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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> SCC v. H, H & Ors (Supervision Orders) [2016] EWFC B51 (23 May 2014 )
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B51.html
Cite as: [2016] EWFC B51
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Case No: NZ13C00144
IN THE FAMILY COURT
Sitting at the Designated Family Centre for Surrey
The Law Courts, Mary Rd, Guildford, Surrey GU1 4PS
Date: 23 rd May 2014
Before :
His Honour Judge Nathan
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SCC
-v-
H, H and others
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Hearing dates: 16, 19, 20, 21, 22, 23 May 2014
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JUDGMENT
His Honour Judge Nathan:
1. These are applications for Supervision Orders by Surrey County Council in relation to a boy of 13 and his 2 sisters aged 10 and 11.
2. The proceedings were brought because of fear of sexual harm to the children by their father. He was convicted of USI 24 years ago. Since then he has been the subject of a number of further allegations of sexually abusive conduct to young girls. The proceedings were precipitated by a series of events during 2013. His daughter B repeated an allegation of sexual abuse originally made in 2009, leading to an ABE interview and review of the history by a new social worker. Her heightened concerns led to Social services requiring and the mother agreeing that there would be no unsupervised contact to any child. When they discovered in August that the mother had in fact allowed such contact and had then colluded with the father to cover it up, these proceedings were initiated.
3. The children who are my paramount consideration are AH,BH and CH born respectively on 17.10.00, 1.12.02 and 28.4.04 and therefore aged 13, 11 and 10 years
4. Their parents are EH and DH aged respectively 49 and 51.
5. Both parents have children by previous relationships. DH has daughters called F and G, EH a daughter called L. They also have one older child together - M now aged 22. They married in 1991 living thereafter in Surrey. They separated in 2003 and subsequently divorced. Before they met DH had lived in Cleveland. It was there that in August 1990 he was convicted of USI with a girl of 14 and taking a child without authority and sentenced to 3 months and 1 months imprisonment.
6. There had been earlier allegations of abuse by at least 2 of DH's sisters and his daughter G. As result there were wardship proceedings in the 1990s resulting in G being placed in the care and control of her paternal grandparents with DH withdrawing his application for contact with her. L, and in due course M, were also made wards of Court, but care and control of the two girls being granted to the parents, with a Supervision Order to Surrey County Council.
7. Subsequently the parents separated and there were divorce proceedings. More allegations against DH arose though. In 2009 B - then 6 - was said by her mother to have given her an account of abuse by her father. Police Investigation did not lead to any charges. There were further allegations against him in 2012 by a friend of M's. The local authority were also very perturbed to find that he and the mother were also associating with GN, a "Schedule 1" offender at that time, events that triggered Children's Services re-involvement. The case had in fact been closed by social services for a period from 2009 to 2011, but the children were placed under child protection plans in March 2012 following those discoveries.
8. Part of the measures under the Child Protection Plan was 'keep safe' work for B. This she did from August that year with someone called Mary Williams.
9. On 9 January and 5 February 2013 B told her that she had indeed been sexually abused by her Father - as she had alleged in similar terms in 2009. As a result, first she was ABE interviewed on 16 April 2013, and second Amy Lingefelder the social worker began to collate the history. As she said in her first statement at paragraph 5.13 [C 17] "the conglomeration of all of the information, provided a much clearer picture of the chronology of allegations and accounts of sexual abuse alleged to have been perpetrated by Mr H ..... over a number of years against approximately 9 alleged victims, all of whom were young females, some of whom are close relations. The collation and analysis of this information led to the local authority initiating the public law outlined process."
10. However in August 2013 EH allowed A to have unsupervised contact to his father at a campsite. As I said earlier she did this in breach of an agreement and then colluded to cover this up, hence these proceedings.
11. The local authority also alleges that the DH has been physically abusive to EH and that alcohol use by him is a factor contributing to heightened risk. He has a criminal history of extensive youthful delinquency and some more recent (relatively speaking) driving under the influence offences. Mrs H for her part seeks the extension of a non molestation order made by Her Honour Judge Cushing earlier in these proceedings and in that she is supported by the local authority and guardian.
12. The children have in fact remained with their mother through these proceedings and the local authority accepts that she should have Child Arrangement Orders pursuant to which they should live with her, and only seek Supervision Orders. There is no disagreement about their remaining with their mother from any party. The father no longer opposes the Supervision Orders, but contests the contention that the threshold has been passed, strenuously opposes the findings of abuse sought and therefore opposes any consequent regulation of his contact to A that might follow such findings, though he does not oppose supervision of contact to the girls - he says - for his own protection.
