England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE CHILDREN U, V, W AND X

		2 November 2016

HHJ CLEARY:

1. This judgement concerns four children, who are currently the subject of interim care orders following the institution of proceedings by the local authority on the 9 December 2015. They are

U, who is 7 ¾

V, now a little over 9 years old

W, now 11 ¾, and

X, who is now 15 ¼


2. Their mother, is CM, and their father, AM. The parents began living together in 1990. It seems that Mother's son, M, who had been born in October 1989, was cared for by the two of them, and accepted as a child of the family from the commencement of their relationship. The couple then had two further children, DM, now 24, and Y, who is 19. They, of course, are now adults.
3. The parents are now separated, and have been living apart since December 2014 when father was arrested for downloading and distributing indecent images of children. He is now at liberty, but is currently residing at a bail hostel. His movements and those of the children will be detailed further within this judgement.
4. M is married and living in [ ]. DM lives with his paternal grandmother, with whom he has lived, it seems, for at least the last 10 years. Y is serving a sentence of imprisonment. Mother remains alone in the former family home.
5. The younger 4 children, with whom I am dealing, have been accommodated by the local authority since 7 October 2015, initially pursuant to section 20 Children Act 1989, but latterly under the terms of an interim care order made on the 7^th January this year. The local authority application is for full care orders. The detail of those orders and the local authority care plans will be discussed once this judgement has been delivered.
6. Having, until the commencement of this hearing, opposed the local authority applications, the children's mother withdrew her opposition on the third day of the hearing. Again, as I deal with the evidence, the reasons will become plain. Father does not seek to oppose the applications and acknowledges that the existence of a sexual harm prevention order dictates that he cannot be in the presence of children without appropriate supervision in place, for life.

The background

7. Local authority concerns for the children date back 15 years. Local authority files and police observations reveal increasing concern over neglect of the children's cleanliness and overall presentation, and the poor condition of the family home. In particular, Y's frequently miserable and increasingly angry appearance, his hygiene and his escalating misbehaviour at school became a feature of the local authority chronology from the age of 8 or 9, and at the close of 2008, when he was 11, an educational psychologist reported that he was presenting as a sad and unloved child.
8. His 2 elder brothers had themselves caused concern during their teens. M, when 14, was the subject of police investigation after an allegation was made that he had placed his hands down the underwear of a young girl. The outcome of that investigation remains unclear, but what the court does know is that M was placed on the sex offenders register in November 2004 as a result of exposing himself. Two months later, DM disclosed that he had been sexually abused by his cousin, MN, at the home of the paternal grandmother, BGM. Within 18 months, the local authority received a referral that DM, then 14 was displaying sexually inappropriate behaviour. In September 2009, M reported to the local authority that DM was sexually abusing his younger sister, V, then aged 2.
9. In September 2010, while the family were on holiday, Y exposed himself to a 4-year-old child. The police and the local authority investigated, and the parents were asked to enter a working agreement to ensure that Y would be supervised at all times.
10. Referrals to the local authority continued, reporting that the children were 'filthy' ( [ the local ] ambulance service, 15 March 2010); Y's personal hygiene continued to be an issue (29 June 2010 and 11 and 25^th January 2011) as did that of both himself and his mother (CAMHS, 16 February 2011); domestic abuse was reported between the parents, as was aggression between the children and neglect (November 2010); Y's violent behaviour at school was a recurring problem(22 April 2013); and V was reported to be smelling of urine (December 2013).
11. On the 1 August 2014, Y was arrested for downloading and distributing indecent images of children. Investigation of his bedroom revealed a box of soiled nappies and underwear, ranging from small children to adult sizes. The police recorded the untidy and dirty conditions of the house which included rodent droppings in Y's bedroom. The police showed a photograph of a small child to the mother to establish whether or not that child was either her daughter or her granddaughter. Mother initially thought it might have been her granddaughter T, but M in due course was to confirm that he did not recognise either the child or the surrounding clothing or bedding.
12. The children were upset by the police attendance and by the removal of their brother from the home. The police, however, observed that the parents appeared not to be troubled either by the upset of the children or indeed by the nature of the arrest of their son and, in the words of the arresting officer "both appeared to be very quick to suggest that their son Y was responsible for the uploading of the images almost without hesitation". Attempts by the police to access the father's laptop were frustrated by his suggestion that he had forgotten the password to the equipment.
13. A little over a week later, father self harmed in the car park of the family's local doctor's surgery. He had 2 knives in his possession, and the mother, who was with him at the time, was herself cut by one of the knives as she attempted to wrestle it from him. He asserted that he could not cope any longer and appeared to be making a serious attempt to end his life. He did so in the presence of both Y and BGM, with whom he had been living since his arrest.
14. 4 months later, in December 2014, father was arrested for offences similar to those of Y. The images discovered by the police dated back to 2001, 2002 and 2003. Once more, the police reported how poor the home conditions remained, describing them as 'extraordinarily unclean and hazardous and insanitary'. The 3 youngest children were observed to have head lice infestations. Father was not required to enter a plea for a further 6 months, but pleaded guilty on the 4 June 2015 to charges of making indecent images and possessing the images, which included the most serious category (5) of child pornography. In the intervening period, and until very shortly before his ultimate sentence and the completion of his presentence report, (in August 2015 ), father was recorded as seeking to divert blame for the possession of the images onto his son Y.
15. In the same month that father was sentenced, Y was arrested once more. He was found to have thousands of indecent images on his laptop and a memory card. He was remanded in custody where he remains. He had celebrated his 18^th birthday on the 10^th April 2015. His mother had bought him a mobile phone, a camera and a memory card for the occasion.
16. Following this 2^nd arrest, a further search was undertaken of Y's room and possessions. He was found to have children's underwear ranging in age from 18 months to 15 years old, nappies, children's dummies, a pair of soiled size 10 women's underwear and a number of various electrical devices and a camera.
17. The 4 younger children were still at home. However, on the 29^th September, during heightened local authority attention and activity, in the form both of a parenting assessment and wishes and feelings work with the children, V (who we recall was, by then, a few weeks past her 8^th birthday), revealed that Y had abused her. She said "Y's in prison. He looks at my private bits. I tell mum. It happened very often". Her mother, she asserted, called the police, an assertion which proved not to be the case, since the police had never hitherto been alerted to this revelation.
18. On 7^th October, V was interviewed by the police under the ABE procedure, during which (found at G 97 in the bundle) she said that "he (Z) looks at my privates… That is why he's somewhere else now… He used to pull me in his bedroom… He put my dress up… Mummy said if he does it again tell me… (She said) if you stay away from him he might calm down and not do it any more". She revealed that Y would remove her underwear and look at her without clothes on and that she would complain not only to her mother but also her father. Similar disclosures were made by her sister U in interview on the 24^th November, by which time, mother had been arrested and bailed following V's interview.
19. Upon arrest, mother said loudly, in the presence of the arresting officer, to father who was with her at the time, "I told you they would stitch me up. What did I say this morning? I told you they would stitch me up." And that afternoon, the children were accommodated into foster care where, currently, they remain.
20. As I have said, care proceedings were instituted in January. The bedrock of the local authority case was founded on the disclosure by the 3 younger children that they had been abused by their brother Y, that they had informed the parents of the abuse, and that the parents had done nothing to protect them.
21. Ultimately, the local authority prepared a composite threshold document, presented as a Scott schedule, given the parents' denials. That Scott schedule is divided into 8 sections, which themselves are subdivided. I shall come to the schedule itself, which has been necessitated by the global rejection of virtually every allegation by the parents and by Y, who has intervened in the proceedings to answer the allegations made by the children. The case has taken all of the listing made available for it, a total of 8 days. On the first day, time was set aside to observe not only the ABE interviews of which I have spoken about also of interviews carried out, with the agreement of the parties, by Triangle, an organisation which has been set up specifically to work with and on behalf of children and young people across the UK and has particular expertise in enabling children's evidence for legal proceedings. We see at the introduction to the Triangle report as to the outcome of and content of the interviews and the qualifications of the 2 interviewers who took responsibility for interviewing the children. They were respectively, Ruth Marchand, who has a first-class degree in developmental psychology, with subsequent training in a range of assessment, interviewing and communication methods including an advanced certificate in forensic interviewing of children, and Jessie Fuller, a qualified art psychotherapist, forensic interviewer and hospital play specialist, with particular expertise with children who have experienced trauma, children with communication and behavioural difficulties and children who communicate without speech.
22. The interviews which, as I say, took place with the agreement of all parties, were completed in June of this year, leading to an ultimate report dated 30 June. That report, the parenting assessment, the evidence of the social worker, and written evidence arising from police investigations, school reporting, and a dental surgeon were presented to this court in support of the findings which are sought.

