England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT SWANSEA
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF B AND M (CHILDREN)

		13th October 2014

1. I am concerned with two children, B who is 4 years of age, and M who is 10 years of age.
2. The parents are Ms EH, who is 29 years of age, and Mr DM who is 28. They are the first and second Respondents. They are no longer in a relationship and they separated in October 2011.
3. On the 14/4/14 the LA commenced proceedings for a care order in relation to both children and this is the final hearing of that application.
4. The LA involvement in the case began in March 2014 when it became aware that the mother was in a relationship with the Intervener CW. CW had been the subject of allegations made against him in 2009 by his niece KP that when she was 9 or 10 he had sexually abused her by touching her vagina and by forcing her to touch his penis.
5. CW vehemently denies the allegations and it is fair to say that he faced criminal proceedings in relation to them in 2010 when he was charged with 5 counts of sexual assault of a girl under the age of 13 and he was acquitted by a jury on all counts.
6. Although Ms EH is no longer in a relationship with CW and says that she has no intention of getting back together with him, at his instigation, he was joined as an intervener in the proceedings and the DFJ in Swansea determined that the allegations of sexual abuse against him should be litigated before the court. For that reason the case was listed before me for 7 days and I am charged with the task of deciding the issue, having heard all the evidence.
7. The maternal grandparents, Mr H and Mrs H, are also parties and have represented themselves during the course of this hearing. Mr H has been present throughout. They have cared for the children since March 2014. Initially this was with the mother but in April she was asked to move out. At one stage Mr and Mrs H were being considered as primary alternative carers under a special guardianship order, but they now put themselves forward as support carers in the event of the present rehabilitation plan to the mother not being successful.
8. Apart from the issue of fact relating to the Intervener there is now an agreed threshold document where both parents accept that the threshold criteria is made out - that is to say the factual basis that is required by section 31 of the Children Act which justifies interference by the state.
9. The case against the mother is that she entered into a relationship with CW in late 2012 and allowed him to have unrestricted contact with her children. It is said that CW had sexually abuse his niece KP and that he posed a risk of harm to the children.
10. It is said that although the mother knew of the allegations of sexual abuse, and she knew of the serious allegations that CW's previous partner had made against him, she still maintained the relationship up until December 2013. The mother accepts that this was not appropriate.
11. The mother accepts that she failed to follow, or understand, the advice from the professionals regarding the risk that CW posed to her children and, by continuing in that relationship, she failed to prioritise their needs.
12. Mother failed to work co-operatively with Social Services. To a degree this is agreed, and mother accepts that following December 2013 there remained some emotional attachment by her to the Intervener CW right up to March 2014 and that she knowingly lied to SS in January 2014 about his attendance at hospital.
13. It is said, and agreed by mother, that her response to being informed about CW was not sufficiently robust to protect the children and her failure to be open and honest about the relationship and contact with him has meant that the children were at risk of physical and emotional harm.
14. It is said and accepted that the mother's mental health has fluctuated during the involvement of the professionals and she attempted suicide by an overdose on the 28/3/14.
15. Both the mother and the father accept that their relationship has been hostile and acrimonious which has adversely impacted on the children's relationship with their father.
16. I am not going to set out the factual background of the First and Second Respondent in this judgment. It is recorded at some length in the 6 files I have before me. Suffice to say, having regard to all the evidence before me and the admission on the part of the parties with the benefit of legal advice, I am satisfied that the threshold criteria is made out.
17. Once the threshold has been past I have to consider what order to make in the best interests of the children. It ranges from a care order to no order.
18. The care plan is for rehabilitation of both children to mother with a programme to reinstate direct contact between them and the father. That is due to occur quickly and is likely to be complete by the end of this week.
19. The plan at the beginning of this hearing was for this to be done under a supervision order. Both the Guardian and the father felt that it would be better achieved by a care order. The LA has reconsidered its position during the hearing and has since changed the plan to seek a care order. The reason for this is said to be the historic concerns in relation to the mother and her lack of co-operation and honesty with social services. The need to be satisfied that the mother has gained the necessary insight in order to keep the children safe and that she can sustain the change beyond these proceedings. That includes not resuming her relationship with the Intervener. Those were the concerns of the Guardian and they are now shared by the LA.
20. Mother has been having supervised contact 3 times a week but as from September there has been one period of unsupervised contact at her parents' home.
21. B is now having contact with her father. It was supervised once a week but has recently moved on to a supervised handover but otherwise he can take her out on his own. It is still at an early stage but there is reason for quiet optimism.
22. M is still opposed to any contact with his father. He believes that his father has let them down and will do so again. I am told, and I accept, that very recently the parents have begun to talk and work together in order to try and progress what is a very difficult situation. This is a huge step forward but I accept in the light of the past hostility between the parents a care order will better able the LA to work with the parents and the children to ensure that proper contact is established and sustained between both children and their father. The plan includes a referral to the Emotional Needs Panel for a therapeutic social worker to work with the family to move this process forward.
23. The aims and objectives of the plan are supported by a contract of expectations which I am told the parents and maternal grandparents are prepared to sign.
24. Mother, father and Guardian agree the care plan as now drafted and they also agree that the appropriate order is a care order. I shall return to the care plan later in the judgement.
25. I turn to the findings of fact that I am being invited to make. It is the LA case that the allegations made by KP against the Intervener were well founded and it invites me to make findings to that effect.
26. I have read all the relevant documents and have listened carefully to the arguments advanced on behalf of the LA and CW and I have taken them into account when reaching my decision. Having said that I have not found it necessary to set them all out in the course of this judgment.