The Mother's relevant background
13. EH was born on the xy and after what seems an unremarkable childhood she met a man called MM when she was 18 and began a relationship with him. She became pregnant with L marrying MM late in the pregnancy. After the birth, the marriage became increasingly strained and when she was 19 they separated. She had 2 relationships after that and in 1990 at the age of 24 or 5 she met DH when working in a pub that he went to. After approximately 2 months he asked her out and they began a relationship. After a few months he moved into her home and she became pregnant. She gave birth to M in September 1991 and they married in October of that year. Mrs H has talked of a relationship in which she was the frequent victim of domestic violence. That violence included a slap, a punch or a kick. She required medical treatment on occasions mostly for bruises, but once, she says, for a hairline crack on her jaw. The marriage to DH broke down at around the time B was born. She said there were three police call outs in one week following his return from the North where he had been when B was born. She applied for an occupation order, and filed divorce proceedings. A decree followed in 2004. Contact to the children continued thereafter though. Indeed on occasions the parents and children went on holiday together. Hence L was conceived after their separation. Even after the allegation by B contact resumed albeit after a break. On occasions the children stayed over night. on at least one occasion Mrs H came along for short trip. On occasions he would visit the family home for instance at Christmas.
The Father's relevant background
14. DH was born on 18 October 1962. He suffered an acutely unhappy childhood. He was in calipers and says that his mother called him the spastic child she didn't want. Until the age of six or seven he was brought up by his paternal grandparents. Not only has he recalled that his mother was cruel to him, indeed he says he " absolutely hated her, every bit of her", his siblings also picked on him. They were, he said "evil". His father was, though, caring and compassionate. I have already mentioned his first relationship, with a woman called OH. They married in 1982, a few months before F her first daughter was born. He separated from O after an infidelity that led to her having a child, P. Subsequently they divorced and in proceedings relating to the children an order for their joint custody was made, O having care and control. Eventually G went to live with Mr H.
15. It was in relation to her, seemingly, that the first of a series of allegations of abusive or sexually inappropriate behaviour arose. I set them out at this juncture as part of the history, and not to indicate that I find them to be true. In all there appear to be at least 10 possibly 11 such allegations over a period of 20 years spanning January 1989 to 2009 and involving at least eight girls or women. The first allegation was in January 1989 when OH told her probation officer that Mr H had sexually abused G. Later she withdrew this allegation. The second was in September 1989. The paternal grandparents alleged that Mr H had sexually abused G. That was based on firstly what G had said to them, secondly what they themselves had witnessed on an occasion when Mr H was allegedly discovered in compromising circumstances at home when there was a delay in his answering the door. There was also further evidence before the court in subsequent wardship proceedings from someone called VQ that G had made what amounted to a disclosure against her father, and that he had given an untruthful reply about this. The third and fourth of the series of allegations were made at some time shortly after this but before March of 1990. They involved Mr H's sisters R and S and related to abuse alleged to have taken place many years before. In S's case between the ages of seven and 14 and including penetrative sex. She alleged that her brother had kept her quiet by threats that she would be taken into care. R alleged that she had been abused between the ages of five and eight. She said that she had been threatened not to tell. What I will call the fifth allegation is dated at March 1990. Referred to at page E 12 by Mr Squire in his report he says "there is also a further offence of indecent assault on female under 14" at the Teeside magistrates Court in March 1990 which was ordered to lie on the file. I have no more detail of this and am suspicious from the note I have seen at page [I 74]. That this may be a repetition of the case involving one of his sisters. The next allegation and therefore either the fifth or sixth came from his youngest sister T. It was made in October 1990. "T (who used to get on all right with Mr H) went to stay with him in his property in Egham. She alleged that he tried to make so "inappropriate an approach towards her" that she got up and attempted to arm herself with a knife.
16. The sixth or seventh allegation, and the only to result in a conviction was the abuse of KU, a girl aged 14. Mr H had had a sexual relationship with her for a while. She also alleged, though his conviction appears not to relate to, sexual intercourse he was alleged to have had with her immediately after she came out of hospital having suffered a miscarriage and in circumstances which she said caused her considerable pain. In a statement in wardship proceedings in 1992 Mr H admitted that he continued to have a sexual relationship with her at the time that he was aware of her age. There was also a statement of evidence in criminal proceedings to the effect that he had attempted to get her to say that she had said she was 16. He was sentenced to 3 months imprisonment for these offences in August of 1990. The seventh or eighth allegation is referred to by Mr Squire. It is dated 2007 and relates to the taking of a child without consent and inappropriate touching (I have no more information about this matter). The eighth or ninth relates to an allegation of rape made on or about the 28 th July 2005. the police summary of 30 th July [J 49 ] said that after the complainant and Mr H had played strip poker he had intercourse "being reckless whether aggrieved consented" there was no witness and no CCTV. The aggrieved was 31. 4 months later the CPS decided to take NFA because it was felt there was no realistic prospect of success. I suspect that this was the same matter raised by Mr Squire in his report at paragraph 30 which reads "Mr H stated that "years ago" he "got arrested" for an alleged rape of a woman called and who "lived opposite me"". The ninth or tenth allegation is that made by B in 2009 to her mother, but which was not followed up because of the absence of any disclosure in the ABE interview. I will come back to this. In any event this was the allegation subsequently repeated in 2013 in the ABE which forms part of, indeed was the principal precipitant of these proceedings. Finally in 2011/ 12 there was the tenth or eleventh allegation by a girl called LV, a friend of Mr H's daughter. She said that she had been the victim of a sexual assault by Mr H. Once again this did not result in proceedings.
