England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: E (A CHILD)

		The Law Courts Quayside Newcastle-upon-Tyne NE1 3LA
		25th February 2015

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

1. At 18.11 hours on Monday, 20^th June 2014 P, a girl born on 28^th October 1998 and now aged 16 years 4 months, was admitted by ambulance to the emergency department of Hospital A. She was found to have six distinct areas of injury: the first were three red linear marks on the right upper thigh, 1cm by 6cm long; second were two linear marks on the outer aspect of the left forearm, 4cm by 1cm wide; the third was an oblique red mark across the left upper outer thigh, 10cm by 1cm; the fourth was a bruised area, circular in shape, 3cm in diameter with a contusion over the left shoulder tip; the fifth was a linear bruise to the left upper outer arm approximately 4cm by 1cm and the final were a number of red marks across the lower thoracic area, that is to say the back, approximately 3cm by 1cm to the left and right of the midline.
2. To the ambulance men who had collected her from her home shortly after 1717 hours, she said that she had been beaten with an iron by her brother, an account repeated to the medical staff at hospital, to the social worker in the case at the time, in a statement she made to this court in October and confirmed in her oral evidence to me given on Monday, 23^rd February, finally again in a letter that she wrote to me yesterday, 24^th February.
3. Sunderland City Council commenced care proceedings on 23^rd June and now invites me to make findings as to the cause of P's injuries and to make a care order in its favour so as to ensure that she is protected from further harm. That is a plan which is supported by P's guardian, Sandra Moffatt, but opposed by her parents, M and F, who seek a return of their daughter to their care. The other party to the litigation is P's brother, R, who was born in 1995 and so is in his 20^th year. He is a party to the proceedings as an intervener. He denies having struck or beaten his sister in any way at all and is supported in his denial by P's mother who says that P, in fact, fainted as a consequence of the extreme heat when she returned from school on 20^th June, something that she witnessed. Both she and her son surmise that P's injuries were caused when she fell to the ground.
4. In these proceedings the Local Authority have been represented by Mr Donnelly, the mother by Miss Woolrich, both of counsel. The father has represented himself. P is represented through her children's guardian by Mr Rowlands and the intervener was not represented. I refused his application to adjourn this hearing at its outset on the grounds that there was no confidence that an adjournment would result in his desired objective of obtaining public funding for representation and, further, because there were powerful reasons to do with P's welfare not to delay this case further.
5. I gave a judgment then which I will not repeat here but, in essence, was satisfied that he having been joined as a party to the litigation on 28^th July, having been assisted by a very experienced solicitor over a significant period of time to provide information about his financial circumstances in order for the Legal Aid Authority to consider an application to no avail, despite adjournments being given to him at various times in order to progress this. Whilst in part that difficulty may have been attributable to the casual nature of his employment, a significant part, it seemed to the court, was his own failure to progress matters himself, exemplified by his instructing a further solicitor as late as 19^th February almost seven months after he had been joined to the proceedings.
6. That said, he has been an active participant in the litigation at various times. He filed a statement and with his mother requested that P give evidence which resulted in another hearing. Despite opposition, I think from the Local Authority and the guardian, Judge Moir who heard the application agreed that P should give evidence on 28^th November but her ruling that there should be no direct questions from litigants in person but rather written questions to be prepared in advance was not taken up. In the event neither the father nor the brother had any questions for her, albeit she was questioned on behalf of the mother and there was a very considerable coincidence of interest, so I was satisfied in the event that the ground was all covered.
7. This judgment falls into two parts. I have to decide how P came by her injuries and other issues that arise from that event and then, depending on those findings, I have to decide whether to make a care order whereby P remains living in foster care rather than returning to the care of her parents as they seek.
8. The family is Nigerian. The mother came to the United Kingdom in about 2005 and completed her training to be a nurse here and has worked as a nurse ever since, presently in the care sector. She and her husband have five children. Two older boys live in the United Kingdom, R and S. They followed their mother to England, S in about 2010 and R and P in November 2013 and although S went to live independently a while ago, R and P lived with their mother up until the events I am going to describe in the Pennywell area of Sunderland.
