England and Wales Family Court Decisions (other Judges)

Case No: FD11P00383

IN THE FAMILY COURT AT EAST LONDON

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTERS OF: EJK and VJK (Children)

6 ^th and 7 ^th Floor

11 Westferry Circus

London

E14 4HD

 

Friday, 28 ^th August 2015

 

Before:

HIS HONOUR JUDGE MILLION

 

B E T W E E N:

 

MJK

Applicant

- and -

 

(1) FJK

(2) EJK (a child)

(3) VJK (a child)

Respondents

 

 

 

Transcript from a recording by Ubiqus

61 Southwark Street , London SE1 0HL

Tel: 020 7269 0370

 

 

 

 

 

MISS V ELLIS (counsel) appeared on behalf of the Applicant mother

MR S ASHWORTH (counsel) appeared on behalf of the Respondent father

MR D STUART (counsel) appeared on behalf of the Respondent children, by the children's guardian

 

 

 

JUDGMENT (anonymised)

(Approved 28.11.2015)

HIS HONOUR JUDGE MILLION:

 

 

Introduction

1.                   I begin this judgment by recording my dismay, embarrassment, and apology on behalf of the Family Court system for the delays which have occurred in this case. This cannot be described as family justice. This case has been afflicted by ruinous postponement. During the last four and a half years, from February 2011 until May 2015, 19 previous court hearings had taken place in these proceedings without any final determination of any issues in this case. Until the end of May 2015, these proceedings were heard and managed at a different court centre. It is for others to justify what happened until three months ago. In May 2015, it was transferred from that centre to the East London group of the Family Court. I am responsible for what has happened since June 2015, and I give this lengthy and detailed judgment in August 2015 after a full hearing in July 2015.

2.                   This case originally concerned the question of how much time a father should spend with his four children who are now aged 17, 14, 12 and eight. It now concerns only the youngest two of those four children. The questions for me now are whether the father has sexually abused two of his children or whether the mother has manipulated the children to make up false allegations. I have also to decide what should or can be done following my findings.

3.                   This judgment is a fact-finding decision as part of private law family proceedings for child arrangement orders under section 8 of the Children Act 1989. The four children are: TJK, a girl born on 17 April 1998 who is now aged 17; MJK, a boy born on 13 May 2001 who is now aged 14; EJK a boy born on 4 October 2002 who is now aged 12; and VJK, a boy born on 14 November 2006 who is now aged eight.

4.                   The mother of the children is MJK. The father is FJK. The mother and father married in 1997. The parents are of Bangladeshi origin. They have four children, a girl and three boys, whom I have already referred to. The parents first separated in 2009, then reconciled and finally separated in 2010. On the separation, the children remained living with the mother. The father had contact with the children but there were difficulties. In January 2011 the father began divorce proceedings and a decree absolute was granted in January 2012. The father remarried in April 2014. In the meantime, in February 2011, the mother issued Children Act proceedings and applied for a prohibited steps order to regulate the times and circumstances when the father could see the children. When these proceedings began the children were then aged 12, nine, eight and four. The progress and case management of the case since then is a poor advert for the Family Court.

5.                   As I have said, the Children Act proceedings began in another court centre. Almost four and a half years later, in late May 2015, the case was transferred to the Family Court in East London and was heard by me for the first time in June 2015. In those four and a half years there were 19 hearings, without there ever being an effective final hearing. Three final hearings were listed - in February 2013 for two days; April 2014 for three days; and May 2015 for two days. For various reasons, none of those intended final hearings took place. Some of the difficulties were caused by changes in circumstances. However, that was not the cause of most of the delay.

 

An overview of the history and the effect of previous orders

6.                   The following is only a brief summary of the history and effect of all the numerous orders previously made. Between February 2011 and September 2013 (a period of two and a half years) there were 12 hearings which considered and reviewed the arrangements for the father to see the children. Directions were also given for various investigations and assessments. By the end of that year (2011) the two elder children, TJK and MJK, had each refused to continue to see the father. The father's contact with the two younger children, EJK and VJK, continued. Some risk assessments were directed but they took an inordinate amount of time to be completed. I question whether they were, in fact, necessary or proportionate and whether the delay they caused was justified.

