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	High Court of Justice in Northern Ireland Family Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Family Division Decisions >> T & P, Re Orders [2001] NIFam 19 (04 September 2001) URL: http://www.bailii.org/nie/cases/NIHC/Fam/2001/19.html Cite as: [2001] NIFam 19

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T & P, Re Orders [2001] NIFam 19 (04 September 2001)

Ref: GILF3490


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND FAMILY DIVISION _________ IN THE MATTER OF T & P (CARE ORDER; RESIDENCE ORDER; RESPONSIBILITY ORDER; SUPERVISION ORDER; SEXUAL ABUSE; STANDARD OF PROOF) ________

GILLEN J

I state at the outset that I grant leave for the judgment to be reported on condition that nothing be reported which could lead to the identification of the children concerned or of any of the parties. To that end I have prepared the judgment in an anonymised form.

This case concerns T (born on 4 October 1993) and P (born on 19 December 1995). The mother of these children shall be identified by the letter M and the father of these children shall be identified by the letter W.

The applications before the court

W has sought a parental responsibility order under Article 7 of the Children (Northern Ireland) Order 1995 ("the 1995 Order"). He has also made an application for a residence order in respect of the children under Article 8 of the 1995 Order. There is an application by a Health and Social Services Trust which I do not propose to name and which I shall refer to as "the Trust". The Trust initially sought a care order pursuant to Article 50 of the 1995 Order in relation to each of the children. The Trust subsequently modified its position in that it now supports W's applications although this approach has again undergone modification in that the final position of the Trust was that whilst it supported W's applications it submitted that a Supervision order should also be made in relation to each of the children. The fall back position of the Trust is that if W is unsuccessful in his applications, then it wishes to pursue the original care order application. The nature and extent of contact subsequent to the making of any orders is also an issue between the parties. M opposes all of the applications.

The background to the applications

Subsequent to the birth of T, M and W separated for a time but reconciled before T was born. There is an unhappy history to the relationship which, so far as court proceedings are concerned, first surfaced on 21 July 1998 when M obtained an interim personal protection order and exclusion order alleging violence against W. W contested the matter and M withdrew her application when the matter came to court on 4 August 1998. Thereafter there emerges a pattern of court appearances arising largely out of applications for contact orders and applications under the Family Home and Domestic Violence (Northern Ireland) Order 1998. These are accurately and well set out in the contents of the report of the Guardian Ad Litem dated 21 June 2001 at pages 4 to 11. It seems that the parties eventually separated in or around December 1996. Thereafter W had formed an association with a female whom I shall describe as S.

The key events relevant to the applications now before the court seem to have occurred in or around February 1999 when M made allegations of child sexual abuse against W and S. The Trust claim that these allegations have triggered a number of investigations, none of which has substantiated the gravamen of the allegations save for one occasion at the outset when S admits allowing the child P to get into a bath with her. It is the Trust case that M's inability to accept that these allegations are unsubstantiated has invaded all areas of her child care and the result has been that the children engage in sexualised behaviour and make statements totally inappropriate to their age. In short it is the Trust's submission that the behaviour of the mother has occasioned and is likely to occasion these children significant emotional harm and is an abuse of their sexuality. In the event the Trust obtained on 30 June 2000 an Emergency Protection Order. On 7 July 2000 an interim care order was granted and this has been periodically renewed thereafter. Subsequent to the interim care order the children and M took up residence with M's parents. However M left her parents home on 10 February 2001 after making allegations of physical abuse against her parents and subsequently alleged that her mother sexually abused her when she was young. The children remained with the maternal grandparents and since that date M has had supervised contact with the children three times per week.

Allegations of sexual abuse

The allegations made in this case against W and S by M can be summarised as follows:

1. Subsequent to the final separation between M and W in December 1996, M alleged that W's contact with the children was sporadic until his association with S commenced from in or about October 1998. At this stage M alleged that he was seeing the children every other weekend overnight on a Saturday night and in addition most of the day on Sundays.

M alleged that whilst the children had enjoyed going to see their father it was her perception that things changed in or around January 1999. She noticed that T became withdrawn. P had also started to change around December 1998, soiling and wetting herself on a regular basis.

