Devon County Council v M & Ors [2022] EWFC 217 (B)

[2022] EWFC 217 (B)

IN THE FAMILY COURT SITTING IN PLYMOUTH

Hearing HEARD ON: 8 th-12 th August 2022

HANDED DOWN ON:19 th August 2022

Before

HER HONOUR JUDGE SEARLE

Between

Devon County CouncilApplicant

M FirstRespondent

F SecondRespondent

A, B and CRespondent

Through theirRespondent

Children’s GuardianRespondent

Third , Fourth and FifthRespondent

Devon County Council Applicant

M First Respondent

F Second Respondent

A, B and C

Through their

Children’s Guardian

Third , Fourth and Fifth

Respondents

Legal Representation:

Victoria Hoyle , Counsel for Applicant

for First Respondent :Jo Porter , Counsel

for Second Respondent : Rachael Parkhouse, Counsel

for Third, Fourth and Fifth Respondents : Zahid Hussain, Counsel.

Date 2022-08-19

[1]This is my judgment in a fact-finding within public law proceedings. The three subject children are: A now in his early teens; B aged 11; and C who has just started school.

[2]I confirm that there is a direction that there be a full transcript of this judgment at the joint expense of the parties.

Translation

[3]Their mother, M and the father , F are not UK nationals but were born and brought up in Western Asia and are not completely fluent in English. The court has been told that the mother understands and speaks English better than the father, but both have been given the advantage of verbatim interpretation through two court interpreters, who, for the most part of this hearing, have been working on alternate hours. The parents’ own respective interpreters have also been present in court in the hearing so that further explanation could be provided to the parents as required.

[4]The parents speak with their own particular dialect of Arabic and on one occasion the mother’s own interpreter suggested that the mother required slower interpretation, which the mother confirmed she needed, and the translation was thereafter slower.

[5]This is a case where the allegations are of physical abuse with regard to a hit, smack, slap. The court was informed by the parents’ representatives that there are not the equivalent words in the Arabic language to accurately describe each action with a word. It would appear that one word in Arabic would encompass all such actions. The court has also, therefore, had to rely on the parents showing the actions that they are trying to describe.

[6]The only real issue in translation occurred early in the cross-examination of the mother by the local authority when the mother was asked about whether B had said to her that she had lied or joked about the allegations. The court interpreters confirmed to the court at the time that the root of both words are similar in Arabic. This was the only issue and the court did not consider that it prejudiced the parents’ case.

[7]Certain key documents, such as statements and the schedule, have been translated and both the mother and father have had the advantage of representation by experienced counsel. Both counsel have shown by their cross-examination that they have had full instruction on the whole of the bundle, no doubt through the agency of their own interpreters.

[8]The court is satisfied that the parents understood the translation of the proceedings and were able to engage fully in the hearing.

The Allegations

[9]These centre around reports that the older two children, A and B, have told various people that one or other of the parents had hit him. Allegations one and two are allegations that the parents’ actions to A and B were physically abusive. Allegation one is that the mother or father hit, smacked or slapped A and allegation two is that the parents did the same to B, including hitting with a stick. The parents’ response to both of these allegations is complete denial, that they did not do that and that they did not see the other doing it.

[10]Allegation three is that the allegations referred to in allegations one and two could, in the alternative, be excessive chastisement. There is a denial to that.

[11]Allegation four is that as a result of A making an allegation that he was hit in April 2021 and again this is again denied.

[12]Allegation five is that the parents have influenced the children not to tell the police about the hitting and that their influence has taken the following form: (i)The mother telling A on the phone not to tell the police that he was being hit. That was in November 2021. That is denied; (ii)By the father being angry with A on the same phone call. Father’s response is that he was simply upset; (iii). By removing the safeguarding card given to him by the school. The father denied taking the card. In her written response the mother accepts that she may have taken it, but not with the purpose of preventing A accessing support and in her oral evidence she maintained that she found the card after the separation of the children in A’s bag.