The law

23. I remind myself that this is a family, or civil, case and that the standard of proof which the local authority must achieve is the balance of probabilities or, in lay terms, what is more likely than not. The court is trying jury questions, but that general label which identifies its task does not carry with it a burden of proof to the criminal standard.
24. The standard is strict, notwithstanding that the court does not, by definition, have to satisfy itself so that it is sure, that being the criminal standard. Thus, the court is faced with a binary outcome. The question with which the court is charged must be answered affirmatively or negatively. It is not permissible for the court to hedge its conclusions. Either the event occurred, or it did not. If the court is satisfied, to the civil standard, that it did occur, then the finding is made. If the court is uncertain, and the local authority, in this case, fails to achieve that standard, then the event is not left hanging in the air as a possibility. Instead, it must be rejected.
25. The burden of proving the case to that standard rests on the shoulders of the local authority. It does not move, at any stage, to the shoulders of any of the respondents.
26. Finally, I remind myself of the assistance given to the court, when assessing credibility, by the Lucas direction, derived from the criminal case of that name, and from which a direction has been adopted by the then judicial studies board in directing juries when they bring consideration to an apparent lie told by a witness. I hope I do not over simplify the manner in which questionable evidence must be approached by the court when I say that it is now acknowledged that a lie uttered by witness may not, itself, condemn the witness as dishonest. A lie, when identified, could be the product of panic, shame or distress, of misplaced loyalty or even genuine mistake. Even contradictory accounts do not necessarily point to a witness who is intent on misleading the court. Only if the court is satisfied that the lie has no honest explanation should it be taken as evidence of a witness's dishonesty.

The evidence before the court

27. I have no less than 5 lever arch files before me, containing the police interviews of the parents and of Y, amounting to a little over 100 pages; the written evidence of the 3 of them; the transcript of the ABE video interview of V, the audio transcript of the interview of U; the Triangle report and transcripts, which themselves extend to 152 pages; the parenting assessment; the caseworker's statement, and that of an assisting social care worker; presentence reports relating to the sentencing outcomes in respect of both Y and his father; a probation report in relation to father; the local authority chronology of some 24 pages and the Scott schedule which, with its responses, amounts to some 37 pages; finally, I have taken no less than 39 pages of closely typed notes of evidence as the parties have come to the stand. It will be imagined that within the 5 lever arch files there are other documents (for example a good number of police statements in folder G, which itself contains almost 400 pages) to which reference has been made during the hearing and which are in my mind as I give this judgement even though I may not identify each of them.

