England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		21st March 2013

Mr Justice Peter Jackson:

1. These proceedings concern W, who was born on [a date in] 2011 and is now aged 17 months. The local authority, supported by the children's Guardian, seeks a care order and a placement order. That is opposed by W's mother and grandmother, with whom he lived for the first four months of his life before being placed in foster care in February 2012. The grandmother wishes to resume the role of W's main carer, assisted by the mother.
2. The local authority does not support the return of W to his grandmother on two grounds. The first relates to long-standing concerns about her ability to protect children and the second arises from sexual allegations made by three children outside the immediate family against the grandmother's youngest child N, who is now aged 15 and lives at home with her.
3. Proceedings about W began in November 2011 when he was not yet three weeks old. They were initiated by the grandmother because of her concern about the ability of the mother, then only 16, to look after him properly. The court ordered the local authority to make enquiries, which revealed the allegations against N and led to the issuing of care proceedings in February 2012.
4. It is a matter of real concern that it has now taken over a year for a decision to be reached in relation to such a young child. Each stage of the process can, as usual, be explained and the issues are not easy, but the delay in this case means that W urgently needs a decision to be made about his future.
5. This hearing, which is a combined fact-finding and welfare hearing, has taken place over the course of eight days, during which evidence was given by thirteen witnesses.
6. I will summarise the history, before considering the allegations against N and reach conclusions about the local authority's broader case in relation to the grandmother.

The history

The grandmother

7. The grandmother, who comes from Lancashire, is aged 46. She has been married twice and has three children from each marriage.
8. Her first marriage was to Mr K and lasted between 1986 and 1991. Her eldest child from this marriage, JK, is now 26. She has two young children with some health problems and has very recently sadly lost a third child in infancy. The father of that child is DK, aged 28. The grandmother's second child, a daughter named KB, aged 25, lives in Lincolnshire and is married to an uncle of the three children who have made allegations against N. Her third child, a son aged 23, lives in Blackpool.
9. Mr K subsequently formed another relationship, becoming a stepfather to his partner's children.
10. The grandmother's second marriage was to a Mr B and lasted from 1992 to 2001. The children of this marriage are her daughter L (20), who lives in Lincolnshire with her partner and son, her daughter S (18) who is W's mother, and her son N, referred to above, who is now 15.
11. Mr B has a large number of other children born to various mothers before and after his marriage to the grandmother. In 1992 and 2001, separate allegations of sexual abuse were made against him by two of the other children of these women, but were not resolved.
12. Furthermore, in 1996 the grandmother made a referral to social services concerning allegations that JK and KK had been sexually abused by older stepchildren of their father Mr K during staying contact.
13. Between 1997 and 1998, Mr B, the grandmother and the children lived in Cornwall before returning to Lancashire. While the family was in Cornwall, N was born. Mr B was convicted of running a pornography business from the home and given a community sentence.
14. The grandmother and children suffered considerable domestic violence at the hands of Mr B, stretching back to the beginning of the relationship. It was not until 2001 that she escaped, moving with the children to Lincolnshire. At that point, her eldest daughter JK alleged that she had been sexually abused by Mr B for four years. Also at that time, JK's current partner DK came to live in the grandmother's home for about a year.
15. In 2001/2, there were proceedings in Lincolnshire between the grandmother and Mr B concerning their three children, with each adult making allegations against the other. Social services investigated and reported, commenting positively on aspects of the grandmother's parenting. At a hearing in May 2002, a judge in the County Court found that the allegations made by JK against Mr B were not proved, but rejected the grandmother's evidence that she did not know about the pornography business. He found that the children were emotionally damaged as a result of their father's conduct. An order for indirect contact only was subsequently made.
16. It was in 2002 that the grandmother met CB, the mother of the three children who have made the allegations against N. The two families became friendly and have remained in contact since.
17. Between 2006 and 2010, the grandmother and children lived in Blackpool. During this period S's behaviour began to cause great concern, with self-harming and sexual activity from a very early age.
18. In February 2010, the grandmother returned to Lincolnshire with S (then 15) and N (then 12). Over the following months, she resumed regular contact with CB and her family.

