England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT RHYL
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE CHILDREN AND ADOPTION ACT 2002
AND IN THE MATTER OF R (A CHILD)

		6th January 2015

6^th January 2015

JUDGMENT

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application for a Care Order in the case of a child I shall identify simply as R, born on 18^th June 2014 and therefore she is approximately six months of age.
2. The parties to this application and their legal representation is as follows.
3. The Applicant Local Authority is Denbighshire County Council; they are represented by Miss Livesley.
4. The mother (who I shall identify only as the "mother" in the course of this judgment) was born in December 1994 and is therefore twenty years of age; she is represented by Miss Erwood.
5. The father who shares parental responsibility for his daughter (whom I shall identify in this judgment simply as the "father") is represented by Mr Sefton.
6. The child, R, is represented by her Guardian, Mrs Heather Smith, and by her solicitor Mr Dylan Lloyd-Jones.
7. This application was listed before me on 11^th December, 12^th December and 19^th December 2014, and resumed yesterday, 5^th January and concludes today, 6^th January 2015.
8. In addition to the relevant documentary evidence which I have considered I have heard oral evidence from:

(i) a half-sister of the father, whom I shall identify as A. She gave her evidence by the VC-link;

(ii) the key social worker, Miss Hughes;

(iii) the father;

(iv) the mother; and

(v) the Children's Guardian.

9. All of the lay parties have been present throughout this hearing including the father when I gave notice of my decision earlier. As a result of his reaction to the decision being announced, I have excluded him from the Court room, but provision will be made for a transcript to be provided so that he can see fully the reasons for the decision when he is calmer and able to digest that document properly.

The background and the issues in dispute

10. R is the first child of these parents' unmarried relationship which commenced in or about September 2013. The Local Authority issued protective proceedings shortly after R's birth because of its concern about the risks emanating from the father, and the mother's relationship with him. R became the subject of an Interim Care Order in July 2014 and she was placed with the mother at the home of the maternal grandparents, Mr and Mrs W.
11. This enforced separation of the parents permitted the Local Authority to conduct its assessments and the father was seen by Dr Clive Reading, a consultant clinical psychologist.
12. The father's contact with his daughter was facilitated (most recently) at a frequency of thrice per week for an hour and a half; that contact being supervised.
13. With reservations, the Local Authority believes that if the mother can sustain her separation from the father, she is able to parent R safely during her childhood. The reservations centre around the mother's ability and capacity to keep the father at arm's length. In essence, this is the substance of the Local Authority's Final Care Plan which recommends a familial placement for R with her mother.
14. The Local Authority proposes that the father's contact should be tapered from its current level to a frequency of once every three weeks for an hour and a half, again to be supervised.
15. I will particularise later the risks identified with the father's care. However, I should indicate that this Plan for R is supported by the mother and by the Guardian in this case.
16. The Plan for placement was accepted by the father at the outset of this hearing; he was opposed to the reduction in his contact, advocating initially a frequency of once weekly contact instead. However, at the close of his oral evidence the father revised his position; he wanted unsupervised contact in the community for perhaps two or three times per week, leading to overnight stays. Ideally he wanted to assume the joint care of R following a reunification with the mother, or alternatively they would have a shared care arrangement, dividing R's week with each parent.
17. At the outset of this hearing the Local Authority produced a revised Threshold Document. This was signed by the mother and was agreed by her. The father also signed this document and, importantly (save for the content of paragraphs 8, 9 and 10 thereof) he also agreed the document or did not resist or oppose the findings.
18. Prima facie therefore this document, as accepted at the outset of this case, would permit the Court to make a Final Care Order, and save for the quantum of the father's contact, no other outcome was disputed at the outset of this hearing.
19. There is an active dispute, however, about the three allegations which concern a complainant, A. She has alleged that she was the victim of a physical assault and the victim of two separate instances of sexual assault by the father. Consequently the majority of this hearing has been utilised to resolve these contested issues of fact.
20. A's ABE DVD recorded interview formed her evidence in chief, and she was cross-examined by the VC-link at the local Crown Court Combined Centre.
21. The father strongly denied her allegations; I should indicate that the ABE interview was conducted on 18^th December 2007, approximately seven years ago.
22. A, whose date of birth is 16^th December 1998, was nine at that time and she is sixteen now.
23. The father (who has asserted in this hearing that he was born on 16^th June 1986) would have been twenty-one at the time of the ABE interview and he is twenty-eight currently.
24. Following the initiation of these proceedings the case was timetabled for this hearing before me. Written questions were put to and written replies were received from Dr Reading, and his personal attendance at this hearing was not required.
25. The father maintained in this hearing that provided he was advised about some practical aspects of child care, he believed that his contact could be managed safely without risk and without supervision. The Local Authority and the Guardian disagree with this proposition.

The legal provisions to be applied

26. Before I can make a Final Care Order I must be satisfied that the threshold criteria under section 31(2) of the Children Act 1989 are established. This is conceded already in many respects.
27. Next, I must consider R's welfare as the paramount consideration in my scrutiny of the Local Authority's Final Care Plan, and I must apply the provisions of the so-called 'welfare checklist' under section 1(3) of the Children Act 1989. The Care Plan must be a proportionate response to the risk of harm because R's Convention Rights are engaged Re C and B (Care Order: Future Harm) [2001] 1 FLR 611.
28. In relation to any disputed issues of fact which are relevant to the threshold findings I must apply the balance of probabilities as the standard of proof, - see Re B [2008] 2 FLR 141. As was said in paragraphs 31 and 32 of that case by Lady Hale, the inherent probabilities, contemporaneous documentation and records, circumstantial evidence, my overall impression of the character and the motivation of witnesses all play their part in this evaluation. If the Court makes a finding applying the standard of proof, the facts so established are treated as having taken place.
29. If I believe a witness has lied and is not mistaken, I should apply the cautionary guidance given in R v Lucas [1981] QB 720. A witness may lie for a variety of reasons which may be unrelated to culpability. A lie about one aspect does not necessarily mean that a witness is lying about a different aspect. However, subject to reminding myself about this cautionary guidance, the Court is permitted to take lies into account in its assessment of the overall veracity and reliability of a witness.
30. Because the disputed findings of fact in this case involved allegations of sexual abuse, I remind myself that the judicial task in such cases has often been compared to that of completing a jigsaw puzzle. However, that metaphor can only be taken so far, as was said by Mr Justice Holman in the case of Leeds City Council v YX and ZX [2008] 2 FLR 869 105 and 106:

"I myself feel that the metaphor (like many analogies or metaphors) can be misleading. It tends to presuppose that all the pieces can be fitted together, and that there is a "full picture" to be made. By presupposing that each piece of information does fit somewhere in the picture, it may ascribe some weight or significance to each piece of information and obscure the important point that 0 plus 0 plus 0 still equals 0. If the jigsaw metaphor is helpful at all, then, in my view, it is important to think of a pile of jigsaw pieces in which pieces from more than one jigsaw have been muddled up. There may be pieces which, on examination, do not fit the jigsaw under construction at all, but which require to be discarded or placed on one side."

