SITTING IN CANTERBURY
Strand, London, WC2A 2LL
B e f o r e :
| Kent County Council
|- and -
|- and -
|- and -
By Her Children's Guardian)
|- and -
|- and -
|VE, SE & LE
By Their Children's Guardian
|3rd, 4th & 5th Respondents
|- and -
|- and -
|DF & JF
By Their Children's Guardian
|3rd & 4th Respondents
for the Applicant in all three cases
Mr Paul Storey Q. C. & Mr Stephen Chippeck (instructed by Pearsons and Co) for the 1st Respondent
Mr Philip Newton & Mr Edward Kenny (instructed by Stilwell & Harby Solicitors) for the 2nd Respondent
Mr Philip McCormack & Sharn Bhachu (instructed by Davis Simmonds and Donaghey Solicitors) for the 3rd Respondent
Mr Cyrus Larizadeh & Ms Dorothea Gartland (instructed by Robinsons Solicitors) for the 1st Respondent
Mr Leslie Samuels Q.C. & Mr John Thornton (instructed by Boys & Maughan Solicitors) for the
Ms Jo Porter & Ms Lydia Slee (instructed by Berry & Berry LLP Solicitors) for the
3rd, 4th and 5th Respondents
Ms Louisa Adamson & Mr Clive Styles (instructed by Kingsfords LLP) for the 1st Respondent
Mr Mike Batt & Ms Holly Coates (instructed by Morris Sutherland Solicitors) for the 2nd Respondent
Ms Mary Robertson & Mr Jonathan Bennett (instructed by Rootes Alliott Solicitors) for the 3rd, 4th & 5th Respondents
Hearing dates: Monday 24th November - Friday 19th December 2014; Monday 5 January 2015; Tuesday 6 January 2015.
Crown Copyright ©
Mrs Justice Theis DBE :
Layout of the judgment
|Discussion & Findings:
Allegations made by Z
|Requests for clarification||547-565|
a) that the allegation is true
b) that the allegation is false
As Lord Hoffmann observed in Re B "if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are naught and one".
"Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the LA has been made out to the appropriate standard of proof".
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
1. the child's age;2. the context in which the statement had been made;
3. the surrounding circumstances;
4. the previous behaviour of the child;
5. the child's opportunities to have had knowledge from other sources;
6. any knowledge of a child's predisposition to tell untruths or to fantasize
(Re W (Minors) (Wardship: Evidence)  1 FLR 203)
The D family background
Threshold findings against the D family
(1) AK abused drugs, namely methamphetamine and cocaine.
(2) AK permitted other adults to abuse illegal drugs in her home.
(3) AK brought into the home and used drugs paraphernalia such as needles and syringes in the child's home.
(4) AK permitted a number of identified persons to live at the child's home, making it overcrowded.
(5) AK caused or permitted the exposure of Z to inappropriate and abusive sexual activity.
(6) AK knew or ought to have known that Z was a child and failed to protect her from the risk of sexual, physical and emotional harm. KD knew Z was a teenager.
(7) JD has neglected KD's emotional and physical needs by failing to keep in contact with her and failing to make any proper enquiry regarding KD's welfare needs.
The E family background
Threshold findings against the E family
(1) JS and JE abused illegal drugs, namely methamphetamine
(2) JS supplied illegal drugs from the children's home whilst they were present and JE permitted this
(3) JS and JE exposed the children to drugs and drug paraphernalia
(4) JS has a conviction for sexual intercourse with a person younger than 15 years
(5) JE caused or permitted the exposure of IE to prostitution and inappropriate and abusive sexual activity.
(6) JE caused or permitted the exposure of Z to inappropriate and abusive sexual activity.
(7) JS and JE failed to prevent IE being exposed to a sexual offender RV
(8) JS and JE permitted the children to see their aunt JC daily who was abusing drugs and engaged in prostitution
(9) JS exposed the children to domestic abuse in his relationship with JE
(10) JS raped JC
(11) JS and JE encouraged and/or permitted IE to continue in a violent relationship
(12) JS has convictions for other offences eg theft and possession of an offensive weapon
(13) JS was partly responsible for the family's eviction for anti-social behaviour.
(14) JE prostitutes herself for sex in exchange for money.
(15) JS and JE anti social conduct and vandalism of the family home.
(16) JS and JE had in their possession two electronic devices with indecent images of child like people.