FACTUAL BACKGROUND AND THE EVIDENCE

27. KP is now just 18 years of age. She has a half- sister, with the same mother, C, who was born in 2004.
28. KP's mother is SP who I believe is 35 years old. SP is one of 5 children and her mother is MW. She has two brothers CW and DW and 2 sisters, A and J. CW is 29 years old.
29. Certainly at some time between 2004 and 2007, and maybe before, from time to time, CW would babysit SP's children. Sometimes when she went to bingo with her mother MW on a Thursday night and, on occasions, on other nights.
30. The initial complaint from KP was made on the 7^th May 2009 when she was 12 years of age. I take the account from SP's statement to the police which is not challenged in these proceedings. She came home from school at ¼ to 4 and was upset and crying. Her mother asked her what was wrong and at first she said she couldn't say because her mother would go mad. After reassurance she said it was about CW. Not now but what happened 2 to 3 years ago. She said something like he touched me down there and he made me touch him. Her mother asked if she was sure that it wasn't someone else who had done it and she said no. She was asked what she meant by touching and she said he just rubbed it. She was asked did he put his finger inside you to which the answer was no. He made me rub it up and down and we would go into the toilet to wash our hands. Her mother says that KP was sobbing uncontrollably and said she was telling the truth.
31. MW then takes up the story and says that SP came to her home and told her what KP had said and she asked to speak to KP herself. KP was brought to her home and told her the same thing; that CW had touched her private parts and that he had asked her to touch his. She said it had happened a couple of times a couple of years before. She was asked why she hadn't told anyone before and she said she too afraid to tell anyone. She said she felt safer now CW had gone to jail.
32. We know that CW had been arrested in the early hours of the 6^th May and was remanded overnight to the 7^th May. CW then, unexpectedly turned up at the house. His mother told him what KP and said and asked him for an explanation. He denied having touched her but then left the house almost immediately to get his car.
33. KP was interviewed by the police on the 8^th May 2009, the day after she first made the complaint. It was recorded and I have had the opportunity to view the recording as well as read the transcript. I don't intend to set it out in detail but it is necessary to record the allegations in the course of the judgment.
34. KP said her mother used to go out to Bingo, not very often and CW used to babysit me and my sister and he used to make me play with his willy and he used to play with my Minnie. Every time he used to make me wank him. I didn't want to and would take my hand away and he would put it back. He used to undress me when I was like 9 or 10 so I didn't understand what was going on. I was too scared to tell anyone sooner because I don't know what was going to happen and that and he told me not to tell anyone.
35. At one stage she said my mum would come home and say "I am home".
36. She then said that he had been in a lot of trouble because the day before yesterday he went to jail. She was asked how she knew he went to jail and she said she had heard about it.
37. She describes her uncle. She says he is aggressive and abusive but it is not a vitriolic attack on his character and it doesn't sound as if she had an axe to grind. She says she sees him not loads of times but often. She said they get on but she doesn't like talking to him.
38. She is asked to describe the first time. She says she can't really remember. He used to do it either on the bed or on the couch. … he keeps on denying it but he has done it. He used to make me wank him but I didn't want to do it but I didn't know what was going on because otherwise I would have told my mum sooner. He used to play with my Minnie and I would say no and then he would make me do it.
39. She was asked to tell them about the time it happened in the bedroom. She said we weren't under the covers we were on the top. He would play with my Minnie – he wouldn't stick his fingers up it. He would just fiddle around with it and she gave a demonstration with her fingers.
40. She was asked what she would be wearing and she said one time I was in my school uniform and another I was in my pyjamas. It was then put to her that she had said she was about 9 or 10 and she was asked how she knows how old she was. She said I don't know how old I was because he met N two years ago and he done it to me before he met N. …it was before then. I was in "B" school - which was her primary school that she left when she was 12.
41. She said it happened when her mother was out and CW was baby-sitting. She said it happened twice in the bed, twice on the couch and once at her nans. She said her sister would have been in her mum's room and not in the bedroom when it happened.
42. She said that he would follow her into the bedroom and come into bed and start taking her clothes off. He would get her to do it to his willy. He would take her trousers and knickers off and her top. She would have nothing on at all. He would pull his trousers down. He would say do it I would say no and he would put my hand on it and rub it up his willy. She described the willy as hair on the balls – tallish and red. He put my hand on it and his on top and up and down. … no sperm came out. It lasted for 5 to 10 minutes. He didn't say much.
43. She couldn't remember which pyjama's she had on but they had long sleeves and long trousers. He told her not to tell her mother and something like if she did tell she would be sorry. Her mum didn't see what was going on and she said that CW was allowed into her bedroom but probably not on her bed.
44. KP then described the layout of her nans house. She didn't remember when it happened there. It was in uncle DW's bedroom. She couldn't remember where CW was sleeping that night. He put me in bed and then he started taking my clothes off and doing it, but like that was in the morning and when everyone woke up he dressed me and put me back in my bed.
45. He carried her to the bed and started doing it and when her nan woke up he would stop and put her back in the bed. She said she didn't know what time it was. She then said she remembered some bits of it. Not everything. He was wearing boxers. He didn't say anything but she was saying stop. He never put his willy inside me. He never touched me anywhere else. She was asked how she felt and she said nervous and scared and worried and she wanted to tell someone but he said not to. It stopped because my nan woke up. I heard her because every time someone is awake the dogs go off and they did and he just got dressed.
46. She was then asked about the times on the couch and she said just the same. She would be lying on the couch watching TV and he would lie next to her. He would take her clothes off and he would make me do the same thing. Grab his willy and touch me. I would be wearing school uniform. Pyjamas the other time probably. It stopped when my mum came home. I don't remember what he said to stop me telling but he said don't you be telling anyone. D said CW was in jail and so I told my mother. I told my mamgie and she didn't believe me and then she did. … When he met N he stopped but I was nervous he would start doing it again. I am just trying to forget about it.
47. She was asked for clarification and she said he would hold her hand on his willy if she tried to take it off.
48. She said that she left her grandmother's house and 5 to 10 minutes later CW came storming out and then sat in his car biting his nails looking worried.
49. A year later she gave evidence in the criminal trial that took place in May 2010.She was cross-examined by defence counsel. She agreed that CW would help her mother out quite a lot. She confirmed that nothing had happened after CW began his relationship with N. She didn't agree that he had met N when she was about 11 but if CW is right it was August 2007 when she was 10, nearly 11.
50. She agreed that CW has babysat quite a lot over the years. She did not agree that on times she would have trouble sleeping nor did she agree that often an adult would lie on the bottom of her bed to help her go to sleep.
51. She confirmed things had happened to her when she was 9 or 10. It was put to her that CW worked away on the market and she agreed not all of the time but he would be away quite a bit. She confirmed that one of the things that allowed her to tell her mother was that CW was in jail. She knew that was so. She recalled going on holiday to Benidorm with her grandmother and CW and his brother DW but said she couldn't remember going with just those two. She could remember going with her mother. She agreed she had never told her grandmother what had happened before the 7/5/09.
52. She said that she did know that CW had been in jail a couple of times before May 2009. She was then asked had you told anyone about all this when he had been in jail before and she said she didn't understand. It wasn't pursued.
53. She was asked about her grandmother's house. She was asked whether uncle DW was actually living in the house when CW assaulted her and she said yes but on the night he had gone to play pool.
54. She agreed that she did visit CW and N on 2 or 3 occasions in order to see A, who was N's younger sister. She agreed that after CW split with N she would visit her grandmother and CW would sometimes be there. She denied having tried to get CW to join her on Facebook as a friend.
