Jersey Unreported Judgments

Care order - fact-finding hearing relating to the children.

[2015]JRC204

Royal Court

(Samedi)

6 October 2015

Before     :		W. J. Bailhache, Esq., Bailiff, and Jurats Kerley and Milner
Between	The Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B (the father)		Second Respondent
And	Freddie and Arthur (the children)		Third Respondents
And	C		Fourth Respondent
And	D		Fifth Respondent

IN THE MATTER OF FREDDIE AND ARTHUR (CARE ORDER)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate C. R. G. Davies and Advocate C. R. Dutôt for the Minister.

Advocate A. T. H. English for the First Respondent.

Advocate E. L. Wakeling for the Second Respondent.

Advocate N. S. H. Benest for the Third Respondents.

Advocate C. G. Hillier for the Fourth and Fifth Respondents.

judgment

the bailiff:

1.        On 7^th January, 2015, the Royal Court made an interim care order on the application of the Minister with regard to the third respondent's children ("the children"), born in February 2004 and June 2006, the Court being satisfied that the circumstances with respect to the children were those referred to in Article 24(2) of the Children (Jersey) Law 2002 ("the Law").  The parties agreed that the threshold for the making of an interim care order was met.  The initial position of the first respondent ("the mother") and the second respondent ("the father") was that an interim supervision order would have been sufficient. 

2.        We gratefully adopt the summary of facts set out by Commissioner Clyde-Smith in the Court's judgment handed down on 20^th February, 2015:-

"2. Freddie was born when the Mother was sixteen and the Father nineteen, with Arthur following two years later.  Their relationship broke down in December 2008.  The Mother has since married, and has a daughter by that relationship.  The Father has also since married, and has a son by that relationship. 

3. The Mother has a learning and physical disability which impacts upon her capacity to meet the demands of parenting the children.  The Father has a diagnosis of an autistic spectrum disorder as well as physical health problems which impact upon his capacity to meet the demands of parenting the children. 

4. Freddie and Arthur have been exposed to numerous changes in their living and care arrangements (including short periods in voluntary care) and almost continuous disputes, allegations and counter-allegations between the parents and their wider families.  Private law proceedings have taken place in 2009/2010 and 2013 during which psychological and educational psychological assessments were commissioned.  Dr Bryn Williams, the psychologist, concluded that both children were vulnerable.  Freddie was considered to have fairly significant learning difficulties combined with clearly evidenced emotional behavioural problems.  Arthur has a diagnosis of ADHD, combined with significant learning difficulties and clearly evidenced emotional and behavioural problems. 

5.  In October 2014 the Family Registrar was sufficiently concerned about the welfare of the children and for the possible need for a care or supervision order to make an order under Article 29 of the Children Law requiring the Minister to undertake an investigation into the children's circumstances.  That investigation was undertaken by Jayne Louise Isaac, Senior Social Practitioner within the Children's Service, and in her comprehensive report of 6^th December, 2014, she concluded that the children were being subjected to significant harm and would continue to experience significant harm without an application to the Court to consider their welfare now and into the future.  She recommended that an application for an interim care order be made which would allow the Minister to share Parental Responsibility and enable the Children's Service to manage contact arrangements, whilst undertaking appropriate assessments and considering the long-term needs of the children. 

6.  The report sets out in detail the physical, emotional, sexual harm and neglect which in Jayne Isaac's opinion the children were suffering from or being exposed to, which we do not need to set out again in this judgment.  It is true that many of the allegations remain unsubstantiated at this stage, but she suggested that these were highly vulnerable children, living within a high adversity environment with little to no resilient factors - "nothing has changed for these children". 

3.        At that time the care arrangements for the children were that they lived with the mother (and her husband and their daughter) with regular overnight contact with the father (and his wife and their son).  In the course of that hearing in January, Eleanor Green, the Guardian for the children in the current proceedings, who had previously acted as the Court Welfare Officer in respect of the private law proceedings, told the Court that the children were doing very badly, even taking into account their individual difficulties.  They were not being parented properly and someone needed to take charge.  The parents were so consumed by the allegations and counter-allegations that they were unable to take decisions.  It appears that both the mother and the father changed their position during the course of that hearing in January.  They had not appreciated just how badly the children were doing and rather than arguing against the interim care order and for a supervision order, which had been their initial position, they both now wished to rest on the wisdom of the Court as to which order should be made. 

4.        On 25^th and 26^th March, the Royal Court, differently constituted, heard an application by the Minister to remove the children from the care of the Mother and an objection to that course by the mother, who coupled with the objection an application to discharge the care order if the Court were otherwise minded to approve the revised care plan which removed the children from her care.  The Court dismissed the mother's application and approved the Minister's revised care plan and gave reasons in a judgment handed down on 24^th April.  As a result of the approval of the revised care plan, the children have subsequently lived in a special residential unit which has been created specifically for them.  They each have their own bedroom and it is staffed by specialists who are experienced at dealing with children with complex needs.  The placement is intended to be a time limited placement so that the necessary assessments can be undertaken and the children can be freed from the pressures imposed upon them by the family situation with its allegations and counter-allegations.  It appears from the evidence before us that so far the change in care arrangements has been successful.  The children appear to have settled and are doing better at school. 

5.        In granting the Minister's application in March, the Court also reached the conclusion that it was necessary to have a fact finding hearing before the final hearing in respect of the Minister's application for a care order.  It was recognised that it might well be that one or more of the parties did not agree with the Court's decision on any such fact finding, but at least the professionals would be enabled to plan the way ahead on the basis of ascertained facts.  The Court directed the parties to try to agree a list of those matters which needed to be the subject of a fact finding hearing.  This was produced and considered by Commissioner Clyde-Smith at a directions hearing held on 2^nd June, 2015, where these directions were given by consent:-

"1. In respect of the draft Scott schedule of allegations:

(i) The party making the allegation shall bear the burden of proof in establishing that, on the balance of probabilities, the allegation as pleaded took place;

(ii) In the event that the allegation is made by a non-party, the Minister shall bear the burden of proof in establishing that, on the balance of probabilities, the allegation as pleaded took place.

(iii) Any party who wishes to may apply to the Court to withdraw any/or allegations made by them, or for which they bear the burden of proof, and shall be at liberty to do so by 9th June.  Thereafter an allegation may only be withdrawn with the leave of the Court.

(iv) The Minister shall produce a revised version of the Scott schedule by 9th June.

..."

6.        The Court also directed that by close of business on 23^rd June the respondents should file and exchange affidavits of their own evidence, which would include their evidence as to the approach to physical and/or verbal chastisement of children in their care, and that evidence should be the evidence in chief of that party.  The purpose of that order was to ensure that there was full disclosure of all material allegations in advance of the fact finding hearing so that no party was caught by surprise.  While the Court recognises that it is often desirable for witnesses, particularly those unfamiliar with a court setting, to have some time giving evidence in chief so as to settle themselves before hostile cross-examination commences, it is important that directions of the kind set out above are respected when it comes to the hearing.  If they are not, there is a risk that evidence which is unexpected will be adduced and other parties will be taken by surprise, and there is the probability that the time allocated for the hearing will prove insufficient. 

7.        On 2^nd June the Court also gave directions to the parties to endeavour to agree such directions as might be appropriate in relation to the oral evidence of the mother and the father with reference to the assistance afforded to the Court by the Advocates' Gateway toolkit.  A report by each of the self-advocacy workers was to be produced by 12^th June.  Failing agreement, there was liberty to apply.  In the event, the parties did not agree, and further directions were given at the fact finding hearing.  To the extent necessary, these are referred to below. 

8.        It is inevitable that in order to deal with the specific allegations contained in the Scott schedule, the Court had to hear some evidence which amounted to general background so that those allegations could be put in context.  We were very conscious during the fact finding hearing that it was possible for the evidence elicited by way of background to become relevant to the final hearing.  To the extent that such evidence forms a necessary part of our reasoning in this decision, of course that evidence may well be taken into account at the final hearing but we did try to close down examination of ancillary issues to those we had to determine in the course of the proceedings, both for time reasons and for ensuring that the respondents were not disadvantaged at the final hearing by cross-examination on topics which they might not have expected for the purposes of this fact finding hearing.  We mention this approach for the benefit of the Court at the final hearing, which of course will take such decision as it thinks fit in relation to ancillary evidence of this kind. 

