in the living room or with her bedroom door open.
21. CH forced J to participate in sexual activity with several adult males. In particular that;
i. She showed him how to engage in certain sexual acts including masturbating a man and performing oral sex
ii. That she was present on an occasion when he was forced to anal sex with an unknown male acquaintance of hers
iii. On more than one occasion CH had sex with J
iv. That when he was about 8 or 9 years old his mother required him to participate in sexual activity with a male friend of hers about once a week
v. On at least one occasion friends of the mother engaged in sexual abuse of J when his mother was present
…. Painful past experience has taught that the greatest care needs to be taken if the risk of obtaining unreliable evidence is to be minimised. Children are often poor historians. They are likely to view interviewers as authority figures. Many are suggestible. Many more wish to please. They do not express themselves clearly or in adult terms, so that what they say can easily be misinterpreted if the listeners are not scrupulous to avoid jumping to conclusions. They may not have understood what was said or done to them or in their presence.
For these and many other reasons it is of the first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say, and equally it is vital that a careful note is taken of what they say and also of any questions which are asked. All this and many other similar propositions, most of them of simple common sense, are set out in nationally agreed guidelines entitled Achieving Best Evidence in Criminal Proceedings …
Later in relation to evidence which fell well short of being ABE compliant Hughes LJ continued at paragraphs 40 and 42:
There is no question of this evidence being inadmissible for failure to comply with the ABE guidelines, and that has not been suggested in argument for either parent. In a family case evidence of this kind falls to be assessed, however unsatisfactory its origin. To hold otherwise would be to invest the guidelines with the status of the law of evidence and it would invite the question: which failures have the consequence of inadmissibility? Clearly some failures to follow the guidelines will reduce, but by no means eliminate, the value of the evidence. Others may reduce the value almost to vanishing point.
… The purpose of the ABE guidelines is not disciplinary; it is to present the court and for that matter the parents with the most reliable evidence which can be obtained. In every case the judge cannot avoid the task of weighing up the evidence, warts and all, and deciding whether or not it has any value or none. Everything will depend on the facts of the case. …
Although the guidelines on interviewing children in the memo of good practice for criminal trials does not have to be strictly adhered to in civil cases the underlying principles are applicable to both care and family cases. Where guidelines were not followed, although evidence is unlikely to be excluded entirely, it is usually of such little weight that the court would not be able to rely upon it.
And Re W (Minors) (Wardship: Evidence)  1 FLR in which Butler-Sloss LJ (as she then was) observed:
Hearsay evidence is admissible as a matter of law but this evidence and the use to which is put has to be handled with the greatest of care and as such unless the interests of the child make it necessary the rules of natural justice and the rights of the parents are fully and properly observed. …A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon.
The children have suffered harm as a result of neglectful parenting. The particulars are:-
a) Throughout the spring and summer terms 2009 K was neglected, attending nursery in a dishevelled and unclean state with bruises on different parts of her body on numerous occasions. There were similar concerns raised about all the other girls throughout the year regarding their poor level of hygiene.
b) On 30 September 2010 a Child Protection Conference agreed that the First and Second respondents neglected the children in terms of their hygiene, the fact that the children were under achieving at school, had speech and language delay problems, they were aggressive and used offensive language.
c) In February 2011 K arrived at nursery with the Second respondent with chunks of her hair cut off, probably by her sister C which indicated a lack of supervision.
6. Emotional Harm
The children have suffered significant emotional harm. The particulars are:-
a) During February 2010 the relationship between CH and PH had deteriorated and was volatile and emotionally fraught and it was felt that the children's emotional needs were being harmed as a result of this.
b) On 4 April 2010 the children were removed under police protection and placed with the maternal grandmother for a period of 3 days following the arrest of the First and Second Respondents who were in possession of fraudulent pornographic DVDs. Home conditions were poor and as a result, the First and Second respondents were charged with neglect. The children had access to sexually explicit material.
c) LH was referred to Children's Services for touching her sexual parts and excessive bed wetting which was thought to be as a result of emotional disturbance.
d) B, the First Respondent's son took the Second Respondent's mobile phone to school which contained sexually explicit material and sexually explicit pictures of the First Respondent.
e) On 29 September 2010 C attended school stating that arguments at home between the First and Second Respondents were affecting her, thus causing emotional disturbance.
f) In February 2011 the First, Second and Third Respondent's were involved in a verbal altercation which involved the police being called and the children being in a distressed and dishevelled state which has caused them emotional harm.
