Kent County Council v A,B,C and D (Children : Weight to be attached to evidence of child after flawed ABE interviews) (Rev 1) [2017] EWFC B72 (01 March 2017)

48. Mr. Justice Macdonald in AS v TH and BC and NC and SH [2016] EWHC 532 (Fam) stressed the importance of compliance. At paragraph 52, in reviewing the effect of the relevant authorities, he said that “where there has...been a failure to follow the interviewing guidelines, the court is not compelled to disregard altogether the evidence obtained in interview, but may rely on it together with other independent material to form a conclusion. However, where the court finds that no evidential weight can be attached to the interview the court may only come to a conclusion that relies on the content of the interviews where it has comprehensively reviewed all the other evidence”. This I have endeavoured to do in this case.

49. In Re E (A Child) 2016 EWCA, what emerges from judgement of Lord Justice McFarlane at paragraph 98 is that where there have been numerous and substantial deviations from good practice by police in carrying out the ABE exercise, these need to addressed and analysed to assess their effect on the reliability of the evidence obtained. I have found that guidance of particular help in this case.

50. The evidence of X regarding sexual abuse and W regarding the air gun incident is hearsay, which is admissible in children proceedings pursuant to the Children (Admissibility of Hearsay Evidence) Order 1993. But great caution is needed as the evidence cannot be tested by cross-examination. What weight can be placed upon it should be assessed by having regard to the factors set out in section 4 of the Civil Evidence Act 1995, which applies to family proceedings. Section 114 (2) of the Criminal Justice Act 2003 applies only to criminal proceedings, but is also apposite to any fact finding exercise based on hearsay evidence.

51. I remind myself of section 1 of the Civil Evidence Act 1995. The Act begins with a caution, because it made a radical inroad into the rule that hearsay was inadmissible. Section 4 then gives useful guidance to the court on how to estimate the weight to be given to hearsay evidence. Weight is a legal concept. It means the importance that a tribunal of fact places on a piece of relevant evidence. There is no need to weigh irrelevant evidence. A single piece of evidence can outweigh other evidence. Section 4 sets out that ‘the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence’. Subsection (2) sets out a list and I have each of those factors very much in mind when I weigh evidence of those witnesses who did not give evidence in court. I have directed myself that the factors within section 4 do not comprise an exclusive list, and section 114 (2) of the Criminal Justice Act 2003 lists other factors not included in section 4 of the Civil Evidence Act 1995. I have incorporated those factors when considering the evidence in this judgment too.

Impression of witnesses

52. I heard from the Mother, F and B.

53. B’s evidence was relatively brief. I found him to be a reliable witness in so far as his evidence conflicted with that of the Mother. I shall explain my reasons more fully when I reach that part of the judgement.

54. At her own request, and with the court’s agreement, she gave most of her evidence from behind a screen. For the most part she gave her evidence in a matter of fact way, often smiling, calm and completely relaxed. It seemed at times that she was talking about someone else, and someone else’s children. Only at certain moments was there an open emotional connection. Her memory was often vague, particularly when dealing with subjects that might implicate her in the case of neglect and lack of protectiveness. Given the enormity of the subject matter, the chronic sexual abuse of one or more of her children whilst in her care, perpetrated by someone she trusted, it is likely that her demeanour was a facade, a defence, behind which was a great deal of anguish which only occasionally broke surface.

55. Dr Conning, a very experienced Consultant Clinical psychologist, has carried out a full psychological assessment of the Mother, including psychometric testing. Her conclusions have an important bearing on the court’s understanding of the Mother. She has a full scale IQ score of 70, which lies at the bottom of the borderline range of functioning, overlapping with the top of the extremely low range of functioning which denotes a learning disability.

56. Care was needed to question her using simple language, with questions containing one idea at a time. Dr Conning advised that she had found that the Mother struggled to understand abstract ideas such as ‘neglect’ or ‘emotional abuse’. She needed concrete examples to understand them.

57. Dr Conning reported that A had related how, as a child she had been sexually abused by a male. She had reported the abuse to the police, then had retracted her allegations although she says they were true. She did so because, she says, at that time sexual abuse was not something that was talked about.

58. However, she suffered emotional consequences, because thereafter she self-harmed by cutting herself.

59. She has suffered low self-esteem, in part because as a child she had struggled to keep up with other children at school, in part because she had been bullied for being overweight, and because of the sexual abuse she had suffered.

60. These factors, thought Dr Conning, made her much more vulnerable than most women of her age to entering into relationships with abusive partners. It also made her liable to become emotionally dependant on them. On her own admission she became emotionally dependant on F, which is why she now says that at first she did not want to believe that he had sexually abused her children. It also made her and her children vulnerable to sexual exploitation by a predatory male.

61. Dr Conning advised that she needed professional help to understand the impact of the abuse she suffered as a child on her own wellbeing and her relationships in order to be able to better protect her own children from abuse, and I would add, better to protect herself too.

62. Her understanding is therefore limited by her cognitive difficulty, and the emotional harm done by her experience of abuse.

The Mother’s tendency to tell lies

63. The evidence she has provided over time has been contradictory and inconsistent, and often so inherently improbable as to be implausible.

64. She also frankly admitted to Ms Hendry in cross-examination that she had “lied up hill and down dale.”

65. She admitted to the court that she had lied in her witness statement, saying categorically that F had shot W with a BB gun, then subsequently said she did not know who did it. She later reverted to her original position. She admitted that she had told W’s school that she had shaven W’s hair, when now she says it was F who did it. She admitted that she lied to an acquaintance, U, in the guest house when she and the children were staying there in March 2016, when she said that X was always making things up; and that she had cut W’s hair short because she suffered from nits. She told these lies to U, she said, because she did not want anyone to know her business. Portraying her children in an unfavourable light was an odd way of preserving her privacy. She said these things because, as she explained, they were the first things that occurred to her. Another example of this tendency to casual, impulsive, self–serving lying was when she told the social services that on moving from Hampshire to Kent, she moved in with Q, F’s mother. For the first time in court she revealed that in fact she and the children had first moved in with F’s grandfather, G, who has a two-bedroom flat. She told the court she “had not a clue” why she said told this lie. She told the court, importantly, that she always believed her children if they reported anything of importance to her, but the record shows, and she has admitted, that in the past she did not believe them, particularly X, when they made allegations against F.

66. In her police witness statement made on 20 April 2016 (G33), the Mother suggested that X may have learned about men masturbating from seeing TV pornography that she had watched late at night when she thought he was asleep. When she was interviewed under caution on 21 September 2016 in connection with a suspected offence of perverting the course of justice, she admitted that she had made it up (G286) and said that she had never watched TV pornography in front of the children.

67. She started from a position where she strongly disbelieved the allegations made by X and W against her partner, F, but during the proceedings moved to a position of a qualified acceptance of X’s and W’s allegations.

68. The progress of her change of heart appeared to start with her witness statement on 19 September 2016. Then, when she was interviewed by the police on 21 September 2016, she asserted that she now believed X’s allegations. She repeated this belief in a further interview on 21 October 2016 and, again in the witness box on 27 October 2016, in January 2017 and finally in February 2017. It was only on these last two occasions that she explained that the basis of her belief was that one night, when she, X and W had been watching the TV at the B & B, X had suddenly blurted out that “F had put it in his mouth”. He did not elaborate and she did not question him, but she was shocked and realised that he must have been referring to the sexual abuse. Although to any reasonable parent this would have been a momentous allegation for her child to make, she says it did not occur to her to mention it until that last opportunity in the witness box. This delay is likely to have been a function of her defensiveness and low intelligence.

The court’s approach to the Mother’s lies

69. In R v Lucas [1981] 1 QB 720, it was held that if a party to proceedings tells lies which are relevant to material issues, as is the case here, the court should direct itself to take care before coming to any conclusion from that fact. It must remind itself it should only draw an inference that is adverse to that party from the lies if it is satisfied there is no innocent explanation for them. Sometimes people lie on oath because they become flustered under the pressure of cross examination, or panic that their honest account is not being believed and they need to bolster it with some embellishments. They may be ashamed to admit the truth, or wish to conceal what they are conscious of being their own discreditable behaviour. All those factors could apply to the Mother.

70. A is of low intellect – her IQ is 70 - she is on very low percentile when compared with the general population. She has a low self-esteem and is a dependent personality. She is easily manipulated. She has said herself, in relation to threats alleged against Mr F’s family, that if she feels intimidated she will do she as she is told. It is a real possibility that she lied in this case simply as an instinctive survival mechanism.

71. What is certain is that she has always wanted her children back in her care, and her lies have largely been to promote that goal. She has perceived that the evidence against F being the perpetrator of sexual abuse on her children is strong, and that her behaviour would be interpreted protecting him rather than her children. Hence her change of position. There is no evidence that anyone has coerced her to change her position. Indeed –if she is to be believed - the pressure from F’s family has been to stick to the original line. I can see no other explanation for her lies. She has placed herself in an invidious position. She is damned if she stands by F for protecting him, and damned if she now abandons him, as it is tantamount to admitting her earlier failure to protect the children. This dilemma was manifest in the witness box when, confronted with the inconsistencies in her account, she became tearful and admitted that she wanted to go back to Southampton to live with her parents.

72. My impression therefore of this is that she has changed her position for tactical reasons, believing that the LA, and the court, might now see her as being a more protective parent. If X did tell her about F sexually abusing him, as she now admits, it shows how un-protective she has been in her failure to report the fact until now.

73. Notwithstanding the Mother’s changed position, in which she acknowledged in her witness statement of 19 September 2016 (C195), that F had been responsible for harming her children, and that she had broken off her relationship with him, the Local Authority allege that on 16 August 2016, W saw them together; on 10 November 2016 DC Farmer saw them together, and in January and February 2017 (during the final stages of the hearings), they were seen together by O, the foster carer of Y and Z

74. The Mother and F deny this.

The text messages

75. The Local Authority also rely on text messages, which I shall deal with first, as they may be relevant to the issue of the reliability of the identification evidence.

76. The manager of the guest house, K (from whom I heard) related that the Mother struck up an acquaintanceship with a man also staying in the guest house with his wife and children. U informed K that the Mother and the man had been communicating by text, and that the Mother planned to show these compromising texts to his wife. To forestall trouble, K asked the Mother to forward the texts to her. The texts were almost all ones that had been sent by the man to the Mother; there was only one that had been sent by her to him. The content was graphically sexual, encouraging her to enter a sexual relationship with him. In the one text sent by her she could not ‘do it’ and mentioned being ‘loyal to her partner’. Her last partner had been F.

77. The context made it appear extremely likely that his texts were responses to hers, and that she had deleted all but one of her texts to him.

78. The Mother’s explanation to the court was that the man had said he was a doctor. When Y had fallen from his bed and bruised his nose she had wanted his advice. She knocked at his room but he would not answer the door, so she obtained his mobile telephone number from U. He gave her advice by text (which is no longer available), that she should put ice on the bruise. In this way he obtained her telephone number and embarked on a campaign of seduction by text which was unwelcome, and spurned by her. Despite her reply, he persisted in his barrage of salacious texts. She had told him she had a partner to put him off; by then she had ceased her relationship with F and she says this ceased on 12 February 2016.

79. K spoke to the man, who admitted the texts, but added that it had been a two-way communication, and that the Mother had been encouraging him.

80. I found the Mother’s account very unlikely to be true and agree with K, who assumed that she had deleted her side of the text conversation. Her reference to her partner could have only been F. Whether he was still her partner, or her former partner at the time is in issue but, as I shall explain from other available evidence, it is likely that they were still in an active relationship which she was keeping hidden from the social services.

81. Given her self–confessed propensity to telling lies, a great deal of caution was needed before the court could rely on any of the Mother’s evidence when it related to controversial or disputed matters.

(After the short adjournment)

HIS HONOUR DEPUTY CIRCUIT JUDGE GLENN BRASSE:

The judgment will proceed from where it left off at one o’clock.

Impression of F as a witness.

82. Once one was attuned to his fast delivery and accent, he emerged as quick-witted and adroit in defending himself against the most serious allegations. At times, when the questions got close to the mark, he became agitated, high-handed and defensive in an aggressive manner. He told the court that he had been diagnosed with Asperger’s Syndrome and ADHD, which he has had since childhood. He says that the only effect on him is that when he is under stress he can become annoyed. He has found these proceedings stressful but has remained composed throughout and was for the most part apparently calm and able to answer questions under cross-examination for several hours at a time. It does not appear that these conditions materially affect his functioning and everyday life at all. He seemed intelligent and able to give a full account of himself without difficulty.

83. I found F was not at all a reliable witness and I had to approach his evidence with great caution. In general, I found that he was prone to projecting blame on others and he saw himself repeatedly but improbably as the victim of false and malicious allegations made by people entirely unconnected with each other. He has accused his former girlfriend, N, of coaching her daughter to tell lies about him; he has accused 1A, the allocated social worker, of coaching X to do the same; and he has accused T and L, the foster carers of W, of coaching her to make allegations against him.

84. He repeatedly challenged reliable records and testimony concerning what he said previously where the evidence tended to be unfavourable to him. He suggested that his police interview was unfairly conducted when, as we have seen and read on the transcript, his own solicitor said the opposite. He claimed that he was confused by the three others present in the interview – his appropriate adult, his solicitor and the police officer – all talking to him at once when it was manifestly untrue, and gave quite implausible accounts for the possible motivation of people who have made allegations against him in the past and in these proceedings.

85. But he does not have to prove his innocence. The Local Authority has the burden of proving his guilt. Nor would it be logical to infer guilt from mannerisms: the coolest person can be the guiltiest, the most excitable the most innocent.

86. That notwithstanding, he has offered a number of arguments to discredit X’s account. They are: (i) that he got on well with the children and with their mother, and there is extraneous evidence from the social work records to confirm this. There is, however, clear evidence that he disliked X. He was observed to tell X off repeatedly; once when 1A was walking behind them she heard F tell W how naughty X had been on a visit to Asda and that he was being punished. He also said he had “sorted him out because he was sick of his behaviour”. F made a closed fist gesture, suggesting he would like to hit X. W confirmed this attitude of F to T, her foster carer, saying that F beat X.

87. (ii) F said that he never had the opportunity to be alone with X or the other children to be able to sexually abuse them, but W, X and the Mother have given evidence to contradict this account.

88. (iii) Like A, he has sought to discredit X as being a frequent liar. It is clear from A’s account that their attempt to discredit X were themselves dishonest. F’s account of the police interview was, as I shall explain, replete with statements which I found doubtful. I found, like the Mother, I had to treat his evidence as unreliable in instances where it touched on matters of dispute or controversy, and so I had to approach it with great caution. (iv) He suggested that X was attention seeking and made up allegations for this reason, and that he obtained the information from W or other children. (v) X may have been sexually abused by his father, B, but has confused him, F, with the culprit. (vi) X may have been coached by the social worker 1A or by a potential rival for the Mother, 3, to get him out of the way.

89. I shall return to examine each of these arguments and others that he put forward in detail when I deal with his police interview in evidence. If none of these explanations discredit X’s account, the court would have to look at it very carefully and it could be so compelling as to be determinative of the allegations.

A continuing relationship between the Mother and F

90. The Local Authority allege that after 12 February 2016, when X was interviewed by the police and made allegations that F had sexually abused him and the other children, A continued to have a relationship with F. This was despite their both asserting that neither of them communicated with each other at all after that date. To prove their allegation, the Local Authority rely on (a) Facebook postings, and (b) sightings of the Mother and F together.

