England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		06/02/2020

Mrs Justice Knowles:

Introduction

1. I am concerned with two children, Y, a boy, who is 11 years old, and his sister, X, who is four years old. They have different fathers: Y's father is called CD and X's father is called AB. Like CD, the mother was born in Poland and she came to this country in 2005. On a trip back to Poland in 2006 she met CD and they began a relationship, with him following her to this country shortly thereafter. It is unclear when their relationship ended though nothing turns on the point. AB was born in England and, save for a brief period as a child, he has lived in this country all his life. He met the mother by way of online dating and they were in a relationship from about April until June/July 2014 when the mother fell pregnant with X. DNA testing has confirmed AB is X's father. Both X and Y live with their mother and have always done so. Their contact with their respective fathers lies at the heart of these proceedings.
2. The local authority issued public law proceedings in March 2019 within pre-existing private law proceedings concerning X. Those proceedings were stayed in consequence and this matter was listed before me by Mr Justice Keehan in order that I might determine the factual basis upon which the threshold criteria in section 31(2) of the Children Act 1989 were met, if relevant. In summary, the local authority's case was that the children had suffered and were likely to suffer significant emotional harm arising from the mother's false and inaccurate allegations that (a) AB was physically and sexually abusing X when he had contact with her and (b) CD had physically harmed Y when he had contact with him. Both AB and CD denied the mother's allegations that they had either sexually or physically harmed their respective children during contact.
3. Until the pre-hearing review on 9 December 2019, the mother maintained that the court should determine serious allegations of physical and sexual abuse made by her against AB which were particularised in a schedule contained in the court bundle. However, on that date, and following legal advice, the mother accepted that the court would be unlikely to make the findings she sought against AB. She reluctantly conceded that the court would proceed on the basis that AB had not sexually or physically abused X. However, the mother denied that she had been the author of either actual or likely significant emotional harm to both children as the local authority asserted. That position was maintained by her until the day upon which I was due to begin hearing witness evidence.
4. Having read into the case in accordance with the local authority's reading list and also viewed video material, some of that viewing taking place in the presence of an officer from West Midlands Police, I made some observations to the parties in court prior to the commencement of the witness evidence. Those observations were intended to assist the forensic process and to remedy evidential gaps, the most significant of which was the absence of any chronology identifying when X and Y had had contact with their respective fathers over the last three years. During exchanges with counsel that day, it became apparent that the mother conceded the threshold criteria in section 31(2) of the Children Act were satisfied. Further, the local authority accepted that it was unlikely to persuade me that the mother had deliberately made false allegations of abuse against AB. I allowed the parties time for discussion and eventually the parties agreed that (a) it would not be necessary for me to hear oral evidence; (b) the remaining matters in dispute could be resolved by me hearing oral submissions; and (c) a judgment would greatly assist the process of expert and other assessments necessary for the welfare stage of these proceedings. I accepted that agreed position which was both a proportionate approach to the remaining issues and which was also fair to all the parties.
5. I am grateful to the parties for the assistance they have given me in resolving this case. Their written and oral submissions were focussed and realistic and I have no doubt at all that their respective clients benefitted from their pragmatic and child-centred approach to this litigation.
6. This judgment will conclude with some observations about the social work practice in this case which may be of assistance.

The Parties' Positions

7. It is important that I summarise the parties' positions at the time they made their oral submissions to me. The local authority and the mother disagreed as to the precise basis upon which the threshold criteria were satisfied in relation to X, each producing their own threshold document. In essence, the mother submitted that the threshold document prepared by the local authority gave insufficient consideration to her involvement with the local authority which had failed to stop the cycle of allegations and which was inconsistent and unhelpful to both her and the children. In particular, she took exception to the detail of the manner in which her beliefs about AB's behaviour had resulted in harm to X. Both the mother and the local authority agreed that a judgment to set in context the threshold findings would be crucial given the need for expert assessment of the adults and the children in order to inform welfare decisions. Such a judgment was also vital given the criticisms made by the mother about the manner in which local authority professionals had engaged with her both before and during the private and public law proceedings.
8. AB submitted that the threshold document should contain a clear statement that he had not physically or sexually abused X and invited me to endorse the local authority's document. CD submitted that, whatever had occurred between Y and CD, this could not account for Y not wishing to see his father. He accepted the threshold formulation agreed by the mother and the local authority with respect to Y. The children's guardian urged me to accept the local authority's threshold document and to provide in my judgment assistance to professionals about the context for the threshold findings.

The Legal Principles

9. These are familiar and can be summarised briefly. I have had all these principles very firmly in mind when coming to my decisions in this case and when preparing this judgment.
10. First, the burden of proving a fact lies with the party asserting that fact. In this case, the burden is on the local authority. The court must also guard against reversing the burden of proof. I consider this to be especially important in cases such as this one where the mother has made some, but not all the threshold concessions sought by the local authority. Second, the standard of proof is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Third, findings of fact must be based on evidence (including the inferences which can properly be drawn from the evidence) and not on speculation or suspicion. Fourth, the decision on whether the facts in issue have been proved to the requisite standard must be based on all the available evidence and should have regard to the wide context of social, emotional, ethical and moral issues. It is vital that the court does not evaluate the evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and the court should exercise an overview of the totality of the evidence in order to come to a conclusion whether the case put forward has been established on the balance of probabilities. Fifth, the court should bear in mind that a witness may tell lies in the course of the investigation and the hearing. Lies may be told for many reasons such as shame, misplaced loyalty, panic, fear or distress. The fact that a witness has lied about some matters does not mean s/he has lied about everything. A lie is not direct proof of guilt though it is capable of amounting to corroboration.
11. I have been especially mindful that the witness evidence in this case has not been tested by examination and cross-examination. Where I have been unable to come to a firm conclusion about adult or other behaviour, this will be apparent from my judgment. Any inferences I have drawn will be based only on what is undisputed fact.

Background to the Proceedings

12. I set out the background pertinent to these proceedings, drawing on both the written and oral evidence. The evidential material I have examined was confused and confusing, such that an accurate chronology has been extremely difficult to construct in this judgment. What is recorded below represents the best sense I was able to make of the material before me. My summary includes some observations which have informed the conclusions reached in this judgment.

