IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF MA (A CHILD)
Strand, London, WC2A 2LL
B e f o r e :
| A LOCAL AUTHORITY
|- and -
|A MOTHER (1)
A FATHER (2)
MA (by her children's guardian)
Nicholas Davies (instructed by Ian Walker Family Law and Mediation Solicitors) for the First Respondent
Penny Howe (instructed by Access Law LLP) for the Second Respondent father
Nigel Hawkins (of Eric Robinson Solicitors) for the Third Respondents by her Children's Guardian, JM
Hearing dates: 31st August, 8th and 9th September 2016
Crown Copyright ©
THE HONOURABLE MR JUSTICE BAKER
Summary of facts
(1) SB and SM (the two eldest boys) were physically abused by their parents. I found that the father in particular had hit, punched and on occasions kicked them. These physical assaults went beyond reasonable chastisement, and included beatings that were plainly abusive and amounted to significant harm. The parents used physical abuse as a method of trying to maintain discipline over their large family which they struggled to control.
(2) Z was sexually abused by SB and SM. The abuse perpetrated by SB included forcible genital and oral penetration and occurred on a number of occasions. The abuse perpetrated by SM had occurred on one occasion.
(3) The parents ought to have realised that sexual abuse was taking place and taken steps to prevent it. On this point, I said (at para 144):
"The fact that Z was sexually abused by two older brothers in the family home in my view is clear evidence of failure to protect. The parents plainly ought to have exercised much greater vigilance. Much is made of the small size of the family home. In such circumstances, a reasonable parent would have been aware that such abuse was taking place or at risk of taking placed and taken steps to prevent it. Furthermore in the mother's case, I find that she knew that Z had blood on her knickers. That ought to have alerted her to the possibility that the child was being abused. Yet she failed to take any action. In my view the evidence is insufficient to lead the court to reach the conclusion sought by the local authority that these parents knew that their daughter was being sexually abused. On balance, however, I find that they ought to have known and ought to have taken steps to stop it happening. To that extent, I conclude that they have failed to protect their daughter from abuse."
(4) AQ (the fourth oldest boy) behaved towards Z and other children in his foster home in a way that was manifestly inappropriate and may well have been sexualised.
"43. the parents were unsatisfactory witnesses. I take into account their circumstances and their cultural background. I recognise that answering questions in court, especially on such sensitive matters about the treatment of their own children, must have been a difficult experience for them. Nonetheless, I found both parents to be evasive and unreliable witnesses. In closing submissions, Miss Cook [leading counsel for the local authority in those proceedings] characterised their attitude at times like 'almost a blind and irrational denial'. In each case, I conclude that, for one reason or another, the parents are concealing information, both to the allegations of physical abuse and over-chastisement and the allegations concerning sexual behaviour within the home. The mother retreated into saying that the allegations were not possible and that, as she did not see it, so it could not have happened. She also reiterated on several occasions that she had told the children 'boys don't touch girls' bits and girls don't touch boys' bits'.
44. The father, who gave his oral evidence with the occasional assistance of an interpreter, introduced for the first time a complex conspiracy theory to explain the children's allegations. He alleged that they had been encouraged to make the allegations by the social worker and Mrs X [the family member with whom Z was living and to whom she made the initial allegations of sexual abuse]. At one point, he suggested that the social worker and SB's girlfriend, were related, apparently simply on the basis that the share the same (very common) surname. He seemed to find it difficult to acknowledge that the older children would have the capacity to think independently. The father alleged that social services had manipulated the thoughts of all the children, older and younger. Asked why SB was saying what he was saying, the father said that it was because he was still a child. As for the sexual allegations, the father's explanation in oral evidence was that they had been concocted by Mrs X and the social worker SC. Mrs X had for some reason unclear to me sought revenge against SB. The social worker SC had, according to the father, been against him from the start, and had therefore fabricated the allegations. He said that the social worker had told the foster carers to lie about what had been said to the children. He said SC had done these things to make money and because she enjoys it. "
"84 I acknowledge that each parent said at different stages in the oral evidence that they accepted that Z had been sexually abused by her older brothers. These assertions must be assessed, however, in the context of their earlier statements, both in writing and orally, and of their dealings with the social workers and other professionals, and having regard to the conclusions I drew about their evidence in my earlier judgment as quoted above, namely that they were evasive and unreliable witnesses who had concealed information from the court. In all these circumstances, I am not satisfied that the parents' limited acknowledgment in their oral evidence represents their true opinions and feelings. The father's explanation for the reason why he has now, very late in the day, accepted Z's allegations mainly, that she repeated them to an "independent" person, namely her new carer was totally unconvincing and implausible. It may be that at some level they recognise that, without acknowledging the truth of Z's allegations, it is unlikely that they will be allowed to resume care of their children. That recognition in itself represents some progress, but only to a very limited degree. Both the mother and father are to my mind a very long way from genuinely accepting that the allegations are true. They have not begun to understand the extent of the physical and emotional harm suffered by Z, or the seriousness of the conduct of SB and SM, nor in my judgment have they begun to realise the extent of their failure to protect the children and the harm that has thereby resulted. The father's assertion in evidence that any sexualised behaviour demonstrated by his children was caused by the corrupt society in which they now live, and not through any fault on his part, shows the extent of his lack of awareness of his responsibility for what has occurred. In her final analysis, the guardian concluded that the mother and father are unable to take any responsibility for their actions, but, rather, apportion blame to others or minimise the concerns. I agree. Nothing I have heard in the course of this hearing has caused me to question this assessment.