[13]Allegation six is that the parents intentionally, or non-intentionally, influenced the children to change their accounts: and refers to the same allegations of how the children were influenced as in allegation five It also relies on the distress of the parents as a result of the allegations. All this is denied. The court has already indicated to the local authority council as to its concern about an allegation being made on unintentional behaviour.

[14]Allegation seven is that if the allegations are untrue the very fact that the children have made the allegations shows a dysfunction in the family, which evidenced that the children suffered significant emotional harm. That is denied.

The Law

[15]The following sets out the legal principles that I keep in mind in my consideration of the evidence in this case.

[16]First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them. I remind myself there is no pseudo-burden upon a parent to come up with an explanation.

[17]The standard of proof is the balance of probabilities. This is Re: B

[2008] UKHL 35

. If the local authority proves on the balance of probabilities that a child had sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and in all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that the child was injured by one of his parents the court will disregard the allegation completely.

[18]As Lord Hoffman observed in Re: B:

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1.”

[19]Findings of fact must be based on evidence. As Munby LJ, as he then was, observed in Re: A (Fact-finding, Speculation):

“It is an elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation.”

[20]The inherent probability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether on balance the event occurred:

“Common sense, not law, requires that in deciding this question regard should be had to whatever extent appropriate to inherent probabilities.”

That is per Lord Hoffman in Re: B at paragraph 15.

[21]Further, the burden of disproving a reasonable explanation put forward by the parents falls with the local authority. That is Re: S (Children)

[2014] EWCA Civ 1447

[22]The inability of a parent or carer to explain an event cannot be relied upon to find an event proved. That is Re: M (A Child)

[2012] EWCA Civ 1580

at paragraph 16.

[23]Whether the fact in issue had been proved to the required standard of proof must be based on all the available evidence and should have regard to the wider context of social, emotional, ethical and moral factors.

[24]I am grateful to the guardian’s counsel for highlighting some authorities concerning the issue of assessing families from a different culture. In Re: A (A Child) (Wardship: Fact-finding, Domestic Violence)

[2015] EWHC 1598 (Fam)

Mrs Justice Pauffley indicated a need to make proper allowance for a “cultural context” when dealing with allegations of physical abuse:

“I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.”

[25]In MA (Children)

[2009] EWCA Civ 853

the Court of Appeal emphasised a need for the court to undertake an “evaluative judgment” of all the “circumstances” of each case before reaching a conclusion as to whether section 31(2) criteria were met justifying state intervention.

[26]Further, when cases of suspected child abuse occur, the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, then President, observed in Re: T

[2004] EWCA Civ 558

, evidence cannot be evaluated and assessed in separate compartments:

“A judge in these difficult cases must have regard to the relevance of each piece evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

[27]The findings by the judge must be based on all available material, not just the scientific or medical evidence and all that evidence must be considered in the wider social and emotional context.

[28]The evidence of the parents and any other carer is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms. This is Re: W & Another (Non-accidental Injury) [2003] 2 FCR 346.

[29]I remind myself that caution should be used by judges in assessing credibility and reliability. There are a number of issues for the court to consider when assessing the credibility of a witness, including the use of contemporaneous documents or incontrovertible facts.

[30]I also note that it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing and a court must always bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.

[31]I remind myself of the consideration for a pool of perpetrators in Re: B (Children) (Uncertain Perpetrator)

[2019] EWCA Civ 575

[32]So, that is the law that I refer to and bring to the forefront of my consideration.

Evidence

[33]This is comprised in two electronic bundles, one of 1,349 pages and a supplemental bundle of 256 pages. It comprises applications and orders, statements, including statements from social workers and teachers; contact agreements and care plans; Social Services’ records, police records and contact logs. It also includes foster care logs. The court has read every document that it has been taken to and more. Although not evidence, I have read the case summary of the local authority; the document on law provided by the guardian and the written submissions of all parties, which have all been very helpful.