55. She agreed there was a local fair at Easter time but she denied having asked CW for money. She said there had been an argument before she told her mum because he had been babysitting and he had not allowed her to go to the fair. In re-examination she said that hadn't been in 2009 it was some years before when she was about 8 years old.
56. She was asked if, on the day she made the allegation and was at her grandmother's she had seen CW outside the house. She agreed she had but denied having smiled or laughed as she had passed him.
57. It wasn't put to her that she hadn't seen him in the car biting his nails.
58. In re-examination KP said that CW would stop the abuse before her mother came home. She said when she thought about telling anyone she didn't know what would happen to her and the family if she did tell and she was scared, and so she didn't.
59. She gave evidence before me by video link. She said that before CW met N he lived with his mum and his dad. She said the abuse took place over a number of years and it started when she was 6. It stopped when he met N. He lived with his mum before he met her. She couldn't remember if DW was living with his mum when she was abused at her nan's home, but she though that at the time it was CW's bedroom.
60. She was cross-examined and accepted that she had got on with CW quite well. She was able to tell people what she wanted when she was little. She couldn't remember having any problems falling asleep when she was young. She was asked about going on holiday to Benidorm with the family. My understanding of what she said was she agreed that she had been on holiday with CW but not at a time when her mother was not there as well. She couldn't remember if the first time was in the bedroom or the living room but it was at her home. She told me about the time her mother came home and shouted Hi I am home from the bottom of the stairs and how she thought her mother had seen CW in the bedroom on that occasion but she didn't see her getting dressed.
61. She said she sometimes cried about it when no one was around. It made her miserable. She was clear that it was her and CW who had been in the bedroom at her nan's house on the night in question. She denied having made up the allegation. She had been scared to tell anyone. He used to threaten her but she couldn't remember what he had said. When she did tell her mother she thought he was in jail and that made it easier to say. She told me she was scared he might start doing it to her sister. She said she did carry on seeing CW because she didn't want to make things look odd for the rest of the family. She said she had only visited him and N because A was there and she would not have gone on her own.
62. SP - I have already described what SP told the police in terms of the initial complaint. Her statement also recorded that she didn't know how many times CW had babysat 2 or 3 years before 2009
63. SP gave evidence to the crown court - She described how KP had been upset on the day in question. She was crying and then she told her about what CW had done to her. She said that CW had first started babysitting when KP was 6 or 7 generally when she went to bingo on a Thursday. She thought it was when she was still with her then partner D but it carried on afterwards. She said KP would go to her nan's at weekends but not during the week. When she got home sometimes KP would be in bed or sometimes she would be in the living room. CW would be lying on the bed with KP. Sometimes they would both be sitting on the settee together.
64. She said KP would sleep at her grandmother's now and again. She confirmed no baby-sitting after he met N.
65. She described the afternoon of the 7^th May when her brother came to her mother's home. She said her mother had said what have you been doing to KP touching her and that and he said no I haven't and stormed out. The next time I saw him was when we went to leave and he was sitting outside in the car biting his nails with his head down.
66. In cross-examination she agreed she didn't think anything wrong with CW lying on the bed with her daughter. She said KP would have her pyjamas on when she got home. KP never expressed any concern about CW babysitting.
67. She then gave evidence before me. In my judgment it would appear from her evidence that SP has limited intellectual capacity. Her memory was poor. She told me so in terms, and on times her account was confused. It is difficult giving evidence in any court. It is even more difficult to give evidence about events that took place many years ago. I have no doubt that the account she gave in 2009 and 2010 is likely to be more accurate than the account given to me.
68. She was asked about when she was with C's father and when they split up. Her response was difficult to follow. She accepted that CW had worked on the markets but couldn't remember any detail. She denied that KP had witnessed any sexual impropriety within the home. She said that when CW first baby sat KP would have been 5 or 6. She said that on times KP would have school uniform on when she left CW to babysit. She said there were times when she would come back to the house and CW and KP would be on the sofa or CW would be lying at the end of her bed and she would be in the bed. She didn't see anything the matter with that. She thought that KP had gone to stay with N and CW on a couple of times – 2 or 3.
69. She said KP had not been upset that she was taking C to Disneyland. KP was not jealous of C.
70. I turn now to CW - CW was interviewed by the police on the 11^th May 2009. He denied all the allegations. He said the previous week KP had asked him for £20 to go shopping and when he said he didn't have it she had a tantrum. If she can't get what she wants she is miserable.
71. He said he had lived with N between August 2007 and February 2009. He explained that he had baby sat but not since KP was 6 or 7 years of age and he explained why. He said he used to babysit a lot when KP was 5, 6 or 7 but his other sisters would complain that he was doing it for SP and not for them. He got fed up with that and stopped.
72. Towards the end of the interview he said that KP was a bit of a liar. She tells lies. My middle sister hates her. She thinks she is the devil's child. This is sister A who I think is A.
73. EVIDENCE IN THE CRIMINAL TRIAL - Trial took place in May 2010. CW gave evidence in his own defence. He confirmed that he and KP were close until he moved in with his girlfriend N. He claimed to have helped bring her up following her birth. He said that he had baby sat KP on many occasions mainly on a Thursday when her mother would go to Bingo. The mother would get back at a set time of about 11 p.m. He did however baby sit on other occasions. He denied ever having done anything sexual towards KP. He said he helped a friend on the market for about 5 years at about the time he went out with N and that involved working away for part of the week from April to September. He would go on Sunday and return on Thursday night late and leave again at 6 a.m. on Sunday morning. He said that KP did stay over at his mother's but not often.
74. He described how his mother had her own room and he slept in the other bedroom. There was a blow up mattress which was kept under the bed which KP used when she stayed. She would sleep at the bottom of his bed. When asked why she would say it was DW's room he said when he moved out to live with N his brother moved in to live with his mother. QB214 – He confirmed to the trial judge that DW moved in after he went to Pontarddulais. Before that DW was with his father or with friends.
75. He said he had been on holiday twice with KP to Spain. He thought that was in 2005/6 although he then said after he met N which we know to be August 2007.
76. He said she often stayed with him and N as she was friendly with N's sister A.
77. An agreed statement was read to the jury to the effect that he had been arrested on 12^th December 2008 and was held overnight until the 13^th December. He was arrested again on the 2^nd April 2009 and released on the 3^rd April and finally he was arrested on the 6^th April 2009 and held until the 7^th May 2009. I raised this with Counsel and it would appear from the logs that the last dates are wrong and he was arrested in the early hours of the 6^th May and once again kept overnight.
78. He said that at about the time the allegations were made he had had an argument with KP. She wanted £20 from him and he had refused. It was a Friday. The Fair was on and she couldn't go with her friends because they had money and she didn't. She went off in a tantrum as she normally did. In cross-examination he said she had asked a few times. He saw her in the weeks that followed and their relationship was back to normal.
79. He described what happened on the 7^th May 2009 when he returned home. He saw KP outside the house and he said she was laughing and smiling and grinning at him. That was put to KP in the criminal trial and she denied it had happened. He didn't mention it in his interview with the police. From the other evidence I have heard it is clear that KP says that at this time she was upset. In my judgment I am unable to attach any real significance to this evidence.
80. He went into the house and his mother told him of the allegations and he said no I'd never do that it is disgusting. He then left to go and get his car from his brother.
81. He was cross-examined. He accepted there would be occasions when he babysat and he and KP would be in her bedroom alone and he would be lying across the bottom of the bed. He accepted there would be times when he and KP would be on the couch in the living room having a cwtch in front of the tele. He accepted he had had the opportunity to sexually abuse KP had he wanted to and that he knew when the mother was likely to come home from Bingo.