The witnesses

28. I received live evidence from Detective Constable S (to whom I shall come) and SP, a social care worker of some 26 years' experience, to whom the local authority entrusted the task of working with the children to establish their wishes and feelings. The witness SP came to the stand on the 2^nd day of the hearing, at which stage the parents and Y were presenting, as far as they could, a united front, in that they continued to deny the allegations which formed the bulk of the local authority schedule. Her observations and her evidence was not challenged by the parties. Of particular pertinence was the disclosure by W to this social worker that he had been warned by his mother not to talk to professionals.
29. So also did I receive evidence from JB, the caseworker, who was closely questioned about the manner in which W had been interviewed by the police and the preparation of the written statement which that young boy had agreed to put before the court. No doubt the questions, which she answered clearly and persuasively, were directed at the possibility of W's assertions being un-reliable but I was satisfied that she was giving clear, considered, and professional evidence, which could not be faulted. I was interested to learn from her oral evidence at the stand that the photographs which were to be adduced in evidence by the mother, having been taken only last week, revealed the remarkably cluttered state of the property, which, she deposed, had barely changed from its presentation last year. It seemed to me to be a property which was barely habitable.
30. It was on the 2^nd day of the case, after the conclusion of the local authority's evidence, that the whole tenor of the case changed completely. Y came to the stand, having presented 3 statements, on the 25^th April and the 9 June 2016 and then 5 October respectively. Each one of the statements can be summarised in the written outlines which have been set out on the schedule, in answer to each of the local authority threshold findings. They are, in broad generality, a blanket denial of the allegations made by his younger sisters and brother.
31. Y turned out to be a remarkable witness. He is, as the papers reveal, a very troubled and indeed sad young man. There is little doubt that for at least 10 years, he has been regarded by his parents as a burden. He has been the subject of criticism both at school and at home. He has suffered numerous exclusions and changes of school and as I mentioned earlier, he was found to be a sad, and in my view rejected young man by an educational psychologist well before his 10^th birthday.
32. A flavour of the manner in which he was treated within the family can be detected within the statement of his mother dated 10 June 2016. At paragraph 10 she writes this:

'I think Y is on the autistic scale but he has never been diagnosed with it… I think Y will understand what is going on in court but would probably like to pretend he does not. I say this because Y has always had behavioural problems since the age of 9 and would often use this as a way of pretending he does not understand that actions have consequences. He seems to think this does not apply to him and that he can do what he likes without any consequence.'