Facebook entries

91. Both Mother and F have Facebook accounts. If a person posts a message or photograph on Facebook his friends, people who have agreed to share their Facebook with him and communicate with him by Facebook, can indicate the degree of their approbation on his Facebook account page by a thumbs-up sign which means that they like it, or a heart sign if they love it. Facebook pages can be closed to prying eyes of the outside world by privacy settings, but F’s is left open so that the social worker has been able to visit his page and see who has approved his postings. F said that he “unfriended” A after his bail conditions were imposed on 12 February 2016, and she says she blocked him from her Facebook account around that time, but nonetheless she reappeared as his Facebook friend thereafter and proactively sent approbating signs to his postings.

92. What the undisputed evidence has established is that A thus remained his Facebook friend until at least December 2016 and approved his postings (which included on 16 February 2016 photographs of Y and Z taken on 2 February 2016), once in June 2016, three times in August 2016 and on 20 November 2016. As I shall later explain, from September 2016 onwards she accepted what X had alleged against F was true. On 20 October 2016 she shared with F on his Facebook page a photo of X taken on 20 October 2016, and this was the anniversary of the photo, well after she had accepted the truth of X’s allegations. Furthermore, it was done just five days before the start of this hearing and a month after the Mother had signed a statement saying that she now believed that F had sexually abused her son.

93. A gave various explanations. Before anyone became aware of the approbations in relation to the “like” sign sent by her on 20 November 2016, she said that she did not realise that she had approved F’s postings. Then, when the earlier postings were discovered by the social worker sitting in court using her own smartphone and were shown to the Mother, she agreed that she was aware that she was sending her approval postings to put up on F’s page. When asked why, after she knew what he had done to her children, she was prepared to send a thumbs up and on one occasion a heart to his Facebook page showing that she liked or loved his postings, she said: “It’s not a crime to like someone’s postings.”

94. F says that he was the passive recipient of these communications from the Mother. He did not check his account to see who sent him communications. She was proactive but he was not, and there is no evidence that he ever replied to the Mother. But in my judgment a reasonable parent who believed her child had been sexually abused by another would not approve anything the perpetrator posted on Facebook. She would not wish to communicate with him or even his Facebook page at all, for any reason. It implies either that she did not really believe he was the perpetrator or did not care. It also makes it more likely that she was in touch with F in other ways as well, as Facebook communications must often be one facet of a more rounded relationship.

Disputed identification evidence

95. The Local Authority contend that there were five occasions where the Mother was seen with F, which tends to strengthen their case that, despite their denials, they continued their relationship after 12 February 2016 when both say it ended. This is an important issue for if it is true and F does present a risk of significant harm to the children, it would show the Mother to be a very poor protective parent indeed.

96. This is a disputed identification case. The court must direct itself in accordance with the Court of Appeal’s guidance in R v Turnbull [1997] QB 224. In this case an important issue turns substantially on the correctness of one or more identifications of F being with the Mother, which they allege to be mistaken. In such a case it is imperative that the judge should warn himself of the special need for caution before making a decision on the basis of the correctness of the identifications. Additionally, the judge should remind himself as to the reason for the need for such a warning, namely that a convincing and honest witness can be a mistaken witness. Secondly, the judge should direct himself to examine closely the circumstances in which the identification by each witness was made, and some of these circumstances may include, for example: for how long was the accused under observation by the witness; at what distance was the witness from the accused; what length of time elapsed between the original observation and the subsequent identification to the police or Social Services? The judge should also remind himself of any specific weaknesses which have appeared in the identification evidence.

97. As for recognition, it is commonly accepted that recognition is more reliable than identification of a stranger. However, even when the witness appears to recognise someone who he knows, the judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made.

98. The quality of the evidence. If the quality is good and remains good at the close of the case having heard all the evidence, the danger of a mistaken identification is lessened, but the poorer the quality the greater the danger. When ,in the judgment of the trial judge ,the quality of the identification evidence is poor, the judge should not rely on the identification evidence unless there is other evidence which goes to support the correctness of the identification. The trial judge needs to identify to himself the evidence which he believes is capable of supporting the evidence of identification.

99. In relation to each incidence I shall therefore: (1) summarise the evidence regarding identification from all witnesses, including the Mother and F; (2) specially examine the circumstances of the identification; (3) identify the weaknesses; and (4) identify the supporting factors.

The alleged identification on 16 August 2016

100. W is cared for by foster carers, a couple, T and L, whose evidence I heard over a telephone link. T had been a professional seaman, a boson, on the Cross Channel ferry. On 16 August at around 2.00pm T happened to be in Folkestone Harbour with W. He had bought her an ice cream and himself a tub of cockles and then sat down on a bench on the quay to enjoy them. It was sunny weather, a pleasant summer’s day. Suddenly W took a deep breath and looked startled and shocked. T asked her twice if she was all right, and on the second occasion she said: “It’s Mum.” This was an odd reaction because T had previously taken her to see her mother on contact sessions and W had always looked forward to seeing her and had an evidently loving relationship with her.

101. By then A was coming towards them. T noticed two men jogging away into an alley where there was a fishmonger and a fish and chip shop. One of them seemed to try to conceal himself there. The Mother was about five metres away. The men were about fifteen metres away and made off to a position about fifty metres away. They both seemed to look in the direction of A and W. A spoke warmly to W for a minute or two and then left in the direction of the two men. T could not see whether the Mother actually joined them or talked to them.

102. He knew that A had a partner called F and had previously been told by W that F had beaten X and had done horrible things to him, and it was clear to T that W herself did not like F, but he had never previously met or even seen F. Instinctively, he asked W whether one of the men he had seen had been F, and she said that she did not know. She seemed very upset and startled. He asked her again but she still said that she did not know. She remained upset and subdued for the rest of the day.

103. That evening, when she was bathing her, L asked her if she had seen her mother that day and whether she had been with someone. W’s response was non-committal. L did not keep a verbatim record but the gist of what was said was this: W then said that she thought one of the men was M, the Mother’s friend. L then said to her that T had told her that she had seen the Mother with F too, and W gave a qualified answer: she was not sure. She seemed quite unsettled, not her usual self. These were leading questions and I need to ask myself to what extent the answers were the repetition of the suggestion or W’s own recollection.

104. F denied being present and the Mother told the court that she had been there alone. She frequently went to Folkestone Harbour for relaxation but also out of nostalgia for the day she had visited there with her children. She had not noticed the other two men seen by T. I had to treat her evidence with some caution, given her propensity to tell untruths. I was unable to accept that W’s reaction of shock had been caused by seeing her alone. Her reaction would more probably have been one of delight. I found it more likely than not that she had been with someone else, and that person had evoked the reaction in W.

105. But who was that person with the Mother? Looked at in isolation, W did not make an unequivocal identification of the second man as being F. The circumstances in which she made her observation were that it was a clear, sunny day, according to T not many people around to interrupt her view – indeed he had an uninterrupted line of sight between himself and the Mother and the two men. No verbatim record was kept of what the child said and she has not given evidence, so there has been no chance to cross-examine her on the accuracy of her observations. Both T and L used leading questions to ask W whether she had seen F, which would tend to weaken the reliability of her answer. In any event, her verbal response was ambiguous. T did not make a note of the men’s appearance or take a photograph, which are additional weaknesses in this already ambiguous identification evidence. There was no safeguard such as an identification parade which F could have attended to check whether T or W saw him there at the harbour.

The supporting evidence

106. However, her, that is W’s, emotional response at the harbour was highly unusual. It is most unlikely that it was her mother’s appearance there that startled her and made her upset and subdued for the rest of the day. Seeing F, who she disliked and had expressed having cause to feel afraid of, could well have evoked such a response in her. Her strong loyalty to her mother, a point which impressed T, would have made her want to conceal the fact that it was F, as W probably knew that the Mother was not supposed to be seeing F. The response of the two men to jog away and the possible attempt at concealment would also point to one of them being F, as he would have known that being seen with the Mother could prejudice her case in these proceedings.

107. Finally, both the Mother and F have admitted that M is a mutual friend of hers and F’s, and has indeed become her closest and most supportive friend during these proceedings. Her thinking that one of the men was her mother’s friend M tends to contradict the Mother’s account that she was there alone. It would have been an astonishing coincidence if M just happened to be jogging by when the Mother appeared.

The alleged identification on 10 November 2016

108. On 10 November 2016 A says that she was in fact with P, F’s twin brother. DC Farmer, who had earlier in the year conducted an investigation into allegations against F concerning the children, stated that on 10 November 2016 she was off duty shopping. At around 12.20pm Detective Constable Farmer was approaching her car which was parked in a row in the car park outside the shops when she saw the Mother at the opposite end of the car park, near a Subway sandwich shop, with F. DC Farmer then walked towards her car, which was parked with the front facing inwards, closing the gap between them. She noticed that the Mother and F went to their car in the same row as hers, its front facing outwards. DC Farmer got into her car and watched them for a short time, one to two minutes. She wrote the car registration number on a piece of paper and later obtained confirmation from the police national computer that the car was registered to F and that he alone was insured to drive it.

109. The Mother told the court that she had gone to the Subway for her lunch and had arranged to meet P, F’s twin brother, there so that they could drive back together to Q’s house to collect some of her property – clothing and children’s toys – that she had left there. She said that she spent twenty minutes at Q’s house sorting out things she wanted, then took them back to her accommodation. Despite having gone to the trouble of retrieving her children’s toys, she subsequently did not deliver them to the children, although she had many opportunities to do so at contact sessions. F denied being present. He thought DC Farmer was lying about the identification. He asked rhetorically: “If she thought it was me, why didn’t she arrest me?”

110. I found the Mother’s account improbable. Given that the purpose of the mission was to deliver the toys to the children, it is very unlikely she would have subsequently forgotten to do so. Furthermore, had an arrangement to meet been made, it was hard to understand why the meeting should not take place at her home, which was a short distance away, or alternatively at Q’s, where the property was said to be. Nor does her account explain why P was using F’s car, which was not insured for P’s use.

111. I have not heard from P and I cannot speculate about what he may have said. But DC Farmer had met F before and so she was potentially able to recognise him. But even people who have been in longstanding relationships sometimes make false identifications based on recognition, for example if it was a fleeting glimpse over a distance in a crowded space, but it is less likely to be mistaken if the observation happens over a long period in the absence of intervening moving crowds.

112. The circumstances in which she made her identification by recognition were these: the weather was dry, bright and clear; the car park was not busy with people; she had an uninterrupted view of the couple throughout; and as she had kept the couple under observation the gap closed from maybe the length of an Olympic swimming pool, 50 metres, later said to be 30 metres, down to perhaps 15 to 20 metres, a little longer than the courtroom. She had them under observation for one to two minutes, not a fleeting glimpse.

113. The factors which support identification are: the Mother and F admit the Mother was there and that this was indeed F’s car. To that extent her identification was correct. P is, according to the undisputed evidence of DC Farmer, of a larger build than F so they can be distinguished; they are not identical. The text messages in March 2016 suggest the continuance of a relationship with F and her account for being in the car park I found too improbable to be reliable. The qualified identification of F with the Mother on 16 August, if true, would support this identification too. On 24 September 2016 the Mother’s father made a witness statement concerning whether or not A had ever telephoned him to say X had admitted lying when making his allegation against F. In that statement he said, incidentally, that the Mother and F were in a relationship on and off. The Mother said that he must have assumed this but A was close to her father and it is difficult to see why her father should have made this assumption unless it was based on recent observation or knowledge.

114. The factors which may weaken the identification are: that DC Farmer did not take a photograph, for instance with her mobile; she did not go up to the couple and challenge them, but she was off duty without support or protective clothing. There is an absence of this further kind of corroborative evidence. She wore glasses but usually only for night driving, and there was no identification parade afterwards.

The identification of F with the Mother on 26 January 2017, 2 February 2017 and 14 February 2017

115. On 26 January 2017 the foster carer, O, of Y and Z since December 2016 was driving with Z to collect Y from school in Tenterden to take them to the contact centre next door to see their mother. She noticed a black VW Golf following close behind her. Looking in her rear view mirror she recognised the Mother sitting in the passenger seat. The male driver, according to her statement, had short black hair. It followed her for 25 minutes, it was quite close, with insufficient stopping distance and made her feel uncomfortable. On her hands-free mobile she reported the matter to the West Church House Social Services duty desk. She came to a crossroad and turned left to drive to the leisure centre car park near to the contact venue and Z and Y’s school. In her rear view mirror she saw the same car turn right towards some shops, one of which she thinks was Morrisons. O drove into the car park and parked.

116. She went into the school to collect the children and when she walked out with them, holding each by the hand, she again saw the black car and caught a glimpse of the Mother in it; thus she assumed it was the same car because it was unlikely that the Mother changed cars. She walked the children to the contact centre. She saw the Mother enter the centre. O went back to her car to collect the children’s bags and saw the black car again, stationary in the car park; its location and appearance made her think it was the same car. She took the children’s bags back into the centre then returned to her car. She made a note of the registration number, in her mobile iPhone 5, in F’s name, and photographed the car on her mobile. The photo shows a black VW but the registration number is indistinct. She saw someone in the car reflected in the wing mirror but was unable to give a description. She went for a cup of tea.

117. On 2 February she saw the car again. When she came to deliver the children from the contact centre, which was this time in Ashford, it was parked nearby. When having dropped off the children she came out, she recognised it by the colour and the registration number plate. Her daughter photographed the car and one of the photos shows the registration clearly enough to be read as F’s registration number. She drove off to have tea and then returned. She drove past the car and noticed a man sitting in the car. Again the man had short black hair. He wore a dark hoodie. He was in the process of putting up the hood, and seated in the car he did not look tall.

118. On 14 February the children had contact with the Mother in Folkestone. She saw the Mother emerge from the contact centre and walk around a corner out of sight. Shortly after, as she was putting the children in the car, she saw the black VW car drive past. It had the same number plate. She saw it again as she drove off, this time parked. The Mother was standing next to the driver’s door. She could not see the driver this time.

119. The foster parent’s written statement was not produced until 16 February 2017, on day eight, I think, of the hearing. It exhibited a note that she had made at around the time of the sightings on 26 January 2017. It was not as detailed on this topic as her evidence, as its primary purpose was to record the incidence of her care of the children. However, in my judgment it was not materially different to the account of the sighting she gave the court.

120. On 15 February the Local Authority already had the gist of what was to be said and Miss Croxford, counsel for the Local Authority, cross-examined both Mother and F on this information. The Mother admitted that she had been driven to the contact centre in a black car but by a friend called M, and she said she did not know what kind of car it was. She was unaware that the car was behind the foster carer’s car. Initially F said that the car seen on 26 January was not his car, he was categorical about this. He said that he had had no contact with the Mother since February 2016.

121. On 16 February 2017 the Mother was called to respond to O’s evidence and she told the court that on 26 January 2017 the contact supervisor told her that the carer had complained about being tailgated, that is followed closely in her car, by a car being used to ferry A to contact on an occasion or occasions prior to 26 January 2017. The Local Authority admit that they had received such a complaint, which had been discussed at a professionals’ meeting on 20 January 2017 and conveyed to the Mother by telephone by the allocated social worker on 24 January 2017. Unfortunately, O was not asked about this when she gave evidence and had left court by the time the Mother gave hers. There was no practicable means of recalling her to deal with this topic, but in my judgment it is not important as it was unlikely to raise any material issue.