CB

19. CB is 30 years old. She is the third of five children. Her younger brother RB is married to the grandmother's oldest child JK. Her younger sister MB is aged 24.
20. CB's three sons are J (born 2000), C (born 2001) and K (born 2003). They have three different fathers. J's father is currently married to CB's mother.
21. CB's youngest child, a daughter born in 2005, is a full sister to K.
22. In April 2010, social services became involved following an allegation by J that his mother had assaulted him. CB denied it and got J to withdraw his statement and say that C had hit him. The matter remained open to social services until February 2011. The allocated social worker was coincidentally the same social worker as had reported in the proceedings concerning the grandmother's children in 2001/2. She described exceptionally lively children who could be badly behaved, though not at the most extreme end in her experience. The older two boys had learning difficulties, while K was more open. There was no history of sexualised behaviour.
23. The boys' behaviour was certainly bad enough for CB and the family to have been evicted from their home on 3 September 2010, at which point they were rehoused quite close to the grandmother.
24. From the summer of 2010, the two families spent a considerable amount of time in each other's company. The grandmother came to act as a maternal figure to CB. After school or during the holidays and weekends, CB and her children would frequently visit the grandmother's home, and there would be return visits by the grandmother and her children to CB's home, before and after her move. As a result, N and the three boys were thrown together. They would play together, even though they were not natural soulmates, with N being quiet and bookish while the boys were loud and challenging.
25. CB's 28th birthday fell on 18 September 2010.

The allegations against N

26. On either 18 September or the following Saturday, 25 September, CB arranged a small party at her house attended by members of her family and the grandmother, who came with S and N. The evidence about the date of the party is contradictory. It is not of central importance, but I find that the likelier date is 25 September.
27. While CB and her family were waiting for others to arrive, K told them that he didn't want N to come round as he made them do things. He said that N dared him to touch his private parts and dared J and C to stick their penises in each other's bottoms. J denied this.
28. When the grandmother arrived with S and N, CB took her aside and told her what had been said. The grandmother was indignant, and immediately left the party, taking her children with her. When she got home, she gave an account to N, who denied it and became extremely distressed.
29. The following day, on C's return from a visit to his grandfather, CB spoke to all three boys; C said that N had tried to make him put his penis up J's bottom, but that he had not done it.
30. CB was concerned about what the boys had said. They would not tell her more, and so she asked her younger sister MB, who is close to them, to speak to them. She did this on the following Monday, 27 September, speaking to each boy alone in a bedroom. The older boys were happy to speak to her but gave little detail, while K gave a detailed description, as appears at [C117]. She says that she did not press them and that they spoke readily. She informed her sister what she had been told.
31. On Thursday, 30 September, a family support worker was visiting. CB told her what had happened and she informed the social worker, who informed the police. It was agreed that the children would be interviewed under ABE procedures on the following day, 1 October.
32. In the course of those interviews, K made detailed allegations of being required by N to take part in oral and anal sexual activity. C made similar allegations, though with less detail. J made statements about oral, but not anal, sexual activity. The details are contained in the local authority's schedule of findings.
33. In October 2010, shortly after the allegations had been made, the grandmother returned to Lancashire with S and N. There was a disruption to N's schooling that lasted fully two years.
34. In December 2010, N was interviewed by the police and in January 2011 a decision was taken that there would be no criminal proceedings.

The birth of W

35. In about February 2011, not long after the grandmother's family had returned to Lancashire, S went on a visit to Lincolnshire on her own, visiting her older sister J. While there, she became pregnant with W. She says that she was raped or that her drink was spiked. She suggested that a young man (RW) might be the father, but DNA testing has ruled this out. Following W's birth, a much older man made contact with the grandmother to enquire whether he might be the father, but nothing more has been heard of him. W's paternity is therefore not established.
36. Following W's birth, relations between his mother and grandmother were very difficult. The grandmother rightly thought that the mother was unable to look after him and applied for a residence order, which was granted on an interim basis. The mother left the grandmother's home. After the local authority had investigated, it began care proceedings and following the making of an interim care order on 23 February 2012, W was placed in foster care.
37. Since that time, relations between the mother and grandmother have improved. They both attend contact regularly, and this has been of good quality, with the grandmother taking the lead.
38. In November 2012, the mother conceded that she was not able to look after W herself, and instead she now supports the grandmother's claim on the basis that she would be present in the background.
39. The grandmother's evidence was that she and S are now getting on much better and that N is now doing well at school, a picture confirmed by the social workers for W and for N. The grandmother said that she was now more willing to accept that the boys' allegations might possibly be true, although in her evidence she urged that there was no real opportunity that she could remember for it to have happened. She said that she was already coping with a number of responsibilities and stresses, and that she would not have any difficulty in taking on responsibility for W.
40. Very recently, on 1 February 2013, another child protection team has informed the local authority of its concerns about DK, JK's partner. He is said to have had another child removed from his care and placed for adoption, has a history of substance misuse, emotional problems, and sexual abuse within his own family.