17. As I have said, it was after his release from prison following the USI conviction that he left the North East and came down to this area where he met married and had a family with EH. I would add that in addition to the complaints of inappropriate sexual behaviour there have been many complaints of domestic violence levelled against Mr H. He told me he had been arrested 4- 5 times during his marriage to EH and convicted on one occasion for common assault to her. Complaints, not proceeded with by the police, of domestic violence were made by a girlfriend before his relationship with EH, and by another not long after they had separated in 2003. That complaint was made only 3 weeks or so before another complaint of a violent incident in this area where both EH and her daughter L made statements alleging they had been assaulted by Mr H.
18. I come back to the detail of what b said in 2009. According to Page H8 in the bundle, Mrs H referred the matter to social services on 5 March 2009. She said that B had been more relaxed during the previous five week period when her father had been in prison. Whilst sitting together on the stairs she told her mother that she had something to tell her. She said that B said this "you mustn't tell daddy or he won't love me any more and he said that he will get into trouble". She was reluctant to say any more but said "he misses me and gets into bed with me. Sometimes he wakes me up sometimes he doesn't. She then added "when he's finished, he gets out of bed". She then clammed up. Subsequently the police were informed and officers visited B with a social worker, Denzel Bell. As is revealed by Page H 10 of the bundle, she told them that her sister C and brother A did not visit her father very often and she usually stayed at dad's by herself. She said that since the age of four, daddy would get into her bed and sleep in it with her. She said that sometimes he made her touch his arm and his hand. She was unable to say how he made her do this. She said his hand was moving up and down when she touched it, but was unable to say what his hand was doing or touching at the time it was moving up and down. She said that daddy had told her she was never to tell anyone about this and it was a "special double secret" they shared. She was asked what she wore to bed and she said her pyjamas and asked if they ever came off at night and she replied no. She only said that daddy wore boxer shorts when he got into her bed. She was unable or unwilling to give any more information and only said she did not want to spend weekends with her daddy any more. I will come back to what B said in 2012/13 about what her father did at a later stage.
19. In brief, Mr H said that the allegations made by G, S and R had been orchestrated by his mother in collusion with his sisters, out of malice and a wish to gain control of G. The allegation by T was untrue. He had not known KU was only 14 when he had sex with her, and she had led him astray. The allegation by B had been fabricated by EH. The allegation by LV was his daughter M's fault because she always got people to tell untruths about him to get attention from her mother. The allegation of rape in 2005 was from a person who had mental health problems.
20. This history, particularly of the complaints of inappropriate sexual conduct was examined by Tom Squire, a senior practitioner at the Lucy Faithful Foundation, in a report on the father. Mr Squire also prepared a report on the mother and answered questions in an addendum report. He was of the view that it was of concern that such allegations had been made against Mr H by different girls and women over many years, when there appeared to have been little or no contact between many of the alleged victims. He did not find Mr H's assertion that the allegations were orchestrated by either his mother or his ex-wife to be credible. That many of the alleged victims have been prepared to be interviewed by the police, including his daughter B, was an unusual and serious step for someone to take at the behest of a third party.
21. He was of the view that Mr H was unwilling to accept any responsibility for his actions in relation to KU in the face of the facts. There was compelling evidence to suggest, he said, that Mr H had "exploited a vulnerable adolescent for his own needs and paid scant regard to the impact of his actions".
22. He was of the view that Mr H's assertion that he had never masturbated was not credible (something that the psychiatrist in the wardship proceedings over 20 years ago also commented upon) and formed the view that this was part of a minimisation of his sexual behaviour and needs.
23. Overall Mr Squire was of the opinion that Mr H's presentation of himself as the repeat victim of other's malicious agendas was likely to be his principal means of defence, both psychologically and legally. However "at other times" he considered "it was probable that he uses intimidation and hostility as strategies to keep other's enquiries at bay "as evidenced by his behaviour towards me during his first interview and thereby to exhort them to accept his narrative of events".
24. He therefore concluded that "the likelihood of Mr H engaging in further sexually abusive behaviour is at the higher end of the medium category", those most at risk of harm being girls, both prepubescent and adolescent with whom he has close relationships and the opportunity of frequent contact. On this basis Mr H presented a risk of sexual harm to B and C in both the short and medium term. The likelihood of harm is not such that it precludes supervised contact with them but it would increase if his contact were unsupervised especially if it included overnight stays. It would also increase were he under the influence of alcohol. There was no evidence to suggest he presented a direct risk of sexual harm to his son.
