The Law Courts
10 Armada Way
B e f o r e :
IN THE MATTER OF THE CHILDREN ACT 1989
|Devon County Council
|- and -
C'S FATHER (2)
E'S MOTHER (4)
(C, D and E by their children's guardian)
Ms Carla Flexman appeared on behalf of S
Ms Kathryn Skellorn QC, and Mr Zahid Hussain appeared on behalf of A
Mr William Higginson appeared on behalf of the guardian
The Second and Fourth Respondents were not present nor represented
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MR JUSTICE BAKER:
Findings sought by the local authority
1) On 10th August 1990, A accepted a caution for six sexual offences towards his brother X.
2) The preconditions of that cautions were that: (a) an offence had been committed; and (b) the individual accepts committing the offence. Furthermore, that A was accompanied on this occasion by an appropriate adult, namely, his mother, when he accepted the caution.
3) The underlying facts of the offence against X were that A removed his trousers and underwear of his 7-year-old brother and placed his penis into his brother's anus, committing the act of buggery.
4) A subsequently told Richard Leek, the social worker with whom he had sessions, that he has been both a perpetrator and victim of sexual abuse.
5) A admitted to Mr Coombes, the guardian ad litem in the 1990 care proceedings, that he had, "done the abuse", to X while denying that he had committed any offence towards Y.
As explained by Ms Cook in her skeleton argument for the hearing before me on 9th March, the local authority does not rely on the caution per se, but rather on the admissions which the local authority says underpin that caution.
"Where repeated accounts are given the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at the time of stress or where the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effect of delay and repeated questioning upon memory should also be considered, as should the effect of one person on hearing accounts given by another. As memory fades, a desire to iron out wrinkles may not be unnatural; a process that might inelegantly be described as "story-creep" may occur without any necessary inferences of bad faith."
I also bear in mind the observations of Mostyn J in Lancashire County Council v R  EWHC 364 (Fam):
"The assessment of credibility generally involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination more active. The human capacity for honestly believing something which bears no resemblance to what actually happened is unlimited."
I stress that I had these points in the forefront of my mind throughout this hearing.
"On Wednesday, 16th May, R and H reported A missing from home. Whilst enquiries about the family background were being made, H said that the other children at home had made allegations that A had indecently assaulted them. A was found and did not want to return home. His parents did not want him at home and a Place of Safety Order was taken and he was duly placed at the residential home. A was interviewed the following day by the police. He admitted he had committed an act of buggery against his younger brother X, and had indecently assaulted his sister Y by touching her. Asked where he had got the idea for doing this, he said that his older brother, G's older son, had anally abused him. A will be charged with indecent assault and buggery. During the interview, A said that he did not want to return home and that he would prefer to go to the West Country and live with his mother. The police were concerned about A's sexual awareness and he also talked about X being sexually aware and said that he had found X masturbating and this had aroused him. When he had buggered X, he had also asked him to please A with oral sex. He knew what to do as he had seen his natural mother and father performing sexual acts."
"12-year-old brother removed trousers and underpants of 7-year-old brother and placed his penis into his brother's anus committing the act of buggery."
"Brother of complainant approaches her when she is bed, takes down her pyjamas and touches her on the vagina with his hand for sexual gratification."
The use of the words "brother" and "complainant" in these records might suggest that the children had indeed made a complaint but it is far too uncertain to allow any conclusion to be drawn as to the identity of the complainant – in other words, whether the complaint was made by the children themselves, or by their stepmother or father.
"I started working with A at the beginning of July at which point he had disclosed that he was both a perpetrator and a victim. He was extremely open and apparently willing to discuss what had happened and accepted that it was important to do so. However, in discussion with A, it soon became clear that:
a) He was able to use a variety of strategies to avoid discussing things by evasion.
b) He was extremely naive regarding any emotional issues, particularly pertaining to sexuality.
c) He had been sucked into an offending culture at the residential home and was clearly stating that he found this behaviour attractive and exciting.
Staff at the residential home hold great concerns for him, feeling that he was particularly vulnerable to any form of exploitation both by other residents and people outside of the home. A disclosed that he had buggered his younger brother on two occasions and that he had been buggered himself on one occasion. He was able to offer positive and negative feelings associated with his role as a perpetrator, ie, it felt good, or b) it did not seem right because he was a boy. However, as might be expected, the insights lacked emotional depth. I feel that the issues around his positive feelings need a good deal more exploration and confrontation. He also needs to explore the emotional consequences. There is some room here for using his own empathy as a victim, as he was very clear that the worst direct consequence for him of being abused was that he had disclosed it to his father and stepmother who refused to believe him."
"A told me that his life in the North of England had been, "awful". When his brother was still with the family, his father would get drunk and hit them. After H arrived, this changed but things got worse in other ways. He did not feel as if he was wanted and considered he was treated like a 2-year-old. They were over-strict and it was getting worse. In May, his father hit him again and he ran away and went to see a man who he knew to have been a sexual offender. He did not feel threatened, however, as that man's own mother and father were there. A says that he had previously told his father of his own sexual abuse by his older stepbrother and that his father did not believe him. After going to the police, A did not wish to return home. He went to the children's home where he considers he was still treated badly, like a 2-year-old. As a result he ran away and stayed with friends; this lasted for a week. A admitted to me that he had, "done the abuse", to X but denied doing anything with Y. He agrees that he will co-operate with social services and attend the groups as requested."
Mr Coombes was contacted and asked to make a statement, but had no further recollections concerning this case – unsurprisingly as it was twenty-five years ago. Reference to A having sexually abused his brother in this report is fleeting and, again, gives no further detail, although it is broadly consistent with what he appears to have said at the police station.
"His impression of A's family life, gained from A himself, was one of confusion within the family. A claimed that his father drunk a lot before H arrived and had soft porn videos. A then began sexually experimenting with X. He plainly remained angry that he was not believed when he first told his father about his own abuse by his stepbrother."
This is, of course, in rather different terms and gives a slightly different impression of sexual experimentation as opposed to abuse. Once again, however, there is no detail of what was said to have occurred.
Discussion and Conclusion
Following the conclusion of the finding of fact hearing, A co-operated with a detailed psychological and risk assessment by a Consultant Psychologist. The expert was asked to identify any residual effects of A's own abusive and traumatic childhood upon his parenting and to specifically identify any risk of sexual abuse or domestic violence that he may now pose.
The report was favourable to A. The Local Authority accepted that the s 31(2) threshold criteria could not be satisfied and sought permission to withdraw the care proceedings. The Children's Guardian supported that course.
A resumed unsupervised visiting and staying contact with his birth children D and E.