7.                   The case changed in October 2013 when the eldest child, TJK, made allegations that she had been indecently assaulted by the father years before when she was between four to six years old. A police investigation followed but no prosecution has taken place because the evidence was not felt strong enough to support one. However, that investigation and further investigation of further allegations was not completed until May 2015. This has had a huge impact on the father's contact. It has also dominated the lives of the children and the mother and, indeed, the father for too long. Over the next 18 months, from October 2013 until May 2015, a further seven hearings took place. The father's contact with the two younger boys, EJK and VJK, continued. However, in November 2014 the two boys refused to attend further contact. After that, MJK and EJK made allegations that the father had indecently assaulted EJK some years before. A further police investigation followed but no prosecution took place because the police considered further action to be unjustified. All investigations ended in late May 2015.

8.                   On 7 May 2015, Her Honour Judge Wright decided that these various allegations of indecency should be considered to establish if they were true. I agree that was necessary by then. She joined the two younger boys as parties and appointed a children's guardian to represent them. She also fixed a fact-finding hearing and pre-trial review before me and transferred the case to this court. By the time I began dealing with this case in June 2015, the proceedings had been continuing for almost four and a half years. Contact between the father and the two elder children had ended more than three and a half years ago and contact between the father and the two younger boys had ended eight months before. As I have already said, in those four and a half years, 19 court hearings had taken place without any final determination of any issues in the case.

 

The fact-finding hearing

9.                   This fact-finding hearing took place over three days, on 21, 22 and 23 July 2015 with judgment on a fourth day, today, 28 August 2015. Unfortunately, severe overloading of the list on the three days originally allocated meant that I lost valuable time during the hearing and was unable to complete the case in July 2015. Further listed hearings prevented me from considering and delivering this judgment until today. In the fact-finding hearing before me the mother, father, and two younger children by the children's guardian, were all legally represented.

 

The allegations

10.               I have to make findings about five allegations set out in a schedule dated 9 July 2015. The allegations are formulated as five questions, four by the mother and one by the father. The questions (as set out in the schedule of allegations) are these:

(1) On occasions between 2002 and 2006 did the father touch by hand TJK's vaginal area?

(2) In 2004 did the father stroke TJK's arms inappropriately? TJK was in her own bed. The father had come into her room, stroking her arms and inserting his finger into her vagina.

(3) In 2004 did the father insert his finger in TJK's vagina?

(4) In 2007 onwards did the father touch EJK inappropriately by putting his hand on his bottom?

(5) Has the mother influenced and manipulated the children into making false allegations about the father?

11.               The first four questions are the mother's allegations against the father. The fifth question is the father's allegation against the mother. Questions two and three are separate parts of the same alleged incident. The father and mother each deny the allegations made by the other.

 

The law and preliminary matters

12.               I turn then to the law and some other important preliminary matters. I remind myself that it is for those who assert an allegation to prove it. It is not, for example, for the father to prove his innocence. In making my decisions I must act on the evidence which I find reliable on the balance of probabilities. In this hearing I have heard oral evidence only from the mother and the father. I watched three DVD recordings of the police ABE interviews of TJK, MJK and EJK. None of the parties wished me to hear oral evidence from any of those three children. I read statements, reports and other documents in a trial bundle which consisted of about 714 pages. The children's guardian took a broadly neutral position about the allegations. He did not give oral evidence and was not directed to prepare any written report at this stage. Both parents gave their evidence with the help of interpreters. I recognise the difficulties for each of them, giving evidence through interpreters. There may be a loss of accuracy and subtlety of meaning, and the precise use or nuance of a word or phrase may be difficult to capture or relay in a contemporaneous interpretation. Judging the quality and reliability of what is said is also more difficult.

13.               The children, in their ABE interviews, spoke good English. Interpreters were not needed to understand them. I also remind myself that if a person is found to be lying, lies may be told for many reasons and therefore not everything that such a person may say is necessarily untrue. I have in mind the Lucas direction often given to juries in criminal proceedings. This question of lies or exaggerations may be particularly relevant in family cases where emotions are heavily involved. I remind myself that this may also apply to what the three children may say in their ABE interviews. What I must keep in mind is: what is the reliable, core truth shown by the evidence as a whole?

 

An outline family history

14.               I turn next to a brief family outline. The mother was born on 1 June 1979 and is now 36. The father was born on 17 April 1974 and is now 41. Both were born in Bangladesh. Both are Muslims. The father is the second eldest of six siblings; two sisters and four brothers. The father is the eldest of the brothers. He describes coming from a middle or upper class family because his paternal grandfather owned land in Bangladesh which was farmed. He came to the UK in 1984 at the age of 11 and lived with his grandparents here. After leaving school, he worked in the restaurant business, both as a waiter and for a time as the owner of a takeaway business. In 1993, at the age of 19, he was convicted in the UK at a Magistrates' Court of indecent assault on a male under 16. He was fined £150 with costs of £175.