A crucial event occurred on or about the night of 13/14 February 1999. The children were staying overnight with W. On that night M alleged she telephoned the children to say goodnight. When T spoke to her on the phone, he informed her that P was in the bath with S and that they were always in the bath together. M remonstrated with W on the telephone and insisted on the children being brought home. W acquiesced in this request.

2. M alleged that when she was bathing the children the following evening, P appeared to be engaging in masturbation. M alleges that P told her that that was what S did to her. M contacted W and thereafter spoke to S about these allegations. She asked S if she had been applying cream to P and told her what P had alleged. According to M, S said "fuck off you're a bitch". S then proceeded to ask M what she was going to do about it, to which M indicated that she was going to see a health visitor.
3. M told this court that on the subsequent Sunday ie. some days later, P said to her "S wasn't touching P's loo-loo (this is apparently P's childish name for her genital area), she was licking it." I pause to observe that this differs from the allegation contained in M's statement of evidence made on 23 April 2001 when she alleged that T made this suggestion on the night of the alleged incident. It is also significant that in a diary made by M and which was before the court, M made the following entry subsequent to the 18/19 February 1999. "I telephoned the care team and in contact with JMcK. She came to visit us the next day. At this stage T had made no allegation and was not present". She accounted for this discrepancy by urging on me that when T had made the allegation on the first Sunday evening, she did not believe it until he repeated it. I find this explanation particularly unconvincing. Whilst it is true that M did suggest that two weeks after the initial allegation T said to her in the kitchen "I was telling you the truth about S. S was licking P's loo-loo", I do not know why the entry in the diary was made if the allegation was made either on the night of the incident or shortly thereafter on the subsequent Sunday. This point gathers force when one recognises that when a police officer interviewed P on 26 February, M still did not tell him what T had said on Sunday evening. Her explanation for this was that she felt the child was confused and that it did not really register with her until he came out with the subsequent allegation. Again, I found this unconvincing.
4. The police then conducted investigations into the matter but M indicated that in or around August 1999 she was informed by the RUC that owing to the particularly young ages of the children no prosecution would be forthcoming. The court dealing with the issue of contact apparently concluded that contact would continue on the stipulation that S was not to be present. This apparently was subsequently varied at the end of August 1999 in that S was now allowed to be present but was not to bath the children, be in the same bed or to baby sit overnight.
5. M then made further allegations. She alleged that on 5 December 1999 on an occasion when P returned from an overnight contact, her genitalia were red and inflamed. M sought medical attention for the child and swabs taken by a nurse showed that the cause of the problem was not infection. M alleged that she did not discuss the matter with P because she had been warned by Social Services not to "put notions in her head". However she did allege that T said "I hope S hasn't been touching your loo-loo again".
6. M alleged that in December 1999 when the social worker MT was present, she observed P playing with the genitalia of a cat. She alleged that P tried to lick the cat's genitalia and allowed the cat to rub its tail against her privates. It is right to say that MT the social worker did give evidence that she witnessed P playing inappropriately with the cat, but significantly she said that she was very surprised that M permitted this kind of behaviour to continue without swift and firm intervention.
7. In March 2000 M alleged that on an occasion she recalled P making a sniffing noise when she was sitting with the child. P informed M that that is what S did before she "licks my loo-loo". P allegedly went on to tell M that S would put her nails into her genitalia before licking her and that W touched her face whilst S was engaging in this behaviour. Thereafter the child allegedly spoke frequently to M about the matter at night saying that S hurt her with her fingernails. M then telephoned Social Services to make these complaints again and allegedly made tape recordings of what the child was saying. She also brought friends in to hear what the child was saying by means of a baby alarm.
8. By the summer of 2000 M alleged that T was having night terrors and had bruising to his legs. (The child had had night terrors since 1994 but M alleged they were now much worse). She contacted her solicitor, apparently at 3.50 am, and Social Services were thereafter contacted. It was about this time that M also approached an newspaper reporter about her allegations which led to a wholly inappropriate article being published dealing with the allegations she was making. In the wake of these developments the Trust became deeply concerned about M's behaviour and an emergency protection order was obtained by the Trust. As a result of the Order M was obliged to live with her parents at her parents home with the children.
9. Thereafter relations between M and her parents broke down. She alleged that T and P were smacked in an unjustifiably violent way by her parents and the children were terrified.
10. In November 2000 M was asked to leave the home of her parents following a Looked After Children review. This apparently was done in the aftermath of a report which had been obtained by the Trust from Dr Swan on 16 October 2000 which concluded that there was no clear evidence that P had been sexually abused and that the ongoing issues being continually raised by M about sexual abuse were liable to cause significant emotional harm to these children.

