Staffordshire County Council v M & J (Findings) [2013] EWCC B21 (Fam) (8 April 2013)

IN THE FAMILY COURT Case No: UN13C00015

Siting at Stoke-on-Trent

Bethesda Street

Hanley

Stoke on Trent

8^th April 2013

Before

HIS HONOUR JUDGE DUGGAN

___________

STAFFORDSHIRE COUNTY COUNCIL

(Applicant)

-v-

M & J

(Findings)

(Respondents)

__________

APPROVED JUDGMENT

__________

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

STAFFORDSHIRE COUNTY COUNCIL -v- M & J (Findings)

8th April 2013

APPROVED JUDGMENT

See also: [2013] EWFC B149

JUDGE DUGGAN:

1. Before the weekend, I concluded this fact finding hearing in care proceedings. The proceedings concern six children, but the current hearing relates to the eldest, T who was born in 1997.

2. T has made allegations of indecency against her step father. He is SF, and he lived with T's mother L, from about 2005. There is a complicated history, but the five other children are SF's children and they lived in the same household as the parents and T. For the purpose of this judgment, I propose to refer to SF and L as step father and mother respectively.

3. The local authority have prepared a schedule of the allegations they make against the step father. Those allegations are denied by both step father and mother. I have already circulated a draft which indicates my finding that these allegations are proved to be established. The purpose of this judgment is to explain why I have come to that conclusion. I propose to set out the important factors that I have taken into account. The summary is that the factors indicating that the allegations are true, in my judgment, outweigh the factors to the opposite effect.

4. The material has been assembled in a bundle, with which I am fully familiar. I have heard oral evidence from two police officers, one Social Worker, T's uncle, her grandmother and the step father and mother. T gave an achieving best evidence interview to the police. That was, of course, recorded and I have viewed the recording many times. The step father made an application that T be cross-examined in court and on the 19^th March 2013, I applied the test from the Supreme Court case of Re. W and rejected the application. I accepted opposition from both the local authority and the children's guardian, which included opposition from T herself. I directed a procedure for T to answer written questions submitted by the parties, but no party pursued that option.

5. Important consequences flow from my decision. I have seen and heard T on the recording, but of course that does not include the sight or hearing of T dealing with questions or dealing with any degree of challenge. I must assess the weight to be given to T's account by considering all the circumstances and I have looked with anxious caution at the recording to consider the extent to which it can be relied upon.

6. Inevitably, by the time of the recording in August 2012, the allegations were some months old. However, it is clear to me that T is not only an older child, but she is an intelligent, bright young woman. It follows that the passage of time may have affected her recollection of points of fine detail, but it does not significantly affect the overall account which she gives. My assessment of the manner in which the interview was conducted was that it was conducted in a perfectly acceptable fashion and there has not been significant criticism in the course of this case.

7. T's mature age and her ability are relevant factors in her favour. However, the issue is whether she was telling the truth or whether she was fabricating her account for her own reasons. The local authority bring the case. The burden of proving the truth of the allegations is, therefore, on the local authority. There is no obligation on the family to prove anything. The court does not proceed on the basis of suspicion. If something is not proved, the court proceeds on the basis that it did not happen. In reaching my conclusion, I have applied the test laid down by the Supreme Court and have required the allegations to be proved on the balance of probabilities.

8. The case involves allegations that different persons have lied. I have taken into account the fact that people may lie about one topic for an entirely innocent reason, which does not necessarily mean that they lie about every topic. A person might stray from the truth out of defensiveness; out of shame; out of a wish to exaggerate to bolster a case, but in any of these circumstances, or other circumstances, that does not necessarily mean that the person cannot be trusted about everything.

9. It is important to see these allegations against a wider, social canvas. This is a family who were not known to Social Services before these allegations were raised. There are no criminal records. The family themselves found it difficult to believe that the step father would do as T alleges. At the same time, family members found it difficult to believe that T would make up these allegations.

10. The parents have been co-operative. They have allowed Social Workers and indeed police to have access to the other children. It is important to record that those other children make no complaints against the step father. Indeed, they are very positive in their account of his role in the family.

11. It is necessary to consider the position of the family for a moment. The step father is an English Muslim. The mother was not brought up as a Muslim, but has adopted her partner's faith. The children have been brought up in the Muslim faith, but T grew to challenge this and the food which the family ate and the modest clothing which they wore proved to be particularly difficult for T. The mother and step father recognised that T was not born as a Muslim and, accordingly, they allowed some diversity in her case. For example, T was allowed to eat different food from the rest of the family.