15.               The mother was born and brought up in Bangladesh. She and the father married in Bangladesh on 8 June 1997, when she was 18 and he was 23. It was an arranged marriage. For the first five years of their marriage, she remained living in Bangladesh whilst the father remained living in the UK, returning to visit her in Bangladesh at times. Their two eldest children, TJK and MJK, were born in Bangladesh in 1998 and 2001, respectively. On 13 March 2002 the mother and the two children moved to the UK. By then the mother was already pregnant with EJK who was born in the UK later that year on October 2002. VJK was born in the UK in November 2006.

16.               The mother complained that after she moved to the UK the father was violent and abusive towards her. The father admitted one assault on the mother in 2005, for which he was cautioned. On that occasion he had hit the mother with a shoe when he said he suspected that she was having an affair. He said that in 2008 and 2009 he and the mother had had arguments but he denied that there was any violence from him in those arguments. Police records show that in August 2008 the mother complained to police that the father had punched her in the back and face. The father was arrested and questioned and denied the assault. The mother later withdrew the allegation and no further action was taken.

17.               On 11 March 2009 the mother again complained to police that the father had punched and kicked and hit her that day. The father was again arrested and interviewed. He admitted an argument but denied any violence. The father was charged with assault, appeared in court and was bailed on condition not to contact the mother. The father and mother were therefore then separated. At that time in March 2009 the local authority, that is the London Borough of Tower Hamlets, carried out a core assessment of the family because of the allegations of domestic violence. The local authority produced a report dated 25 April 2009 which recommended closure of the case, but noted 'All the children stated they missed their father and MJK' - that is the mother - 'told me they have a loving relationship with their father'. That report also noted the father's previous conviction for 'a sex offence in 1993 with a schoolboy under 16'.

18.               In August 2009, the mother made a statement to police that she no longer supported the prosecution (relating to the alleged assault on her), as she wished to reconcile with the father. The charge was therefore withdrawn. Shortly thereafter, the mother and father reconciled. The mother then became pregnant with a fifth child but miscarried the baby in early 2010. In May or June 2010, shortly after the miscarriage, the parents again separated. In July 2010, the mother travelled to Bangladesh with the children for a holiday and invited the father to go with them. He declined but travelled there separately. This therefore marked the parents' final separation. The father returned to the UK in December 2010. It was two months later, in February 2011 that the mother applied for a prohibited steps order to regulate the contact the father had with the children. In her statement in support in February 2011, she alleged previous violence against her by the father and also raised the issue of the father's conviction in 1993 for, as she put it, 'sexual abuse against youngsters'. Her statement also mentioned that the father's brother had been convicted in 2008 for a sexual offence against a minor.

 

A history of the proceedings and contact arrangements

19.               By February 2011 TJK had stopped seeing her father and lacked apparent interest in resuming face-to-face contact with him. Over the course of three court hearings, between March 2011 and October 2011, orders were made which provided that the father have weekly contact with each of the three boys, with additional days during school holidays. A CAFCASS officer, Jean Atkinson, reported on 10 January 2012. She reported that MJK, the oldest of the three boys, had stopped attending contact and complained that the father 'gave more attention to his brothers'. TJK also told the CAFCASS officer that she thought the father 'favoured the boys'. However, EJK was enthusiastic about contact and said, 'I like my daddy. We want to see him when we like' and VJK agreed with what his brother had said.

20.               However, Miss Atkinson advised in that report that because of the father's conviction of indecent assault in 1993, 'contact should not take place until a section 16A risk assessment has taken place'. In that report, she also said that CAFCASS had recommended such an assessment in March 201l. I have read the CAFCASS report dated 15 March 2011. It contains no such recommendation.