Standard of proof in child abuse cases

Re H and R (child sexual abuse: standard of proof) (1996) AC 563 is authority for the proposition that the standard of proof before making a finding of sexual abuse is the balance of probabilities on which there has been cogent evidence commensurate with the seriousness of the allegation. Lord Nicholls of Birkenhead said at page 586G:

"… This does not mean that where a serious allegation is an issue the standard of proof required is higher. It means only that the inherit probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before on the balance of probability, its occurrence will be established."

Ungoed-Tohmas J expressed this neatly in In Re Dellow's Will Trusts (1964) 1 WLR 451, 455:

"The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."

My Conclusion on the allegations made by M

I am not satisfied that these allegations of sexual abuse against S and W have been proved to the appropriate standard. I have come to this conclusion for the following reasons:

11. Whilst I am satisfied that M may how have reached the point where she has convinced herself that sexual impropriety occurred, she strayed too often in her evidence from the detachment and consistency required of a reliable witness. Her evidence was rife with contradiction and inconsistency. I have already outlined the irreconcilable differing accounts she gave of when T first made the allegations that he had witnessed P being abused. It is simply beyond belief that if he had made this allegation at an early stage, M would not have reported it to the persons engaged in the protocol interview especially members of the RUC. Her diary flatly contradicts the adamant account she gave to me that T had made this allegation at a very early stage. A second example of her inconsistency arises from her account in her statement of 23 April 2001 concerning the incident of February or March 2000 when the child had allegedly made the sniffing noises. There was not the slightest hint in that statement that S had put her fingernails into the child. In her evidence before me M emphasised this aspect. Moreover when she had given her interview to the press M admitted saying to the reporter "my daughter's frightened of anyone with long nails because (S) had long nails." She told me that P has difficulty with women with long nails including her own mother and Charmaine Ross. If this is such a highly significant factor with the child, it is incomprehensible that M would not have raised this matter in her statement of evidence. I think this is but yet another example of M sensationalising and exaggerating the allegations that she is making. The allegations seem to grow and expand on the various occasions when M told them. An example of this is found in Dr Swan's report of 16 October 2000 at paragraph 9.6.16:

"Seemingly her Uncle Gary (mother's brother-in-law) calls her a princess. In doing so some comment was made about her being a big girl and she stated she was not. When her mother asked her what this was about seemingly she retorted 'that's what S calls me when her fingers are inside."

This allegation is not recorded anywhere else in the case that I discovered and again I cannot believe that such an allegation would not have been repeated by M had there been truth or accuracy in it. The diary which was before me contained an extremely detailed analysis of all the alleged allegations and it is very unlikely that if this had been said then it would not have been recorded in that diary.