The F background
Threshold findings against the F family
(1) Abused amphetamine and methamphetamine.
(2) Offered herself to men for sex for money while her daughter SF and or her niece IE were present.
(3) Left the children without appropriate supervision at night while she prostituted herself or took drugs.
(4) Permitted JAC, a registered sex offender, to stay at the family home.
(5) Knew the child Z was being exploited sexually.
(6) Permitted the children to have daily contract with JE who she knew was exploiting Z sexually.
(7) Continued to take the children to JS's home despite him having raped her and continued to collect drugs from him.
(8) Failed to protect daughter SF from her violent relationship with MR.
(1) Failed to protect his children from JC's drug abuse and prostitution which he knew about.
(2) Permitted JAC, a registered sex offender, to use the family home.
(3) Knew the child Z was being exploited sexually.
(4) Permitted the children to have daily contact with JE who he knew was exploiting Z sexually.
(6) Permitted the children to visit the home of JS despite knowing he had raped JC.
(7) Exposed the children to domestic abuse when he assaulted JC in front of them on 9.3.13.
(8) Failed to protect his daughter SF from her violent relationship with MR
(1) In September 2011 against PH for having sexual intercourse with Z when she was under 15 years in June and July 2011. The document refers to PH admitting this offence. There was a 'submission to commence a criminal charge' in relation to this on 9 January 2012. Witness evidence in relation to this alleged assault was taken on 27 October 2011. Z is recorded as saying she had sexual intercourse once with him.
(2) On 12 October 2011 against PB for having sexual intercourse with Z when she was under 15 years in July 2011 which he admits. Witness evidence was taken from Z on 12 October. There is a document entitled 'submissions to act on the agreement of guilt and punishment' dated 29 November.
(3) In December 2011 criminal proceedings were commenced against TB for sexual intercourse with Z who was under 15 years in July 2011. Witness evidence was taken from Z on 20 October and 15 December 2011 (on the latter date there is a detailed account of the alleged sexual assaults). A document dated 2 November 2012 suspends the criminal proceedings against TB due to the absence of the victim ZM. This was due to the need to further question ZM which was not possible as they had gone to the UK.
(4) On 15 December 2011 witness evidence was taken from Z alleging a sexual assault on her by Y and Z.
(5) In March 2012 against IZF for having sexual intercourse with Z who was under the age of 15 years in the summer holiday of 2011. There was a 'submission to commence a criminal charge' on 2 July 2012.
(6) On 15 December 2012 there is a record from the police investigator stopping criminal proceedings against MH for sexual intercourse with Z in the summer of 2011. This appears to be on the basis that MH was not present at the stated place.
'(1) Assess the level of intellectual and memory abilities of Z
The level of intellectual capabilities ranges in the band of debilitas gradus medius IQ=57
The level of her memory capabilities is adequate to the intellectual level.(2) Assess from the psychological point of view whether Z manifests tendencies to lies and distortion of reality, whether she is able to perceive correctly, keep and reproduce the kept facts.On the basis of the give personal characteristics of the victim Z I have to state that she has significant sociability dysfunctions, tendency to very impulsive behaviour, low level of moral maturity, great tendencies to lies and suggestibility. She has tendencies to distort reality so her ability to perceive correctly keep and reproduce the key facts is decreased.
(3) If she has tendency to confabulation.
The victim has tendencies to confabulation.
(4) Whether the circumstances found would have affected the credibility of her statement.
Decreased level of intellectual capabilities in the band of debility, the personal characteristics of the name significantly affects he credibility of her statement. The general credibility of her statement is therefore decreased.
(5) States what other circumstances which the expert would consider as necessary, respectively they will be discovered during the examination and are directly connected but are not in the stated questions.
It is necessary to state that despite the general credibility of the victim's statements is on the basis of the mentioned personal characteristics and the intellectual level being visibly decreased, in relation to the specific level it is clear that it did happen; only the description by the victim is significantly subjective and distorted.'
The parents' written and interview evidence
Discussion and Findings
Allegations made by Z
(1) AK caused or permitted the exposure of a child known as Z to inappropriate abusive sexual activity. In particular, on an occasion in 2013 Z attended the home of AK and was drugged by her and slapped approximately 3 times on her face; on the same occasions in 2013 AK detained Z at her home against her will; knowing that Z was under the influence of illegal drugs, AK caused or permitted the child Z to be taken by a group of males by car knowing or believing that Z would be subject to sexual activity by those males and/or others when this occasion took place KD was in the home.