12. In relation to clothing, the parents conceded that they really could not stop T dressing as she wished outside the house, but they insisted on modesty of dress within the home. The parents justified this inconsistency by their wish to shield T's sisters from knowledge of what she wore. They were obviously concerned lest they follow the example of their older sister.

13. It has to be remarked that life in the household did hold many inconsistencies which would not be lost on T as the oldest child. The relationship between the mother and the step father themselves had, during T's lifetime, involved much of the immorality which the parents now so singularly reject.

14. It was the mother who bought for T clothing which the step father criticised. It was the mother who obtained from T agreement that this clothing would be covered up when she was at home. Clothing was also bought for T by the maternal grandmother, only for that clothing to be criticised by the parents. The grandmother and the wider family felt that the step father was unduly restrictive of the mother and children and took a domineering role. They were open that they did not like the step father very much. They criticised his religion which was seen to be the cause of his approach to the family.

15. By the Spring of 2012, T was allowed some leeway in the household. She was allowed to go out with friends twice or three times per week. But, nevertheless, some limited complaints emerged from T. She did not want to do her part of the household tasks and this caused an element of friction with the parents. Overall though, still by the Spring of 2012, the mother and step father were describing a good relationship in the household. But, it has to be noted that the existence of a boyfriend for T was concealed by her from both parents.

16. In the Spring of 2012, the mother found T packing her bags and announcing that she would leave the family home. She proceeded to make her complaint that the step father had exposed himself to her; a complaint to which I will return in greater detail in one moment.

17. The papers are unclear as to the date on which T made this first complaint. Indeed, a police summary at J13, apparently prepared in the early hours of the 5^th August 2012, suggests that T made two separate complaints. It is not very clear what this police summary really is. The only police officer who had, by then, seen T was Police Constable Askell. I heard Police Constable Askell who produced her notebook of her session with T on the 4^th August and she explained that it had been prepared genuinely in a contemporaneous fashion. In addition, Police Constable Askell accepted a few lines which appear midway down page J11 of the bundle dated 4^th August which were the summary that she provided for her supervisor.

18. I accept Police Constable Askell's accounts, both the notebook and those few lines of summary, but I am not prepared to accept anything inconsistent with what she produced. In particular, the summary to which I have referred at J13. Inevitably, Police Constable Askell's material is vague about dates, but for me, the first account given to the police does not have any clear inconsistency so far as the general timetable of the allegations is concerned compared with the account given by T in the recorded interview on the 5^th August.

19. My conclusion is that all the incidents of which T complains arose before the first complaint was made to her mother and I accept the generally accepted picture of a single complaint to the mother on the occasion that T packed her bags in the Spring of 2012.

20. After making her complaint, T did run away to her grandmother's and the grandmother heard her complaint, as did her Aunt D. The mother and step father followed T to the grandmother's home and discovered that T did not want to return. She spoke of life at home as life in a prison, but she was told that if she returned home, things would change. I heard a number of accounts of that day. It is clear to me that T was left with no real choice but to return with her parents.

21. Following her return, T was given more freedom. She was allowed a boyfriend, provided he kept away from the home and kept away from the younger sisters. She was allowed more time out. She was allowed an increased allowance of mobile phone use. She was added to the parents' proposed holiday as a couple in Turkey.

22. My conclusion is that it is not really possible to determine whether these additional items of freedom represent a relaxed regime offered to T in order to encourage her to stay at home or whether they represent bribes, seeking to silence her allegations. However, I have no doubt that these concessions resulted in T settling at home. The holiday in Turkey was successful. I have seen a couple of happy photographs to that effect. T wrote a Step father's Day card in June of 2012 for the step father in very affectionate terms. His photograph remained on her door and she was even praising of the step father in her conversations with her grandmother.

23. The mother and step father describe T pressing for more freedom. They say she broke their rules; she became more and more withdrawn. Step father complains that he was not given the respect he deserved after all he had done for her. The mother says that she determined that T should never be alone with the step father. The mother tells me that this was an arrangement she agreed with the step father and imparted to T. Mother told us even of a rather bizarre arrangement whereby T got up early in the morning in order to accompany mother when she went out just in case it turned out that step father came home from work before mother returned, which would have had the consequence that T and step father were together alone.

24. I have to say that this was a rather unsatisfactory piece of evidence. Indeed, the parents' statements are silent about any arrangement of this kind. Step father said nothing about it and mother's revelation came in the course of cross-examination rather than at any earlier stage. If this arrangement is true, it may have contributed to T's preparedness to stay in the family home. Of course, she had no real choice when she returned in the Spring of 2012, but it is clear that she made no further attempt to leave the home thereafter.