I have found a similar inconsistency in her allegations against her parents. These surfaced for the first time in February 2001. They are contained in detail in the report of 1 March 2001 by AD Senior Social Worker. M alleged that there were marks on P and that she was "always covered in bruises". M accused her parents of beating the children, a quarrel ensued and M was told to leave the house. M contacted the out of hours Social Services accusing her parents of physically abusing the children. P had what M described as a "thumb imprint" on her left shoulder and a linear mark on her left thigh. Shortly thereafter the duty social worker, SV, visited the children at W's house and P was examined. Apparently the marks were scarcely visible and P could not give an explanation as to how the marks were caused. Crucially the report records "both children were relaxed and said they were looking forward to going back to their grandparents later that day. P and T did say, in answer to SV's questioning about them being hit, that they were smacked on the hand by granny when they misbehaved. They showed no fear about going to their grandparents". I have no doubt that if these children had been subjected to the violent abuse alleged by M that they would not have reacted in this way to the prospect of going back to their grandparents. I think this is yet another example of gross exaggeration on the part of M who is consumed by a desire to retrieve the custody of her children. When Mr Dickson visited M on 12 February 2001 to discuss new arrangements, she made a number of further allegations to the effect that the children were beaten on a regular basis by her parents. She alleged they were hit everyday and that they had "always got bruises". She then went on to allege that her sister had sexually abused her brother and her parents said nothing about it. Although she made a number of detailed allegations, including these sexual allegations about her family, she made no allegation that she had been sexually abused by her mother. It is interesting to note that in the wake of these allegations, the grandparents had voiced their fear that M's next allegation would be that she would accuse them of sexually abusing the children. At this stage they felt they could not continue with caring for the children. It was thereafter of course that the allegation was made by M that her mother had sexually abused her when she was a child. It is unlikely that if this was true, she would not have voiced this allegation amongst the other litany of allegations that she made on 12 February 2001. Moreover I cannot believe that if she had been sexually abused by her mother as a child, she would not have taken every step possible to prevent her mother obtaining care or custody of the children, including making these allegations clear to the court on the relevant occasions. The fact that she remained silent on this matter at these times persuades me that these allegations are not proved.

Regretfully her accounts of the alleged abuse and the abusers changed as the occasion demanded. She told Dr Alice Swan (as recorded in her report of 16 October 2000) "that the family think that W, the father, has been doing something to T for years". She also informed me that she has a male friend who has been sexually abused and he recognises in T a "haunted look". M's interpretation of this is that T has also been sexually abused. However in front of me she said on a number of occasions that she was not suggesting that T was sexually abused. She explained her reference to Dr Swan by indicating that W had watched T being abused through the door. I do not believe for one moment that this was what she meant when she made these allegations to Dr Swan and I think this is a further display of a reckless disregard of accuracy of the same kind that she was prepared to make to the press.

12. A number of witnesses were called on behalf of M for the purpose of substantiating her allegations. I was not impressed by these witnesses. I fear that their judgement has been clouded by sympathy for P. I suspect they may have been convinced of the sincerity of her allegations and have proceeded, perhaps unwittingly, to exaggerate out of all proportions certain incidents that occurred. A few illustrations will suffice:

(a) Mrs H gave evidence that she had witnessed P with a soother in her mouth which appeared to be stained. M indicated that the dirt had actually been excrement but this thought had never occurred to Mrs H even though she had actually seen the material. I believe that she accepted what M said as being true just as many of the other witnesses have done so without the slightest evidence whether it was true or not.

(b) CR, a close friend of M for a number of years, gave evidence, inter alia, of P's alleged insistence on self-harm. Her statement of 14 February 2001 records "P would remove her shoes and run outside deliberately scraping her feet or kicking things with her feet in an attempt to damage them. On occasions I would treat the child's sore feet with plasters and salve, however P would insist on removing her shoes and hurting herself in this manner." I consider this as a classic example of how what may have been a perfectly innocent instance of a child hurting herself when playing, has been exaggerated into instances of self-harm. There was not the slightest evidence that this was done intentionally. It was interesting to note that in cross-examination Mrs Ross indicated that the words "P's insistence on self-harm" were not written by her and were not her words. It is also quite extraordinary that M did not recall taking the child to the doctor to deal with the injuries or to deal with the mental upset that would have occasioned such behaviour. JS, another neighbour and friend, gave evidence that P had scratched her face so violently that it made her face bleed and that T made P stand on a nail protruding upwards. Once more I observed the exaggeration which has permeated this case. I find it very difficult to accept that P, a child of such tender years, should have been able to scratch her face with such force as to make it bleed or that T could have persuaded P to stand on a nail on a piece of wood without P thereafter requiring some skilled medical intervention. Even if one accepts some measure of the bad behaviour outlined by JS, this does no more than underline the conclusions which have been reached by Dr Swan that these children are reacting to the emotional damage being caused by the emotional tension in the house and the constant repetition of these allegations on the part of M.

I did not take into account at all the evidence of JLR who gave her evidence in an unsatisfactory and incomplete manner. I also observed that although there was a statement before me from M's sister J, she did not give evidence before me and I consider therefore that it would be inappropriate that I should take her evidence into account. I have not held it against M however that her sister chose not to give evidence as this may be susceptible to an innocent explanation.

