England and Wales Family Court Decisions (other Judges)

IN THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

		Sitting at: The Gee Street Courthouse 29-41 Gee Street, London EC1V 3RE
		28th March 2014

JUDGE WILDING:

1. This is a fact-finding hearing in respect of B (born on 20^th January 2008) so 6 years and 2 months or thereabouts and his sister, R (born on 20^th April 2009) and so 5 years and 11 months but rapidly approaching her sixth birthday. They are the children of Ms E, who herself is 29, and Mr O, who is 51 years of age. They, until these proceedings at least, all lived together in a flat in Loughborough Park in London.
2. The Local Authority commenced care proceedings in respect of the children on 21^st January. This was following on from the children having been removed from the care of their parents on 15^th November of last year. The removal required the police, using their powers under s.46 of the Children Act, and I have to say that on that same day Mr. O was arrested in respect of allegations of assault upon the children, I think at that time specifically in respect of R although I believe that the investigation has widened since.
3. The children have remained in foster care since that time by virtue of an agreement, signed by mother, under s.20 of the Children Act on 18^th November 2013. There appears to be some concern, perhaps confusion, on mother's part about that agreement, the effect of it, and the manner in which it was signed and what she was told before she did so. I have to say that for the purposes of this hearing today it is not necessary for me to make any findings in that respect.
4. On the issue of proceedings they were allocated to His Honour Judge Ansell and directions given, including a listing before Judge Ansell on 31^st January of this year. On that day Judge Ansell allocated the case to himself and Her Honour Judge Pearl and gave further directions, including the listing of this hearing before Judge Pearl, as it happens, on 17^th, 18^th, 19^th and 20^th March. In spite of His Honour Judge Ansell's allocation to himself and to Judge Pearl, and the direction for the hearing to be before Judge Pearl, the matter came to be listed before me. That sadly is a perennial issue affecting First Avenue House and its satellite court. Because of that, no doubt, the bundle arrived late. I had no knowledge of the case. It was necessary to find time on that day for me to read into the case and to view videos of the children's ABE interviews and, finally, an interview of mother under caution by the police. I pause there for a moment to say that mother is not under investigation or threat or otherwise in respect of any criminal offence.
5. Judge Ansell had previously given a direction for a composite schedule of findings that was sought by the Local Authority. That was not completed, to my recollection, until I think the Thursday, the fourth and indeed the final day (as it was intended) to deal with this hearing. By reason of these various delays, it was not possible to start the evidence let alone commence a hearing of any type.
6. It was also necessary, in the light of Miss Sultan's instructions (counsel for the mother), that the bruise on the right thigh of B, being still visible in January 2014, and in the light of the evidence of Dr. Davie, consultant community paediatrician who examined B and indeed R on 19^th November, to arrange for a further examination of B. That again resulted in delay. This was dealt with, I have to say, however, by all concerned with commendable speed and was carried out on Monday, 24^th March and Dr. Davie was asked, following on from that further examination, to answer some questions. Perhaps, as I had anticipated, indeed even predicted, the answers raised as many questions and as a result it was necessary for there to be a further short delay to enable the doctor to attend court to give further evidence. I was persuaded, in the light of the doctor's reply and the crucial importance of the piece of evidence, that that was an appropriate thing to do.
7. I was also persuaded that it was not fair for mother to commence her oral evidence until she had had the opportunity of hearing the further evidence of Dr. Davie, and so it was that we could not continue the case until Tuesday the 21^st, and again not until the afternoon. It was only possible then to provide two further half-days to conclude the hearing and that really was a matter of luck rather than anything else, this being my last week at Gee Street and the listing was rather light, but again fortunately the advocates and, indeed, the parents and parties were able also to accommodate the increase in listing.
8. I have to say, as I indeed commented during the course of the hearing, that much of the delay could have been prevented if only the Local Authority and, to a degree also the parents, had access to skilled, trained investigators who could prepare witness statements and exhibits, relevant documents and other material rather than the drip-feed that existed in this case and, indeed, exists in so many.
9. In any event, the Local Authority sought findings on ten allegations which were set out in the composite schedule at pp.A21-A25 of the bundle. In global terms, the first seven relate to allegations of physical abuse of both children by both parents. The eighth is that mother is excessively negative and critical of R, calling her fat, ugly and stupid. The ninth is that mother has provided different explanations for one of the injuries noted to B under his left eye. The tenth, and last, that the mother had failed to protect the children from an abusive father. The parents vehemently denied those allegations.
10. As I have said, I was provided with a bundle of documents. My calculation is that it runs now to about 500 pages, which includes transcripts of interviews of the children, the parents, and, as I said, I viewed the children's ABE interviews and indeed the mother's interview under caution by the police. There was a further recording; it was an audio recording of the father's interview. I did not need to listen to that. This was carried out by the advocates after I had noted an apparent discrepancy in the transcript of father's interview. This related to the use of the word "scared" by one of the officers. It transpired that the parties agreed that there was an error on the transcription insofar as the father had never previously in the interview used the word "scared", and when the officer raised it she was mistaken in her recollection. It was therefore not necessary for me to listen to it.
11. In addition to the written material I heard oral evidence from a number of witnesses and had, therefore, the considerable advantage of having them in the witness box in court for differing but relatively long periods of time. I heard from Ms R, a reception class teacher at HM Primary School. This is the school where both children attend, close by to the family home. She is not R's or indeed B's teacher but she says that she was a witness to an incident on 14^th November when it is alleged that the father pulled R across a classroom by her ear, such that her earring fell out and, after R had fallen to the floor, that the father stepped over R with one foot and then deliberately kicked R in the stomach with the other, as it were, trailing foot.
12. Curiously, I have to say, I had no oral evidence from R's own teacher, Miss D. She had provided a witness statement. As I understand it, she was unwell at the commencement of this hearing but, given the length of time that this hearing has taken, it must be perhaps a particularly serious illness which has kept her away from court. I have to say that it was unfortunate that she was not able to attend and I have had to rely upon her written evidence only. That is particularly in relation to the first allegation that on or about 14^th November that the father had hit R with a cane.
13. I also heard evidence from Dr. Davie, as I have said, a community paediatrician, who conducted the child protection medicals of the children.
14. I also heard from Rosemary Bennett, the children's social worker from the outset but only until February 2014; Detective Constable Kevin Snow, who is the investigating officer in relation to the criminal charges faced by the father. I make it clear now that no criminal charges have been levied against the father. A charging decision apparently remains outstanding and the police it seems are considering making a referral to the National Injuries Database in relation to the bruise on B's right thigh. I heard, of course, from the mother and the father and one witness on their behalf, a Ms DO, who had made a witness statement on 13^th March 2014. This was a woman who regularly cared for the children whilst the parents went to work and, crucially, the parents say, who cared for R on the evening and the night of 14^th November when it is alleged that father hit R with a cane. A number of other written witness statements were filed by the parents in support of their case. I am pleased to say that all parties, including the Guardian, have been ably represented.
15. The law in these matters is really quite clear. The burden of proving each and every allegation lies squarely upon the Local Authority and the standard of proof in these proceedings is the simple balance of probabilities. I draw attention to the decision of the Supreme Court in Re B. I have had other authorities referred to me in addition. I have also had my attention drawn to the criminal case of R v Lucas, a decision which considers how one must treat the evidence of witnesses who it can be seen have lied but who may be lying for a variety of reasons. It is clear that although a witness may lie in one respect it does not mean that the entirety of their evidence can simply be discounted. I have, of course, taken the decision, Re B and the other decisions that I have been referred to into account.
16. An important aspect of this case is also the surrounding circumstances and the background. It is accepted that these children have never come to the attention of Social Services before, save for two minor and, in my judgment, irrelevant reasons. Neither father nor mother has any criminal convictions. They are both, as I have already indicated, working members of the community. The mother is of mixed cultural and, indeed, mixed heritage background. Whilst she was born and raised in Nigeria, I think living there until 2007, her father is Lebanese and her mother is Saudi Arabian. Her work is part-time as a door security officer. The father is of Nigerian heritage and culture and works full-time as a security officer for St. George's Hospital Trust. The children have good attendance records for school. There has been no concern raised by any medical practitioner or health visitor about the care of these children as far as I am aware from the documents before me.
17. B is said to have speech and language problems. Miss Bennett says that in her view both children have learning needs. In September 2012 B was seen by an educational psychologist and a copy of that report was exhibited to mother's witness statement. Parts of it bear reading out, although I make clear that I have read it in its entirety.

