England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT STAFFORD
AND IN THE MATTER OF THE CHILDREN ACT 1989

		26th August 2015

1. The Children in this case are A (dob 5.07.99) aged 16, B (dob 16.08.02) aged 13, C (dob 25.05.04) aged 11, K (dob 11.06.06) aged 9 and R (dob 28.05.07) aged 8. Their Guardian (G) is Paul Healey represented by Mr Bowe of counsel.
2. The Applications before the court are applications for Care Orders in respect of all the children and the Applicant (LA) is Staffordshire County Council represented by Mr Watson of counsel.
3. The Mother (M) is AnP (37) represented by Ms Burton of counsel. The Father of C, K and R is MP (34); he is not the father of A or B but for the sake of convenience I refer to him as "F"; he is represented by Ms Lattimer of counsel.
4. A's biological father is said by M to be HC who has had no involvement with him and who has not been traced.
5. B's father is said to be DP but again he has had no involvement with his child and his whereabouts are not known.

BACKGROUND

6. The family were not known to the LA before April 2013; they came to knowledge of the LA then in these circumstances.
7. M has two older daughters N (20) and T (18) so both are now adults although T was born in June 1997 and so only recently has she reached 18.
8. In April 2013 when T was 15 she disclosed in a letter to M and then subsequently to the police that she had allegedly been sexually abused by F within the home over a period of years.
9. Criminal proceedings were taken against F and initially came on for trial in July 2014; the first jury was unable to reach a verdict. F had remained at home with M and the children during the criminal proceedings on the basis that M would supervise his contact with them.
10. Matters became fraught between the M and F after the first jury was unable to reach a verdict, and there was an incident in August 2014 involving F making threats with an ornamental samurai sword. M obtained a non-molestation injunction against F in September 2014, which was enlarged to an occupation order excluding him from the home in October 2014.
11. By December 2014 M had indicated that she was missing her husband and the children were missing their father. The injunction was therefore withdrawn and care proceedings were commenced on 17 December 2014 but with the children remaining at home on the basis of a Working Agreement signed by both parents.
12. The criminal proceedings came on for trial again in January 2015; again the jury were unable to reach a verdict and the prosecution decided not to pursue the matter further.
13. The LA however took the view that despite the jury's failure to convict the allegations were true and the children were at risk of sexual harm; F continues to deny that the allegations are true. The care proceedings therefore continued.
14. F was continuing to have supervised contact with the children but the LA had reason to believe that the Working Agreement was being broken in particular by M allegedly allowing F to have contact with A outside the terms of the agreement.
15. M denied that this was the case and the exact circumstances of F and A coming in to contact where not determined, but neither parent opposed the making of an interim care order in respect of all the children in the light of the LA concerns on14 July 2015.
16. The basis on which the LA now say that S.31 Children Act 1989 is satisfied is not limited to the alleged sexual abuse. The draft threshold criteria are set out in a document at [A23] in the court bundle. In summary the LA also say that there has been domestic violence and abuse between M and F to which the children have been exposed, that M has taken overdoses on three occasions, and that M failed to adhere to the measures agreed to safeguard the children.
17. It is right to say however that the allegations of sexual abuse of T form the mainstay of the LA's concerns. No concerns were recorded about home conditions, the basic care the children receive, their presentation or such matters as attendance at school and medical appointments.
18. F's contact remains supervised by the LA but is now community based; all the children appear to enjoy contact except B who has refused to attend and expressed differing views as to whether he wishes to see F.
19. Whilst there are no concerns about the behaviour of the other children, both A and B have had behavioural problems.
20. A's behaviour has improved considerably recently; he continues to have a statement of special educational needs due to low level literacy and numeracy skills and he has recently been diagnosed with ADHD for which he now receives medication.
21. B's behaviour remains difficult and he has been the subject of a number of school exclusions; he appears anxious about the court proceedings.
22. Dr Dan Wilcox (Consultant Psychologist) prepared a Psychological Assessment of M and F dated 10 April 2015 which appears at [E32] in the court bundle.
23. He identified elements of the psychological profile of both F and M that merited attention in terms of their capacity to parent safely, and recommended further work, but a fully informed recommendation would clearly be dependant on a finding as to whether or not F has sexually abused T.

POSITIONS OF THE PARTIES

Local Authority

24. They set out their position in the final witness statement of the social worker Esther Kirk dated 16 July 2015 found at [C402] in the court bundle. They seek findings that the sexual abuse of T by F occurred and they also seek findings on the other matters dealt with in the threshold document.
25. They ask the court to make care orders for all the children, but whatever findings are made they will not seek to remove the children from M's care provided she addresses the matters identified by Dr Wilcox as work that needs to be carried out by and with her.