25. On the 4^th August 2012, there was a family party in a public house. At the relevant time, T attended with her grandmother and members of the wider family. It seems that T was wearing a cardigan and she was encouraged to remove it, which had the effect of revealing a garment of which her step father would disapprove. T explained this to the family and became upset. Her grandmother guessed that the upset related back to the complaint made in the Spring of 2012. Over the following hours, it seems that there was general family discussion about this topic.

26. T's uncle Mr J had been away with his child and he returned to the table to see that T had become upset. He asked T the reason and she would not say. Another uncle, N intervened. He is married to the aunt D who, of course, had heard the allegation made in the Spring and he had a word with Mr J. It seems that N gave Mr J a corrupted version which involved exposure following the dropping of a bath towel. And, it was this explanation that Mr J subsequently repeated to the police. It seems clear that this account involving the bathroom and the towel did not come from T.

27. In any event, Mr J took T outside. He asked her, without details, whether the account was true and he was told by T that it was. To cut a long story short, he contacted the police. He took T home and at his home, he asked her if there was anything else that had happened and T told him that her step father had 'tossed himself off' in front of her.

28. Police Constable Askell saw T on the 4^th August. T stayed with family members where she remains. She was taken for her achieving best evidence interview which was conducted on the 5^th August.

29. I have heard many accounts of the events in the public house on the 4^th August. It is clear to me that T did not start this process herself. It is clear that her upset triggered comments from the grandmother. This triggered the comment by N to Mr J, who contacted the police, who proceeded with the enquiry. Obviously, this is important information alongside all the surrounding circumstances which I take into account in assessing the weight to be given to the allegation.

Formal Allegations

30. The allegation made in the Spring of 2012 seems to me, on analysis, to be acceptable. I have a consistent account from the mother and from the aunt, both describing exposure by the step father while lying naked on the bed. An allegation of exposure is made to the grandmother at the same time, but without the detail to which I have referred.

31. Mother accepts that the complaint was made by T with extreme reluctance. Her bags were packed. She wanted to leave. Mother pressed and pressed again for a reason why she wanted to leave. T said "I can't tell you." Mother pressed again and was told the account to which I have made reference. Mother accepts that there was surrounding upset which I consider to be appropriate in the circumstances.

32. The August recorded interview includes this allegation and more. I have studied that recording many times. For me, the recording is very compelling indeed. T is clearly nervous, reluctant and abashed. She thinks hard for detail with no hint of invention. There are any number of impressive comments of which I give some examples. She explains that she was determined not to look at the exposed private parts of the step father. She says that she felt better once she had got it off her chest. There was no significant emotion betrayed in the recording, but her body language and her hesitant, careful delivery, were - for me - very appropriate.

33. The account of exposure is entirely consistent with the complaint given in the Spring. The account of masturbation is, of course, new, but it is consistent with what T had told her uncle and the police the previous day. Clearly, T had sexual knowledge and language, presumably from her peers. Her account of the touching of her breasts was, however, completely new and this contradicted an earlier denial.

34. Police Constable Askell was clear that on the 4^th August, when asked, T had denied that she had been touched by her step father. In the recorded interview itself, the question is asked and answered in the negative more than once. This really is a very important section of the recording which I have studied intently. In the transcript at J104, the important section is transcribed. This, for me, clearly does not show invention. Rather, it shows a dawning realisation that an incident not mentioned previously might be relevant. It does seem to be credible that T might previously have considered this to be an ambiguous act of horse play. This was touching over the clothes, not under the clothes. For me, her recorded account is so very compelling that I do not find the inconsistency represented by the prior denial to undermine the allegation so as to make it improbable.

35. The allegations, of course, are denied. There is a small degree of support in the sense that innocent details are accepted. If T was to ask her step father to help with the laptop, he would indeed say that he had not got a clue. Step father says that she would not even ask. There was a domestic issue arising from a barking dog next door. T was indeed asked to sort out the step father's clothes from his wardrobe. The step father did speak to the children about the activity of some local kidnapping offenders. But, of course, the crucial element of the allegations, the element of indecency is emphatically denied.