"B appears to have a degree of difficulty with speech and language and this has an effect on his ability to respond to verbally presented information. There were times when he did not understand the questions or he misunderstood the instructions. On the basis of these results, B is likely to find it difficult to understand the language used within the classroom, instructions, information, concepts, vocabulary unless it is supported with visual clues, becomes overwhelmed by lots of verbal information and is likely to misunderstand it. He may focus on keywords, elements of a sentence, but this will distort overall comprehension".

Sadly, this was not known to Miss Bennett initially and crucially, in my view, was not known by Detective Constable Snow who conducted the ABE interviews of B.

18. I also accept, as did Miss Bennett in cross-examination, that B shows no fear of his father; that the children, and the mother and the father, display a lot of love and affection towards one another. D.C. Snow said in his evidence that in his time within the family home on the evening of 15^th November that the children displayed no fear of the parents. He described the parents' behaviour as being "good as gold". The children's nursery, which is part of HM Primary School, reported that mother was friendly with staff and, indeed, Miss Bennett acknowledged that she found mother friendly also. Those, to my mind, are very important background aspects to consider when one comes to look at the specific allegations, which I will now turn to.
19. I will deal, as it happens, with Allegation 1 first but thereafter I shall be jumping around a little bit. Allegation 1 is really very straightforward and so I will read it out entirely. "On or about 14^th November 2013 the father hit R with a cane". The first piece of evidence adduced by the Local Authority is the telephone referral form completed by Lambeth Social Services on 15^th November 2013 at 12.20. The report was made by a Miss CS. She is the Child Protection Officer and deputy head of HM School. It is as regards Allegation 1 recorded thus:

"Miss CS confirmed that R was very [I am afraid I cannot read that word] that it was her father that he used the cane on her leg".

That follows on from an earlier sentence which says:

"R had arrived this morning stating that her leg was hurting due to a long cane being used".

I have to say that I was surprised that Miss CS did not make a statement about this or, indeed, any of the matters arising out of this case. It is likely that Miss CS gathered her information from R's teacher, Miss D, and probably Miss R. I again remind myself that she gave no oral evidence.

20. Miss R said this in her written statement:

"The next day, on 15^th November 2013, R was complaining all morning saying that she was unable to bend her leg and that her leg was hurting. Just before lunch, as she continued to complain, I asked her what the matter was and she said that she had hurt her leg and it was really painful. I asked her if she wanted to talk to me about anything. She said, 'My dad did it'. She then repeated this and said that her father had hit her with a stick and she said, 'You know, one of those long ones', and demonstrated the length with her arms. R was quite matter of fact when she disclosed this to me. I immediately reported this to Miss CS who then contacted Social Services at Lambeth".

There is a vital difference between what Miss D says in her witness statement and the report that is given by Miss CS, and that is that the stick has now been converted into a cane. That might have been one element that Miss CS could perhaps have helped with in her oral evidence.

21. Surprisingly, again, no one at this stage, or indeed, as I understand it, at any stage sought to ascertain or said which of R's legs was hurting her. No one thought to see if there was a mark. I find that, frankly, alarming.
22. Upon this report being made to Social Services, the police were alerted by Social Services, through, I understand, a central location which is then sent to the relevant station. This is in the form 87A. A copy was provided to the court and, in its relevant part, it says this:

"The school reported that this morning R came into school limping on one leg. She complained that her legs were hurting. She disclosed that her father had beaten her with a long cane".

There are now two further discrepancies. Firstly, that R came into school limping on one leg and she complained that "her legs", that is plural, were hurting. None of this was clarified at the earliest possible stage. These discrepancies were never enquired into by anyone at any point. I find it frankly astonishing.