Mother

26. Her position is dependant on findings made by court. If it is found that F sexually abused T, then she says she will divorce F and will not oppose the LA application for care orders on the basis that the children stay with her. If no such finding is made, then she and F will continue to present as a couple.
27. She has already sought to progress with Dr Wilcox's recommendations but has been somewhat thwarted by uncertainty as to the appropriate service to assist her.

Father

28. F denies the sexual abuse alleged but accepts in part the risk to the children of emotional harm from witnessing their parents' arguments.
29. He is evidently somewhat frustrated that these allegations are to be litigated again, and he accepts that there are tensions in his relationship with the LA, although he seeks to assure that he has fully co-operated with them.
30. Regardless of the outcome, he accepts that it will be helpful for him to undertake the work recommended by Dr Wilcox and he has also put that in train.

Guardian

31. The G finds it difficult to make an informed recommendation before knowing whether or not it is found that F has sexually abused T.

HEARING

32. The matter has proceeded before me as a composite hearing to deal with the threshold criteria and the children's welfare. However, to assist in informing the welfare issue, I have agreed to give a judgment during the course of this final hearing on the issue of whether the sexual abuse allegations are made out before determining (if then appropriate) the welfare outcome, although both aspects will be dealt with as part of this final hearing.
33. To determine the sexual abuse allegations it is not necessary for me to make findings on all the matters in dispute between the parties, only on those which will enable the court to decide the issues before it.
34. Where a fact is relevant and in issue, I bear in mind that it must be proved on a balance of probabilities if the court is to find it proved. I also bear in mind that it is the LA who pursue the allegations of sexual abuse and that the burden of proof therefore lies on them.
35. In Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 Lady Hale said:

"[32]   In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other…

[70]   … I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."

36. As I have said the burden of proof on the matters in issue in this case lies on the LA. In determining whether a fact in issue has been proved to the required standard I bear in mind the observations made in Re T (Abuse; Standard of Proof) [2004] EWCA Civ 558 by Dame Elizabeth Butler-Sloss who said -

"[33] ... evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."

37. I also bear in mind the guidance given in R v Lucas [1981] 1 QB 720. A conclusion that a person is lying about one matter does not mean that he or she is lying about a different matter. Also there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. People sometimes lie, for example, in an attempt to bolster up their case, or out of shame, or out of a wish to conceal disgraceful behaviour.
38. Further, a witness can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.

EVIDENCE

39. I heard from the following witnesses:

T, DW, N, MM, DM, AnP, GC, RiP, CaP, M, and F.