21.               The court then directed Miss Atkinson to carry out a risk assessment. Her report, dated 24 April 2012, recommended a further specialist risk assessment by a specialist in the area of sexual offending. She recommended that contact be supervised until that assessment had been completed. The mother told Miss Atkinson of occasions in the past when she said that other members of the father's family had committed acts of sexual abuse. She alleged one occasion in 1997 in Bangladesh when she said the paternal grandfather tried to abuse the mother's 13-year-old brother on these parents' wedding day. She alleged another occasion in 2001 in Bangladesh when she said one of the father's brothers had tried to rape her. She also mentioned the conviction of the father's brother in the UK in about 2009 or 2010, as then reported, of what she said was rape of a 13-year-old girl. Miss Atkinson also set out what she said were details she had obtained from the police about the circumstances of the 1993 offence by the father. I do not set out those details here because the father disputes those details and the court has, on 2 August 2012 and 23 October 2012, twice directed Miss Atkinson to provide the source of those details. She has never replied to give them, despite providing a further report in 2013. Her twin recommendations in 2012 (for a specialist risk assessment about sexual risk; and for restricting contact until the assessment of sexual risk was carried out) have dogged this case ever since.

22.               In May 2012, the court made a direction that there be a specialised risk assessment, intending it to be of sexual risk. However, the Legal Aid Agency refused to fund it. In October 2012, the court made a direction for another organisation to carry out the assessment. However, the instruction metamorphosed into an assessment of risk of domestic violence, which would 'take into account any risks associated with a previous history of sexual offending behaviour'. I take that quotation from the explanation for the change given in the report itself. In my judgment, the explanation for the change strongly suggests that it was done to fit the assessment to the skill-set of the assessor, rather than the other way round. Despite that assessment (directed to be of the risk of domestic violence), the mother's disputed allegations about domestic violence have never been the subject of any court findings, nor were they the previous reasons suggested for restricting the father's contact. This did not prevent the reporter from basing her opinion on those disputed matters. The expert instructed produced a 64-page report but, for various reasons, it took eight months, until 22 June 2013, for the report to be produced. This was 13 months after the original direction for an assessment for sexual risk.

23.               In that report in June 2013, the assessment of sexual risk was that the father 'poses a low risk of sexual aggression towards his own children'. As it seems to me, that was a wholly predictable outcome. At that time, the only suggestion of sexual misconduct by the father was a conviction for indecent assault 20 years before, for which he was fined and which behaviour had never apparently been repeated. The sentence of a fine indicated (probably) a lower level of seriousness in the incident. Since the first CAFCASS recommendation in January 2012 for an assessment of sexual risk, it had taken 17 months to achieve that entirely unremarkable and predictable opinion, that the risk of sexual harm to the children from the father was low. However, the June 2013 report went on to consider risks arising from domestic violence, and it is clear from the report itself that that was its primary focus, rather than sexual risk. The opinion in the report of domestic violence risk was based on some factual errors. For example, at paragraph 152 the writer records police records of four previous violent domestic incidents. In fact, as emerged during the hearing before me, only two of those four, in 2005 and 2008, were accurate as reported incidents.

24.               A suggested further incident in 2004 was a mistaken reference to the father. It actually referred to somebody else. Another in 2005 was a double counting error because of a duplicate record of the same incident under two different reference numbers. The outcome of the assessment of risk from domestic violence was that the father presented 'a moderate risk of committing moderate violence and a moderate risk of committing moderate intimidation and verbal aggression towards the mother in the context of child contact'. At the time of the opinion in this report, the father had been having regular weekly, unsupervised contact with the two younger children for over two and a half years, without incident and without any complaints by the mother about any abuse of her or the children during that time. Surprisingly to me, notwithstanding that history, the report recommended that all direct contact should cease until the father had completed various domestic violence and parenting programmes. This recommendation, as I have said, was based on the assessment of domestic violence about which no findings had ever been made or directed, rather than on the basis of sexual risk, which was the original purpose of the assessment (directed 13 months before).

25.               At a hearing on 3 July 2013, just after the risk assessment report was received, a recorder fixed a final hearing to take place with a time estimate of three days. However, that final hearing was not listed until 14 April 2014, over nine months later. In the meantime, a CAFCASS officer, again Miss Atkinson, provided a report dated 29 July 2013, which recommended only supervised contact. This recommendation was based on her view of sexual abuse by other members of the father's family, not on the risk of domestic violence. She criticised the previous risk assessment report as less focused on sexual abuse. She reported 'there continues to be uncertainties about risks of sexual abuse towards the children. On this basis, I cannot support unsupervised contact at this time'. Following that report, the mother then applied to suspend contact.

26.               On 23 September 2013, a deputy district judge then made a summary order, without any effective hearing, which imposed a condition that contact between the father and the two younger boys should take place only in the presence of an agreed adult or at an agreed contact centre. The effect was to suspend the contact immediately until those arrangements could be agreed. I can see nothing in the history of the case up until then which justified such a rushed decision made in that way as an emergency. The same summary order also directed, apparently by agreement, that the father should attend a 27-week domestic violence intervention programme, if found to be suitable. I interpose to mention that the father began that programme in March 2014 and successfully completed it in December 2014.