23. In cross-examination of Miss Bennett she accepted that the use of the word "limp" was indeed an error, as there was nothing from the school to support this, and it appears that Social Services have thought about this and put that word in entirely for themselves. She also accepted, again importantly but completely wrongly, that she reported to Dr. Davie who carried out the examination of R that she had a limp. How critical it must seem perhaps now for these obvious errors to be looked at, at the earliest opportunity. I remind myself we stand some four months since this allegation.
24. Detective Constable Snow, in cross-examination, said he was sure (but this was from his memory, he had no written record of it) that a limp was discussed when he visited the school on 15^th November prior to attending the family home. This was the occasion he said when he spoke to the teachers. He produced his written notes of that meeting and they are very much notes. I am not critical of him for that. He could hardly be expected to take a full contemporaneous note. He was trying to intelligence-gather at that stage. But there is not a jot of the word "limp" in his written notes.
25. In my view, it is more likely that the word "limp" has been added erroneously somewhere, by someone, has not been corrected and has now formed part of the factual matrix of this case quite wrongly. The mother and father, and indeed Miss DO, said that R had no limp. Miss D said nothing in her witness statement about a limp. Looking at all of that, I find that R had no limp when she went into school on the morning of the 15^th. Whilst as I say, it may seem a small matter, nevertheless it shows the rather lax way in which the matter was investigated.
26. Having attended the school, Detective Constable Snow then went on to attend the children's home. He did so with a colleague, Miss Bennett, and Miss Bennett was accompanied by a student social worker as well. In her written evidence Miss Bennett says this:

"R was spoken to by DS Snow at the home and she confirmed that her father beat her on the leg with a cane. She also disclosed that her father sometimes used a knife to hit her. B was spoken to and he initially told DS Snow that his mother told him not to tell the police anything. However, when he was told by DS Snow to tell the truth he confirmed that he had witnessed his sister being assaulted by his father".

Again I am not wishing to be critical, I hope not overly critical at least, of Miss Bennett, but what is vital at this stage of any enquiry of this type is to record the words the children used and not to put it into what might seem a formal court-friendly type language. The words the children used are the most important. Clearly B did not use the words used by Ms Bennett.