122. The Mother went on to state that on 26 January 2017 and on 2 February 2017 she had been given a lift to the contact centre by M in his black car. It was not the seven seater that she believed F owned. M was employed as a security guard and worked most days very long hours, sometimes 24 hour shifts, at various locations around Kent and Essex and elsewhere. Yet, as an act of friendship and kindness ,he had found time to take her to not only those contact sessions but also to court hearings at Medway on three consecutive days between 9 and 11 January 2017.

123. Although M has been able to devote considerable time to helping the Mother, he was not called as a witness, nor did he produce a witness statement. The court must not speculate about what he might have said, nor was it informed about the reason for his not being called, but the court must not speculate about that either. The failure to ask the court for an opportunity to even contact him or take a witness statement from him is remarkable. As an after-thought, Mr Lue on behalf of the Mother in his closing submissions sought to argue that the Mother had been deprived of a chance to even consider this by the late introduction of O’s evidence. He did not submit that had she been given a chance she would have called him. It would be unsafe to draw an inference adverse to the Mother from M’s absence but I am satisfied that she was treated fairly, in that she had the chance to call him if she had wanted to.

124. In appearance, M had a ginger beard and dark brown/black hair – there is no evidence about its length – was described as facially scruffy but otherwise was sartorially smart as invariably he was attired in his security guard uniform: dark blue blazer, shirt and tie. Only when she was asked in terms whether he wore a hoodie did she recall that he did wear a hoodie, coat or jacket when inside his car. That was an after-thought prompted by the leading question, which I found less convincing than the unled description that preceded it.

125. The Mother stated that on 4 February 2017she had walked to the contact centre in Folkestone as it was close to her home.

126. F admits that he was in the vicinity of the contact centres in his cars on the days in question but did not see Mother at all on any of those occasions, and indeed had no idea when or where the Mother had contact with the children or that he was near the contact centre. On 26 January 2017 he was in Tenterden with a female friend, R, to view a potential home for her which, unbeknown to him, happened to be near the contact centre there. On 2 February he was in Ashford to visit his friend, V who lives in a block of flats which, unbeknown to him, happens to be near the contact centre there. And on 14 February 2017 he was in Folkestone visiting another friend, 2. He says M, the Mother’s driver, is his close friend, and the Mother explained that she met M through F. She has never told M about the case, other than her children are in Local Authority care and she is not “allowed”, as she put it, to see F. So ,F does not dispute O sighting his car on each occasion and accurately taking down his registration number. He just happened to be where contact took place and at the times it took place as a result of coincidence.

127. The remaining issue is nonetheless still one of identification because it concerns the accuracy of O’s observation that she saw the Mother with him and not another man, M. Was it him she saw? Has she somehow seen him in his car but not with the Mother, and then seen the Mother in another car with a different driver and attributed the characteristics of the first car to the second? F told me that M owned a black Vauxhall Corsa, which is roughly the same size as a VW Golf. But I have not heard nor read any witness statement from R, M, 2 or V. I shall not speculate as to why they have not been called or to what they may have said, but equally I am satisfied that F has been given every chance to call them and so has been treated fairly by the court.

128. Again, the strictures of R v Turnbull must be kept in mind. What were the circumstances of the observation and the earliest description given by the witness? O said that on each occasion when she made her observations the weather was fine, dry and clear, as can be seen on photos taken on 26 January and 2 February. She said the description she was able to give the car, including its make, colour, gender of driver, his hair colour and style, and crucially the number plate. I attach great weight to that fact as I cannot see how she would have been mistaken. The vehicle registration records produced by the police in this case show that this car was registered to F, and there is no evidence that F loaned the car in which the Mother was seen to M.

129. Her description of the driver on 26 January and 2 February was consistent: male, short black hair. Her observations of the man were brief and on the first occasion seen in a rear view mirror, and this is why she could not give more detail than this of his more notable features, other than his hair, his gender and on one occasion his hoodie. M’s attire, shirt and tie and jacket, is dissimilar to Mother’s volunteered spontaneous description of M. Had this been M as initially described by the Mother, O, vigilant and nervous about who was following her, would have been unlikely to have missed the ginger beard. If this observation is reliable, this was not M, unless he had had a shave which the Mother had not noticed.

130. What features support the identification of the driver as being F? The most significant feature supporting identification of F as the driver is the fact that this was his car. The coincidence of it being the same car as was seen on 10 November 2016 by DC Farmer is striking. The fact that F was giving Mother a lift that day makes it more likely that he continued to give her lifts on later dates too. The description of the driver given by the foster carer could fit F, but it was too vague to be definitive. The foster carer did not know F and there was no identification parade to check her identification.

131. What factors further support the identification of the driver as being F? (1) The Mother admits that O correctly identified the Mother on each occasion, each time she made her observations. (2) O correctly wrote down the registration number of F’s car. It would have been too great a coincidence if she had mistakenly taken down the registration number of another car of the same make and colour of F’s which resulted in a note of his car registration number. These factors demonstrate the reliability of observations: the car description; black; VW; driven by a male. It is confirmed by the photos taken on two consecutive contact dates and the registration plate and photo taken on 2 February 2017. (3) F’s initial denial that it was his car. This was untrue and the lie might have been told to conceal the truth of his presence. Only when recalled for further cross-examination the next day did he come up with the story of the coincidental visits in his car to the vicinities of the contact centres. (4) If this was F’s car, the Mother would have been familiar with it from previous journeys and recognised it as being his. Her vague description might therefore have been an attempt to cover up her knowledge. (5) If either of the two previous identifications of F being with the Mother are reliable, then that fact would make it more likely this was F again. (6) The driver did not fit M’s description, which makes it likely that the Mother has invented the story of M being the driver. (7) The Mother’s denial that she was given a lift at all on 14 February may be true as O only saw her standing by the black car with the registration number plate, in which case if O is right the Mother met the driver of that car after the contact session and the Mothers’ denial is a lie. (9) The hugely improbable coincidence of F happening to be driving his car in the vicinity of the contact centre on three occasions in three different towns at the exact time that the Mother happened to be there for contact is just that make his assertion too improbable to believe. (10) The Facebook entries tend to confirm a continuing relationship between them, which makes the identification of F being the Mother’s driver more likely to be true.

Conclusions

132. The burden of proof is on the Local Authority. The standard of proof is the balance of probabilities. I find that the Mother and F were indeed together in November as the officer saw, and in January and February as O has described. For the reasons I have already stated, I found the evidence of the witnesses convincing and found the accounts of A and F not only unconvincing in explaining the sightings by those witnesses, who are honest and doing their best to be truthful and accurate, but so replete with lies and improbabilities as to positively support the reliability of the identification evidence.

133. Having found the second identification proven, I consider that that fact supports the identification by W, in that it makes it more likely that the second man was F. Taken together with the other supporting evidence, I find on the balance of probabilities that he was the person who caused such a marked and sudden change in W’s emotional presentation that day.

134. This series of sightings explains F’s initial blatant lie to the court that it was not his car that was seen on 26 January 2017, 2 February 2017 and 14 February 2017. It was not only his car but he was also the driver. As I have said, I found O’s evidence very compelling and I found it was supported strongly by the blatant falsehoods in the Mother’s and F’s accounts.

135. This means that the Mother and F have lied to the court about when their relationship actually ended and the absence of communication between them since then. They alone can tell what is the nature of their relationship now. If the children were returned to the Mother it increases the likelihood that they would come into contact with him again. If he has sexually abused any of them in the past, it would expose them to further harm. It would also show that the Mother was completely unprotective as a parent. The court must therefore address the central issue raised by the schedule of allegations: did he abuse the children? Was the Mother unprotective of them?

The historical context

136. The passages which have preceded this section of my judgment illustrate how difficult this case has been. I have had to conduct several trials within a trial. The issues over identification would have taken up the length of the average Crown Court case. That issue and the amount of time that has been required to resolve it was entirely the responsibility of F and A.

137. One of the principal criticisms that has been made by the Local Authority of the Mother’s parenting capacity has been her inability or unwillingness to recognise risks to the children and acknowledge the harm that they have suffered in her care. Her statement dated 19 September 2016 shows, she says, that since these proceedings began she has started to make some progress in gaining insight and the ability to address the problems of the past.

138. In that statement she summarises the relevant history. She met C in around 2005 when she was fourteen years old. She alleges that C was verbally although not physically abusive to her. They separated in around 2008/2009. In 2010 she met B, and after six or seven months she moved with her children into his home in Hampshire. She states that he too became verbally abusive to her. This behaviour, she says, escalated into threats and intimidation and eventually, after Y’s birth, physical violence.

139. The Mother made a number of complaints about B and his associates to the police. In April 2010 she alleged that she had been threatened by his relatives. In September 2011 she reported to the police that B had been angry and the children had witnessed his outbursts. On 9 October 2012 B was arrested and charged after an allegation of assault made by the Mother. He was cautioned for common assault and criminal damage. In July 2013 and again in January 2014 there were further reports to the police of domestic violence, the latter involving an allegation that the Mother had punched B. There are records of complaints by the Mother of B shouting at the children, calling X insulting names such as “thick” and “stupid”, and telling the child that he hated him. She admits the likelihood that the verbal and psychological aggression was probably witnessed by the children. She alleges that as B was so controlling she found it hard to separate from him.

140. The Local Authority have described this period in some detail in their evidence. They allege B, A and her children all lived in extremely cramped conditions in a small flat. There were frequent adult parties when alcohol and illicit drugs were consumed, and the police were often called to break up fights. In September 2011 the NSPCC received a report that W had sustained a black eye, which was observed by a health visitor, during a party when a fight had occurred. The children would inevitably have been present during these episodes.

141. The Mother states that B allowed his former girlfriend, 4, to stay with them because, he said, 4 was homeless. In her statement the Mother alleges that she did not agree to this arrangement but B insisted. Previously the Mother had put forward a more positive view of 4, having recounted to the social worker that 4 was “a nice girl who helped look after the children”. It is recorded that in October 2011 4 threatened a health visitor on home visits when the latter asked how W had sustained a mark on her hand. In her statement the Mother asserts that she never left the children alone with 4, although she did leave them in the care of B and 4 together sometimes. It is notable the Mother has been inconsistent in her account of 4’s participation in the children’s care. Initially she spoke favourably of her; later, as she distanced herself from such an undesirable association, she became more critical of 4, and this change of stance appeared to be entirely tactical. 4 was subsequently convicted with others of the murder of a vulnerable young man who was tortured before he was killed, and she is currently serving a life sentence.

142. So concerned were the NSPCC about the conditions in which the children were living that in August 2014 they referred the family to the Social Services in Hampshire. Chief amongst their worries were the cramped and unhygienic conditions and the chronic domestic strife.

143. In June 2015 Z suffered a series of three relatively minor head injuries over a period of two days. Z’s health is vulnerable. She has ventricular septal defect, a hole in the heart, and weakened lungs. She is prone to respiratory disorders, such as bronchitis. She tires easily. She has significantly delayed development in speech and mobility. The Mother delayed in obtaining medical attention for Z until the third occasion. At the hospital Z was found to be pale and suffering difficulty in breathing.

144. The Mother and family moved to Kent Folkestone and were housed first with F’s grandfather, then with F in a house, then, when that property was repossessed by the landlord, in bed and breakfast accommodation, , with F, which was very crowded. She was encouraged to apply for better housing, but delayed in filling in the forms. She has poor literacy and needed help, but showed little initiative in seeking it, so the family remained in one room until they moved to a maisonette on 16 June 2016, with one intervening move.

145. X did not attend at school between June 2015 and February 2016. In her statement the Mother said that when she had moved to Kent Folkestone she had tried to get X into school but there were no places available. He was significantly educationally delayed: he could not read or write. X is deemed by his school now to be a bright child. The Mother has in the past described him as having ADHD but no sign of that disorder has been observed since he has been in foster care. He was probably very bored without structured activity and it is most unlikely the Mother, given her intellectual limitations, was able to stimulate or occupy him adequately, thus he may well have been restless and fidgety.

146. There is evidence of conflict between X and W. The latter has been recorded as being very readily critical of her younger brother. T, W’s foster carer, noted how quickly W called X a liar when the younger child made a joke about expecting to be given a horse for Christmas. Later when T explained this to W she was remorseful. My impression is that X became the family scapegoat but also that the Mother’s criticism of him reflects her own limited capacity to meet his emotional needs and her tendency to evade responsibility and project fault on to others.

147. H, the deputy head teacher of the school and who is also the pupil welfare and safety officer, has got to know W when she joined the school in September 2015 and X when he joined in February 2016. In her role she got to know them both, especially W, very well from daily contact and reports from other teachers. Her evidence of their circumstances was very detailed and reliable. Both X and W regularly came to school smelly and dirty. When the Mother was asked about it, she said that it was difficult to keep them clean in the bed and breakfast. Washing facilities were available and I heard evidence from the management, which I accept, that there were other children who lived in the bed and breakfast accommodation but they managed to remain clean.

148. 1A observed that Mother would always have tobacco, a new phone and her hair regularly cut and dyed whilst the children were kept in dirty, ill-fitting, old clothes. The Mother admitted, incidentally, that whilst she was having her hair cut and dyed she left the children in F’s care. Their hygiene was neglected. W admitted to the social worker in September that she had not brushed her teeth for almost two weeks. X soiled himself at school sometimes. When he was cleaned by staff they found dried faeces on his bottom and legs, obviously more than a day old. The Mother claimed that it was difficult to keep him clean in bed and breakfast accommodation and she was advised to use baby wipes, but the problem persisted.

Previous allegations against F

149. In 2015 the Mother formed a new relationship with F. There have been two previous allegations of sexual and physical assaults on others made against F in the past, neither of which have resulted in any charge, convictions or findings against him. They include sexual abuse of a minor, a younger cousin, X1, aged ten or eleven, in 2004 when F was fourteen ; allegations of physical and sexual assault on a former female partner, N, and aggression against her six-year-old child, 5 in 2014. Of the latter F said that the allegations were made maliciously. The child concerned was made the subject of a child protection plan.

The relevance of the previous allegations

150. They are relevant only if they are proven by the Local Authority on the balance of probabilities, to be true. Unproven allegations cannot be treated as facts. F denies them all. I have not heard evidence from X1, N or 5, but I have heard F’s accounts of these allegations and I must evaluate their credibility. They are relevant: (1) to his credibility as a witness; (2) to the likelihood of his alleged assault on W with an the airgun, and the sexual abuse of X and the other children; and (3) whether he has a propensity, as was alleged during interview by the officer investigating allegations of N and 5, of preying on vulnerable women with young children.

Allegations regarding X1

151. The police report states that the cousin in question, X1, alleged that F had taken him into his bedroom, had put something up against the door to prevent entry by anyone and had forced him to put his mouth on his penis. F had then put his penis, referred to as his “widger”, in X1’s bottom. He was too scared to report it because F threatened to beat him up. Eventually he told his mother and the matter was reported to police. X1 was interviewed under the ABE procedure. No transcript was provided to this court. He was examined by a paediatrician. He told the doctor that F “did it every time he came to my house” and Q agreed to bring F to the police station where he was interviewed under caution, accompanied by an appropriate adult, and he denied the allegations.