82. It was put to him that he would have had the opportunity to touch KP at his mother's when he shared a bedroom with KP. He said he didn't think so because his mother was there but accepted she was in the other bedroom.
83. He was asked if he had been able to think of any reason why KP would make these allegations up against him other than the £20 incident and he said he might have and suggested she might not have liked the fact that he hadn't seen so much of after moving in with N.
84. CW was asked why he hadn't stayed at his mother's to discuss the very serious allegations being made against him rather than walk out and go to his car. Was it because he knew full well what he had done? He said it was because he wanted his car back from his brother. He said he left and walked to his brother's. He denied that his car was outside. He denied that he was seen in the car biting his nails. He now says that he went to get his car and was back before KP and her mother had left the house and so they might have seen him biting his nails in the car.
85. He said that they told him that she had said he had "touched her". He didn't ask what was meant by that or what was meant to have happened.
86. CW was given an opportunity to file evidence in these proceedings and he filed a statement dated the 29/9/14 saying that he has re-read the record of interview and his evidence in the Crown Court and inviting me to accept that as his evidence saying he is unable to assist further.
87. I have to say that I am really puzzled by his evidence before me. His police interview and evidence before the crown court was generally speaking consistent and provided a coherent account of what had happened, and save for the allegations of abuse it was generally consistent with the history given by KP and her mother. He filed a statement as recently as the 29/9/14 saying that he had re-read his interview and his evidence before the crown court and he had nothing to add, he was unable to assist further, and he invited the court to accept it as his evidence in these proceedings. He began his evidence by confirming that statement.
88. I was therefore surprised when he told me in evidence in chief that he worked on the markets from the time C was born in 2004 and he would have been away from September until after Xmas. In the crown court he said from April to September. He told me that from the time he worked on the market he would stay with his father overnight when he was home and his brother DW would be at his mother's. He told the crown court that his brother didn't go to live at his mother's until after he moved in with N, and up until then he had the second bedroom and he had shared it with KP when she came to stay.
89. He was asked about the passage in the Risk Assessment by Debbie Gould where he is recorded as having said "KP is always lying and causing trouble to further her own cause". He tells me he said no such thing and he has made a complaint against Ms Gould. Of course he said something very similar in his police interview and later in his evidence he said KP was known in the family to be an attention seeker and a liar. He gave me an example of both. He said she had burst balloons at someone else's birthday party and she had taken some money from the house. He accepted he had never mentioned this before.
90. He is also recorded in the Risk Assessment as having said that during her video interview KP can be seen to be laughing and joking and lying throughout. He told me this was a misunderstanding. He meant this is how she was whilst the video was playing. He could see her in the corner of the screen.
91. In his police interview he said that when he saw KP come out of the house on the 7^th May she looked upset. In evidence he suggests she was laughing.
92. He invites me to accept that he doesn't understand the written papers at all, that he was confused. He doesn't understand the expression "living at my mother" to include staying their overnight. He didn't tell the police that he was sleeping at his father's because they hadn't asked.
93. He told me about the 7^th May and that when he got in the house his mother told him KP said that he had touched her. He had said it was disgusting lies and he wouldn't do anything like that. He then went to get his car and returned and parked outside and so it was possible they saw him outside when they left.
94. He told me that he didn't understand the importance of saying to the police or at the crown court that he didn't have the opportunity to abuse KP because he wasn't sleeping over at his mother's home at the time. That of course doesn't explain why he told the jury that he did have the opportunity. In fact later in his evidence to me he again said that he accepted that he had the opportunity to abuse her as she suggests but he didn't.
95. He was asked about mother's statement – that is to say EH - where she records him having said that after he had refused to give KP money she had said to him she would "make him pay". This is similar to what he said to Ms Gould in the July 2013 assessment where he said she said "you will be sorry". This would have been an obvious motive for her to make up a story about him and so why didn't he tell the police or raise it at his criminal trial? He says he forgot on both occasions.
96. In my judgment to forget to mention it once would be extraordinary. To forget to mention it twice is inconceivable. I find that he is lying about this. KP said no such thing but he made this account up after the event to try and persuade first EH and then Ms Gould that KP had set him up. He has continued the lie in this court for the same reason.
97. He was asked why he filed a statement on the 29/9/14 saying he had read the police interview and the transcript of evidence at the trial and had nothing to add. He said he didn't know. He had been confused throughout these proceedings.
98. Having said that at one stage when he was being cross-examined he corrected Ms Jones when she put to him that KP had said that he had rolled her trousers down. He said "she hasn't said that before she gave evidence to this court and even then, she didn't say it she just agreed with you when you put it to her". As it turns out he was right about that. That suggests to me that his knowledge of the papers and his ability to follow the proceedings may be better than he would have me believe.
99. CW filed a statement from his brother DW and his mother MW, both dated the 29^th September.
100. In his statement DW said he moved into his mother's home in 2005 and CW moved out. He explains how he has psoriasis and that there is no way his brother would have slept in his bed. He produced a number of documents with his mother's address on them going back to January 2005 to prove, so he said, that he was living there prior to 2007.
101. CW called his mother to give evidence before me. Mrs MW - She made a statement to the police on the 14/5/09 and said that her son CW had been living with her at her address until about 2 years before when she fell out with him over his relationship with N. This would have been the summer of 2007. She described the good relationship between KP and her and KP and CW. She said that on the 7^th May 2007 KP and KP's mother told her that CW had touched her private parts and had got her to touch his. She said it was a couple of times a couple of years ago – and so that would have taken us back to 2007. She says that when CW arrived KP was upset saying she didn't want him in the house. KP said she had been too afraid to tell anyone before this but she had felt safer because CW was in jail now. She said CW denied the allegations and when DW came home he and CW went to the house to discuss it further but they wouldn't let CW in. She confirmed that KP did stay at her home on about three occasions and she would stay in DW's room.
102. In her statement in these proceedings dated the 29^th September 2014 she says CW stayed in my flat until he met N in 2004 and that KP never occupied the room that CW occupied. It was after he moved out. But we know that date is not right. He met N in 2007 which is consistent with her statement to the police that it was 2 years before 2009. We also know from CW that he met N in the summer of 2007 and not 2004.
103. Notwithstanding that, she maintained in evidence that DW moved in and CW moved out in 2004 when C was born. She told me that she didn't make a statement to the police in 2009 although she did speak to someone about what had happened and it might have been a police woman. She was taken through the draft statement at QB81 and agreed with almost all of it save for that part that suggested that CW had moved from her home in 2007.
104. She told me that she had never heard anyone suggest that KP was a liar. She had been in court in the criminal trial when the ABE interview was played and she didn't see KP laugh or joke. She said that CW had told her the story about KP asking him for money but he hadn't said "you will be sorry" or anything similar.
105. She didn't believe that CW had sexually abused KP but she did think someone had and it may be a case of her blaming CW for what someone else had done.
106. She gave me a variety of ages when KP stopped staying with her from 18 months to 4 or 5 or it may have been 6, and then she said 7. I am afraid I am unable to attach any weight to her evidence in this respect. The best that can be said about it is it is completely unreliable.
107. She said that she could remember one occasion when KP slept in the same room as CW at her home and when she was asked why she had said in her statement it had never happened she said at the time she couldn't remember.

