SITTING AT NEWCASTLE UPON TYNE
In the matter of the Children Act 1989
B e f o r e :
|In the matter of|
|A (born in the month of January 2006)|
|G (born in the month of June 2012)|
|MM (born in the month of December 2013)|
|R (born in the month of April 2015)|
|(Minors acting through their Children's Guardian, Vanessa Bell)|
Applicant Mr Todd (Counsel)
Respondent Mother Miss Sweeting (Counsel)
Respondent Father of A Excused attendance
Respondent Father of G, MM and R Miss Fagan (Counsel)
Respondent Children Mr Ainsley (Counsel)
MGF Miss Middleton (Counsel)
MGM in person
Crown Copyright ©
A (born in the month of January 2006) now aged 12 years old
G (born in the month of June 2012) now aged 5 years old
MM (born in the month of December 2013) now aged 4 years old
R (born in the month of April 2015) now aged 2 years old
The present hearing
The Law in respect of Factual Determinations
"The approach of a family court when trying, or re-trying, factual issues which could also be framed as criminal charges: general observations
- Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.
- By way of summary, the following points are, in my judgment, clear:
a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court [paragraph 62 above];b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child's future with the court's eyes open to such risks as the factual determination may have established [paragraph 62];c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court [paragraph 65];d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts [paragraph 67].
- Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.
- The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J 'Child Arrangements and Contact Orders: Domestic Abuse and Harm', relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where 'domestic abuse' or other potentially criminal activity is alleged:
'Directions for a fact-finding hearing16. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse (a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;(b) in order to provide a basis for an accurate assessment of risk;(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).17. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider (a) the views of the parties and of Cafcass or CAFCASS Cymru;(b) whether there are admissions by a party, which provide a sufficient factual basis on which to proceed;(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;(f) the nature of the evidence required to resolve disputed allegations;(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.'
- In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to 'domestic abuse' or any other potentially criminal activity in any proceedings relating to the welfare of a child:
'36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.37. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider (a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.'
- On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child's care by affording paramount consideration to his or her welfare.
91. At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge's task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined."
On 8 Mar 2018, at 18:08, MGF wrote:
Hi miss cook
I have talked MGM into coming to court tomorrow but she would not be will to answer questions off a man or have a man present when she was asked or answer as she feels more intimidated by men and she know that some of the questions are going to be about what has happened to her in her 1st marriage I have spoken to [CG] informed her that we will be in the Newcastle area to inform me if this is going to be done
Sent from my iPad
"The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification. Their behaviour is always an abuse of power and usually a breach of trust. They destroy families and blight childhoods. They create dread in their victims by convincing them that the consequences of speaking out will be worse than the consequences of silence. They create guilt in their victims by persuading them that they have somehow willingly participated in their own abuse. They burden their victims with secrets. They poison normal relationships, trade on feelings of affection, drive a wedge between their victims and others, and make family and friends take sides. They count on the failure or inability of responsible adults, both relatives and professionals, to protect and support the victims. Faced with exposure, they commonly turn on their victims, try to assassinate their characters, and get others to do the same. Most often, their selfishness is so deep-rooted that they ignore other people's feelings and are only capable of feeling pity for themselves."
(1) Exposure to domestic abuse.
a. On the 20.06.17 M informed the social worker that four years previously, F1 had assaulted her and split her lip open. This allegation is true.
b. F1 was violent towards his previous partner. In addition, on the 14.04.08 he was cautioned for an offence of pursuing a course of harassment on her.
c. On 07.12.16 A described an altercation between M and F1 in the family home where she alleged that M had threatened F1 with a knife and the police were called. The allegation is true.
d. On 20.06.17 M told the social worker that F1 is controlling and emotionally abusive to her, for example needing to know where she was at all times. The allegation is true;
e. On 19.06.17 F1 physically assaulted M by punching her head and face. M required hospital treatment. This incident was witnessed by MM. M made a complaint of assault to the police. She sustained substantial bruising to her face.