[34]The court has heard oral evidence from: DC Wright; two of B’s school teachers Tracy McCann, social worker; B’s head of year 7; Lois Dark, social worker; the safeguarding lead at the school; Ms K the main contact and support for the M and F’s family within their relocation organisation ; the family practitioner who has been doing parenting work with the parents; the family practitioner within the initial response team; Angela Findley, social worker within the initial response team; Michael Anderson, social worker and author of the single assessment and the social worker who attended the strategy meeting in November; the mother; the father. I have heard from a total of 13 witnesses.

Assessment of the Parents as Witnesses

[35]The court reminds itself that it needs to assess the credibility of the parents and the reliability of their evidence. Before I set out my assessment I note the following. It is always a challenge to try and assess a witness as to their credibility on the basis of their presentation, as people are different and react to circumstance and the stress of appearing in court in different ways. Indeed, the court is reminded that it is required to look at corroborative evidence to help with that assessment.

[36]In this court case the court notes that it found the assessment particularly challenging because of the further issues of understanding the usual presentation of the parents who have lived most of their lives in a different culture. For example, the court might have considered that the mother was closed and flat in her presentation for much of her evidence. But when reminded of the dynamic within the household, that presentation needs to be seen in the context of how difficult it must have been for her to give evidence in front of her husband, that might be critical of the family or of him .

[37]Considering these issues , my assessment of the mother is as follows. It was clear from the start of mother’s evidence that the process of giving evidence in court was going to be a particular challenge, not least because of her cultural background. She explained that in her life as a Muslim woman, men were considered superior and that the opinion of the man was asked for at the beginning and at the end, and, although a Muslim woman was able to divorce her husband, in her community it was difficult for a woman to be divorced.

[38]Later in her evidence she was talking about the incident which she had reported to Ms K. Ms K had told the court that the mother had told her that her husband had hit her. However, in her oral evidence in this court the mother claimed that she had not meant the meaning of hit, but that he had pushed her. She accepted that there had been an argument which the children had heard and explained that she understood the father’s reaction, that he had been provoked by her raising her voice against him, which she accepted he would have found shameful.

[39]The court accepts that the mother was acutely aware that the father was in court to hear her evidence. It is the court’s view that the mother felt inhibited in giving evidence because of these cultural factors. By the time that the court heard from the mother, the court had already heard from the social worker that the mother has responded very well to discussions and parenting work on parenting and boundaries. This mother has indicated a real interest in gaining as much information as she can to help in her parenting and the social worker was clearly impressed by her.

[40]In hearing the mother, initially I considered that she wished to minimise the issues in this household. One example being such that she did not accept that she had told Ms K that the father had hit her. Another example being that when asked about an in incident that occurred in April when A had been holding C by the throat, she claimed initially that she, the mother had only gently touched his shoulder to stop him. She demonstrated her action to the court by moving her arm in almost slow motion. This gentle slow movement seemed to the court to be an improbable response of a mother trying to stop A from hurting C. She also claimed that A was always home on time.

[41]As her evidence continued however, she seemed to relax and was more helpful to the court. When the court pointed out that her slow movement would not have had much impact on A when he was holding C by the throat, she accepted that and agreed that her action had in fact been much quicker.

[42]When it was pointed out that she had referred to a boy J who was a bad influence on A, she then gave a whole list of things that she was aware of in his behaviour, including keeping A out late, something that she had not initially accepted.

[43]I consider that it took some time for the mother to accept the need for the court to just hear the truth and that she should not tailor her evidence, but by the end of her evidence, I was satisfied that she was really trying to help the court, even to the extent of stating that out of the two of them, it was the father who lost his temper more than she.

Father

[44]The father accepts that he found the whole issue of changing to a new life in Devon far more difficult than the mother. His way of life that he was used to in his own country was that he would go out to work; he would be the provider for the family and he would spend most of his free time associating and talking to other men and playing cards, that he would not have the responsibility of the home and children, leaving that to the mother.

[45]One can see that, although the mother has faced huge challenges in the context of the different language and culture in the UK, she was in fact still able to retain her original duties of homemaker and parent. For the father, however, it has been far more difficult, whereas although the father was keen to work, issues such as his health and his lack of fluent English have hindered him The father had an accident at work where he was injured in about October 2021 and he has not worked since then. The court does accept that it has been difficult for him to find a proper role within the family in his new life in Devon.