40. I turn now to consider the evidence I heard, viewed and read.

The sexual abuse allegations and F sharing T's bed

41. T gave evidence. She had not provided a witness statement but had undertaken an Achieving Best Evidence (ABE) interview in April 2013 when she was still 15. I have watched that interview which is just over an hour in length and all parties (and the court) also had a transcript available to them.
42. T now being an adult, she also gave evidence on oath by way of a video link. She was cross-examined in the usual way, particularly by Ms Lattimer on behalf of F who did so effectively but sensitively in the light of the circumstances. All the advocates were admirably focussed in their approach which assisted the court greatly.
43. By way of background the family had suffered some money problems following F's redundancy which led to their home being repossessed and a number of changes of addresses; there were times when the living arrangements depended on relatives, and times also when their accommodation seems to have been very crowded.
44. T's evidence was that in early 2007 when she was still aged nine some of the family were living with the maternal grandparents and some with F's parents at Fazeley. She was living for about two months with F's parents and the sleeping arrangements were quite cramped.
45. Her recollection was that she was sleeping on a sofa bed downstairs, and it was here that the inappropriate behaviour by F first started, with him kissing her in a sexual way while she was using the sofa bed.
46. She accepted that her memory of events at this time was "a little bit muddled" as she mistakenly placed R as then sharing his parents' room although this was at a time when he had not yet been born.
47. Ri and CaP (F's parents) both gave oral evidence to the effect that RiP's work pattern mean that he slept downstairs on the sofa bed during the week, and T slept with CaP. At the week-ends, T did not sleep downstairs alone on the sofa bed, but with her brothers.
48. Neither RiP nor CaP presented as impartial, but that is only to be expected as they are F's parents, and CaP very honestly said in respect of the allegations that in her view "it was all lies – completely 100% all lies".
49. T recollected that she would sleep upstairs until RiP came to bed late, but that then she would be carried downstairs to sleep on the sofa bed. CaP's evidence that she was too big for this to be done with any ease does have a ring of truth bearing in mind she would be approaching nine years of age by then.
50. Events at Fazeley were a long time ago, and I take the view that the LA evidence falls short of showing on a balance of probabilities that there was any inappropriate behaviour by F towards T whilst the family were living there.
51. The family moved to Atherstone in March 2007 and T did not make any allegation that anything untoward had occurred there.
52. In the Summer of 2008 they moved again to Baxterley, and it was at this address that T alleges the abuse began again.
53. T described the sleeping arrangements as being that she would share a bunk bed with her older sister N, with T nearly always taking the top bunk. Mostly she was sharing the room just with N although there was a period when she was sharing a larger room with her two younger sisters as well, again sharing the bunk bed with N.
54. Her evidence was that on occasions F got in to the top bunk with her, and put his fingers in her vagina; N would be on the bottom bunk asleep. It wasn't every week she said, but "quite often".
55. She said that these incidents occurred both when she was sharing the room only with N and when she was sharing the room with her two younger sisters as well. It happened a couple of times when she was in the smaller room with N but more frequently in the bigger room when she was with N and her two younger sisters.
56. She also said in her ABE interview that M was aware that F would join her in the top bunk but did not seem to think anything of it. In her evidence to this court T said it was not only in the rooms being used by the children as bedrooms that the touching occurred, but also in her M and F's bedroom and the living room when M went to the Bingo every Sunday and occasionally on the Saturday.
57. She explained in her ABE interview that M would be at Bingo on a Sunday and F would kiss her in the living room and then tell T they were going to watch TV upstairs. They would watch some telly until M came home and he would put his hands on her vagina. F said not to say anything because it was their "little secret".
58. T had to accept that there was a difficulty with this recollection of M going to the Bingo from the Baxterley address, because the attendance records kept by the Bingo club attended by M showed her attending only from May 2011 onwards, and by October 2010 the family had moved to an address at M Road, Tamworth and so were no longer living at Baxterley. T agreed that she must have mixed up the addresses.
59. N (T's sister) also gave evidence about this. She did not remember M going to Bingo from the Baxterley address. N did agree that she and T shared the bunk beds at Baxterley, but recollected more flexibility as to which of them slept in the top bunk. She did not recollect F sharing T's bunk bed at Baxterley.
60. It was at M Road, Tamworth that T said the abuse continued and escalated; they moved there when she was 13.
61. Initially she continued to share with N in bunk beds upstairs, then with each having their own single bed in a room together downstairs, before each got their own room about Christmas 2012; there was also a time when she and N were together with the two younger sisters in a big room.
62. Again she related F sexually abusing her on a Sunday when M was at Bingo; it took place both in M and F's bedroom, in the room she shared with N and in the room she shared with N and her sisters. F would sexually abuse her by touching her vagina and putting his fingers in her vagina.
63. T's evidence was that F's abuse developed to full sexual intercourse for the first time about a couple of months after they moved to M Road in October 2010, and she agreed this would place the incident about the New Year 2011. In her ABE interview she had placed this as being in the February after they moved in; early in the year 2011 on either version.
64. She said in her ABE interview that there was kissing in M and F's bedroom, F had his hands in her vagina, and they were on top of the duvet on the king size bed. She was wearing her pyjamas and he was wearing boxer shorts. They were lying down face to face.
65. He took her pyjamas and pants off and his own boxer shorts and put his penis in her vagina and started moving towards her then back He then took his penis out of her vagina saying he needed to because he was going to ejaculate. He ejaculated outside her, and then they got dressed and sat watching telly until M came home.
66. There is again a difficulty with T's recollection of the timing of this because she links it to M being at Bingo, something her membership records show did not commence until May of that year, and not as early as the February.
67. When asked how often the sex happened in her ABE interview T said that it was every night that M went to Bingo on a Sunday, although it was "every so often" after she got her own room, and it continued until January 2012. She also went on to say that whilst it was usually on a Sunday when M was at Bingo "it could be on a school night or it could be on a Saturday, it varied". Then it would be him coming and sleeping with her in her bedroom. Again she said that M was aware of this but "she wouldn't say anything about it because she felt that I didn't have a problem with it …"
