England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT LEYLAND

		Lancastergate Leyland
		24 August 2017

JUDGE DUGGAN:

1. Over the last few days I have conducted a fact finding hearing within these care proceedings. The case concerns a girl G, born in mid-2007, and a boy B, born in early 2010. Their parents are a married couple who separated on the 27^th of December 2016. On that day the mother and children suddenly left the family home in the south of England and returned to Lancashire, from where the mother originates.
2. The father brought speedy private law proceedings seeking to address the issues of return to the father`s care, or contact with the father. Those proceedings were before District Judge Arnold, in the south. Within those proceedings allegations were made of physical and emotional abuse and District Judge Arnold delivered a Judgment containing his findings on those issues in the private law proceedings on the 26^th of April 2017.
3. New allegations were then made against the father on the 8^th of May and on the 15^th of May, leading to an ABE interview with each of the two children on the 16^th of May 2017.
4. These Local Authority Care Proceedings followed the May allegations. The proceedings were issued here. I transferred them to the same District Judge for the purpose of continuity, but he re-allocated to Circuit Judge level, and transferred the proceedings back north to me.
5. The Local Authority have assembled the voluminous material in a number of bundles. I have closely studied the evidence and my attention has been drawn to the relevant parts of the supporting material. I have heard oral evidence from the mother, the father, the father`s neighbour, the Local Authority Social Worker, and I have heard from G.
6. The ABE interviews of 16^th May 2017 were, of course, recorded. I have studied those recordings on a number of occasions, greatly assisted by the transcripts. I decided to allow further questions to be put to G but not to B. This took the form of questions prepared and agreed in advance, put in person to G by father`s Counsel and the whole exercise was observed by the rest of the Court over a live video link.
7. In the course of that exercise G quickly announced that she had the most annoying dad in the world. She proceeded to say that she didn`t remember any of the relevant complaints that she had previously made. She concluded the exercise by asking for a photograph of the Judge which was duly arranged.
8. The law places the burden of proof in these Care Proceedings on the Local Authority. The principle is that he who asserts must prove and findings must be established on the balance of probabilities.
9. Before embarking on my preparation of this Judgment I re-read the very helpful summary of the principles applicable to fact finding exercises published by Mr Justice Baker in his Judgment in the case of Re A from 2014. I have followed that guidance but will not burden this Judgment with the full details of the advice given in that case.
10. I have before me the findings that were made by District Judge Arnold, on the 26^th of April 2017. In essence he rejected the mother`s allegations that she had been abused by the father. He was clearly of the view that this was a toxic relationship between the parents. The children had witnessed adult arguments which was emotionally abusive to them. He found that the mother had been emotionally and verbally abusive to the children in her inability to control her anger. The District Judge ordered that the children should nevertheless remain with the mother, pending further assessment, and directed that there should be contact with the father. That duly took place, but in G`s case the last time she was prepared to participate in contact with her father was the weekend of the 5^th of May 2017.
11. The Local Authority have prepared a schedule of allegations which contains allegations of ill treatment and sexual abuse by the father and pleads in the alternative, allegations of coaching and alienation by the mother. In fact, neither the Local Authority nor the guardian now argue that these allegations are made out. They are in my judgment quite right in that conclusion. The parents, however, are not prepared to withdraw the allegations they make against one another, so this Judgment will cover those areas of the case.
12. The Local Authority now invite me to find that these children have been harmed emotionally by their parents. Both parents, in their different ways, have contributed to the development of very distressed and confused children. It is sad that the father has upset the children during the periods of breakdown and contact. G has sided with her mother in the matrimonial breakdown. G has made allegations which contain a deal of truth. Her mother believes the worst whenever she hears anything about the father, and this has had the effect of encouraging G to exaggerate and expand untruthfully on her complaints about him. The Local Authority contend that the sexual allegation probably originated in what the parents recognise as childish quasi sexual behaviour on the part of B. The probability is that G has untruthfully added involvement by the father. This new Local Authority formulation clearly expounded at the start of the process of submissions, is an analysis that I have come to accept, and the purpose of this Judgment now is to explain that conclusion.
13. It became clear during the course of this case that the parents each had a rather sad motivation to establish that their ex-partner was worse than themselves. Parents who are listening to this Judgment with a score card for that purpose must now know that the outcome of this match is a draw. I am afraid it can only be described as a dishonourable draw so far as both parents are concerned. There are no winners but two very obvious losers, in the form of G and B. How disappointed they must be in the parents that they love.