152. X1 was interviewed under the ABE procedure, recorded on VHS tape, kept in deep storage by the police. The court directed disclosure of this material on 13 January 2017 but the police did not respond until 24 February 2017 and there was no information as to how long it would take to transpose it on to a DVD for replay in court and to produce a transcript to enable F to give counsel instructions. So on the last day of the hearing I could not allow any further delay, albeit that the evidence may have assisted the court in assessing the credibility of X1’s allegations.

The police interview of F re. X1

153. He was only fourteen years old, his mother accompanied him and he declined the offer of a solicitor because he said he did not need one. The allegation was put to F and he said that he had gone to X1’s room only to see if he was, X1, coming out to play. He denied ever sexually assaulting him or threatening him. They played a game of tag or “had” in a local park and they had never fallen out. They normally got on well and he could not understand why X1 had made this allegation. X1 had alleged that F had made him walk across water. They had walked across a stream using logs.

154. In his evidence to the court F denied that he had ever seen X1’s room, and when he was reminded that he had said that in interview, he cavilled over the difference in meaning of going to a room and going into a room. He said that the allegation made against him was quite different, that he had put a pen inside his cousin, and that he had been assisted in doing this by friends. When recalled later in the hearing, after disclosure of his police interview concerning X1, he also said that X1 had alleged that he had put a toothbrush inside him. He explained that these allegations concerning implements had been made to 6, his sister, who had passed them on to F’s father. His father and he had then visited 6 and X1 to sort out the allegations. Then, according to F, subsequently X1 made allegations to the police which did not mention the misuse of a pen or a toothbrush.

155. When F was interviewed by the police, despite the caution, he failed to mention that X1 had made various allegations. The significance of the caution is that it contained not only an explanation of his right not to say anything but also a warning that if he failed to say something in interview which he later relied upon in court, his failure could be held against him. That in my judgment is significant in the context of this case, for he has mentioned things in this court which he did not mention in interview, as I have already said. Although he told this court that he struggled to recall details from twelve years ago, he says he has remembered these other allegations now. This account was inherently improbable.

156. In the police interview he denied the allegations. Had X1 made very recent allegations which were inconsistent with the current one, he would have recalled that readily and mentioned it to support his case. F said that the allegations were made a few weeks after he had played football with X1 in the park. He said that later he and his mother made a complaint against X1 to the police. He also said that X1 had retracted the allegations, admitting that they were lies, and he gave various dates for this retraction, ranging from around the time of the original allegations up until just three years ago. There is no police record at all of such a retraction. F has never previously given such an account to anyone within these proceedings, nor is such an account in the police record. There is no record of any complaint against X1. When this was pointed out, he explained that it occurred a long time ago and he had forgotten the details. I found this hard to believe.

157. He had been asked about this matter by 1A, the allocated social worker, and was able to give her an account which was at odds with his present account. To her he said that there had been sexual contact between him and his cousin but it had been consensual, and 1A made a note of this contemporaneously and confirmed the accuracy of her note in oral evidence. F claimed that 1A’s recollection was wrong, but I am satisfied that she was accurate.

158. He sought to portray X1 as a fantasist and schizophrenic eleven-year-old, “zombified by Ritalin”, who had made this story up for no obvious reason. The medical report on X1 makes no reference to schizophrenia. It describes X1 as an immature child who spoke in a babyish manner, who still played with toys, who behaved in a silly way, who easily got upset and emotional and who struggled at school with literacy and numeracy.

159. The police recorded that another person, his name redacted, aged fifteen, who claimed he had been present with X1 and F the park referred to earlier where the events were said to have happened. He claimed that X1 had made up the allegations to cover up for his having been caught involved in some mutual penis touching with another cousin. The police decided to take no further action against F.

Conclusions

160. The Local Authority are entitled to rely on the evidence of F to prove the allegation. It is undisputed that F had the opportunity to sexually abuse X1 as the latter described. It is undisputed that X1 gave a credible account of sexual abuse by F. I accept 1A’s evidence that F admitted a sexual encounter with X1, because I cannot see why she should lie about this or have been mistaken in her recording of it. It is unlikely, as the other boy suggested, that X1 would have falsely accused F of sexually abusing him to cover up for his being caught in sexual activity with another boy, for the simple reason that the former allegation could not cover up the separate latter incident. I found F’s attack on X1’s credibility entirely unjustified, as shown by the independent medical evidence. It went beyond a mere denial, it was an outright character assassination. This made X1’s account more likely to be true because the attack on his credibility was so untrue. Whilst F does not have to prove that X1’s allegation is untrue, I found his account too improbable to believe, and I further find that the only reason he lied was in order himself to cover up his own guilt. On the balance of probabilities I find X1’s allegation that F put his penis in X1’s mouth and then in his bottom true.

Allegations concerning N and 5

161. In 2014 F had a three-month relationship with N, who lived with her child 5, age six. N accused F of punching her hard on the right arm, causing a bruise. She also alleged that when she had sexual intercourse with him and allowed him to put his penis in her mouth he would grab her hair painfully and pull her head down by her hair. She would tell him not to do this but he persisted. She also alleged that during intercourse he would bite her painfully on her nipples, which she asked him not to do. N made a written witness statement supporting her allegations. She said that she had previously been in an abusive relationship and that F was also abusive. She felt hurt and stupid for having entered yet another abusive relationship. She alleged that F had been jealous of her demonstrative affection for 5 and had called the child a “spoiled cunt” which had upset her. She said that on 24 July 2014 when she and F were staying at his parents he punched her on the arm with his left fist, saying: “If it was the right one, it would have hurt more.” He suggested getting foundation cream to disguise the bruise caused by the punch. She related that 5 had confided to N’s mother that F had hit her. She then related how F would bite her on her nipples and on the inside of her elbows during sexual intercourse after she had asked him not to do this. She recounted how she consented to having oral sex but objected to his pulling her down by her hair as it was painful, but he ignored her. She said it made her feel cheap and aggravated her low self-esteem and made her feel depressed.

162. After the relationship was over she said F’s sister threatened her in a text message: “You hurt my brother and I’ll hurt you.” In passing, I find it noteworthy that A has also said that F’s sister 7 had threatened her with harm if she did not protect F from the allegation concerning X.

163. She was ashamed for having entered yet another abusive relationship so did not report the assault at once to the police. However, when her sister saw the bruise she broke down in tears and decided to report it. As 5 was on the child protection register she reported these matters to Social Services and they advised her to report it to the police. 5, when interviewed, said that she saw him, that is F, punch her mother on both arms and that he had punched her too on the arm. He also pulled her hair when she was asleep on the sofa, dragged her across to another sofa and punched her, and she had lost some of her hair in the incident.

The police interview of F regarding the allegations concerning N and 5

164. This took place on 13 July 2014. F was accompanied by JB, solicitor, and 8, an appropriate adult. It was said that this is because F was a vulnerable adult suffering from ADHD. Although there is no medical evidence before this court to support that view, F said it was so and no-one has disputed it. His condition did not appear to affect his ability to answer the questions as fully as he wished in this court. He was cautioned. He did not have to answer questions; if he did, the answers would be recorded; and if he failed to mention in interview anything which he later relied on in court that failure could be held against him. He said he understood and was willing to answer questions.

165. He stated that 5 had caused the injury to N’s arm and not him. He said that 5 had been bullied and taunted at school by her peers so he had taught her how to fight to defend herself. He said that 5 then “used her mother as a punch bag” to practise what he had taught her, and the mother let her. He witnessed 5 hitting her mother about thirty times on her arm and her mother did nothing to stop her. Nor did he. In this way the mother suffered the large and painful bruise to her arm, which she alleged had been inflicted by one hard blow with F’s left first in her parents’ garden.

166. He said 5 punching her mother was witnessed by his brother P and friend, 9. I have not heard from these people, nor read witness statements from them. Their evidence has not been tested by cross-examination, and this gives cause for considerable caution in weighing their hearsay evidence. F said that he did not have time to ask them to give evidence. This was not so, and although I must not speculate about their evidence I found his explanation for not calling them unconvincing.

167. He was asked whether he and N went to a chemist where the bruise was noticed by the assistant and the mother said it had been caused by him in a play fight. He denied that he had been there. 5 was the subject of a child protection plan. He said that N had accused him of bruising her arm because she did not want them to think that 5 had done it. He believed in this way that N was trying to prevent the Social Services removing the child from her care. He admitted that N had put foundation cream on the bruise to disguise it for the same reason.

168. As regards the allegation of biting her nipples and her elbow during sexual intercourse, he admitted the former but said that it was done consensually, and as for the latter he denied that. He said that her ex-husband who had previously been extremely violent to her was once again sleeping with her and that he must have caused the injury. As regards pulling N’s hair during the act of fellatio, he denied that.

169. He denied assaulting 5. Earlier in the interview he had said that he and 5 had got on well, they had a healthy relationship with only silly arguments when it came to bedtime. He left all the disciplining of the child to the mother, who was indulgent, insufficiently firm or consistent and ineffectual in controlling the child. To discipline her, N would put 5 on the naughty step. She did this for refusing her meals or smacking her mother, which she did quite often. Thus he was saying in effect that whilst the mother allowed 5 to punch her hard thirty times on the arm, she would punish her for a mere smack. He stated that the child had lied when she accused him of hitting her. He said that she was an habitual liar. This progressive denigration of 5 was a foretaste of a very similar attack that he made on the character of X when interviewed under caution concerning X’s allegations against him. He admitted calling the child spoiled but not a spoiled cunt.

170. He said that N had made false allegations against her ex-husband which had caused him to be prosecuted and punished, and she was now doing the same against him to be rid of him. That conflicted starkly with the other allegation made in the same interview that N had resumed a sexual relationship with that violent husband. F told the police and this court that N and the child had lied. As regards the sexual allegations, it was consensual. He stated that he had a good relationship with the mother and the child, had been helpful and supportive, for example by taking the child to school regularly.

171. He told this court that he believed the mother had made up the allegation, had coached the child to make up the allegation against him to enlist the Local Authority’s help to have her relocated to Ireland to resume cohabitation there with her former husband who had previously been violent to her. I found it was inherently unlikely, indeed preposterous, that a woman would concoct a false allegation of violence and sexual assault against F and coach her six-year-old daughter to make false allegations against him in order to be helped to leave a supportive and helpful partner, as he had described himself, to reunite with a violent one, and had been able to enlist the Local Authority’s help to do so.

172. I found N’s account far more likely to be true than his, for these reasons: (a) I found the story of teaching 5 to fight and then her mother allowing the child to use her as a punch bag, whilst neither she nor F trying to stop her, so that N was seriously and painfully bruised, too far fetched to be true. It is unlikely that he would have taught the child to fight. One only has to ask: “How do you do it?” It is unlikely that her mother would have allowed herself to be so badly hurt without stopping the child. This was a mother who, according to F, would punish the child for simply smacking her; it is unlikely that he would have stood by and let the child hurt N unless he wanted it to happen.

173. I found his explanation for the mother falsely alleging that it was he who had hurt her again too preposterous to believe. Admitting that she was again with a violent man would have had the very effect that she herself adverted to in her witness statement, namely that she had acted foolishly and had again failed to protect her child. Her willingness to admit this against her own interest supported the veracity of her own account and tended to refute his. I found his explanation of why N decided to use foundation cream to cover her bruise unbelievable. It is far more likely she did so, as she said, to hide evidence that he had injured her. I found his explanation that 5 had lied about him very unlikely because it would be so unusual a thing for a child with whom he got on well to do.

Conclusions

174. The effect of these lies, as I found them to be, was to support the accounts given by N and 5, which I found to be inherently likely to be true. I find therefore that their allegations of F were true, that is he assaulted N physically by punching her on the arm, that he sexually assaulted her by biting her nipples and pulling her head down by the hair during fellatio, and that he punched 5. Accordingly, I conclude from these facts that he has a propensity to lie and accuse others of lying to defend himself against allegations that are made against him, and that he has a propensity to sexually abuse vulnerable people where the opportunity arises.

Additional relevance of F’s account

175. X has also made allegations against F of the latter putting his penis in his mouth. F admitted to this court that his sexual preference was for oral sex, and there is a striking similarity therefore between the three quite separate allegations. The Local Authority contends that this is a factor which tends to support X’s allegation against F. Another striking similarity between all three allegations is that in each case F alleges that a child has made up allegations against him. In relation to 5, and as it will be seen X, he suggests that they may have been coached to do so.

176. The information concerning X1, N and 5 was given to the Mother by the social worker on 5 November 2015. The Mother responded that she was aware of the allegations but did not believe any of them. In her statement made in September 2016 her account of F had changed. She said that she was informed about F’s past by both him and his mother Q. They denied the allegations and she accepted their denials. However, she later found that F when frustrated tended to be angry and aggressive (as had N). Although, she says, it was not directed at her or the children, she found it frightening. On such occasions she would leave the room, taking the children with her, until he had calmed down. She says that she would have left him but effectively prioritised her own needs for love and affection above the need to keep the children safe.

177. In their evidence she and F minimised this tendency to aggression, stating that there was only one occasion when he showed anger. He became frustrated with his mobile telephone, which was malfunctioning, and threw it on the sofa. I could see no reason why the Mother should have misrepresented the situation in her written statement, nor how her words could have been mistranscribed by her solicitors when they drafted it. This short statement was signed by her as being true. I disbelieve her evidence and his regarding his tendency to anger. I find that it was as described by the Mother in her statement. This tendency to poor anger management was alleged to have been a characteristic during his previous relationship with N, and although he alleges that she had made the allegation maliciously, having read her account and the police report, as I have said, I found that they were likely to be true.

The allegations in the Scott schedule

178. All findings of fact that I have made so far must be taken into account by the court as a part of the totality of the evidence when considering these further allegations. I shall take the allegations in chronological order.

Number 3: W shot by F with an airgun

179. A in her statement says that F was playing with an airgun at their home when he shot W with a pellet in the stomach. On 28 September a teaching assistant, noticed when she was changing for swimming that W had suffered a bruise to her hip. When asked how it happened she stated that she was clumsy and did not know. W then showed the teaching assistant another mark on her lower back. Then she stated that F had shot her there with a BB gun pellet. This was reported to H, the deputy head teacher, on 29 September 2015. She spoke to W, and W recounted that F had been in his bedroom, he had got the BB gun and shot her in the back last week. They were standing next to the bed and he had told her to put on her Mum’s jacket and then had shot her. She did not want to say that it hurt as she gets into trouble for being “mouthy”. H asked her if she had told her mother and W said that she had, and her mother told her that she should not have let F do it.

180. H liaised with 1B from the Social Services Department. At a joint visit by a social worker and DC Mitchell, both spoke to her. She said she got on well with F and did not want to get him into trouble. She said they had been playing a game. She told Detective Constable Mitchell that F had asked her to go into the bathroom and told her to put on her mother’s jacket and then had shot her. The police report made by Detective Constable Mitchell states that W became upset when she recounted this incident. She said that the injury had hurt at the time but she had not wanted to say anything as she “is always getting into trouble for being mouthy”. Later she told her mother, who became cross with her, telling her that she should not have allowed F to do this to her. W said that at the time of the incident the Mother was not present.

181. She gave a more detailed account. She said: “We were playing. I was standing in Mum’s and F’s bedroom playing the shooting game. It’s a BB gun with little white bullets. He was having fun with me. It hit the bottom left of my back and made me cry.” She said that he, F, had “belly flopped” her to try to make her feel better, but it did not work. She said that later that day, playing the same game, he had shot X, but he had protected his leg with a towel. X was hurt on the arm.