He goes on to say in paragraph 106:

"To say that a given piece of information standing alone is not probative of anything, does not necessarily mean that it has a value of zero. Each piece of information does need to be weighed and assessed in the context of all the other pieces of information."

31. Before I deal, however, with the three specific allegations, I need to consider the father's history more generally.

The father's background history

32. The father told me in evidence "I used to do a lot of weird things". He also said that his recent attempts to arrange an appointment with a therapist might:

"…help me with some issues, feelings and memories that are bottled up".

33. The father's history is reasonably well documented but I doubt whether the written record represents the entirety of his experiences as a child and an adolescent, which have so heavily influenced the development of his adult personality and character.
34. The father is the second of three children, his full siblings being P and L. His mother, VE (whom I shall call the paternal grandmother) and his father DB (the paternal grandfather) feature, obviously, in this background history.
35. In this case, there is a lever-arch bundle of historical Social Services records which relate to the father. The chronology alone runs to eleven pages with approximately 150 entries from 1985 to 2012, mainly during his childhood up to 2003.
36. He told me in oral evidence that he had witnessed the rape of his mother when he was five or six years old. His father had beaten him up as a child, he was passed between his parents who:

"…didn't love me and didn't make me feel secure".

He was the victim of child sexual abuse himself when he was eleven years of age, the perpetrator being a thirty-five year-old woman.

37. A review of the documentary history of the father's childhood and adolescence reveals what a miserable formative experience this was for the father:

(i) there was physical and emotional neglect;

(ii) there was an absence of any sexual boundaries or sexual regulation within the home;

(iii) as a child the father was permitted access to pornography. He exhibited sexualised behaviour towards himself and towards other children. He complained of being the victim of sexual assault by others and he was accused of perpetrating such abuse by other children;

(iv) there were multiple exclusions from school or other educational institutions;

(v) he was the subject of multiple Section 47 investigations, sometimes relating to physical injuries;

(vi) there is an extensive criminal antecedent history;

(vii) there are multiple placements with foster carers on a voluntary basis, often breaking down, for instance nine such placements between 1997 and 1998 alone;

(viii) ultimately, formal Care Proceedings were initiated and he became the subject of a Final Care Order himself in favour of this Local Authority on 18^th September 1998;

(ix) multiple residential placements were secured, however they too repeatedly broke down because of poor behaviour by the father towards staff or other resident children;

(x) there was illicit drug misuse, in particular cannabis, from a relatively early age;

38. By 2002, towards the end of his period in Care, the father was living firstly in bed-and-breakfast accommodation in X [name of town given] and subsequently in a flat. The familial support available to him, as always, was inadequate. His scholastic achievements were practically non-existent. He was singularly ill-equipped for the adult world. He had no formative experience of trusting and loving familial relationships. His upbringing was emotionally and physically unsettling and insecure, moving accommodation from location to location in response to each placement breakdown.
39. The transient and peripatetic lifestyle was continued as a young adult, driven by relationship, employment and family situations. It is recorded that a brief period in the Army reportedly came to an end when cannabis was found in his locker (see E119).
40. Dr Reading's report on the father points to limitations with his verbal comprehension and working memory, perceptual reasoning and processing speed (see E67 and E68), being either at the lower end of average or the borderline learning disability range. The father's actual and outward display of overconfidence belies these less immediately obvious limitations.
41. There is a separate lever-arch file of relevant Police information (see A8). Nine alias names and three alias dates of birth are noted for the father. There are 31 convictions for 58 offences starting in 1996 (see A10 to A18). The non-conviction information (A1 to A6) is extensive, and it is disturbing. There are also recorded multiple convictions for:

(i) fraud, dishonesty and theft;

(ii) multiple offences of assault and public disorder;

(iii) drug offending;

(iv) firearms and possession of offensive weapons.

42. At E112 of the Parenting Assessment, the father dates the commencement of his relationship history to sixteen, when he "lost his virginity properly". His relationship history is recounted up to page E126.
43. Numerous relationships are described before the father's current relationship with R's mother; indeed the father appears to find it difficult to recount the number, the names and the sequence of his sexual partners. The females concerned lived in different areas of the country, The Wirral, North Wales, Y [name of town given], hence the father's unsettled lifestyle.
44. It is in summary a history of sexual conquest which is given by the father. The relationships are usually of limited duration and ultimately unsatisfactory, and the partners are ill-matched and the relationships are lacking in emotional warmth and security, and they are sometimes violent. The prime motivator appears to be sexual gratification (at least on the father's side) and perhaps that in some instances was also a mutual perception.
45. The relationships were formed often on-line; they quickly commenced without much opportunity to assess the suitability and compatibility of the other partner. The father in this section of the Parenting Assessment identified the most significant of his relationships, but it is obvious that these were part only of a much larger number of sexual encounters (assuming, of course, that the father has been truthful about these aspects):

(i) K (see E114) was thirteen years of age, the father was seventeen years of age when that relationship started;

(ii) L (see E116) the next partner identified had her children removed from her care;

(iii) N (see E119) may have conceived the father's son F, but the father became uncertain about F's paternity;

(iv) S (see E121) was an older woman in her thirties or forties, and there were numerous episodes of domestic violence recorded at this time in 2006;

(v) there then followed a relationship with a female from the Y area [name of town given]. This appears to be the only significant relationship in Y (lasting six or seven months) but the father discloses that he slept with another nine or ten girls during his time there. This relationship in Y was also a violent relationship. Indeed, the father described to me in the witness box a significant episode of domestic violence when in retaliation at being struck with a piece of wood, the father applied a choke hold which led to his partner losing consciousness because of the impairment of her air passage in an arm lock (see E124).