85. Furthermore, it is clear from their written and oral evidence, and from their statements at earlier stages in the proceedings and to the Phoenix assessors, that they do not accept the extent of my findings concerning physical abuse, nor understand the degree to which their failure to manage the behaviour of the children, and their excessive use of physical chastisement, has damaged the children. The father's acknowledgement to Mr. Lowe [the Phoenix assessor] that the incident involving SB in the middle of the night involved him fighting with himself rather than his son may well present the start of a process of understanding, but it is no more than a start. The parents have a long way to go before they truly accept and understand the extent of the physical abuse they perpetrated in this case.
86. In my judgment, the Phoenix assessment significantly underestimated the extent of the change required in these parents and was manifestly over-optimistic as to the capacity for change and the timescales it would take to achieve the degree of change necessary for these children to return safely home. It is possible that over time the parents may come to accept my findings, and develop an understanding of the degree of harm they caused to the children, and achieve the changes necessary in their parenting. It may be that, with professional help and guidance, they may learn new skills as parents so that they can protect their children from sexual abuse, and manage the behaviour of their children as they get older and face the challenges of growing up in modern society. In my judgment, however, it is likely to take a very considerable amount of time and hard work to achieve these changes."
"a likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities" (per Lord Wilson in Re B  UKSC 33 at para 24).
" adoption of a child against her parents' wishes should only be contemplated as a last resort when all else fails. Although the child's interests in an adoption case are 'paramount' a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them."
In addition, I bear in mind the observation of Baroness Hale at para 198:
" it is quite clear that the test for severing the relationship between the parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do".
"does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child's welfare needs and it is proportionate to those welfare needs."
The parties' positions
(1) On 7 July 2015 this court made findings against M's parents that they had physically ill-treated her older siblings in physically assaulting them in a manner beyond a reasonable chastisement with beatings that were plainly abusive and amounted to significant harm.
(2) This court found that the parents failed to protect M's older sister Z in that they they ought to have known about, and ought to have taken steps to prevent, the sexual abuse of her by her older brothers SB and SM.
(3) This court further found that the parents were wholly unsatisfactory witnesses who lied about their ill-treatment of the older children to conceal the extent of their physical abuse of them.
(4) The father does not trust social work professionals, asserting that the social worker motivated SB to disclose physical abuse.
"I must assume that the abuse happened when I was not paying attention. I cannot think when this would have been. I honestly believed the children were being supervised whilst they were in the home. It was a busy family home though, and whilst we have structures and routines to manage this, which I believed worked very well, there must have been occasions when I was not sufficiently focused on the children."
Ms Wilson responded that the mother had never said words to that effect during the assessment. She accepted that this amounted to a small increase in the level of acknowledgement but it did not change her overall recommendation. During the assessment, the parents had presented a consistent narrative that they had had problems with SB, that they had therefore involved the local authority and that everything that has happened with the children was attributable to that involvement. In her report, Ms Wilson had used the word "collusive" to describe the parents' joint behaviour. She explained that by this she meant that they work together to present a picture which, in the opinion of professionals, did not represent what happened to the children.
"Overall, the risk assessment regarding the behaviour or the physical abuse of children presents a mixed picture. The most powerful statistical predictor of future behaviour is always past behaviour, and therefore the risk to M is present and real. My concerns is that the parents' narrative about how the behaviour was triggered is not consistent with the findings made, or the reports of the children. This means that it is not possible for me to establish a clear picture of how such a behaviour might have occurred historically, under what circumstances it might be repeated in the future, or how arrangement/interventions might be arranged to minimize the risk. In essence, the parents' narrative renders the risk unquantifiable, beyond my conclusion that it is present by virtue of the historical behaviour."
"in the absence of insight or acceptance, the prognosis for engagement, let alone achieving meaningful change, is extremely poor."
"He appears to perceive evidence as distorted so that his circumstances and events are a result of persecution and revenge."
Dr Tantam was concerned that neither parents appeared to be able to view the children as individuals, with their own needs, emotional states, developmental trajectories and emerging independence.
Local authority social workers
"I do understand the significance of this finding and accept that this must have happened. I was not, however, aware of it at the time it was happening and even looking back now I honestly cannot think of anything I saw or heard that would have made me suspect this."
She repeated what she had said on previous occasions that, if she had seen anything that made her think that Z was not safe, she would have acted. She added:
"I must assume that the abuse happened when I was not paying attention. I cannot think when this would have been. I honestly believed the children were being supervised whilst they were in the home. It was a busy family home though and whilst we had structures and routines to manage this, which I believed worked very well, there must have been occasions when I was not sufficiently focused on the children."
The mother relied on the fact that she had shown an ability during the Orchard House assessment to identify abusive behaviour and that this knowledge, coupled with the experiences she has been through, would be sufficient to enable her to protect M. As for the observations of Ms Wilson that the parents had not acknowledged normal behaviour around sexual matters within the children, the mother said that she may have misunderstood this part of the assessment.
"although we hold different views to the judge regarding the findings against SB and SM, we are not blind to the question of risk to M should she have contact with her older brothers. I think it is important, particularly for M, that she has a good relationship with all of her siblings but that must be in a safe environment.
Further on in his statement, he added:
"my wife and I are more than able to provide emotional care, keep M free from any risk of sexual harm or abuse and she will not be at risk of any chastisement from myself or my wife. Although I do have great difficulty in accepting the findings of the court, I have to accept that those are the findings and the basis from which the court must proceed. I do not agree that the fact that I hold a different view from the judge is to the detriment of the emotional care I can offer to M."
The children's guardian
What order should the court make?
Option (1) Remaining at home
Option (2) long-term foster care
Option (3) adoption