(2) M has prioritised her relationship with F1 over the needs of her children.
a. M has blamed alcohol for F1's assault (19.06.17), thereby minimising his violence.
b. M has retracted her prosecution, having provided a truthful statement to the police and has resumed her relationship with F1;
c. F1's alcohol use is problematic and he misuses painkillers. M is aware of F1's issues but pursues the relationship nonetheless;
(3) A has been subjected to physical and emotional harm by M, F1 and MGF.
a. On the 31.05.16 F1 assaulted A. On 06.06.16 A alleged this at school. She sustained two linear bruises to the right arm consistent with A's account of the incident. F1 denied the allegations and falsely maintains that A is lying. (M stated on 19.07.17 that she was a "fucking little liar") M also accused A of lying and continued her relationship with F1.
b. F1 regularly slaps A. A has alleged that F1 slaps her and her siblings; this included slapping her on the face on a regular basis.
c. The M raised her hand as if to assault A by hitting her on the 27.02.17. A made these allegations on the 28.02.17. A stated that she felt M did not intend to hurt her and she had no visible injuries. M has, on more than one other occasion physically overchastised the children.
Please read the extract below of my visit to A in school today:
" I asked A how she was and she said fine, she was smiling A said that working with Kate was good and she had helped her and F1 to be better at listening by doing things like making good eye contact to each other. A said there had been no issues with her and F1 in a long time. I asked about things at home and if they were mainly happy or if there was anything sad. A said it was sad. I asked why and she said "mam hit me last night". I asked why and A said "me and G wouldn't go to bed". A explained that G was in her room and she was giggling as they were tickling each other and M came in and shouted that they should be asleep, so M lifted G into his room and came back to A's room where M hit A. A said she hit her "6 times", and it started as a slap and ended in a punch. A said it was "very sore" and was at the top of her arm. I asked A to show me where and she rolled her sleeve right up, there was no mark on the area of the arm where A was pointing, or any other part of the arm. I told A what she was saying was very serious and asked her whether she thought her mam wanted to hurt her and she said "don't know". I said to A I would need to speak to her mam and my manager. When I asked her if she felt safe at home A said no. I demonstrated by lightly hitting the chair and asked "was it this hard?" A replied "no much harder". A was not tearful or upset, she spoke matter of factly, with no emotion in her voice. She was very happy returning to class, skipping along and smiling at me."
At the most recent care team, it was mentioned by Miss H that A had been telling tales e.g. about her granddad dying. I am concerned that this is becoming a feature of A's behaviour. I have referred her to EWBT but this may take some time. Would it be possible for A to be re-referred to the school counsellor in the meantime?
On advice of my team manager, I contacted M. She described how she had needed to shout at A and G last night as they would not settle down to bed and she had needed to lift G out of A's bed. I asked whether she smacked A and M said "no I raised my hand to her, but I did not lay a finger on her." M explained that last night A had said she didn't want M as her mam anymore and didn't want to live there. I have advised M not to raise her hand to A and not to make a big deal of this incident later on, as to prevent a further argument. M was tearful on the phone and blamed a lack of contact from F2, I told M F2 is only a small part of this as this issue is stemming from a wide range of matters, not just contact.
Kate- I have spoken to Debbie about this and she is wondering whether it might be possible that you could involve M along with F1 and A in one session tougher, in order to discuss consequences, disclosures, telling tales etc.?
A had no marks on her visible where she said she was injured, nor was she upset or fearful in any way in her behaviours/voice. I am most concerned about A's emotional well being. I do not believe that A has been assaulted by her mother as she describes on the basis of our discussion, my involvement with the family and A's on-going behaviours which include attention seeking, emotional needs, telling tales in school and using her emotions to get attention (e.g. crying to teachers and then stopping immediately).
d. F1 was emotionally and verbally abusive towards A and treated her differently to the younger children and told her "I hate you". The M made this allegation to the Social Worker. M was aware of this since the birth of G and failed to protect A from it;
e. M has accused A of being responsible for the assault on her on 19th June 2017 stating that "A's lies drove F1 to drink". This was said in A's presence, causing significant emotional harm.