[46]He has been completely respectful to the court, but, like the mother, presented initially as trying to minimise the issues within the family. The minimising included stating that, although he accepted that A considered himself as second only in authority to himself, A always obeyed the mother. When it was pointed out that if A considered that the mother was lower than him on the pecking order it would be surprising if A accepted the authority of the mother, he claimed that whatever A’s views he still saw him obey the mother. I consider that he was trying to minimise the problem of A’s behaviour and not being entirely truthful.

[47]He was asked whether he had seen J and the girlfriend when they delivered A back to the property. Initially when asked about this he claimed he was not aware of such an occasion, but later accepted that it had happened.

[48]When the local authority counsel suggested to him that there had been hitting in the household he told counsel that he did not wish her to provoke him. In response to many of the questions he asked for proof to be shown for the questions rather than answering them. I had the impression that he was not used to being challenged on what he said. However, I did note that as his evidence continued he became less defensive and by the end of his evidence he was trying to be more helpful to the court. He did accept at the end that he was more prone to losing his temper than the mother.

[49]This is a case where the process of assessing the parents has been significantly helped by the evidence of someone who has spent considerable time with them. Ms K is a retired teacher. She used to teach children with special needs within a multi-cultural school in London. When she retired to Devon with her family in she became aware of the issues in the country of the M and F and the need to help such refugees. Through her energy, the relocation association came into being. She facilitated the re location of this family to Devon, and when this family arrived, she was allocated as their main support worker.

[50]She has been a key witness in this case, as she has spent so much time with the family. She found the fact of being required to give evidence in this case extremely difficult as she continues to be very fond of this family and wans what is best for them.

[51]The court considered that she did not give an idealised picture of this family, but was also able to set out the problems as well as the positives. Examples of her trying to help the court are that it was her evidence that the mother had reported to her early on about the father being domestically abusive, and also that she had had concerns that the mother could not occasionally cope with A’s behaviour.

[52]She told the court that when the family first arrived in the country in 2019 none of them spoke any English and that her organisation set up intensive English tuition. Between their arrival and the start of lockdown from the Covid pandemic in March 2020 she was with the family five days a week for about three hours. That stopped when lockdown started, but by June 2020 she was again visiting the family regularly and she became part of their identified ” bubble.”

[53]Her evidence is that they were a very loving family; that the mother was very open with her, allowing her access to the whole house; that the children all had enormous charm and even little C had a great sense of hospitality.

[54]She also noticed, however, that there was a real physicality amongst the children, that they would fight with each other. Within a couple of days she had noticed A kicking a ball at C.

[55]Concerning the physicality, she informed the court that she was aware that there had been an induction course that the family had attended prior to coming to the UK, which included tuition that a husband hitting a wife and parents hitting children was not acceptable in the UK.

[56]The court notes that in the glowing reports of the contacts with the children that have been observed in this family, it was noted that the positive interactions were more physical than would usually be seen amongst English nationals This was a family who showed their love through hugs and kisses, with even B wanting to sit on her mother’s lap. It is of interest to the court that Ms K told the court that sometimes when she was with the family she had observed them watching an Arabic soap opera where the characters would often be seen hitting each other for the purpose of the amusement of the audience.

[57]I accept that Ms K is now very fond of this family, especially the mother. But the view of this court is that she was trying to be as truthful as possible about all the issues, positive and negative. I found Ms K to be a very credible witness and consider her evidence as reliable.

Background and Analysis

[58]The court reminds itself how important it is to get a feel for a case, especially where a different culture is involved and the court takes note of the following.

[59]There can be no doubt that to a greater or lesser extent this whole family was under enormous stress when it moved to Devon. They had been living in a war zone; seen atrocities and had extended family members killed. Although Ms K commented on the charm of the children, she was also able to identify the challenges that the older children presented and I summarise the evidence that the court has heard about those children, and this includes the evidence of Ms K, which has been most helpful.