27.               Meanwhile, following the summary decision, the matter of contact was again listed to be reviewed by another deputy district judge on 9 December 2013. In between those two hearings, in September 2013 and December 2013, TJK first made her allegations that she had remembered sexual abuse of her by her father several years previously as a young child. At that time there were serious problems in the relationship between TJK and her mother. Social services were involved and I will refer to this again later. TJK gave an ABE interview on 11 November 2013. The father was questioned by police on 9 December 2013, the same day as the listed court hearing, and was bailed to return to the police station in January 2014. The bail conditions prevented the father having contact with the mother or TJK, except as arranged by the Family Court.

28.               I pause to say that the police investigations concerning TJK's allegations, first made in November 2013, continued until 26 May 2015 when the decision was made that there was insufficient evidence for TJK's allegations, and the later allegations made by MJK and EJK, to be referred to the CPS. The father was on bail and subject to bail conditions throughout that period of 18 months.

29.               Continuing with the history of the proceedings, those allegations by TJK and the police investigations caused the deputy district judge in December 2013 to reduce the father's contact with the two younger boys to once a month at a contact centre. The effect was, again, to further delay the resumption of any contact because a contact centre had to be identified. A further order was made later in December 2013 directing a section 7 report from the local authority for the area in which the mother and children lived. By March 2014, the police investigations of TJK's allegations were still continuing. The court therefore vacated the final hearing, which had been previously fixed for April 2014 by the order made eight months previously in June 2013, before the allegations were made.

30.               After two further review hearings in April and August 2014, an order was made which fixed a further final hearing for May 2015 for one day. This was a further nine months away. That order also continued the monthly contact at a contact centre. A subsequent order increased that time estimate to two days. A month after the second of those two review hearings, that is on 9 September 2014, the police told TJK and the mother that TJK's friends, to whom TJK had apparently first mentioned her allegations, were unwilling to provide written statements to assist the investigation. The following day, on 10 September 2014, the mother told the police for the first time that the father had previously sexually abused his sister. The police told her that they would attempt to contact the sister. 12 days later, on 22 September 2014, the mother withdrew the allegation. In oral evidence to me, the mother said that the police had misunderstood what she had previously said.

31.               Two weeks later, on 4 October 2014, the father had contact with the two boys at a contact centre for what turned out to be the last occasion. On 7 October 2014 Miss Roberts, the local authority reporting social worker, spoke to the two boys who told her they did not wish to have contact with their father. On 1 November 2014, the mother told Miss Roberts she did not intend to take the boys to the contact which was due that day. Contact therefore ended. The father then made an application, dated 20 November 2014, to enforce the contact order. I assume that the father's solicitors had told the mother's solicitors earlier in November 2014 of the intention to enforce the order. The application was not formally issued until 20 January 2015 for reasons that I am not aware of.

32.               On 21 November 2014, that is three weeks after the mother had notified the father that the contact with the boys would finish, a police officer spoke to MJK because TJK had told the police that she had spoken to him about her allegations. The police officer reported that MJK said, 'he did not wish to say anything in case he got something wrong'. The following month, on 11 December 2014, at a time when the mother knew the father was issuing a contact enforcement application, Miss Roberts, the local authority social worker, told the police that the mother had told her 'last week' - which would have been early December 2014 - 'that she had overheard the two older boys' - that is MJK and EJK - 'making reference to being touched by their father inappropriately'. Police officers investigated and spoke to the boys first on 20 February 2015. The two boys were ABE-interviewed on 7 May 2015. The police decided not to interview the father about those new allegations. On 27 May 2015, the police decided that the evidence of various allegations by TJK and the boys was insufficient to justify a referral of the matters to the CPS. The police investigation therefore closed. Overall, it had taken 18 months.

33.               On 7 May 2015, on the first day of the intended two-day final hearing, Her Honour Judge Wright decided that a fact-finding hearing was necessary to deal with the allegations of sexual abuse. She joined the two younger boys as parties and appointed a guardian to act for them. She transferred the matter to this court to be heard by me.