46. Section B of the Police bundle includes relevant Police records from the Z [name of Constabulary given]. A female complainant described an episode during her relationship with the father which occurred on 31^st August 2010 (see B7). An argument developed over a blocked sink which escalated into domestic violence, each tearing articles of the other's clothing before the father overcame the complainant, punching her to the left eye. The Police intervened, but not before the father in retaliation set fire to articles of clothing belonging to the complainant, in a flat. There is a transcript of a Police interview concluded with the father on 31^st August 2010 (see E56 to 65). It is this episode which led to one of the father's convictions in September 2010 before the South Devon Magistrates Court.
47. During this time in the West Country, a complaint of rape was made against the father in December 2011 (see B49). No conviction ensued, but the father denies any such allegation and this is not an aspect which I can take any further.
48. It is important to note that there are no sexual convictions recorded against the father in his antecedent history.
49. This accusation in 2011 which led to the father's acquittal does not play a part in my conclusions with regard to the disputed allegations in this case.
50. In 2012, the father returned to North Wales and he was involved with a partner X whose two children were the subject of Care Proceedings. One of these children sustained a non-accidental soft tissue injury and was the subject of a finding of fact hearing which was concluded before Mrs Recorder Morgan on 5^th September 2012. There is a transcript of her judgment (see P5 to P18). I see that Miss Livesley appeared for the Local Authority in those proceedings, and Miss Erwood appeared for one of the respondents. The father was an Intervenor in the finding of fact hearing before Recorder Morgan. At paragraph 19 of page 8 of the judgment, I note that the Recorder did not hear the father give his evidence as an Intervenor:

"… despite being issued with a witness summons ordering him to attend Court …,
… he failed to return to Court after the lunchtime adjournment on the second day".

This followed the cross-examination of the mother by the Local Authority.

51. The Recorder noted at paragraph 26 the desire of the mother X in the earlier proceedings to protect the father in those proceedings and not to point the finger of blame at him. The Recorder at paragraph 84 of her judgment (see P18) made this finding:

"I therefore find that the injuries set out at paragraph 6 of the threshold dated 22^nd August 2012 were caused non-accidentally by forceful squeezing of both ears, whether by squeezing both ears on one occasion or by squeezing one ear on two separate occasions. The injuries were caused by the mother or DB or both of them; both of them remain in the pool of potential perpetrators. If DB caused the injuries, mother knows that he did so and has not been honest with the Court about her knowledge, and has therefore failed to protect AU. She has failed to protect AU by permitting DB to have sole care of AU when she knew that he had caused those injuries".

52. The difficulty of course with this "uncertain perpetrator" finding against the father in this case is that it cannot of itself give rise to a threshold finding based upon a future likelihood of significant harm, following the decision of the Supreme Court in the case of Re J [2013] 1 FLR 1373. There is no specific reference in paragraph 84 to a failure to protect by the father as the Intervenor in that case.
53. What I believe can be concluded from reading the Recorder's judgment as a whole is this:

(i) the pool of possible perpetrators in that case was limited to the mother of a subject child X and the Intervenor (her partner), the father in these proceedings;

(ii) the father absented himself from the proceedings when he could have:

(a) denied his own involvement;

(b) inferentially strengthened the case against the mother X in those proceedings;

(iii) the Recorder herself did not, however, hold the father's failure to give oral evidence against him in the findings that she made.

54. At paragraph 14 of the Threshold Document in this case, the Local Authority relies upon paragraph 8 of the father's statement (see C34) as an indicator that the father knew more about this episode of non-accidental injury involving X's child, than was disclosed at the time. In particular, relating to the presence of other third parties; i.e. the paternal grandfather of R and AU's own mother.
55. However, that does not amount to a finding of a "failure to protect" which I would make in this hearing on the basis of fresh evidence to supplement Mrs Recorder Morgan's findings in her judgment. Without further examination, I have no means of knowing whether this information given by the father in this hearing is accurate in this regard, nor what part (if any) was played by these third parties in relation to the injury which was the subject of the Recorder's finding of fact.
56. Paragraph 14 of the Threshold Document in this hearing is accurate insofar as it relates to the father's reticence to make a full disclosure to the Recorder, but a similar point, of course, could be made flowing from his failure to give oral evidence in that earlier hearing.

The father's presentation during this hearing

57. Following the delivery of my decision, the father reacted extremely badly, left the Courtroom, giving the Courtroom door a fairly hefty kick on his way out. As a result of that presentation, I excluded him from this part of the hearing; namely the delivery of my judgment.
58. The father is approaching thirty and he should have attained the age of reason; he has not done so. In appearance, he presents as a much younger man than his chronological age. He is tall and lithe in appearance, and could easily be taken for a man in his early twenties, his baseball cap and his choice of clothing accentuating his youthful appearance.
59. The overall impression conveyed upon me by the father during this hearing was one of restless and barely suppressed energy. He was hardly ever in physical repose in the Courtroom, sudden and angular in movement and over animated in his facial expressions and in his verbal responses to assertions made by others with which he vehemently disagreed. His impatience in the Witness Box was obvious; he would hardly ever wait to be taken to a passage of the documentary evidence but would rush at an answer, seemingly oblivious to the impression which his hasty reply might convey. This was an impulsive and unpredictable young man, both defensive and unreflective in his responses. At times he could barely restrain his anger when answering Miss Livesley's questions, and he was sometimes openly contemptuous of the Court process itself. He would drop a swear word or mimic the Local Authority's Counsel, before being reminded by me of where he was and how he should behave. His antipathy towards Social Services in general, and the key social worker Miss Hughes in particular and also to the Guardian, was fairly obvious.
60. When thwarted in his desires, he displayed scant respect for authority and an unwillingness to be prudent in his conduct. For example, it has been well known to the father that he should distance himself from the mother and R's placement during the Local Authority's Interim Assessment period. Indeed, the mother's case is put on the basis that she wishes to separate from and keep away from the father in the future.
61. Despite these parameters being well known to the father, he accepted in the Witness Box that he had threatened to visit R and the mother over the Christmas period if he could not exercise contact when he wanted to. I quote from his evidence:

"If I don't see R over Christmas I did say I would go there [referring to the mother's house] and see her".

In relation to the mother, the father very firmly believed:

"Social Services are forcing the mother to distance herself from me. The mother is fine with me texting and Tweeting her. They [in reference to Social Services] are pressurising her".