9. This is not a family that had come to the attention of the Local Authority previously. Indeed, beyond the circumstances of P's reception into care, even now little is known about them because, surprisingly, they declined to engage with the Local Authority, refusing to be assessed by it even when the father joined the family from Nigeria in late October 2014. Even more surprisingly, they found the terms on which contact with their daughter was offered to them, namely supervised by the Local Authority, to be conducted in English so that the Local Authority could understand what was being said and not to take place in the family home, they found those terms so unacceptable that they have not taken up direct contact at all, albeit they have continued to keep in touch with P by telephone apparently on a regular basis. Apart from two occasions relatively early on when P was unsettled in placement and ran away, ran home in fact, she has not had face-to-face contact with her mother since June and she has had, so far as I can tell, none with her father since he came to this country.
10. P said that on 20^th June she came home from school. It was very hot, so in the house, her mother and brother being out shopping, she took off her blazer, her skirt, her bra and her shoes and sat down to watch a cartoon or some other form of animated film on the television. She said her mother and brother came in with shopping and her brother promptly said that he wanted to watch the football: the 2014 World Cup was then underway. Her reasoning with him, to the effect that the film only had five minutes left to run and that the match that he wanted to see had not yet begun, was all to no avail and she said an argument broke out and that her brother became angry and he hit her on the neck with a slap and then followed that up with blows from the leg of a table which was in a state of disassembly, repeated blows.
11. She said that she hoped that her mother would intervene but she did not so she pretended to faint – something that she later explained was a ruse that she had learned from talking to a friend at school that had apparently been used in a film - and when she did not appear to wake up, she said her brother became increasingly struck by panic and, having kicked her and tried to shake her, he forced her to drink some water which made her vomit. She said that in doing what she did, she was trying to scare him so that he would not hit her again but meanwhile an ambulance was called by her mother and she was taken to the ambulance, revealing her tactic to the ambulance men.
12. The mother has given rather more information by way of oral evidence than she did in her statement but, in essence, said that she was in the house when P came home from school, reading and relaxing before working an evening shift, as was her son, and she recalled P complaining about the heat, taking some of her clothes off and then simply fainting. She said she told R to get a bucket of water and, using her nursing experience, she sought to use that as a means of cooling her down but when her daughter did not respond, she called the ambulance. She insisted R had done nothing to P and she could not explain why her daughter had said what she had said about being hit. Her son's written account was of being outside the room when he heard his mother call and he rushed in the room to find his sister lying on the floor on top of the broken table.
13. So those were, at the outset of the hearing, the competing accounts in outline to be considered. The evidence the court received included, in addition to the oral evidence from each of the three parties: mother, father, brother as well as P, the written evidence of the ambulance men, the evidence from the hospital records, the evidence from the treating consultant, the police disclosure and the statement of the social worker. None of that written evidence was challenged. I also heard, largely in relation to welfare issues, from Mrs Moffatt.
14. David Worrell is a rapid response paramedic and he was the first to arrive at the scene to find P lying on the floor in the recovery position. He noted that she was covered in vomit and that there was water all over. He was given an account of P being too hot from the mother and the brother so that they had thrown water on to her to cool her down and she had collapsed. He was very uneasy about what he had seen, so he took the decision to contact ambulance control and the police to ask them to attend, not least because his own examination of P revealed to him that she was not unconscious at all. Nevertheless, he took the decision not to take any further action until colleagues arrived.
15. The paramedics described how they met Mr Worrell with his obvious unease and likewise found P unresponsive on the floor, soaking wet. They too quickly realised that she was not unconscious. Again, the wetness was explained by her being too hot. The ambulance men took the decision to take the unresponsive P to the ambulance where they reassured her and eventually she opened her eyes on being told that she was safe. Mr Stacey said this:

"Once her eyes were open I could see she had been crying as her eyes were red. She began crying and salivating on to the ambulance floor. She looked around the ambulance and appeared frightened. I asked what had happened and she told me she was beaten with an iron all over her body by her brother. I then asked had anything else taken place and she replied 'no'. She did say that this had happened before."

16. The hospital records note those accounts and disclosures that P made on arrival at hospital. They include the fact that her brother hit her, that he hit her when he got angry, that he previously hit her with a stick and wire, he had also hit her when they lived in Nigeria and this happened on a daily basis. He, however, said he had never touched her and the staff recorded that she had told them that she pretended to be unconscious after a discussion with a friend where she had asked the friend hypothetically what she would do if her brother was beating her up and her friend told her she had seen it in a movie, pretending to be unconscious usually brought about a cessation of the violence, all that recorded by the staff nurse who also noted that her brother was in the waiting room and when she was asked if she wanted him in the room, she replied no.
17. Drs Mellon and Devlin took similar histories and made the findings that I have already summarised. Their opinion was very clear:

"P presents as a girl who alleges an assault with a metal linear object described as an iron stick. She has evidence of injuries consistent of having been inflicted by such an object. Injuries 1, 2, 3, 5 and 6 are all linear in nature. The injuries were red and tender to the touch. There was a fresh looking bruise and contusion over the left shoulder tip which P specifically said had been caused during the assault. We believe that the injuries seen are consistent with an assault with an object such as a rod or stick. They are all fairly consistent. They include injuries that imply a defensive position posture to try and protect from assault over the arm in keeping with a repeated assault. It is impossible to accurately date the bruises. They did show signs of acute inflammation in that they were red and tender. We believe that these are compatible with the allegation of assault as described by P."