THE LAW

108. I remind myself that the burden of proving the allegations of sexual abuse against the intervener is upon the Local Authority. The standard of proof is the civil one of the balance of probabilities. It is to be judged by the guidance set down by the House of Lords in Re B (Care Proceedings: Standard of Proof) 2008 2 FLR 141 at paragraphs 70 and 73. Baroness Hale said:

"the standard of proof in finding the facts necessary to establish the threshold under s.31(2) or the welfare considerations in s.1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent improbabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.....It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what happened to the child, it ceases to be improbable. Someone looking after the child must have done. The simple balance of probabilities test should be applied."

109. That is of some importance when there has already been a criminal trial where the Intervener has been acquitted of charges arising from the same allegations. He may ask why is this judge reconsidering the point?
110. The standard of proof in a criminal trial is very different. In a criminal trial the jury has to be satisfied so they are sure of the defendant's guilt. I have to consider whether it is more likely than not that the Intervener sexually abused KP. Is the likelihood 51% or more? If it is then I am entitled to make a finding. Of course if it is no more than 50% then the case is not proved.

SEX ABUSE

111. The only evidence against the Intervener comes from KP. I have had the benefit of the ABE interview and I have also heard her give evidence. It follows that this is not a case where I only have the hearsay evidence from the record of interview of a child in order to inform me of the case against the accused. I have heard direct evidence from a witness who is now 18 years of age.
112. However, the Courts should always proceed with caution when considering the evidence of child. An unwillingness to place reliance on a child's account does not necessarily impute bad faith to the child. It is not an issue of truth and lies it is a question of reliability of the account given.
113. Having said that in this particular case there is no suggestion that any one has tried to influence the evidence given by KP or that they have encouraged her to make up allegations against her uncle or that they rehearsed the allegations made in the ABE interview before it took place.
114. When it comes to the type of order I remind myself of the decision of Thorpe LJ in Re B (Care: Interference with Family Life) [2003] 2 FLR 813 at para 34:

'where the application is for a care order empowering the local authority to remove a child or children from the family, the judge in modern times may not make such an order without considering the rights of the adult members of the family and of the children of the family. Accordingly, he must not sanction such an interference with family life unless he is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of children.'

115. I remind myself of R v. Lucas [1981] QB 720, (1981) 73 Crim App R 159 and I propose to apply the modified Lucas direction that I should only find proven lies to be evidence in support of the findings sought if I am satisfied there is no other reasonable explanation for them. For the avoidance of doubt I make clear that I have had regard to this direction when considering each of the finding recorded in this judgment.

DISCUSSION AND FINDINGS

116. I start with the ABE interview that is described as the best evidence for good reason. It is the account given closest to the events being described. It is under controlled conditions where I am not only able to hear, but I can also see, how the answers were elicited and the demeanour of KP when she was answering questions. I am in a position to form a view of her reliability as a witness.
117. Ms Gould tells me that CW commented on the interview during the course of the risk assessment carried out in July 2013. She told me that he said that during the course of the interview KP could be seen to be laughing, joking and lying throughout. In evidence he said to me that he hadn't meant during the course of the ABE interview, he had meant this is how she presented to the jury when both she and they were watching the interview in court. He could see her in the corner of the screen. Mrs Gould was clear in her evidence that is not what was said to her.
118. I do not accept the evidence of CW in this respect. I asked him how she could have been seen lying when she was simply watching the video? He said it must have been just joking and laughing, but he is recorded as saying she was also lying. I heard evidence from his mother who told me she was in court when the video was played. She watched it on the screen. She did not see KP laughing, joking or lying.
119. I have watched the ABE interview and there is no question of KP laughing or joking at any stage of the process.
120. In my judgment this was an attempt by CW to discredit KP in the eyes of those carrying out the risk assessment in an attempt to undermine what she had said about him. He persisted in the lie, somewhat modified, for the same reason when giving evidence to me.
121. CW also told me that KP was known to be a liar by the family. This is what he told the police in interview in 2009. He didn't repeat it in the criminal trial and, for some reason he denied having told Ms Gould this during the risk assessment although she is clear that he did. KP's mother doesn't accept that she was a liar and KP was never asked. I asked MW, the Intervener's mother, whether KP was known to be a liar and she said "no". In my judgment this is another fabrication on the part of CW to discredit his accuser.