Assessments

41. The local authority's own assessment of the grandmother and mother does not support the return of W to the family.
42. An independent social work assessment of the grandmother's parenting capacity has been obtained from Mrs Alison Paddle, who gave evidence. She is clear that if findings are made in relation to N, W should not be returned to the family. In the absence of findings, her view was more finely balanced. She acknowledged the grandmother's strengths in the areas of basic care and day-to-day stimulation, saying that she led a fairly well-organised life, and she said that the grandmother had acted appropriately to protect W after his birth and had looked after him well for four months then.
43. However, she was concerned about what she saw as the grandmother's unrealistically optimistic view of the history and her lack of openness. She was concerned about her ability to protect W in all future circumstances and about the effect of any problems in the relationship between the grandmother and S. She was not sure that the grandmother was trustworthy in all respects.
44. Although Mrs Paddle stopped short of making an outright recommendation in the absence of findings against N, she expressed considerable caution about any plan for rehabilitation. She was not able to identify corrective work that could be done with the grandmother within W's urgent timescale.
45. The Guardian was opposed to W returning to the family even before Mrs Paddle's report was received. However, he accepted that his own contribution to the enquiries in this case has been very limited, in that he has formally met the grandmother and mother only once during the 16 months of his appointment.

Evaluation of the allegations against N

46. I have viewed the interviews with the three children twice, once before hearing the evidence and once following submissions.
47. On 8 February, I refused an application by the Official Solicitor on behalf of N for the three children to give evidence and be cross-examined.
48. There are indeed a number of difficulties about the interview with K. The officer gratuitously introduces the fact that it is all right to use naughty words and that K's mother has given her approval. She then goes on to tell K that she wants to talk to him about what he had told his mother and aunt and that he is free to talk about bad behaviour. She then introduces the idea that the bad behaviour involved another boy, before naming N, who K had not mentioned. Once again K is asked to say what he had told his aunt. As the interview proceeds, K is kept on the topic that the officer wishes to explore by fairly firm guidance and the use of suggestive and leading, sometimes grossly leading, questions. (e.g. "Anything come out of the winky?"). No attempt is made to "disconfirm" what K is saying. Overall, with respect to the officer, the interview is at best rudimentary and at times clumsy.
49. Having said that, the interview with K has a number of compelling qualities. He shows a reasonable understanding of the difference between truth and lies. He is reasonably relaxed, although he becomes somewhat anxious when asked about the dares. Having overcome initial reluctance, he fluently describes venues and other people present. Having received strong encouragement to overcome his embarrassment, he speaks freely: "He told us to put a winky up somebody's bum and told us to suck our winkies, somebody put a winky in somebody's mouth." Subsequently, he explains how N forced them to do it by threatening to remove them from the story that he was making up. There is then a large amount of spontaneous detail relating to the postures of the various boys while the activity was going on, the removal of clothing, the fact that the grandmother did not like them going into the bedroom at her house, an occasion when it happened at the boys' house (and that it did not happen at school), the experience of feeling choked, hand movements, white goo in the mouth with a specific explanation of how it got there and how N gave him a drink to wash his mouth with, how long it had been going on for, how they arranged lookouts, how it felt a painful when a winky went in his bum, and how N told them not to tell anyone.
50. The interview with C shares many of the same shortcomings as that with K, and I will not repeat these. At one point, where C is being unforthcoming in the interviewer' opinion, she challenges him with the need to tell the truth. Moreover, C's limitations are apparent from the interview. He is restless and somewhat wary and there is a distinct sense that he is withholding information that might get his brothers or himself into trouble.
51. That said, he states and repeats that N asked them to suck other people's willies, and that it happened in the bedroom and at the top of the stairs in the grandmother's house, that the dares consisted of sucking and kissing willies and sticking willies up bums. He described the removal of his clothing, while N's clothing remained on. He referred to N threatening not to let him keep some football cards. So far as he was concerned, he said that he only sucked N's willy, and he twice physically demonstrated a sucking motion.
52. In my view, C was describing activities that he had experienced with somebody.
53. J appeared willing to give information and had a basic understanding of truth and lies. His mood was appropriate. He made a number of statements that did not confirm what his brothers had said: for example, that all activities took place on the landing and that nobody was involved in sticking cocks anywhere. The interviewing style was again similar, with it being said at one point that he would not get into trouble for telling but for not telling.