To Summer 2017

13. The mother has been a sole parent for both her children since their respective births. She cohabited with but separated from CD shortly after Y was born and never cohabited with AB prior to the birth of X. Her relationship with AB was short-lived by comparison with that involving CD but I am in no position to make findings about the circumstances in which that relationship ended. What is absolutely clear was that the mother expected more from the relationship with AB than he did of his relationship with her. She gave birth to their child with whom AB had little involvement until his paternity was established by DNA testing in December 2015.
14. After the DNA test result AB sought contact with X, but the mother clearly had reservations about permitting him contact. In November 2015 she contacted the local authority saying that she was frightened to offer contact and asked for help. No reasons for her concerns about contact were recorded. The mother was told not to permit contact if she was concerned about X's safety and advised this was a private law matter rather than one which required involvement by the local authority. In May 2016 the mother told her health visitor during a home visit that she thought AB was requesting contact to "get at" her. In early June 2016 the mother complained to the police that AB had arrived uninvited at her home apparently to try to get his maintenance contributions reduced. He was reported to have banged on the door and to have left when the mother did not answer the door. No offences were disclosed. I am unable to make any findings about whether this incident took place as the mother reported. The police officer noted that he had viewed text messages from AB to the mother which were not threatening, and which concerned his liability for maintenance. The mother was said to be willing to permit AB to have contact with X, but she did not want this to take place at her home. She was given details of local facilities which might assist her. Shortly thereafter, on 11 June 2016, AB had contact with X for the first time at a soft play centre, this being supervised by his sister. Regrettably no contact then took place until 28 January 2017.
15. In July 2016 the mother told her GP that AB had sent her abusive text messages which included her "being threatened to end her life". The GP reported this to the local authority who then tried to contact the mother without success. Instead, a supportive letter was sent to the mother's home address. In her statement, the mother alleged that she had also refused further contact as AB had attended the soft play centre smelling of alcohol. AB disputed that he behaved as the mother alleged and, having heard no evidence on this issue, I am unable to determine whether the mother's allegations about his behaviour were established. In any event little turns on what actually took place since AB issued private law proceedings in October 2016.
16. The Cafcass safeguarding letter to the court in early January 2017 identified the concerns set out above and, with encouragement from their legal advisors, the mother and AB engaged in mediation. It was agreed by them that X should have contact with AB on a Saturday morning for two hours which would initially be supervised and would then increase. In consequence of that agreement, AB saw X on 28 January 2017, his contact being supervised by the mother. A further three sessions of contact took place as arranged but thereafter AB complained that contact took place sporadically. Nevertheless, a court order dated 22 May 2017 provided for AB to have largely unsupervised contact with X every Saturday, initially for three hours but increasing incrementally to seven hours. AB was also granted parental responsibility for X. Significantly, the order recorded that there were no safeguarding concerns reported by Cafcass and there was no requirement for any further involvement from Cafcass. A final court order was made on 14 July 2017 in the following terms: "the child shall live with both parents as a final order. X will live with her father for the times set out below and otherwise will live with her mother". Detailed arrangements as to how X would divide her time between her parents were then set out in the order.