33. Given his outright denials in the statements to which I have referred, I anticipated that the local authority might be facing a substantial task in establishing whether the court could accept the complaints of the children to which in due course I shall come when dealing with the schedule. That had been one justification for the 8 day listing. However, as he took the oath, it became increasingly clear that Y would find it difficult to mislead the court. His answers were firm, and short and to the point. Increasingly, they bore little resemblance to the responses set out in his statements. Ultimately, and not without significant difficulty and a considered pause after he was advised that his evidence would not be immune from police scrutiny, he gave evidence which I found to be compelling and truthful. That evidence was that he had, as the children had complained, sexually abused them in so far as he had undressed his sisters, looking at their naked bodies, to their great distress, and had likewise partially unclothed his younger brother W, taking hold of his penis and rubbing it, again to that child's great distress.
34. This evidence was given behind a screen which in the latter stages of his evidence, Y clearly needed, since his mother, who had in the early part of the day, been seen to glare at him as he sat between 2 security personnel in the dock, was in the room. His father had removed himself from the courtroom as soon as Y had taken the oath. Ultimately, Y made it clear that he would not complete his evidence and the disclosures which he was to put before the court, in his mother's presence. She, at least, was good enough to leave the room when what I might describe as this explosive evidence was detonated.
35. Y admitted, ultimately, that he had carried out this abuse and that his siblings had cried out for help; that J, his elder brother had come to their aid on numerous occasions, and on many of those occasions, his mother also came to help the children. Further, as W complained, his mother had physically removed Y's hands from his brother, remonstrating with him as she did so.
36. Calmly and with little overt emotion, but clearly struggling, Y told the court that he needs help, help which certainly to his confusion, will not be available to him until he is 21 years old. He cannot, he said, help himself, and he needs assistance, desperately.
37. He was brutally candid in the evidence he gave and which revealed more than the court and the local authority expected - even more, it seems, than the parents themselves expected. For Y told the court both that he accepted that he had exposed himself to the 4-year-old when on holiday with his parents as a young teenager, despite his earlier denials. But as he bared his soul to the court, Y gave even more troubling evidence. While the local authority files record that DM, his next elder brother, had reportedly been persistently abused by his cousin MN, Y deposed that he had been sexually assaulted by the son of a neighbour. At the age of 9, he had found pornographic images on his father's mobile phone. He told us that his father had not hidden them from him thereafter but had in fact shown him more. And finally and desperately, DM, having himself been abused, had turned his attentions to Y and had attacked him, at about that age, time after time, regularly and persistently sodomising him. He was, and remains, frightened of his brother, now an adult, and he had not disclosed that dreadful behaviour until this hearing.
38. It is likely therefore that we were detecting from his evidence, which was utterly compelling, the beginnings of an explanation for his behaviour towards his siblings, an early introduction to sexual misbehaviour so early and so damaging that he has as yet, no chance to recover himself and no chance to control the urges which now overwhelm him and which have led to his imprisonment. His shocking revelations very probably explain how it was that his behaviour at school and indeed in the home deteriorated so rapidly. Yet however compelling his evidence might be and however coincidental his reaction at that age, it remains doubtful that his mother, even now, accepts that he was abused. Certainly, his father, in evidence, indicated that he would give DM the benefit of the doubt, and M, to whom we shall come, dismissed the allegation, saying mystifyingly that it was unlikely because "DM is as thick as 2 short planks".
39. It can be imagined nonetheless that having received that evidence, the parents would wish to take stock. Counsel on their behalf sought time for them to reflect, and to consider amending the evidence which thus far they had put before the court. The local authority and the court indicated a willingness to allow the parents to, effectively consider amending their evidence and submit fresh statements if they so chose. They were given, and took, the whole of the third day to reflect. Above all, the parents were invited to be candid and to meet their task with similar openness as that displayed by their son.
40. Unhappily, in my judgement, they failed their task.
41. The children's mother, C, having indicated in her earlier written evidence that she was intent on recovering the care of her children, asserted through counsel that she no longer sought their return and (while mother sat at the back of the court in tears) that she was too distressed to come to the stand. However, when she did ultimately present herself for cross examination, she was thoroughly composed, to the extent of expressing significant hostility if not aggression towards her questioner.
42. She declared, in her amended statement that she was shocked by her son's evidence and, as I have said, that she was no longer seeking the return of her children. She did, after all, accept the evidence he had given in so far as it revealed that he had been abusing his siblings. However, despite having seen the video interviews of W and the girls, she maintained her denials that she had ever been told of the abuse or that she had witnessed it or its aftermath.
43. Her three earlier statements had concerned themselves with exculpating her own responsibility and none of them speak of her own proposals for the return of or plans for the children in her care save for one brief mention, in her very first statement, when insisting that she wished to have no further relationship with AM, the children's father, she deposed 'my focus is on my children returning to my care and they are my priority.'
44. In her oral evidence, CM was wholly unpersuasive. When faced with questions which she did not care for or wished to avoid, she simply responded that she could not remember. Events which must have been impossible to forget and which must have been seared on her memory, received the same response. The first screen page of my notes of her evidence contain no less than thirteen repetitions of 'I can't remember '. The tears which had flowed from behind counsel when I was asked not to insist upon her attendance at the stand were wholly absent until after the luncheon adjournment midway through her evidence when she was presented with a second, revised, statement (to which I shall come) by the children's father, AM.
45. After all, and despite his previous denials, father was, she discovered, now accepting that he knew that the girls and W were being abused by Z; that the children had told him; that he had remonstrated with Z; and that he had failed to notice any signs of sexual abuse between all the children and he had utterly failed to protect them. It was at that point that CM shed tears, from which, after a short adjournment, she wholly recovered, asserting later under cross examination that "this is a witch-hunt, but way hey".
46. She was prepared, although with some reluctance, to agree that she had misinterpreted Y's misbehaviour. She had not, it seems, identified that behaviour with difficulties that the boy had been suffering as a result of abuse which he had experienced, despite accepting (from her own Internet research and from the programs which she has attended) that his presentation was on all fours with that of a child who had suffered in that way. On being presented with the disclosure that his elder brother had serially abused him she expressed no bewilderment, no distress, and no remorse. Instead, she finally agreed that her rejection of the boy had been 'unfair'.
47. She continued to maintain her response that the children had never told her of their ordeal, and indeed to the contrary had denied it to her face when she questioned them. Quite how she questioned them, if she did at all, was expanded upon in the evidence of M, her son, and to whom we shall come shortly. She rejected the disclosures of W in that child's Triangle interview, which were utterly distressing to observe, that she had observed the abuse and taken Y out of the room, and had removed his hands from the child, saying, in measured terms that her son 'was mistaken'.
48. I reject that response. So also do I regard as inherently unlikely that she was either not a party to or did not overhear her children complaining to AM of the abuse of their elder brother. I am driven to conclude that where her testimony differs from that of her children, I prefer the evidence of the children over her and I will explain my reasoning when I traverse their disclosures.
49. Thus, when both Y, the perpetrator, and W the victim spoke of their mother coming upon the abuse which has so traumatised W, I believe them. The mother's evidence has been dishonest. I can find no innocent explanation for her untruthfulness. She has lied to the police both when she denied any knowledge of her children's suffering, and when for example she pretended that they had visited the dentist regularly, in the face of the discovery that many of her daughters' emerging adult teeth had to be extracted because they were rotten, and that no dentist in her locality had any record of those 3 children ever visiting; so also has she lied in her first three statements and she has finally lied to the court in her fourth and her lies have been maintained in oral evidence even after a final opportunity to speak the truth. She is not, in my judgement, a witness of candour or of truth.
50. The parenting assessment, however, did reveal one telling description of the family, given by the children's mother, upon which I can rely. She disclosed that BM, A's brother (and therefore the uncle of the children) is a registered sex offender (something of which it appears the local authority was unaware). While she continued to equivocate over A's behaviour, finding it impossible, it seems, to accept that he was guilty as charged (indeed in her oral evidence it was quite plain that even after his plea, she was not satisfied) she made a particular remark that the entirety of A's family was made up of 'alcoholics and paedophiles'. That inelegant description is, unhappily, part of the essence of this case, for it will be seen that I am satisfied that there is a current of sexual abuse which runs through this family and which has overtaken the children. Whether they can be rescued and brought to shore in safety depends very much on the care and therapy which they now desperately need.
51. AM, the children's Father, came to the witness stand with initial reluctance, his counsel having expressed the view that his client would very much prefer not to give evidence. While I acknowledge that his presence at the stand was almost as painful as that of his son Y, I was not satisfied that he was as candid as the local authority had hoped. He was unable to account for his dishonest approach to his sentencing, finally accepting his probation officer's written evidence that he had, for some months, attempted to deflect the blame for his predicament onto his son. Nor could he explain why his first and initially only, written statement to the court wholly denied any knowledge of the abuse which his children suffered.
52. I do not consider that he was telling the truth when he denied that CM knew anything about the abuse and I regard it as entirely probable that he was minimising the distress shown by his younger children when they implored him to help. All I can accept is that ultimately they stopped asking him because that help was never given.
53. I regard it as inherently unlikely that he did not discuss the children's disclosures with CM, and it is not just regrettable, but quite disgraceful that neither he nor CM did anything to prevent the children from suffering at the hands of Y. He was, in evidence which he was struggling to give without dissolving into tears, to tell the court that he himself had been abused as a child. Given the emotion with which he spoke and the clear distress under which he was suffering, I am prepared to accept that it is entirely probable that he suffered abuse as a child from his grandfather, a man who, we learned, was ultimately imprisoned for his sexual offending.
54. That, of course, was difficult for him to recount and the court to receive, but it emphasises how dreadful the recurrence of the experience must have been, in his mind, for his son W. As he asked in one remarkable comment to the local authority during the parenting assessment, was it (that is, as he explained to counsel, paedophilia) likely to be genetic? Yet he chose, he claims, to say nothing to CM. I reject that. She, unlike him, was able-bodied, and could (and indeed as it will be seen from this judgement, did) get up the stairs to the children. She was the obvious person to be alert to the problems which the three younger children were recounting. It is unbelievable, frankly, when he had suffered so dreadfully at his grandfather's hands, that he would not say something to the children's mother even if, as in my judgement is likely, she, likewise, chose to do nothing other than to remonstrate with Y.
55. What I find remarkable, and unhappily so, is that although there were tears in the witness box from father, and somewhat lesser tears from mother, those tears were for themselves. They were not for the children.
56. And when I come, as I am driven to do so, to the evidence of M and his grandmother, I have to say that I found their evidence even less compelling, if that were possible, than that of the children's mother and father.
57. BGM, the grandmother, was evasive and hostile by turns, interspersing her aggressive responses to counsel with long silences in which she appeared, or pretended, to be gathering her thoughts. Remarkably, she professed to have little knowledge of, and little interest in, the imprisonment of her own father for sexual offending, asserting that all she had learned was from gossip on the street. Ultimately, when faced with questions to which she had no answer or answers which she realised would not withstand scrutiny, she veered away from the aggressive responses typified by her answer "you are trying to twist me up. Next question?". Instead, she worked herself up into a panic attack, breathing ever more rapidly, until eventually, and logically, she completely lost her equilibrium and had to be assisted from the court.
58. The court was unable therefore to establish why it was that in her written statement for the court she had asserted that she was present when the children were examined closely by their mother, but made no mention of questions about her son A, their father, which in the latter stages of his equally unsatisfactory evidence, M asserted had been included in his and his mother's questions.
59. M did, at least, remain at the stand without departing or bursting into tears. His evidence, however, in my judgement, was wholly unpersuasive, and I regarded him just as his grandmother after him and his parents before him as being wholly unreliable. He gave no satisfactory explanation for his remarkable report, in 2009, of sexual misbehaviour to social services about his brother DM, seeking to persuade the court that his reason for making his complaint (that his brother was sexually abusing their 2-year-old sister) was that he was cross that his brother was taking his clothing rather than his own from the washing basket. To make up a criminal complaint and indeed one relating to sexual misconduct is quite unbelievable unless, within it, there was a truthful foundation. He was accusing DM of sexual misconduct with their infant sister. In my judgement, he knew the territory very well. He was not, as he initially airily responded to cross examination, a 'teenage kid' at the time. He was 20. He was quite capable of understanding quite how serious and indeed detailed the allegation was. DM, he knew, had been abused himself, accepting that DM had complained of sexual assault by his cousin. He knew that he (that is, M) had been interviewed himself by the police for exposing himself. He knew that an allegation had been made by a girl that he had put his hands in her underwear. Again, rather too airily in my view, in his oral evidence he rejected both those matters, asserting that he was on the sex offenders register for what was no more than mooning, and as for the girl, he had simply 'lifted her up'.
60. His evidence was both unreliable and deeply unattractive. It was plain that he allied himself with his mother, evidenced by two particular remarks - the first, within moments of coming into the witness stand where he referred to his brother Y as 'that thing in the box over there', and the second, a little later, when he gave precisely the same answer to the challenge, as had his mother, that she had said to the children 'what happens in the house stays in the house' remarking that the admonition related, bewilderingly in my judgement, to financial matters, an explanation which I was quite unable to understand either in context or in its detail.
61. Ultimately, his evidence, unattractive as it was, deteriorated to the extent that he acknowledged that the children had asserted to him and his mother, when questioned, that their brother had not 'touched' them. Whereas in his written statement he made no mention of the question whether their father had touched them, he asserted that his Father was included in the questions. He acknowledged that the use of the word 'touch' made no sense whatsoever to the children, and that their denials (if these conversations ever took place) were equally absurd, given that their father must have touched them from time to time entirely innocently.
62. Inevitably, the court must contrast the adult evidence with that of the children. Mercifully, despite suggestions in earlier case management hearings that an application might be made for the children to attend for cross-examination, all parties agreed, as I have said, to utilise the professional and trained assistance of Triangle. I have already described that organisation and I have to say that I found the approach of the interviewers to be entirely child focused and enormously helpful. The training of the second of the two interviewers to whom I have referred was particularly relevant, since W was observably too distressed to articulate his anxieties verbally. Instead, he agreed, with entirely sympathetic and child focused assistance to point to written confirmation or denial, on 'true' or 'untrue' cards, when retracing the police statement which had been prepared with his assistance by Detective Constable S.
    