182. When the Mother was spoken to, she confirmed that there were BB guns in the house, kept in her bedroom where the children were not allowed to enter. They were not locked away and kept loaded (highly careless with young children around). She recalled an incident when she had heard W cry. She stated that she had not been aware that F had shot W. She seemed to think that Y, then only three years old, had been responsible. She denied that W had ever mentioned to her that F had shot her. She said that F suffered from schizophrenia, which is not true, and Asperger’s Syndrome, which is possibly true, but was brilliant with the children. The Mother reported that the air guns had been removed from the home to F’s parents’ address. In her recent statement A said that when she was questioned at the time she panicked as she did not want to lose the children. She lied and denied that F caused the injury and alleged instead that X had done it. She may have meant Y; that is who she is recorded to have blamed.

183. F was questioned by the police and social workers. He denied using the BB gun in the house or hurting W.

184. X was present. He was spoken to separately. Initially he claimed to have shot W himself and that no-one had told him to say it. This statement took W by surprise ,as the officer noted that she looked puzzled, but then X said F had done it. It was a clear example in my judgment, incidentally, of X being fully conscious of the difference between truth and lies, and furthermore that he had found it difficult to tell a lie and felt relieved when he told the truth. Detective Constable Pegler told the court that her impression was that X had been told to say it was he that fired the BB gun. She felt that X had sought to bolster this statement by saying that no-one had told him to say it, which to her mind strongly suggested the opposite. Then feeling uncomfortable about giving a false account, X had told her that F had done it. I entirely agree with that observation.

185. F was seen again by Detective Constable Pegler, who warned him of the danger of keeping BB guns at home. He accepted her advice. F later told the social worker 1A that X and Y had been to blame for the shooting. His mother believed this too. Q, F’s mother, told 1A during the viability assessment that X had shot W. She had not witnessed it therefore probably had been told this by the Mother or F, or both.

186. The sequel to this event was that W went to stay with F’s mother, Q, who I have seen myself at court. I only had a brief opportunity to form an impression of her but found her to be a very strong personality with very fixed views which she expressed in no uncertain terms. I could readily envisage her as being a formidable adversary in any dispute. W told 1A that both A and F had been angry with her and had sent her away. W is very close to her mother so this rejection would have distressed her greatly. A was asked about this later. She alleged that W had been so upset that the police and the Social Services had interviewed her that she had felt she needed some space away, which was manifestly an example of the Mother projecting blame on to the professionals whose job it was to protect her children. I found it was significant that after the incident H found W a lot less open in talking to her. When W was referred to drawing and talking therapy, for which it took Mother a long time to give her consent for W to receive, W remained guarded.

The Mother and F’s evidence

187. The Mother told the court that she had been downstairs in the shower when the incident occurred and when she came upstairs she found W crying, X watching TV and F making dinner in the kitchen, and Y, aged three, holding the BB gun. The Mother explained to the court that this is a battery powered pistol that can fire tiny white pellets with such force that if they hit someone who bruises easily, like herself, the length of the courtroom away they would leave a bruise. If it was fired at close range, as must have been the case here, she explained that it could cut exposed skin. W had a red bruise on the base of her back which the Mother treated with analgesic cream. Although she did not see the incident, she believed that only F or X could have been able to shoot W.

188. She said that she never asked W how she came to be shot and never challenged F. I found the former of these two assertions very unlikely to be true, given the potential dangerousness of what had happened. Thus I found it far more likely to be true that W did tell her, as indeed W said she did. Eventually, when cross-examined by Miss Hendry on behalf of C, she admitted that she did ask W who shot her and W said it was F. The Mother admitted that she had been shocked by W’s reporting that she had been shot and hurt. She also revealingly admitted that she was further shocked when she heard that W had told her school teachers about the incidents. She told the court that she had not wanted anyone else to know about it, she had wanted to deal with it herself because she did not want Social Services to become involved.

189. However, although she knew that F had acted in a very dangerous way towards her child, she did nothing to protect her children from further harm at his hands. By then the information she had of the risks he posed was mounting steadily. She had been warned by 1A that allegations had been made against him of sexual abuse of his previous partner and of a child, and of violent assault. She admitted that she herself had seen how angry he could become when frustrated, so that it scared her sufficiently to remove herself and the children from his presence when it happened. It seems that the Mother did not take the BB gun incident seriously at the time. She and F played with the guns, shooting each other. They kept the guns loaded by their bedsides. She took no effective action to protect her children after one or possibly two of them were shot at home by F simply for amusement. There was a continuous failure to protect her children from harm.

190. F told the court that as he was cooking in the kitchen at the time of the incident he did not know what happened. He did not question the children, he left it to the Mother to attend to W, who was crying. He believes that W is lying when she described how he shot her. She has made up the story of his requiring her to put on her mother’s coat before he shot her, and she has also made up the story of asking X to wrap a towel round his leg to protect him and that he missed and shot him on the arm. He could not explain why W, with whom he got on well, should want to make up this serious allegation against him.

Conclusion

191. There is no dispute that W suffered an injury from an airgun pellet fired at close range in a small bedroom at her lower back. She identified F as the perpetrator and now the Mother, who initially sought to defend F, corroborates this; although she was not present, it suggests that F confessed to her. W’s account of her mother and F being angry and sending her away to Q’s home is consistent with what actually occurred. The Mother’s denial that this occurred and that W wanted space away from investigating police and social workers is inherently implausible for a child.

192. I remind myself again of the strictures in R v Lucas [1981] QB 720, that innocent people sometimes foolishly lie to bolster an honest defence, but F’s later attempt to deflect blame on to X and Y was obviously an opportunistic attempt to cover up his own guilt. This view is supported by X’s obvious attempt to protect F by initially taking the blame upon himself. I agree with DC Pegler that X’s assertion that no-one had told him to say this strongly implied the very opposite. This is confirmed by X then admitting that F had indeed been the person who had shot W.

193. In summary, W’s clear account of being shot by F is supported by: (1) X’s account; (2) clear evidence X was coached to cover up for F by taking on the blame himself; (3) the Mother’s highly improbable account of laying the blame on a three-year-old Y, a transparent further attempt to protect F. I find that of all the accounts on offer, W’s was infinitely more likely to be true.

194. I conclude therefore that item 3 on the schedule is proven: (1) that F shot W with a BB gun; (2) I further find that W was unfairly punished by being banished temporarily from the home for reporting the assault. It had the effect of making W wary of talking to professionals, as H in her evidence thought was the case. This was both emotionally abusive and unprotective parental behaviour. (3) I find that F was willing to cast blame on the children, X and Y, and the Mother on Y, to protect F from blame. (4) The adults’ interests were prioritised above those of the children.

Item Number 5: On or before 29 October 2015 the Mother asked F to shave W’s head which was infected with head lice which distressed the child

195. When W came to school with a shaven head she was acutely embarrassed. She told the staff that her younger brother X had cut her hair. H is convinced that this was an impulsive explanation, given to cover her shame that her mother or stepfather had done it. The Mother later did admit that all the children’s heads and her own had been shaven to tackle the head lice problem. The Mother now states that when W had head lice the best way to deal with it was to shave her head. She therefore agreed that F should shave W’s hair without considering the emotional impact this would have on the child. F said that the Mother did it.

196. In her evidence to the court, the Mother gave an account which had never previously been put forward. She said that she, F and W had watched a TV programme about cancer research called “Race for Life”. This had depicted images of patients who had suffered hair loss. W commented that people lost their hair and either gave their hair for wigs or else wore wigs. She then said that she wanted to have her own hair cut off. After a short discussion, no more than five or ten minutes, F shaved off her hair. She said that deep down she had not wanted W’s hair to be cut off. The Mother felt so guilty about allowing him to do this she made him shave off her own hair too, in solidarity with W. She told the school falsely that W and all the other children and herself had had their hair cut off because of head lice. She now admits that as F and herself were adults and in charge of the children they were responsible for cutting off her hair, whatever W may have wanted.

197. F recalled the event. He said that W had persistently demanded her hair cut off and, contradicting the Mother, said that after an hour and a half Mother and he gave in. Mother shaved off her hair.

My conclusions

198. The Mother’s account, if true, makes the hair cutting incident significantly more serious. The account is far fetched. It is hard to imagine W, who the social worker described as loving her long fair hair, willingly having it cut off. This child, the social worker related, loved having it combed and dressed by her mother. It provided them with moments of intimacy and pleasure. Then, in the absence of lice, there would have been absolutely no reasonable justification for doing it. Placing the responsibility for the decision on W was tantamount to inverting the normal child/parent relationship, and if the story is untrue it is an attempt to falsely cast the blame on the child. If the Mother and F were willing to cut off the child’s hair after such scant consideration it implied total lack of understanding of the child’s emotional needs.

199. There is no doubt that W’s head was shaven by an adult and that it was done without regard for her feelings. The social worker told the court that is made W feel that she looked like a boy, embarrassed her and undermined her self-esteem. If head lice was the justification, there are less drastic remedies for head lice, including special combs, medicating shampoo and clean clothes and bed linen. It was obviously done by either the Mother or F. It is characteristic that one of them is trying to cover up his or her guilt. Regardless of which actually did the cutting, I find as a fact that it was a joint decision and a pursuance of the agreement that they were jointly responsible. Once again, the adults put their interests before that of the child and had no regard for the emotional impact on the child. In my judgment on the balance of probabilities W’s initial complaint was true and that F did the actual hair cutting. To this extent item 5 is proven.

Allegation Number 1: Between 4 December 2015 and 12 February 2016 F sexually abused X by putting his penis in his mouth on a number of occasions whilst they were at home. Allegation 2: During the same period he sexually abused the other children by putting his penis in their mouths on a number of occasions whilst they were at home

The facts: the origin of the allegation

200. On or around 10.00am on 12 February 2016 1A, the allocated social worker, took X out for a milkshake to McDonalds and then to the park as a part of some planned work to ascertain his wishes and feelings. He spoke of his favourite milkshakes. He was happy not to be in Hampshire any more as his Daddy, B, had been mean to them and had shouted at them a lot. He spoke favourably of life in the bed and breakfast and the food he ate there. He spoke of a routine of helping the Mother with washing up and of how much more helpful F was to the Mother than had been the Daddy. He had stated that he loved Kids Planet. The social worker asked which was his favourite slide.

201. Then unsolicited, he stated that: “F puts his willy in my mouth.” The social worker asked him to repeat what he had said, and he did so, word for word. She told him that what he had said made her very worried, as adults should not do that to children. She told him that she would like to tell the police. He was agreeable, said okay, so the police could tell F to stop. They then walked to the sea and threw some stones in. Whilst this was going on the social worker called the office on her mobile.

202. I comment that this was a spontaneous statement made by the child that came out of the blue quite unexpectedly. It appeared to be unambiguous and clear in its meaning. It was a most unusual thing for a child to say. It was possible that he had made it up or heard it or seen some pornographic material on TV which he had projected on to F. Equally, it could have been a frank account of something that had actually happened to him. Whatever the explanation, it had to be taken very seriously and demanded further enquiry. His hope that the police would tell F to stop what he was doing appeared to be a realistic expression of a natural desire to be protected from harm. It also suggested this was not fantasy but the report of a real experience. Taken at face value, it tended to support the conclusion that X had described an actual experience rather than fantasy or something he had seen happen on TV.

203. The social worker responded properly by not questioning him at all, recording what he said as soon as she could and keeping a careful note of timings, and setting up an investigation by the police which led within hours to an ABE interview. What X I found undoubtedly told her merits to be given considerable weight. In the final analysis it will need to be weighed against other relevant factors to see whether they undermine its value.

The cut nose

204. The social worker and X then went to sit on a bench to play I Spy. This was at around 11.00am and whilst there the social worker for the first time noticed that X had a cut on his nose and she asked him how he had got the cut. He said that F had told him to cut himself with a knife, and when X did not do this F took the knife from him and cut him with it across his face. X then said that F had told him that he hated him and wanted him to die. This is a most unusual thing for a six-year-old child to say and hence it is inherently unlikely that he would have said it unless it had happened to him. This was another entirely unled statement that, taken literally, meant that he had suffered significant harm at the hands of F. It had to be taken seriously and investigated. I attach considerable weight to that spontaneous statement too. Between 11.20 and 12.00 noon they went to Burger King and chatted about taking him to a children’s centre where there were toys they could play with. He put on a Burger King crown, Brave King X, and made no reference to the substance of what he had said earlier.

The pre-ABE stage of the investigation

205. In the car to the children’s centre the social worker told him that he would be speaking to her friends, police officers, at the centre. She reassured him that they would be nice people. She asked him to remind her of how she had introduced herself when she first met him, and he remembered that she had described her role as “to help me be happy”, she added “and keep him safe”. The police were waiting at the centre. They interviewed him. In her note the social worker states that X “disclosed to them”. The use of that word is to be deprecated; it implies that it had already been concluded that he had had a fact to disclose. At that stage it was still an allegation, an accusation that required careful investigation and, if necessary, a trial to find out whether it was true. The danger was that by regarding it as a disclosed fact the minds of the investigators might be prematurely closed to the possibility that it was not a fact at all or that it may have been misrepresented.

206. DC April Farmer and DC Maria Cutter arrived at the children’s centre at 12.20pm. I heard from Miss Farmer, an honest and frank witness, willing to admit her mistakes without making excuses for herself, and I found her to be a reliable witness. Miss Farmer took notes whilst they spoke with X, who was introduced to them by 1A. X described the sleeping arrangements at home in the B&B. He then explained that when the younger ones are at nursery he goes to the park with Mum and F.

207. He then said, unprompted, that F was naughty. Then he was asked what the ABE guidance calls specific closed questions to focus him on the relevant facts. These are regarded as the second best kind of questions, open questions being the safest, but at a cost of allowing the person questioned to go off at a tangent. DC Cutter asked X what F did when he was naughty, and X said: “He puts his willy in our mouths, in all of us kids’ mouths.” DC Cutter asked where this happened and X told her that it happened at home when the Mother was out. He was asked when it had last happened and he said 2 January, but then said that he had guessed that date. She asked whether it happened a long time ago or a little, and he said a little. X then said F did not say anything but then added: “F tells us to come to him, then he just does it.” He said he had seen it happen to all of his siblings and his cousins. He was asked how many times it happened and he said: “Hundreds”. He was asked: “What else happens?” and he said that F “squirts white in the toilet”. He confirmed that he did not like F. He had not told anyone else about it other than 1A, but when DC Cutter asked him if he had told Mummy he said yes, when she went out, she said she would ring up the police. He confirmed that F had cut him with a knife from the kitchen and X said that he does it to him the most and that he had not hurt his siblings. He was asked what F’s willy looked like and he said: “Big and hairy and feels disgusting.”

208. I comment: this conversation was not audio recorded. The accused cannot see or hear what was said by his accuser. The officer’s note taken at the time contains both direct and reported speech. There is a risk that unrecorded prompts or closed choice questions may have been used. Where detail is required from the witness it is best obtained when recorded so there can be no doubt of the provenance of the evidence obtained. DC Farmer also used the expression “disclosure” in describing X’s as yet untested accusations against F. There is therefore a need to be alert to the possibility that the police had made up their minds and closed off the possibility of alternative explanations - which should have been a part of the plan for the ABE interview itself.