Summer 2017 – June 2018

17. The July 2017 consent order lasted but a short time until 11 October 2017 when the mother refused to permit contact between X and her father. The breakdown in contact came hard on the heels of the mother reporting in early October 2017 to the local authority and then to the police that X had returned from contact with a mark on her face. It is however apparent that the mother was troubled by X's contact with her father before that date. On 2 August 2017 the mother told the health visitor that AB was having regular contact with X and this made her anxious. She reported that she had been recently diagnosed with depression by her GP and was taking medication for this. On 2 October 2017 the mother once more told the health visitor during a home visit that she was anxious when X was in her father's care. The health visitor encouraged her to contact the local authority if she felt there were any safeguarding concerns. I note that, on this occasion, the mother was once more reported to be taking prescribed medication for depression.
18. The father had contact with X on 1 October 2017 and when he returned X to the mother that evening, he apologised as X had a mark under her right eye. He said that X had bumped her head on a coffee table when playing. He had contact once more from 4 to 5 October 2017, returning X to her mother's care at 8.30am. Later that day the mother told X's nursery that she thought X was being physically abused by her father during contact. She said the nursery told her to contact the local authority and to seek legal advice. Acting on that advice, the mother told the local authority of her concerns and was advised to seek legal advice and to ensure she safeguarded X. She was told that, if X had injuries after contact, she should consider contacting the police. The local authority closed the mother's referral that same day.
19. On 11 October 2017 the mother took X to see her GP for a review in relation to X's dry skin. The GP records stated that X said her father slapped her face and bottom. X was said to have mimicked "no, no" and then slapped her own face. The mother was reported to have noticed a bruise to X's right eye two weeks ago which was caused by X running around and catching her face on a table picking up stickers. The GP saw no current evidence of bruising to X but advised the mother to defer AB's contact which was due to take place later that day and to seek legal advice. The mother was again advised to involve the police if X returned from contact with marks or bruises. Later that day the mother reported her concerns to the police.
20. The mother told the police that, over the previous six weeks, X had started smacking her own face and when asked why she was doing it, she responded by saying "daddy no, no". X was also reported to have wet herself on one occasion after returning from contact with her father. The mother also said that she believed X had started to touch her private parts more often. AB was reported to have a new girlfriend and X had returned from contact saying her father had shouted and his girlfriend had been crying. The mother said she had contacted her solicitor and would not be permitting contact pending further court proceedings. It is a little unfortunate that a different police log also recorded the mother saying X was frightened of her father and did not want to see him. That log, rather surprisingly, recorded that the mother had not seen any marks on X, but that X had said her father had hit her on the face and bottom.
21. AB was refused contact on 11 October 2017 and on 12 October 2017 the mother issued an application to vary the July 2017 contact order. The application recorded the following matters: (a) on at least five occasions, X had told and shown the mother that AB had slapped her; (b) X said she had been slapped on her bottom, but AB was said to have denied this and said the mother must have hurt X getting her out of the car; (c) X was also said to have had an injury to her eye for which AB had given two conflicting explanations; (d) X was said to have demonstrated being hit around the face, ear and crotch and to have said her daddy did this; and (e) X was also said to have become nervous and jumpy on hearing loud noises and was fearful of her father. The mother asked for AB's contact to cease pending a full investigation. AB had no further contact with X until 4 November 2017.
22. Between the issue of the mother's application and the subsequent court hearing on 2 November 2017, the mother reported her concerns to all those involved in X's life. Thus, on taking X to see the GP for an ear infection on 16 October 2017, the mother once more repeated the allegations about AB's behaviour. She also told X's nursery about these matters on 23 October 2017. Rather surprisingly, the mother travelled to London on 22 October 2017 with X in order to consult with a clinical psychologist about X's behaviour. In her witness statement dated 7 June 2019, the mother said she had taken this course because of the lack of action by the local authority in response to the allegations made and because she was at her "wit's end" as to what she could do for her daughter. Her statement recorded that the psychologist had not asked X anything and had sought to reassure the mother by telling her that children did not tell lies. The mother felt this visit – for which she had paid privately - was "a bit of a waste of time". No records of this visit were in the bundle, so it was difficult to come to any firm conclusions about the rationale for this trip. However, it seemed to me to be a clear indication, at the very least, of the mother's heightened anxiety about both what X was reportedly saying and how she was reportedly behaving.
23. On 2 November 2017 the lay justices noted in their reasons that the mother had made an additional allegation, namely that X had been seen putting toy scissors down her pants, saying "this is what daddy does". Though the justices expressed disquiet about the way in which these allegations had emerged, they varied AB's contact to X by ending overnight contact and substituting alternate weekend contact to be supervised by the father's sister. It was recorded that these arrangements would remain in place until the mother's allegations could be properly tested in court. AB denied all the allegations made and gave the same explanation about the mark near X's right eye as he had given the mother on 1 October 2017. I note that he had also applied for enforcement of the July 2017 order.
24. At about this time in November 2017, Y returned from contact with CD saying that he did not want to see his father anymore. He said his father had pushed him as he had spilled some orange juice and he then fell over. CD gave a different version of what happened in his witness statement dated 7 June 2019 but the details of what took place are not important since the parties are now agreed that this was a trivial incident which should not have resulted in the cessation of contact between Y and his father. The mother properly accepted that, following this incident, she did not sufficiently or consistently promote and encourage Y to have a relationship with his father. That was by contrast with her previous behaviour which had been supportive of Y's contact with his father.
25. Following the hearing on 2 November 2017, Cafcass was tasked with making safeguarding enquiries. It concluded that there was no reason why X should not see her father in accordance with the July 2017 order but noted the absence of trust between the mother and AB. Both the mother's and AB's applications were resolved by agreement that the July 2017 order should be reinstated. This order remained effective until June 2018 though it did not put an end to the mother's reporting of concerning behaviour by X associated with her father.
26. On the same day the private law proceedings concluded, several agencies were contacted in connection with X's reportedly worrying behaviour following contact with her father. The chronology of which agency was contacted first is very unclear from the documents I have seen but nothing turns on it. A neighbour contacted the police and/or the local authority to report the mother had spoken to him in some distress, feeling like she had not been listened to. Both the police and the local authority contacted the mother who repeated her account of X coming back from contact with marks on her face. She also spoke about X putting toys in her pants such as scissors and a toy rolling pin and saying "Daddy do it". Furthermore, X smacked herself whenever she wet herself and, in consequence, the mother believed AB was hitting X when she wet herself during contact. X had also reported AB hitting his girlfriend on the face and making her cry. The mother explained that she had been to court that day and that the original contact order had been reinstated as there was no evidence to back up her concerns. She wanted someone to speak to X and wanted contact to be supervised. The police decided that further information should be sought given the worrying matters the mother had reported and, I suspect in consequence, the local authority undertook an assessment which it completed on 5 February 2018.
27. The allocated social worker, CK, saw X in both her mother's and her father's care and found nothing concerning about X's behaviour or presentation in either situation. However, when she visited the mother on 24 January 2018, the mother reported that X had a mark on her vagina – described as a bruise in the social work notes - which was reddish and sore and to which the mother had applied cream. I note that AB had told the mother on 22 January 2018 that X had red, irritated skin in her crotch area. The social worker challenged the mother about the mark and said she had seen X three days earlier to be quite happy in her father's care. The mother was said to have become upset and asked the social worker to leave. It is important to record that X's nursery had noticed none of the concerning behaviour described by the mother even though staff were aware of the allegations made against the father. X was, in their assessment, developing normally and her presentation and behaviour gave rise to no concerns.
28. The local authority assessment concluded that the allegations made by the mother were unsubstantiated. It was clear that the local authority was worried about the mother's allegations which it was thought stemmed from her dislike of X's contact with her father. There was concern the mother might be putting emotional pressure on X due to the mother not getting decisions from agencies or the court with which she was happy. The case was closed despite the social worker's observation that she was worried X might have an intentional bruise in the future to evidence an alleged allegation. Whilst Mr Sampson characterised this statement as an extraordinary and spurious conjecture which evidenced a negative attitude towards the mother from the outset of the local authority's involvement, it was, in my view, a statement which should have set alarm bells ringing for the social worker's manager. If this was indeed what the social worker believed, the family, particularly the mother, ought to have been offered immediate advice and guidance around contact issues and child behaviour rather than the case being closed.