(2) Whether for financial gain or otherwise AK caused or permitted the exposure of the child known as Z to inappropriate and abusive sexual activity. In particular, on a different occasion in 2013 AK drugged the child Z with piko (methamphetamine) in her bottom at her home prior to taking or arranging for the child to be taken to a kebab shop in Town A; the purpose of taking the child to the kebab shop was to bring her into contact with males who wanted sexual contact with the child; knowing the child was under the influence of illegal drugs the mother caused or permitted the child to have sexual intercourse with an unknown man from Pakistan who worked at a kebab shop in Town A.
(3) AK knew or ought to have known Z was a child and failed to protect her and in doing so exposed KD to the risk of significant sexual, physical harm and emotional abuse by her activities within the home. The child KD knew Z was a teenager.
(4) JE caused or permitted the exposure of a child known as Z, then aged 15 years, to inappropriate and abusive sexual activity. In particular, on one occasions in 2013 she facilitated the penetrative sexual assault of Z by 15 men in Town A.
(5) JC knew of the sexual exploitation of a child known as Z exploited for financial gain or otherwise by the children's maternal aunt, JE whom the children saw daily.
(6) LF knew of the sexual exploitation of a child known as Z who was exploited for financial gain or otherwise by the children's maternal aunt, JE, whom the children saw daily.
(1) Pre interview meetings being properly recorded (ABE Guidelines paragraph 2.6)
(2) Avoiding leading questions (ABE Guidelines paragraph 3.61)
(3) The importance of remaining neutral (ABE Guidelines paragraph 2.229)
(4) Repeated interviews (ABE Guidelines paragraph 3.130)
(1) The failure to have an accurate record of the two pre-interview meetings on 13 and 20 February 2014. The point is made that in the light of the way the recorded interviews were carried out, in particular the interview on 24 October, there is an iZerent risk that the material recorded in the notes came about through leading questions or in a way that is not a free narrative. The oral evidence from DCV was that during the visit on 13 February it was Z doing most of the talking, although she agreed it was highly likely she would have asked some questions. She thought that meeting lasted about 1 ½ hours. In relation to the second meeting on 20 February she said the main objective was to try and find the locations using google earth in case other children were at risk.
(2) The drive round on 5 March was video recorded, but there was a part in the middle of day that was not. It was during this part that Z was shown a photograph of IE who she identified and the notes record her referring to JE. In her oral evidence DCV said she thought it was still being recorded, and effectively conceded it should have been. Although there is no consistent note of the questions DCV denied any suggestion she had asked about the 15 men referred to by Z. KJ in her oral evidence was taken through the differences in hers and DCV's notes on that day.
(3) The focus of the criticism of leading questions was on the last ABE interview on 24 October. Mr Larizadeh very effectively pointed out in cross examination of DCV the dangers when DCV was correcting Z (as DCV considered she was making mistakes) and of not stopping the interview when Z was clearly tired. When the leading questions were put to DCV when she gave evidence she did not accept they were leading, as she considered Z had already given the information in earlier interviews. She described this as're-capping', but effectively she was putting a series of leading questions to Z in relation to information she had given some months previously. On occasion this was done in a quite insistent way. On any view that must have iZerent risks in undermining the value of the evidence. The most graphic example was when the intermediary considers Z has had enough, but DCV continues with a series of leading questions about the occasion when there were 15 men and corrects an answer given by Z relating to PF. After that Z appears to be getting very confused 'How do you mean? I don't understand now'. Another example, is earlier in the 24 October interview when DCV suggests 'Do you mean IE's mum?' rather than asking it in a more neutral way 'Who do you mean?'. In oral evidence DCV responded that she was giving Z a 'frame of reference' but she could see the dangers. She also saw the dangers that in helping to clarify matters, as she did in the part of the interview where she introduced '.. 'I' being IE's mother' she risked contaminating the evidence. It is right to record that Mr Storey Q.C. has made criticism of the leading questions, in particular in the second part of the first ABE interview and the second interview on 16 April.