62. The father appears wholly unable to consider, even as a possibility:

(i) that the mother may wish to give priority to her future care of R; and

(ii) that she is accordingly unwilling to compromise R's future safety and security by breaching the Contract of Expectations agreed by her with Social Services, appreciating that R would suffer thereby.

The father, however, is blind to any such subtlety.

63. Indeed, when the mother gave her oral evidence it was apparent immediately that she still loved the father; he was her first love, she wanted to bear his child. He was always loving, affectionate, kind and gentle towards her. Despite his withholding information about his past from her, he did not (she believed) represent a risk, neither to her nor to R either. That is the mother's oral evidence to me.
64. The mother, for her part, would have allowed the father contact three times per week as now. The mother said in evidence:

"If Social Services were not involved, we would still be together. It is the fear about R being removed that keeps me apart from the father".

65. The father, I believe, fully understands that he retains this hold over the mother's affections. That is probably why he wanted the mother to give oral evidence in this hearing, a request which was made on his behalf (quite properly) by his counsel.
66. The mother gave her evidence behind a screen, not because of fear but because of her reluctance to hurt the father by the evidence which she felt required to give in order to keep her care of R.
67. It is in this context that the father's lack of insight and empathy for the mother may be so damaging, appreciating her weakness and lack of resolve as he does. Nevertheless he maintains the pressure upon her, mainly because he does not believe himself that he represents any risk and he sees no reason for any curtailment in his future relationship with R. But the effect of that conduct may be to jeopardise R's placement with her mother, and that is something to which the father gives scant appreciation.

The assessment of Dr Reading

68. Dr Clive Reading is an experienced and well regarded clinical psychologist, and the single joint expert instructed to undertake an assessment of the father in this case. Dr Reading correctly identified the father's attitude to the current proceedings (see paragraph 2.12 E69). He recounted the father's multiple relationships, his current lifestyle and childhood and his adult adjustment (see paragraph 2.13 to 2.16 E70).
69. Dr Reading noted that the father was a poor historian, and I would agree with that conclusion from my assessment of the father as a witness. His ability to organise events into a chronological sequence is poor, and thus the ability of any listener to follow the thread of any narrative given by the father is compromised.
70. The information available to Dr Reading about the father in his clinical assessment of him, led to Dr Reading's expert conclusion. Dr Reading denied (in subsequent replies to written questions) that he had pre-judged the father, or that his clinical interview/assessment technique was in any way inadequate.
71. The conclusion appears at paragraph 3.5 to 3.10, and although parts of it have been referred to, this is a document which deserves to be looked in its entirety:

"The father has not achieved enduring stability in any of the key areas of adult adjustment. His childhood experiences do not provide a basis for developing as a stable and productive adult, and his psychological functioning as an adult is not consistent with being able to create a stable lifestyle.

The psychological assessment of the father raises areas of concern with regard to his emotional stability and interpersonal functioning, with the origins of his difficulties unsurprisingly being his turbulent and abusive childhood. It would appear that he seeks to meet his emotional needs via intimate relationships and is pre-disposed to entering relationships that quickly become unstable.

There is a high risk that R would be exposed to future instability and domestic abuse within her father's relationships.

As indicated, the father has not achieved stability and productivity in any of the key areas required of a 'good enough' parent. The current assessment indicates that he is emotionally unstable; easily irritated; deeply suspicious and mistrustful; unable to form stable, close relationships; unable to cope adequately with stress; is unable to create and access adequate support networks; he is intrinsically antisocial in his behaviour; is prone to mood disorder and has low self-esteem.

The father's overall adjustment is very low and unstable. His psychological functioning is characteristic of adults who were emotionally abused and neglected in childhood. Sadly it seems that the challenges he presented as a child were not assisted by his involvement with statutory services.

In his underlying personality there are indications that with long-term therapy the father may achieve a more stable lifestyle. However, he is not a young man and the most appropriate time for therapeutic input has long since passed and therapy would now be a challenging process for him. It seems likely that this instability will continue.

In his current presentation the father meets the criteria for enduring personality disorder. The subcategories of personality disorder overlap considerably, but the three main "clusters" can usually be reliably discriminating. These are:- cluster (A) odd or eccentric behaviour; cluster (B) disordered behaviour; cluster (C) anxiety and fearfulness.

The father's personality is best subsumed under cluster (B), which contains elements of anti-social, dramatic and disordered behaviour.

The father's psychological functioning raises serious concerns about his ability to provide risk-free parenting, irrespective of any findings against him.

The overall conclusion of the assessment is that the father presents a high risk to children in his care, and indeed to partners. Without clear demonstration of very considerable change through therapy, my view is that in his current functioning the father would pose an unacceptable risk to a child. Should there be findings against him, these concerns would of course be multiplied.

The father currently presents as a poor candidate for psychological therapy. Should therapy be made available to him, and should he choose to engage, he would require at least a year of successful engagement before being reassessed. Any changes therapeutically would need to be complemented by a more mature and collaborative relationship with social care professionals, and clear indications of a stable and crime free lifestyle".

72. Dr Reading's conclusion referred to is not of course dependent upon the outcome of the three contested issues of fact in the Local Authority's Threshold Document. His conclusion, together with the remaining unopposed threshold findings, would exclude the father as a future protective parent for R, and R's placement with the father (or a placement in a household in which the father was physically a part) could not be sanctioned without risking R's safety and her future welfare.
73. Accordingly, the suitability of the Local Authority's Final Care Plan for placement could be determined solely on the above basis before considering the disputed Threshold allegations. The Guardian indeed makes this point in the penultimate paragraph at page 4 of her final report, and in her oral evidence to me.

The ABE interview

74. Before I deal with A's interview, it is important to bear in mind that the interview on 17^th December 2007 was primarily conducted for the purpose of a possible Police prosecution in criminal proceedings. There are three key differences between such proceedings and the current proceedings:

(i) the standard of proof is different. I am not required to be sure about an allegation, only that it is more probable than not;

(ii) I am not required to date precisely these allegations. There is no requirement to establish an exact date or a period of time during which any incident occurred, as there would be in a criminal charge or on an indictment;

(iii) unlike criminal proceedings, I am not constrained to find the criminal elements of an offence to be proven, relating either to the defendant's mens rea or indeed to the actus reus of any offence.