June 2018 – March 2019

29. X continued to have contact with AB until 14 June 2018. On 1 June 2018 AB contacted the local authority social worker, CK, by email complaining that the mother was not cooperating with him about matters such as a possible school for X. He was worried that the mother's attitude was still essentially hostile towards him and he said that he might need to return the matter to court in order that he might become X's primary carer. AB emailed once more on 8 June 2018 in a similar vein. AB's concerns were overtaken by further allegations of physical abuse made by the mother in apparent reliance on what X had told her.
30. Thus, on 16 June 2018 the mother went to the police station to report that X had told her that her father had hit her and X touched the left side of her face in so reporting. The police officer spoke to the mother in front of X and Y and observed that X was a happy chatty little girl. Apparently unprompted and during the discussion of AB's contact, the officer recorded X saying "my dad hit me". The officer asked her to repeat this and she did so. When asked where she had been hit, X pointed to the back of her head. The officer assessed that X would be unsuitable for an ABE interview since she would be unable to give the detail required without being asked leading questions. The mother was advised that, if she wished to withdraw contact (which was due to take place the following day), the police would not force her to comply with the contact order. She was told to inform the father of the allegation and to tell him not to attend her home in order to collect X. On 17 June 2018 AB was said to have arrived at the mother's home and banged on the door. The mother called the police and AB was reported to have left the property shortly thereafter. On 20 June 2018 the mother saw her GP and reported that X had been hit by her father several times, but that contact had been stopped and the police were involved. That same day, AB reported to the local authority that X's behaviour was clingy, and that X was experiencing toileting accidents during which she would wet herself.
31. On 24 June 2018 the mother was visited at home by the police. The mother reported that she had become concerned with X's sexualised behaviour such as scratching her private parts and placing objects in her pants. That week the mother saw X scratching her vagina and asked her "who does that?" to which X replied "daddy". The mother asked "what with" and X replied "naughty toys". The mother said that she had shown X images of sex toys online and had asked X which one the father had used. X had picked a picture of a dildo. During her conversation with the officer, the mother showed a video she had taken of X being asked about the naughty toys. The officer commented that on the video, the mother showed the camera the pictures she was showing X, but it was not possible to see the picture of the naughty toy she showed X. Whatever the picture was, the officer recorded that X called it a naughty toy in the video. During the visit the officer spoke to X about contact with her father and she said she liked going to his home and that he made her happy. The records suggested that the officer advised the mother not to show the child inappropriate videos/images. The mother's concerns were then passed on to the local authority and I note that, ultimately, the police took no further action in respect of the mother's allegation.
32. However, the allegation of sexual abuse was repeated to the GP on 9 July 2018. The GP referred the matter to the local authority and the decision was taken that X should be medically examined by the community paediatrician. The mother consented and X was examined on 18 July 2018. The history given by the mother was in these terms: "…alleges repeated sexualised behaviour witnessed in X but not at nursery. Mother disclosed that two days ago X's brother Y (half-brother) has witnessed X to have put her own finger into back passage. [The mother] has also witnessed X to place toys into her own underwear and inserted lego toys into her bottom. [The mother] also alleges that X has spat onto her own private parts whilst sitting on the toilet and stated that "it tickles her and daddy does it" and mum appeared very emotional when saying this. [The mother] has also alleged further sexualised behaviour exhibited by X to include "smacking" the front of her private parts and inserting a dummy into her private parts". X had a full physical examination including her genitals and anus. No sexualised behaviour was seen during the clinical consultation and the only medical difficulty necessitating attention was constipation for which medication was prescribed. The paediatrician confirmed that no behavioural concerns were observed, and that the physical examination was within normal limits.
33. The local authority held a strategy discussion on 18 July 2018 where there was agreement that X was experiencing emotional abuse which warranted a section 47 enquiry with a view to an initial child protection conference. Following X's medical, Y was seen by the social worker in the presence of the deputy head of his school. Y made no allegations and said he had no worries about his sister. Two days later on 20 July 2018, the mother took X to her GP complaining that X had been sexually abused. X had seen her father for contact two days earlier but was now sore in her private parts. The clinical records noted that the "child says possibly dad put finger in her private part". The GP undertook a limited examination and advised the mother to return to the community paediatrician for further assessment. Later that day the GP informed the local authority of the mother's visit and was told that the local authority felt that the mother was trying to sabotage AB and falsely accuse him of sexual assault. Finally, the mother visited Y's school on the afternoon of 20 July 2018, saying that Y had been too embarrassed to say anything in front of the teacher when he had been seen by the social worker and the teacher on 18 July 2018. The teacher spoke to Y in the presence of the mother and Y said that, a few months ago, X put toys down her pants and then a little while ago she put her finger "by, near, up" her bottom but he couldn't recall exactly. Y was reassured that it was okay to tell the truth whatever that was. Y was also asked if he was worried about his mother and he nodded. What happened at Y's school indicated that he had been placed under pressure by his mother to corroborate her allegations that X was being sexually abused.
34. Alongside the repeated accounts given by the mother to professionals about possible sexual abuse to X, the mother embarked upon her own evidence gathering by making video recordings of X in which X was asked about alleged abusive experiences in her father's care. In total, ten video recordings were made, of which three were deemed by the police to contain indecent images of X. The mother conceded via Mr Sampson that she had begun recording X in a vain and ultimately damaging attempt to assure professionals that her concerns were genuinely held. The mother began recording X on 16 June 2018 prior to her attendance at the police station. During the video taken on that day, X was asked where she had been hurt and pointed to her face saying she had been hurt "with his hand". Another video was taken on 23 June 2018 which showed the mother playing a game with the children. The mother showed the children pictures and the children named the image on the pictures. At one point the mother showed a picture of a sex toy (a dildo) and X said "daddy's toy". Mother asked X what he did with it and X replied "he fight me". These two videos were shown to the police round about the time they were made. The remaining recordings did not come to light until the hearing on 22 May 2019.
35. A video was made on 16 July 2018 and showed X sat naked in her bath. An adult female voice [the mother] asked X what she was doing and the camera focused on X who had her left hand by her vagina. X said something inaudible and then stood up as the mother asked "whereabouts". X bent over facing away from the camera with her left hand pointing towards her anus saying "here". The mother then asked what he did that with and X replied "with his toy". In response to the mother's further questions, X said, whilst playing in the bath, he had a pink toy which was her toy. The police regarded this video as showing an indecent image of a child.
36. In July 2018 the manager of the nursery attended by X wrote to the local authority confirming that the nursery had no concerns about X's well-being. X had never said anything which would raise concerns. The manager expressed this opinion about the mother: "Mum is a friendly woman who has shared her concerns with us and comes across as a mother that is raising concerns that no one is listening to at this moment in time. I feel from listening to mum it is quite apparent that she would like to be put at ease that the things her child is saying to her are not true and would like the appropriate support to help her at this time. She has expressed she is unsure how to handle the situation appropriately to get the answers she needs". The manager was also critical of the social worker's negative view of the mother and stated she felt both parents needed support through mediation so that they could talk amicably in the future for the sake of X. Tellingly, she noted that "I feel that some comments that X may have shared could be lost in translation and if parents could communicate on civilised terms this could be cleared up". It is unfortunate, in my view, that this sensitive approach to the mother's anxieties did not find favour with the local authority.
37. On 24 July 2018 AB applied for a child arrangements order for X to live with him. In his application he said that the mother had made continuous allegations against him which were both unsubstantiated and untrue and he alleged that the mother had been teaching X to make untrue and inappropriate disclosures. In early August 2018 the local authority's assessment set out its concerns in the following terms: (a) the emotional stress being placed upon the children by their mother; (b) the mother's mental health; (c) the continuing allegations which were not substantiated; (d) the mother showing X a video with sex toys and asking her leading questions; (e) the mother starting to report that Y had seen his sister doing sexual behaviours; (f) the mother making an allegation of sexual abuse to the GP in spite of the outcome of the sexual health assessment; (g) the mother making it difficult for X to see her father and not respecting the court order. On 10 August 2018 an Initial Child Protection Conference took place and X was made the subject of a child protection plan under the category of emotional abuse. Amongst the recommendations made was one that the mother should seek a referral from her GP for a mental health assessment. Such an assessment was never undertaken as the mother's GP was firmly of the view that the mother required no such assessment and was only suffering from mild anxiety which he felt was due to the circumstances surrounding the children and their fathers. Another recommendation was for the mother and AB to have mediation via Relate. The conference recommended that Y should have contact as soon as possible with his father. Finally, a new social worker, WL, was allocated to the family.