27. Whilst the police were at the house, and whilst they conducted what appears to be rather difficult conversations with the children, R showed Detective Constable Snow the stick that she said had been used to hit her. It seems a search was made by R until she saw it on a frame above a doorway. Detective Constable Snow said he was clear that it was a living room doorway. The stick became part of the police case and as a result of it there are photographs of it at G72 and G73. In answer to questions, he accepted that it was quite thin. I think he accepted that it was perhaps half a centimetre or less in diameter and that it was also split. Certainly to my mind, at least, it did not fulfil the description of "cane" which comes, of course, from bamboo.
28. In her ABE interview R said this, Detective Constable Snow asked: "Do you remember you showed me something? You went and found it for me". R: "The cane". Well, perhaps there is now foundation for the use of the word "cane". The child has used it but, to be perfectly frank, I doubt that that was the word used by the child. "Tell me about the cane and what happened with the cane at home". "He was slapping B and me". "Tell me about the time he slapped you". "He slapped me fast but a little bit". "What did he slap with you?" "The cane". "Whereabouts on your body did he slap you?" "My leg but I had tights and socks". "Who was it who slapped you with the cane?" "My dad". "What's your dad's name?" "Bingo". "Does anyone else hit you with the cane?" "My mum". "So mum hits you with the cane as well". It is at this point that there is again an error in transcription. What is said, it transpires on listening to the record, is that it was said to have been done by D not Ms E. D is one of the mother's sisters. After the officer has used the word "Ms E" to the child the child says, "How do you know my mum's name?" So then R's response, "No, I mean Ms E", is frankly to my mind worthless.
29. In addition, when asked about truth and lies, R failed singularly to give any sort of accurate assessment. It is during part of these truth and lies, as I will record later, that B was heard to call out clearly from outside of the room, "It's a lie". I have to say in respect of both interviews; my assessment is that she was wholly unreliable. It is perhaps hardly surprising given her age and her tendency, as we now understand it and as she said to the officer that she likes to "trick" people.
30. In B's ABE interview he said this, this follows on from about getting into trouble with lies: "Did she, R, get into trouble?" "Yeah". "Yeah, what happened?" "Mummy beat her". "Mummy beat her, what with?" "With the cane". "Mummy beat her with the cane? Has anything else happened with that cane?" "No". "Does anyone else use the cane? You said mummy". A rather closed question, I felt. "Just mummy?" "No, not mummy. I mean, daddy, just daddy". "Daddy? Just, oh, because you said mummy did it". Again another example, it seems to me, of a closed question, something to be avoided with witnesses with vulnerabilities, particularly children. "You mean daddy did it?" Closed question. "Yes". "So what did daddy do with the cane?" "Smacked her a bit on the hand". "Smacked her on the hand?" "Yes". "And where else?" Well, that is not only a closed question, it is a leading question. The reply is: "On the head". "Yes, and nowhere else". "Who did he smack with it?" "Not me". "But he did smack R with it, your sister?" "R always be naughty. I always be good". "So has anyone hit you with a cane?" "No", shaking his head. "Has anyone hit R with a cane?" Nods head, "Yes". "Who?" "Daddy". "But you said mummy did as well". "Not mummy, I mean daddy". "Have you been hit at all with anything?" And then it goes on to deal with the other issue that I will look at in a moment.
31. Again that interview was not well-conducted. In respect of both interviews, it was clear from the video-recording that both children were in the interview suite. This is a suite of three rooms accessed, it appears, by one door with a very small lobby with three doors leading off it, one for children to wait; one for the equipment to carry out the recording, and one for the interview to be conducted. It seems to me more likely than not that one or other of the children overheard the other's interview either directly through the door or via the recording in the separate room. This was accepted by Detective Constable Snow because, as I have said, during the course of R's interview B can be heard to say, I presume in a shout, "It's a lie". R even entered the interview room at one point during B's interview. Again Detective Constable Snow acknowledged that the children were not perhaps being best cared for by, I think, a foster carer who was in attendance at those interviews.
32. All of this causes me considerable concern and, in looking at B's ABE interview, I have again concluded that it is unreliable. Particularly so given his difficulty with speech and language and the effect upon his ability to respond to verbally presented information. Sadly, I give no weight to what they say in their interviews for those reasons.
33. The mother, in her written evidence, said that she had never witnessed the father hit R with a "cane" -- I will use that word now that the children have. She had never hit her children herself. She said that the father was working on the night of 14^th November, that he had left for work around about 6.30, but before that even she had left with the children at about 5 o'clock and took both children to her friend and neighbour, Ms DO. It was clear, and it seems common ground, that the father had collected the children from school on the day of the 14^th, having arrived home at about 3.20, perhaps 3.30. It is a short walk. Remembering, of course, that this is the time when it is alleged that the father pulled R by her ear across the classroom; where he was very angry and kicked her in the stomach. So it might be thought that in those circumstances the father's anger did not subside and that it continued whilst at home, and that it was this that led him to use the cane on R. It was a consideration.
34. The father, in his written evidence, adamantly denied using a stick or a cane to assault R or B or, indeed, at all. He explained that the stick, which it had now become, was found by him one day on his way home from work as the family needed something to silence the fire alarm in the flat. Neither Miss Bennett nor Detective Constable Snow recollected where the fire alarm was, but the mother had said that it was in the hallway by where the stick was found.
35. In his interview the father continued and continuously denied hitting R or B with a stick or at all, and maintained that the stick was used to silence the alarm. This having come about after a broom, that the family had, was broken by the children, the broom having previously been used to press the button on the fire alarm to turn it off.
36. In her oral evidence the mother was clearly anxious and spoke passionately about her children and at some length, but my overall impression was of an honest witness, something that I also concluded from having viewed her conduct within the interview process. She said in cross-examination by Miss Rahman that if the father had hit R with a stick she would have heard it. She said she would never side with the father against the children. I acknowledge that she struggled to answer why it was she did not believe the children's statement to the school, to the social worker, to the police, but I have to say I found, coming from her, that to be quite natural. The reason for this was, and this was of vital importance from her point of view, is that R had never said it to her.
37. In his written evidence the father adamantly denied that he used the stick on R on 14^th November or indeed ever. He provided supporting evidence from his workplace about his working times and that he had clocked in earlier on the evening of the 14^th. I am satisfied that he would have collected the children from school and returned home at about 3.30. I am also satisfied that the mother dropped the children off with Ms DO at about 5p.m. on her way to work. So the likely period that any blow or blows could have been struck was between 3.30 and 5.00.
38. In his oral evidence the father was clearly anxious. His speech was sometimes difficult to understand, particularly when he spoke quickly because of his somewhat heavy Nigerian accent, although I am pleased to say that I am quite satisfied that I heard and understood what he said. Again my overall impression of him was that he was a truthful witness doing his best to recall events clearly and expressing them in English, which I acknowledge is not necessarily his first language. It was he who produced some photographs of the home, including now a photograph showing the hallway of the flat with the fire alarm that sometimes goes off and requires resetting, on the ceiling in the middle of the hallway. He used this photograph to point out the doors of the hallway and said that the children's bedroom was on the right nearest the viewpoint of the camera, with the sitting room on the left-hand side opposite. The children's bedroom could be seen because it had something like a towel or a cloth over the door.
39. In cross-examination by Miss Rahman, she properly and firmly put the Local Authority's case to the father but my assessment was that he was not shaken and came across as honest and sincere. He said that the stick was above the doorway to the children's room and not to the living room as recollected by D.C. Snow. I doubt frankly it matters given that the rooms are directly opposite each other and that the fire alarm is literally in between the two of them, but having considered the evidence overall I have to say I prefer the evidence of father as to the place where the stick was found. A small point but again it does, to my mind, affect the credibility and recollection of the officer.
40. I also accept the father and the mother's explanation for the reason why the stick was in the house. It may seem odd but it seemed to me more unlikely to be an implement that could be used as a cane to hit the children than used as described by the parents.
41. Finally, there is no physical evidence or medical evidence of any mark on R that would correlate to a cane having been used on her leg or legs sufficient for her to still be in pain the following day. Nothing was observed by Miss DO, the witness who came to court. She noted nothing about R favouring one or other or both legs and she described the following day, when the children went to school on the 15^th, her going along with the mother and her own three children, the children walking, running, jumping quite normally.
42. Dr. Davie, in his examination, did note a pair of scars above R's left knee but he said that they were non-specific and could easily have resulted from an accidental injury. But he did say in cross-examination that he would expect to find a quite thin, linear bruise with delineated borders if she had been struck by a cane. He did not.
43. I therefore find that the father did not hit R with a cane or a stick on or about 14^th November 2013 or, indeed, at all.
44. I will now turn and look at Allegation 7 insofar as it deals with medical evidence. There are a number of worrying concerns. The Local Authority says that B had five injuries that were suspicious of non-accidental injury. Let us be quite clear here, as has been pointed out to me, Lord Justice Ryder in Re S suggested that is no longer a useful way of describing these things. They are either accidental or they are inflicted. If inflicted they might be inflicted negligently or deliberately. Nevertheless, that is the way the Local Authority put its case.
45. The first of these was a small crescentic scar below B's left eye, clearly seen in the police photograph at G42. The Local Authority has not said how the injury was caused apart from R saying it was caused by a blow from "the cane". I have already found that there was no use of the cane or stick. The medical report says this:

"This injury is suspicious of non-accidental injury because of its crescentic shape which is unusual for an accidental injury".

The mother's explanation for it is that it was caused during a squabble between the children over a broom and dustpan. It seems that she had required them to tidy their room up prior to her sweeping and tidying herself. The children left alone had argued and that this had involved the dustpan and broom, but it was a broom with a long handle. She says, although she did not see it, that the broom handle broke as a result of a squabble. I am told that it is made of thin metal with a plastic coat and it was the broken end of the broom which hit B causing the injury. She dealt with that injury quite simply at the time.