54. There are a number of reasonably noteworthy features to J's interview. He spontaneously mentioned the question of dares, which he described as "dirty" and which consisted of making people suck cocks, though he refused to be drawn into detail. He described his little sister being sent away by N and not seeing anything, N threatening to delete J's character from his Xbox, the relative positions of individuals and of their clothing, and of N and K disappearing upstairs on their own. He said that what happened felt disgusting and that he was pleased to have told his mother because they were getting sick of it.
55. On behalf of N, Mr Feehan QC and Ms Korol make a strong attack on the quality of these interviews, describing them as deeply flawed. They submit that against a background where these unruly children had already been quite extensively questioned, preparation was lacking, the establishment of the children's ability to distinguish truth from lies rudimentary, and that the interviewer was not open-minded. They point out that the interviews did not in general consist of free recall but often of suggestive questioning. In effect, the children were being invited to repeat, not to remember. They have not referred to their allegations since being interviewed, including in the case of K during a period when he underwent a number of months of therapy.
56. Mr Feehan argues that it is unlikely that these boys would let someone like N do anything to them that they did not agree with, or that this activity would pass unnoticed in either of these small, rather crowded houses.
57. It is further argued that the three boys were wild and that they had other opportunities to gain sexual knowledge. There is also clear evidence that J has lied to professionals about an assault upon him by his mother in order to protect her, and that C had also been told not to talk at school about an incident at home in which a window was broken.
58. Finally, Mr Feehan relies on the evidence given by N himself. N came to court and answered questions for about an hour. He did so with considerable self-possession, describing events in Lincolnshire and Lancashire, and the effect of the allegations upon him. He denied touching any of the boys and said that he would not do something like that to anyone. In any case, he says that he was never alone with the boys or with any of them and that there was always somebody in eyeshot. He never went into his bedroom when the boys were around and the boys were not allowed there because they were naughty. He described normal play with them, including using them as characters in his imaginative story writing and electronic games. He believed that he was the victim of bullying and that the boys had put their heads together to get him into trouble because he was a "perfect child" compared to them, but that the whole thing had led to consequences that they would not have intended. He had no time for the general belief in his family that CB had made the children make the allegations in order to get his mother out of the way because she was some sort of love rival, describing the idea as "silly".
59. On behalf of the local authority, Ms Cross QC and Mr Hart acknowledge the shortcomings in the interviews, but point to aspects that, they submit, show that the children are describing remembered events as opposed to remembered conversations or inventions.

Discussion

60. The burden of proof in this matter rests on the local authority, and the standard of proof is the balance of probabilities.
61. In this case, the ABE interviews with the three boys represent the only evidence in relation to the allegations against N. The interviews are subject to all the criticisms listed above. Added to that, N has not had the opportunity to challenge that evidence by way of cross-examination. It is therefore essential to approach this evidence with care and caution.
62. I have been referred to three recent decisions of the Court of Appeal where deficiencies in interviews with children caused concern. In the first of these (TW v A City Council [2011] FLR 1597) the flaws in an interview with a four-year-old child were sufficient to lead to the quashing of a finding against an adult. The interviewer had so failed to keep an open mind that the court was constrained to regard the evidence as lacking any weight. The same principle was stated in the other decisions: Re B (Allegations of Sexual Abuse: Child's Evidence) [2006] 2 FLR 1071 and Re R (Care Proceedings: Appeal) [2013] 1 FLR 467. However, in those cases the shortcomings were not so grave as to lead to the setting aside of the findings. As was said in Re B by Hughes LJ, the court's task is to weigh up the evidence as a whole, warts and all: see paragraphs [40], [42] and [43].
63. I have carefully considered the arguments presented on behalf on N. Having done so, these are my conclusions:

(1) Based upon the history of these two families, I reject any evidence to the effect that these children were being so closely supervised that behaviour of the kind alleged could not have taken place. On the contrary, a lack of proper protective supervision is characteristic of both homes. The evidence on this question from the grandmother, other family members and N himself was consistently unconvincing.