14. My method will be to pick out significant items from the detailed chronology in this case. I will make my findings in relation to the salient elements, and explain why I have come to my conclusions.
15. Before the parties separated, I endorse the District Judge`s finding that the adult relationship was toxic. The father was in the habit of making secret recordings. His recording of the 24<sup>th</sup> of December 2016 reveals the mother`s uncontrolled anger, in which her bad language features. However, as is so often the case, the father`s recording also reveals his own part, and it is clear that when eventually the mother had the good sense to stop, it was the father who insisted that the arguments continue. It is difficult to escape the conclusion that the father was driven by the knowledge that he had the recorder on and was collecting ammunition. The recording clearly establishes that the children were involved. Indeed there are points at which the recording reveals that the children contributed in an attempt to restrain their warring parents. A particularly low point, which should cause both parents to have sleepless nights, is when B is clearly recorded as saying on Christmas Eve, 2016, `I wish I was dead.`
16. The mother left home with the children. The father had to find them. Proceedings were necessary. There was an Order for return home, with which the mother did not comply. There was an Order for contact, and in due course contact was established. In January, there was contact in France. Thereafter there was contact at home and a pattern of telephone contact also became established.
17. The father covertly recorded the telephone contact and the observer is shocked to see the subtle pressure which the father brought to bear on the children. It is perfectly conceivable that the father did not realise what he was doing. But the impact on the children must have been profound. He would refer to the cat, not in my judgment making a threat against the cat, but reminding the doting children that while they were in Lancashire their beloved pet was back home. Subtle adverse comparisons were made between the school which the children attended in Lancashire, which was described as having a prison fence, and the more attractive school which they knew in the south. The homes were similarly compared. The absence of a guitar from the household in Lancashire was mentioned, and the father could not resist an adverse dig at the mother`s inability to afford the guitar for the children, which was sitting unused in his home.
18. The father was clearly thereby encouraging the children to look with greater favour upon the prospect of life with him down south, than they looked on their current life in Lancashire. A consequence was that at the end of February or beginning of March, G is noted at school complaining about the pressure that their father is placing upon her.
19. In April, Social Services prepared an important wishes and feelings report, which went before the District Judge. I accept the accuracy of this work. G made it clear that she was upset by her father`s behaviour since the separation. She made relatively mild complaints and most of them were probably true. At the same time B was asked for his recollection of the father, and his memory was dominated by an angry face. B said that daddy messes with my brain. G later said that he makes her head feel like spaghetti.
20. These children felt that they were in the battlefield. One of them is recorded as saying that the father would tell them what to say; they knew about Court, and were sad. B wanted his parents to be together. He revealed that he had lied to his father by saying that he had been struck by his mother. No doubt he was telling the father what he thought father wanted to hear, which is surely a very fundamental message relevant to later comments addressed to the mother.
21. The evidence is clear that the mother made her contribution. G was afraid that there was a listening device in her beloved soft toy. The father`s recordings in contact probably created this concern in G`s mind. Any sensible mother would have told G that father would not do anything so silly, and carry on with play. This mother destroyed the child`s favourite toy and apparently left G in the belief that the father had hidden a recording device in the toy, when mother now agrees that there was no such device.
22. The District Judge`s decision of the 26^th of April 2017 was clearly a disappointment for both parents. Father expected the children to return, and the mother expected her allegations to be accepted.
23. The next event was a period of staying contact with the father, between the 5^th and the 7^th of May, and on the very next day at school 8^th May 2017, G made further complaints about her father. He had called her names, he had hit her, he had left them home alone. Social Services saw the children and received the same general account, but G clearly revealed where she stood. She told Social Services, `I want mummy to win.` She told Social Services that the Judge is mad with mummy. B joined in. He enlightened Social Services with the information that the family home is 'technically mummies'. The word technically may indeed come from school, but the mother will never persuade anybody that a topic of conversation at the Lancashire primary school is the respective proportions of the equitable interests of these parents in their home. Father would not be telling B that his home belonged to mummy. It was the mother who was drawing B into this area of controversy. There were other comments. On the balance of probabilities, both parents spoke inappropriately to the children about their battles.
24. It is clear that this infected G`s complaints. She alleged that the father was in a relationship with the neighbour. I am satisfied that he was not. I have heard and accept from the neighbour that she wasn`t even in residence at the weekend in question. My conclusion is that the children's interest in her originates with mother`s apparent obsession immediately before the separation. The recording can leave us in doubt as to the mother`s attitude at that time, which the children witnessed and undoubtedly assimilated.