13. I find there to be a complete lack of independent evidence about these allegations. I share entirely the views of Dr Swan who said, speaking of P:

"I would particularly highlight the report of sleep problems, and day wetting, day soiling, self harm, repeated comments of a sexual nature, cruelty to animals, sexual activities with animals and putting foreign on her or in her vulval/vaginal area. I would wish to stress the behaviours described here, such as self-harm to the point of skin being almost down to the bone, of cruelty to animals and oral sex with animals would require an urgent psychiatric referral. In my clinical experience I have encountered children with these types of symptoms. Invariably they have been children who have been either multiply abused or abused very seriously over a significant period of time. However these children are so disturbed that others who have contact with the child for any significant period of time will note the disturbance."

In this instance I would have fully expected the school to have reported disturbances at this level. It is highly significant that the school report no such disturbances at all. I would also have expected the child's grandmother/grandfather to have witnessed evidence of significant disturbance. Again this is absent. I would also have expected the experienced professional social workers involved in this case to have noticed evidence of such disturbed behaviour. Once again such independent evidence is entirely absent in this case. Finally one would have expected the child's general practitioner not only to have been appraised of this behaviour but also to have made some findings corroborative of her highly disturbed condition. Similarly with T. As in the case P, Dr Swan found no evidence of emotional or psychological disturbance other than some minor emotional and psychological problems which could be explained by the tension within the household, the separation from the father and the ongoing issues about the possibility of child sexual abuse. I am therefore driven to the conclusion that Dr Swan is absolutely correct in concluding that M has given an inaccurate picture of the child's behavioural presentation and it is but one more illustration of her unreliability and proneness to exaggerate. I share the view therefore that there is no acceptable evidence of sexual abuse by S or W in this case.

Care order/residence order/supervision order

I have come to the conclusion in this case that both of these children should be the subject of a care order and that the applications by W for a residence order and/or a supervision order should be dismissed. My reasons are as follows:-

14. I am satisfied that the threshold criteria have been satisfied in this case. I have concluded that the children at the relevant time when the Trust initiated proceedings were suffering and were likely to suffer significant harm and that the harm or likelihood of harm was attributable to the care given by M to the children and which was likely to be given to the children if such an order is not made. It seems unhappily all too clear that Dr Curran is correct when he describes M as remaining pre-occupied by the allegations that P was sexually abused and that T was forced to watch the act in the presence of his father. She has become consumed with her own conclusion and refuses to accept that it is neither a profitable nor healthy exercise to return to these matters again and again. She has clearly strayed from the detachment required of a caring mother. The privilege of being a parent is immeasurable and that privilege must not be abused by an obsession even if it is fuelled by a conviction that the basis of that obsession is correct. She has become therefore locked into a mind set which precludes her moving on and which fuels constant repetition of sexual allegations which will serve only to occasion these children significant emotional harm and an abuse of their sexuality. I share entirely the view of Dr Swan that if this behaviour is allowed to continue the children will suffer significant emotional harm and abuse of their sexuality. Regretfully this proposition holds true even if the allegations of abuse which I have rejected are true. Dr Swan concludes, and I agree with her, that there is evidence that T has been coached to constantly repeat these allegations. I also am of the view that Dr Swan is correct when she concludes that there is some evidence of coaching of P. Coached children often come out with the same type of statement and it would seem that P has said repeatedly to several people "S touched my lu-lu". The initial incident which triggered this whole matter when she was in a bath with S was an inappropriate incident but it was not sexually exploitive between S and P. It has however precipitated this whole reaction on the part of M. The end has been that both children have inappropriate sexual knowledge for their age and behave in a sexual manner that is wholly inappropriate for children. Despite efforts by the social workers to dissuade M from talking about the disclosures of T, it was clear to Dr Swan that she had been speaking to T "a lot about disclosing and putting him under pressure to do so". One sees an example of that in Dr Swan's interview with T on 8 August 2000. At the end of the session Dr Swan informed him that she may wish to see him again and that she would like to ask him questions. T immediately made a statement which was spoken so quickly and quietly that Dr Swan had difficulty even hearing it. The statement started "I need to tell you that S touched my sister's lu-lu …. There was a comment about licking and something about his father". He ended by saying "and I want to go back and stay in my house". Understandably Dr Swan drew the conclusion that this was not a spontaneous comment in that it was more typical of a child who had been coached. On 21 September 1999 following an interview, T said in the presence of Woman Sergeant M and the social worker MT "should we forget the plan for S". Understandably the professionals were concerned that this was more evidence of coaching. The result of this incessant search for evidence of sexual abuse on the part of M is that her response to sexualised behaviour by the children is wholly inappropriate. If for example P is allowing the cat to rub against her in a sexual way, adults must intervene whereas, as the social worker MT observed, M does not. The danger is that the children start to believe what they are being told or alternatively they accept the basis of the questioning as being factually correct. I find that M has failed to put appropriate limits on the behaviour of these children in a sexualised context and if it not stopped or appropriately dealt with, it will continue to feed their insecurity and inappropriate behaviour. There must be an end to the sexual atmosphere and environment to which these children are being exposed. Dr Curran's conclusion is at the moment M simply cannot put this to one side. She seems to have lost trust in everyone and refuses to accept any advice or treatment about her mental health. In short in the absence of her accepting expert opinion and advice she simply does not have the capacity as a parent to meet the emotional and psychological needs of T and P. I am convinced that these children are being and will be significantly emotionally damaged if this pattern continues. The threshold criteria has therefore in my opinion been satisfied.