(2) While N undoubtedly has a very different nature to the three boys – he being quiet and they being anything but – I do not accept that this makes their allegations less likely to be true. What J described as "dirty dares" would be likely to be appealing to boys whose behaviour was often very unruly. In his interview, J said that he was not at first concerned at what was happening, but that he later did not like it and they had decided to tell their mother. I do not find that these children would need to be forcibly coerced when more subtle pressures existed in the form of forbidden activity and the possibility of being included or excluded from N's stories. Likewise, I do not accept the argument that N would lack the nerve to behave in this way; on the contrary, spending long periods of time with children with such different standards of behaviour may have led to him becoming disinhibited.

(3) Although it is not for N to prove anything, I can find no plausible motive for these allegations have been invented. The suggestion of the adults that this is a plot by CB, carried out by her sons, is far-fetched. The relationship between the two mothers was notably close before this issue arose. Nor is there anything in N's theory that the boys did it to get at him. As Mr Buchan says on behalf of the Guardian, allegations of this kind would be well beyond their normal repertoire for getting someone else into trouble. I detected no real malice towards N from the boys or their family, and there is in my view no chance of them having the sophistication to launch a concerted attack on him in this way.

(4) Nor is there any substantial risk that the children's account has been contaminated by their very limited conversations with their mother or by their more detailed conversations with their aunt. The mother had no reason to want to whip up or distort what she was being told and I found the aunt to be a sympathetic person who did not press the children inappropriately.

(5) I accept that these boys cannot always be relied upon to be truthful. The way in which J's mother got him to deny that she had hit him is a striking instance of the poor example they have received. However, this is a long way away from the present case. In that instance, J was telling a bald lie for a very obvious purpose, while the allegations against N are detailed and without obvious motive.

(6) Despite the well-made points about the calibre of the interviewing of the children, I find that those interviews have significant evidential value. The children's demeanour suggests recall of real events, described with appropriate affect, and without any sense of being rehearsed. The account given by K is undoubtedly fuller and more coherent than the accounts given by his brothers. I believe that this is because he was younger (then only six) and less guarded about speaking to professionals. He also describes more extensive behaviours, possibly as a result of him having spent time alone with N. I find that the interviews with the older boys add some support to K's account and that the evidence of the three children taken together is capable of establishing the allegations.

(7) Having reached the conclusion that each of these boys has had inappropriate sexual experiences of the kind they describe, I have considered whether this might have been at the hands of someone other than N, for example C. Having done so, I find no hint of this. Apart from anything else, there is a clear description that these events mainly took place at N's home, while inter-sibling abuse would be more likely in their own home.

(8) N's own evidence showed him to be a likeable and thoughtful young man who has been through a difficult time. However, his denial of any sexual interest at the age of 12½ and his determination to show that he was never alone with the boys were not at all persuasive.

64. Taking full account of all the matters urged by the Official Solicitor, I find that the local authority has made out its case in relation to the allegations against N. I find that at the age of 12, he took advantage of the opportunity to behave sexually towards three younger children, aged 10, 8½ and 6½, by causing them to put his penis into their mouths and their penises into his. He also encouraged them to do this to themselves. He made K masturbate him until he ejaculated and to taste his semen. He attempted to perform anal sex upon K, though it is not clear whether there was any significant penetration.
65. It goes without saying that even at N's young age, behaviour of this kind was seriously wrong. It goes well beyond the relatively innocent sexual experimentation of children reaching the age of puberty. It involved younger children, and in K's case a very much younger child. It is not possible or necessary for this court to identify whether these events represent a passing and uncharacteristic phase in N's development or something more concerning. Because N has not been able, or allowed and encouraged, to acknowledge what he did, it is more difficult to know what sort of help he requires. I am, however, quite clear that N should receive skilled and sympathetic support and that he should be considered as being in some significant degree a victim of the situation and not just a perpetrator. If he is offered help and is able to accept it, he may have the potential to put this sorry episode behind him.
66. For the moment, however, the future is not clear and N's needs represent an important priority for his mother, while my findings represent a major factor in deciding what is best for W.