38. Unfortunately, the imminent child protection conference did not deter the mother from making another video of X on 9 August 2018 in which X was reported to say that her father was not nice because he "banged her" on her belly. On 10 August 2018 the mother took X to the GP where it was reported that X repeated the allegation in respect of her father. The medical records do not substantiate that account, so I am unable to come to a view about what happened during that consultation. However, on 23 September 2018, the mother once more recorded on video X saying "daddy hurted me" and when asked where X said this was on her belly.
39. About a week later, on 1 October 2018, the mother went to the local authority offices in something of a distressed state. She showed the social worker and team manager two videos she had taken of X on 28 September 2018. The first video showed X with her hand down the front of her leggings, rubbing herself. The mother asked X "so what daddy does to you princess?", to which X replied "like this". The mother asked what with and X said he did it with his finger. The mother asked if this was a nice finger and X said "it's a big finger". The second video showed X being asked by the mother what a rainbow colour was and she replied "Daddy's naughty toy's a rainbow colour". She said he still had it but immediately thereafter said he had not and that the toy was in jail now. The local authority referred the matter to the police and the police record indicated that it was believed no penetration of X had taken place. A strategy meeting took place on 3 October 2018 which recommended a joint local authority/police investigation. Both the mother and X were seen the following day during a home visit which lasted for over two hours. X was spoken to and made no allegations and, when asked if daddy did anything to hurt her, she said no. She did not mention her father in a negative way at all during the entire visit.
40. On 8 October 2018 AB was interviewed by the police during which the sexual abuse allegations were put to him. He denied everything in the strongest possible terms and alleged that the mother had been teaching X what to say. When he was asked about sex toys, he said: "now X does come into my house saying now this toy has been naughty, it needs to go to jail". The outcome of the investigation was that the police were unable to substantiate X's allegation and took no further action. The senior officer was not satisfied either that the video was a true disclosure or that the child had not been groomed into the disclosure for whatever reason by the mother. He observed that the video started with both the mother and the child staring at the camera as if it was on pause and waiting for the record button to be pressed. In his view, the mother launched straight into asking leading questions to which X responded with words and actions. Contact between X and her father, which had been temporarily suspended for about two weeks, was accordingly reinstated.
41. At about this time I note that direct work began with Y. This was undertaken by a student social worker. During the first session Y expressed worry about when X said that her father hit her. The recording provides some more detail as follows: "… he raised concerns about X being hit by her father. This was information that X gave Y. He was also worried about his father hitting and pushing him, and said he was particularly worried that if he chose not to see his dad then he would be moved to a different family. This was something Y says his father told him about four months ago. In the 'house of dreams' aspect of the model, Y said ideally he would not have contact with his dad and X would not have contact with hers… In the All About Me Booklet, Y repeated that he was afraid of his dad pushing him and hitting him again and said this had happened 'lots'".
42. On 16 October 2018 a Review Child Protection Conference took place which decided that both children should remain the subjects of a child protection plan for a further period under the category of emotional abuse. The professionals involved with the family were worried by the ongoing concerns raised by the mother against AB which had not been substantiated. On 3 December 2018 the local authority filed a section 7 report authored by the social worker, WL, within the private law proceedings. WL stated that the constant allegations made by the mother against AB were concerning; that X had never disclosed anything to anyone apart from her mother; and that there was no evidence to substantiate any of the allegations made other than the disclosure made by X on video when questioned by her mother. It was the local authority's intention to instruct an expert to conduct a psychological assessment which would consider whether the mother's mental health might be impacting upon her behaviour. Until the outcome of that assessment, WL felt unable to make recommendations as to where X should reside, and which parent should be her primary carer.
43. I pause here to record that, within the local authority, there was a concern that the mother's behaviour might be an example of parental alienation, namely where a parent with care alienates a child against a non-resident parent with whom the child is having contact, such that contact is no longer possible. Thus, on 24 September 2018, the Child Protection Conference Chair provided information to the social worker about (a) parental alienation and (b) the promotion of contact between fathers and their children where there was no evidence to suggest that children would be harmed by having such contact. The local authority's approach was not assisted by differing views between the allocated social worker, WL, and her predecessor, CK. The case recordings make clear WL's unhappiness with the view that this case was one of parental alienation by the mother. The difference in social work approach did not assist the mother whose reporting of alleged abuse stepped up a gear or more in autumn 2018.
44. During November 2018 the mother made three further video recordings of X. On 12 November 2018 the mother recorded a close-up image of X's vagina. Whilst this image was on screen, the mother could be heard asking X questions such as "where did he hurt it" and "how did he do it". X responded saying "he hurt it with dadada" and eventually said "he did, everything hurt me". At that point the video moved away from X's genitals to briefly focus on X's face before the image became blurred. Further questions were asked of X by the mother with the mother saying "is it painful a bit?", to which X responded saying "no it isn't it's just tired my bum". The mother then asked why X's bum was tired and X replied "I don't know". The police regarded this as an indecent video given the close-up images of X's vagina and genitals. On 29 November 2018 the mother made two further videos of X. In the first, X had her underwear pulled down making her vagina visible at the bottom of the screen. Once more the mother asked questions to which X responded "he hit me" and indicating by gesture she had been hit with a thumb. Again, the police regarded this recording as indecent, given the image of X's vagina. The final video was taken on the same day, 29 November 2018. At the start of the clip X was heard telling the mother to kill her father with her sword because he had been naughty. When asked how the father had been naughty, X said "he hit me in the face like that" and demonstrated by hitting her right hand across her own face and saying "crack". The remainder of the video contained inconsequential conversation though X could be heard clearly saying that her father was in jail.
45. Alongside the video recordings, witness statements from two of the mother's friends detailed that X had spoken to them about her father's behaviour. To one friend, whilst playing with a doll, X said she needed to take the doll to the doctors because "her daddy has hurt her belly". The mother had told this friend that, a few days earlier, X had told her that AB had hurt her belly. The other friend described X touching/rubbing her vagina and, when asked what she was doing, X said "I'm just playing, my daddy does it". This conversation took place in early December 2018. On an earlier occasion, the mother's friend had also witnessed X rubbing her dummy through her knickers and when asked about this, X had said "my daddy does it". It is unclear to me whether the local authority knew about what X had allegedly said to others outside the family. Had this been known, it should have amplified professional concerns about the family.
46. Shortly before Christmas, on 20 December 2018, the mother brought X into the local authority office so that she might show the social worker a scratch on the top of X's head. The local authority record indicated that there was a "tiny little speck" on X's head. X was asked how it had happened and she said it happened at her father's home. Whilst X was playing in the office, the mother quietly told the social worker that AB had caused the mark with a knife. However, X then shouted "he did it with a knife" and went back to her play. The social worker could not be sure if X had heard her mother or was just repeating something she had heard. AB was informed by email about the mother's visit later that day, the local authority making it clear that it was not treating what had happened as a child protection matter. The mark on X's head was discussed at a core group meeting on 8 January 2019 when it was noted that X's nursery had not seen the mark.
47. On 31 January 2019 WL ceased to be the family's social worker, following a complaint by AB. It is not necessary to detail why AB was unhappy with WL in order to understand the background. The new social worker, SC, began her work with the family in February 2019.
48. On 7 February 2019 the local authority wrote to the court to provide an update in respect of its proposals for expert assessment within the private law proceedings. The letter stated that a finding of fact hearing would be extremely beneficial and that there should be a psychological assessment of X in advance of such a hearing with psychological assessments of the mother and AB to follow. At a hearing on the 14 February 2019 the court recorded its view that the local authority must decide whether it should issue public law proceedings and adjourned the case management hearing until 4 March 2019 to allow time for this decision-making process to take place. On 4 March 2019 the local authority made an application for public law orders in respect of both children and the private law proceedings were consequently stayed.