I have considered the care plan and the matters contained in the welfare checklist in Article 3(3) of the Children (Northern Ireland) Order 1995 before deciding whether or not is was appropriate to make a care order. The care plan embraces the children living now with W in the knowledge that S will be present as his partner in the fullness of time. Although, as I will indicate below, I retain certain reservations about W, I am satisfied that this care plan is appropriate notwithstanding those reservations. I have also considered the question of contact and as I will indicate below I consider that the care plan which embraces reduced periodic supervised contact with M is appropriate in this case.

I turn now to consider the welfare checklist set out at Article 3(3) of the 1995 Order in the context of this case. My views are as follows:

(a) There is some uncertainty as to the views of these children given their tender age. MT was of the view that probably P wishes to stay with her mother with ample access to her father and that T may be the converse. I consider that there is too much instability and uncertainty in their lives for them to be old enough to make any considered decision.

(b) I have already found that the emotional needs of these children are not being met as a result of the obsessive behaviour of M. They desperately require a sense of security, stability and appropriate guidance free from the ongoing issues about sexual abuse.

(c) They are currently in the care of their grandparents. Their grandparents have made it absolutely clear that they are not able to continue in this role. As I have already outlined, care with their mother is likely to bring about emotional damage. The effect of a change in these circumstances, in which they go to live with their father, I believe will be a positive development for them in terms of their needs.

(d) The age, sex and background of these children is such that appropriate care must be given to ensure that the abuse of their sexuality and the continuance of their sexualised behaviour is arrested. This can only be done by them being removed from the care of their mother.

(e) I have already dealt with the harm which I consider they are at risk of suffering.

(f) I have already found that because of her obsession with these sexual allegations and her inability to move on and consider the wider interests of the children, M is incapable of meeting the needs of these children. I have concluded that even had I been satisfied that these allegations were correct, there is still a necessity for M to call a halt to the sexualised environment to which these children are being exposed either deliberately or inadvertently. I have some concerns about W their father. He has abused alcohol and drugs in the past and I am not completely satisfied that his promises to desist if he has the children with him will necessarily be fulfilled. He has readily admitted in evidence that he has little or no experience in caring for these children and will require a great deal of help and assistance. In the early years when he separated from W, his contact was sporadic. Whilst I therefore think that he probably is capable of meeting their needs provided appropriate assistance is available I do have certain reservations in this regard.

(g) I have considered the range of powers available to me including the possibility of a residence order/supervision order and I will indicate below why I have considered that these orders should not be made. I have also taken into account the no order principle enshrined in Article 3(5) of the 1995 Order but I have decided that in this case these children can only obtain the security and stability which they so desperately need under the aegis of a care order. I endorse entirely the view of the Guardian Ad Litem that the Trust require parental responsibility to safeguard and promote the children's welfare.