25. I conclude that the father did not leave the children at home alone. There is no evidence to support the complaint that G was struck, beyond perhaps a corrective smack. B was bitten, in the sense that there was a 'play bite' from father which has been exaggerated in this unhealthy context. The bite was a little too hard. It seems to have produced a scratch. It was not significant harm is does not constitute abuse.
26. On the next Monday morning, the 15^th of May 2017, the mother went to school and spoke about more dramatic allegations. The mother tells me that over the preceding weekend she witnessed some innocent horseplay between the children which involved B rubbing his private parts on G. This is recognised by both parents as a piece of silliness which they had each seen and done their best to stop.
27. It seems that mother and daughter spoke later that day and G indicated to her mother that father was involved. This is a crucial first complaint of sexual abuse. The mother has given a number of accounts to the school, the Police and to the Court in the form of her witness statement. These accounts contain inconsistency as to the fine detail of G`s complaint. In any event, mother told the school, the school told the Authorities, the Police and Social Worker saw the children, and they were both interviewed under the ABE process on the 16<sup>th</sup> of May. In her ABE interview G includes an allegation that her father rubbed his private parts on her private parts. It has been necessary to analyse these ABE interviews closely. There are significant differences between G`s account and B`s account. My assessment is that very rarely was G`s account accompanied by the kind of emotion that might be expected of a truthful account. Importantly, when G came to be questioned live three months later, she was allowed to watch her previous interview by way of refreshing her memory, but when sensitive questions were put she insisted that she did not remember the incidents in question. The only part she seemed to recognise was sexual play instigated by B which in my judgment is the seed from which this wider allegation has grown.
28. G`s ABE interview was not, I am afraid, very well conducted. The interviewer got completely bogged down in the surrounding circumstances; no clear picture arises of the alleged abuse. She does give a good description of a male penis but it is clear from the evidence I have heard that she has had the opportunity to make that observation on previous innocent occasions.
29. At one point in the interview she says that she was startled, scared, nervous. Those descriptions present an impressive level of the articulacy in this young lady, but that does not persuade me that she was speaking the truth.
30. B was a very difficult subject for the interviewer. He was distracted. An aeroplane featured. He spent a lot of time on the floor; he was a handful for the interviewer. He did make a complaint at the end of the day but I was left rather unclear as to precisely what he was raising, and there were significant inconsistencies with what G had to say.
31. It is very important to view these interviews in their proper context. Both of these children had been spoken to on previous occasions without raising sexual complaints. The children's hostility to the father had developed, and understandably developed. G`s first complaint was made to mother, but mother`s inconsistent account leaves me less than clear as to precisely what it was that G was then describing.
32. When G spoke to her mother, the mother is the first to confess that she did not deal with this very well. Mother says that she burst out sobbing, and held the child tight in her grasp. Mother would now like to think that she kept quiet and let G speak. Her earlier statement says that she did not ask the child too much. That leaves me questioning whether an upset mother would be in the best position to judge what should be asked and what should not be asked in those circumstances. It is clearly established in the evidence that the mother would place the worst interpretation on anything which came up concerning her estranged husband, and in that context I find she would be unable to hold back.
33. My conclusion is that G complained about B`s behaviour to her mother over that weekend. She was describing something that had happened when the children had been away on a contact with their father. Mother perhaps enquired, `Where was father when this occurred?` Whether questioned or not, G added a role for father. She thereby perceived herself to be helping the mother, who she wanted to win, and she thereby gained for herself attention from the mother that she loves.
34. The later additions to the evidence do not create a stronger picture. The mother says that on the 21^st of May, G raised with her an allegation that both B and the father had urinated on her. Mother says that she told Social Services. Social Services do not seem to have a record, which they surely would if that was so.
35. On the second day of this hearing mother produced an additional statement of evidence, adding the contention that on the previous day B had decided that the time was right to talk about events with father and he had given a similar account of urination. This urine allegation is not to be found in any of the ABE interviews. The source is the mother and the mother alone. The mother is far too receptive an audience. The more she hears, the more she wants to hear. I reject these additional elements.