My impression of the DVD

122. KP was 12 years of age at the time of the interview and was trying to recall events that had happened at least 2 years before. In my judgment it is a well conducted interview. The officer established that KP knew the difference between truth and lies. There is a long rapport stage. She is asked to describe what happened to her by a series of open questions followed up by a request for more detail. There are only a few leading questions and even less that could be regarded as having any significance to the issues I have to decide.
123. KP appears to engage in the process although she is quite flat when answering questions. She seems to be listening to the questions and on times considers her answer before giving a response. She gives a reasonably clear, albeit brief, account of having been sexually abused by her uncle on about 5 occasions. There isn't a great deal of detail but there again there may not have been much detail to recount. I also have to have in mind that she was recalling events that had occurred a number of years previously that she says in terms she had tried to forget and so it would be understandable if her memory was not always entirely accurate.
124. Her answers include the sort of information that you might expect to find in an account of something that had actually happened to a witness - Where each of them was on the bed or on the couch - What clothes she was wearing at the time. What time the incident at the grandmother's house had occurred and that it stopped when her grandmother woke up and the dogs started barking. That on some occasions her top was left on and others it was taken off.
125. In my judgment there is a degree of constraint in the description of what is alleged to have happened that you might expect in a truthful account and that you might not expect from a malicious false account. He didn't put his finger inside her Minnie. He made no attempt to touch her anywhere else and he never tried to touch her with his willy. He never ejaculated. It happened on a very limited number of occasions. If this was a fabrication, why doesn't she fabricate what he said to her to make sure she didn't tell anyone? It would not have been difficult. She says she cannot really remember.
126. Ms Ricciardi has drawn up a schedule of what she suggests are inconsistencies in the various accounts given by KP. I have given it careful consideration. It is right to say that her account hasn't always been entirely consistent in relation to every detail. How old was she and C when it started? Where were they when it happened first; on the couch or in the bedroom. Did her mother ever see CW in her bedroom? Where was C, was she in her mother's bedroom or asleep in the same room? Was it DW's room or CW's room?
127. In my judgment, this relates to the minute detail of what happened, and I wouldn't expect a young girl of 12 to be able to recall every detail with absolute precision when in 2009 she was giving an account of something she said had stopped 2 years before, and that she is now being asked about 7 years after the event.
128. I would be surprised and suspicious if the accounts were exactly the same.
129. Ms Riccardi points to her having given different ages at different times as to when it happened. From my reading of the evidence KP has always said it stopped shortly before CW went out with N, and it is agreed that was in August 2007, and she has been pretty consistent in saying it started after C was born in 2004 although she has given different ages at different times.
130. Ms Riccardi points to the different accounts she has given as to what happened, and when, in terms of did it stop when her mother came home or 5 or 10 minutes before? Did she have her top on or off? In my judgment this might be because she isn't describing the same incident. The same could be said about who pulled her knickers and pyjama's back up. Even during cross-examination before me it was not always clear which incident she was being asked about and so I can understand why she may have become confused when giving her answers.
131. It is right to say that she said in her interview that it was in DW's room and that when it happened at her nan's house DW was out playing pool or something, and in the morning whilst she was asleep CW came in and carried her from the camp bed into the double bed. I am invited to infer from that that DW must have been living at his mother's house at the time and that CW is said to have come into the room immediately before the assault and that had that happened the dogs would have woken up and barked.
132. I accept that if this account is true and accurate DW must at least have been sleeping in that room on occasions at the time. I do not however accept that KP is saying that CW came into the room immediately before the assault. She says she was asleep. When she woke up he was in the room. He hadn't been in the room before she went to sleep the previous evening. It says no more than that and is consistent with him coming to bed after her the night before and then getting up in the morning as suggested.
133. When dealing with the inconsistencies between the accounts given by her client and his mother in 2009 and now, and between what they say, and what the P's say happened on the 7^th May 2009, Ms Ricciardi invites me to make allowances for the passage of time, which she says may explain why the accounts are different.
134. I accept that this is a valid point, and I must take that into account, but equally I must take it into account when assessing the evidence of KP.
135. In my judgment the accounts given by KP to the police in 2009, and that she gave in evidence to the Crown court in 2010, and then to me last week, are generally consistent and there is nothing that leads me to believe that this is, or may be, a false or fabricated story.
136. It goes a little further than that. Her account to her mother and grandmother on the 7^th May 2009 was also entirely consistent with the ABE interview.
137. On the face of it, this is a credible and compelling account from a young woman who had little reason to make up such a serious allegation against her uncle with whom she had always got on.
138. However, I must remind myself that this is an allegation from a lone child. There is no probative, medical or other direct physical evidence to support a finding. There is a need for caution in assessing her evidence and I must consider with some care the arguments advanced on the part of the Intervener to see it casts doubt on what I find to be a fundamentally credible account. So I turn to his case.

CW's CASE

KP has made the allegation against him because around about this time they had an argument when she had wanted him to give her £20 and he had refused.

139. I have already found that CW has lied when he has said that KP said "you will be sorry" or "I will make you pay" after he refused to give her money. Of course KP doesn't accept that she asked him for money at all. I am far from convinced that she did, but if she did, I have the evidence from CW that between then and the 7^th May he and she came into contact on a number of occasions and all was good between them.
140. For my part I cannot see how this incident, if it occurred, about a week before could have led to KP making such a serious false allegation against her uncle. I therefore reject it as an explanation.

She might have been sexually abused by someone else and then blamed CW.

141. This was raised by MW and I am not sure the extent to which it is being pursued by the Intervener.
142. The suggestion is that the mother had a number of male partners and casual encounters some of whom would come to the house and may have been involved with looking after the children. The inference being that one of these people may have sexually abused KP and she is now trying to blame CW. I should say that both KP and her mother both deny that this occurred at all and in my judgment there is little evidence to support the allegation.
143. There is no evidence to support this theory at all. It is nothing short of groundless speculation. KP denies that is what she has done. If one of her mother's passing boyfriends had abused her why wouldn't she identify them rather than her uncle, who she appeared to quite like? It would have caused far less conflict within the family. I reject this as a possible explanation for the allegations made against the Intervener.

I am invited to find that in 2004 according to CW and his mother, and in early 2005 according to his brother, CW moved out from his mother's home and went to live over the road with his father and his brother DW moved into the second bedroom at his mother's house. It is said that no way would he have done anything in his brother's bed because of the psoriasis.

144. This was raised for the first time in the statements filed by his mother and brother on the 29/9/14 although for some reason not in the statement of the same date filed by the Intervener. It has come as somewhat of a surprise because it is contrary to the way CW has presented his case in the past.
145. At the Crown Court he said that his brother didn't move into his mother's until after he started seeing N and it is agreed that was in the Summer of 2007. Before that it was his room and there were occasions, he told the jury, when KP stayed at his mother's, in that second bedroom, when he was in the room with her.
146. His mother accepts that she was interviewed by a policewoman on about the 14/5/09. MW says she didn't know it was for the purpose of making a statement and she says that she was never asked to sign anything. Notwithstanding that she was taken page by page through the 7 paged document that purports to be a draft statement from her, which can be found at QB81 in the bundle, and agrees that is what she said save for about 10 lines or so. That tells me that this is information she gave to the police at that time because it couldn't have come from anywhere else.
147. The relevant passage she takes issue with is where it says I live at the above address with my son. My other son CW used to live with me at my address but moved out approximately two years ago – this would have been in 2007 when we know CW and N began to co-habit. I wasn't happy with the relationship he was having with N which has caused problems between us. For the past two years he has spent time between my house, his partner's house and he has also stayed in the car. I had a good relationship with CW until 2 years ago when we argued over his and N's relationship.
148. She says she said no such thing. They didn't talk about N at all. I find that very difficult to believe. Why would a police officer make up a complete passage in a draft statement? How would the officer know what to say? This account is exactly the same as CW told the jury in May 2010. I am being asked to believe that 12 months before, a police officer was able to fabricate the self- same account. I reject that idea as being fanciful. I find that what I see recorded at QB 81 is in fact what MW told the police officer in 2009.
149. When MW made her statement on 29/9/14 she said CW lived in my flat until he met N sometime around 2004. As far as I remember KP never slept in the bedroom CW occupied. After CW moved out DW moved into live with us about a month later … at that time CW and N moved into the flat that DW had been occupying.
150. That seemed perfectly straight forward. Other than she has the date CW and N got together wrong. MW says CW moved out to be with N and at the same time DW moved in with her. The same account she is said to have given the police officer 5 years before.
151. When she gave evidence she said that wasn't right at all and what happened was far more complicated and CW moved out at about the time C was born. So why put it in the statement and tell me at the beginning of her evidence that the statement was true? I am afraid I never received a satisfactory answer to that question.
152. DW filed a statement saying he moved into his mother's flat at 69 Heol Illtyd in 2005. He says he is sure about that, and he has produced a number of documents with his name on and with that address going back to 2005 to prove it. He says he moved sometime in the early part of 2005 but couldn't assist as to when.
153. It was put to him that he was probably just using his mother's address for all correspondence whilst staying at various properties from 2005 onwards, and indeed before. He denied that. I asked him if he had any documents at all going back before January 2005 to show that he was using another address to negate this argument. Surprisingly he said he was sure he didn't.
154. I find it hard to believe that he has documents, including wage slips, going back to exactly January 2005 but nothing at all that pre-dates that. I am also puzzled by the monthly wage slip from the 8/12/04 to the 8/1/05. This has MW's address on it. This is the very first week of January 2005. Had he moved in the first week surely he would have remembered that and told me?
155. I have come to the conclusion that the family have tried to mislead me as to the date when CW moved out from his mother's home. I prefer his evidence to the crown court. It is entirely consistent with the evidence from KP and her mother, as well as the information provided by MW to the police in 2009.
156. I have no doubt that there was an occasion, or occasions, in 2006 or 2007 when KP was staying over at her grandmother's home sleeping in the second bedroom when CW was in that room with her. He at least had the opportunity, as he accepted in the Crown Court and, eventually, before me, to sexually assault KP as she described. In my judgment that is likely to have been before DW moved in in 2007. That is not to say that from time to time prior to that DW did not stay at his mother's and occupy that second bedroom which probably explains why KP said he must have been out playing pool on the night in question.
157. Whatever the position I do not accept that the fact that DW had psoriasis makes it unlikely to have happened.