63. That police officer who came to the stand had undertaken a lengthy interview with the boy, during which he had taken notes. He had then asked the child to look at his notes and correct any misunderstanding before, then, preparing his eventual, and approved, written statement. It is pertinent to note what the officer said in evidence:

'This was the most interactive statement I have ever written – quite unusual to have someone so involved. [W] was meticulous in checking what I had written.'

64. And the outcome was a brutally frank disclosure of the abuse which this child had endured at the hands of his brother Y. The statement is not long and it is helpful to read it into this judgement:

My brother Y, when he lived with us at [ ] used to touch people's rude bits. By rude bits I mean my Willie. When he did that I shouted loudly for my mum to come. It would happen in the morning after I woke up. He would grab me by the arm and pulled me into his room. I tried to get away but he is stronger than me. I was wearing my onesie. He unzipped my onesie and held my Willie in his hand. He rubbed my Willie up and down. I am not sure how long this lasted. I shouted out for my mum. She came in and told Y off. This happened roughly 11 times. It first happened when I was 9 years old. I know it was naughty of Y to do this. My mum sorted Y out, stopped him from doing it. Mum told him he has got to be good to get credit for his phone. In order to do that he has got to stop doing what he did to me. Sometimes when I shouted, my brother X would come in and help me. He would punch Y and make him stop. Mum came every time it happened and told Y off.