36. The step father says that his commitments were such that he was too busy to be lying in bed in the morning. Letters from his employers confirm that he had commitments on Wednesday mornings and Saturday mornings which were days mentioned by T. She was, understandably, rather vague as to the days of the week to which she was referring. She was, however, clear that mother was out of the house on all the occasions when exposure occurred. It does tend to undermine her account when she says that on three of the four occasions, her step father was disturbed by the noise of the mother's return. Other children were around the house, but T's account is that they were excluded.

37. The bottom line is that there clearly were occasions when the mother left T at home with the step father and some of the other children and these were occasions when the opportunity for these allegations would have arisen.

38. The insistence by both step father and mother that the step father never stayed in bed, for me I am afraid, lacked credibility. Importantly, it was contradicted by two of the younger children. One of the children seems to describe T leaving the step father's bedroom upset, but on that occasion, it does appear that children were in the close vicinity. Time on the bed for the step father seems to have been common later in the day, after work, after the gym, after other day time activity. It is difficult for me to accept the mother's insistence that she was always there at the step father's side on these occasions.

Facebook

39. The parents have produced messages posted by T which they assert tend to undermine her character and her credibility. Some of these messages turned out to have an unexpected element of truth. However, I accept that T has posted some untruthful comments on her Facebook account. For example, comments about the care which her grandmother provides for her. There are also comments about perceived threats which seem to come from T's own imagination. It is clear that she has sexual curiosity and there are references to alcohol use. In parts, she talks about being free. In other parts, she talks about a sense of regret at wrecking her family.

40. There is, of course, no element of retraction in the Facebook account. Indeed, there is no element of retraction anywhere else. The only time that the mother specifically asked T about her allegations, following her return home after the complaints of Spring 2012, mother is clear that T continued to insist that her complaints were true. It may, of course, now be very difficult for T to retract, even if she wished to do so. It does seem to me that it would have been easy for her to do so when she returned home in the Spring of 2012 and when she was tolerating the more liberal regime which the parents then put in place.

41. These Facebook entries do show a different side to the nervous, diffident subject of the achieving best evidence interview. The parents have not submitted any questions for T, but the Social Worker has approached T on this subject. T explained that many of the Facebook entries were not true. The Social Worker explains her view that T's purpose was to vent her feelings. These were communications intended for friends and, of course, with friends, a young lady could speak with an element of bravado for shock. Nonetheless, in my analysis, I take into account that there are examples of untruthfulness by T in relation to extraneous topics which she chose to communicate to her friends in the frivolous setting of a Facebook account.

42. The parents argue that T's allegations were a bid for freedom. She was rejecting their restrictions. She had the attitude and language of a bad crowd. Of course, T did want to leave in the Spring of 2012 but I find that her degree of rebellion in the Spring of 2012 was then still at a relatively modest level. She was packing to go before anything was said. It was unnecessary to make an allegation and the allegation was given very reluctantly when mother pressed. In the relevant section of the recorded interview, I found T to be particularly compelling when she says that she did not feel comfortable at all living with the step father.

Conclusion

43. I remind myself of the need for caution in my approach to T's account since I have not had the benefit of observing cross-examination. However, her allegation made to the mother and other members of the family in the Spring of 2012 is for me credible. In her recorded interview in August 2012, there is consistency with what had gone before. The recorded interview is for me very compelling, not just in its account of the original exposure, but also in the additional element concerning masturbation. For me, put in context, the new allegation of the touching of the breasts is more probable than not to be true. T did seek her freedom, but for me, her step father's sexual activity was not a manufacture; it was part of the reason why T wanted to leave.

Mother

44. There is no evidence that the mother knew or ought to have known of the abuse of T. However, it must be said that the mother has not been sympathetic to T's complaint following the making of the complaint in the Spring of 2012. It is clear that the mother immediately preferred step father's account to that given by T and, as a consequence, the mother supported the step father rather than her daughter. Indeed, the mother became pre-occupied with the hurt to the step father which he asserted he had suffered as a result of T's allegation.

45. My finding means that the mother was wrong to do so. It is clear that she did not keep an open mind. She has refused even to view the recording of T's police interview thereby refusing to consider the possibility that T's complaint is true.

46. I shall conclude with a few provisional words in relation to the future. It seems unlikely that T will wish to come home. The safety of the other children is clearly an issue and there is already in place a direction for the obtaining of expert assistance to address that issue. The mother's ability to protect is going to be important and, in that context, I need statements in response to this judgment. I hope that, in the mother's case, her statement will also include her reaction to the observation of the recording of T's complaint.

47. I have already distributed a draft containing these findings and some suggested directions. The parties may need a few moments to reflect upon those directions before these can be formulated in the form of a court order.

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