68. In her oral evidence I understood her to maintain that sex also occurred in the top bunk bed before she got her own bedroom. One might observe that this would be a risky enterprise from the point of view of a perpetrator, particularly bearing in mind that the bunk bed is described as "squeaky". On the other hand, not so risky if F sharing T's bed is not an uncommon feature in the household.
69. She thought it had stopped in January 2012 because she was getting older, M was not going to Bingo as much, she was getting boyfriends and she'd started having periods.
70. N did not express any knowledge of sexual abuse by F, but did give evidence that F would share a bed with T usually when he had had an argument with M or had been drinking. She related it as a regular thing that she would see F join T when they were getting ready for bed, or would be aware of him getting in to T's bed during the night, or would be there when she woke up in the morning. On one occasion, N said, M walked in to find him in T's bed.
71. N gave evidence that she recollected F continuing to share T's bed two or even three times a week until 2012. However, N faced the difficulty that she had said something rather different at the second Crown Court trial.
72. When this issue arose there, her evidence was initially that she could not say how many times F stopped in the room with T, and when it was suggested that it might be four or five times altogether, her response was that she did not know, it might have been more. Ultimately her answer to the question how many times F stopped in the room with her and T was "I'd say about six".
73. A total of six times (whilst still in itself requiring some explanation) is very far short of two or three times a week for a period which we know T placed as lasting about a year. N was unable to explain the inconsistency beyond saying it was some time ago.
74. Eventually she maintained her evidence that it was two or three times a week, but this does cause me some concern as to the reliability of her evidence. I appreciate that she may not have been enthusiastic about giving evidence yet again, but my general impression of her was not enhanced by the somewhat surly way in which she answered questions.
75. I attach no importance whatsoever to what N's boyfriend is supposed to have said about the allegations being false. N herself explained it as being mischief-making by her boyfriend who had fallen out with T, and I say no more about it.
76. The Father in his evidence forcefully denied having at any time sexually abused T. He accepted that there had obviously been opportunities when he was alone with his children, but vehemently denied ever having done so.
77. F's evidence about sharing T's bed was obviously very relevant in the light of the allegations she made, and it has to be said that F's evidence on this was subject to worrying inconsistencies.
78. His evidence to this court was that he had shared her bed four or five times over the twelve years they had been part of the same family, and he explained this in the innocent terms of seeing a child to sleep or comforting a sick child; he had done it with all the children he said.
79. When interviewed by police on 5 April 2013 he had admitted having shared a bed with T. When asked her age when that had stopped he replied when she was "about 10, 11. Easy". This is found at [C201] in the court bundle.
80. However, when he gave evidence in his second trial in January of this year he accepted that he had shared a bed with T when the family lived at M Road and they did not move there until she was 13. His statement to the police in his interview was therefore wrong.
81. When asked how many times he had shared a bed with her at M Road at this criminal trial, his initial reply was "3 or 4 or 5 times". This appears at [C284] in the court bundle. He subsequently sought to revise that to "twice".
82. It appeared from his evidence to me that he was actually saying that there was one occasion at M Road that he remembered when T had found him asleep on the landing and took him to her bed, and there might possibly have been another occasion. He explained that his initial reference to three, four or five times was because he misunderstood the question at the criminal trial thinking it related to all the time he had been part of the family.
83. That explanation is not plausible for two reasons. Firstly, the question at the criminal trial was clearly directed to events at M Road. Secondly, when his own barrister was cross-examining at that criminal trial he specifically put to T that the number of times F shared her bed at M Road was no more than four or five times.
84. F said that he had no idea why the question was put that way because he did not give his criminal barrister instructions to put it that way. In fact he sought to create the impression that he had very little to do with his criminal barrister and did not give him any instructions himself. Common experience makes it unlikely that a barrister conducting such a trial would present his client's case in such a way without clear instructions that this was his client's case. Noticeably it is consistent with F's own supposedly confused answer at [C284].
85. So F has been inconsistent in his accounts on two important points, namely T's age at the time he stopped sharing her bed, and the number of times he shared her bed at M Road. Those inconsistencies arise in the context of his evidence to this court admitting that it was clearly inappropriate for him to have been sharing T's bed at all in this way.
86. Those are not the only concerns that arise from F's evidence. He found it very difficult to accept matters contrary to his case even when clearly documented. So, for example, he refused to accept that he had a drink problem at the time the allegations were made, despite having clearly said in his police interview on 4 April 2013 that he had got a problem with alcohol. Grudgingly he ultimately accepted that he must have said that at the time.
87. In a similar way he refused to accept that it was untrue when he told the police that he had not threatened to beat up DW, and had only threatened him in a non-violent way, despite acknowledging that he had threatened to "tear him a new arsehole" and that he would be "a dead man".
88. This was illustrative as well of his tendency to seek to minimise and explain away evidence that might not be helpful to him, So despite acknowledging what he described as a scuffle with M (which she says led to a cut to her arm) and waving a samurai sword around in her presence, he made no concession that there had been anything that might be defined as domestic violence between him and M. Rather than make sensible concessions he questioned the definition of domestic violence.
89. Obviously I must bear in mind the pressure these allegations have put him under, but even allowing for that his whole manner when giving his evidence was unnecessarily confrontational, with a reluctance to accept any point put to him without seeking to qualify or explain away anything he thought might be unhelpful to his case. He was a poor witness and I do not consider I can rely on him to tell me the truth.
90. The Mother's evidence was that she only knew of one occasion when F had shared T's bed, that she recollected this as being when T was about 15, and that it was clearly inappropriate.
91. I have reservations as to the extent to which I can rely on M's evidence about this or generally.