I also remember that Y had my sisters V and U in his room. I think he had them in there one at a time. I saw them go into his room and they were dressed in clothes. Then a short time would go by and I would hear them screaming. I would go into Y's room and he would have the girls naked. I don't know what he was doing to the girls. I saw the girls in Y's room about 6 times. When the girls were in Y's room I checked on them to make sure that they were okay and they were still dressed. After a short while I heard them scream. I went to check them again and they were naked - no clothing at all. When I saw the girls naked, they were angry and trying to get away from Y.


65. The court is aware both from the interviews and from the surrounding narrative that X has refused to undertake a video interview and indeed he has made no disclosures whatsoever. Given my findings at the conclusion of this judgement, that is particularly troubling. I am anxious to remind the parties and the Local Authority in particular that although I am concentrating on the three younger children, X must not be overlooked. But I move on. We also know that U initially refused to be video interviewed by the police. In the Triangle interviews, W refused to appear on video, and sat with his back to the camera, asking the interviewers to ensure that he could not be seen in the video suite; U initially refused to appear on video, having given an audio interview to the police, but ultimately both she and her sister were interviewed at Triangle on video. If it were to be argued (and after Y's momentous change of evidence, it has not been) that in some way, these children were complicit in their several complaints to social work personnel, their foster carer, and Triangle respectively, I would reject any such submission.
66. The parties' respective legal teams had helpfully cooperated with joint instructions to Triangle with the questions which should be put to the children in a form of cross examination. The responses of the children in each case were as compelling as I found the evidence of their elder brother Y. It is pertinent to note the care with which Triangle approached its task, which we see defined at page H 12 in the bundle. At paragraph 3 we read:

Triangle's instructions:

67. 1 We were instructed to assess and build rapport with W, V and U and to undertake filmed interviews with them, following pre-prepared questions and working as far as possible within ABE guidance. Rather than ABE interviews, which aim to enable a free narrative account of specific events, based primarily around open questions, this was effectively pre-recorded cross examination legislated for in the 1999 Youth Justice Criminal Evidence Act (Special Measures) but only recently enacted in legislation in England and Wales

And in paragraph 4: Triangle's involvement

68. 2 We were aware of some of the complexities of the situation, in particular that 2 of the 3 children had previously refused to be visibly recorded and all had shown both reluctance and distress in relation to the events under investigation. We also were mindful that the children's previous accounts seemed to suggest repeated events and possible multiple perpetrators. Therefore we worked hard to minimise the risks of increasing the children's distress, and to avoid creating confusion or contaminating or merging accounts.
69. The tragedy is that, particularly in the case of W, the manner in which responses were given was utterly distressing. We see his repeated protests at H 80:

Question: what did he used to do?

A: I do not want to talk about it

He was invited to write it down

A: I don't know… I don't want to talk about it… It is just I don't like talking about … Stuff… I don't like talking about even what I have been saying…

Question: how does that make you feel to talk about it?

A: cross

(it is clear on the DVD that the child then begins to breathe deeply and in some increasing distress). Again, in the following pages, his reluctance is repeated until, at H83 on the transcript we read, just as we see on the video, that he wants to leave the room while his interviewers read what he has said.

A: I don't wanna hear it… It will stick in my head and I will not go to sleep… Not comfortable at all… I don't want to hear it… I've seen what I wrote but I don't want to hear it…

(The boy began hitting his head).

70. Ultimately, the device which I have mentioned, of writing extracts from his statement on pieces of card and inviting the boy to place them on 'true' or 'untrue' pages, reduced his anxiety and the boy was able to confirm the contents of his statement, albeit with considerable difficulty as he struggled with his emotions. Thus, at one point (at H86) he was whispering, at another (H87) he was distracting himself, playing with a brick and latterly, he put his head on the table, and the viewer observes how clearly and very distressed he had become, bending his head down to his knees and then banging his head on the table and covering his ears.
    
71. At H 88, we read, after he again said that he "probably won't sleep tonight", these exchanges:

Question: when mum came in to help, I know you said she helped more than once. What do you remember anything she said?

A: (very quietly) she told him to stop

Question: anything else?

A: not to do it because it's wrong… [And moments later]… Took his hands away.

Question: when she helped, did she take his hands away one time or…?

[At this point the viewer detects that the child makes a brief, distressed sound before saying]

A: all the time.

[His interviewers, despite his increasing distress are then obliged to confirm where Y's hands were when his mother removed them]

A: you can say, you can say [he then starts tapping hard on the statement prepared by the interviewer, who reports "you're pointing to the word Willie"

The distress of the boy continues - he reports that he does not feel well.

Question: Why

A: I just don't feel well because I don't like thinking of these things… They make me feel weird.

[And then:]

A: I didn't tell anyone. Mum and X already knew because they helped me stop him. So they're the only people who knew… And when I talked to the police, they know about it.

The child then has his arm on the table before hiding his head on his arms, when he says

A:… I thought mum and X and the police needed to know more than anyone else because anyone else wouldn't be able to sort it except for the police and my brother and mum

72. At H 91, page 31 of the transcript, the interviewer takes the child through his statement and confirms the method she had been using to identify her questions and W's responses. He is asked to confirm his disclosure of the abuses suffered by his sisters, which he does. He neither contradicts himself or his statement but then becomes further distressed at H 92 and H 93 when, mercifully, the interview is nearing its end. The viewer observes, and the interview records, that W has begun to slap pieces of paper on the desk. That has arisen because the child is then challenged about Y's responses which in terms indicated, at the time, that Y was accusing his younger brother of lying. W visibly slaps the 'untrue' statement. Moments later he begins to bite to the brick with which he has been playing, when the interviewer speaks of Y being imprisoned.
73. Overall, the responses of the child to his interview carry with them no sense of invention or artificiality. He confirms his written statement and is, in my judgement, utterly truthful in what he says. His narrative is not simply likely to be true, it is in my judgement overwhelmingly so. It is for that reason that I believe every word of it, as I also believe that Y has been telling the truth when, ultimately, he accepted everything that his younger brother had disclosed.
    