Care Proceedings, March 2019 onwards

49. On 9 April 2019 a Review Child Protection Conference took place the outcome being that the children would remain subject to a child protection plan for a further period under the category of emotional abuse. The social work report for the conference included the following observations: "Each time there is an allegation, X's contact with her father is stopped while investigations take place, X is interviewed by social workers and the police and, on one occasion, X was subject to a sexual health assessment. In addition to this, Y is also visited in school by the social worker and spoken to as part of the investigation. These experiences are intrusive and are likely to cause the children fear and anxiety. Social care are concerned about [the mother's] emotional well-being and how that may be impacting on the children. More recently [the mother] appears to be highly anxious and getting fixated over small things such as the issue of whether [AB] called Y a 'dafty' or not. Dafty is more of a term of jovial endearment than an insult and, whether AB said it or not, [the mother's] response to it two weeks after the alleged event is concerning. X has been quite unsettled in nursery for the past two weeks, social care and nursery have not been able to identify the reason for this yet, but it appears to be around the same time that [the mother] confronted [AB] about calling [Y] names. Social care are concerned about what the children are being told and what they are picking up from [the mother] particularly when her anxiety levels are high and she is feeling stressed. Both Y and X have shared that recently they all slept in mum's bed, but it seems that this is to meet [the mothers] needs rather than the children's … Whilst Y is not the subject of these allegations, there are a number of times that he has been questioned by social care about X and he had given different stories to different people. This would imply that he is being asked to say things and then struggling to remember the details".
50. On 20 May 2019 a home visit was undertaken by the temporarily allocated social worker, PS. The mother told her she was not being listened to and, according to the local authority's note, the mother believed that AB had sexually abused X. She told PS that she was confident in the evidence she had. That remark was significant as events at court two days later demonstrated. At the court hearing on 22 May 2019, the mother revealed she had in her possession a total of 10 videos in which X demonstrated/talked about abuse. Given this revelation, a strategy discussion took place on 24 May 2019 following which a police officer was assigned to view the videos and speak with the mother. When spoken to on 6 June 2019 by the police and the local authority, the mother confirmed that the 10 videos in her possession included three about which the father had been spoken to previously. When asked why she had not shown the remaining seven videos to police or other professionals before, the mother said she did not do so as she felt nobody believed her. The mother was asked whether, since November 2018, X had said anything similar to what she had said in the videos and the mother said that she had not. X had apparently stopped talking about the naughty toys in November 2018 and the mother believed that AB was scared and was being careful. The mother went on to say that, around Christmas 2018, X talked about having a secret with her daddy, but the mother had been unable to find out what the secret was. The social work analysis following the investigation concluded that the mother had recorded the material for the purpose of gathering evidence against AB. Three of the videos which showed X's genitalia were described as a breach of her dignity. If the mother was concerned about X's welfare, her failure to show the material to professionals involved with the family meant that measures could not be put in place to investigate and safeguard X. Though three of the videos contained indecent images, the mother had inadvertently created these images in an attempt to record verbal "disclosures" from X. In those circumstances the police decided not to press criminal charges against the mother.
51. I have already mentioned direct work taking place with Y. On 10 June 2019 Y described his father as a "toxic and horrible person". When asked to write down three wishes, Y's first wish was for his father to leave him alone and his second wish was for X's father to stop hurting her. He explained that X had told him her father chopped her in the head with a knife. He said that X changed her personality when she went to visit her father and became quiet and sad. He expressed his fear for X and said he had spoken to his mum about it who told him it would be okay. This conversation illustrates the burden placed on Y of being in a home where the mother's preoccupation with sexual abuse to X appears to have been uncontained and overwhelming.
52. On 26 June 2019 at a court hearing, the mother made proposals to facilitate the reinstatement of contact between Y and his father. Contact restarted but broke down in September 2019. The reason for the breakdown is presently unclear and requires further expert assessment. I note that X has continued to see AB for contact throughout the duration of the public law proceedings apparently without incident.