 

The evidence in the fact finding hearing

34.               I turn then to consider the evidence I have heard during the hearing. Importantly, that included the DVDs of the ABE interviews with the three children, TJK, MJK and EJK. I watched each of them. TJK was aged fifteen and a half when she gave her interview. TJK in her interview was calm and composed. She was clear in what she said and did not seem to over embellish or overly extend her descriptions. However, what she did say was quite limited. She spoke of having 'flashbacks this year' - that is 2013 - and said then 'I started to remember'. She described a flashback of an incident when she was four or five years old, when the father touched her on her private area on the outside of her vagina when the family were living in their uncle's house.

35.               She described a further incident when she was six or seven and the father put his finger inside her vagina and stroked her arms when the family was living at another address. She said she had not always known about these things but remembered them in 2013 when she had started having the flashbacks. She said that she had remembered her mother telling her since she was about nine 'never to, like, be in a room alone with my dad and never to, like, talk to him if she wasn't there'. She said she did not know why her mother had told her this 'until I had my flashbacks'. The two incidents she described would, if they had occurred, have happened 10 years before (in about 2002 or 2003) and eight years before (in about 2004 or 2005). TJK said that the first person she had told about this was a friend, whom I will call AD. The friend AD has declined to provide the police with any written statement to support what was said to her by TJK.

36.               A further incident which is of interest is that TJK said that she remembered an incident when she was about seven, when her mother and father had a big row after her mother had found a condom wrapper under her bed. TJK said that she did not know then that it was a condom wrapper but had seen one on the TV 'a few years ago' and realised then what it was. The mother, in a written statement to the police dated 20 March 2014 and in her oral evidence, referred to the incident of finding a condom and having an argument with the father because she thought he was having an affair. She said this had happened in 2007. In the same police statement she said that in January or February 2009 she had seen the father touch TJK's breast with the TV remote control.

37.               In oral evidence, the mother told me 'I started asking TJK about whether anything had happened since the court started and we got a report from CAFCASS that the father has a conviction'. This was a reference to the CAFCASS report of January 2012 and the indecent assault in 1993. In fact, the conviction was disclosed in the social worker core assessment that was carried out in March 2009, 3 years before, and after the parents' first separation. The mother told me that the social worker had told her in 2009 about the father doing something sexual with a boy, but the mother told me that because of her own poor English she did not understand what it was until the CAFCASS officer referred to it. Yet the mother's own statement in February 2011 refers to the conviction. As I have said, the first reference in a CAFCASS report to the conviction was in January 2012.

38.               Another feature about TJK's allegations is that they first occurred at a time when there were serious difficulties in her relationship with the mother. A social work core assessment report, dated 18 November 2013, records that in September 2013 TJK was receiving help from CAMHS, that is the Child and Adolescent Mental Health Service. TJK told that social worker, Miss Alice Fleming, that her mother had been physically abusive to her and her siblings, including hitting her with a shoe. At that time, TJK wanted to leave home and was fearful about her mother knowing that she had told social workers about the mother's physical abuse. There are two intriguing references in the police CRIS reports referring to the police investigation. A police officer spoke to one of TJK's friends. That friend told a police officer that TJK had told her that her mother had punished her for finding condoms in her room. A further entry records this about TJK's allegations against her father (and I quote from the CRIS report) 'the disclosure was made after she had watched film at school where a child had been sexually abused and relived the events in flashbacks. TJK was seen to be upset by classmates, and then made the disclosures to her friend who in turn told her mother'. The police report continues 'the circumstances in which the allegation came to light are unusual, in that TJK's experience mirrors that of the film they had just watched'.

 

The findings

39.               It is impossible to summarise or mention in this judgment all of the details of the history or small points of interest and possible relevance, both from the written documents and oral evidence. However, I record some broad themes of my findings in my consideration of TJK's allegations. First, there are no witnesses to the events, other than TJK and the father. There is no forensic evidence or medical evidence. In themselves, this is not unusual, nor does it compel me to any particular conclusion. I state these matters simply as facts. It means that the truth of events depends on the credibility of TJK herself and what the other evidence, including that of the father himself, establishes.

40.               I did not find either the mother or the father to be entirely satisfactory witnesses in all aspects of their evidence. I found the mother had a tendency to add to and alter her evidence about the father's sexual behaviour during their marriage to show him in a poor light and to suggest that he was a pervert. For example, she said in oral evidence that the father had demanded that she should scream out during sex and appeared to want the children to have heard this. This was a new allegation in her oral evidence, not previously mentioned. I find, though she denies it, that the mother probably did say to police in September 2014 that the father had sexually assaulted his sister. An interpreter was used by the police for that conversation. The police took the allegation seriously and asked for details of the sister, which the mother provided to them. In oral evidence, the mother blamed the interpreter for that misunderstanding. I did not believe the mother's denial of that conversation with the police. As I have said, the mother later withdrew the allegation, that is, the allegation she made to the police.