36. The father contends that the mother has deliberately and maliciously coached the children in allegations against him. In his favour the timetable is very suspicious. The complaints start; the complaints escalate after the mother was disappointed by the District Judge`s decision. They continue on the very eve of an important period of assessed contact. They conclude during the hearing with an extra statement from the mother which seems to address a gap which had developed in the evidence during the preceding day.
37. I accept that the mother has contributed. She assumes the worst. She is interested in complaints against the father. No doubt she asks for the detail of complaints against the father. She clearly involves G in her battles. However coaching and invention are one step further, which I do not find to be justified on the evidence. I accept that in the papers there is an occasion when the school speculate as to whether G was repeating something said to her. However for me, coaching does not emerge from the ABE interviews. It certainly does not emerge from G`s inability during the live link to recall any of the episodes of which she had just heard the recording replayed. In truth, I would expect a coached account to be rather better, and in the mother`s account to be free from inconsistency. It is surely inconceivable that children handed over by the father at Birmingham New Street Station on the 7^th of May, would be coached to produce the account they gave at school the following morning. The timing makes the father very suspicious. My preferred interpretation is that the mother is extremely anxious as important steps in this case arise and she probably cannot prevent herself mentioning to the children that something important is to happen. She probably cannot prevent herself asking the children to confirm what they have said previously by way of complaints against their father, and this is the context in which children (who want mummy to win) respond to the anxiety from which the mother has failed to protect them.
38. The Local Authority schedule starts with allegations of ill treatment and follows up with allegations of sexual abuse. My finding is that there has not been sexual abuse, and there have not been these aggravated acts of ill treatment pleaded by the Local Authority. By the mother, there have not been attempts to coach and alienate G.
39. Paragraph 3.3 requires a little more attention. This is the allegation that the mother has attempted to alienate B from his father. It is necessary to refer to recent events. The mother now entirely disapproves of the father but B continues to participate happily in contact sessions with him. On the 31^st of May 2017 mother told Social Services that B did not want to go. At the end of the period of contact she reported it had not been successful. The Social Worker, whose evidence I prefer, is clear that B participated as enthusiastically as ever in the contact session, and there was no blemish on that session so far as the observer was concerned. The mother`s assertion that the child`s subsequent accident and attendance at the A&E department is in some way a condemnation of the contact relationship is farfetched.
40. At a recent weekend father helped B produce a birthday cake for G. Mother failed to present this in an attractive and sympathetic light. She let G believe that this was some interference from father which G then apparently rejected. Mother allowed a scene to develop. She blames everybody apart from herself. But the bottom line is that B's happy period of contact with his father, in which a brotherly gesture towards his sister was facilitated, was spoiled by the mother`s intransigence. My version then of paragraph 3.3 is that the mother has failed to encourage the successful development of B`s contact.
41. The case now moves on to its next phase, and I do urge the parents to try a new approach. For the mother I would hope that there should now be cause for celebration. Her beloved G has not been sexually abused by her father and has not suffered the harm that this would entail. G therefore is safe to be with her father, if he can act in such a way that she can come to enjoy being with him. The mother may protest that all she has done is to listen to the children, but surely the only conclusion is that the children have told the mother that they love what they think their mother wants to hear. If it should happen that any more is said by the children, surely it has to be received in that spirit.
42. The case will be returning to me in due course and my expectation of the mother is that she will do all she can to encourage G to restore a proper relationship with her father.
43. For the father the separation was a huge blow. However he has not dealt with it very well. The father has not abused G. I have no doubt he will be quick to respect that judgment. I invite him to give the same ready respect for my judgment that the mother has not, in fact, coached G. G has been turned against her father because she was dragged into a battlefield which she did not want to know.
44. The recordings tells me that G told both parents to stop yet both parents carried on. If the parents cannot adjust their approach following that plea from their own child, it will be a poor turn of events.
45. I suggest the parents need professional advice now as to the way forward. The father has been critical of Lancashire County Council in his paperwork. I would urge him to conclude that this was a premature judgment on his part. Lancashire County Council made it clear from the start that they wanted to complete their investigations before reaching a conclusion. They had to make a hasty contribution to the early Court process, and a cautious approach is surely the only approach that was available to them. Father surely now will recognise that the Local Authority very quickly came to the conclusion during this hearing that he was not a sexual abuser of children. In that regard their professional credibility should be viewed by him in a more favourable light. The father has got to change his approach. The battle is not about where these children are going to live. The target must be to give the children a good time wherever they are.
46. That concludes my Judgment. I proceed to consider directions for the case going forward.

Approved 12/10/17

RD