209. The statements made by X provided new information. For the first time he alleged F put his willy “in all of us kids’ mouths”. This was realistically possible. F would have had that opportunity and X could have witnessed it, had it happened at home. He was a little vague on time and frequency, and at age six his grasp of the meaning of numbers may not have yet been fully developed. Hundred may mean simply many times. He was not yet numerate. He had barely started his primary education, he had not been to school at all since the previous summer. His account of F just telling them “to come to him and then he does it” sounds realistic and naturalistic. The greater detail given of this circumstantial kind makes it inherently less likely that it is fantasy or an account of something seen on TV. Its spontaneity makes it less likely that it was learned from something he had heard said.

210. It was argued the reference to cousins being in the group of victims is wrong – they lived in Hampshire and it is common ground were never around during the time that F lived with the family. On that basis X therefore is capable of making mistakes in his account. However, it is clear that F’s nieces and nephews, , were children X saw regularly, and he referred to F as Daddy and Q as Grandma and the nephews and nieces as cousins, so on this view he could have been accurate in his account.

211. His account of F squirting white liquid in the toilet is very specific and graphic. It was given in answer to an open question or very wide specific closed question which at the most suggested that something else of an unspecified nature may have happened. It is more likely to be an account of ejaculation than simply urinating because of the colour of the liquid and the proximity in account given to the sexual abuse which it would be reasonable to assume was done for sexual arousal and the gratification of an orgasm. His description of F’s penis was realistic. His account of telling his Mummy sounded realistic and natural, as did his account of the nose cut. Both statements were made unled and unprompted.

212. Overall, so far, X had given a spontaneous, realistic and persuasive account of events. His emotional response to them, of fear, dislike of the perpetrator and a wish to be protected by Mum or the police, were natural too. Caution in accepting them as truth is still needed, given that the interview process so far was not audio recorded. However, I am fully satisfied that the professionals involved conscientiously and diligently recorded what they heard accurately. The record was not verbatim and in so far as it summarised it may have missed out important items, but this needs to be balanced against the likelihood that the officers would have recorded everything of importance. They certainly recorded material which undermined the credibility of the statements, for example the reference to the cousins being in the group of victims. After this interview X stayed with the social worker; there was no further conversation about the matters alleged.

Interview of W

213. In view of the allegation about the other children having been abused, the police decided to speak to W too. Detective Constable Farmer recorded what happened in her statement. It is a summary of reported speech. At 3.25 hours they attended W’s school and she told them that F walked her halfway to school. She said that her mother, Dad (that is F) or an uncle collected her. She described the living arrangements in the bed and breakfast. She was asked about F. She said he was fun, a good Dad, but could not deal with “poo”. He sometimes looked after them alone when the Mother went out. She had no worries about F or the Mother. She did worry about X as he could not get used to them all sleeping in one room. He pooed himself at night. She was then asked a closed question: “Does F ever do anything naughty?” which she replied, verbatim: “No, he never harms us.” She described X as a bit hyper and naughty sometimes but not that naughty. She said that F and X got on okay. She said that if X was naughty he was sent to bed but nothing else happened, and she had never seen F or Mummy without clothes on.

214. I comment that this was a significant statement. It contradicted X’s assertion that F had sexually abused her or the other children but it supported his assertion that F was left alone with them when the Mother went out, giving him the opportunity to abuse any of them. It left open the possibility that X or the others were abused when she was not present or looking, or alternatively that she felt unable or unwilling to reveal the full truth for fear of the consequences. It has to be borne in mind that when he had shot her, that is W, with the air gun and she reported this to the school, she was punished for making the complaint. She now clearly knew that her mother, on whom she was emotionally and physically dependent, would deprecate her reporting any other misconduct of F. It is likely that she was protecting him this time, particularly if she anticipated that that is what her mother would want her to do. This anticipation would have been reinforced by the Mother’s reaction to the news of X’s complaint that F had sexually abused him.

Did the Mother influence W or X?

215. That afternoon X underwent a recorded interview. F was also at the police station being questioned under caution. It is highly significant that, even before the Mother could have known the detail of what X had said, she went to the police station and informed the police that X had lied to them. This may in part be explained by the fact that en route to the police station, before he even knew the particulars of the allegation, F had told the Mother that whatever X had said about him was untrue. DC Farmer then spoke to the Mother, who was then accompanied by P, who never once asked where her children were but was only concerned to know where F was and when he would be released. This is not disputed and strongly supports allegation number 6, which is the failure to protect.

216. F had been interviewed, he had been granted police bail on condition that he had no contact with the children and Mother. It was clear the Mother was very distressed at being required to separate from him. It also makes it more likely that W would have known and been influenced by her mother’s views when she spoke favourably of F on 12 February 2016. W spoke to 1C, a social worker, of her fears of being removed from the Mother’s care. She said that whatever X had said was a lie because she wanted to stay with her mother. 1A firmly believed that this was evidence that W had been conditioned by the Mother’s statements to believe that X’s allegations would lead to her removal from the Mother’s care. This seems very compelling, given the Mother’s clear and oft repeated views at the time, heard to have been expressed in front of the children.

217. When the police went to the home to collect evidence they took X’s electronic tablet. X was distraught. A offered him no consolation, but by her manner seemed to blame him: “Well, it’s not my fault,” she said. It put pressure on X to repent his allegations. The social worker had to console him. This behaviour on the part of the Mother was emotionally abusive behaviour and showed that the Mother was prioritising her relationship with F above the needs of the child.

218. It is also highly significant that on 13 February 2016 at 9.20am she attended the police station with all four children. In their presence she told Detective Constable Rebecca Thomas that X had woken up that morning crying and had said that he had lied. She said W had told him that he should not have done that. The Mother said that she believed him but could not help thinking that he had made it up. She said if X had lied she did not know whether she would be able to forgive him for everything that had happened. X went to sit on the Mother’s lap. DC Thomas thought that he was seeking comfort and reassurance from his mother. Detective Constable Thomas told X that she had seen the video of the interview and that DC Farmer would speak to him again. He shook his head. She asked him if he had anything else to say. He shook his head again. He was plainly very unhappy.

219. On 15 February 2016 the Mother came to the Social Services office with all four children to see 1A. In X’s presence she told the social worker that she did not believe X’s allegations. On 16 February the Mother told another social worker, 1D, that X’s allegations were entirely untrue and fabricated. She said X had made similar allegations against a former partner. Extensive enquiries have revealed no record of this. Then inconsistently she claimed that X overheard some talking on a film as they all live in one room. I comment that this could hardly account for the graphic detail he gave of F’s behaviour and the anatomical detail.

Mother’s evidence: nose injury

220. The Mother gave the court a contradictory account of her reaction to the evidence that F had deliberately cut X’s nose. Having said that she believed everything that X said, she went on to say she did not believe that F had cut X’s nose. She said that X had sustained a cut to the left side of his nose by falling on stony ground. This may have occurred but it would not have accounted for a cut to the bridge of the nose, which was the cut which had concerned the social worker. She then said that they did not possess a knife in the B&B and therefore X could not be right, but X never specified where the incident occurred or what kind of knife it was. It sounded that the Mother was finding reasons for discrediting X’s story.

The Mother’s evidence regarding sexual abuse:

Her initial reaction to the allegation

221. She admits that after she heard of the allegation against F she stated that she did not believe X. She told 1A, the social worker, that X was a liar and that F would never do such things. She asserts that she told her father this on the telephone in front of X, which may have led to him stating that he had made it up. Her father in his witness statement, made on 24 September 2016, refutes that. She admits that she took X to the police station with the other children to tell the police that he had said that he had made up the allegations.

The attempt to implicate B

222. B reported that he received a text message from the Mother via a mutual friend, E, asking him to accept responsibility for the alleged abuse of X so as to protect F. A was arrested on suspicion of perverting the course of justice. In her initial interview under caution, accompanied by a solicitor, by DC Farmer on 21 September 2016 she denied doing this. She suggested that B had arranged for the text to be sent to himself to get her into trouble in revenge for leaving him. Subsequently she wrote a letter to DC Farmer retracting this account, which led to a second interview. She has admitted that the first interview contained many lies. She asserted in the letter and interview that she had in fact asked a friend, E, to forward a text from her to B asking him to say that he was the one who had touched X up so that F would not get into trouble. She said that it was B’s plan and that he put her up to do this in a desire to protect his cousin, F.

223. In her oral evidence she now states, in her evidence on 15 February 2017, that it was she who sent the text to B, albeit at his suggestion. She attributed two contradictory motives for doing this. The first was that B felt guilty about his treatment of her in the past and sought to redeem himself by accepting the blame for X’s allegations, and if this stratagem had succeeded it would have left F free to return to the Mother and continue to abuse the children. There would have been little redemption in that. Until this consequence was pointed out to the Mother, it had not occurred to her. The alternative explanation given by the Mother was that B wanted her to ask him to take the blame so that he could later deny it and blame her for making up the story so as to get her into even more trouble. But there was no need for him to do this as she was in enough trouble already.

224. In any event, B denies that he had anything to do with the text from the Mother. He said that he had no wish to help F who he regarded with some disgust for having taken his girlfriend from him.

225. The Mother’s story is most improbable. Had B wanted to take the blame he could simply have surrendered himself to the police. But it is very unlikely, as B himself asserted, that he would have wanted to face the risk of a lengthy prison sentence to protect his guilty cousin. It is very unlikely that he would have been a party to such communications as they could have incriminated him. It is far more likely, and I so find, that the Mother sent this text in a desperate attempt to protect her lover, F, whether on her own initiative or at the suggestion of F or his family. In her letter to the police, sent after her first interview on 21 September 2016 which led to the second interview on 21 October 2016, she asserted she had been intimidated to say things against her will.

226. Towards the end of the first interview she was asked why she had said previously she could not believe X’s allegations against F, and she asserted that she now did believe X but at the time she admitted: “I knew I thought more of F than my own son and I regret that. I just wanted someone to love me and that’s what he was doing.” In the whole of her evidence that was the clearest admission that she made that she had prioritised her own needs above those of her child. In her desperation she appears to have interfered with a material witness and attempted to pervert the course of justice, both by putting pressure on X, a principal witness in the criminal investigation, to retract his allegations against F, and then by seeking to persuade B to” take the rap” for his cousin. She told the court that after a few weeks she began to believe X’s account.

227. However, on 20 April 2016 she gave the police a statement, signed as being true, in which she stated that X had told her that 1A had told him to say what he had said about F. She also sought to further discredit X’s account by telling the police that F never had an opportunity to sexually abuse him or the other children, that X had lied before about other matters and that X may have seen pornography on the television whilst he was watching it at night, which may have inspired his allegations. This last suggestion was implausible as the pornography she described involved only male masturbation and did not portray an adult male putting his penis in the mouths of children. She has since retracted this suggestion. She has now stated that X had volunteered to her that F had “put it” in his mouth some time before her move to her current address, which predated the interviews in September and October.

228. I comment that the standard of care required of the Mother is set by section 31 of the Children Act 1989. It is the care that it is reasonable to expect a parent to give X, age six. If a parent is told of suspicions that her partner has sexually abused others, it is reasonable to expect her to be cautious in allowing the suspect to live with her and her children or to be left alone with them. If that person has been accused of shooting a child with an airgun it will be reasonable to expect the parent to exercise similar caution. I find that the Mother failed to take any reasonable precautions to safeguard her children from F, and on the contrary, she seemed bent on protecting F from allegations made against him. It is reasonable to expect the parent of a child who makes an allegation of sexual abuse to take it seriously and keep an open mind about its truthfulness. As it will require investigation it is reasonable to expect the parent to support the child emotionally through this difficult process. The Mother manifestly failed to do either. On the contrary, her behaviour was likely to cause X distress and anxiety and a sense of rejection. 1A opined, and I agree, that it was likely to make him less willing to report abuse in the future and hence make him more vulnerable to its occurrence. To this extent I find item 6 proven.

Video recorded interview on 12 February 2016

Admitted breach of ABE guidelines

229. On that day Detective Constable Carter and Detective Constable Farmer interviewed X, the former asking the questions. DC Farmer agreed that they had been instructed by a superior to get on with the interview, leaving them no time to plan it properly. She admitted that they had failed to observe the ABE guidelines in four important respects; she made no excuse and could offer no explanation. One possible explanation that emerges from the interview itself is that X was so willing, ready and able to give his account, in their eagerness to hear it they forgot these fundamentals.

230. Planning: although the importance of planning the interview is stressed in paragraph 2.1 of the guidance, none was done and there was no record of a plan, as required by paragraph 2.222. Intermediary: no consideration was given to the need or otherwise of one, as required by paragraph 2.94. At the outset of the interview the guidance provides for the establishing of a rapport with a child by talking about mutual topics and importantly explaining ground rules. As the guidance says at paragraph 3.12, the interview is an alien situation. What will happen will need explanation. This was done, albeit very briefly. As the interview proceeded it became apparent that X had picked up the ground rules without questioning – video recording, et cetera – which showed that he was an intelligent child.

231. The evidential effect of failure to address the difference between truth and lies

232. The officers failed altogether to establish whether X knew the difference between truth and lies. It was admitted that this failure went to the heart of the reliability of the ABE interview. The stage at which the witness is asked to distinguish truth and lies is an important safeguard and guarantee of reliability, but it is not the only one. The video recording itself gives the court a chance to examine the child’s statements in detail. The quality and pace of the questioning is a very important feature of the interview. In this case it was good. The surrounding evidence gives the court a chance to check the facts. It is clear from extraneous evidence, for instance regarding the BB gun incident and a subsequent interview on 26 February 2016, that he, X, did understand the difference between lies and truth because he admitted to telling a lie. Ultimately the court’s assessment of the substance of his account is the most important test of whether this is a made up or truthful account. It is important to have these failures in mind, however, when evaluating the weight to be given to X’s statements and I have kept them in mind as I have done so.

233. In this interview X seemed relaxed and happy to talk to the officers. It was a relatively short interview, fifteen minutes or so, and there was no sign that X ever tired or flagged. He was asked to give his name and age, he was told that the purpose of the interview was to have a little chat with him. He was reminded of two cameras on the wall and knew that they showed him and April Farmer. He was told of the microphone, it would be recorded on DVD. He seemed to understand all of this. He was told that 1A was a social worker. He agreed he knew her role was to keep him safe. He went through the members of his family and the living arrangements in the home and in the bed and breakfast. I am fully satisfied that X very quickly grasped the purpose of the interview. He plainly understood that it was being recorded. He was familiar with the technology of DVDs. He knew what he was going to be asked about, as became very quickly apparent.

234. I am fully satisfied he knew the difference between truth and lies, as was demonstrated over and over again before, during and after this interview, as I have commented in the course of this judgment. So I conclude that although the truth and lies routine, important as it is, was not gone through, its lack of itself did not substantially impair the quality of the evidence obtained in the interview.

235. The initial questions about his family and home were concordant with the ABE guidance in that they helped put him at ease. What is notable is that it was X who hastened the interview to reach its point: an investigation of his allegations. Having spoken about his family and his home, then on page 4 of the transcript he was asked: “Well, I remember you said to me that Mum and F take you to the park when everybody else is at school at the moment, yeah? What else did you say that F does?” This was a specific closed question but in no way a forced choice or leading question. X’s immediate reply was: “Put the willy in all of our kids.” Question: “That’s right.” Answer: “In our mouth.” Question: “That’s right, that’s what you told me.” Question: “Now, when you say ‘all of our mouths’ who are you talking about?” Answer: “I’m talking about all of us.” He named his siblings, himself and Mummy and Daddy. He was asked how many times it had happened to him, he said ten times and a hundred times to his siblings.