The Threshold under section 31 of the Children Act 1989 relates to the existence of harm or the risk thereof, together with an absence of reasonable parenting.

75. This context of criminal investigation led in the ABE interview to rigorous (indeed, overly rigorous) questioning of A as a nine year-old complainant, about what reference was being made (if any) by her to any specific parts of the female or the male genitalia, and to whether actual penetration (digital or penile) had or had not occurred. Indeed, the questioning at page A102 (which I observed on the DVD in relation to these aspects) was (at that point of the interview) overly assertive and verging on the hectoring when applied to such a young child.
76. However, in general the interview proceeded in accordance with the ABE guidelines. "Truth and lies" was considered in the customary manner, the questioner tried to establish a "rapport" with the young complainant, there was an opportunity for "free-narrative recall", then there were "questions" and finally "recap" before "closure". The interview was not perfect in all respects, but it was not mismanaged so as to lack any evidential cogency either.
77. The unusual feature of this case was;

(i) the lengthy interval between the original interview in December 2007 and the complainant's cross-examination during these proceedings seven years later;

(ii) the consequent mismatch between the complainant A's appearance as a nine year-old child in a DVD recording, and her appearance as a sixteen year-old young lady by video link in Court;

(iii) unavoidably, that significant passage of time placed a considerable distance between the witness who made the original complaint and the witness in her appearance in the Courtroom. Indeed, A appeared detached and unmoved when watching the original complaint, and there was only one occasion when she lost her composure and that was when it was suggested to her in cross-examination that she had previously asserted that her father had sexually assaulted her. At that point she walked out of the witness suite in the Combined Court Centre, and she only returned after a short break.

78. In her interview she dealt with the three episodes which have been contested during this hearing.

The allegation of physical assault

79. This is the subject of paragraph 10 of the draft Threshold Document. An incident occurred the evening of 4^th December 2007, and this was reported to the [name of Constabulary given] on 7^th December 2007 (see A78), the report being made by VE (R's paternal grandmother).
80. The incident occurred in the paternal grandmother's home in X [name of town given]. The paternal grandmother lived there with her spouse/partner and her three children. The father in these proceedings (who was then aged 21 or so) lived with R's paternal grandfather and would visit his mother and step-father several times during the week.
81. This was a three-bedroomed property. There was a downstairs toilet, a living room, and a kitchen which was also downstairs. There were three bedrooms and a combined toilet and bathroom upstairs.
82. The paternal grandmother also had the care of her granddaughter at the time, who is of course the father's niece.
83. The paternal grandmother's statement to the Police indicated that she asked her daughter (A) to keep an eye on the father (who was in the kitchen making a cup of tea) because he (the father) had stolen items from the paternal grandmother in the past. That allegation is consistent with aspects of the father's antecedent history.
84. According to A's ABE interview on 17^th December 2007, A was assaulted by the father in the kitchen; thrown back against a wall which hurt her head, and punched to the chest and smacked to the mid-back area (see A86 to 87). This physical assault left some red marks.
85. The allegations are supported by the paternal grandmother who said in her statement that upon her entering the kitchen, A was gasping for air and complaining that the father had strangled her and had hurt her chest, before she burst into tears (see A79). There was reddening to A's neck and chest and a mark on her forehead. There were also marks on her back. The paternal grandmother told the father to leave, and the marks had disappeared by the next day.
86. The father was interviewed by the Police on 18^th January 2008 (see A106 to A107). In that account (as in his oral evidence to this Court) he and his sister L were in the kitchen. A came into the kitchen and wrapped herself around his leg. In order to release himself he (the father) shook his leg repeatedly to get free and A fell backwards and accidentally hurt her head. In his oral evidence, the father said he and L were smoking in the kitchen and when A came in, she started pushing him and he told her to go into the living room and then she grabbed his leg, and, shaking himself free, she fell against the freezer. A appeared to be hurt and was crying; it was "a bit of play that went wrong".
87. The Police and Social Services were involved in a joint investigation following the paternal grandmother's complaint, and while Social Services visited A at her school she made her complaint of sexual assault against the father.
88. In relation to the physical assault the father as a twenty one year-old young man was, of course, much stronger than a nine year old child.

The first sexual assault allegation

89. In relation to the two allegations of sexual assault, the first (which appears in A's ABE interview) relates to paragraph 8 of the draft Threshold Document, although the precise chronological sequence and the dates of the alleged incidents are not clear from the account given. All one can say with certainty is that they pre-date 4 December 2007, if they occurred.
90. Indeed, I suspect that this difficulty in getting A to date this alleged incident played a part in the CPS/Police decision that, "the case was compromised by late disclosure" (see A72), although the father's counsel indicated to me in his closing submissions (quite rightly) that other reasons are also noted for that decision, which include the consistency of the complaint and the absence of any supporting evidence.
91. In interview, A (see A97), when asked when the first alleged incident of sexual assault occurred, said:

"It wasn't ages ago".

Then later, when asked about how old she was at the time:

"About seven, about eight, not long ago".

92. That timescale, of course, would be in the range of twelve to twenty-four months before the disclosure to Social Services and without any intervening familial disclosure to her own mother, the paternal grandmother. Confusingly (see A98), A also suggested that the episode had occurred a few days before.
93. The first incident described by A occurred in the upstairs toilet/bathroom. She was having a wash and wearing her pyjama top; the father came into the bathroom and he took out his penis. The account given (see A89 to A93) about what actually occurred next is not particularly clear. There is an attempt by the interviewing Officer at the "recap" stage of the interview (which came after an interval; at A100 to A103) to clarify what precisely occurred, and there is some assertive questioning (see pages A101 and A102).
94. During this account as a whole, both digital and penile touching/manipulation is described, but it is unclear whether actual penetration occurred. It is also unclear whether it is the anus or the vagina or both which are penetrated or manipulated/touched, or whether A was referring to the top of her thigh or to her leg. A did describe, however, an aftermath of pain and discomfort.
95. The incident appeared to come to an end with A shouting for her mother, and the father lifted up his underpants and went downstairs (see A92).
96. The paternal grandmother in her Police statement recalled that A's bottom was sore and appeared a little red in early December 2007; some Sudocrem was applied. Of course, the relevance of this evidence depends upon the timing of the alleged incident of sexual assault itself, and whereas the paternal grandmother supported A's account of the physical assault in the kitchen, she did not support the allegations of sexual assault made by A, asserting that the father had never been left alone in her home with the children because he would "steal things", and secondly because she could not remember any occasion when the father went upstairs when the children were present (see A80).
97. The father, of course, in his account to the Police and to this Court, denies this first incident in its entirety; it is a complete fabrication.