9.        Before we turn to the detailed Scott schedule of allegations, it is appropriate for us to say something about the credibility of the non-professional witnesses who gave evidence before us. 

The First Respondent

10.      We were told that the mother is a vulnerable young woman with an I.Q. of 68.  She has difficulty in reading, but she can manage that, if allowed time to do so.  It was said that her understanding of language put to her is below average.  As a result of the various concerns which were expressed, some directions were given as to how cross-examination should take place.  These directions were in part followed although progressively less so in the cross-examination that took place.  The mother was in the witness box for over a day and subjected to hostile cross-examination by all the other advocates - for the Minister, the Guardian and the other respondents.  In terms of her oral evidence, she stood up to the experience extremely well.  Her account was consistent and Counsel were substantially unable to pick holes in what she said.  It is clear that her relationship with both the father and his mother is now extremely poor, but even so, the mother showed restraint in some of her answers.  For example she was asked whether she thought her sons had been abused in some way, and she said that she thought they had.  Arthur had demonstrated some really bad sexual behaviour and she referred to the way he talks, what he knows and what he loved doing with Harriet.  She said she did not understand why.  When asked by Advocate Davies whether the G Family had abused the boys, her answer was "from what they say - Granny has touched their willies - maybe, but I wasn't there so I don't know".

11.      In terms of consistency, that was apparent not only from the internal consistency of the evidence which she gave in the witness box but also when asked about incidents which took place many years ago in respect of which there was a police report.  When cross-examined about one of these, we noticed that although the police report was available in front of her, she did not refer to it, and her account was strikingly similar to that which she had given the police many years before, without being so worryingly the same that one would have anticipated an element of coaching, even if that were possible with the vulnerabilities which she has.  Perhaps surprisingly, the Court increasingly found her to be a credible and convincing witness, even if that did not necessarily lead us to the conclusion that everything that she said was to be accepted. 

E

12.      In essence, we had two separate pieces of evidence from E, sister of the mother.  On her own initiative, so it appears, she attended at police headquarters on 13^th November, 2007, when she was then aged fifteen.  In summary, her allegations to the police at that time were that the father hit his children too hard; he had touched the children, especially Freddie, inappropriately; he had filmed the children inappropriately; and he was in the habit of watching pornography.  When she came to give her evidence before us, now aged twenty-three, she confirmed that what she had said to the police was true and she gave some further detail, namely that the father had a naked lady on his screen saver and the boys could see it, and in particular that he had watched pornography either on television or on his computer in the presence of the two boys.  She agreed that she did not like the father and that she wanted him out of her life and out of the life of the mother, her sister.  She said that he had a temper and that she had seen him hit her sister and in particular had frequently seen her sister with black eyes. 

13.      We found that her ABE interview was impressive and credible.  E was also consistent in her evidence before us, and gave that evidence well. 

F

14.      We heard evidence from F who was at a party at her brother-in-law's house on New Year's Eve, she thought in approximately 2008.  She said a telephone call was received by E, the mother of the first respondent, from her daughter who asserted that she had been assaulted by the father.  F went with the first respondent's mother to collect the first respondent.  She had a very red mark on the right hand side of her face and was very upset.  We thought her evidence covered a small part of what was in dispute but was nonetheless reliable. 

H

15.      H gave evidence of her friendship with the mother.  They were school friends at School A, and they lived near each other when the mother lived at Area 1.  Her evidence was relevant in two respects.  First of all she indicated that for the period between 2005 and 2008 she found that the mother would not speak to her.  The latter claimed to her that "they won't let me" referring to the second and fifth respondents.  The mother was also very quiet at this time.  H was concerned for her friend during the three years from 2005 to 2008 and thought that her friend might have been the victim of physical violence and sexual abuse.  Bravely, H indicated that she had been a similar victim, and she recognised the symptoms.  The second area of relevant evidence concerned disclosures made by the mother to her in 2008/2009 and then later on in 2014.  Those disclosures were consistent with the evidence which the mother gave to us as to the sexual abuse to which she claimed she had been subjected by the second and fifth respondents. 

16.      We found H to be a sympathetic and convincing witness who gave truthful and credible evidence. 

J

17.      We heard from J, the first respondent's mother.  It was clear that it was difficult for her to give evidence given that many of the questions concerned the first respondent's early upbringing, when the relationship between the first respondent and her mother was poor.  The Children's Service documents of the time do not reflect particularly well upon J, who found her daughter's behaviour difficult.  Even in her evidence before us, she said that she did not think that she had been a very good mother, and that she had not shown her daughter enough affection. 

18.      In our view, the evidence which J gave us was not particularly helpful.  Some of it merely repeated what had been discussed between her and the first respondent and that was naturally of limited assistance.  In relation to the first respondent's upbringing, her evidence was in part inconsistent with the documentary evidence, and therefore not particularly reliable.  More generally, we felt able to rely on what she said only where it was supported by contemporaneous documentary evidence. 

K

19.      K is the husband of the mother.  

20.      He first met the mother face to face in November or December 2008 and their relationship commenced in or about 2009.  He met the father a couple of months later.  He testified that he had never seen the father be physically violent towards the mother, but he had heard them argue, and he had heard the father call her "a bitch" and "a cow" and tell her to "fuck off".  He said that his wife had told him in 2009 that she was 12 when she first had sex with the father.  She had told him at that time that the father had sexually abused her when the fifth respondent was present.  She had been forced to have sex and was never allowed to use any form of contraception. 

21.      K told us that Arthur often appeared to be quite sexualised, mostly talking about his cousin Harriet saying "me hump Harriet" or "me shag Harriet".  Arthur often used bad language and behaved badly.  Both children had said to him at his house that they slept with the fifth respondent in her bed most of the time. 

22.      K told us that in 2014 Freddie came home with a telephone which he said he had been given by the father and the fifth respondent.  Freddie said that he had seen Arthur and Harriet watching pornography on the phone; he had taken the telephone, as it was his, and given it to the grandmother (the fifth respondent) and told her that Harriet and Arthur had been watching pornography on it.  According to K, Freddie told him that the fifth respondent did nothing and a few minutes later Arthur was holding the telephone and watching pornography again.  Freddie had apparently said that the father was there too.  K said that he took the telephone to the police and later on to the Children's Service.  The father and the fifth respondent kept contacting him asking for the telephone to be returned but he did not want to give it back while it still had pornography on it.  He took it to the Powerhouse to be professionally wiped clean.  According to K, the pornography on the telephone was adult heterosexual pornography. 

23.      In cross-examination, K confirmed that he had never seen the father hit the mother; he had not had access to the father's computer so he did not know what was on it; he had taken the telephone to the police because although he knew how to use the machine to obtain its internet history, he did not know how to obtain evidence as to the time and date upon which the pornography was accessed, and he thought that someone professional could obtain such evidence.  He confirmed that he had never seen the mother hit the boys either.  Likewise he had not seen either grandparent hit the boys or use bad language in front of them.  He had seen Arthur sleeping in the fifth respondent's bed but he had never seen either fourth or fifth respondent naked.  Insofar as the downloading of internet pornography was concerned, he did not think that Arthur had sufficient IT skills to be able to perform that exercise without adult help.  As he put it "I don't think by himself he could download anything".  

24.      The Court's view was that K gave his evidence calmly and appropriately and that he was a good and reliable witness.  Where there was a discrepancy between his evidence and that of the father, we were minded to prefer the evidence of K. 

L

25.      L is the father of the first respondent, and the husband of J.  It was clear that he had had a tempestuous relationship with his wife.  He said in chief that he and his daughter, the first respondent, had always been close.  Broadly speaking, L gave evidence which was supportive of that of his daughter.  He gave evidence which was in some respects surprising, such as his statement that he had never seen the boys act in a sexual way ("definitely not") and while he might sometimes have given evidence that was correct, it was impossible to tell.  The Court did not find his statement that he was close to his daughter to be accurate, or, if he was close as he asserted, he was certainly not a father who could be relied upon to remember anything specifically about his daughter's upbringing. 