He was working on the markets in the year or so leading up to his relationship with N in 2007 and so he wasn't available to baby sit at the time it is said he carrying out the abuse which corresponds with him having said that he stopped babysitting when she was about 7 years of age and so this could not have occurred when she was 10 or 11.

158. I do not accept this to be so. I have heard clear and consistent evidence from KP and her mother that CW babysat right up to shortly before he and N moved in together in August 2007. The evidence to the contrary comes from CW and his family. This is evidence that I find to be wholly unreliable for the reasons I have already set out.
159. He may well have been working on the market and that may have required him to work away for part of the year. In my judgment that does not lead me to the conclusion that CW had no opportunity at that time to commit the acts alleged against him. They may have occurred between September and April. It may have been on a Friday or a Saturday night. It may be that he didn't do this every week and some weeks he had off. He was, after all, only helping out a friend. It wasn't his market stall.

Had he entered the room at his mother's as suggested the dogs would have barked and woken the whole house.

160. I have already dealt with this point. In my judgment the evidence supports a finding that he was sharing the bedroom with KP. On the previous evening she went to bed first and he followed after she had fallen asleep. He woke her in the morning. It is telling that she says the dogs did bark when her nan got up.

Had they been in a state of undress when her mother had come back to the house and shouted "Hi I am home" she would have caught them in the act.

161. I listened carefully to what KP said about this. How her mother came in downstairs and said Hi I am home before climbing the stairs and coming into her room. In my judgment there was plenty of time for both to cover up before she got there.

If the trigger to telling her mother was the fact that he was in jail why hadn't she told her mother on two previous occasions when he went to jail.

162. In my judgment this is not a very persuasive argument. First of all prior to the 6^th May 2009 there had been a previous occasion when CW was remanded for one night only on the 12^th December when he was arrested sometime after 5.13 p.m. and released the following morning. There was a second occasion from the 2^nd to the 3^rd April of 2009. Again he was arrested late evening and released early the following morning.
163. KP would have had to have made up her mind very quickly if she was to act on that information even if she had been aware of it at the time and, on the evidence, I am not satisfied that she would have been. Her mother's evidence on the point was confused and contradictory and MW told me in terms that she spoke to KP about this on the 7^th May and she said she didn't know he had been in jail before.
164. On the 6^th May 2009 he was remanded in the early hours. From KP's interview it is clear that she was aware of this certainly before she told her mother the following afternoon. She had time to process the information and act upon it during the course of the 7^th May if not the day before. Of course what she did not know was that he would be released on the day she told her mother.
165. Even if the facts had been somewhat different, and there had been periods when CW had been in custody, it is impossible to apply this strict logic to a young girl who is trying to build up the courage to tell her mother that her mother's brother, who she loves and trusts, has in fact been sexually abusing her. KP says she told at this particular time because she felt safer knowing he was in jail. I have no evidence before me to gainsay that.

It is said that she was very close to her mother and her grandmother and if this had occurred surely she would have confided in one or other of them at the time, and she would not have waited 2 years or more after it had come to an end. In the same theme it is said if this had happened she would not have appeared to be so friendly with him nor would she had gone to visit him and N nor would she have gone on holiday with him.

166. It is generally accepted that it is very difficult for children to disclose abuse being perpetrated by family members. They recognise that it is likely to cause a great deal of trouble within the family. It takes courage, and it may not occur for many years or indeed at all. In the meantime it is not uncommon for them to carry on with the abuser as if nothing has happened.
167. In this particular case, unfortunately, the consequences have been very distressing for KP who, it is clear, misses her grandmother very much. The grandmother says why didn't she tell me before? Why wait 2 years? In my judgment the answer is likely to be she was afraid her grandmother wouldn't believe her and that she would side with her son – as indeed she did.
168. I do not in fact accept that KP went to Benidorm with CW without her mother being there, but, in any event, at her age what choice did she have? If her mother said we are going on holiday; she was going on holiday. As both her mother and grandmother were present she no doubt thought she was reasonably safe. However, to complain was to tell them why, and on KP's account she was not prepared to do that at that time. She also said she felt safe visiting CW and N because she was with N's sister A. In my judgment that is reasonably sound logic.
169. In so far as I need to detect a trigger for KP choosing the 7^th May 2009 to disclose the information as to what happened to her, I can see some logic in a 12 year old girl thinking that she might be safer telling if the abuser were in jail.
170. On Friday this case took yet another unusual turn. After the close of evidence Ms Ricciardi told me that her client had raised for the first time with her that he suffers from Marfan Syndrome which is a disorder of the connective tissue in the joints which means he is prone to dislocation and it was now his case that he wouldn't have been able to lift KP from the camp bed into the double bed without causing himself injury. It also explained, so I was told, why he had difficulty in understanding what he was being asked.
171. There was no medical evidence to support this but I allowed him to be recalled. He said he was diagnosed when he was at school, and he then said when he was 20 or 21 and then when he was 18 when he needed an operation on his knee. He said he couldn't lift heavy things. He didn't lift anything when he worked on the market and his evidence was it would have been almost impossible for him to have lifted KP from the bed as suggested. He said he hadn't raised it before because he didn't like to dwell on it.
172. He suggested that he had mentioned it to the police but then accepted it wasn't in his interview. He then said he had told Lee Barber but when we looked at the record it is clear that he hadn't.
173. I then heard from DM. He told me he had seen CW lifting boxes at the warehouse where he worked and putting them into a van. I heard from EH. She confirmed that he did suffer from this condition and when they were together in 2012 and 2013 he was in pain and he did have difficulty in lifting things. He would lift her daughter but not her son.
174. I accept that he does suffer from Marfan Syndrome, and I accept that this does mean that he has to be careful when lifting heavy objects. I accept that his shoulder would on times dislocate, but as EH said this wasn't necessarily connected with lifting. From CW's evidence this is a condition that has been getting worse as he has got older and I remind myself that I am considering the events that took place at least 7 years ago when by definition he would have been better placed to lift than he is now.
175. I saw KP in the ABE interview when she was 12. She was a very slight young girl and I doubt she weighed very much at all. Two years previously she would have weighed even less. She would not have been a heavy weight to lift.
176. In my judgment if, in 2009, CW had been suffering from a medical condition that would have made it virtually impossible for him to have lifted KP from the camp bed as she suggests we would have heard about it long before last Friday. He would have mentioned it to his legal team at the time of the criminal trial and they would have obtained a medical report. It would have been at the forefront of his defence. He would have mentioned it to me during his evidence. I do not accept his explanation that he did tell his team but they did nothing about it, or that he didn't realise that it was relevant and he didn't like to make a fuss about it. This would have been of fundamental importance, and he would have known that. He clearly thought it was last Friday. In my judgment this is CW clutching at straws, and I am afraid, it is another example of him trying to mislead the court.