46. This also, to my mind, relates to Allegation 9. The Local Authority there says that the mother gave two different explanations for the injury. The subtext being, of course, that mother is being evasive, that she is lying about the way in which the injury was caused. They would say that she is lying or at best mistaken about the cause. Miss Bennett said this in her written evidence:

"Miss E explained to me on 28^th November 2013 that the cause of the mark on B's eye was caused by B and R fighting over a dustpan".

I just pause there to note that that is nine days after the medical examination. She says "dustpan".

"She [that is mother] stated that she pulled the dustpan in anger from the children and it caught B under the left eye".

The mother says that that is simply untrue, she never gave that explanation.

47. In the child and family assessment that was completed a record was made as follows:

"Miss E described a poor relationship between R and her brother. Miss E advised that R tends to bully her brother and has scratched him on the left-side of his face hence the fresh scratch marks under his left eye".

48. In cross-examination Miss Bennett confirmed that this was her recollection of what mother had said. I have to say, in my assessment, that I can really see little distinction in the descriptions given by mother as recorded by Miss Bennett. I certainly do not regard them as being in any way evidence of the mother being deceitful or lying.
49. In his oral evidence Dr. Davie was shown a photograph of a broken broom and a dustpan said by the mother to be the one that caused the injury. He accepted that it was a plausible cause of the injury and accepted that the injury was quite old and could date to around August 2013 when mother said it occurred.
50. Apart from there being some cross-examination as regards why it might be that a family would keep hold of a broken broom and an apparent broken dustpan, which is odd, I have to say that looking at the evidence overall I was simply not satisfied that the injury described at A was intentionally inflicted upon B. It is far more likely to have been a result of a squabble between himself and R and as described by the mother. I also do not accept that mother's explanations are so different as to cause concern. I am therefore satisfied that Allegation 9 is not made out.
51. I will deal with injuries B, C and E together and quite briefly. Dr. Davie, having been concerned that they were suspicious of non-accidental injury at the time of his report, very properly, in cross-examination, accepted that the parents' explanations for them, as he now understood them, were a plausible explanation as to how B had acquired these marks on his body. He said that injury B, and indeed he went on to say about injury A, were more likely than not now to be accidental. I also noted that when he was recalled that there were now many more marks upon B's body than before the medical on 19^th November 2013. Dr. Davie had previously accepted that a child such as B with eczema is more likely to show scarring for longer than a child without eczema. To my mind that was important evidence that was really not considered very much anyone, including Dr. Davie. His initial child protection simply records, I think the words are, "it is said the child has eczema but does not appear to be badly affected".
52. I will then turn to look at injury D. This is the one that gave most concern. This said Dr. Davie, was "highly suspicious" and tipped the balance into it and indeed the others being abusive, like a pile of cards in effect, by which I think he means that they were all intentionally inflicted upon B. He described this injury at examination as follows:

"There is a rectangular bruise on his right thigh with quite distinct borders but indistinct ends measuring 2x4cm. I have been told there has been a disclosure by B to the social worker that he has been hit by his father with the flat blade of a knife and this would be consistent with his history".

When cross-examined about the bruise by Miss Sultan, for the mother, and mother's explanation of the possible cause of the injury having been acquired in August 2013 when B fell injuring himself whilst at the fun fountains at the South Bank with friends, he said that this bruise (the one he described) was unlikely to be attributable to that by reason of three and a half months having elapsed from the time it was acquired to his examination. He said that it was not impossible that the discolouration on the thigh remained after a bruise. He felt it was likely to be a single blow but he was not able to age it.

53. The issue then arose, as I have already indicated, of mother seeing that bruise, or perhaps now discolouration, in the January at a contact. That is the reason why it was necessary for further questions to be put to Dr. Davie because no one, certainly on the Local Authority's side, was aware that this bruise/discolouration still existed. He replied initially by email. A copy is within the bundle at E19. He said this:

"I have re-examined B's thigh as part of a medical performed today by a colleague. The mark found in November is still present. It seems to have slightly enlarged and the borders are now more diffuse but it is undoubtedly the same mark. The colour, when looking at it in the flesh, seems darker but in the photograph G16, presenting as evidence, this may represent a defect in photographic reproduction than actual change. This mark is therefore equally consistent with either the history given of being struck with a flat knife or with mother's account of falling and hurting himself on a bench. It is possible that it is a birth mark as it is now less well delineated and may have increased in size".

So now we have three possibilities; inflicted, accident, birthmark.

54. In his further oral evidence he said, quite properly and clearly, that the persistence of this mark had changed his opinion about it being as the result of it being inflicted by a single blow from a knife. He said there were now these three possibilities. As far as the Option 1, as I called it, the knife, he would expect to find what he had in November but not still today. Option 2, the fall onto the bench. He would still not expect a mark in November or March 2014. Option 3, birthmark. Unusual in November but now more typical of a non-injury cause naturally occurring. Indeed, he and his colleague, no doubt quite properly, have referred B to a dermatologist, perhaps even the more so because, as we now see from the second examination of B, that when one looks at the body map he now appears to be developing a mark on his left thigh of what appears to be a similar shape and in a similar place.
55. In all of these circumstances my assessment is that it is far more likely than not that this injury was caused as a result of the fall, as described by mother and corroborated by Ms DO. It will be recalled that this is the lady with whom the children are left on occasion to be looked after whilst the parents work and who took the children to school with the mother on the 15^th, but she is also part of what appears to be the larger, wider community who went to the South Bank for the children to have fun. Photographs of that day have been shown to me and, indeed, what it is said B fell against. Those photographs were put to Dr. Davie. I acknowledge that in her cross-examination Miss Rahman put to Miss DO the discrepancy between what the mother had said about the child's movements. I have to say I felt nothing frankly turned on that. Miss DO to me seemed a delightful, engaging witness and I was satisfied that she was telling the truth.
56. I therefore find that none of the injuries set out in Allegation 7 were inflicted upon B, let alone by the parents.
57. It follows from this finding that I am also not satisfied in respect of Allegations 3, 4 and 5.
58. I will deal now with Allegation 2. I have to say this is the one that caused me the most concern. Mr. Richards certainly did not envy my task in trying to reach some assessment of the obviously contradictory evidence that I heard from what appeared to be two honest witnesses; Miss R, the school teacher, and the father. I will read out Allegation 2 in its entirety. "On 14^th November 2013 the father came to pick R up at school. Whilst in the classroom he shouted at R, pulled her across the room by her ear and her earring fell out. He continued to shout at her very loudly and seemed very angry. R was crying and upset. Father let go of R's ear and she fell to the ground crying. Father stepped over R's body with one foot and he deliberately kicked her in the stomach whilst she was on the floor crying. He seemed extremely angry and his eyes were very wide". Clearly a description there of a most disturbing incident.
59. As I have said, there are two very contradictory accounts of this event. The Local Authority relies upon a number of pieces of evidence. The first is the referral from the school. That referral, which I have already spoken about, says this:

"Yesterday, 14^th November 2013, a teacher [and I can say that is Miss R] observed that Mr. B [I think it says here] O picked up R from school".

It may be that dad is known as "B".

"He twisted her ear and she then fell to the floor. Mr. O was observed kicking R. This was not disclosed to the head teacher until this morning, hence the reason for the call".

60. There is also, of course, the evidence of Miss Read and Miss D, who is R's schoolteacher. This is the teacher who did not attend to give oral evidence and about whom I have already made comment. This is what Miss D says in her written evidence:

"On 14^th November 2013 R's father, Mr O, came to pick up R. I told him that R had not had a great day due to her disrupting the class, shouting out, taking off her shoes and socks, refusing to listen and refusing to do what was asked of her. Consequently she had three warnings which then resulted in a time out in the classroom next door, that being the classroom of Miss R. Mr. O listened to what I had to say and something along the lines of, 'Okay, Miss. I'm sorry'. I then stayed in my classroom in a separate room from where R and Mr. O were as I had to dismiss the rest of my class. At the school there are two reception classes and therefore two separate rooms which are adjacent to each other. There is a door between the two classrooms and due to the fact that the two reception classes do a lot of activities during the day the door is often open. I stayed in my classroom and R remained in the other reception classroom".

I comment here that it was not until partway through the hearing that photographs of the location and, indeed, a sketch plan were provided by the mother's solicitors. Again it seemed to me that this was an important part of the investigation so that one could ascertain where people were standing; who was within a particular room, and where something occurred. These were important matters, simply not looked at here. She then goes on to say:

"A short time later Miss R brought R crying to my classroom. She was brought through to my classroom, did not say anything to me, as she often does not say anything when she is very upset. R craves physical contact when she is upset and I gave her a hug. She then left. I saw Mr. O march off and R was left walking behind him. After Mr. O and R left the classroom my colleague and the other reception class teacher [I think that means one and the same person, not that there are two] Miss R informed me that she had witnessed Mr. O pinch R's ear and kick her as she fell to the ground. Miss R and I went to look for Miss CS, the assistant head teacher and child protection lead officer for the school, to report what had happened but unfortunately she had already left for the day".

61. Miss R, in her written evidence, says this:

"On 14^th November 2013 R's father, Mr O, came to pick R up. I was at the other end of my classroom by the door dismissing the children and speaking to parents. R was approximately 10 metres away from me and was sitting on the carpet area in the book corner in my classroom as she had been sent into my room for a time out".

Again once we had the photographs sense could be made of these descriptions of the classroom and of the locations of the places within it. It would have been useful at an earlier stage.

"I saw and heard Mr. O shout at R and pull her across the room by her ear and her earring fell out. Mr. O continued to shout at her and he seemed exceptionally angry. R was crying and was upset and had her shoes and socks off.

I was worried about whether to approach Mr. O given that he was shouting very loudly and appeared very angry. I still had other children in the classroom and parents but as I became more concerned about what was happening I started to approach him and R. I saw Mr. O then let go of R's ear and she fell to the ground crying. I saw Mr. O step over her body with one foot and as he pulled his other foot up to go across her I saw that he kicked R in the stomach whilst she was on the floor crying. I saw that this was a deliberate kick as he raised his leg backwards in order to then kick forwards into her stomach.

Mr. O then had R's shoes and socks in his hand which he threw to the ground. I was frightened at this point and I did not think it was safe to approach him. He seemed extremely angry. His eyes were very wide. He then marched off. I then helped R put her shoes and socks back on and guided her back to Miss D".

62. Miss R acknowledged in cross-examination that she should have, and she accepted that this was in hindsight, taken some action to protect the child immediately, if not possible by direct interaction then by refusing to allow the child to go with the father, if she was unable to report it to Miss CS, by reporting it to the police. None of those things happened.
63. The photographs and the sketch plan were put to Miss R and she confirmed the positioning of R, herself and father. My impression of her evidence was that she gave a clear account of the event but I have to say that there were a number of issues that concerned me. In this respect I also take into account that both mother and father say that the school had a motive for wishing to paint them in a very poor light and that this would be the reason why Miss R, and indeed Miss D, have lied.
64. Part of this context was the written statement of Ms JAC, a qualified nursery nurse who had a placement at HM School from September 2012 until July 2013. Miss JAC said this (I accept that she was not called but it means that her evidence was not challenged):

"Child protection is a very serious aspect of the school's work. If a child is kicked by her parents or beaten by her parents we are not allowed under any circumstances to allow the parent to take the child away".

That seems, to me, frankly, clear common sense let alone needing to come from another professional.