In coming to the conclusion that a care order is appropriate I have also taken into account the following matters:

(a) The date on which the threshold criteria has to be considered is the date when the Trust first intervened to protect the children (see in Re M (A Minor) (Care order: threshold conditions) (1994) 2 AC 424).

(b) Equally so care cases, like all children's cases, look to the future and not to the past. Things are changing all the time whilst a case progresses. A Trust does not have to be in possession of all the information about which they wish to rely at an application date. Later acquired information as to the state of affairs at the relevant date can be taken into account (see in Re G (Children) (Care Order: evidence of threshold conditions) Times Law Reports 22 June 2001. Since these proceedings were initiated, M has ceased to reside with the children. The children see her three days a week for one and a half hours. This is supervised in a neutral setting. Since that period Dr Swan accepts that there have been no overt sexual behaviours. The grandmother has taken a firm hand in the handling of T's misbehaviour and it has ceased. When M lived in the house, T had been inclined to rub his penis against his mother's legs at bath time, and he had taken his penis out of his trousers saying "I can take my willie out and wave it about" and he would then have proceeded to have done this. He also kicked P in the bath in the genitals and this was reciprocated. The grandmother, by insisting that the children do not bath together and by a firm handling of the behaviour, has brought about a situation whereby T does not engage in any of these activities whilst in the care of the his grandparents. There have been similar changes with P. She is doing well at school, she is a happy child not exhibiting any fears and there has been no sexualised behaviour. The grandmother has said that she is very comfortable when she is washing her and handling etc. In terms therefore the sexualised behaviour and statements have ceased. The children have not made any further allegations. I share entirely the views of Dr Swan that this is because there has been no opportunity for the children to be coached either deliberately or inadvertently by M their mother. This all serves to illustrate that the children would have suffered significant emotional harm and an abuse to their sexuality if they had continued living with M.

(c) I wish to underline that in looking at the question of significant harm in the context of a care order, I have regarded emotional harm as a very important aspect. I respectfully adopt the words of Lord Nicholls in the House of Lords in Re H and Others (1996) 1 AER at page 1, 21:

"Thus far I have concentrated on explaining that a court's conclusion that the threshold conditions are satisfied must have a factual base, in that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened. I must now put this into perspective by noting, and emphasising the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may probably be taken into account is infinite. Facts include the history of members of the family, the state of relations within a family, …. parental attitudes and omissions which might not reasonably have been expected just as much actual physical assaults. …. It is of course important to a court to conclude that there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment in itself has not been proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it will be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved, there is a likelihood that he would do so in the future."

(d) Although the Trust in this case have indicated a preference for a residence/supervision order rather than a care order, I am satisfied that the court may still make a care order where it considers a child's welfare demands it. (see Re K (Care order or residence order) (1995) 1 FLR 675. I consider that there are cogent reasons that exist in this case which justifies a court imposing on this Trust an order other than one which is asked for.

(e) I am mindful that a care order must not be used primarily to encourage a Trust to use resources to support a family and this is not the reason that I have chosen a care order rather than a residence/supervision order combination in this case.

I think it is now helpful that I should set out why I have concluded that a residence order and/or a supervision order should not be made in this case. My reasons are as follows:

15. Whilst I am not of the opinion that significant harm is likely to be caused to these children by them being in the care of their father W, nonetheless I have certain reservations about W's ability to care for them. During the course of this hearing I had emphasised that I was unhappy about the degree of investigation that had been made into the background of W and S. Accordingly over the summer weeks, further enquiries were made into their background. It emerged that the input that S would be putting this arrangement is as yet somewhat uncertain due to her family commitments to her mother elsewhere. It is clear therefore that W may not get as much help and assistance from S as he would wish. Secondly, it may be a difficult task for these children in the initial stages to live with their father. As the Guardian Ad Litem has properly indicated, a period of adjustment for the children will be anticipated. This may include the children testing the boundaries within the home and this may well prove arduous and stressful for W. He has of course voiced a commitment to give up his work for a period of time to facilitate the children settling in with him but if the pattern of unsubstantiated allegations in respect of his care of the children continue he may well face enormous pressure. He has shown a propensity in the past to abuse alcohol and whilst he purports to have come to terms with that I am still concerned about the effects of the stress and pressure which he may now experience. He has also abused illegal substances in the past and whilst I am satisfied that he no longer does this, it is again some indication of how he may react under pressure. In these circumstances I think it is absolutely vital that the Trust retain at least a measure of parental responsibility to ensure these children are protected and have an opportunity to continue a positive relationship with their mother and father. I am mindful of course that the courts should consider in a particular case, the possibility of seeing the effect of a supervision order before going straight to the more draconian care order (see Re O (Care or supervision order) (1996) 2 FLR 755. I feel this is inadequate to meet the needs of t his case. It seems to me that there is much merit in the conclusion of the Guardian Ad Litem that W's ability to care for these children on the full-time basis is as yet untested to a full extent. He may well be subjected to further acrimony in his relationship with M. Whilst a supervision order would impose a duty on the Trust to advise, assist and befriend T and P it would not confer parental responsibility on the Trust. I think it is vital that the Trust retain parental responsibility at this stage in order to enable it to intervene firmly and promptly should the need arise to promote the welfare of the children in the circumstances I have mentioned above.

For similar reasons I do not consider that a residence order is appropriate. There are too many uncertainties in this case for these children to settle the issues purely by making an order as to where they should live. As the Guardian Ad Litem pointed out, the acrimony between mother and father is so great that decisions to be made even at the mundane level of dental appointments or schools to be attended could all lead to problems which simply cannot be resolved in a situation where both M and P retain the sole parental responsibility. The acrimony between the parents and background of this situation is such that it is crucial that the Trust have part of the overall parental responsibility. I conclude therefore that a residence order is not appropriate at this stage.

Two final matters require to be dealt with. First, I think it is appropriate that W, although an unmarried father, should have the benefit of a parental responsibility order. Parental responsibility is defined under Article 6(1) of the Children (Northern Ireland) Order 1995 as meaning:

"All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."

It is still appropriate for an unmarried father to apply for a parental responsibility even though a care order is going to be in place. (See Re E (a minor: Parental responsibility order (2000) NI JB 324, 325). I have applied the well-known criteria set down in Re G (A minor) (Parental responsibility order) (1994) 2 FCR 1037 namely:

(a) The degree of commitment by the father towards the child.

(b) The degree of attachment between the father and the child.

(c) The reasons why the father is applying.

I am satisfied that there is a sufficient commitment by the father in this instance as well as an adequate attachment between the father and the children. He is clearly applying for a parental responsibility order because he considers that there is a risk to the children in the present situation. I am satisfied that he meets all the criteria and that a parental responsibility order should be made in favour W.

Secondly, I share entirely the concerns expressed by Dr Swan about the contact in the future between M and the children given the risks inherent in her present attitude towards the sexual allegations. Contact at the present level, particularly unsupervised, runs the risk of the children again being exposed to the sexual environment and overtones which I have found totally unacceptable for the emotional well-being of these children. Accordingly it seems to me that even though the children may find it difficult to have the present level of contact reduced, it is necessary to do so for their own welfare. The positive aspects of parenting which I hope will be bestowed on these children in the future would I believe be negatived if they continue to be exposed to this unrelenting questioning about sexual matters. Accordingly I have concluded that it is appropriate in the present circumstances that contact should be as follows:

(a) M should have supervised contact with the children twice per week for approximately two hours on each occasion for a period of four weeks from the date I gave my decision in court. For the ensuing four week period, M should have supervised contact once per week with the two children for two hours. Thereafter contact should be once per fortnight for a three hour period and again should be supervised. The arrangements as to the location of the contact, the nature of the supervision and the timing should be within the discretion of the Trust to arrange.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND FAMILY DIVISION _________ IN THE MATTER OF T & P (CARE ORDER; RESIDENCE ORDER; RESPONSIBILITY ORDER; SUPERVISION ORDER; SEXUAL ABUSE; STANDARD OF PROOF) ________
J U D G M E N T O F GILLEN J ________