There is a record of a LA Strategy Meeting on 7 May 2014 at [F26] in the court bundle which specifically records M having confirmed that she was aware that F sometimes slept in T's bed, although admittedly that is hearsay evidence and there is no clarity as to who this confirmation was given to.

92. There were some aspects of M's evidence generally that were troubling.
93. Her police witness statement on 4 April 2013 at [G143] in the court bundle contains a clear endorsement that it is true to the best of her knowledge and belief, and yet she readily said in her evidence before me that she had exaggerated what she said because she was angry with F. She did not perhaps appreciate that the court might have concerns about her flexible approach to the truth.
94. When it was pointed out to her that she was recorded by her counsellor in the Pathway Project as having said that she knew F's mother had lied in court, her explanation for this was that if she did say it, it was because she was angry with what F's family had been saying about her and not because F's mother had lied.
95. Of course the court has to acknowledge the distressing impact all this has had on M. Whilst she was not willing to acknowledge that F had exercised a controlling effect over her to the extent that she had previously alleged in her police witness statement, matters had clearly been very difficult for her since the allegations were made.
96. There had been problems between them before the allegations were made by T, because F thought she was having an affair, but difficulties escalated after the allegations were made. F's drinking became more excessive, there was evidence of violence and the threat of violence between them, and she was so low at one point that she took an overdose (she has sadly done this on more than one occasion).
97. Nevertheless, I doubt that I can rely securely on what M tells me as being the truth; she is willing to present something as true even if it is not if it suits her ancillary purposes to do so.
98. Both T and N say that there were a number of occasions when F shared T's bed and I found T's evidence (supported to some extent as it was by N) to be more persuasive than that of M or F. It is consistent with F's own evidence that the environment in which the family was living was one where he shared the beds of a number of children over the years.
99. I find that F shared T's bed up to her being at least 13 years of age on a number of occasions I cannot determine but which was no less than five and probably a good deal more.
100. T and N's evidence was of clear knowledge by M of what was going on under her roof and whatever reasons may be advanced for them both wishing to present F in a bad light, none are readily apparent for wishing to do the same as regards M. Indeed, when considering any motivation for T to lie about events, F put forward that perhaps T wanted M for herself, which would not be consistent with presenting her parenting in a poor light.
101. It is simply not credible that M would not have known that her husband was sharing her daughter's bed on a number of occasions. I find that she knew it was happening and did nothing to stop it, a finding consistent with the comment in the Strategy Document and with the controlling nature of F that M complained of in her police witness statement.