41.               I also found that the mother had obviously repeatedly questioned TJK since at least early in 2012 about whether the father had done anything to her. She herself admitted that she had questioned TJK about it several times before TJK had made any allegations at all. Her own statement of February 2011 shows that by then she knew clearly about the father's conviction in 1993 because she refers to it.

42.               However, I also found that the father had a tendency to minimise matters concerning the domestic abuse that he probably inflicted on the mother during their marriage. He also changed his oral evidence several times when questioned about the circumstances of the indecent assault.

43.               As I find, TJK has lived, since at least early 2012 and probably earlier, in an atmosphere of the mother's questioning and suspicions about the father's sexual conduct. When considering TJK's descriptions in her ABE interview, I find it improbable that she would have noticed a condom wrapper in her bedroom at the age of seven, but then not realised what it was until a few years later when she saw one on TV. I do not find that a reliable memory. I note that TJK did not say that she knew at the time that anything was wrong about the father's behaviour in the two incidents she described, which she said happened at the age of four or five and again at six or seven. Instead, in her interview, she described having flashbacks and that she then remembered. Also, the mother has not said in her evidence at any stage that she told TJK from the age of nine not to be alone with the father. Neither does that suggestion fit with the apparently agreed evidence that the mother knew nothing of the father's conviction until 2009.

44.               I accept that it is possible that TJK may now genuinely believe in her allegations. I do not make a finding that she has a genuine belief in them. I simply record that she may do. However, as I find, if she has such a genuine belief now, those flashbacks are not reliable and accurate memories of actual events. As I find, the reliable evidence does not show that the father committed the acts which TJK has alleged against him.

45.               In the schedule of allegations I therefore reject allegations one, two and three on that list. In fact, as I have said, allegations two and three on that list are different parts of the same incident. I find both parts of those incidents not proved. Therefore, my answer to each of the questions numbered one, two and three in the schedule of allegations is - no. In coming to those decisions, I have taken into account the allegation number four made in respect of EJK, which I will deal with next. However, I have considered TJK's allegations separately because those allegations were made earlier in time and the evidence about, and the circumstances of, TJK's allegations are different.

46.               I am unable to say whether the references that I have quoted from the police report about TJK watching a film about sexual abuse, or having been found in 2013 with a condom by her mother may be linked to the descriptions that TJK gave in her ABE interview. They are intriguing possibilities but I arrive at my decisions after excluding those parts of the evidence from my consideration. I arrive at my decisions without regard to those references, the facts of which may or may not be accurately reported. I also consider it of interest that TJK's allegations were made just at a time in the proceedings when the court was about to consider whether to impose or relax the conditions under which the father was to have contact with the younger two boys. At that time, TJK's relationship with her mother was so poor that she wanted to leave home and be accommodated. She was self‑harming and very emotional.

47.               By January 2012, she had already told the CAFCASS officer that she did not like her father, and thought he had been mean to her and favoured the boys. It would be speculation to wonder if, in September 2013, TJK wanted to ensure that if she did not live with her mother and wanted to be accommodated, she would not be required to go to live with her father. Her allegations against him would have ruled out that possibility. I expressly state that I do not make a finding that this was the reason for the allegations. I simply record the possibility, whilst noting that the family relationships and dynamics were in great flux at the time, for several reasons.

48.               I turn then to the allegation in respect EJK. The allegation is that the father touched him inappropriately, meaning indecently, on his bottom with his hand. Again, strikingly, the mother reported the beginning of the allegation in mid-December 2014, both at a time when the police investigations about TJK appeared to be coming to an end and also at a time just after she had stopped the father's contact with the boys and the father was intending to apply to enforce the contact order. Also at that time, an intended final hearing was listed in a few months, in May 2015. The ABE interviews of EJK and MJK took place on 7 April 2015. In those interviews, EJK made the complaint of indecent touching and MJK spoke of the earlier occasions when EJK had told him it was happening.

49.               In his interview, EJK described his father touching him when he was about five. That would have been in about 2007. He said he had tried to tell his mother at that time but, because she did not speak English at the time, he could not make her understand. As I find, that explanation lacked any credibility because the language spoken at home was Bengali and at that age Bengali was likely to be EJK's first language. The idea that he, at the age of five, would not be able to speak with his mother because he spoke insufficient Bengali and better English, whereas she only spoke Bengali and did not understand English, is, frankly, ludicrous.