18. Obvious child protection concerns arose. The mother declined to agree to P being accommodated under section 20 of the Children Act 1989 so police powers of protection were exercised. R was arrested and interviewed under caution in the early hours of 21^st June. He denied any assault. His mother gave the police two statements, likewise denying that there had been any assault and alleging that her daughter had fainted. P maintained her account and on 2^nd September made a disclosure of a further assault with an iron bar over the remote control for the television.
19. I have to make findings of fact as to what occurred in the light of the dispute that exists. The law in relation to this is to be found in a number of authorities beginning with Re H and R [1996] 1 FLR 80, including Re U (Serious injury: Standard of Proof) [2004] 2 FLR 263 and Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 It is not necessary for me to set out the law at any great length. There is no need for me to do so. I need set out only so much as is necessary to indicate the standards by which I have to assess the evidence and, equally importantly, as will enable the family members to understand the legal principles by which they are being judged. I am entitled to and must have regard to all the evidence before me when coming to conclusions on matters of fact: Re U. The standard of proof was classically defined by Lord Nicholls in Re H and R as:

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not."

20. More recently that statement was reviewed in Re B and affirmed, Lord Hoffmann put it in this way:

"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who carries the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

21. The final matter of law that I have referred to at this stage arises from the well known criminal case of R v Lucas [1981] QB 720. I am required to have regard to any untruths that are told and remind myself that people lie for all sorts of reasons. It may be to conceal some embarrassing fact that they wish not to do so or in the misguided belief that by lying they are making the situation better for themselves. The important thing to recall though is that merely because a person is found to have lied, it does not mean that that person is necessarily guilty of the matter that is alleged against them.
22. The findings that the court has to make turn on the credibility of P on the one hand and her mother and brother on the other. Each has broadly maintained their accounts and I take very seriously the mother's fair point made to me from the witness box that the repetition of a lie, even over a period of time and to different people and ultimately the court, does not by itself prove the truth of what remains a lie. That is, if I may say so, self evident but it is a point worth recalling. So the decision turns on my assessment of the crucial witnesses whose evidence is in contention and that, in turn, is likely to be assisted one way or another by the independent evidence which is not in dispute.
23. P's evidence, given in the circumstances that I have described, was received over the video link and it was, for her, mercifully short. Indeed it may have been too short because I was told that she had felt that she had not said all that she wanted to say and so she wrote me a letter explaining her position further to which I will come. She presented as an attractive, bright, young person. She began by telling me that her brother is, in her words, pretty nice, he was always around for her when she was a kid, he defended her when she was bullied at school and she was extremely worried about the consequences for him if the findings the Local Authority seek are made because she has learned that it may be an impediment to him having children in his care in due course.
24. She said though that he had beaten her and the fact that he had beaten her did not really mean a thing. Maybe he did it, she said, because he was angry, not in a good mood that day but, having said that, she confirmed he hit her several times. She described in detail the table leg. She confirmed he had hit her before. She said that other people had hit her when she was in Nigeria and she added that her brother himself had been beaten. Indeed, she said it was common for children to be hit in Nigeria and she only learned that it was not normal in the United Kingdom when she went into foster care.
25. It was suggested to her that she had made up a story because her "faint" had gone further than she had intended it to go in terms of the consequences. Although she wanted to teach him a serious lesson, she said, and stop the beating she accepted she had not anticipated being in foster care for many months but nevertheless insisted that she had not made up a story at all, it was true. She denied that she had been injured in any other way. Specifically she was asked about the possibility of her having been bullied at school as the mother had speculated in her statement and she said she had not thereby been injured.
26. I found P to be refreshingly straightforward, perhaps as I indicated when her letter appeared, showing maturity beyond her chronological age and there was a balance about her evidence as I have described which appeared to be at odds with a lie that had got out of hand, still less a wholly malicious complaint. In short, she appeared to be a credible witness and was not undermined, in the court's judgment, under cross-examination.
27. Did the evidence of the mother and R cause the court to question her veracity? There was, I emphasise, no burden on either of them to prove anything but they are parties and witnesses in the case and, as Baker J reminded us in Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam), endorsed very recently by the President, I must take into account all the evidence in the case and consider each piece of it in the context of all the other evidence. The evidence of the mother and R is therefore of critical importance and the critical issue is whether they are credible and reliable.
28. I have to say I did not find the mother to be a satisfactory witness in many ways. Her husband says that she is depressed, albeit there was no medical evidence before the court, and I take note of it albeit I am not persuaded that it affected the manner in which she gave her evidence. The relative ease with which she answered Miss Woolrich's questions, her own counsel, gave way to an apparently obtuse unwillingness to answer the questions, particularly of Mr Donnelly, resorting as she did to long silences, the flicking over of the pages in the bundle and then responding by way of a question to Mr Donnelly, asking him if, for example, he had been there, when he put assertions of fact in the form of questions.
29. To turn to specific unsatisfactory features of her evidence, having told me yesterday that there had been an argument between P and her brother about the television programme, she dismissed the lack of any reference to it in her witness statement as a typographical error. For the record, she failed to mention that argument to the police as well. Again, having told me yesterday that P had injured herself on the remnants of the broken table, its absence from her statement was similarly dismissed as a typographical error. Likewise, it was also missing from her police statement where she simply said that the injuries happened when she fainted and fell. Asked to explain what she thought about the injuries, she said that she had not seen them so she did not know how they were sustained which is why she had said in her statement that she had not known their cause notwithstanding the fact that she had gone on in that same statement to speculate that the injuries had been caused by bullying.
30. I was unimpressed by both her evidence and the explanation for the omissions in her statement. She gave this court no impression of trying to help the enquiry. Indeed, I thought the reverse was the case. It went beyond that. The source is not known but it would seem likely to be the male officer who visited her at work on the evening of 20^th June because, between about 03.00 and 03.30 hrs, it was put to her son by a detective constable that she, the mother, had told the police that she had witnessed the argument and the fighting and that she had tried to separate boy and girl. Her response on being told that was that she could not explain how the police could have said that because it was not something that she had ever said.
31. Having told me that she had brought P up to be truthful, to be a good girl who would not lie, especially to a judge, not only had P repeated the allegation, even now, eight months on, she has no theory at all as to why she would do this. Indeed, pressed as to P's consistency with so many people, she said to Mr Rowlands, "If you want to cook up lies, you can go to any length". That is, of course, true but she was describing her then 15-year-old daughter, good daughter she said, yet appeared unable even to speculate as to why she might behave in that way, the same girl who had not long before told the court in her presence that she very much wants to go home.
32. I find that she fenced and was evasive about the injuries themselves. If she had any concern about the injuries she did not show it, instead wanting to stress that she had not seen them so could not comment on their seriousness. It was a strikingly unusual stance to adopt about her own daughter. Her evidence as to why she declined to take up contact at all, however onerous she found the conditions attached by the Local Authority, particularly with the passage of time, showed a worrying lack of empathy for P and her welfare and her explanation about not really understanding the role of social workers was undermined by her acceptance that she dealt with them regularly in the course of her work as a nurse, an explanation that shifted, when that was pointed out, to a complaint that it was difficult to work with them over her own affairs.
33. The case was adjourned after the mother's evidence on Monday night and on Tuesday morning I received P's letter. It is a strikingly mature and balanced document. It is also a very moving one. Indeed, I was so struck by it that I felt that the family should read it before the case proceeded further. This has been a case where, as Mr Rowlands later said, a very simple and obvious solution exists if only the family could see it. I adjourned and they did. I was told that having read it, it brought about no change of heart on the part of the family notwithstanding the fact that they had read passages such as this:

"At the beginning of this process I never thought it was right to tell the truth but on hearing that it was going to be okay and also that the judge is a nice person, I did tell the truth even at the expense of hurting my family's feeling. I did this because I believe in honesty and am writing this note because I believe in forgiveness. I might be just 16 years but I know what it means to take away someone's kids and because of my present experience in fostering care, I appeal to you to temper justice with mercy."

Later in the same document:

"I beg you once more to help my brother. I never wished for all of this to happen and with that I am so, so, so sorry."

34. The next relevant witness on this issue was R. He said over and over again that P was lying, that the fact that she was, he said, came as an extreme surprise to him but she is very stubborn and whatever she says, she will maintain it to the end, "She wants to win every argument". He said that he liked her as his sister but he was nevertheless disappointed in her. He had never beaten her then or before. He could only think that she had lied to inflict pain, inferentially, on him and his parents. He confirmed he knew the importance of telling the truth. Having not read the police interview, I asked him to read it over the short adjournment. He said it was largely correct but such errors as there were were attributable to his shock at being arrested, the fact it was the middle of the night and he was hungry. He would not accept that his memory might have been better then than it is now by reason of those factors.
35. Mr Donnelly explored what was wrong with the interview and there were a number of important matters. First of all, the suggestion that P had just come in from school and collapsed was plainly wrong: she had come home at between 03.00 and 03.15 hrs and the collapse occurred round about 17.00 hrs, so there is a two hour period which is, frankly, missing in the chronology. The denial that she had been watching the television, to the police, he said was wrong but she had been watching it much earlier than was being suggested to him by the police. Shown the iron bar seized by the police, he denied having ever seen it before. He said he could not properly identify it because it was in an exhibit bag. In any event, he said there were several glass tables in the house and he was not sure which one it was from. He said, "It didn't look like it was ours", a position which he quickly changed when he was asked about the chance of there being DNA on it.
36. What the police described as him demonstrating a slap to the face in a discussion about what kind of chastisement there might have been, he said it was actually more like a gentle scratch which he demonstrated from the witness box. He denied that in saying that his sister would have defended herself and left the scene, he denied that that was a representation of something that she had done before. His overall view was that for whatever reason, maybe something that somebody had said at school, it had been P's choice to collapse and go off and live in foster care and, as he put it, have a free life. I will come to my assessment of him in a moment.
37. Although he was in Nigeria when the incident occurred, I heard from P's father. He told me that he was a 64-year-old farmer, married to his wife since 1989, a born again Christian who has lived his life with his wife and imbued the same values in his children according to a strict biblical code. He had made no statement. His evidence was very clear. He believes that whilst his daughter may not be given to telling lies she is, "capable of making phony situations, making mountains out of anthills". He said he could speak absolutely for the truthfulness of his wife, "She has never lied to me one day. There is no chance she is lying".
38. He was not prepared to be so absolute about his son as he was about his wife. Nevertheless, as he was pressed, it was clear that he did not believe his daughter's account and he sought to explain why not: the injuries could have occurred in what is a cluttered room in any event with parts of the table lying on the floor when she fainted, they could have occurred in the form of rough play with her brother, something that he had tried to stop when they had been in Africa, and he made the point that, although he respected the doctor's opinion, the doctor had not been there when they were inflicted.
39. Of the injuries, he said that they were inconsistent with her being assaulted. So, for example, those to her back were at odds with common sense which told him that you do not turn your back if you want to defend yourself: rather, you face your opponent and try to take the weapon from them. He said that the faint did not occur in the context of an argument, his wife had shouted at the pair of them to stop and they had, that the faint was separate and apart and later from that argument and he said that P is so intelligent that she will maintain a lie to protect her face to the end in order to prove a point, very much as his son had said.
40. Before considering which evidence I prefer, I want to say a word about cultural issues. This family come from a remote part of Nigeria. English is not their first language, albeit they have a good command of it. They are, as I have said, born again Christians and they seek to live their lives by a strong religious code. Their cultural background is in many ways very different to that which exists in the north east of England. They do things in Nigeria which are acceptable there but not here.
41. Specifically, physical chastisement of children is normal. The father's evidence was very clear that for what he called an accountable child, probably from the age of 10 onwards, whipping a child on the legs with African broom or with a cane as part of a process of punishment and learning is normal. It is not so long ago, certainly within the lives of some of the lawyers here, that such was acceptable in this country and so the court has no difficulty at all in accepting that but, given the way that this case has proceeded, its relevance is limited because it is not said either by the mother or R that this is what happened to P. Rather, they say she was not struck at all but I do accept that P and R are likely to have a more benign view of physical chastisement on a child than most British people would have in 2015. All that said, I agree with Mr Donnelly that this is not a case about chastisement in a different culture but a case about significant harm in the care of a mother.
42. I accept that, further, there is a strict hierarchical structure within families whereby the father of the house, whether he is there or not, has to be consulted on important decisions. That has had significant practical consequences given parental separation here and I accept that it may have played some part in the refusal to consent to P being accommodated, as well as the initial engagement with the Local Authority and possibly even going to court in the early stages which I have no doubt is both a frightening and possibly shameful thing for the mother, in particular, to have experienced. So I have all of these factors very much in mind in making the decisions that I have to and I will return to this in due course.
43. So which evidence do I prefer? Unhesitatingly, that of P. There is no more explanation for her lying now than there was in June last year. The lengths to which she went in feigning a faint point to the seriousness of the assault that she suffered. The instincts of the ambulance man first on the scene were, in my judgment, entirely correct. The injuries are entirely consistent with her account. They are all about the same age and fresh. They have the characteristics of being hit with an object such as a table leg in their linear appearance. They affect the outer aspects of both thighs, the outer aspects of the left arm and the back. They are not consistent with a simple collapse to the floor. They are, as Dr Mellon said but the mother, father and R denied, characteristic of defensive injuries. It appeared to be beyond the father and R's comprehension that P would not fight back. She is described elsewhere as an underweight, 15-year-old girl of slight build pitched against a 19-year-old male who appeared to be over six feet high and who was armed and one might have thought that that was a sufficient reason to adopt a defensive position rather than try and fight back.
44. There is simply no other explanation for these injuries, just as there is no reason put before the court as to why, as R said, P would want to put herself in care and be separated from her family. I reject her father's submission that because P has told him that she has been refused permission to go to church and to foster care, to the foster carer has said that she does not want to go, that she is demonstrably untruthful or unreliable. There could be many reasons for two different accounts at different times and there has been no opportunity to investigate the circumstances in which those accounts were given in any event. I also reject R's submission that because she identified her shoulder to the ambulance man, she was thereby not complaining of being beaten by her brother. The medical evidence, in my judgment, is clear. There is no alternative, credible explanation.
45. The evidence of the mother and R, far from causing me to question her veracity, confirms that they were neither credible nor reliable. I found R to be evasive, argumentative and unwilling to confront the truth staring us all in the face. I could say more about it but I am satisfied, as it happens, that in her letter P has described her brother to a tee:

"My brother is not a type of person that says sorry so easily. He is a type of person that is so proud and full of himself."

It seemed to me that that was a very accurate description of a rather arrogant and self-centred young man. I am quite satisfied that he is an intelligent and articulate man. Having seen him give his evidence and be cross-examined, I am quite sure that he was generally intent on ensuring that he gave answers which supported and/or did not undermine his case rather than trying to tell the truth, the whole truth and nothing but the truth at all times. Accordingly, I did not find him credible and reliable.