65. I will deal with some of my concerns. Although Miss R and Miss D said that they tried to find Miss CS at the time of the event, it seems quite clear from Miss D's witness statement that she did not report the event to Miss CS first thing in the morning of 15^th November and it is not until R has complained of pain to her leg, and making her allegations that she had been struck by her father, that she reported it to Miss CS "just before lunch" (her words). Miss R, in her evidence, says that she reported it first thing the following morning to Miss CS. The school referral was recorded as 12.20. It strikes me as very unlikely that any person, let alone an experienced teacher, who having apparently observed a child being kicked deliberately by a parent, would not have reported that at the very first opportunity and if, as Miss R says, she reported it first thing, at 8.30 in the morning, that Miss CS would not then have immediately told Social Services, not waited until later in the day, halfway through the day, to make the report together with another allegation that has been made by the child and, for good measure, to throw in the issue regarding what is said to be the mother's talking of the child in less than pleasant terms.
66. Secondly, Miss R says that she saw R's earring fall out as the father pulled her across the room by her ear. She could not recall which ear. I do not blame her for that. In cross-examination she said that the father pinched and twisted R's ear rather than pulled. Again she still could not remember which ear and I do not blame her for that either. She was also adamant that she saw the earring fall out and she described it as a silver stud. It is common ground that R has pierced ears and wears earrings suitable for a pierced ear. It was not a clip-on. Miss R could not say who picked the earring up. I am surprised that she was able to see from the distance that she described, some 10 metres, perhaps slightly closer, something as small as a silver stud going through the air and falling to the ground, given the busyness of the background. In any event, she was shown a pair of silver hooped earrings that, as I have said, fit into pierced ear. That is with a post and a clip behind. The mother and father's case is that these were the earrings worn by R on that day. Miss R said that she could not recall if they were the earrings that she says that she saw falling from R's ear. The mother told me that these were the earrings worn by R as a previous pair had caused some irritation and she could only bear silver or gold against her skin. She was definite that R was wearing them on the 15^th on the way to school. Indeed, she recollected that when R was removed from the home on the 15^th and taken to the foster carer, that the foster carer actually handed them back to her as by their guidelines children were not allowed to wear hooped earrings whilst within their care. It was, in my assessment, an entirely credible piece of evidence and I find that R was wearing the silver hooped earrings that were produced in court on 15^th November.
67. Dr. Davie, in his evidence, said that he was aware of the allegation of the earring coming off and could find no evidence of any injury to R's ear or ears. He said that if the silver hooped earrings were being worn by R (which I have found that they were) he was not sure how a pierced earring could be removed without causing injury. There was none. I therefore find that during the event that the earring did not come off and that Miss R is mistaken.
68. Thirdly, I found it odd that another classroom is a rather comfortable area to be used for time out. It hardly seems designed to make an impression upon a child who is deserving of time out. I was provided with a witness statement by a Ms Davidson who works for the father's solicitors, who had taken the photographs that I have referred to. She had, on that occasion, had further occasion to speak to Miss CS. When Miss CS was asked where children go for time out she indicated that they were sat in the corridor, the corridor which runs up to and adjoins both of the reception classes; that there was a small chair in that spot, which can indeed be seen in the photographs, although Miss CS said that usually there would be in addition a small table and perhaps some more chairs. I have to say that seemed to me a far more likely place for a child to be put for time out and, indeed, Miss R, when she was questioned about this, acknowledged that children were put there for time out but never left alone. There would always be a supervising adult. Nevertheless, the evidence of Miss Davidson, and her reporting of what Miss CS said, albeit hearsay is not challenged and Miss CS, as I have already said, surprisingly gave no evidence herself.
69. The father said that when he attended to collect R that she was not in her classroom and, after being told by Miss D about R's behaviour, he was taken to R. I pause there again to comment that father is told by Miss D that R had wee'd on the floor. There is not a word of that in Miss D's witness statement. I find that very surprising too. In his written evidence father says R was not in her classroom and not in Miss R's classroom, and that Miss D took him to and opened the door to a separate room from the other children where R was sitting on her own. He elaborated on this in his evidence, saying that Miss D had taken him through the white door which led to the corridor. Miss D then opened the door on the right and R was inside. He said it was closed and Miss D opened it with the handle. Again it can be seen from the photographs that this is a door that is beside the area as described by Miss CS, and accepted by Miss R is used, as the time out area.
70. In cross-examination by Miss Rahman, she took him to his police interview. At G84 in the bundle the father says: "They've locked R in a separate room sitting on the floor". Question: "Right, so she was locked in a separate room?" Answer: "Yes, sitting on the floor". He accepted that it was not locked by means of a key, or I think he used the word "padlock", and when he said "locked" he meant the door was shut. He accepted that he does not describe it to the police as a cupboard but as a separate room, and when shown a photograph of the separate room he recognised it as being the place. Again, as can be seen in the photographs that were provided by the mother's solicitors, he said that this room was less cluttered on the day that he was taken there than when the photograph was taken. He was adamant, however, that she was not within another classroom and not within Miss R's classroom. I have to say I found his evidence entirely credible. He was consistent in his evidence.
71. When the mother was interviewed by Miss Bennett on 15^th November she recounted to Miss Bennett that R was "locked up" somewhere. She, of course, was repeating what the father had told her. He could not have known at the time he told the mother, or indeed at the time he was interviewed by the police on 15^th November, that this would become a significant issue in the case. I think it extremely unlikely that he had the foresight, with all due respect to him, to consider that this would be a jolly good reason for him to be able to say that everyone was lying about his conduct on that occasion for him to suggest that the child was locked or kept in a separate room when perhaps she ought not to be. I have to say I prefer the father's evidence on the point.
72. Bearing in mind my earlier finding about where R was sent, in my assessment it is more likely that R was in the storeroom. It is right by where children are usually sent for time out. I cannot say if she was placed in there or if she found her own way into it, but I prefer the father's evidence and find that that is where she was found.
73. Fifthly, Miss D, in her written evidence, says nothing of the alleged kick or indeed anything of what was observed by Miss R. In a rather anodyne way she says:

"A short time later Miss R brought R crying to my classroom".

Yet, according to Miss R, it occurred on the threshold between the two classrooms. It seems to me very unlikely, in the circumstances described by Miss R of the father being very angry, of the child crying, of the child falling on the floor at the threshold, the father stepping over and kicking her, and marching off, that she would not have seen any of this. Her attention would have been attracted to it to some extent at least, if only the father shouting and R crying, but none of it. I found that also surprising.