25. As the case has unfolded it has become clear that issues on disposal are very narrow indeed and really focus on A's contact and the making of non molestation orders. The mother accepts the threshold has been passed in every material respect, thought the father does not accept this. Nonetheless I am asked to make findings about B's allegations. The point has been made that apart form the convictions in relation to KU, no adjudication has ever taken place in relation to any of the other complaints of sexual misconduct before. Nor for that matter have any findings - bar one conviction in 2004 - been made in relation to domestic violence allegedly perpetrated by DH on EH.
26. The issues I need to determine are therefore these
i) Did EH concoct the allegations that B made?
ii) If she did not, was the subsequent investigative process one that led to evidence that can be relied upon, or was it so flawed as to be valueless?
iii) If I do make findings what orders as to contact do I make?
iv) How does the evidence of other allegations fit into the picture, and how if at all does it affect my disposal of the case?
The evidence received
27. I have had five lever arch files and papers. They have contained the statements of social workers and the parents, the expert reports of Tom Squire. A large volume of social work disclosure, contact notes and the report of the Children's Guardian. Importantly I have also had disclosure from Surrey, Durham, Cleveland and Thames Valley police going back over at least 11 years. In addition to that one of the five bundles was devoted to previous proceedings, namely wardship proceedings in 1991 and 1992. Within those proceedings there was extensive though probably partial disclosure of the criminal investigation in relation to KU in 1990, and the investigations in relation to Mr H's sisters and daughter G in 1989 and 1990. I heard the oral evidence from the social worker Amy Lingenfelder, the family support worker Mary Williams who saw B in 2012-13, Tom Squire, the mother, the father and the children's Guardian Sue Tester.
The law
28. I will come back at a later stage to consider the discrete question of the application for a non molestation injunction. In relation to disputed issues of fact though I summarise it in this way.
a. First, the burden of proof lies with the local authority.
b. Second, the standard of proof is the balance of probabilities; Re B [2008] UKHL 35.
c. Third, findings of fact in these cases must be based on evidence including inferences that can properly be drawn from the evidence , but not on suspicion or speculation .
d. Fourth, though this is not a case of non accidental injury the words of the then President Dame Elizabeth Butler-Sloss, in Re T [2004] EWCA Civ 558 should be borne in mind. The Court must take into account all of the evidence and consider each piece in the context of all the other evidence. "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
e. Fifth, the evidence of a parent is of the utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability.
f. Sixth, the Court should bear in mind the Lucas direction. If a parent were to have told lies he or she may have done so for many reasons that have no relevance to his or her culpability. Those lies may not mean that he or she has lied about everything.
29. How I should evaluate and act on the evidence having made findings I will come to at a later stage in this judgement.
Impressions of relevant witnesses.
EH
30. I took the view that she was, broadly speaking, a witness of truth. She accepted that she had allowed unauthorised contacts including to GN, collusively. She can be forgiven for forgetting precisely what words B used when she made allegations against her father in 2009. But she could recall the gist and understood very well what was being alleged. I was quite satisfied that any apparent inconsistency was entirely innocent. She came over as a mild mannered, passive, malleable and quiet person who would do things for a quiet life. I suspect she could be easily dominated by a stronger personality. She was essentially a person of goodwill. That explains why she allowed contact to her former partner inviting him and the registered sex offender GN to her house. Whilst she was able to give factually straightforward examples of violent and abusive behaviour by Mr H she struck me as being without malice, again something that was consistent with her approach to the contact of both herself and her children to Mr H over the difficult years of her separation.
DH
31. He was in my view serially untruthful. He frequently and conveniently claimed a lack of memory for events that most people would not forget. When making claims about specifics he readily lied. A few examples will suffice:-
i) Of KU he said at paragraph 6 of his 3 rd Statement, produced only on Wednesday that "on knowing her correct age I did not have sexual intercourse with her again". Yet in two statements in wardship he said the reverse. At paragraph 5 of his affidavit of 21 March 1991 he said "I was unaware of her age, 14 years, but the relationship continued after I became aware of her age. We had sexual relations together". Similarly at paragraph 12 of his affidavit of 24 September 1991 he said "shortly after the relationship became a sexual one, I became aware that she was in fact 14 years of age. I did not immediately end the relationship and I admitted to the police having intercourse with her on one further occasion in my bedsit".
ii) He told the psychiatrist instructed in the wardship proceedings he had learnt of KU's age when warned by the police. Yet at paragraph 4 of his third statement in these proceedings he said that he wasn't aware of her age "until his father told him that she was only 15"
iii) In his response to the original threshold he said that "...if only he had known she was underage he would have kept his distance", something he confirmed was his position in oral evidence, yet he had admitted continuing a sexual relationship with her after he was aware of her age.
iv) It was quite apparent that he had at the time written to his friend W to encourage him to tell lies in a particularly crass letter that could only be interpreted as a request to tell lies, though in oral evidence he denied this.