74. I pause for a moment: Y had not seen the video interviews undertaken by Triangle until the same day that I viewed them, that is the first day of the hearing. The children's mother, CM, had, however, had access to those interviews rather earlier. Nonetheless, she insists, in my view with an excess of coyness, that W and, presumably therefore, Y, were mistaken. My rejection of her assertion is overwhelmingly reinforced by my viewing of the interview and by my re-reading the transcript as I prepare this judgement.
    
75. V's disclosures are found both in the wishes and feelings work undertaken with the local authority, and which triggered the intervention by children services and in the police ABE interview to which I have already referred, and latterly in her Triangle interview. On the surface, she is a less troubled child, in that she gives spontaneous answers throughout her interview without any hint of guile or invention. What we see from her interview that she insists that she told her daddy as well as her mummy, describing to the interviewer how Y would pull her clothes upwards and would look at her naked body. At H 120, the transcript confirms that which can be seen on the video namely the identification of the various parts of her body which S names for the interviewer and to which she points when identifying the areas which Y would look at. As I say, she told her father, and her father now, at the last possible moment, admits that she did. As we see at H116 onwards it is plain from her interview that her mother knew very well what was happening to her and her sister:

Question: who helped U [get ready for school]?

A: mummy…

Question: did Y ever help her?

A: no

Question: did Y help you?

A: no. Mum couldn't trust him… Because of the incident with our rude bits.

She then describes how Y would undress her and then at H117:

Question: you told the police that you tell mummy

A: and daddy… Every time when I first told mummy, she didn't do anything, she kept doing nothing but dad kept telling Y to stop it

(and later)

Question: did you tell her what Y was doing?

A: yes…

Question: what did you tell her?

A: mummy you have to stop Y looking at my rude bits

and at H120:

Question: and what did mummy say about your private bits? What did she say?

A: don't let him touch you anymore (a similar answer given to that on the following page when in answer to a similar question about her 'parts that are private' – "what did mummy say?" V responds "don't let Y look at them)

Effectively, if I am to believe V, her mother CM was leaving it up to the children to protect themselves, and was making no or no adequate effort to terminate the abuse or protect them. I do believe V.

76. U, the youngest of the children, is able, at H143, 145 and 146, to identify those parts of her body that are private, and she, too, tells the interview of her brother's attempts to look at her. She, too, identifies that her mother was aware of her brother's behaviour. At H145:

Question: so mum came and saw. What did mum see?

A: Y in the bedroom

Question: and what did she see Y doing in the bedroom?

A: looking at me

Question: … What were you doing when Y was looking at you?

A: getting dressed. Trying to get dressed really quickly. Then mum went like that one… She don't want anyone to look at me…

[Asked to explain, U continues:]

Question: how were they trying to help Y not look at you?

A: by covering me up.


77. What must be particularly concerning to the local authority is that the foster carer has observed both children (we see this at CA 168) lying on top of each other in what can only be described as suggestive poses, which the children have described as playing "dogs". One has to conclude that although the girls appear, superficially, to be less distressed about talking of the abuse which they have experienced, they appear to be acting out something rather deeper. One has to hope that the current of which I spoke earlier in this judgement has not swept them away from available help.
    

Findings

78. I turn to the schedule of findings sought by the local authority:
79. (i) In 2014 when W was aged 9, Y would grab W by the arm and pull him into his bedroom in the morning.

I am satisfied from Y's admission, and despite the denials of his mother CM (that this was reported to her) and given the acceptance of his father, that this allegation is made out


(ii) on approximately 11 occasions, Y unzipped W's onesie, held his penis and rubbed his penis up and down.

I am satisfied from Y's admission, and W's disclosures, which I accept, and despite the denials of his mother CM (that this was seen by her) and given the acceptance of his father, that this allegation is made out


(iii) on each occasion this happened, W shouted for his mother, who came and pulled Y off. She told Y off on at least one occasion "he gotta be good to earn credit for his phone"

I am satisfied from Y's admission, and W's disclosures and despite the denials of his mother CM (who, remarkably, accepts that she made that threat when answering the allegation relation to V) and given the acceptance of his father, that the allegation that W shouted out for his mother is made out. The assertion that Y was threatened that his mother would withhold credit for his phone is a remarkable thing for W to invent. On the balance of probabilities I accept this latter allegation.


(iv) the first respondent mother was thus directly aware of Y's conduct and failed to protect W from the same. She also failed to report the same to the police or take any other appropriate protective measures.

This finding is a logical consequence of the findings at (i) to (iii). It is made out


80. (i) While V was in nursery and year one at school (2012 – 2014), Y would pull V into his bedroom. This happened on numerous occasions.

Y admits the allegation. The Girls and W repeat it. It is made out


(ii) Y would pull her dress up and remove her clothes and look at V's "private parts" (vagina)

Y admits the allegations repeated by his brother and sisters. It is made out


(iii) V told the first respondent mother each time this happened.

Her mother denies that she was ever told. I do not believe her. I am satisfied certainly to the civil standard and indeed beyond that that mother knew very well that when her daughter cried out, it was because Y was abusing her. Whether V told her in terms or mother came to the door and then intervened does not matter. I am satisfied that this allegation is made out


(iv) her mother told her to tell her if it happened again.

V's Triangle interview is overwhelmingly clear and compelling. I do not accept the mother's denials. The assertions set out by mother on the Scott schedule that she 'constantly sought help' for her son is no answer to this allegation or those accompanying it. This allegation is made out.


(v) her mother said to Y "you're gonna get took away"

V's Triangle interview is overwhelmingly clear and compelling. Her mother suggests that although she said this, it was in connection with her son's 'poor behaviour'. I reject mother's attempts to deflect the allegation. It is made out


(vi) her mother told her to try and keep away from Y

V's Triangle interview is overwhelmingly clear and compelling. I do not accept the mother's response. She was effectively telling V to protect herself, which was a wholesale abrogation of her duties towards her daughters and indeed her youngest son. The allegation is made out


(vi) V told both her mother and her father

I am perfectly satisfied that she did.