(4) In cross examination of DCV Mr Storey Q.C. drew out the dangers of confabulation. In the first part of the 6 March ABE interview Z alleges that when she went to AK's address it was RB who was there and he assaulted her, whereas in the second interview because DCV in her question suggested (inaccurately re-capping) it was AK who assaulted her, Z agreed and the questions continued on that basis. This was arguably a false basis which had been introduced by DCV. He also refers to the different account given in the interview on 24 October about the first time she had met AK JDI had taken her there whereupon AK went out to get some pika and injected it into her. He submits Z has given three versions about how she first met AK and they are completely irreconcilable with each other.
(5) DCV was asked why Z was not challenged about any inconsistencies. DCV said the decision had been taken not to do so. So Z was not asked about the stay in hospital for 2 weeks (which there is no corroborative evidence) or the number of men (15 or 20).
(6) The number and length of the interviews. The first interview was 90 minutes; the second 64 minutes; the third interview 45 minutes; and the final one just over 3 hours (although there were some breaks). The length of time between the interviews is also relevant. The ABE on 24 October was 7 months after the first one.
(7) The lack of neutrality. DCV accepted her view was Z was telling the truth. She was asked about the dangers of giving the child the impression you believe what she says, DCV said she was only praising her for her effort, not what she was telling them. Various parts of the interview were put to her, for example Z: You know me very well Kirsty what I said err and what I knew I did tell you the truth; DCV: I know, I, I, I know you have. DCV said it was a difficult balance due to Z's volatility and if she had prefaced any question with 'you say', Z would respond that DCV didn't believe her.
(8) Those conducting the ABE interviews did not have the important material from Slovakia as to her Z's psychological functioning. Whilst that is correct and DCV fairly and realistically conceded in questions put to her by Mr Storey Q.C. that if they had known confabulation is an issue they would probably not have undertaken a re-capping type interview on 24 October. However, it is an issue raised in Ms Hope-Borland's report at paragraph 3.2 (aLFeit on a wrong factual basis). Whilst the 2012 psychological report is important, it has to be seen in the context that (save in the case of Mr H) it did not prevent criminal proceedings being pursued and in one case admissions being made, Z was 13 years old at the time of the assessment, it expresses an opinion as to credibility and whether the allegations are made out. It is of note that Ms Hope-Borland referred in her report (paragraph 3.2) to the issue of confabulation in the context of events that Z had told her that she questioned their accuracy (her brother dying and being pregnant). It is clear from the papers that are now available that Z's brother did die in January this year and there are references in the papers to Z being pregnant. Ms Hope-Borland suggests ways are found of managing Z giving evidence in a way that avoids stress and distress. Finally, the Slovak report needs to be seen in the context of the recent CAMHS assessment that Z presented as articulate and well kempt and they did not see any signs of mental health problems.
LF's knowledge of sexual exploitation of Z
Other threshold findings:
Drugs – F and E household
(1) JC was taking and addicted to methamphetamine from about October 2012 until May 2014. On occasion she took those drugs in the family home when she had the care of the children. She frequently went out all night in search of drugs or because she could not sleep due to the effect of drugs and left the children inadequately supervised. The evidence from the social worker Ms Monaghan about the health difficulties JC's mother had has not been challenged.
(2) LF was aware of this from about March 2013 and failed to protect the children by doing anything about it.
(3) JS abused methamphetamine at the time the proceedings were commenced. It is more likely than not he introduced JC to drugs in September/October 2012 and supplied her with drugs from his home address.
(4) JE took methamphetamine whilst she had the care of the children at the time the proceedings were commenced.
Drugs D household
Prostitution – JC and JE
JE prostituted IE
Rape of JC by JS
JE and JS failure to protect IE
JC and LF failure to protect SF
Known sexual offenders in the F household
JE and JS associated with known sex offenders
JS and JE exposed their children to JC
Indecent images in the E household
AK permitting unidentified people to live in her home
JE and IE charged with theft
Domestic Abuse – F household
Domestic Abuse – E household
Previous convictions – JS
Previous convictions of JC
Anti social conduct of JS and JE and vandalism of the family home
Chaotic living conditions – AK
Requests for clarification
From the LA:
Response: It is proved limited to the extent of drugs being supplied to JC.
Response: It is not proved on the basis that although the items specified were found in the family home on that one occasion, there is no evidence the children were exposed to this material.
(1) While explanation has been provided as to why suspicions were established linking AK to the findings made against her, what is the Re A compatible analysis that leads to the conclusion that those suspicions amounted to a finding of fact on the balance of probabilities?