50.               I watched the DVD of both boys' interviews. There are transcripts in the trial bundle. I record simply that I found both EJK and MJK to be entirely unconvincing in what they said. Their accounts were inconsistent with each other and I found the boys' demeanour and the content of what they said to be neither reliable nor credible. Insofar as EJK made allegations of indecent or inappropriate behaviour against the father, I found those allegations to be knowingly false. Insofar as MJK supported his brother in having complained of those matters previously, I found MJK's statements also to be knowingly false. I did not believe either of them. I therefore reject allegation four in the schedule as untrue and false. The answer, therefore, to question four in the schedule is - no.

51.               I turn next to the father's allegation against the mother - that she has influenced and manipulated the children into making false allegations about the father. There is, as I have already said, much which is unsatisfactory and questionable about each of the four allegations made against the father, both as to their reliability and their timing. However, as I have already recorded, I have not found TJK's allegations necessarily to be deliberately false. I found them to be unreliable and that they are not reliable or true memories. However, I have left open the possibility that TJK may herself now believe them to be true. I do not find it proved that the mother has deliberately influenced or manipulated TJK to make those allegations.

52.               The family atmosphere in the mother's house where TJK was living was one in which the mother was, as I found, repeatedly questioning TJK about the possible sexual misconduct by the father against her. Although I am suspicious of the mother's motives, particularly because of the timing of the revelations, I cannot exclude the real possibility that the mother's genuine anxiety about the father's conviction in 1993 led her to give excessive prominence within the family to the risk that the father was a sexual deviant. It is possible that in that state of anxiety the mother reinterpreted innocent events as being sinister.

53.               If the mother had such fears, they were certainly fed and compounded by the views, both of the CAFCASS officer and the risk assessor who gave such (in my view) disproportionate emphasis to the risks. The mother can hardly be blamed for believing all of the warnings that were being emphasised which, from her understanding, appeared to be about the risk of sexual harm. Of course, the risks that the CAFCASS officer emphasised were sexual risks, whereas the risk assessor gave little prominence to sexual risk and instead emphasised the risk of domestic violence. However, until the direction in May 2015, it seems that the court did not clearly distinguish the two types of risk in its directions for previous case management. This was an unfortunate and, in the event, catastrophic error.

54.               For TJK also, the family atmosphere in the mother's home in 2012 and 2013 was febrile, with TJK's own disputes with the mother, as well as the pressure of contact proceedings which had by late 2013 been continuing unresolved for over two and a half years. Those were fertile circumstances in which TJK's imaginations could have become real to her. I do not therefore find that the mother consciously manipulated or influenced TJK to make the allegations she did.

55.               As for the allegations that EJK and MJK made, the contact notes for January 2014 recalls VJK referring to his father as 'stupid' and 'weirdo'. In October 2014, EJK was being challenging and rudely asked his father, 'Do you know why you're seeing us in this contact centre?' and when the father did not answer said, 'Are you deaf?' As it seems to me, the boys were well aware by 2014 that TJK had made allegations against the father. In oral evidence the mother told me 'the boys overheard a little bit about TJK when police came, so I decided to sit down with them and discuss it with them. This would be in about November/December 2014. It could have been before EJK said anything about his father doing things'.

56.               It is obvious from the contact notes that the younger boys were already angry with the father about him not providing them with various gifts, in particular, a mobile phone. Also, the boys had discovered by mid-2014 that the father had remarried. They seemed angry about that too. As it seems to me, MJK and EJK were entirely capable of acting on their own accord in making up allegations about the father in December 2014 to justify why they were refusing to see him anymore. As I find, it is not proved that the mother deliberately manipulated or influenced them to do so. I therefore reject allegation five in the schedule as unproved and my answer to question five is - no.

 

What to do now?

57.               What then to do now? I will hear further submissions on this question but my thoughts now are as follows. First, these proceedings have gone on long enough. Second, if the proceedings were to continue it would be likely to entrench even further the children's adverse opinion of the father. Third, further proceedings are very unlikely to change those views in the short or medium term. Fourth, this fact-finding hearing has been valuable because, for the future, it establishes, insofar as a court decision ever can, the truth about the allegations made against the father by the children. That truth is important. Fifth, in due course, perhaps only when the children are older and are mature adults, that truth may cause the children to think better of their father than they currently do. Those, therefore, are the reasons for my decisions.

 

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