26.      He gave his evidence no doubt as fairly as he could, but the Court considered him to be unreliable.  He clearly got some things wrong in his evidence, and that meant that the remainder of the evidence was difficult to assess - he may have had those things right but it is impossible to tell.  The Court recalls that for at least some of the period of his daughter's upbringing, he had left the family home, and we were not persuaded that he can really remember accurately much about his daughter's upbringing.  He obviously was not close to his daughter at that time, or if he was, it is hard to reconcile what he did with what he claimed in his evidence.  He said, for example, that when the first respondent was 13 or 14 years old, it was as if the G family were taking over his daughter - "like my daughter was an animal".  Yet at this time, it was apparent that he was not living in the family home.  He agreed in his evidence that he wanted to be supportive of his daughter and was sympathetic to her position in these proceedings, and that is completely understandable.  Nonetheless, his account of challenging the fourth and fifth respondents over their treatment of his daughter was frankly not credible.  He asserted that he and his wife went down to the fourth and fifth respondents' property, and raised the issue of sexual abuse with them, asserting that his underage daughter was having sex with the father.  Apparently, the fourth respondent and fifth respondent said that this was not happening.  If it were happening, the fifth respondent said that she would make sure it did not happen again.  According to the evidence which L gave, he accepted that assurance - he said that he and his wife were young and he did not know what to do.  He assumed that the G family were very decent people and they would look after his daughter.  

M

27.      M was called to give evidence largely because he was working with K at a time when it was asserted by the G family that K had assaulted the father.  M said that he remembered very well the day on which this assault was alleged to have taken place.  It was 23^rd March, 2009, and K was working with him under his supervision building a wall at the house of a man called N, where M was living at the time with E.  E was there too, in the bedroom next to the kitchen.  She could see him working from the kitchen but not from the bedroom. 

28.      He agreed that he normally had a break at about 10am.  He remembered the day because later on K told him that the father had accused him of assaulting the father that day.  M found that to be very odd as he had been with K all that day and had seen nothing of the father. 

29.      It was also asserted or implied by the G family that the reason for Arthur's sexualisation was that he had watched M having sex with E at the mother's property.  M agreed that he and E had stayed for a few weeks in the bedroom normally used by Arthur; and that he had had sex with E a couple of times at night whilst staying there.  Arthur slept in another room at this time.  The bedroom door was always shut, and the sex had certainly not taken place in front of the boys.  He was not aware that Arthur walked in his sleep, and he was sure that they had not been observed. 

30.      The Court found M to be a reliable and truthful witness. 

P

31.      P has known the father since they both started at school in 1994.  About a year later he asked her out and she said that she had sex with him for the first time shortly after they started going out when she was 12 or 13 years old.  It happened in his bedroom in the late afternoon.  She had changed from her school uniform into jeans and a t-shirt and, after he had shut the door because the fifth respondent was in the house, sex had taken place between them. 

32.      She asserted that the father was physically violent on one occasion when he wanted oral sex, but that throughout the relationship he would mentally abuse her.  About three or four times a week he would say such things as "you're worthless", "you're a loser", "no-one likes you" and "I don't know why I'm going out with you".  This abuse sometimes took place in front of his mother, the fifth respondent, who never criticised him. 

33.      When she was 16 or 17, she asserted that she became pregnant and that she had an abortion.  This was apparently encouraged by both the father and the fifth respondent, and indeed the latter is said to have driven her to the hospital to have the abortion performed. 

34.      In cross-examination, she maintained her evidence in chief.  When asked by Advocate Wakeling if she was only saying the things she did because she was scared of the mother, she denied that and said "I want to do this for me as well".  She agreed she had never seen inappropriate behaviour between the father and his mother, and she was reasonably clear, although it was an assumption, that the fifth respondent was well aware that she and the father had been having sex. 

35.      The Court's view was that while it was surprising that the doctor performing the procedure for the abortion had not asked where her mother was, P was a genuine witness whose evidence was largely reliable.  Her account of underage sex with the father is thus broadly supportive of the mother's evidence of similar underage sex with the father.  Her evidence does not support the mother's position in relation to the suggestion that the fifth respondent wanted the mother to become pregnant, because clearly in the case of P, her evidence suggested that the fifth respondent did not want such pregnancies to take place. 

B

36.      As with the mother, the question of special measures was raised in relation to the father.  It was accepted by Advocate English that the father suffered from autism, but not to the degree asserted.  In the event, upon the basis of the medical reports received, the Court accepted that there was a degree of vulnerability and some special measures were put in place.  The Court paid special attention to the need to have regard to the second respondent's autism when assessing his evidence and in particular we also ensured that we adjourned during the course of his evidence to give him a break. 

37.      We will return to some of the detail of the father's evidence when looking at the particular allegations.  The Court was however of the view that the father's evidence was confused and that he did not have the same credibility as the mother, who was the more reliable witness for the most part. 

Q

38.      Q is the wife of the father.  The main purpose of her evidence was to reject the allegation that she had hit Arthur with a wooden spoon in September 2014.  She also gave evidence in chief about an argument between the father and the mother at a contact handover in March 2015.  In cross-examination she said that she had known the fourth and fifth respondents for five years and had never been subject to any sexual advances by the fifth respondent.  She had never seen either of them with pornography, had never seen them walk around naked, and had never seen them hit or swear at either of the children.  In cross-examination by Advocate Davies, she agreed that Arthur had been sexualised in the sense that he would take his trousers down and expose himself, although not often, and had heard him use sexual expressions.  She had seen him try to touch his father below the waist on one occasion. 

39.      The Court considered that Q was substantially discredited in cross-examination.  We considered that she was protecting one or more persons on the G family side of this dispute.  We also considered that she was fundamentally not the type of woman who would be violent.  She appeared not to be a strong personality and could possibly be influenced by others. 

D, the Fifth Respondent

40.      Like the mother and the father, the fifth respondent was in the witness box for a considerable period of time.  We do not propose to summarise her evidence at this point, but will comment on the material points when we come to deal with the issues of fact referred to us.  By way of summary of her characteristics as a witness, we merely say at this stage that the Court considered that she was not particularly convincing.  It was almost as if she was giving her evidence by heart and not listening to the questions which were put to her.  We thought that she did have a controlling personality and was in effect the dominant personality in the G family household.  We did not consider her to be straight-laced, which was the impression which we thought she sometimes sought to give. 

C, the Fourth Respondent

41.      As with his wife, we did not find C to be a wholly credible witness.  His explanation in relation to allegation 37, the burn on Arthur's lip, was improbable.  We treat his evidence in relatively short order, not least because some of the allegations against him personally were withdrawn in the course of the hearing. 

Schedule of Allegations

42.      The parties had prepared a schedule of allegations upon which the Court was invited to make findings.  It is convenient first to deal with the allegations which we have found proved or partly proved. 

Allegation 2

43.      The Court considers the following matters proved:-

(i)        The father has items on his computer of the boys urinating in the bath, and also items of a sexual nature in relation to older people. 

(ii)       The father regularly watches pornography in the presence of the children. 

(iii)      The father watched pornography in front of E. 

44.      A number of photographs of boys in the bath appeared in the Court bundle.  They were found on a Toshiba laptop seized on Wednesday 14^th November, 2007, from Area 2.  The witness statement of PC1 confirms this.  In one of the photographs, one of the boys is urinating.  The same witness statement shows that the police officer did see evidence of adult pornographic material having been accessed on the internet.  He saw apparently a small quantity of images, which had a preponderance of obese subjects.  In the string of pictures of the boys in the bath, it is apparent that the mother is bathing them.  She could not have been doing this and taking the photographs at the same time.  We think the photographs were taken by the father.  The mother withdrew the allegation that the father had taken indecent images but she maintained that it was inappropriate.  Having studied the pictures, we think the number of them is unusual and perhaps slightly questionable, but that family pictures of this kind are not necessarily inappropriate.  We note this was also the conclusion of the investigating police officer.  