v) He clearly minimised the offence in relation to KU to the extent that one would gain an entirely misleading view of what happened. He (I am quite clear) minimised the number of occasions that he had sex with her, minimised his role because he claimed she had misled him, and minimised the seriousness of the offence by saying he had not been placed on the sexual offenders register (which did not exist at the time). He claimed he was convicted of only one count. In fact there were three.
vi) In relation to various assaults, he claimed a lack of memory about events most people would remember. It may be true that intoxication was usually a ready ingredient of his aggressive behaviour and that would have had a blunting effect on his memory - but in my view, he well knew that he had been a violent aggressor on many occasions and conveniently used a lack of memory to deny this. The circumstances of the assault he perpetrated on both EH and his stepdaughter L in 2003 were graphic and it is simply not credible to now claim, as he did, that he has no memory of what happened. L said this "I heard some commotion from downstairs. I came downstairs and went into the sitting room to see my mum alone on the floor with my step dad DH stood over my mother. Mum was crying. She was visibly upset and had a phone in her hand. I can't recall what DH was saying but I remember him shouting at my mother. His face was full of aggression and his fists were clenched. I feared for my mother's safety. I use my mobile phone to call 999 to the police. DH became aggressive towards myself when I was on the phone. He was saying "yes that's right do what you always do stickup for your mother". ....... By now mum had got up off the floor and I was hugging her. We were both now in the living room. Mum was absolutely hysterical crying her eyes out. She said nothing but was just crying and shaking. DH then said "give us me mobile and I'll fucking go"." She went on to describe how he tried to take her phone, scratched her left hand causing scratch marks, threw the phone and then tried to head-butt her. It is apparent that this incident resulted in convictions on two counts of common assault to EH and L the following year.
vii) I found his assertion that EH had conspired with B to fabricate the allegations that she made in 2009 and 2013 to be quite unbelievable. Quite apart from the fact that she seems to me to be a person without malice, described by even the father as a good mother, I simply could not fathom what motives she had for this. Nor could I understand why it was that his daughter M should have invented a false allegation that he had sexually assaulted her friend LV. The motive was so confused as to be quite unclear. Moreover why LV should have the motive to conspire with his daughter to make so serious an allegation as this I could not understand either.
viii) His assertion that his mother, 3 sisters and daughter from his first marriage had conspired against him to invent really serious allegations of child abuse was also wholly implausible. Not only was it implausible on the facts that I have of those cases, it reinforces the view that I came to quite independently in relation to his allegations that EH had orchestrated B's disclosures. In truth, his modus operandi is to deny allegations on each occasion giving the same wholly unbelievable reason, namely fabrication by a large number of independent people, most of whom have been very close to him and from whom one would not expect fabrication of such serious accusations.
ix) Finally I should say that I found Mr H to be almost totally without empathy for any of his children. He was completely unable to understand the impact on them of a number of seriously troubling behaviours that he was prepared to admit. I had to consider at times whether he had some cognitive deficit though there is no evidence of this before me
32. Mary Williams
i) She was someone with a good deal of experience with children in a number of different capacities over the years including many years of teaching. I took the view that she well understood her role. It was essentially a therapeutic not a forensic one. She had no interest in gaining a disclosure. She was not on an enquiry in which she was looking for evidence, indeed there was no such evidence gathering exercise or agenda by the local authority at that time. She said she understood the importance of not asking leading questions. On occasions she did so. I think this demonstrates the difficulty presented by the conversations she was having. She was in my view a careful and precise witness and I therefore suspect a careful and precise practitioner. Mr Braithwaite for Mr H was very fair about Mrs Williams. He made no criticism of her, rightly, because she was well meaning. In my view the question whether 'he touched her or she touched him' on the 9 th January was a leading one. It's repetition on 5 th February 2013 was also leading. I express that view without suggesting any criticism of Mrs Williams, because she was not conducting an ABE interview. I also see the force in Mr Braithwaite's submission that telling her she was brave was implied praise and was capable of encouraging her to make further allegations. I need though to look at the impact of the questions and the praise. In fact, B said nothing more than she had previously been understood to have said. She said nothing inconsistent with what was already known. It did not lead her to making further or new or different allegations. It did not lead her to embellish. In fact in answer to the first question about who touched who she said "'he touched her". She then went on to record that "she said she said No and he did not touch her again". And so far from appearing to elicit further and what might have been unreliable disclosures, B was clear in the extent of what she was alleging and stuck to this. There is no evidence that what she said on this occasion was in some way infected. I am therefore quite clearly of the view that nothing of what Mary Williams said to B could lead to the conclusion that what she said to Mary Williams on that day was unreliable.
ii) I will come back to the ABE interview at a later stage. I cannot ignore the fact that such conversations did in fact take place before that interview. But of course, an ABE interview will rarely if ever take place unless some allegation had been made to another person or persons, and usually only after some preliminary probing of the complaint by the police. They are unlikely to take place in a vacuum. It is noteworthy that nothing said by B in the ABE interview went beyond what she had already said or was inconsistent with shat he had told her mother. I am satisfied that there is therefore no evidence that B was - as a result of her conversations with Mary Williams encouraged in some way into making inaccurate allegations against her father in her ABE interview, or that the content of her disclosures in that interview were in some way adulterated by her earlier conversations.