The Letter

102. Let me turn to the letter M was handed by T on 4 April 2013. It is useful to try to put the creation of the letter into some sort of context.
103. DW had been T's boyfriend and he gave oral evidence. He gave his evidence in a very reasonable and measured way.
104. DW agreed that F had not been happy about his relationship with T, primarily because of the age gap. Reference has already been made to the threats made by F to DW. Nevertheless DW accepted that the ground rules laid down by F governing his relationship with T were reasonable in the circumstances, covering matters such as nights they might meet, time to be home, etc.
105. However on 17 March 2013 T confided in him that F had been sexually abusing her. It was difficult to cope with this information and get his head around it, and it caused them to stop being boyfriend and girlfriend on 22 March but on the basis that they would still be friends.
106. DW felt that as the first person she had told she had trusted him and he wanted to support her.
107. His recollection was that about a week later he got a phone call from F effectively saying that as his relationship with T was over there was no reason for him to still be associating with T.
108. Some time after this conversation with F (but before 4 April) DW spoke on the phone with GC who had become a friend through his relationship with T.
109. DW did not recall exactly what was said, but the conversation got on to the subject of F causing problems in the relationship between DW and T. DW accepted that he may have said something to the effect that he (DW) knew something that could put a stop to F because he was angry about F purporting to lay down rules yet behaving as he had towards T.
110. DW recollected a long conversation of some 20 or 30 minutes, and the phone was put on loudspeaker to encompass T and her other friend Ro in the call, as they were all at GC's. Relevant background information which should be mentioned at this stage is that Ro had herself experienced abuse within her family.
111. DW's recollection in this regard is largely consistent with what T said in her evidence. She said that she was actually on the phone to F at GC's when GC took DW's call in the kitchen.
112. GC walked back in and repeated what DW had said, and T then told GC and Ro that something similar had happened to her as had happened to Ro. GC and Ro told her that she should tell her M.
113. GC also gave evidence but her recollection seemed far from clear. She was T's best friend at the time although they have now had no contact for the last year or so. GC knew DW through her.
114. GC said she talked to DW quite regularly over the telephone, but she had no specific recollection of the call he referred to in his evidence.
115. She knew that T and her F had had a row about DW because she had been at T's house and witnessed it, and F had said to her (GC) that he was not happy about her having conversations with DW as T's friend.
116. Her recollection was that later T and Ro were at her home, and T had seemed down about something. GC's recollection was that T only found out about Ro's experience on this day, and had only met Ro two or three times before this.
117. She (GC) had gone upstairs to get changed, and when she came down to re-join T and Ro, T had been very upset and had told her what had happened. GC had not known of the allegations before, although T did say that she had already told DW.
118. GC recollected that T had said that she was fearful that her M might not believe her, that she did not want to split up her family or for her brothers and sisters to hate her.
119. On GC's recollection this was the only occasion that she, T and Ro were together; she thought that T may then have stayed at her house for the next couple of nights, and perhaps Ro did for one night, although she had no clear recollection.
120. T thought that it was after this discussion that she had written the letter a couple of weeks before she gave it to M.
121. N in her evidence said she thought the letter had been written just before it was given to M. That appeared to be based on assumption because she saw T with a pen and note-book in her hand just before the letter was handed to M – on balance I consider she was wrong about that.
122. There was some uncertainty on T's part as to the sequence of events, but her recollection was that she wrote the letter, took it to school and showed it to GC, and subsequently showed it to GC again when GC came around to her house which would be a week, maybe a little bit more than a week, before she showed it to her M.
123. DW said that T showed him the letter when she was walking back from school with him on 4 April He recollected her getting it out of her school bag while they were waiting for GC; he read it. He described T as being emotionally upset, crying and "in bits".
124. GC's evidence was that T had showed her the letter at school a couple of days before the police were involved, on the Tuesday or Wednesday of that week.
125. There is therefore a body of evidence which I accept that the letter was written before the day it was handed to M although it is not entirely clear when. There is no evidence that others contributed to its contents.
126. T said she wrote it because she thought M ought to know what had been going on. She handed it to M upstairs in her room while F was downstairs
127. It might be thought that M's reaction on being handed the letter was unusual unless it immediately confirmed suspicions she already harboured. She said that she read only the start of the letter and then immediately caused the police to be called. She never read the letter in full.
128. A more common reaction might have been to read the letter, and perhaps challenge F (who was downstairs) on its contents. That was not M's reaction, and when asked why she said it was because she believed the allegations. That is a noteworthy reaction from someone who might be thought to have the best knowledge of the events, personalities and dynamics in that household.

N said that M's immediate reaction was one of anger and to tell N to ring the police, which she did. M described T as curled up, extremely distressed and devastated.