46. I am satisfied that R lost his temper with his sister over an argument about the television. He wanted to watch the five o'clock football match and would not let her finish the programme that she had been watching for some time since she came in from school and, not for the first time, he responded with violence. I am satisfied he beat her with a table leg and caused the injuries that I have noted and, furthermore, I am satisfied that P's mother knew that this is what had happened for the very reason that she saw it. I pay due regard to what her husband has said about his belief in her veracity but I do not believe that she intervened but, in seeking to deflect attention at the outset, suggested that very thing to the police only to back away from it, as she did, when the seriousness of the incident became known.
47. P's shock and distress at her mother not intervening was marked and entirely understood. Although the mother told me that both R and P are her children and that she loves them equally, by her conduct she has demonstrated that, in fact, she has put R's interests before her daughter. She has protected him when she knows the truth of what he has done. She has almost inexplicably abandoned – and it is not too strong a word – her daughter by denying her contact, putting up as obstacles the Local Authority's perfectly reasonable conditions. Most parents would walk over hot coals to see their children, however objectionable the terms, because to do so would be to prioritise the child and to meet the child's needs to see her family. Furthermore, she is not ignorant of the role of social workers. Her professional training and experience over a period of almost ten years contradicts her claim. She may very well be ashamed at the misfortune that has befallen her and her family but she simply has persistently refused to engage in this process as I will explain.
48. So looking at the threshold document prepared by the Local Authority in the bundle at A16, I am satisfied it is made out as pleaded. That refers in paragraph 4(a) to the injuries themselves, in paragraph (b) to R being the cause of the injuries, being struck by an iron rod and that it was causing her pain, in subparagraph (e) that the mother has been complicit in that physical abuse perpetrated by her son in that she knew or ought to have known it was happening and had failed to tell anyone so as to protect her own interests. She misled professionals and, indeed, now the court about her son having assaulted her daughter and instead alleged that P is lying about the abuse she has suffered and following P's admission to hospital and subsequently care has, as I have said, abandoned her daughter preferring to protect her son.
49. I want to say this at this stage: it is still not too late for this family, mother and R in particular, to accept the findings of this court, to make a suitable admission and to work with the Local Authority to reduce the risk both to P and any other children with whom they may be concerned – a very particular concern of P as she said in her letter to me.
50. Having made these findings, I am satisfied that the gateway to the making of a public law order is opened. Care proceedings involve two principal questions: first, are the threshold criteria for making a care order under section 31 of the Children Act satisfied; secondly, if so, what order should the court make? Section 31(2) provides that:

"A court may only make a care order… if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him…"

That is the relevant part of section 31. In this case it is not disputed that the threshold criteria are satisfied. The findings I have just made in respect of what happened to P lead inexorably to the conclusion that on the relevant date, namely the date on which these proceedings started, given the serious assault on her by her brother in the presence of her mother there was a likelihood that P would suffer harm were she to be placed back in family care. Accordingly, this part of the judgment now concentrates on the second question: what order should I make?

51. In answering that question, I apply well established legal principles. I bear in mind the rights of the parents and P under Article 8 of the European Convention to respect for family and private life. Under section 1 of the Children Act, P's welfare is my paramount consideration in these proceedings. Under section 1(2), any delay in making decisions concerning her future is likely to prejudice her welfare and section 1(3) provides a checklist of factors to be taken into account when determining where her welfare lies and what order should be made. In this case the particularly important elements are P's needs, the capacity of the family to meet those needs, the risk of harm to her and her background.
52. These provisions have been subjected to analysis in a number of important decisions by higher courts, particularly by the Supreme Court in 2013 in Re B (A Child) [2013] UKSC 33 and a series of decisions of the Court of Appeal culminating in Re B-S (Children) [2013] EWCA Civ 1146 and Re W (A Child) [2013] EWCA Civ 1227 [?] and I have those decisions firmly in mind at all points during this hearing. In Re B the Supreme Court, having reminded itself of the European jurisprudence, reiterated that the test for severing a relationship between parent and child is very strict so that, in the words of Baroness Hale, it should occur:

"…only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions."

It goes without saying that everything necessary should be done to preserve personal relations and keep a family together unless the maintenance of family ties would harm the child's health and development.

53. This interpretation was reiterated by the President in B-S and the stringency of the test in the statutory language was emphasised. This is not a case where the court is being asked to consider and approve a care plan for adoption, no such order is being sought, but the draconian nature of the effect of separation under a care order, handing parental responsibility to the Local Authority, is such that I nevertheless remind myself that what is required is proper evidence from the Local Authority and from the guardian, evidence which addresses all the options realistically possible and contains an analysis of the arguments for and against each. The further matter identified by the President was an adequately reasoned judgment and in that context he approved what Lord Justice McFarlane said in Re G (A Child) [2013] EWCA Civ 965:

"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach… is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

54. He continued, Lord Justice McFarlane, to address the case where the option did not include placement for adoption by reference to the welfare checklist to look specifically at changes in circumstances, harm that the child was at risk of suffering or had suffered and the capability of the parents and he said this:

"Under section 1(3)(c), consideration of the effect of any change in the child's circumstances must involve considering, in the present case, not just the prospect of returning to the mother's care but must also include consideration of the effects, positive and negative, of placement in long term foster care. Under section 1(3)(e), consideration of the risk of harm obviously will include the potential for future harm from parental care, but must also require evaluation of any risk of harm from the alternative option provided by 'any other person', namely the local authority as corporate parent, for example emotional harm as a result of long term separation of a child from his parent. Under section 1(3)(f), when considering how capable each of his parents, and any other person are to meet the child's needs, again I would suggest that, alongside consideration of the parent's capacity, there is a need to look at the strengths and detriments in the local authority's capacity to meet his needs through long term fostering."