81. The 2^nd respondent father was directly aware of Y's conduct and failed to protect U and V from the same. He also failed to report the same to the police or take any other appropriate protective measures.

In his 2^nd, manuscript, amended statement, delivered on the 4^th day of the hearing, father says this

1. W told me on about 2 or 3 occasions that Y had been touching his rude bits. I took that to mean W's penis. I told him to stay away from Y and that I would speak to Y.

2. On each occasion W came to me I spoke to Y after, I told him off and to stop this behaviour and to never behave like that again.

3. In respect of V and U, both girls told me on 2 occasions each, once they were together and one time they were on their own. They both told me on both occasions that Y had pulled them into his room and looked at their rude bits. I took that to mean their vaginas. I also told them I would speak to Y and I told them to stay away from Y.

4. As with W I spoke to Y each time. I told him off and told him that he must stop.

5. On each occasion I spoke with Y he promised to stop this behaviour.

We see from those paragraphs that indeed the father was aware, even from these limited admissions, of the abuse which was taking place under his roof. In my judgement he is still being coy. It is unlikely that there were only, in total, some four (or is it six?) complaints to him. The children were looking to him for protection (as indeed they were from their mother). He failed them. He did not report the matter to the police, and his assertion that he simply told Y off about his behaviour and sought to extract a promise from the boy that he would not repeat that behaviour, was, if it was designed to be a protective measure, wholly inadequate. The allegation is made out

82. (i) on 20 September 2010, the local authority received a referral about Y showing another child his private parts and also touching a 4-year-old's private parts. Y was 13 years old. The parents agreed with children services in writing that Y should not be left alone with any children.

As we have seen in this judgement and as we heard during evidence, Y now admits the allegation against him. The parents also agree that the local authority required them to sign a working agreement in the above terms


(ii) the parents failed to protect the children by ensuring that Y did not have access to the children without the parents being present

This is an unsatisfactory allegation. The working agreement has no time limitation, and is of such a generalised nature that I struggle to make a finding that the parents had any clear idea of the obligations to which the local authority required them to adhere. While both mother and father signally failed to protect the younger children, despite their knowledge of the significant concern of the local authority and indeed the police and despite their knowledge of the abuse which the younger children were to suffer, their failure to protect is far wider and deeper than simply failing to adhere to a working agreement


(iii) in particular, the parents slept downstairs while all the children slept upstairs

We know that this was the case. We also know that their home was specially adapted to take account of the difficulties which the children's father experienced in ascending and descending stairs as a result of a serious road accident when he was a late teenager. Thus, the family bathroom was on the ground floor and the parents made their bed in the living room. It seems to me, however, that given the parents' knowledge of Y's behaviour towards his younger siblings, they should have made arrangements for mother to sleep upstairs. Whether that would have been adequately protective, however, is doubtful, given mother's wholesale failure to take appropriate steps when confronted with the abuse as it took place.


83. Y was convicted on [ ] of 2 offences of making indecent photographs of children pursuant to s1(a) Protection of Children Act 1978, one offence of possession of an indecent photograph of a child pursuant to section 160 Criminal Justice Act 1988 and one offence of distributing indecent photographs of children pursuant to s1 Protection of Children Act 1978.

Y and his parents admit that this is so


(ii) these offences took place while Y lived in the family home with the children

Y and his parents admit that this is so


84. (i) the 2^nd Respondent father was convicted on [ ] of 3 offences of making indecent photographs of children under s1(a) Protection of Children Act 1978 and 3 offences of possession of such indecent photographs pursuant to section 160 Criminal Justice Act 1988.

The parents accept that this is so

(ii) the date range for those offences was 2001 to 2014

Father accepts that this is so

(iii) A sexual harm prevention order for life has been made restricting the father from having unsupervised contact with children

Father and mother accept that this is so

(iv) His probation officer has confirmed that he is identified as a high risk of serious harm to children

Mother responds that she accepts this allegation both in relation to children generally and his own.

In his response to the schedule, the father states that 'he does not believe that he is currently classed as a high-risk'. This response chimes with a number of answers he gave under cross examination which were highly suggestive of his inability to recognise the difficulties with which he struggles. The risk has been assessed by his probation officer and is set out in the presentence report to which I have referred. The allegation is proved.


85. The parents have failed to provide a clean, safe, hygienic environment for the children and have inconsistently met their basic hygiene needs. Furthermore, the mother has refused support to improve home conditions for the children.

In my judgement, the chronology and the local authority parenting assessment speak for themselves. I am not satisfied that her response (which is summarised in her reply to the schedule) is in any way persuasive. She states "mother accepts than when trying to deal with Y's behavioural problems and then when left on her own after father's arrest, standards slipped. She found it overwhelming dealing with 4 children on her own living in a small village with no transport."

In his response to the same allegation, the father writes "at times the house was less than acceptable however it was difficult for the mother to keep the property immaculate… The children are always clean and their teeth were brushed although [he] accepts that it may not have been to the highest standard given the fact that the girls have severe tooth decay". In my judgement, the parents' responses do not come within a country mile of explaining the several recordings of referrals made to the local authority and findings made on examination by local authority personnel and the police of the state of the property and the state of the children. Y simply stated in his oral evidence that the children are better off in foster care. I am afraid that he is right on so many levels. I am satisfied that the allegation is proved.


86. The parents have failed to take the children to routine health appointments including the dentist and optician, resulting in U and V having severe tooth decay.

Obviously the tooth decay relates to the mother's failure to ensure that the children attended at the dental surgery for checkups or treatment. Her response to the police in interview was dishonest and misleading. When asked about the issue by me at the close of her cross-examination she asserted that X had had one filling. That, simply, was no answer. The dental report reveals a quite disgraceful failing. The allegation is proved

That concludes my judgement