Threshold: Discussion

53. Before I come to my conclusions about the threshold dispute in this case, it is important to note that what this judgment cannot do, save insofar as the same is either conceded by the mother or clear from the evidence, is to determine what caused the mother to act in the manner in which she did. Her behaviour was clearly a product of her state of mind at the time and requires further expert assessment. In saying that, I fully acknowledge that the behaviour of others such as AB and the professionals involved may have impacted upon the mother's state of mind, but she alone was ultimately responsible for the care her two children received.
54. I have carefully scrutinised the two threshold documents submitted by the mother and the local authority. Insofar as they concern X, both are substantively similar and spell out the basis upon which the court can find that, as a result of the mother's behaviour, X suffered and was likely, at the time public law proceedings were issued, to suffer significant harm. Before I set out my reasons for preferring one version over the other, it is important that I address the allegations of physically/sexually inappropriate behaviour by AB, X's father.
55. The mother accepted at the hearing before me on 9 December 2019 that she no longer pursued findings of fact about alleged physical or sexually inappropriate behaviour by AB. That concession means this case will proceed on the basis that AB has not physically or sexually abused X and I make a finding to that effect, as all the parties accepted I should. All assessments, which will inform the welfare hearing, will be conducted on that basis. I prefer the local authority's formulation in paragraph (a) of its threshold document which stated unequivocally that AB was not abusing his child. The formulation set out in the mother's document was insufficiently clear that AB had not abused his child.
56. At the heart of this case lay the mother's mistaken beliefs that X was being sexually and physically abused by her father. It is crucial that this is spelled out in unambiguous language. Based on the background summary set out above, I have little hesitation in preferring paragraphs (a)-(e) of the local authority's document which I reproduce below. I have inserted some of Mr Sampson's wording together with words of my own [in bold] which I consider better describes what took place in this case:

a) Following the breakdown of the relationship between [the mother] and AB, which resulted in a high level of mutual mistrust, the mother became highly anxious and, over time, developed a belief that X was being sexually and physically abused by her father. AB did not and was not sexually or physically abusing X and the mother's belief was erroneous.

b) As a result of [the mother's] erroneous belief and the interaction she had with her daughter based on this belief, X was conditioned such that on occasion she said she had been abused by her father when this abuse had not taken place.

c) At times, [the mother] erroneously believed that X was communicating (by her words and/or her actions) that she had been the victim of sexual and physical abuse despite there being no justification for this belief. At these times, the mother failed to properly consider alternative explanations and jumped to the worst conclusions.

d) The mother allowed: a) her mistrust of [AB] and; b) the responses of professionals to feed her concerns such that a cycle of erroneous allegations took hold and became entrenched in the period between October 2017 and May 2019.

e) As a result of the matters at paragraphs a)-d) above, the mother has not promoted or encouraged the relationship between X and her father as she should have done.

57. Whilst the document prepared on behalf of the mother shared much common ground with that prepared by the local authority, I consider that the wording of paragraph 3 of the mother's threshold was insufficiently clear by comparison when it stated "While subjectively the mother's views about the risks to X were consistent with the mother's behaviour, anxieties and fears at the time, such views and concerns were not objectively justified". Omission of this paragraph containing the terms "subjectively" and "objectively" obviates the need for analysis as to the meaning of those words by future assessors and local authority personnel.
58. The main dispute between the mother and the local authority as to threshold concerns the detail as to how X was impacted by the mother's unjustified beliefs and actions. The mother accepted in paragraph 5 of her document that X was exposed to both significant unnecessary professional involvement and information, images, and discussions of a sexual nature which were not age-appropriate. By contrast, the local authority submitted that this did not really capture the consequences of the mother's beliefs and actions as far as X was concerned. It invited me to endorse the following:

"As a result of the mother's unjustified beliefs and actions, X was:

i) exposed to a range of intrusive investigations by different professionals;

ii) exposed to a full physical examination on 18 July 2018 (which included her genitals and anus) which was unnecessary;

iii) taken to an appointment with a psychologist on 22 October 2017 which was unnecessary;

iv) filmed on at least 10 different occasions being questioned by her mother about abuse in a leading/pressurising manner and being encouraged, at times, to demonstrate abuse. In at least three of the videos, X's private parts were exposed which infringed her dignity and which rendered the videos indecent. In another video, X was shown an image of a sex toy;

v) exposed to information, images and discussions of a sexual nature which were not age-appropriate."

59. I can deal with this dispute shortly. The mother's formulation was, in my opinion, too generalised. It is important that the professionals working with this family understand in clear terms the wholly unacceptable consequences of the mother's beliefs for X. The videos she made of her child represented a gross error of judgment and placed X under pressure to say what her mother wanted her to say. I endorse the local authority's description of the indecent videos as constituting a breach of X's dignity. The existence and contents of this material demonstrate why expert assessment of the mother is vital to a resolution of these proceedings.
60. Both the mother, the local authority and CD are almost entirely agreed as to the threshold formulation in relation to Y. In those circumstances, that set out in the local authority's document is the one endorsed by me.