55. The options available to this court are limited by reason, it seems to me, of three factors: first and foremost is P's age, she is now 16; second, the limited number of potential carers for her, her parents or foster care are the only realistic alternatives and; third, the behaviour of the parents since the shocking incident in June. At P's age, she simply cannot be adopted. There are no extended family members or friends who could be her special guardians or even care for her under a child arrangements order. Not only has the mother declined to go to contact, she did not attend any hearing before 29^th August. More concerning in this context has been the complete and utter refusal to engage in the process of assessment.
56. If a local authority has the concern sufficient to bring care proceedings, a concern fully justified by the findings I have just made, it naturally wishes to assess the parents in order to determine whether, despite the concerns arising from the precipitating event, there are nevertheless protective factors which can be harnessed to a plan to enable a return to home whereby a child can be kept safe. Thus, when the initial social worker filed her final statement on 11^th September, she was left with no alternative. Rightly noting the cultural aspects of this case, the Local Authority found itself faced, as is the court, with a complete denial of the behaviour in question together with an equally complete lack of engagement with professionals. Were the violence to be accepted as having happened, a programme of education and instruction can be considered in order to mitigate the risk going forwards, yet when it was pointed out to the mother that P could only come home if R moved out, that was something the mother could not countenance as it would not be equal treatment to her children, seemingly denying that there had been harm and denying that measures to safeguard P were required.
57. In the event, there has been much delay since September and a further final statement was delivered on 2^nd February and still the parents have not engaged despite the arrival of the father, the head of the household, in late October and so, sadly and almost inexplicably, there is no alternative available. The guardian likewise made repeated attempts to engage with the parents to no avail. It really is a shockingly sad state of affairs. I agree with all that Mr Donnelly and Mr Rowlands said to me in conclusion. We have in P an impressive, mature for her years, girl. Her evidence and letter demonstrated that she has qualities of empathy – that is to say seeing it from the other person's point of view – of sympathy and of forgiveness as well as an understanding of what needs to be done to put things right. She has all those qualities that her family, startlingly, lack.
58. It is worse than that because in blaming her, in pointing the finger at her, in demanding that she should come to court to give her evidence in what I am sure was a misguided hope that she would back down, the physical abuse that I found she suffered has now been compounded by emotional abuse of a most distressing kind. The mother pleads with me for P to come home. The father told me that the incident would not have happened if he had been there, he is at home now so he would keep P safe, yet on investigation he does not accept that there was any incident such as the court has found, he cannot bring himself even to contemplate that there could have been such an occurrence and absent that, his offer of protection is, I am afraid, meaningless quite apart from not beginning to address the emotional harm to which I have referred. A secondary consideration was his very confused evidence as to his own future intentions maybe to stay, maybe to go to Germany or America or even back to Nigeria.
59. For the reasons I have given, this very experienced guardian is faced with exactly the same difficulty as the Local Authority. Even an attempt to involve P in the family's church failed to bring about a positive outcome, yet despite the difficulties that she has had in settling into foster care, the guardian's own enquiries revealed that P's placement since September has, in fact, been a settled one and whilst she told me, as she has told the guardian, that she would like to go home, she had also told the guardian and the court that she was in agreement with the plan to stay. She very much, of course, wants contact. The placement is to be a permanent one in the event of an order being made, so it will not involve a further move. It is not a cultural match but the single female foster carer is alive to the issues and the guardian is persuaded that she will do her best to meet those needs as best she can.
60. The first option available to the court of returning home, and always the preferred option I should stress, in my judgment is not an option that would keep P safe. She suffered serious harm in the form of a sustained beating with a weapon in front of her own mother who took no steps to protect her. It is really hard to comprehend how looking to one's own mother for protection in such circumstances and finding it not forthcoming, just what effect that has on a 15-year-old girl. Her abusive brother is in a state of denial and still living in the house. There is no acknowledgement of that fact. Not only is she blamed for lying, there is every reason to fear that the abuse will be repeated if she returns to that environment as the premeditated faint that she used as a ruse demonstrates to the court's mind that this was violence that had happened before.
61. She is, therefore, at risk of physical and emotional harm. That has to be balanced with the emotional harm of continued separation from her family. With the increasing passage of time and the persistent failure of her mother to build bridges, that is immeasurable harm but it requires the active participation of the family, which has been lacking to date, to be remedied and that has to be weighed against the harm of being physically abused in a serious way in the face of her mother who then compounds that harm by denying it and subjecting her to the emotional harm to which I have referred. When one balances those factors, the balance falls decisively away from placement at the home as being an option.
62. The second option is, of course, foster care. She will be physically safe there, she will not suffer overt emotional harm, she will remain part of her family and if her parents co-operate contact can safely be arranged. This is, of course, a welfare decision, so section 1 of the welfare checklist applies. P's wishes and feelings are not equivocal and at her age they are often decisive but even here they have to be balanced with safety and I am reassured by the guardian that she is at least accepting of her placement and is settled within it. She is very clear about her request for contact and I very much hope that following this judgment there will be a change of heart on the part of the family who will work with the Local Authority to bring that about.