45.      We are satisfied that the father regularly watches pornography, because he admitted it.  In his witness statement he said:-

"I used to download from a particular website television programmes and music.  I remember that some of the material I downloaded was films of adults having sex.  I saved the adults pornographic material on an external hard drive that was mine and I kept separately from the family computer.  That material involved women of a larger build and also women who were clearly adults over the age of 20 and above.  A knew I had these films and sometimes watched them with me".

46.      The father denied watching pornography in the presence of the children.  Evidence that he did so was given by the mother and by E.  E also said that he watched pornography in front of her, which the father denied.  On these issues we prefer the evidence of the mother and E and find the allegations proved. 

Allegation 9

47.      We find proved the following allegation:-"Arthur humping (with clothes on) on top of Evie, who is in lounge chair.  Arthur says "I am shagging and I love it"".

48.      We accept the mother's testimony that this occurred.  It is consistent with a good deal of other evidence that Arthur has been sexualised at an early age.  By and large, that allegation of sexualisation has been accepted by all the key witnesses.  Nonetheless it is important to distinguish between what Arthur said (which may reveal sexualisation and inappropriate comments) and what Arthur may or may not have done.  We have been asked to make findings on particular allegations and we have construed the allegations strictly unless this judgment indicates otherwise. 

Allegation 9A

49.      We find proved that Arthur has stated he has humped Harriet with no pants on and slept naked in the bed with her.  We are satisfied he said this. 

Allegation 10

50.      Indecent images were found on Freddie's phone. 

51.      The Children's Service disclosure shows a strategy meeting was held on 9^th April, 2014.  The social worked Amanda Wilson reported the following:-

"Amanda advised she received a call from R yesterday to say that A had gone into the school two days ago and said at the weekend Freddie and Arthur were staying with Mr and Mrs G all weekend.  When they got home on Monday evening Freddie asked A to help him put a lock on the new phone he received from the G family the previous Thursday, this was a brand new phone out the box.  A explained when she went to put the lock on the phone she looked at the history and there were a number of porn sites.  A then asked Freddie about this and he said he caught Arthur and his cousin Harriet who is 9 looking at the phone and when he went over to look they were watching porn.  Freddie told A that he took the phone off Arthur and gave the phone to Mrs G.  Freddie then went out on his bike and when he came back later Arthur and Harriet were looking at porn on the phone again.  A then spoke to Arthur and in his words he said if I talk to anyone I will go to court.  R [R, Arthur's teacher] added that Arthur also mentioned being taking into care."

52.      The mother's evidence was that Freddie had been given a new phone and that she looked at it with E and found pornography on it.  Freddie had told her that the phone had been given to him by the paternal grandparents.  She had shown the phone to Amanda Wilson.  Ms Wilson told us that the mother had phoned her to tell her that she had found pornography on Freddie's phone, which the paternal grandmother had bought.  She visited the mother and K.  There were at least six or seven website addresses on the mobile phone.  The mother was upset at the suggestion that she had had time to access it, and she suggested that the police should take the phone and find out when those sites were accessed.  Ms Wilson told us that she thought it was heterosexual explicit pornography.  Freddie would not talk to her about it.  She did not remember the date, but she thought it was roughly in April 2014. 

53.      K told us that he had seen adult pornography of a heterosexual nature on the telephone, and that he had taken the telephone to the police but they were not very interested.  He thought that if a professional looked at it, it would be possible to find the time and date when the website had been accessed.  He did not believe that his wife would have accessed pornography on that telephone, not least because if she did this, it would damage her with the Children's Service.  At all events, in the light of the lack of interest, he said, on the part of both the police and the Children's Service, he took the telephone to Powerhouse three or four weeks later and had it cleaned - he did not want to give the phone back to the child with the pornography websites on it. 

54.      According to Dr Bryn Williams at paragraph 5.59 of his report dated 1^st May, 2014, Freddie's general cognitive ability is at the extremely low range of intellectual functioning.  There was no significant difference between his non-verbal reasoning ability and his verbal reasoning ability, but his ability to maintain attention, concentrate and exert mental control was also in the extremely low range, as was his overall ability in processing simple or routine visual material without making errors. 

55.      We are satisfied that Freddie could not have accessed the internet website himself and we do not think Arthur would have been able to do so either.  In our view, on the balance of probabilities, the mother did not access the pornography either.  This is not simply because of her own intellectual functioning, but because it was she who suggested going to the police and it was K who took the telephone to the police to invite them to examine it to find when the internet porn sites had been accessed.  On the other hand, both the father and the paternal grandfather at least are IT literate, and the father likes watching pornography.  On the balance of probability we find that he accessed the internet sites on Freddie's phone. 

Allegation 12

56.      We found proved that the boys watched adult material on Freddie's phone.  The evidence for this is that the pornographic material was there and the allegation then relies on what the mother reports Freddie has told her.  On the balance of probability we find that proved. 

Allegation 13

57.      The allegation is that when Arthur and Evie were present, there was an altercation between the mother and the father at a contact handover on 18^th March, 2015, during which, the mother says, the father told Arthur "tell your brother that he is an ungrateful little shit" and "I never want to see him again."

58.      Different accounts of this incident were given by the mother and K on the one hand and the father and Q on the other.  The problem appears to have arisen because the mother had told the father that Freddie did not want to come and stay that week because Q and the father had shouted at him and had hit him when he was coming out of the toilet.  As far as the father was concerned, there was no truth in that and he wanted to speak to Freddie over the telephone, but he was not permitted to do so.  The father claimed that the mother gloated, telling him that the social worker had confirmed that Freddie did not have to come and see the father if he did not want to do so.  This led to other arguments of a historical nature between the two parents.  This all took place over the telephone.  When the mother turned up at the father's house, she had only Arthur with her, and told him that Freddie did not want to come.  The father confirmed in his evidence that he was frustrated and he said that everyone seemed to be against him and his family so he might as well walk away.  He thought the Children's Service were always taking the mother's side.  He agrees that he made an aggressive remark about J, the mother's own mother at which point he says that the mother started screaming at him.  The father denied calling Freddie an ungrateful little shit and he said that he spoke to Arthur calmly.  In the context of the argument which undoubtedly had taken place between the mother and the father, we think that is unlikely. 

59.      The mother's evidence about this incident was that there had been difficulties over arrangements for contact, and this led to argument.  On the occasion in question, Freddie had told her and Ms Stroyan the social worker that he did not want to go that weekend and she said that Ms Stroyan supported Freddie in that respect and told him he did not have to go.  When this was reported to the father over the telephone, the father shouted at her, and she put the telephone down.  She did not, she says, insult the father or his mother, the fifth respondent.  She told us that when she arrived with Arthur, B was shouting at her.  She says that she did not threaten Q, and she did not use bad language, and she confirmed that the father told Arthur to tell Freddie that he was an ungrateful little shit and that he the father did not want to see him again. 

60.      K told us that he was in the car when the argument took place.  He confirmed that Freddie did not want to go and see the father that weekend.  He heard the argument as he was parking the car and he could not hear what the argument was about.  In chief he had said that he had heard the father call Freddie a "geek", but in evidence before us, he thought this was something he had heard over the telephone and his affidavit was wrong in that respect. 

61.      We did not accept the evidence of Q about this incident, which was inconsistent and unreliable.  On the balance of probabilities, we prefer the evidence of the mother to that of the father.  There clearly was an altercation between the parents at the contact handover on 18^th February, 2015, and we find proved on the balance of probabilities that the father used the language in question to Arthur. 

Allegation 15

62.      This allegation is that the paternal grandmother has not maintained appropriate sexual boundaries in her home.  The particulars relate to the exposure of the boys to pornography in her home; that Arthur has been permitted to engage in sexualised behaviour with his cousin Harriet in her home; that the boys have been permitted or encouraged to view photographs of the paternal grandmother, taken while she was unclothed on the toilet; and the boys asleep in the paternal grandmother's bed. 

63.      We do not find it proven that the boys have been encouraged or permitted to view photographs of the paternal grandmother taken whilst she was unclothed whilst she was on the toilet.  We find it proven that the boys have slept in the paternal grandmother's bed, but not proven that this particular allegation is related to a lack of sexual boundaries. 