Opportunity

129. Much has been made during the course of this hearing (as it seems to have been at the Crown Court trials) of the fact that T places much of the abuse as occurring on a Sunday night, and that when M was regularly at bingo on a Sunday F was fully committed to X-box gaming.
130. MM gave evidence on behalf of F about this as did AnP. They are enthusiastic players of computer games facilitated by the X-box console, and both formed a regular Sunday night community with F and others engaging in competitive games which could be golf, football or frequently the war game "Call of Duty".
131. They explained that a number of players could be involved at any one time from any computer-linked location (including abroad) either participating in the game or chatting with those who were, being linked not only by the computer screen but also by microphone. I gained the impression from both of them that typically six or seven players might be involved, but numbers could get up to 10 or 12.
132. Both seemed to have started gaming with F from about 2008 or 2009. AnP regularly played in games on a Sunday evening where F was also a member of the "party" as it was described. He is a committed gamer sometimes playing all day at the week-end, but I understood from him that his involvement was not every Sunday evening as sometimes family or work commitments would mean he was unavailable, or not available to play for more than half a session perhaps up to 8.30 p.m.
133. Friendships developed between the players. AnP said that you would sometimes pick up over the microphone that M and DM (MM's wife) were leaving for Bingo.
134. MM's evidence was that he also played X-box on a Sunday night and sometimes during the week. Whilst initially saying that he played every Sunday for the last seven years, he accepted that he could not say that he definitely played every Sunday but nevertheless he was a committed gamer; it was he said his social life.
135. Over some of this period his wife DM went to Bingo with M although he accepted he could not say that they went every Sunday night. DM also gave evidence and confirmed that she and M had been friends since 2008/2009 and had regularly gone to Bingo on a Sunday night from about April 2011 (records suggest it was more likely May).
136. They had much in common being "X-box widows" and they had clearly been very close friends. DM was sad that this was no longer the case, although a little vague as to why that should be. She made it clear that she did not believe the allegations, and shared her husband's view that F was "a wronged man".
137. MM's evidence was that F was one of the highest scorers and another committed player on a Sunday night, someone who he described as "always on" and the first one on and the last one off in terms of his participation in the X-box community.
138. He fairly accepted that as a friend of F's (F was best man at his wedding) his perspective on the case was also that F was a "wronged man".
139. The inference the court is invited to draw from this evidence is that F's opportunity to sexually abuse T on a Sunday night was limited by his heavy engagement with the X-box community. However, T did not limit the allegations to a Sunday night, and it cannot realistically be said that this evidence excludes Sunday night from consideration.

Why might T have made false allegations?

140. F said that he had thought about why T would have made up the allegations and still did not know why or think he ever would know why.
141. He described T as until recently a well-behaved girl, a child with whom there were no major problems until DW came along. It was right to say that there had been difficulties in his relationship with T and N six months before the allegations were made arising from them getting back in touch with their biological father and F being hurt by that. F thought that had blown over by April 2013.
142. F thought that the fact that T had made these allegations was all to do with DW. He was T's boyfriend until shortly before the allegations were disclosed. F said that DW and T had finished their relationship, and then DW had threatened to commit suicide, and T wanted to get back with him, whilst F did not want her involved with him.
143. T accepted in her evidence at the second Crown Court trial that although she and F had been close, difficulties arose between them about her relationship with DW (he was older than her) and because she had been in touch with her biological father.
144. Also, as T confirmed in her oral evidence, she thought that F mistreated M. She told me that at this time she was angry with F. In her evidence in the second Crown Court trial she agreed that she "really disliked him".
145. T denied, however, that she had made the allegations up, perhaps egged on by her friends. She said to me at one point in quite compelling fashion "Why would I be lying?" "I've lost my family and my brothers and sisters". "No-one is listening to me".
146. There were inconsistencies in some of T's evidence, for example, dates did not tally with known facts, and many Sunday nights may be discounted as predatory opportunities because F was embroiled with the X-box community.
147. Nevertheless, in general terms she was a measured and plausible witness when giving her video-link evidence. She was willing to make proper concessions, for example, accepting that she was muddled about events at Fazeley, and may have mixed up what she said about events at Baxterley with the other address at M Road. She was relating events that occurred when she was a child and now several years ago, so some inconsistency is to be expected. At times she became distressed, but only as might be expected, and not so as to detract from her general credibility.

The ABE interview

148. I have already made reference to the content of much of the interview, but it merits further consideration in terms of the impression I gained of T and her evidence.
149. Ms Lattimer urged on me on behalf of F that a close analysis of the interview showed a lack of clarity and detail, and a somewhat mechanical description of T's own feelings.
150. I have to say that I do not share that view. In respect of the first alleged occasion of sexual intercourse T may have got the month wrong or where M was, but she gave detail as to where she and F were, what they were wearing, where F's hands were, the position they adopted and even F's withdrawal before ejaculation.
151. The fact that T does not say much about the emotional impact on her is not surprising bearing in mind that she is then referring back to an event that occurred over two years previously. She did say that she was "really shaky" and "I just sat up that night thinking about it and feeling really ashamed of myself".
152. I had the advantage of viewing the ABE interview and I formed the view that T presented very well.
153. She appeared serious and focussed in answering questions, she generally maintained steady eye contact with her interviewer, and answered questions calmly without hesitancy or evasiveness.
154. There were occasions when her hands went to her face or she played with her hair when answering some questions about the alleged sexual assaults, but that could well be related to natural embarrassment.
155. She gave a plausible reason for now disclosing the alleged abuse, relating it to the wish to protect her sisters. She gave some compelling extra detail, such as reference to F at one point making her take a pregnancy test despite him having had a vasectomy, and F hiding it in the bin away from M when it came back negative.
156. Her evidence in the ABE interview was compelling.