f. M threatened A that she would "punch her all over" when she was travelling to school. A made this allegation to her support worker on the 17th of July 2017;
g. On 19th July 2017 M and MGF were extremely threatening and hostile to the social worker and to A; A was called a liar and told that she was responsible for F1 being out of the house. A was screaming and clinging on to the social worker shouting "no". There was no concern for A's emotional well-being shown by M or MGF;
(4) M has not worked openly and honestly with children's services to address the areas of concern
a. On 21.07.17 M informed Kerrie Thompson, Health Visitor, that she had told lies, kept secrets, put on a front and "gone along with Children's Services", just to "get them off her back". M said that previous interventions including the parenting interventions to improve her parenting and relationship with A "didn't work at all", however at the time she stated that these were beneficial and useful. M also told the social worker on the same date that she had told Children's Services what we 'want' to hear.
b. On 21st July 2017, M refused to allow A to stay with her father, F2 whilst the local authority carried out a risk assessment of MGF in respect of the historic allegations of serious sexual abuse against his step daughters;
143. M accepts this finding and I make it as drafted.
c. M has since 19th July 2017, alternated between refusing to allow the social worker to speak to A or put conditions around who has to be present before A is spoken to alone;
(5) A has been unable to maintain regular contact with her father, F2
(6) The children have been exposed to the risk of sexual abuse
a. MGF sexually abused his stepdaughters SM and DF whilst they were in his care and that of MGM;
b. Both girls were sexually abused on an on-going basis from the age of approximately four years until the age of fifteen years (between approximately 1986 and 1998).
c. The sexual abuse of DF included on at least two occasions anal rape with the penis. On one of these occasions she was approximately eight years old.
d. The sexual abuse of SM included digital penetration of the vagina and attempted rape of the vagina;
e. M and MGM are aware of the allegations and do not believe them.
f. As a consequence, neither perceives MGF to be a risk of sexual abuse.
g. MGF presents a risk of sexual harm to children.
Further Findings sought:
(7) The parents neglected the dental care and needs of MM, meaning she has had to have a large number of teeth removed due to the extent of decay.
(a) MGF frequently used physical violence against M when she was a child. She would leave home, come to the attention of the police and be reported missing, placing herself at risk of further harm.
(b) On 30.10.01 M aged 13 she was placed in police protection after being assaulted by MGF and suffering bruising as a result - she alleged on one occasion she had been held against the wall by her neck;
(c) In November 2001 M contacted child line alleging her father MGF has hit her causing her to run away from home;
(d) She was reported missing 6 times in succession (and would go missing 3-4 days at a time)
(e) In a record dated 19.11.01 M told a worker from Gateshead that she did not want to be hit by her father any more and a written agreement was out in place whereby MGF agreed this would not happen; subsequent contract agreed by MGF and MGM stated "M will not be hit by her father";
(f) Recordings in a strategy meeting of 30.07.02 record that mother reluctantly admitted that he father had assaulted her which led to her being placed in police protection"
(g) MGF used high levels of physical violence against his step daughters DF and SM including hitting them with slippers and belts;
(8) M now denies these assaults against her occurred, however the LA contend these assaults did happen as evidenced by the contemporaneous reporting, Police involvement, consistent injuries and the acceptance by MGF and MGM of support from the community support team detailed above.
(9) On the 5.12.17, M allowed CM into her house and into contact with the children, in breach of an agreement with the LA.
(10) On the 13.1.18, M allowed a person, not authorised to be present in the house, into the house and into contact with the children. This person was on M's account her friend CM.
(i) Her own children, by allowing the continued over-chastisement of them by MGF without intervention, knowing the chastisement was over the top;
(ii) Her grandchildren, by knowing of the abuse not acting to report the said abuse or intervene to protect. It is alleged on balance MGM had become aware of the signs of on-going domestic abuse between F1 and M and becoming aware that A had disclosed such domestic abuse to MGF.