Tom Squire
33. I thought he was a very thoughtful careful and considered witness. Nothing he said was indicative of prejudice nor was his methodology or approach in any way incorrect. The congruity of his opinions with those of the psychiatrist in 1990 whose report he had not seen confirmed the soundness of his approach. Even though he considered allegations that had not been the subject of findings I was quite clear that his use of objective psychological tools and the exercise of his independent clinical judgment led to both reliable reports and oral evidence.
Findings
34. Did EH concoct the allegations that B made?
35. In my judgment she did not. I say that for the following reasons:-
i) I have already said that like Mr H's mother, 3 sisters daughter G, daughter M and friend LV, she had no such motive.
ii) His assertion that she was vindictive and manipulative was quite inconsistent with his acceptance that she was a good and loving mother. It was also entirely inconsistent with all I have seen and observed of Mrs H's character.
iii) Even if I am wrong and the records inaccurate, I could see no particular life event in or around March 2009 that could have led to this vindictive response. By then the parties had been separated for 6 years. Many unpleasant things had happened, but none recorded at or before this time.
iv) Moreover, she was not someone who was refusing contact or had in any way tried to diminish the father's role in his children's lives, notwithstanding allegations of domestic violence made by her against him both before and after their separation. Even after the disclosures had been made in 2009, she had, albeit with some reluctance on her account, allowed contact although on his account it was earlier and more fulsome than she said had taken place. And so there was no continuing contact dispute or other reason why Mrs H would invent allegations against her former husband.
36. Was the subsequent investigative process one that led to evidence that can be relied upon, or was it so flawed as to be of no evidential value?
37.
i) I have already dealt with the evidence of Mary Williams. My view is that the way she spoke to B did not lead to replies that were unreliable. Those replies are in themselves significant evidence that B was touched inappropriately by her father. However B attended an ABE interview on 16 th April. Was that reliable?
ABE interview
ONE B's manner and demeanour in interview.
ii) On viewing the video I took the view that B's manner was congruent with the allegation. I agree with Mr Liebrecht. A demonstrable sombreness or sadness came over her when mentioning her father and describing what was done to her. She was not overly eager. She did not avoid eye contact. She seemed to be natural, and answered questions after careful consideration. On occasions she seemed anxious, but appropriately so.
iii) She was also confident about the nature of telling the truth. To me she came across as natural and completely credible.
TWO Content of her disclosures.
iv) Her responses are full of detail, for instance at which side of the bed her father got in on, the parrot, the address, the fact that she was asleep when he got into the bed, the sort of pyjamas she was wearing, the fact he was wearing boxer shorts, etc. Again she remembers that it was a secret.
v) She is consistent and does not exaggerate: she didn't claim that he put his hands inside her pyjamas, nor that his actions were prolonged, nor that it happened again - so there is no apparent attempt to make what happened sound worse. Had she been making it up she could have made a more extreme allegation. She was clear in her descriptions, but was also careful not to be exact when she could not remember.
Three The conduct of the interview
vi) It is rare to see an ABE interview where one could not criticise some aspect of the questioning or conduct of the interview. Here there was a lengthy and appropriate period of rapport-building and establishing B's understanding of the truth. The free narrative phase of the interview was in my view conducted without leading or suggestive questions. It resulted in B again alleging abuse. She said "It was night time and he got out of his bed and came into mine and he touched me where he shouldn't have". A few lines later she says "and I told him to stop and he did but he told me to keep it a secret and not to tell anyone".
vii) Later the interview moves into phase 3 otherwise known as the questioning phase. Mr Braithwaite criticises this because it begins with an implied encouragement for more detail. I do not agree. Whilst it is true that more detail is sought, in truth the officers seek to clarify those areas that need clarification. In any event the request for more detail did not result in embellishment, or new allegations. Mr Braithwaite makes three criticisms about errors at this stage. First about B's age. She says at page [ H51] line 29 that she was coming up to her seventh birthday. In fact she made the disclosures to her mother when she was 6 1/4. In my view this error, some four years later does not undermine the veracity of the disclosures. Mr Braithwaite says there is confusion as to chronology, because the parrot bought after 2009 is mentioned. In fact I have no evidence, other than that of the father, that he obtained the parrot after 2009, and without some corroboration, I have to say I need to treat that assertion with scepticism. Mr Braithwaite says that B describes the father's house as it was after the events of 2009. I'm not sure that she does. At page [H53] she said "he split it, it used to be one big room. But he split it in half so we got our own bedroom." I should say that she was not, in answering that question, necessarily referring to the time of the abuse. The police officer appears to think that she was, because she says at line 27 "so there would be you in one bedroom and your dad in the other bedroom, okay. So........... when --". B interjected "but now there's bunkbeds there". The police officer says, "oh okay". So B may have been trying to distinguish between the layout then and before. But in its real essentials the abuse appears to have occurred when B was alone at the flat with her father without her siblings being there, something which appears to have been not uncommon. If indeed she was wrong about the layout, again it does not seem to me to undermine the credibility of these allegations. In my view the description at pages H54 and H55 is absolutely clear, not in any way suggested by the officers, well and carefully described and entirely credible.