The second sexual assault allegation

98. This is referred to in paragraph 9 of the Threshold Document, and it is the second episode of sexual assault referred to by A in her ABE interview (see A93 to A96).
99. A was downstairs in the living room on the settee playing with her younger sister. A alleged that the father digitally touched her anus or genitalia underneath her skirt. This appeared to be over her clothing (although it was uncertain whether it was over her knickers and tights or only over her knickers).
100. Again the timing of this incident was unclear. In her oral evidence, A could not say how long had elapsed between the two alleged incidents of sexual assault. She accepted that her mother (namely the paternal grandmother) and the paternal grandmother's spouse/partner were in the next room. She did not shout or scream for assistance because she was scared.
101. The father in his account to the Police and to this Court, again denies this incident in its entirety. Again, this is a complete fabrication.

A's medical examination

102. There had been an attempt to arrange a medical examination of A on 18^th December 2007 by Dr Mackereth. That did not proceed because he was a male doctor (see F7). It is recorded, however:

"Dr Mackereth had a look at A's neck, which had some marks, but did not record anything".

Forensically that is of little assistance to this Court.

103. On 20^th December 2007, Dr Sandra Horrocks conducted the Child Protection Medical; that was approximately sixteen days after the alleged physical assault had occurred. Forensically in relation to both the physical and sexual assault allegations, that is an unacceptable delay.
104. There is no evidence of physical assault noted by Dr Horrocks. In relation to the genitalia the following is noted (see F4):

"The urethra and the clitoris were normal. She had a normal hymenal configuration, pre-pubertal and crescentic in shape with no attenuation or tears evident and with a fine sharp edge. Her knickers showed no sign of discharge, and neither was any discharge seen on inspection of her genitalia. The posterior fourchette was sharp and well defined and with no sign of any injury, i.e. scarring. The genitalia were also examined in the left lateral and knee positions, and the same findings confirmed."

105. In the Opinion section, the following arises:

"Whilst there were no abnormal findings on examination of A's genitalia, this does not rule out that she has been assaulted sexually as there was a delay in the information being reported, in which time any injuries could have healed. … It is not possible therefore, from the examination alone, to say whether or not the alleged assaults occurred".

106. I have noted already the absence of any previous convictions by the father for sexual offending.

Credibility

107. I group under this heading a number of the other features which either support or undermine the evidence of the complainant A and the father in this case. This is not necessarily an exhaustive list, but I select those aspects which I believe to be of greatest relevance. Some were referred to by the advocates for the Local Authority and the father respectively in support of their rival closing submissions to me.
108. So far as the Guardian and the mother are concerned, they of course adopted a neutral stance with regard to these three contested Threshold findings.

The complainant

109. Firstly, the absence of any recent complaint by A to her mother about the sexual assaults. This contrasts, of course, with the recent complaint about the physical assault. There is also the support given by A's mother (the paternal grandmother) with regard to the complaint of physical assault, when contrasted with the absence of belief with regard to the sexual assaults.
110. I remind myself, however, that the paternal grandmother (VE) has not given evidence directly in this case and her credentials as a consistent protective adult may be unreliable, the father's own childhood being an indicator of this.
111. A told me that she was "scared to tell her mother in case they [that is a reference to Social Services] moved her from her mother's". No other clarification was given for the absence of disclosure by her.
112. Secondly, on any view, the sexual assaults occurred when there were other third parties (including adults) in reasonably close proximity. A's mother (the paternal grandmother) was called from downstairs by A, which brought the alleged sexual assault in the upstairs bathroom to a close. The assault in the living room downstairs was in even closer proximity to third parties who might have been alerted to intervene. A's mother (the paternal grandmother), for instance, was on the other side of the doorway.
113. On any view, the father might well have taken enormous risks in perpetrating these episodes when the prospect of detection objectively was so imminent. However, the father's character is an impulsive one; would the impulse of the moment be swayed by a calculation of the prospect of detection and apprehension?
114. Thirdly, A did admit in cross-examination that she had previously alleged that a schoolboy had sexually abused her; an accusation which was untrue. She said:

"I don't know why I made that up".

There is reference (see F16) to an episode of oral sex by A on this schoolboy, which was a consensual episode. This incident, however, is not dated.

115. Fourthly, (as I have said already) the account given by A in her ABE interview in several respects lacked clarity, in particular with regard to the timing and the detail of what occurred, and the chronology. Because the original complaint arose in 2007 and she was being questioned about these matters in 2014, the passage of time and subsequent conversations with professionals about the allegations have led to a number of discrepancies about what precisely occurred, and the order of events described.
116. There are also internal inconsistencies within the ABE interview itself (for example, with regard to timing) and there are inconsistencies between that account and the account given to third party professionals, including the location of some of the incidents. For instance, by way of example, (see F11) in a local authority case note dated 15^th July 2014 obtained for a wholly unrelated purpose of a sexual health screening questionnaire, it is noted then that:

(a) A complained to her mother about sexual abuse by the father, who was banned from her home by the paternal grandmother as a result;

(b) A indicated that her vagina had been touched by the father in the bedroom while her mother was downstairs; and

(c) A indicated that she had been made to watch pornography by and with the father.

These accounts are not compatible with the ABE complaint.