64.      However we do find it proved that the boys have been exposed to pornography in the paternal grandmother's home - this is related to the pornography which was found on Freddie's phone, which we have dealt with at length earlier.  We find proved the allegation that Arthur has been permitted to engage in sexualised behaviour with his cousin Harriet, although whether that took place in the paternal grandmother's home or at Harriet's home is not proven. 

Allegation 16

65.      This allegation is that there has been domestic abuse and/or violence between the father and the mother.  There are a number of allegations which are made by the mother by way of particularisation of allegation 16.  We find all of them except the last one proved on the balance of probabilities.  As to the last - that the father had pushed the mother's head underwater - the only evidence appears to be that set out at paragraph 44 of the mother's affidavit.  We do not think she was questioned about the allegation by anyone.  This is unfortunate.  Paragraph 44 is slightly lacking in context and we feel uncomfortable in finding it proved on the balance of probabilities that what is set out there amounted to domestic violence, although we accept that it clearly could.  As with most allegations of domestic violence, the evidence is generally to be found in the accounts which are given of the two partners or spouses in question.  In this case, we preferred the evidence of the mother to that of the father and in addition there is clear evidence from E which generally supports the mother's position.  Less convincing but also supportive is the evidence of L. 

66.      In addition, the allegation that the father stabbed the mother, about which different accounts were given, supports our conclusion about the overall credibility of the father and the mother.  According to the mother this occurred at the paternal grandmother's house at some point between 2004 and 2006.  The mother says that the father stabbed her because he saw her talking to an ex-boyfriend whom she knew at school.  When she got home, the father yelled at her.  She was looking at her phone and he told her to put it down.  When she refused he suddenly stabbed her in the arm.  The paternal grandmother then took her to hospital and told her to say that she had fallen on the knife.  As the paternal grandmother, Mrs G, remained with her all the time and the mother was frightened of her, she did not tell the doctor the truth at that time. 

67.      The paternal grandmother asserted in her evidence that she was not present when the "stabbing" incident occurred.  The father said that he had not intentionally stabbed the mother.  He remembered an accident when they were both living with his parents.  The mother came into the kitchen while he was using a knife to cut some cheese, and he turned towards her as she said something to him, but she tripped over something on the floor and fell onto the knife.  He pulled the knife out of her upper arm and his mother, the paternal grandmother, took the mother to Accident and Emergency.  There was no argument at the time. 

68.      Having listened to the evidence on this incident, we are satisfied that the father was not telling the truth.  His explanation of how the incident occurred is not credible, and he was not credible in giving it. 

Allegation 17

69.      This is an allegation by the mother that both Freddie and Arthur had indicated sexualised behaviour.  It included Freddie stating to the mother's sister that she should "kiss my willy".  The allegation is consistent with the evidence and we see no reason for doubting the particular allegation that Freddie had made this statement in March 2009. 

Allegation 18

70.      The paternal grandfather swears in front of the children.  This allegation is to be found in the report of Dr Bryn Williams and is denied by the paternal grandfather. 

71.      There seems no doubt that the children have used bad language, and they will have heard that from somewhere.  On the balance of probability, we think it is probably the case that they have heard it from the paternal grandfather as well as from others.  We do not place much store by this particular finding of fact. 

Allegation 19

72.      The mother has been called a slut and a whore in front of Freddie in the paternal grandmother's house. 

73.      The evidence for this comes from the report of Dr Bryn Williams at paragraph 6.25, that report being dated 29^th January, 2010, and in the evidence of J who said that she had heard the paternal grandmother call the mother a "slut", saying "after everything we've done for you".  She was not challenged on this evidence to any great extent, if at all.  We find the allegation proved. 

Allegation 21

74.      The allegation is that K's brother had stayed in Arthur's room for approximately 12 weeks in or about March 2014.  There seems to be no dispute about this and we find the allegation proved.  However, we do not find that the children, or either of them, slept in the room at the same time and we do not find that there was any misconduct which ought to be taken into account. 

Allegation 23

75.      This is an allegation of aggressive and abusive behaviour by the mother on a contact handover in March 2015.  It is the same incident referred to at Allegation 13, which we have dealt with extensively above.  On balance of probabilities, we prefer the evidence of the mother as to what took place on this contact handover.  We have no doubt that both parents did shout and behave aggressively towards each other, but we accept the mother brought the altercation to an end when she saw Joseph with his head in his mother's bosom.  We find the father and mother to have been equally abusive on this occasion. 

Allegation 24

Sexualised behaviour on the part of Arthur

76.      As we have indicated earlier, there does not seem much doubt that Arthur has demonstrated sexualised behaviour.  On the balance of probability, we find all these particulars proved. 

Allegation 26

77.      This allegation is that Freddie had stated that K is his special friend and they sleep in the same bed.  It was not denied that when Freddie has been sick he has slept in the same bed as A and K.  We accept that Freddie and K have a generally good relationship and get on well.  We do not think there is anything untoward which has been proved in this allegation. 

Allegation 27

78.      The allegation is that Arthur shared a room with E and E's boyfriend and was present during sexual activity between them.  There is no dispute that E and her boyfriend M stayed at the mother's home for around four weeks and that they slept in the bedroom which is referred to as Arthur's room.  We accept that during this time it is probable there was sexual activity between them, as M himself said.  We do not find it proved that Arthur was living in that room at the same time but, on the contrary, accept that he slept in a different bedroom with Freddie.  We find that neither of the boys were present during any sexual activity between E and her boyfriend. 

Allegation 28

79.      This is a mixed allegation - the first is that the paternal grandmother was assaulted by the mother in the presence of the children, it being said that the paternal grandmother was punched three times in the face and pinched on the arm.  We find established that there was an altercation between the mother and the paternal grandmother at that time.  We do not find it established that any assault took place.  We note the police report states that the paternal grandmother was pinched on the left arm.  As the alleged assault took place whilst she was sitting in the driver's seat of the car, this would have been a difficult manoeuvre on the part of the mother and suggests that the account given by the paternal grandmother was incorrect. 

80.      On the balance of probabilities we think that K might well have called the father a "fucking dick" in front of the children. 

Allegation 30

81.      This allegation is that Arthur has unzipped a toddlers coat at school and pulled down her trousers, taken an inch long stick and placed the stick between the same child's legs over the trousers. 

82.      The allegation is that 10 minutes later Arthur has put his hand inside his own nappy. 

83.      The account of these incidents comes from independent sources.  They have not been denied and we accept they took place. 

Allegation 31

84.      This allegation is that the father becomes angry with Freddie as a result of which he has put his hands around Freddie's neck, held Freddie's chest very tight, and used horrible words to him.  We accept W's account of what Freddie has said to her.  She has been an independent source and we are told that Freddie does not often say very much, but when he does he is unlikely to be untruthful.  On the balance of probabilities, we find the allegation proved. 

Allegation 32

85.      This is an allegation that in May 2010 Arthur had said to Freddie "touch my willy and I'll touch your bum" and that he had said "Freddie shagged me". 

86.      This is the mother's account of what she has heard Arthur say.  We see no reason to doubt it and we think it is consistent with Arthur having been sexualised beyond his years.  That is not the same thing as saying that we think the statements made by Arthur were true.  Indeed the evidence we have heard is that Arthur may well from time to time say things which are incorrect. 

Allegation 33

87.      This allegation is that Arthur, without a nappy on, said that "Freddie shag me".  It is also alleged that Freddie has stated that "Granny touches our willies". 

88.      We have no reason for thinking that Arthur did not say this, but again we think it is unlikely that Freddie actually did this.  Accordingly we find it proved that Arthur said this, but we do not find it established that Freddie did it. 

89.      As to the statement by Freddie, we are satisfied that he did say it, and we are also of the view, because Freddie is likely to be truthful, that the paternal grandmother probably did touch the boys.  However there is no evidence of the circumstances in which this took place and the touching may well have been entirely innocent while she was bathing them and should be assumed to be so. 