g) In August 2011 there were verbal altercations between the First and Second respondents with the Second Respondent accusing the First Respondent of allowing her boyfriend into the home and leaving the children in his care, such arguments causing emotional disturbance to the children.
h) The Second respondents contact with the children is poor in that he does not interact fully with them or provide them with a stimulating caring and affectionate environment and constantly makes complaints about the First respondent throughout his contact sessions to the children's detriment causing them emotional harm.
i) All four children wet themselves and attend school smelling of urine and are often seen in inappropriate clothing.
j) The children have a low level of attachment to the Second Respondent who has very low parenting skills.
k) C is desperate for love, care and attention and tends to get quickly attached to those who could give her positive and focussed attention. She is also lacking emotional stability and if she remains at home these issues will continue to manifest themselves.
7. Impairment of Health and Development
As a result of the parenting they have received, the children's health and development have been impaired. The particulars are:-
a) In November 2010, the first Respondent missed 3 very important appointments for A's optical care which A needed to attend to obtain new glasses to assist in correcting her squint.
b) All four children are under achieving at school. They have speech and language delay and are unable to build effective relationships with other children due to the emotionally unstable environment they have been subjected to.
c) C (DOB 22/12/2001) is the eldest of the four girls and is very protective of all her female siblings. She is seen by numerous professionals as being almost a mother figure to the girls, her school report states that she craves positive attention and is always trying to please. She attends school unkempt and in an unhygienic state all of which is impairing her health development.
i) she would tell her mother that the boys were snogging and that her mother would split up J and L to stop them "doing it";
ii) PH made porn movies and he and the boys used to watch them; he put them on loads of times;
iii) her brothers would act scenes from the porn movies with her, each other and their male friends;
iv) one game involved J and his friend being tied up naked on a bed;
v) she saw J holding her sister, kissing them, dancing 'sexy' in front of them and encouraging them to dance 'sexy' for him; and
vi) her brothers would kiss, snog and hug her.
i) exposed them to pornography;
ii) physically abused J; and
iii) sexually abused LH.
He gave a no comment interview on 1 October. L, who attended on two days of this hearing, maintains his denial that he was a victim of direct sexual abuse or that he was involved in any sexual activity with any of his siblings. He asserts, however, that PH was physically abusive and that he exposed the children to pornography; both of which matters, he says, his mother was well aware.
i) exposing the children to pornography;
ii) inter sibling sexual activity; and
iii) sexually abusing any of the children.
Similarly in his third interview he denied all allegations made against him and asserted that the maternal family, but especially the maternal grandfather, were to blame for the children's exposure to pornography.
The Foster Carers
i) he told me that his business of copying and selling pornographic DVDs was a full time concern and especially at weekends pornographic DVDs would be strewn around the living room at the family home;
ii) they would take the children, in turn, to accompany them to car boot sales where they would sell the pornographic DVDs;
iii) he saw nothing wrong in taking the children to car boot sales when they sold pornographic DVDs;
iv) He attended one of the children's nurseries wearing a tee shirt bearing the caption "I love a blow job". He could see nothing wrong in doing so nor could he explain why he had done so, other than "I just put it on". When directly asked whether it had been inappropriate to do so, he replied "yes it was just one mistake". I am not satisfied that PH really believed he had done anything wrong by attending the nursery in that t-shirt;
v) when asked what the effect of watching a pornographic film would be on a 7 year old, PH paused for a very long time before giving the answers " it would not be right" and that "it would have a lot of effect". The extreme amount of time it took him to give what all right thinking people would instantly consider, to be the obvious answer, gives me a very clear insight into the warped thinking of PH;
vi) On the occasion when L shouted down that J was acting inappropriately in a bedroom, neither he nor the mother went upstairs to see what was going on. He could offer no explanation as to why no adult did go upstairs; and
vii) he admitted at the age of 30 to joining in the middle of the night, a young teenage girl to sleep on the sofa in the family home. He was wearing pyjamas and a dressing gown. He simply could not appreciate that that was wholly inappropriate conduct but merely complained that the mother had – unfairly in his view – wrongly accused him of having had sex with the young girl when she found them on the sofa in the morning. I note, however, that he subsequently allowed this young person to stay alone with him at his flat for a week or so because, he said, she had no where else to stay.
i) they were seriously neglected;
ii) they were exposed to pornography on a frequent basis;
iii) the older children were permitted to engage in sexual activity between themselves;
iv) the mother knew full well what was taking place and did nothing to stop the same;
v) PH groomed C and ultimately sexually abused her.