63. Given her age and her sex, she has, of course, the usual needs of an adolescent young woman and in an ideal world those would best be met by her mother. She has, of course, a female foster carer who will be able to assist to a degree but I accept that her cultural needs are also very clear and I am less than confident that they are being met and I will revert to this but observe at this stage it is but one factor and cannot on its own be decisive.
64. P has suffered significant harm and remains at risk of further significant harm of both a physical and emotional nature for the reasons which I have raised and those very reasons also cause the question to be asked as to the mother's capacity to meet P's needs, physical and emotional, albeit her disengagement from the process as well as her denials has prevented any kind of detailed assessment of that capacity from taking place.
65. The fact that her father is now in the home is, of course, a change in circumstances and it was one which might have been hoped would have brought about a different outcome but for the reasons I have given, I am afraid his presence provides very little reassurance and, as I have already observed, the range of options available to the court are very limited.
66. I have, sadly, reached the conclusion that the only safe option that meets P's needs is a care order so that she can be kept safe from harm. I am very concerned that she could not possibly be kept safe in her home by virtue not just of what happened to her in June but by virtue of the response of her family since that date. I do have outstanding concerns. First, despite their non-engagement, the need to work with P's parents to reintroduce direct contact that is safe for P is an imperative. As Miss Woolrich said in her very helpful written submissions, there is a real need here to build bridges.
67. That is, of course, a process that requires co-operation and the parents have heard for themselves that P would like to see them, certainly her mother, immediately if that was possible, and it was for that reason that I asked that the social worker attend this afternoon, and I am grateful to her for doing so, so that any immediate reaction to this can be discussed with her and hopefully a meeting arranged to discuss how contact can come about. Ideally, the parents will reflect on this judgment and accept the judgment of the court. In that event, it would enable appropriate work to be done to ensure that risk is minimised and perhaps to lead to P returning home and I would urge the Local Authority to keep this door open widely and firmly so that that opportunity, if it arises, can be taken up.
68. Secondly, if that work is not done, P's current sense of rejection will be reinforced. Each parent, on being pressed, indicates that they would now agree to the terms mentioned by the Local Authority. Whilst I have less than complete confidence in their responses, I urge them to put their differences aside and to work with the Local Authority, however onerous or irksome they find that to be, for their daughter's sake.
69. Third, I would urge the Local Authority to take positive steps to promote P's cultural needs. Religion has been mentioned. Her willingness to go to church or otherwise may require some further explanation. There are, I know, many Nigerian churches on Tyneside and the benefits of P to have the opportunity to engage with her cultural community in that sort of setting cannot be over emphasised. There is a positive duty to promote this and it needs to be addressed. That will in turn feed into the maintenance of her traditions, cultural traditions, and I would like to think it would assist with the question of diet which appears to be reverting to that of a western diet and not really to be encouraged. So I urge the Local Authority in relation to this to offer positive support now and on a continuing basis to ensure that those needs are met.
70. Fourthly, I want to register my extreme concern at the level of force which was used when the police recovered P from her home when she ran away from foster care in September. She was handcuffed, under what power is not clear, and the incident is said to have been recorded because of its nature. This incident needs to be noted and taken up by the Local Authority in conjunction with the police. It is ambiguous from the statement as to whether a social worker was actually present when it happened. It has not formed part of the material evidence before me but it was an extremely unfortunate incident, it was harmful to P that her guardian was rightly horrified about. I do not know what the Local Authority response to it was at the time, what its response has been since and I do seek separately an explanation from the Local Authority and the police as to the circumstances that were pertaining and as to what measures have been devised and agreed upon to avoid a repetition of such an event in the future.
71. This is a very, very sad case. It began as a one issue case, the assault. It could, as Mr Rowlands has said, have had a very different outcome. That it has not is entirely due to the family and not their daughter. It has ended up as more than that because of the astonishing and persistent denial in the face of all of the evidence and the near complete rejection of P by her family. The harm to her from the latter is likely to outweigh the harm from the former in the longer term but, I repeat, even now it is not too late to reverse that process. These parents have an attractive, appealing and loving daughter who has shown the Christian virtues of forgiveness and love that they taught her. She really deserves a very much better outcome than this but I am afraid the solution lies entirely in their hands.
72. The order I make, I am satisfied, is a proportionate order under Article 8 and reflects the welfare checklist, as I explained. There will be a care order to Sunderland City Council. As I indicated, this judgment will be transcribed in an anonymised form for future publication. It should be made available to any social worker who has responsibility for P in the future. It should also be made available to the independent reviewing officer and it should finally go to the head of service in relation to the issue of restraint along with the relevant part of that judgment to the police.
[Discussion re order follows]