Allegation 34

90.      This allegation is we feel badly worded.  It is that Arthur has exposed his bottom and penis after pulling his pants down.  He was out on the estate with other children.  The evidence upon which the Minister relies for this purpose is the CBM police log entry on 17^th May, 2011.  The report puts a slightly different emphasis on what took place.  It shows that Arthur, then aged five and Freddie then aged seven were playing in the playground with another male aged 14.  Later on, the mother noted at home that Arthur had been crying and was rubbing his left thigh, which showed some grazing and slight bruising.  Two female youths had informed the mother that someone (the police log has been redacted) had pulled Arthur's trousers down and dragged him along the floor, while at school.  It was suggested that this might be connected with play fighting. 

91.      In accepting the incident did take place as reported in the police log entry, we do not therefore draw from it anything adverse to either of the parents. 

Allegation 37

92.      This is an allegation that Arthur, when in the care of the G family, has blown through a tube and set fire to it, causing damage to his lip. 

93.      The injury was the subject of a multi-agency safeguarding hub referral.  On 13^th January, 2014, teaching assistants in Arthur's form group heard him say that he had got a tube, set fire to it, blew some gas up and it burnt his lip.  Arthur was heard to mention his paternal grandfather's lighter, and someone called T.  The second report was made to a different teaching assistant.  On that occasion Arthur had said that "him and his cousin, a big boy, made a tube" and that he had put it to his mouth, blew it and burnt his lip.  Arthur had added that he did not want to live with his mother anymore but with his paternal grandmother. 

94.      The evidence given by the G family on this subject was unconvincing.  The paternal grandfather said that he had cooked a roast dinner and he had put roast potatoes in a bowl.  Arthur came in and grabbed one, cried out in alarm and dropped it.  The paternal grandfather said he was getting things out the oven and he didn't see any mark come up at the time.  He has assumed that the mark subsequently seen at school must have been on his lip when he was dropped off, but he did not personally see it.  All he had seen the previous day was a slightly red lip.  The paternal grandfather confirmed that he did not have a lighter in his house. 

95.      The paternal grandmother says that she was unaware of the burn on the lip herself.  She said that Arthur had never told her that he has burnt himself.  She did recall Arthur was fascinated by fire.  She could not really help with the potato incident which she did not remember. 

96.      The father had no relevant evidence to give on this at all.  He remembered Arthur burning his lip but he did not see it happen and he did not remember what happened that week.  In our view, the paternal grandfather's account of how Arthur burnt his lip is not credible.  Arthur would not have been able to pick up a hot roast potato, just out of the oven, without dropping it.  He would not have put it to his lip, because it would have been too hot.  Accordingly we think that the allegation is established. 

Allegation 38

97.      This allegation appears in the affidavit of Amanda Wilson where she reports that Arthur had said to a female bus driver "I want to suck your cock".  The Court accepts that the bus driver made this report and that there is no reason why the bus driver should have invented such an allegation.  We accept it. 

Allegation 39

98.      This allegation is that Arthur has made inappropriate comments, swears and is abusive.  There are said to be 348 recorded incidents.  The Court has noted that there are numbers of accounts of Arthur swearing and being abusive, some of which come from professionals and some from other independent sources.  The Court finds the allegation proved. 

Allegation 40

99.      This allegation is that Arthur was asked what he was doing on the bus one day, and he replied "I am humping".  This was reported by the bus driver.  The Court accepts that this is what Arthur said. 

Allegation 43

100.   This allegation is that Freddie and Arthur have played unsupervised with lighter fuel and matches on the estate in the company of Harriet and T while the father's sister was caring for the children. 

101.   This appears on the police log entry and although it has been denied by the father, the Court can see no reason for thinking that the police log entry is incorrect and has accepted the allegation as proved.  There is a resonance of this allegation with the allegation concerning the burn on Arthur's lip. 

Allegation 44

102.   This allegation is that Arthur has said "me do humping me shag...with my cousin Harriet in the shed or at night when it's dark". 

103.   The Court accepts that Arthur said these words.  Such an allegation is consistent with all the other evidence in relation to his sexualisation.  Clearly the fact that he has said these things does not mean that he carried them out, and indeed his age suggests that he would not have done so. 

104.   The second part of this allegation is that Arthur has been reported to be watching pornography on his iPad with his cousin Harriet.  We accept on the balance of probabilities that this is proven.  It is consistent with the evidence in relation to the iPhone given to Freddie by his paternal grandmother, and consistent with the sexualisation which we have found to be established. 

Allegation 47

105.   This allegation is that Arthur and Harriet are reported to have engaged in sexual behaviour between March 2011 and December 2014.  The evidence for it is found in entries in the CPN police log, and in minutes of various child in need meetings or strategy meetings; and in the report of Dr Bryn Williams.  There is no direct evidence of these particular allegations, although all seem to accept that Arthur does display sexualised behaviour.  The G family do not accept that Harriet is at all interested in sexual matters.  The second respondent described her as a tomboy.  She is 10 years old, and not interested in kissing or romance.  The paternal grandmother considered that the allegations of sexualised behaviour with Harriet were part of a grand conspiracy by the mother and her friend whose daughter it was who made the report that Harriet and Arthur were naked and having sex under the covers during a sleepover. 

106.   The Court's view is that on the balance of probabilities Arthur and Harriet have engaged in sexualised behaviour.  We find that they did roll around on top of each other naked at the paternal grandmother's house; that Harriet did whisper to Arthur in the bath "let's get naked" although they were probably already naked if they were in the bath; that they were naked under the covers during a sleepover; and that Arthur has stated that "he loves humping and shagging, going side to side on Harriet's bed".  The allegation that Arthur has kissed Harriet's "char-char" and Harriet has kissed Arthur's willy would be extreme sexualised behaviour and we do not accept that this has happened.  We also do not accept that Harriet and Arthur have actually had sex, notwithstanding that they might have been reported by a third party child as having done so. 

Allegation 49

107.   This allegation is that Arthur and Freddie have used inappropriate language.  It is based upon the evidence for a number of independent professional people and the Court finds it proven. 

Allegation 51

108.   This is an allegation that Arthur has said "me like humping, granny told me not to tell or I'll go to court".  The allegation is one which appears in the report of Dr Bryn Williams and is based on the mother's account of what Arthur has said to her.  We accept that Arthur has said this.  As to the question of whether the paternal grandmother told him not to tell, we think it is likely, on the balance of probabilities, that she said this. 

Allegation 52

109.   Freddie and/or Arthur are demonstrating sexualised behaviour that is not within the limits of normal sexual exploratory play/behaviour.  We find the allegation proved on the balance of probabilities.  As far as Arthur is concerned, he seems to demonstrate sexualised behaviour that falls well outside the normal sexual exploratory play of a child of his age.  We accept that Freddie also demonstrates sexualised behaviour beyond his years, although to a lesser extent. 

Allegation 53

110.   This allegation is that Freddie and/or Arthur have been sexually abused.  We find that proved.  It appears to us that children do not demonstrate sexualised behaviour of this kind without some form of experience of it, whether by having sexual abuse perpetrated on them directly, or by watching adults having sex, whether in person or on film.  We accept Dr Bailham's evidence in that respect. 

111.   The second part of this allegation is that the abuse has taken the form of inappropriate exposure to adult sexual behaviour and/or direct sexual assault.  There is no evidence of any direct sexual assault on the two boys by adults and we find that not established.  In our view, the abuse has taken the form of inappropriate exposure to adult sexual behaviour by the children being exposed to pornography. 

Allegation 54

112.   This allegation is that the sexual abuse suffered by Freddie and/or Arthur was attributable to the care given to the children.  In our view, the sexualised behaviour flows from the children's exposure to pornography whilst in the care of the father and the paternal grandparents.  We accepted the evidence of the mother that although she had watched pornography whilst with the father, it did not interest her and we accepted the evidence of K that he too did not watch pornography.  This evidence is all consistent with the evidence of E as well.  We did not accept the evidence of the father that the fifth respondent was a prude, not least because the photograph of her on the toilet, which were in the bundle of photographs produced to us, does not show her to be at all embarrassed, but rather suggests she was comfortable being photographed in that position.  While the paternal grandmother sought to explain the finding of a dildo in her cupboard as a joke perpetrated upon her, we were not minded to accept that explanation.  Most of all, however, there is no doubt that the father engaged in sexual activity with young girls at a very young age - whether this was unlawful activity as was suggested by the mother and P, or whether it did not commence until the girls in question were aged 16, we think the paternal grandmother must have been aware that it was taking place, and that is quite inconsistent with the prudish approach to sex which was contended before us. 