117. At F6 there is the record of the original complaint made by A at her school on 17^th December 2007, prior to the ABE interview that day. The physical assault was in the kitchen; it was described at F6 and not identically to the ABE interview. While A pointed out marks to her neck, it was also noted "she told us these were warts".
118. The bathroom sexual assault was described (see F6 and F7), and the sexual assault downstairs on the settee was described (see F7); again not identically to the ABE interview. For example, A refers to digital touching/manipulation/penetration of her vagina/genitalia on the settee at F7, but to digital touching/manipulation or penetration of the anus in her ABE interview (see A93 and A94) when dealing with the settee episode.
119. I place far less reliance on the Police summary (see A3) relating to the entry for 1^st October 2007 to 29^th November 2007; this is not a recording of first-hand information given by A herself.
120. There were inconsistencies also in A's oral evidence, for example, A told me that the upstairs bathroom episode occurred while she was getting ready for bed. Later, somewhat confusingly, she said that her mother (paternal grandmother) was in the house cooking everyone's tea. A was by no means the youngest child in that household, and no clarification was provided as to why she was going to bed while others (including other children) were being fed. A's concept of time had not improved in her oral evidence either. She indicated at one stage in her evidence that the time between the sexual assaults and the doctor's examination was, "shorter than a day". Assuming the sexual assault pre-dated 4^th December 2007, the subsequent medical examination was plainly not conducted in a timeframe put forward by A in her oral evidence.
121. Fifthly, I have to caution myself about A's assumed sexual knowledge as a teenager about sexual matters, and her assumed sexual knowledge as an eight or nine year-old. In her oral evidence, she knew the difference between an erect and detumescent penis and knew about the ejaculation of semen. However, even as an eight or nine year-old she was able to describe the penis (see A101); the father told me that A had acquired this degree of sexual knowledge because she had access to pornographic material in the paternal grandmother's household. I appreciate what the father says with regard to that, and I quote his words given in oral evidence, "…children would see sexual material in that house".
122. Childhood may no longer be an age of complete innocence and children may indeed be vulnerable to the display of sexual imagery in the modern world from a number of sources. However, I have to ask myself whether A's account is a fabricated account, making use of the sexual knowledge as alleged by the father, or is she recounting, however imperfectly, an actually experienced episode?
123. Sixthly, it was suggested on the father's behalf that the discrepancy between the father's height (in excess of six foot tall) and A's height as an eight or nine year-old as judged from the ABE DVD, demonstrated the physical unlikelihood of the conduct described by A in the bathroom. Furthermore, the abbreviated nature of the sexual encounter described by A in the bathroom, and on the settee, precluded the kind of complete sexual gratification which was the presumed motivation underlying those assaults - thus making them unlikely to have occurred.
124. Seventhly, A appeared to be genuinely affected by the relaying of her account in a number of respects:

(i) she was shocked and she left the interview suite when it was suggested that her own father had sexually assaulted her and that she had previously made such an allegation. She denied this upon her return to conclude her cross-examination; and

(ii) during the ABE interview she complained of feeling sick on several occasions (see A94, A95, A100) and she needed to go to the toilet during her ABE interview, and I have to ask myself was this a feigned or a true reaction? When she said (see A98) with conviction in her interview, "I do know it did happen", that was said with emphasis, and I ask myself was that true or was that a lie?

125. Eighthly, on several occasions already in this judgment I have mentioned the absence of supporting medical evidence, and the absence of sexual offending in the father's offending history.

The father

126. Firstly, the father suggested that A was fabricating her allegations against him, either:

(a) "because the girl's got problems"; or

(b) "because the paternal grandmother (VE) made her".

127. The motivation for the paternal grandmother's conduct in this regard (the father states) was, "my mother wanted to get me out of the house".
128. Encouraging a child (A) to make a false complaint to the Police when she was eight or nine to secure this objective might be seen as a fairly extreme way to behave, particularly as the paternal grandmother in her Police statement of 15^th January 2008 (see A80) far from supporting A's allegation, suggested that it might be untrue because of an absence of opportunity. Furthermore, the paternal grandmother was under no particular obligation to accommodate the father as a twenty-one year-old, and I ask myself, why did she just not ask him to leave if that is what she wanted?
129. Secondly, the father had serious issues of credibility with regard to his correct full name and correct date of birth. In Court, he confirmed his date of birth as 18^th June 1986. However, there are clear indicators that he has (in his replies to the Police and to others) in the past used 1985 or 1984 as the year of his birth, and also that he had tried to abbreviate his full name. This may well have been intended to conceal from Police his true identity/his fingerprints or antecedent history. However, it confirmed an absence of respect for authority and a willingness to lie if it served an immediate end.
130. Thirdly, there is no independent record of A herself making an historic complaint against her step-father or father, nor indeed that she had been raped when she was five years of age. There is no independent documentary evidence of such an incident referred to in the Police material. The reference (see F7) is to the paternal grandmother (VE) making a reference of this kind to DC Warring in 2007, but that is not independently verified.
131. The father made a number of accusations about A, including sexualised behaviour between A and the other children in the paternal grandmother's household, and other false accusations made by her against him previously. The source of this information is, however, the father himself; hardly an impartial source in the context of this case. However, the father somewhat confusingly at one point in his evidence said:

"A has no kind of grudge against me".

The motivation, therefore, for her alleged false accusations against him (the father) on this scenario would be unclear.

132. Fourthly, the father has sent a number of text messages to his sister L making it plain that, "A will pay for lying" and "I'm going to be the one questioning her in Court". This appears in the context of a general conversation between the father and his sister L, by sequential text messages. It was suggested that the father's motivation for these comments was to dissuade A from pursuing her complaint in this Court, by L's transmission of these sentiments to A on the father's behalf, because he wanted to derail the complainant.
133. The father denied any such intention; the texts were an indication of the strength of his disagreement with the complaint made by A, and designed solely for L's benefit without any ulterior motive. That essentially is what is said on his behalf.
134. This is an indicator of the father's impulsivity but not, I believe, an outright admission, even inferentially, of liability or guilt.
135. Fifthly, there is no real context for the father's account of A's conduct leading to the physical assault allegation. Why did A suddenly grab his leg to prevent him from moving? No real explanation is provided, save that it was, "a bit of play". A's account of being sent by her mother to watch the father and to prevent him from stealing is, however, consistent with the father's past dishonesty, and is a plausible explanation for the physical assault by the father when he realised that he was being watched by A.
136. Sixthly, I have referred already to the father's general character, his personality and his past behaviour, and his conduct in this Courtroom, and it is evident that he can lose his self-control and behave impulsively and without restraint. At E139 for instance, a dispute in contact led to the hard and aggressive knocking of a main door at the contact venue in the course of these proceedings, and the physical assault of the kind described by A was of course the result of a momentary loss of self-control, serious because the victim was of course a child and the perpetrator was an adult.