Conclusions in relation to B's allegations
38. Pulling all of these factors together, it is more probable than not that the father touched B in a sexually inappropriate manner as described.
39. On the basis of my finding about B, and in the light of Mr Squire's report, tempered by the fact that I am not invited to make findings about any other allegations of abuse (save for the convictions in relation to KU), I take the view that there is no purpose in my either endorsing or declining to endorse Mr Squire's assessment of risk. It is in truth of no practical use in this case for me to accept a view on where on the scale of risk Mr H lies, and for the purposes of this case the exercise is therefore meaningless. What is required in this case is for me to reach a view as to the sort of contact if any he should have to B and his other children in the light of my findings about B and any other findings made.
Other allegations of sexual abuse
40. I am not asked to make findings about the many earlier and one subsequent allegations of sexual abuse. I do not do so. They do not relate to any child I am concerned with. I have not heard the breadth of full evidence I would have had were the local authority relying on them, and in any event the extent of the evidence varies significantly between the allegations.
41. Having said that, having considered the evidence of those allegations I am highly suspicious that Mr H has sexually abused other children or adolescents though these allegations have not been proved to the necessary standard.
42. That is a general statement. As I have said, the evidence on each differs.
43. So far as the allegation in relation to G is concerned, evidence of abuse was drawn to the attention of the authorities by Mr H's parents, VQ who was described as a girlfriend (though Mr H now denies this) and Mr H's former wife O as I outlined earlier. G also made disclosures to two doctors in the course of a medical examination which concluded that there was no doubt she had suffered penetrative abuse. On the other hand there was evidence that subsequently G withdrew the allegation and blamed her uncle X.
44. So far as R was concerned the papers reveal that there was corroborative evidence. In relation to S there was none. Both of these girls alleged that Mr H had made attempts to ensure that they did not reveal what happened. B, who had no knowledge of this evidence, also said that her father had told her to keep what had happened a secret. The date at which the abuse was perpetrated on B is consistent with the age the abuse alleged in relation to S and R began. The end of the period that it is alleged he abused S puts her at about the same age as KU. Mr H's defence in relation to his sisters as well as G and later LV, namely fabrication and orchestration by close family members, is the same as his false defence in relation to B.
45. There is also no evidence that M's friend LV in 2011/ 12 would have had any reason to know of earlier allegations. She made her allegations entirely independently. She, like B and the complainant in 2005, was prepared to make complaint and pursue it by giving statements to the Police.
46. The decision of the judge in R's case that the count was to lie on the file may have been consistent with prevailing attitudes in 1991. I have to query whether the current practice of the Crown Prosecution Service and the courts in relation to historic allegations of sexual abuse might not have been different. In my view Mr H has been very lucky. The sheer number of independent allegations, similarities between some of them and the sheer span of time is sinister. However I need to stress this: even the high level of suspicion and concern I have expressed is neither enough to make findings nor to affect my disposal of this case.
Domestic violence
47. There are numerous complaints to the police and authorities that Mr H has been violent to partners and in particular EH over many years. Yet as with the allegations of sexual abuse, there are only 2 conviction in relation to EH and her daughter L in 2004.
48. The Cleveland Social worker Rosemary Colebrook in 1990 interviewed VQ, a neighbour. There was a good deal of evidence that Mr H had formed a relationship with her but he now denies this. VQ told Ms Colebrook [B 16 paragraph 16] on the 21 st September 1989 that she had been beaten by Mr H a number of times, was afraid of him and had been intimidated by him into caring for G when he went to prison.
49. I have already set out Mrs H's complaints of serious violence for much of their relationship. After it broke down in 2002/3 Mr H briefly returned to the North East. He formed a relationship with a care worker called Y. She alleged that she was verbally abused by Mr H and then physically assaulted by him with his crutches. She went to a doctor and there was medical evidence of bruising. She alleged that it was such she was unable to start a job. When arrested and interviewed by the police Mr H denied the allegations and alleged that Y had been violent to him. The police took the matter no further.
50. As I mentioned earlier within three weeks of this, the incident in which he assaulted both EH and L and for which he was subsequently convicted took place.