74. Sixthly, whilst the school referral and the 87A speak of a "kick", when speaking to Miss CS on 15^th November, by D.C. Snow it was recorded thus:

"Dad went to step over her. May have deliberately kicked her".

Although later Miss R did say, according to the officer's notes, "deliberately kicked her". There was no mention in any of this as to where the father is alleged to have kicked R. It is only later that it was said to be the stomach. Miss R's evidence was that the kick occurred whilst R was on the floor, and yet Miss D says in her witness statement that Miss R said that father kicked her as she fell to the ground. No complaint was made by R to her mother, the police or the social worker at the time or at any time of a kick to the stomach by the father or anyone else or a kick to anywhere else.

75. Dr. Davie found no evidence of any injury to R, although in cross-examination he said the absence of a bruise does not of itself cast doubt as to whether it occurred or not as it was a single kick and through clothes.
76. I have to say that in the light of these findings that I have made, and observations that I have made, I am satisfied that the father did take hold of R's ear to bring home to her the need for her to listen to and be attentive to her teachers, something which I understand is common within this family and perhaps within this family's community. But, in my assessment, it was not done with any force, such as the earring was not displaced and nor was any injury observed. I am also satisfied, as I have said, that R was in the storeroom. I am also satisfied that father did not kick R, although she did pull away from father whilst he took hold of her ear and fell, as he described it, on her bottom onto the floor. I am also satisfied, having had an opportunity of seeing father give his evidence, and he describes himself as a gentle man, that he was not extremely angry as described by Miss R. This man, whose livelihood depends upon his being able to be calm in circumstances where he is undoubtedly tested fully, it seems to be again unlikely that that happened.
77. In summary, therefore, I do not find Allegation 2 proven as pleaded by the Local Authority. It must also be clear from these findings that there is no evidence that the mother failed to protect the children from abuse from their father as pleaded at Allegation 10. In my assessment, she was quite convincing in her evidence that if the children had told her that father had hit them that she would protect her children and not him.
78. This leaves Allegation 8. It is a very specific allegation. That having been said, there was also generalised criticism of the parents for using the phrase "you are not my friend" to the children. Dr. Davie, in his medical report, said this about it:

"I was also struck by the lack of warmth expressed by her mother towards R by the fact that as a consequence of misbehaving at school she was told that she was not her mother's friend. I think there is a strong chance that this treatment would constitute emotional abuse and I am as concerned about this".

This comment might read as though Dr. Davie heard the mother speaking to the children herself, but I do not accept that. It is more likely that this is what Dr. Davie has been told by Miss Bennett about the mother and perhaps about the parents generally. That is not, to my mind, an appropriate way for that type of observation to be made in these circumstances.

79. It is also said that the mother, when the police and Social Services attended the home on 15^th November, said about R, and in her presence, that she "chats shit". The mother denied this throughout her written evidence but when she came to give her oral evidence she readily accepted that she had said it. The mother clearly knew, in my assessment, that she had said it and was therefore lying about that at least up until the point when she admitted it in her oral evidence. I have taken that plain lie by the mother into account in assessing her evidence overall and following the Lucas guidelines.
80. The evidence for the allegations is contained solely again in the school referral, which says this:

"A teacher witnessed the mother calling R stupid, fat and ugly. Miss E has been spoken to about using this type of behaviour with the daughter".

It does not say who heard it or who spoke to mother or when. In the children and young person's assessment it is said that mother has been told on now numerous occasions not to call her children derogatory names. There is no supporting evidence for that whatsoever from any source, so far as I could ascertain. It seems to have developed a life of its own. Certainly neither Miss D nor Miss R gave any evidence of that, and yet Miss D is R's reception class teacher. Before that R was in nursery. There cannot have been that many people who might have heard it and who might have given evidence about it, but there was none whatsoever.

81. The mother denies it. She says that she did not call her daughter stupid, ugly and fat. She says that she does call her daughter "mama", as a term of endearment, which seemed to attract adverse comment from the school. She also spoke in normal terms about her daughter as being similar to her own mother, which is why she uses this term of endearment of "mama", but she would never think of calling her daughter stupid, ugly and fat.
82. In considering this allegation I also take into account that mother was regarded by the school as friendly. Detective Constable Snow's description of the parents' behaviour when he attended their home as "good as gold". The contact notes suggest a wholly loving and firm relationship between the parents and the children. I prefer the mother's evidence and I am not satisfied that she has ever used the words complained of or similar.
83. I have now dealt with each and every one of the allegations and I have found none of them proven, apart from father taking hold of R's ear and apart from the use of the phrase "you're not my friend". I have to stress again that it is a great pity, a tragedy in many ways, that it has taken over four months for a hearing to determine the outcome of these allegations. As I have said before, and I will repeat, a thorough investigation by a skilled and careful investigator would have elicited many of the inconsistencies and difficulties in the way in which the Local Authority presented its case. It is not really until the very last minute that there seems to be any such assessment. That simply cannot do, can it? These children have been removed from their parents' care now for four months. Greater efforts have to be made when it comes to dealing with these allegations, the recording of them and in the investigating of them and of the presentation of evidence.
84. Dr. Davie was clearly a charming, competent professional, but he really should have spoken to mother at the child protection medical to ascertain from her what explanation, if any, she had for the marks found on B. He said that he did not do so because he was conscious that the children had only recently been removed from the parents, within about four days, and that the children would find it upsetting and distressing to see their mother again. Be that as it may, it is, as I understand it, the usual practice for this to take place as distressing as it may be for the children to see their mother briefly and then to be taken away again. There is no difference to the contact which took place shortly thereafter. It is just possible, just possible, that if the mother had been given that opportunity by the examining doctor to give explanation for these injuries that that might have (and I think it was Mr. Richards who suggested this in closing) led to a very different path for these children and these proceedings. The Local Authority really should have made a full and thorough analysis of all the evidence, which includes that of mother and father, before they continued with these allegations.
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