Balance Sheet

157. It can be helpful in cases of this nature to draw up a balance sheet to assist in determining whether the allegations have been proved. It has to be born in mind that not every entry on the balance sheet caries the same weight, and the court must never lose sight of the fact that the burden of proving the allegations rests on the LA; it is not for F to prove his innocence.
158. What are the factors that support the view that F sexually abused T?

(1) F shared a bed with T on a number of occasions when she was at least 13, totally inappropriate behaviour for an adult male with his step-daughter.

(2) T said that he sexually abused her.

(3) T's ABE interview was persuasive.

(4) T came across as a plausible witness when giving evidence by video-link.

(5) No compelling reason has been identified as to why T would be lying.

(6) The allegations were not made as an emotional outburst but recorded in a considered letter written before the disclosure was made.

(7) T's mother's instant reaction was to believe the allegations.

(8) The general impression of T was of a level-headed young woman, described by M as a "straight As" student and not prone to outbursts.

159. What are the factors that do not support the view that F sexually abused T?

(1) F has consistently denied sexually abusing T; I have though found F to be an unreliable witness.

(2) T's recollection of some details is contrary to the weight of the evidence

e.g. the sleeping arrangements at Fazeley

when M's Sunday night absences at Bingo started.

(3) T had previously been very close to F but some friction had developed about her choice of boyfriend and her getting in touch with her biological F; these do not though seem to be such weighty matters as to be likely to cause a false allegation of sexual abuse.

(4) T did not disclose the alleged sexual abuse until over a year after she said it had stopped; it is not uncommon however for genuine disclosures of sexual abuse to be made later.

(5) T's friend Ro had undergone a similar experience of sexual abuse; however Ro and T appear to have become friendly only shortly before the disclosures, and it is a major leap to attribute the necessary exaggeration, elaboration and fabrication to T being egged on by her friends.

(6) T placed much of the sexual abuse as occurring on Sunday nights, and the evidence was that F would be committed to playing X-box on a Sunday night; the alleged sexual abuse was not however limited to Sunday nights, and the evidence of F's friends does not convincingly account for every Sunday night.

(7) The practicality of sexual abuse taking place in a squeaky bunk bed without discovery in a room occupied by others is questionable; however, it is less questionable if co-sleeping was not uncommon and the sexual abuse was also alleged to have occurred in other more private places such as F's bedroom.

Summary

160. So T's evidence is to be assessed having regard to those matters above including her being wrong on some matters of fact, the limitations on F's opportunities for abuse on Sunday nights, her dislike of F at the time of the disclosures, and the suggestion that her recollection (even if she thought it to be genuine) could have been contaminated by the experiences of her friend Ro.
161. To set against that, I have not found any of those matters to weigh heavily against her allegations being true, and her evidence on the central allegations has been consistent, her manner in her ABE interview was compelling and her video-link evidence persuasive. No persuasive reason has been put forward as to why she would make and maintain such serious allegations falsely.
162. Further whilst denying the allegations, F nevertheless accepts that he shared a bed with his step-daughter and I have found that he did so on a number of occasions.

Conclusion

163. I acknowledge that there is some confusion on T's part as to the timing of alleged incidents while the family lived at Baxterley. That causes me to have reservations as to whether she remembers accurately that the abuse took place there. It is now some seven years since the family moved to Baxterley, and almost five years since they left. She said she may have mixed up the addresses.
164. However, I had the advantage of seeing the witnesses and forming an assessment of them. My reservations about events at Baxterley do not cause me to doubt T's evidence overall. Balancing up the evidence I have formed the view that it was more likely than not that she was sexually abused by F whilst the family lived at M Road, Tamworth. That sexual abuse was by digital penetration and sexual intercourse. I am unable to say how often the abuse occurred but I am satisfied that it was not an isolated incident.
165. I am not satisfied that M knew that F was sexually abusing T, but I am satisfied that she knew that he was sharing T's bed on a number of occasions at M Road, and that she took no proper steps to protect T from the obvious risks that gave rise to.
26th August 2015

HHJ Perry