Evaluation of the evidence about the grandmother's parenting

67. On behalf of the grandmother, Ms Akerman submits that it has not been proved that she is unable to provide safe parenting for W, given support, and that the plan for adoption is unnecessary and disproportionate. The grandmother does not believe the allegations against N to be true, but if they are, she will adjust.
68. Ms Akerman relies upon the fact that it was the grandmother who first brought W's circumstances to the attention of the court, that her care of W as an infant was very good, and that the quality of contact is likewise high. The grandmother does not herself pose any direct risk to W, and her relationship with the mother is currently good. She has some ability to work with professionals, and she regards family life as important. There are no issues about her daily lifestyle, such as drug or alcohol abuse, nor any learning difficulty. She is plainly very committed to W.
69. The mother, grandmother and W are entitled to respect for their family life (Article 8) and the local authority cannot succeed unless it establishes that, if returned to his family, W would be likely to suffer significant harm as a result of inadequate parenting.
70. In relation to the grandmother's parenting, the evidence as a whole is mixed. There are undoubted strengths in relation to commitment and basic care and competence. The grandmother is also, if I may say so, a pleasant person with a reasonable degree of intelligence.
71. However, I share the concern of Mrs Paddle about the grandmother's ability to offer a reliable protective environment for a child throughout his childhood. She has some ability to cooperate with services, and at times appears to value them, but her level of understanding of the difficulties is in my view superficial. She is able to give a confident account of events from her own standpoint, but there is little sign of any deeper understanding. Based upon the lengthy family history, there is a high chance that W would at some point be at risk of the sort of sexual and emotional harm that his own mother has suffered, not to mention many of the other children in the family.
72. Although the grandmother was herself a victim of her second husband, it sadly took a very long time for her to take the children to safety, and as a result they suffered emotional and possibly sexual harm. As to S, I do not accept that her difficulties are particular to herself and that the grandmother bears no responsibility. The grandmother's evidence about the way in which S was allowed to go to Lincolnshire on the occasion when she became pregnant was extremely unimpressive, and represented a clear failure on her part to care about what was likely to happen, let alone offer protection. Her ready acceptance of the return of DK into the life of her daughter JK is also worrying.
73. The grandmother's response to the allegations against N were not helpful to him. She completely closed her mind and will have made it very hard indeed for him to admit anything. As a result, all the children had been put through years of uncertainty. It represents another clear failure of parenting.
74. I also consider that returning W to a household where his mother and grandmother both live would be an insecure arrangement. It is not clear whether the better relations between them will continue, or whether there is just a truce while these proceedings continue. There is no doubt that S is sexually active and the effect of future partners or future children on her relationship with her mother is unpredictable. It is in my view quite likely that conflict will surround W as a result.
75. Moreover, the grandmother already has very heavy commitments. Her daughter JK very much needs her, particularly in the light of DK's problems. Her daughter S is in real need of guidance and support if she is not to get into serious difficulties again. And now, N, who is very close to his mother, will need a great deal of love and attention. Introducing W into this situation would in my view overstretch the grandmother's capacity, even at a basic care level, and would certainly not allow her to exercise the vigilance that she has not succeeded in exercising in the past.
76. My conclusion therefore is that, while the matter is more finely balanced in the absence of the finding against N, the local authority has established that W would even so be at risk of significant harm if placed in the care of his grandmother. The finding having been made in respect of N, the outcome is clearer still.
77. The threshold having been crossed, I find that it is in W's interests for a care order to be made so that the local authority's plan for adoption can be put into effect without further delay. I have considered the criteria for making a placement order. Again, such an order is plainly in W's lifelong interests, taking account of all the matters in the adoption welfare checklist, and the order is necessary and proportionate. The mother, being the only person with parental responsibility, understandably does not consent, and I shall therefore dispense with her consent on the basis that W's welfare requires it.
78. I thank all parties for their assistance in this matter and invite them to present draft orders reflecting this judgment.
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