113.   We turn next to the allegations which we have not found proven. 

Allegation 1

114.   The first allegation is that the paternal grandmother was aware that the father and the mother had sexual intercourse prior to the mother's 16th birthday.  We accept that the father and the mother did have intercourse prior to the mother's 16th birthday.  We reach that finding on the balance of probabilities having accepted the evidence of the mother and rejected in that respect the evidence of the father.  The allegation is also supported indirectly by the evidence of P that the father engaged in sex with her at a very young age, before she had obtained the age of 16.  We do not find the allegation proved against the paternal grandmother only because we consider that while she was aware that the father and the mother were having sexual intercourse at a young age, we cannot be sure that she necessarily knew that it was taking place before the mother was 16. 

115.   The remaining allegations under Allegation 1 are of the paternal grandmother and the father actively entering into sexual activity with the mother and with each other, the sexual activity with the mother allegedly beginning when she was aged 12.  The mother asserted that she was in the bedroom with the father when she was 12 or 13 years old, and the two of them we watching a film.  She alleged that the fifth respondent came into the bedroom and indicated that it was a good day for them to have sex.  The mother was frightened and ran away. 

116.   On the next occasion that she was at the father's house, the two of them having a boyfriend/girlfriend relationship by now, she asserts that the fifth respondent told her that she had to stay.  She alleged that the fifth respondent tied her to the bed and that the father had full sexual intercourse with her.  She said that the fifth respondent engaged in sexual activity with her as well, and after that that she engaged in sexual activity with her son.  She asserted that this happened to her on several occasions, but she was unable to fight back as the father and the paternal grandmother were much stronger than she was.  She did not report the sexual abuse because she was terrified.  She did not have a good relationship with her own parents, and she feels that she was drawn in to these sexual activities by the paternal grandmother who apparently was frequently very kind, and often bought things for the mother.  Eventually she made a complaint to the police in 2009, some four or five years later.  It was investigated but the police clearly determined that there was insufficient evidence to pursue a complaint at that stage.  When she made that complaint in 2009 she did not mention the use of a peachy robe to tie her hands to the bed, nor did she mention that the paternal grandmother had penetrated her with her fingers.  These details emerged in the course of the mother's evidence before this Court.  When questioned as to why she did not mention these details previously, the mother said that she was very scared and that she could not remember what she had said to the police.  Ultimately her position was that after many sleepless nights, she decided that she could not live any longer without telling someone, and she decided to go to the police with her complaints both to protect her children and for her own benefit. 

117.   These allegations were very strongly denied by the father and by the paternal grandmother.  They described the allegations as disgusting and could not understand why the mother should make them up.  The mother was criticised for her delay in complaining about the assaults, which really amounted to rape, on her.  On that last point, the Court has reminded itself of the directions which are frequently given to Juries in criminal cases where rape has been alleged and the complaint is made some time after the event.  Such directions are often in this type of language:-

"The defence say that the complaints were not made earlier because they are not true.  The prosecution say that the complaints were not made at the time because the complainants were children and were frightened of the threats which the defendant made to them.  Indeed it is said that there are many reasons why a child will not speak out - she might be fearful that her word will not be believed before that of an adult, or that there may be implications for other members of the family or in some cases the child may have some affection for the abuser.  When the child grows up the adult may still, for many diverse reasons, not raise the complaint over something which she has learnt to cope with, and there needs to be some trigger before the complaint is made.  How you approach this question is entirely a matter for you, but I would like to give this warning - it is understandable that you might come to a trial of this kind with preconceived notions of what constitutes rape, or what kind of person is a rapist, or is raped, or how a person who is raped would behave.  It is important you leave any such assumptions or preconceived notions behind you.  The offence can take place between all kinds of different people who react in a variety of ways...".

118.   We have tried to adopt that approach in this case, evaluating the evidence of what we have read and heard.  We note that the mother was in our view by and large a credible witness, and that she did make a complaint to the police in 2009.  We note that very largely the evidence which she gave to us was consistent with the complaint which she made six years ago, even though it was said appropriately to us that she was a vulnerable witness having regard to her IQ and the other medical evidence.  In fact she coped with the hostile cross-examination of Advocate Wakeling extremely well.  By contrast, we did not generally find the evidence of the father and the paternal grandmother to be persuasive and, for the most part, given a conflict between the evidence of the mother on the one hand and the evidence of the father and the paternal grandmother on the other, we would tend to prefer the evidence of the mother.  Nonetheless these are really very serious allegations to make, and, in the event, we have reached the conclusion that they are not proved.  Put another way, the mother is required to satisfy us on these allegations on the balance of probabilities.  If in percentage terms she gets us to the point where we simply do not know whether what she has asserted is right or not, then on the balance of probabilities, she has not established those allegations.  That is the position in which we find ourselves.  We think it might be important for her own state of mind that we express the view that she is not necessarily disbelieved, but merely that she has not established that these allegations are on the balance of probability true. 

Allegations 3 to 7 inclusive

119.   For the most part these are allegations that the paternal grandfather has assaulted, smacked, hit or bitten one or other of Freddie and Arthur.  Allegations 6 and 7 were withdrawn insofar as they contained allegations against the paternal grandfather.  The remaining allegations are in some cases allegations which have been made some time ago.  They relate to conduct alleged in May to November 2009.  In some cases there is some contemporaneous note in the CPN police logs of the complaints being made but we think it is right to note that before us, there was no evidence whatever of these assaults.  We have accordingly rejected them. 

120.   Insofar as Allegation 7 contains an allegation against the paternal grandmother that she has sexually abused Freddie and Arthur by touching both boys' penises, we make it plain that we have not heard any evidence which would justify reaching that conclusion and we reject it. 

Allegation 8

121.   This allegation is that Arthur was hit by the paternal grandfather causing a bruise to the top of his leg.  There is a reference to it in the CPN police log of 1^st December, 2010.  The evidence that this occurred seems to be based on what Arthur is alleged to have told his mother.  We do not dispute that he may have said this to his mother, but that does not necessarily make it true.  We find the allegation unproven.  We heard a good deal of evidence on this subject.  Having heard it, our assessment is that the allegation is unproved.  The father said that he was aware that his mother, the fifth respondent, gave Freddie and Arthur vitamin tablets, the fifth respondent denied giving either of them un-prescribed medication.  We accept the position which both of them, the father and the paternal grandmother, advanced in relation to this issue. 

Allegation 12A

122.   This allegation is that Q, the Father's wife, struck Arthur with a wooden spoon.  Both the father and his wife deny it.  We are satisfied that Arthur had a bruise at the relevant time and appears to have suffered some injury while in the care of the G family.  We do not think it is proved that he was struck with a wooden spoon, the evidence for which relies upon what he is alleged to have said to his mother.  Even if he were, we do not think that Q would have been the person to strike him. 

Allegation 14

123.   This was the allegation that the paternal grandmother and the father have had an incestuous relationship.  The allegations included the masturbation of the father by the paternal grandmother, her performance of oral sex on him, and his use of a vibrator on her.  The allegations are long standing - reference can be found to them in the police logs in 2009 and in the police and Children's Service disclosure, in an email from Tracy Najib to Laura Stark in June 2010, in case notes in March 2014, and in Dr Bryn Williams psychological reports of 2010 and 2015.  There is also reference to these allegations in the affidavits of Laura Stark, of the father, the paternal grandmother and the mother. 

124.   The allegations were vigorously denied by both the father and the paternal grandmother.  There is no direct evidence of them, save insofar as the mother makes the assertions which are described in Allegation 1 above, and we have nothing to add to our comments there.  We find this allegation not established. 