OVERALL VIEW

177. The account given by KP in 2009, 2010 and 2014 has, overall, been consistent and credible.
178. I have not heard any evidence to lead me to believe that any part of it could not be true. In other words it has not been demonstrated that she has been untruthful in relation to any aspect of the case against CW.
179. I haven't heard any evidence that would suggest that KP is, or has been, prone to lie or to make up stories against friends or family or that she has a personality that might lead to that happening.
180. I have searched for a possible motive as to why she might have made up this story against her uncle without success. They got on reasonably well. He was a close member of the family. It seems that CW and his sister were particularly close. He helped her out whenever he could. CW and KP were seen to get on. It has been suggested that KP was in some way put out by the fact that CW no longer visited so much since he had been in a relationship with N but that makes no sense. There is no evidence to suggest that was so, and why wait two years and until the relationship is over?
181. The fact that I am unable to identify a motive is not conclusive in terms of my finding but it is a factor that must go into the balance when considering the veracity of the complaint.
182. I have made a number of findings that CW and his family have lied and have tried to mislead me as to what happened and when it happened. I have given careful consideration as to whether the only reasonable explanation for this is that the allegations are well founded. It seems to me that there is a possible alternative explanation and that is that although he didn't do it he wants to make sure that that is my finding, and he is prepared to lie and mislead in order to achieve that end.
183. It does however leave him in a position of having no credibility before this court that I could place in the balance against the account provided by KP.
184. In my judgment, for the reasons given, I prefer the evidence of KP and I find, on the balance of probabilities, that CW sexually assaulted her on 5 occasions between 2004 and 2007. On each occasion he removed her clothes below the waste and touched her vagina and forced her to touch his naked penis and masturbate him. The events would last for 5 to 10 minutes on each occasion and at no time did CW ejaculate. Four out of the 5 occasions occurred when he was babysitting at KP's home and on one occasion it occurred when she stayed in the same room as CW at her grandmother's home.

BACK TO THIS CASE

185. How my finding impacts on the threshold?
186. In terms of the actions of the mother and her culpability - very little. However, it does highlight that the views of the professionals were well founded notwithstanding the acquittal in the crown court and how careful parents have to be when faced with the situation that presented itself to EH.

What kind of order?

187. The final report of the Guardian is dated the 1^st October 2014. She makes the point that in the past the mother did not priorities the needs of her children over her own needs, and that it is only recently that she has shown any insight into the concerns of the LA. That said the Guardian believes it is in the interests of both children to be reunited with their mother without delay. They need stability and permanence in their lives in order to move forward.
188. The Guardian records the recent changes she has observed in the mother's approach and whilst positive mother still, to a degree, blames the system for the position she finds herself in. she also doesn't accept that her negative views have been communicated to the children. Up until very recently she was still critical of the father's conduct. I am told and entirely accept that both children want to return to live with their mother. The Guardian expresses understandable concern about M's negative views towards his father and his refusal to have any contact with him and says that all the adults have to work together to help him resolve these issues otherwise he is likely to suffer emotional harm.
189. The Guardian supports the care plan and recommends a care order rather than a supervision order or no order because it will enable the LA to maintain an element of control which should guide the mother when making decisions for the children in the future. It will encourage the mother to participate in a protective parenting programme. It will enable the LA to take action quickly in the event of the mother placing them in a position of danger. In this regard the Guardian has in mind that the mother has not always been open and honest with the LA and her insight is a very recent occurrence and it needs to be tested. The children need on going involvement of the LA to address the emotional and behavioural consequences of their recent experiences and it is the LA that is best placed to ensure that the contact between the children and their father is promoted as it should.
190. If at all possible it is bound to be in the interests of children to be brought up by one or other or both parents. In my judgment the plan for rehabilitation in the present case is realistic, but it will need to be closely managed it if is to have the best prospect of success.
191. In my judgment for the reasons set out at the beginning of this judgment under the care plan and those highlighted by the Guardian in her final report the appropriate order is a care order. I have considered whether a supervision order would adequately protect the interests of either child and have come to the conclusion that there is good reason for the LA to share parental responsibility and a care order is both proportionate and necessary having regard to the facts of the case.
192. I have set out the position as to contact earlier in this judgment. I find that the proposal in the Care Plan best meets the children's needs and is most likely to lead to both of them having direct meaningful contact with their father in the future. In the case of M it is not going to be without its difficulties but the fact that the parents are now co-operating with each other may give him the message that the time has come to move forward.
193. I therefore make a care order and approve the proposed care plan as amended.
194. I think it is important not to end this judgment without saying something the maternal grandparents and the mother in this case.
195. It is very much to the credit of Mr and Mrs H that they have done everything within their power to support and protect their grandchildren first, and then their daughter throughout these proceedings. They have fulfilled a fundamentally important role in the lives of these children at a very difficult time. It has enabled them to remain within the extended family and to have regular, good quality, contact to their mother.
196. I accept that the First Respondent is fundamentally a good loving mother who is more than capable of looking after her children. Unfortunately she allowed her relationship with the intervener to cloud her judgment which in turn led to her not acting in their best interest. That said she did make some enquiries of the authorities when she discovered the past allegations of sexual abuse. It is not a case of her ignoring, or not caring about, what had happened to KP. She tried to contact KP on Facebook but received a terse response from KP and her mother.
197. This case highlights the difficulties that arise when a jury returns a verdict of not guilty when faced with the criminal standard of proof although there is evidence to suggest that the events had probably happened.
198. EH says to her boyfriend "what about these allegations?" and he says "I didn't do it and the jury found me not guilty". Under those circumstances I understand that it is difficult for her to say – "well I am afraid that is not good enough", but my finding demonstrates how important it is to listen to the professionals and to be guided by them to ensure that, as a mother, you protect your children from potential harm and that you place their needs before your own.
199. In my judgment there is every reason to be confident that the present care plan will restore this family's life to normality after the events of the past 2 years and that the LA involvement will be no more than short term.

END