My findings

137. Firstly, on the balance of probabilities I conclude that the father did physically assault A in the kitchen, as described, probably because the father realised that he was being watched at the behest of the paternal grandmother. This is a more convincing overall explanation for the incident; the father pushed A roughly and with excessive force, and gripped her roughly around the neck. Some physical aftermath of this assault was evident, but it certainly cleared by the time of the delayed medical examination.
138. The description of the father's behaviour by A is consistent with his personality and his character, which is an impulsive and a reckless one. Accordingly, allegation number ten of the Threshold Document is proven on a balance of probabilities. Having made this finding, it follows that A was truthful about this episode; the father was not. That is a factor within my overall assessment.
139. Secondly, because of the deficiencies in the detail and the clarity of the account provided by A with regard to the sexual allegations, I would not have found these established to a criminal standard of proof, and I can understand fully why the Crown Prosecution Service/the Police did not pursue criminal proceedings.
140. I am not persuaded on a balance of probabilities that all of the elements of the father's sexual misconduct as alleged by the Local Authority in paragraphs 8 and 9 of the draft Threshold Document, have been established, and I am not convinced on a balance of probability that actual penetration occurred.
141. What I do conclude on a balance of probability is this; at some time before December 2007 in two separate instances:

(a) the father exposed his penis to A and he tried to touch A sexually with his fingers or hands or penis, before she called out; and

(b) the father touched A over her underclothes in the general area of her genitalia/anus.

142. I am not satisfied on a balance of probability that digital penetration or penile penetration of the genitalia/anus occurred on either occasion.
143. This conclusion is also consistent with the father's reckless impulsiveness and the absence of self-restraint. The gratification of a pressing imperative, be it sexual or a less easily defined libido (e.g. the desire to humiliate or dominate) without consideration of the consequences would be wholly in character for the father. He had historic experience of unregulated sexual behaviour within the family since childhood, and his sexual appetite/libido from adolescence (at least judging by his own accounts) was considerable. As there was an opportunity, he took it; the fact that these incidents were curtailed is not an indicator that they did not occur.
144. As a result of these findings and the other threshold findings, the father, I conclude, does present a risk to his daughter's safety and well-being in the absence of third party supervision.

Contact

145. Having regard to the assessment of risk undertaken by Dr Reading and supplemented by my findings of fact, the father's contact with his daughter will require adult supervision for the foreseeable future, either by the Local Authority or perhaps at some stage in the future by R's mother.
146. Firstly, however, R's mother will need to fully appreciate the risks and improve her resolve to keep her distance from the father, and increase her resolution and her resilience in this respect. I have already referred to the mother's evident vulnerability when she gave her oral evidence.
147. The mother and R are probably the best thing that have ever happened to the father in a life hitherto short of any other distinction. I can see why the mother would have sympathy for the father in his predicament, but she must not allow that sentiment to lead her astray.
148. The father also needs to improve aspects of his parenting technique; he needs to accept advice without reacting adversely. For example (see C54) there is an episode of rough handling by the father of R which should not be repeated. The father, in fairness to him, acknowledged that there was much he needed to learn when dealing with R during contact.
149. I remind myself also that it is only the mother who has signed a Contract of Expectations with the Local Authority in this case; the father refuses to do so.
150. The father's commitment to any future therapy is shallow; he sees no need for it nor for any modification in his behaviour. The father's presentation with professionals during contact can on occasion be difficult, and I have an appreciation of the difficulties having seen the father and his behaviour for myself.
151. These are all practical aspects which form an important part in selecting the appropriate level of contact.
152. I firmly share the belief of the Guardian and Miss Hughes that supervision of contact is required in the father's case. The social worker's main justification for the proposed contact provision for the father of once every three weeks (which I accept) is:

"Placement stability with the mother would be affected by more frequent contact".

The Guardian also in her oral evidence reinforced that imperative.

153. The key social worker's assertion that contact once every three weeks would not impact on R's attachment to her father if the contact remained of the same quality, I found to be less persuasive as a justification, and I was reinforced in that view by the evidence of the Guardian.
154. However, this is a familial placement which is proposed, and the Local Authority are under a duty to promote reasonable contact for the father. However, the mother remains fragile, as indeed does R's placement, and that must not be jeopardised.
155. I accept fully the above part of the key social worker's evidence and her reasoning for the suggested level of contact for the father.
156. The Guardian says (in her final report at page 7 and also at page 9):

"The father is often confrontational and hostile towards professionals, making it extremely difficult to develop a co-operative working relationship. He rejects the majority of historical allegations, suggesting that nothing has been proven against him, attributing the more disturbing behaviours of his adolescence to his early experiences of abuse and claiming increased maturity in adulthood".

The Guardian goes on:

"The father is unlikely to be a significant attachment figure for this little girl. It is unlikely that the father will play a significant role in her future care, and thus R's relationship with him will be of less importance to her as she grows up. I would suggest that there will need to be a substantial reduction in contact which reflects the long-term care arrangements for R, and which allows this little girl to enjoy a settled and secure home life with her mother. I am of the view that the three-weekly contact proposed by the Local Authority will achieve this end whilst allowing R the opportunity to grow up knowing and enjoying a positive relationship with her father. The risks that have been identified in respect of the father, in my view, require a continuation of supervision during contact sessions".

157. Contact once every three weeks would be approximately seventeen times per year. I would make only a slight adjustment to that level at this stage by supplementing one additional contact for the father around about R's birthday in June, and one additional contact around about Christmas time. Accordingly, I would invite the Local Authority to modify the Care Plan to accommodate that suggestion, or alternatively I would make a defined Contact Order in that respect.
158. Save in that regard, the contact proposals for the father are approved by me; the level of contact will of course be kept under regular statutory review. That is not a process which is designed to lead to any particular conclusion with regard to the future level of the father's contact. If the father is dissatisfied, he can make an application to this Court.
159. What R's contact provision with her father might be up to her attaining the age of majority, it is simply impossible for me to judge at this stage.

The conclusion

160. Accordingly, having made threshold findings in this case, either without opposition or as a result of the above findings of fact made by me, and having approved the Local Authority's Care Plan which provides for R's placement with her mother and regular contact with her father (that, I judge, being a proportionate outcome which maintains R's familial links in this case). I make a Final Care Order and I make Ancillary Orders with regard to the provision of a transcript to be met by the joint expense of each party so that the father can read in detail the reasons for the decision that I announced earlier. I will permit the Independent Reviewing Officer of the Local Authority to have disclosure of that transcript to him or her.
161. I make no Order so far as costs are concerned, save for the usual provision for a Public Funding Assessment.

End of judgment