Allegation 20

125.   This was an allegation brought by the father that he had been assaulted by K who had grabbed him, pushed him to the floor and slapped him across the right side of his face.  This assault is alleged to have taken place in March 2009 and the documentary evidence shows that on the day of the alleged assault the father attended at Police Headquarters and made a complaint.  K attended himself as well and gave his explanation, denying the allegation. 

126.   The father asserted that he was having a disagreement with the mother who called K over the telephone.  He arrived in his car, and for no apparent reason he assaulted the father.  K said he remembered that day.  He was at work with M at the home of N who had rented out rooms to M and E.  He and M were working on the wall in the back garden.  He is sure that he would have had a break during the day, but he denies the assault.  His denials are supported by M who said he was working with K all that day because they wanted to finish their work on the wall. 

127.   We found this allegation to be unproven.  Indeed, on the balance of probabilities, the Court was satisfied that no assault took place. 

Allegation 22

128.   This is the father's allegation that when Arthur suffered an accidental injury, the mother told him to blame it on the G family.  The injury in question was we think the alleged assault by Q on Arthur with a wooden spoon in December 2014 which is referred to at Allegation 12.  We have not found that Q did assault Arthur with a wooden spoon, and we do not find it proved that the mother told Arthur to blame his injury on the G family. 

Allegation 25

129.   This allegation is that the mother has been violent to the father, punching him in the chest, winding him and causing him to fall to the floor and thereupon kicking him twice.  It is asserted by the father that he required medical assistance.  The father also claims the mother hit him in the back of the head and, on several occasions when angry, hit him in the face. 

130.   We could not see any medical evidence which established the punch to the chest and kicking in the chest area for which it is claimed the father sought medical assistance.  On the balance of probabilities we find that this incident did not occur. 

131.   As to sub-paragraphs (b) and (c) of allegation 25, we recognise that the parties had a bad relationship and it is not at all impossible that these incidents took place.  We do not consider them to be material in the overall context of what we have to decide. 

Allegation 29

132.   This is an allegation that the boys had been exposed to pornography in the mother's home.  It is an allegation brought by the paternal grandmother.  We have dealt with the question of pornography at length earlier in this judgment.  There is no evidence supportive of the allegation and we do not find it established. 

Allegation 35

133.   This is an allegation by the Minister that the mother hit Arthur with a rolling pin in or about September 2013.  The allegation is denied by the mother.  There is some documentary reference to it at the police log, and the incident was the subject of a MASH referral. 

134.   There is no direct evidence of this assault, and we accept the testimony of the mother that it did not take place.  Accordingly the allegation is rejected. 

Allegation 36

135.   This is an allegation that K hits Arthur.  The matter is referred to in a MASH referral of September 2013.  The allegation is denied by K.  There is no evidence supportive of it, and we accept his denials.  The allegation is rejected. 

Allegation 41

136.   This allegation is that K pushed Freddie against the tumble dryer, shouted at him and punched him.  The allegation is noted in the CPN police log for 20^th June, 2014.  According to Amanda Wilson, she went to Freddie's school with the police, and noted that Freddie had a small bruise on his side.  Freddie told her that K had pushed him into the washing machine.  It was one incident.  She believed him, and noted that Freddie did not want to make a formal complaint.  In his evidence, K said that he never lost his temper and he never hit Freddie. 

137.   The second allegation (Allegation 42) is that K had punched Freddie causing him to fall on the sofa.  This was a different occasion.  We note that the punch, if it took place, found no support for further police action.  Amanda Wilson felt that Freddie was telling the truth, but K has, as indicated above, denied it. 

138.   We find it proven that Freddie had a small bruise on his side.  We note that the professionals have tended to the view that Freddie would be unlikely to tell lies.  We have a plain denial from K that he ever lost his temper with Freddie, and a denial that he has ever hit Freddie.  We have an allegation that Freddie describes K as a special friend and agreement they get on well.  The Court generally found K to be a straightforward and credible witness, but it might be said that he would be liable to deny any violence against his stepson.  On a very marginal balance of probability, the Court finds this allegation proved in part only. We accept Allegation 41 that an incident occurred when Freddie fell against the tumble dryer, although we do not find that he was pushed or punched or shouted at by K.  The Court accepts Allegation 42 to the extent that Freddie fell on the sofa but again we do not find it proved that this was the result of a push by K. 

Allegation 48

139.   This is an allegation that in December 2014 the maternal grandfather hit Freddie with a wire.  The reference to the strategy minutes of 29^th December, 2014, and an affidavit from B.  In our view, the notes of the strategy meeting are inconclusive and there is nothing to support the allegation.  In the absence of appropriate evidence, the allegation is not proven. 

Allegation 50

140.   This is an allegation by the Minister that K has slapped Arthur across the face.  The allegation is based on what Arthur has said has happened.  It is denied by K, whose evidence we found largely reliable.  In the circumstances there is not sufficient evidence for us to conclude that this allegation is established, and it is thus rejected. 

141.   Generally in the case of some of the allegations, we have made it plain that although the allegations themselves are not proved, the evidence of the party making the allegations has not been rejected.  It is necessary to say something further because the allegations are particularly sensitive and because we are conscious that professionals and indeed at a later stage the Court may yet to be considering the impact of the fact finding hearing when coming to a decision on their evidence or its decision as the case may be. In Re B (Children) [2008] UK HL35, Lord Hoffmann said this:-

"2. If a legal rule requires a fact to be proved ("a fact in issue"), a judge or jury must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are 0 and 1.  The fact either happened or it did not.  If the tribunal is left in doubt, the doubt is resolved by a rule that  one party or the other carries the burden of proof.  If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened.  If he does discharge it, a value of 1 is returned and the fact is treated as having happened.  

3. The effect of the decision of the house in Re H (Minors) (Sexual abuse: Standard of Proof) [1996] AC563 is that Section 31(2)(a) of the Children Act 1989 requires any facts used as the basis that a prediction that a child is "likely to suffer significant harm" to be proved to have happened.  Every such fact is treated as a fact in issue.  The majority of the House rejected the analogy with the facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened.  There is of course no conceptual reason for rejecting this analogy, which in the course of some predictions (such as Lord Brown-Wilkinson's example of air raid warnings) might be prudent and appropriate.  But the House decided that it was inappropriate for the purposes of Section 31(2)(a). It is this rule which the House reaffirms today."

142.   It is in that context that one should be clear that where allegations are found not to have been proved, they carry a value of 0.  The allegation has not been proved and therefore the allegation should be disregarded by experts in their analysis and evidence which comes before the Court, and the allegation is not treated as something which might be true.  It is treated as not having happened.  We have mentioned that approach in relation to Allegation 1, but it applies equally to Allegations 41 and 42.  

143.   Before leaving the decision on the fact finding hearing, we record our thanks to counsel for some comprehensive skeleton arguments but particularly for the document entitled "Schedule of Findings" which sets out the events, the allegations and who brought them, the documentary references, and the position of the parties upon those allegations.  This was a helpful exercise. 

144.   We also pay tribute to all of the parties who gave evidence before us, who all managed to control themselves and acted with great restraint notwithstanding some very unpleasant allegations made against each of them. 

145.   We do have two comments however in relation to the documents which were put before us.  The first is that the police disclosure and the Children's Service disclosure were presented separately.  We can see that there might be occasions when it is necessary to distinguish the source of the document which is under investigation, and it is therefore important that in those cases one can identify whether the document is a police document or a Children's Service document.  By and large, the content of the document itself will make that position clear.  The result of putting the disclosure in separate bundles was that the relevant documents did not appear in chronological date order.  This was inconvenient not only for the purpose of cross-referencing the documents but also in practical terms while the witnesses were being examined. 

146.   The other feature of presenting disclosure in this way was that there was a tendency towards duplication, particularly so when affidavits put before the Court expressly exhibited particular documents.  We hope these comments might be of some assistance to the profession in the future, but we would like to emphasise particularly the need for documents to appear in a chronological order. 

Authorities

Children (Jersey) Law 2002.

Re B (Children) [2008] UK HL35.