236. Question: “Where are you when he does it?” Answer: “In the B&B.” Question: “Whereabouts are you in the room are you when he does it?” Answer: “Near my bed.” Question: “What are you doing? Standing up? Lying down? Sitting down?” This was a forced choice question, so it ran the risk that X may have guessed the answer. Answer: “I sit on my bed.” It is notable that bed was not mentioned in the question and was a spontaneous response from X.

237. Question: “Does he say anything when he does that?” Answer: “Nope. He says: ‘Come here,’ he does.” X demonstrated with his hand how F put his willy in X’s mouth. He was asked if he had ever put his willy anywhere else on him, and X said no, nor had he seen F put his willy anywhere else on his siblings. He then said that he had done it to himself. He was asked: “What happened when he did it to himself?” Answer: “He just done this by his self.” He was reminded that he had earlier told the officer he did something to his willy in the toilet: “And what does he do with his willy in the toilet?” Answer: “You do, he does that, then white comes out,” and in my judgment this was realistically descriptive of masturbation and ejaculation. Question: “Where does the white stuff go?” Answer: “The white goes on the floor.”

238. In my judgment X’s statement that he just done this to himself was obviously not a suggestion that F put his own willy in his own mouth but merely an attempt by the six-year-old to describe what must have been F masturbating himself after having put his willy in the mouth of X.

239. Next question was: “And has he ever done that in the bedroom?” Answer: “Yeah.” Question: “And where did it go in the bedroom?” Answer: “On the bed.” Question: “How long ago did it go on your bed?” Answer: “It went on there for five weeks.” In my judgment it was apparent that he did not have a firm grasp of conventional time periods and intervals. The next question was: “And where is Mummy when this happens?” Answer: “Out.” Question: “Is she? And where does she go?” Answer: “Shopping.” Later he was asked, question: “What does F’s willy look like?” Answer: “It looks like hairy and it’s big.” Question: “And what does it taste like?” Answer: “It tastes like poo,” and X gave an expression of disgust and said: “Not nice.”

240. Question: “Has F ever hurt you in other ways?” Answer: “Yeah.” Question: “How does he hurt you?” Answer: “He does punches.” Question: “And what are you doing when he punches you? Are you playing or is it not playing?” In my judgment this was a poorly constructed question. It contained both multiple and forced choice questions. The answer: “We are playing.” I comment: that may have been the result of the forced choice. But I also am of the view that this was a rare departure from the norm in the interview, which was generally of short, single fact questions. It was followed up by a question: “Where did he punch you?” Answer: “And he cut my, he cut a knife on me, right on my nose.” In my judgment this answer was spontaneous and unled. He was asked: “What did he do with the knife?” Answer: “He cut it across here,” he did not know why that happened. Asked where he got the knife from, he said: “Nanny’s.” Asked: “Where did that happen when he cut your nose?” answer: “It happened in the bedroom.” Question: “What, your B&B bedroom?” Answer: “Yeah.” This question of course was a leading question.

241. Later in the interview, as he was about to put on his coat, he was asked who was the first person he told about this. The question was unspecific, whether it related to the knife or the willy in the mouth allegation. Answer: “Mummy.” Question: “What did Mummy say about it?” Answer: “She said that she’s going to ring the police up.” Question: “Do you know when you told Mummy?” Answer: “When F decided to go out.” In my judgment that sounded entirely realistic.

242. I comment: (1) the ground rules were established. In my view they often take too long. Detective Constable Farmer agreed with that point of view. (2) The truth and lies routine was missed out but, as I have already commented, there is abundant evidence that X knew the difference. (3) It is striking that the allegation made against F by X was volunteered after an unrelated question. (4) The interview was relatively short. (5) X was able to concentrate. The social worker’s assessment at page C84 of the evidence was that: “X was able to follow instructions, concentrate for long periods and show respect.” In my judgment that was borne out by his behaviour in the interview. The questions were generally short questions containing single subjects. (6) As regards a description of the events recounted, they were naturalistic and realistic. (7) It was not implausible that F abused the other children as reported by X, believing that they would not speak out, and X could have seen the adults engaged in sexual intercourse, including fellatio. Reference to F doing it to himself, as I mentioned earlier, must have been reference to masturbation, a part of the sexual routine. (8) As to numbers and times, he was only six years old and unschooled. (9) If he told the Mother – this is very serious – instead of reporting the behaviour of F towards X to the police, as she had promised X she would, she did the opposite and alleged to the police that X had lied. In my judgment this was the supreme betrayal.

Second Interview

243. After the Mother’s claim that X had lied, he was interviewed again on 26 February 2016, this time with Detective Constable Farmer. Once again Miss Farmer admits frankly she forewent the ground rules, the truth and lies routine prescribed by the guidance. During this interview X’s demeanour was altogether different to that of the first interview. He was restless, fidgety, moved around the room, often hid his face behind a folding game board and his answers were often rambling, digressive and incoherent, revealing an internal confusion and anxiety which had not been present at all during the first interview. This was a little boy who was manifestly uneasy, struggling with the shame of confessing that he had told terrible lies about F, or alternatively lying against his will or better nature that his original account had been untrue.

244. The interview began with the day of the week, his name, age and identifying the names and roles of the adults present, the location of the police station and the functionalities of the interview room and the camera. They quickly got to the point. Question: “Do you remember the last time?” Answer: “Yeah.” Question: “You spoke to Marie,” that is Detective Constable Cutter, “can you remember what you said to her? Who did you talk about to her?” Answer: “It’s not true.” I comment that it came out so quickly it was clear that he knew that that was what he was there to say, but whether or not that was true is the issue. Question: “What do you mean?” Answer: “It’s not true because I saw it on TV.” This is a striking answer; it suggested extreme pornography seen on TV in the bed and breakfast hotel. This was also a suggestion made by F in his interview about how X could have come by the knowledge of such sexual behaviour, but this suggestion has, as I have already observed, been retracted by Mother.

245. X could not remember the day he saw it but said he was in bed at the time. He slept next to the TV. Asked to describe what he saw, he said he saw some rudeness. Question: “Who was on the TV.” Answer: “It looked like my Dad but it was on the TV.” He wanted the interviewer to believe that what he had seen was only a TV show. He was then asked to describe what he saw on the TV and his account became increasingly implausible as an explanation for having said that F had put his willy in his mouth. Question: “Was anyone else on the TV?” Answer: “A lady danced with him. They wore swimming costumes. The man wore a marry costume,” clothes in which you get married. He was unable to explain what he meant by his earlier assertion there was rudeness. Asked where was his mother, he said nowhere, and then in the shower, and his Dad was cooking and W was in bed. So he was describing in fact an innocent TV show about marriage or swimming when he, W, Z, Y and F were going about routine activities. He was unable to describe the rudeness at all. This sounded like a mere embellishment to give some force to his original assertion that the lie he had told about F was something he had learned from seeing a TV show. He described Dad cooking a “burger meal” for dinner. Then he said he saw Dad flipping pancakes.

246. He was brought back to the point. Question: “So you said you had seen something on TV, what you told us about. Was that true?” Answer: “That always be true.” Question: “What you said about F.” X did not respond, he seemed to be squirming. Question: “So when you said you saw something on TV, why do you say that?” Answer: “I get confused.” He was then asked when he previously spoke to Marie Cutter and told her what had happened with F, was that the truth? Answer – at this point X was hiding his face behind the board and needed to be asked to lower it for the camera. He said: “Yeah.” He was asked if anyone had spoken to him about it. He said: “My Mum didn’t – told me to, I told her.” He was asked: “What do you mean?” He said: “The truth.” He was asked who told him to tell the truth and he said no-one. He was reminded that he had just said that “your Mum didn’t tell you. What did you say? Your Mum.” Answer: “Didn’t tell me to tell the truth. I telled (sic) her.” He was asked: “What is the truth?” and he said: “It’s the truth of what we are doing right now.” He said that he had talked to his Mum about telling the truth, and she had said: “If you want to do it then everyone said back me up, they are.” He elaborated: “They’re going actually give me money.” “Who?” Answer: “Mum.” “What for?” Answer: “For telling the truth.”

247. There were some lighter moments when they tried to establish the month this occurred. He was then asked if he could repeat what he had originally told Marie. At this point he became extremely restless, fled around the room, needing to be coaxed back to the seat where he could be seen on the camera. There was a break in the interview to help him settle, and when it resumed he was reminded that he told Marie that F had put his willy in his, X’s, mouth. Asked if that was true, he said no. Asked why he had said it, he replied: “Because I’d forgotten what to say.” He explained he had been able to describe the willy because he had seen F’s willy in a toilet in the Co-op, and he gave an account of his hiding in the toilet and of F also running and hiding in the toilet. It was an unconvincing explanation for how he could have seen F’s willy or white coming out of it into a toilet or on to a bed. He was asked whether anyone had told him to lie and he replied that last time they met he had forgotten the words.

248. I comment that X’s comment of why he had lied is so implausible as to be unbelievable. It had all the hallmarks of imperfect coaching, where he had remembered to insist that he had previously lied but could not explain why he had lied at all or how he had got the detail and graphic information which he had used in the earlier lie. He sounded as though he was telling the truth when he said several times, in explanation for his confusing account, that he was confused. He certainly sounded and looked confused. His account of talking to his mother and insisting that he told her he had lied sounded scripted. X, when he was determined to tell the officers that he had lied and he had confessed to lying to his mother, tried to take control of the interview, volunteering the information, but he was utterly confused when he tried to substantiate this retraction. There were moments when he provided plausible explanations for his retraction: his mother had spoken to him; she had promised him that everyone would back him up; and she had offered a bribe of money. Most significantly, when asked if he had indeed told the truth during the first interview, he said: “Yeah.”

249. This interview was an unconvincing retraction of the very clearly stated accusation made during the first interview. It being entirely unconvincing, it tends to support the truth of the account given by X in his first ABE interview, which he found far easier to relate. As in the first interview, X was not asked whether he knew the difference between lies and truth. The importance of this is to give him a chance to demonstrate this knowledge. But he had demonstrated this knowledge on other occasions: (1) the BB gun incident, he had originally claimed to have shot W, then confessed that F had done it; (2) the subject of the difference between truth and lies had been given prominence by his mother in the days after the first interview; (3) in the second interview the subject matter was about truth and lies, and he showed he knew the difference; (4) H, who knew him very well, and 1A had both found him to be a truthful child.

The interview under caution of F on 12 February 2016 and his evidence to this court

250. The caution includes a reminder that it does not bear any burden of proof but that what he says can be used in evidence. Mr Johnson on behalf of F submitted that a court should be wary of imposing a pseudo burden of proof on his client to explain X’s allegations. In this regard I was referred by Mr Johnson to the judgments in Lancashire County Council v D & E [2010] 2 FLR 196 and Re D (child) (fact finding hearing) [2014] EWHC 121 (Fam). An innocent person may find a false allegation inexplicable and may have difficulty in offering feasible explanations. The inability to do so could not logically prove that he was guilty of the alleged offence. The court must have this possibility very much in mind. Equally, a guilty person may wish to wrongly and unfairly discredit his accuser to protect himself. That too is a possibility, and if it is the case then it could reasonably support the allegations.

251. He had a solicitor, he was cautioned and opted to answer questions. He claimed that he had never had the opportunity to sexually abuse X as he had never been alone with him, but this conflicted with other evidence. He had been alone with him and W during the BB gun incident, and both W and the Mother had recounted that the children were left with him for periods when the Mother went out to smoke or to see neighbours or go to the shops. In her evidence the Mother agreed that she sometimes left the children with him when she took W to school and then went to the shops on her way home.

252. On 5 November 2015 there had been an oral agreement between the Mother, F and the social worker that in view of the past allegations made against F, as a precaution he should never be left unsupervised with the children. But on 6 November, the day after, he was met after the school day by 1A accompanied by X, coming to collect W. They had just been shopping in Asda together. The Mother in her evidence said that they split the shopping between them, implying that there were times when she went alone to the shop, leaving the children in his care. The Mother admitted to me at the end of her last period in the witness box that when she went to have her hair done, cut and dyed, F looked after the children.

253. In her second police interview the Mother described F driving alone with X for several hours, and she said he had a lot of opportunity to sexually abuse him. I interpolate that no suggestion has ever been made that there was sexual abuse in the car or anywhere else but at the Mother’s own home.

254. He began the interview by explaining that X alone amongst the children had been at home most of the time as he had no school place, which was true. Thus he and F were together much of the time, usually with the Mother present, playing on computers or out in the park playing football. He also said that X liked to spend time alone amusing himself. He told the court that he and X had a good relationship and got on well together. However, as the police interview progressed, the picture of X presented by F became increasingly negative, until X had been transformed from a relatively undemanding child into an attention seeking liar who F described as a “complete shit”. F challenged this transcription but it was accurate.

255. This was not the first time he had used such strong language about a child who had made an allegation against him. Another six-year-old, 5, had done so too. N, her mother, had reported that F had called 5 a “spoiled cunt”. He said that he had never used the word “cunt”. He detested its use. He was then reminded of a record of an interview conducted by 1A on 20 November 2015 when he related that he had been prosecuted for calling a traffic warden a cunt. He said that he had used the word bitch and that 1A had made this up. Later in the interview 1A recorded that he admitted that he had hit N, his former girlfriend, on the arm but only in a jokey way and that he had caused her no bruise. He denied this and alleged that 1A must have concocted this evidence too.

256. F then claimed that X was so averse to being left alone with him he would scream loudly when it happened. There is no other evidence of such a tendency in X. If he did scream loudly, this would be evidence of fear of F, which X agreed he had. In his evidence to the court, F modified his evidence, saying that what he had meant was that X would whine or whinge for his mother. This is a quite different account.

257. He denied that X could have ever seen him sexually abuse his cousin but admitted that his nephews and X were together in his presence. X refers to the nephews as cousins, according to 1A.

259. He denied that pornography was ever shown on TV in the B&B or on his thumbprint protected smartphone or on X’s tablet. This therefore made X’s explanation in his second interview of seeing sexual behaviour on TV even less likely to be true, and further supports my conclusion that X had been forced into a false position to make a false retraction in that second interview.

260. He denied that children could have witnessed sexual intercourse between him and the Mother in the bedroom as they did it only when the children were staying at his mother’s. This I found less convincing. X in effect said he had seen it. The police found sex toys in a bag by the bed. It suggests a degree of carelessness about exposing the children to sexual activity. He denied that X could have seen him naked as he and the Mother dressed in the shower room. He denied ever having masturbated in X’s presence. He said his physical contact with X was innocent – ball games and wrestling. This contradicts his earlier statement that X was so averse to being left with him he would scream.

261. He then said that if W had been sexually abused she would have reported it because she is a tell-tale at school. The only time W had ever reported any misconduct by F was regarding the BB gun incident. For that she had been punished and since then had been very unwilling to say anything to any professional about family life. He said that the allegation made against him by W was untrue.

262. In interview and evidence he hinted that B may have sexually abused the child and that somehow X had confused him with F.