51. Mr H told me he had been arrested 4 to 5 times for assaults on EH. A number of these arrests were after the couple's separation. Again he told me that in relation to EH she was responsible for violence against him. This is what he had said in relation to Y. Yet the police never arrested or charged EH. She was never convicted. In any event having seen her I absolutely agree with Ms Orchover for the guardian that anyone less likely to be violent is difficult to imagine. I accept her evidence that violence during her relationship with Mr H was chronic, regular and so serious that it resulted in the sort of injuries she described. It is clear that Mr H's violence may be related to his excessive consumption of alcohol, as exemplified by his numerous drink driving convictions.
Exposure of the children to Mr H's behaviour
52. There is little doubt that the children were frequently exposed to Mr H's violence. A's behaviour which has also been aggressive on occasions as evidenced by a number of documents in the bundle is unlikely to have arisen in a vacuum. It is more probable than not that the example given by his father has been a significant factor in this.
53. A's position is troubling. He is aware of B's disclosures. He does not believe them. He believes she is in part responsible for breaking up the family. He wants to spend time with his father. Of concern is his exposure to his father's misogynist attitudes, and to his father's racism. Mr H was simply unable to understand that his references to Pakis or 'Jungle bunnies' in A's presence was harmful or racist. He reverted to the "some of my best friends" excuse without any apparent realisation of what that revealed.
GN
54. I am quite satisfied that the father exposed the children to him as alleged.
55. Though I heard no oral evidence about exposure to offensive and explicit voicemail messages I accept the mother's case about these.
Conclusions
56. I am satisfied that the threshold has been comprehensively passed in relation to the father. More particularly I find that paragraphs 6, eight and 10, 11, 12 and 13 have been proved to my satisfaction.
Disposal
57. Because there is little dispute about disposal in this case I see little point in formulaically going through the Welfare Check-list. I will in due course be making child arrangement orders pursuant to which the children will live with their mother, accompanied by a supervision order for 12 months, something that in my view will almost certainly have to be extended by a further similar period.
58. So far as contact to the girls is concerned Mr H himself wants his contact to be supervised. C has apparently expressed a wish to see her father monthly, and providing there is supervision I see no problem with this.
59. Only in the event that B wishes to attend contact should she see her father in view of my findings about her. Of course it will be supervised. It is more likely than not that she will continue her work with Mary Williams, and Mary Williams is almost certainly the best person to elicit her wishes and feelings so as to enable contact to take place if that is what she wants. Absolutely no pressure should be placed on her. And as it happens I'm satisfied that none will be.
60. Contact to A is more problematic. At the moment his contact is supervised. He sees his father weekly for three hours. I agree with all of the professionals that it is unrealistic to assume that it can be artificially constrained in this way on an indefinite basis given his age and probable wish for a more natural environment in which to see his father. Nonetheless, I am satisfied, having heard the Guardian's evidence, that he is a reasonably compliant boy and for the moment will not push for unsupervised contact. In my view supervision for the time being and while it remains practicable is necessary in view of his exposure to his father's pernicious and damaging attitudes, already described by me, and the probability given his father's lack of understanding and empathy that that exposure will continue, causing him harm. However A cannot be protected indefinitely and it seems to me to be wise for the local authority to continue to review his contact, actively consider the extension of it and also actively consider the lifting of supervision when it is wise to do so.
Non molestation injunction
61. I accept that Mr H has complied with the present injunction, and has said that he is willing to give an undertaking.
62. However I take the following factors into account:
i) The violence and intimidation perpetrated by Mr H has been serious and chronic. It has had a very serious effect on the principal victim, the mother, but also on the children.
ii) I am concerned about the following
a) Mr H's denials,
b) his lack of remorse,
c) his lack of understanding of the impact of his actions,
d) his lack of empathy, and finally
e) the effect of alcohol as a disinhibitor on his actions;
f) None of these factors can lead me to be optimistic that his recently compliant behaviour will necessarily continue.
iii) Having heard Mrs H, I am satisfied that she needs to be reassured and the children need to be reassured that the court will do the most that it can to protect them. I don't think that she will feel that reassurance if Mr H simply gives an undertaking. In my judgment the absence of that reassurance will in itself cause her worry and this may impact on the children adversely.
iv) Moreover the seriousness of Mr H's previous behaviour fully justifies the making of an order. Whilst I recognise that Mr H will be inconvenienced because of the items he keeps in his garage close to Mrs H's house, that inconvenience pales into insignificance when I weigh it in the balance against the benefits of an order. I will therefore make an order under the Family Law Act 1996.
Length of the order
v) On balance it seems to me that it would be wrong in principle to make an order of unlimited duration. I take the view that the correct period is five years. This takes C to the age of 15 by which time the family should be stronger and more resolute.
63. I will ask Mr Liebrecht to draw up the Public Law Order and Ms Neath to draw up the Family Law Act order. I have been greatly assisted in this case by counsel for the local authority and guardian but I should add that Mr Braithwaite needs to be congratulated for conducting what was a very difficult case for him by making every conceivable point that he could in the most attractive way and with very great courtesy.