Response: These matters are covered the judgment, in particular paragraphs 463 - 468, 481 and 485
(2) On what basis was it decided that the discussion between the 3 women, MC and JDI was not about their own prostitution given the evidence that JC and JE were both prostitutes and the several intelligence reports that AK was a prostitute?
Response: This was not something that was ever suggested, other than in very general terms at paragraph 68 j) of AK's closing submissions.
(3) How was the conclusion reached that the discussions were about selling Z rather than the at least 20 other possibilities set out in paragraphs 67 and 68 of AK's closing submissions?
Response: The closing submissions were carefully considered. AK's oral evidence was clear; she had only ever had communication with these men in connection with furniture, with further detail given by her in oral evidence about when she needed furniture for her home.
(4) How was it that the first few pages of Z's first interview were found to be reliable and truthful when it contains the palpable falsehood that she had been in frequent telephone contact with AK prior to the first incident, an assertion that was entirely unsupported on the evidence of the telephone schedule?
Response: That was considered in paragraphs 463 and 464.
(5) How was it that the conclusion was reached that Z is impressive and to be believed in her first interview when;
a) She never gave the information to her mother.
b) She specifically denied being exploited at school in May 2014.
c) She was prepared to make false allegations against her father simply by reason of not being allowed to go to a discotheque.
d) She has previous convictions for extortion and blackmail.
e) Her mother said she was the sort of person who would frame an innocent person of a sex crime.
f) In circumstances where it was suggested that a claim for compensation was going to be made?
Response: Z's background of dishonesty was considered, in particular at paragraph 436.
(6) The judgment seems to suggest that Z confabulates when being asked leading questions but the evidence is that she confabulates and has a tendency to tell lies generally. How is it that her tendency to confabulate and lie has been dismissed and that the answers in the first interview have been believed, when she has the burden of proof?
Response: The assessment of Z is considered, in particular, at paragraphs 434 – 444 and 484 – 489.
(7) Please can you deal with our detailed credit points made in our closing submissions and in our submissions in response and why they are not accepted?
Response: The credit points were considered and some of the matters specifically recorded in the judgment, for example improvement in KD's school attendance, KD's appearance and what she said about home life in her ABE interviews (see paragraphs 77, 79, 80 and 86).
Response: The finding is that JE was, like JC, pretending to sell herself to rob people. This is based on what took place on 6 April, the inferences that can be drawn from the court's conclusions about the nature of the relationship between JC and JE and the observations made by others, in particular SS. No finding is made against IE.
Response: Paragraphs 481, 482 and 497 set out the extent of the court's findings in relation to JE. This is based on inferences drawn from the conclusions reached about JE's credibility as a whole in the factual matrix of the case. Whilst the phone conversations could be explained by discussions about other activities, but when looked at in the context of the other evidence the fact that there was contact between the relevant phones during each of the periods Z was missing provides support for the finding.
Response: DCV did say in her oral evidence that they were considering interviewing Z again, this was a 'real possibility' but it was a decision that would be made by others.
Response: The criticisms about the procedure used to obtain this statement and the lack of a recorded note to account for all the time DCV was there are set out. This process together with the lack of a complete record affected the weight that could be given to this statement.
Response: This was the oral evidence given by DCV and supports the lack of weight that can be given to what is said in that interview regarding JE's role in relation to Z.
Response: The findings, as sought, was whether the allegation of rape was established or not. It was not established to the required standard.
Response: The finding sought was JS had abused illegal drugs; that is the extent of the finding made. The finding in relation to dealing/supply of drugs by JS is limited to JC.
Response: No, bearing in mind JS admits he had sex with a girl aged 14 when he was 19 years old.
Response: The basis for this finding is set out at paragraphs 477 – 480.
Response: That revision has been made to the main judgment.
Response: The basis for this is set out at paragraphs 477 – 481.
Response: The findings are limited to a verbal disagreement in November 2012 and a verbal disagreement and LF grabbing JC's arm in March 2013. Both incidents resulted in the police being called. Paragraph 537 has been amended to reflect this.
Response: This is based on the inference that this was well known within the community and he is likely to have discussed the reasons why Z was allowed into his home for a shower and would have received this information from JC.
Response: The finding is there was a failure to protect SF evidenced by SF's age when she was in a relationship with MR and being seriously physically assaulted by him. In their oral evidence neither JC nor LF displayed any real understanding of these historical difficulties with SF.