263. In his oral evidence he then suggested that X may have feared that he would treat his mother in the same way as B had (although F asserts that he had been a good partner and stepfather) and thus had invented the allegation to get rid of him. He then suggested that X may have wanted to get rid of him because he was jealous of the attention the Mother received from F. He also suggested both in interview and in his evidence that X had been very attention seeking. He said that the child deliberately soiled himself and smeared the walls of the toilet with his faeces. He suggested that this tendency may have led him to make the allegation of sexual abuse. For this theory to work, X would still have needed the information about the adult male genitalia, oral sex, masturbation and semen to gain attention in this way.

264. He then suggested that 1A had coached X to make the allegations or that 3, a rival for the Mother, had done so. This would have entailed this child, who according to F whined and whinged when he was away from his mother, to have been willing to spend time alone with one of these people and been willing and able not only to learn the part but also play it so compellingly in the ABE interview. 3 departed the scene, F admitted, in November 2015. For this account to be credible, it would have had to have been possible for 3 to coach X at the latest four months before the ABE interview, whilst X was in the care of the Mother and F, and for X to be able to retain and then recite convincingly the learned script. In respect of this little boy who lacked schooling and had fallen far behind educationally, I found this suggestion preposterous.

265. He sought to portray X as a child who had told a malicious lie about him. This lie had either been made up by X alone, using information he had gleaned from W or other children or possibly the TV; alternatively, an adult, 1A, with whom F had “never seen eye to eye”, had coached the child, who was not only able to learn this script and repeat it in a convincing manner but had been willing to do so. He thought that X may have overheard adults in the playground, when he was taken to deliver or collect W from school, talking about oral sex and from what he had overheard constructed a story which he used against F. I found it impossible to conceive that X would have had the mature understanding, imagination or inclination to be able to do such a thing.

266. He also alleged that W had lied about him to T and L, her foster carers, when she said that he was horrible and that he had beat X. He suggested they must have coached her to say this. As T had been the only person to report this and W had not repeated it to anyone else, it is hard to see why T and L should have done so.

267. In any event, this account was contradicted by other evidence given by F. He cited a few occasions when he said X had lied: falsely accusing Y of pushing him down the stairs; falsely denying he had broken a toy; stealing sweets from a shop. But he had denied that X could be bribed to tell serious lies, either with money or with sweets. This was contrary to the statement made by X that his mother had bribed him to retract his allegation. He asserted that the Mother had brought up X to be moral and honest and to tell the truth. As for W, he had described her as so scrupulously honest she could not even keep a secret confided to her by friends but was a tell-tale.

268. I found it impossible to believe that either child had been coached. This suggestion was made simply to discredit them when their evidence was unfavourable to him. My overall impression of F’s evidence is that he was willing to lie and falsely accuse others of lying about him whenever it suited his case. He did so calmly and shamelessly in exactly the same way in which he had lied to the police during his interview.

269. He denied having an opportunity to sexually abuse the children but it was hard to see why this was so. He said that the Mother may have been a little wary of him, which is why she did not leave him alone with them. She denies that this was so, and had she been wary of him it would not have been reasonable to enter into the relationship in the first place. He met the Mother before the Social Services were involved. He told her of the allegations made against him in the past and their falsity in order to forestall any fears she may have if she heard about it from another quarter. Both he and she agreed that this put her mind at rest. She had four children to care for, aged three, four, six and eight. The two youngest went to playgroup at 1.00pm but X was at home all day as he did not have a school place. The Mother needed to do the shopping, see her friends and have her hair cut and dyed from time to time. F agreed there was no apparent reason why she should not leave the children with him and every reason why she should want to share the burden of care. In my judgment it is very likely she did so, leaving one or other or even all of the children with him far more often and for far longer than he admits. I have the clear impression that both he and the Mother have sought to reduce the opportunities that he had to sexually abuse the children to protect them both, he from the allegation of sexual abuse and she from the allegation of failure to protect. I found X’s account infinitely more convincing than F’s.

The Mother’s evidence relating to X’s credibility

270. She loves the children but has very limited insight into their needs. She has limited intellectual capacity, she is immature and naïve and emotionally needy. She prioritised her own needs above those of the children. She has entered a series of abusive relationships and there was a marked dependency on F for help as well as to meet her emotional needs. The home conditions deteriorated after he left in 2016. She confirmed that she now believed X’s allegations. She explained that at the time in February 2016, because of her past history, she had not wanted to believe what was going on. It is recorded that she had said in February that she thought that X lied often and was unsure whether to believe him because she needs support and was lonely, clearly implying that she prioritised her own emotional dependency on F above the need for keeping at the very least an open mind that he may not be a safe or suitable adult to have in the home with young children.

271. She says that a few weeks before 12 February 2016 X suffered a cut injury to the side of his nose in a fall. It was treated and healed into a white scar, and this must have been a different injury to the cut seen by 1A on the bridge of his nose on 12 February 2016.

272. As regards her allegation that X tended to lie, she gave only one example, of X saying that she had been beaten up and thrown out of the car by B. This example was also cited by the maternal grandmother during a viability assessment. Yet the Mother agreed that X was correct in saying that she had been beaten up. It was the reference to the car that was wrong, as they had not possessed a car. But X did not state anything about the ownership of the car. The incident must have occurred when he was four, and he was right about the heart of the matter, the domestic violence. Why did the Mother so overvalue this example? It suggested a continuing ambivalence in her feelings about the allegation X made. F in his interview sought to portray X as a liar, but it amounted to no more than an instance of X breaking a toy and then denying it. This is a far cry from showing X to be capable of or inclined to make up an elaborate story of sexual abuse to incriminate F. X appeared to be a scapegoat.

273. During her own parenting assessment, the Mother referred to the children as being good as gold, except that one, referring to X. She suggested that he suffered ADHD, which has been medically discounted. He was simply restless from boredom, not being at school and under-stimulated at home. But his mother lacked this insight. His reputation in the family was made by her skewed view of him. W referred to him as being hyper, which in my judgment came from the Mother. Although her tone has changed, she definitely and clearly disbelieved his complaint about F and put X under huge emotional pressure to retract, for example during a police station visit on 13 February 2016. The Mother says she was sexually abused as a child, her parents did not believe her, leaving her feeling unprotected. They said that she was attention seeking, in exactly the same way as the Mother has said X was attention seeking.

Discussion and conclusions regarding the allegations

274. My findings of fact are as follows. Number 3, as regards the BB gun incident, I find as a fact that F deliberately shot W with the gun for his own amusement. Although, as I find, he told her to wear her mother’s jacket to soften the impact of the bullet, it was a grossly irresponsible act which could have caused very serious harm. I find that both the Mother and F punished W for reporting it by angrily scolding her and sending her to stay with Q. It demonstrated the Mother’s inability to protect the child from harm and a willingness to prioritise the interests of her relationship with F above the safety of the child. This was in itself a traumatic experience and did lasting harm by making W very reluctant to confide in professionals assigned to safeguard and promote her welfare, and hence made her more vulnerable to further abuse.

275. As regards item 5, the hair cutting, I find that proven. It was a further instance of the Mother demonstrating a lack of understanding of the child’s emotional needs and inability to protect her from harm. The loss of her hair was a further distressing experience which caused the child huge unhappiness. As regards F, it was an utterly callous piece of behaviour.

276. As regards item 1, I find that X gave a truthful account of being sexually abused by F by having a penis put in his mouth and afterwards witnessing F masturbating and ejaculating. I do so because: (1) the forthright, consistent and clear manner in which he gave the account to 1A and the police before the ABE interview and during the interview; (2) the account was plausible; (3) it was realistic in details; (4) there was no alternative explanation for the child’s statements – exposure to pornography, learning it from other children, hearing adult conversation or fantasy; the detail of what he recounted could not have been known by this six-year-old other than through what he experienced or saw; (5) the persuasiveness of his account was not vitiated by the breaches of the ABE guidance; the ground rules of the interview were sufficiently explained and shown to him for him to understand what was happening and he had demonstrated in other circumstances, to which I have referred, a clear knowledge of the difference between truth and falsehood. I find that he was generally a truthful child. (6) His subsequent retraction was plainly untrue. It was implausible and self-evidently the result of pressure and encouragement from his mother, and I found that it supported rather than undermined his statements in the first interview.

277. (7) F’s answers in police interview support the reliability of X’s account. F lied on several occasions. I bear in mind the caution prescribed by R v Lucas in drawing adverse inferences from lies; in this case I do so. He lied about his lack of opportunity, asserting he was never alone with the children. There was abundant evidence to the contrary from the Mother that he had “loads of opportunities” , when she was shopping, and from W, who said that the Mother needed his help to care for the children when she was outside smoking, and from the social worker who saw him out in the street with the children. He lied about X’s tendency to scream when he was left alone with him. He dishonestly misrepresented the content of W’s school sex education to explain X’s source of knowledge. His attack on X’s honesty, casting him as an habitual liar, comes ill from a man who himself lied about his responsibility for the BB gun incident and at one point tried to cast the blame on X. That incident, together with the hair cutting incident, shows a tendency to lie to protect himself to the extent of casting blame on others. I conclude that he lied to discredit X and cover his guilt.

278. I find that the proven allegations concerning X1, N and 5, whilst they are of course not probative of the allegations made by X, substantially support the truthfulness of those allegations, not only by discrediting F’s account but by showing that he had a propensity to exploit the opportunity to take advantage of vulnerable people, mothers and children.

279. Item 2. I am satisfied that X truthfully described F’s sexual abuse of all the other children, including his cousins, by putting his penis in their mouths. He did this opportunistically, confident that they would not complain or be believed. X’s account was again clear and detailed and this account is made more likely to be true because: (a) the account of his own sexual abuse was true, for the reasons I have given; and (b) F’s lies in his police interview. None of them have made allegations. Z has shown some sexualised behaviour in contact sessions, putting a doll’s genital area in her mouth. It is likely that W had been too frightened to report sexual abuse to protect her mother, and it is significant that at first she spoke positively of F but since she has been in foster care her true feelings of dislike of him have begun to come out. The other children have been too young to understand what was happening.

280. One striking feature of the evidence regarding W emerged by chance. In January 2016 a student social worker, 1E, was allocated to doing some direct work with W to help build her self-esteem and sense of identity. On 10 February 2016, two days before X’s complaint of sexual abuse was made to 1A, W spoke of breeding horses. She drew two horses kissing. She then volunteered that sometimes she was worried about being pregnant herself. She said that her “Daddy” (which may have been a reference to F, who was by then sharing care with the Mother) and she pretended the Mother was pregnant and they would wind her up about it. Despite the Student Social Worker’s 1E’s best efforts to coax more from W, the child would not be drawn out any further. The significance of what she said was not apparent at the time.

281. Then two days later the cataclysm occurred which led to the immediate break-up of the family: the children separated from the adults; the adults apparently separated from each other. W stopped talking about her family life altogether. Unconsciously, she may well have felt that talk had dangerous consequences for her and those she held dear. Then, after she had got used to the routine of talking to the social workers, 1A and 1E who she had grown to trust, she started re-enacting in play home life, but with herself as always being pregnant. Why did she see herself as pregnant? Why had the prospect of pregnancy so worried her? Then why had she accustomed herself to it in play as if it was an inevitability? We shall never know the truth. She had seen her mother become pregnant three times when they lived with C and then B. The male adult, she must have worked out, was the vital part of the process. Pregnancy seems physically worrying and the male partners had not brought happiness. Play acting pregnancy is not sexualised behaviour in itself but her fear of pregnancy could imply that she herself had some intimacy with her mother’s most recent partner, which worried her in this regard. I have found, on the basis of what X saw, that this was sadly the case.

282. The cousins may have reported it to adults in their family but it has not been passed on. The F family defends its own. It was manifest in my view from Q trying to intimidate B with text messages in court in January 2017.

283. I am entirely unpersuaded that W’s denial of any untoward behaviour by F towards the children merits any weight. By then she was very guarded in her utterances to anyone in authority. The experience of H, the head teacher, at school was that after the experience of being ostracised at home for reporting the BB gun incident, W would not reveal anything more about her home life, even if it meant concealing that she herself had been harmed. She learned from experience that reporting even the infliction of harm to herself by F would have dire consequences for her. Mother’s reaction to X’s revelations would have reinforced that view.

284. However, there were parts of her statement which she would have had no reason to suppose would affect her mother and F in which she revealed something of the truth. The first was a reporting that he, F, sometimes looked after them alone when the Mother went out. This further contradicted F’s claim that he was never alone with the children and hence never had the opportunity to abuse them. The second was her reporting that F and X got on okay. This again contradicts F’s claim that X would scream if left alone with him. To this extent these parts of her account, which she would not have realised might implicate him, can support important aspects of X’s story.

285. Item 4. I find that X suffered a cut to the bridge of his nose caused by F cutting him with a knife. I accept X’s account, which was clear and consistent. For the reasons given, I prefer his account to the denials of F. Cutting a child’s nose is an unusual act and would require cogent evidence to prove, but F had previously harmed W with an airgun. This being so, it makes it less difficult to understand why he may be willing to harm X with a knife. The Mother offered an alternative cause for the injury in her evidence in court but the accident to which she referred caused a cut to the side of X’s nose some weeks before, which was healed, and not a cut to the bridge of the nose. Finally, I find F’s lies in police interview, as before, to be evidence of his guilt.

286. Item 6 is clearly proven, for the reasons given earlier.

287. Item 7, this too is proven. The Mother had cause to be cautious about F after what she had been told about his behaviour, the BB gun incident and then the hair cutting, which she says he did against her better judgment. Her punishment of W for reporting the BB gun incident and determination to show X had lied about the sexual abuse were gross failures to protect.

288. In addition, I find proven item 8. Despite professing her belief that F had sexually abused X and the other children, she has continued to associate with F, thereby prioritising her own needs above those of her children.

289. Item 9. I find item 9 proven too. She emotionally abused W by ostracising her from the family after she had complained of F shooting her with an airgun, and X, by putting him under emotional pressure to retract his allegations against F.

290. I find item 10 proven. She has been responsible for the chronic physical, emotional and education neglect of her children, the educational neglect being by failing to enrol X in a school and failing to ensure that Y and Z received suitable nursery education.

291. I shall direct there be a transcript of this judgment and it should be sent to the Kent Constabulary. I recommend that the CPS consider the question of charging F under section 5 of the Sexual Offences Act 2003, the rape of a child under the age of thirteen, with rape of X and his siblings. The ABE interviews of X taken together were the most compelling evidence of his guilt. The second interview, the so called retraction, strengthened rather than weakened the effect of the first. The Mother’s evidence of the pressure she put on X to retract is important explanatory evidence. The contents of F’s own interview under caution further supports the reliability of X’s evidence. Under the recently introduced system of ground rules hearings, intermediaries and pre-recorded cross-examination of the child, a prosecution would be viable and in the public interest.

292. Additionally, I recommend that the Kent Constabulary consider applying for a Sexual Risk Order under section 122A-K of the Sexual Offences Act 2003 as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 Schedule 5 paragraph 4, as it is necessary to protect vulnerable women and their children from physical and psychological harm from F. The prohibition runs for not less than two years and in my judgment it is likely to be required for much longer. That is the judgment of the court.

England and Wales Family Court Decisions (other Judges)

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Kent County Council v A,B,C and D (Children : Weight to be attached to evidence of child after flawed ABE interviews) (Rev 1) [2017] EWFC B72 (01 March 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B72.html Cite as: [2017] EWFC B72