The Involvement of the Local Authority

61. Mr Sampson's submissions were critical of the local authority's involvement with the mother. He pointed to an absence of assessment, a lack of support, mixed messages which included repeated advice not to permit contact, and the local authority's dogmatic view. His submission that all of this led to a polarisation of positions not only between the mother and AB but also between the mother and the local authority has some force. My summary of the background has identified, at various points, less than optimal responses by the local authority.
62. On behalf of the local authority, Mr Watson identified several matters where, with the benefit of hindsight and the observations made by me, the local authority accepted that its handling of this case left much to be desired. Those concessions were both helpfully and properly made on behalf of a local authority keen to learn lessons which could be applied to similar scenarios in the future. This case will not be the last in which a local authority is drawn into private law proceedings where very serious allegations of child abuse are made by one parent against the other.
63. It is my perception that local authorities may be ill-equipped to grapple with complex private law proceedings where there are allegations of abuse made by one parent against the other. Though it is trite to observe that social workers are well aware that children can be harmed in such situations, translating that knowledge into effective social work practice is rather more difficult. There is little specific assistance to be derived from the contents of "Working Together To Safeguard Children". Furthermore, an organisational resistance to sustained involvement in what is seen as essentially a dispute between separated parents may also be in play in circumstances where local authorities are hard pressed to manage their child protection workload. This case demonstrates the need to develop more coherent and child focused ways of working with families such as this one.
64. Firstly, the temptation to close this case in early February 2018 should have been resisted. Within the social work assessment, concern was expressed about the mother making allegations which had not been proven and about the mother being hostile to contact between X and her father. The extraordinary statement made by the social worker that she was worried X might have an intentional bruise in the future to evidence an allegation should have been a red flag indicating the need for urgent advice and guidance around contact issues and child behaviour. Mr Watson accepted that, in hindsight, more consideration should have been afforded to the impact on the children of the mother's behaviour/anxieties and the case should not have been closed at this point.
65. Second, this case emphasises the need for social workers to challenge appropriately the views and opinions of other professionals. The initial child protection conference on 10 August 2018 highlighted the need for the mother to seek a referral from her GP in order that she might have a mental health assessment. Her GP disagreed with that plan though I note that, as is sadly often the case and probably explicable by reference to his/her own considerable workload, the GP had not attended the child protection conference and thus did not have the benefit of information from all the professionals (including the police) involved with the family. It might have been helpful if the local authority had shared with the GP more information about the welter of allegations being made by the mother in June and July 2018. That process, together with respectful and appropriate professional challenge, might have resulted in a more appropriate assessment of the mother.
66. Third, by September 2018, the Child Protection Conference Chair believed this was a case of parental alienation. That she felt the need to highlight this issue to the allocated social worker demonstrated the complexity of the case. Mr Watson accepted those complexities should have been addressed in more depth at management level and consideration should have been given to the transfer of the case to a more experienced social worker. In any event, this was not a classic case of parental alienation. When the mother permitted contact, X did not refuse to go to her father's home and every professional who saw her with her father noted her to be a happy little girl in his presence. That was rather different from what most often happens in cases of parental alienation, where, because of psychological manipulation by the resident parent, children are markedly and noticeably resistant to having contact, both direct and indirect, with the non-resident parent. I cannot gauge from the local authority's case recordings whether the child protection chair was alive to the elements of this case which distinguished it from one of classic parental alienation. Whatever the label, the local authority's management of this case in September 2018 was flawed.
67. Management failure probably also contributed to a divergent approach by the allocated social workers. CK appears to have had a negative view of the mother which was criticised by the nursey manager in her letter dated July 2018. The nursery manager was a professional whose staff saw the mother very frequently and who were attuned to her anxieties. Her observations about the support this anxious mother needed should have commanded considerable respect. I note that, though there was a recommendation at the child protection conference in August 2018 for mediation (as the nursery manager had recommended in her letter), the records do not show what, if any, efforts were made to access this service and what was done to encourage both the mother and AB to take part. Though WL appears, on the mother's case, to have been a more sympathetic social worker, I doubt that this was sufficient to make good the deficits in the local authority's strategy. Finally, Mr Watson conceded that it was a mistake to have allocated the direct work with Y to a student social worker given the complexity of what had happened by October 2018 when the work with Y began.
68. The Review Child Protection Conference in October 2018 recommended that the local authority fund a psychological assessment of the mother. No such assessment was ever commissioned, and Mr Watson conceded that this deficit should have been addressed in a more timely fashion.
69. What strikes me as beyond argument was the unhelpful nature of the piecemeal assessments conducted by the local authority in this case. Assessments were brief and conducted in response to allegations made by the mother. This case cried out for a comprehensive assessment of the family which might have led to a more informed understanding of both the mother's anxieties around X's contact with her father and her failure to promote Y's contact with his father once that broke down in November 2017. It may also have identified at a much earlier date the need for either a psychological or a mental health assessment of the mother.
70. However, and for the avoidance of doubt, my criticisms of the social work practice in this case does not mean that professionals were to blame for the repeated allegations made by the mother which disrupted the children's relationship with their respective fathers. It was the mother's erroneous beliefs which drove the making of allegations and not the responses of professionals. This mother was in search of evidence to prove that which she wrongly believed to be true and, no matter who she spoke to, the allegations aimed at AB kept coming. Even repeated attendances at court between October 2017 and May 2019 failed to modify the mother's behaviour. The videos made of X were a truly desperate and profoundly damaging step taken by the mother in pursuit of what she believed AB to be doing to their child.
71. In summary, what might be gleaned from this case of benefit to professionals working with complex private law disputes? The following matters suggest themselves:

a) repeated section 47 investigations, which are not anchored to a comprehensive family assessment, are ultimately of little benefit;

b) greater respect needs to be given to the views of professionals who see the family more often than most social workers ever do;

c) in the interests of effective multi-disciplinary working, social workers may, on occasion, have good reason to challenge the views of other professionals. Ensuring other professionals understand the local authority's concerns and are updated as to recent events may assist that process;

d) families should be referred to sources of guidance and support or offered it as part of the local authority's intervention. This should happen sooner rather than later. The mother might well have benefitted from guidance about separated parenting and child development. Both parents would also have benefitted from advice and guidance in managing contact handovers and in communicating with each other about their child;

e) mediation services (aimed at separated parents and with appropriate expertise in dealing with complex contact cases) might have helped this family at an early stage of the proceedings;

f) delay in commissioning expert assessments is damaging. This case would have benefitted from an early specialist assessment which might have obviated the need for these proceedings;

g) such cases require a high degree of professional skill from social workers and their managers and, in my view, should not be allocated to trainee or inexperienced social workers. These can be some of the most frustrating and difficult cases to work because of the high levels of entrenched parental conflict into which children are inevitably drawn. Better training about the complex issues these cases demonstrate, such as repeated but unsubstantiated allegations of abuse, seems to me to be urgently needed both for local authority social workers and their managers.

I recognise that implementing these suggestions, if they are to be useful, will need not just commitment from senior managers in local authorities but also substantial investment in services and training. Provision of the necessary resources will be for others to address but this case demonstrates they are urgently needed.

Conclusion

72. Now that the issue of fact finding has been resolved, this case requires expert assessment and other intervention in preparation for the welfare hearing which will take place before me later this year.
73. That is my decision.