[60]First of all,a. A. A does not find learning easy. Although it seemed he was able to get by with his English, most of the witnesses who have given evidence have indicated that A’s English was not as good as that of his sister,

b. B. I note that the assessment by the SENCO of him that took place opined that he could only access 20 to 30 percent of spoken communication and that he is likely to use phrases to mask his lack of understanding.

[61]There is also a concern that his problems with learning are due to the fact that he has other issues, such as possible ADHD which has yet to be assessed. He was, and is, a physically large child and it concerned Ms K that when she first attended the family that this large child, A, was kicking a ball at little C.

[62]Mother and father accept that A considers himself coming second in authority only after the father. The court notes that the evidence of Ms K was that when on the day A had visited her at her own house and she had returned with him to the family home it was her view that the mother was not able to control A. It was her evidence that on that day that possibly the only course left to the mother in trying to control A would be a physical one.

[63]Ms K stated that the mother had informed her that when A attended the induction course before coming to the UK, and realised that physical punishment was not approved in the UK that his ears had pricked up and that he was pleased with that situation.

[64]What is also known about A is that he was kicking against the boundaries that his parents were trying to set for them The father claiming that A started asking for gaming items that he could not afford; that he had also made a connection with a local older boy, J, whom the mother was clear was a bad influence in encouraging him to ignore the authority of his parents.

[65]A has suffered during his young life. He was an unwilling witness to atrocities . But this court is also aware that he has told his mother that he has experienced serious sexual abuse whilst a child, something that the mother was only aware of when she was told by A in the summer of 2021.

[66]The picture the court has of A is someone who is trying to make sense of his world. He is a victim of sexual abuse. He has difficulty expressing himself in any event and has been challenged even further in his new circumstances and with a new language. He is challenged with how he should deal with his cultural heritage and the rules that it imposes on him when he can see others living with fewer restrictions. All those issues and frustrations, when present in a physically large child, were always going to present parenting issues.

[67]B is the middle child. From the information that I have heard, she is a live wire, full of fun, bright, a delight, but also a story teller. Her teacher and Ms K and the social worker and her parents all confirm that there are occasions when she has told untruths. Her parents are aware of when she told them that a family party at her uncle’s home had been cancelled when in fact it had not. The court heard that this untruth and their non attendance has caused significant bad feeling between the father and uncle.

[68]Her form teacher said that there were numerous occasions when B would say things that were just not true, such as when her headscarf was complimented and she said that her mother had painted on the colours. She told school friends that she had visited a number of cities worldwide over the winter break when she had not , bringing A into the lie. She is currently living with a couple from her parents home country and when she was presented with a typical meal she claimed not only that she had not tasted it before but that she did all the cooking. The mother has made it clear, and I accept, that the mother does all of the cooking and that the dish in fact, was one of B’s favourites.

[69]C is the youngest of the three. There is no doubt that she is adored by all and is indulged by all. There is a suggestion on the mother’s evidence that sometimes C herself plays rough with her brother.

[70]The court now considers the events that lead up to the allegations.

[71]The family arrive in 2019 and the evidence of Ms K is that there was very little opportunity prior to the first lockdown in March 2020 for the children to really integrate with children of their age because they were still learning the language. She told the court there was little opportunity to socialise and that the continuous rain did not help.

[72]Sometime prior to 15th September 2020, according to Ms K, the mother had come to her and reported that she was upset because the father had hit her. Ms K accessed pamphlets appropriately translated into Arabic and signposted the mother to local agencies, but the mother did not wish to follow this up. The mother’s evidence in this hearing is that she did not say that she was hit, but there had been an argument, which the children had heard, and the father had pushed her. Ms K said that the mother had said this had happened once before arriving in the UK, and the mother claims in her evidence that this, in fact, was the very first time.

[73]The impact of the first lockdown on these children was that any attempt for this family to settle into their community was significantly hindered. By September 2020 A starts at B’s school, but within a few days there are problems. He is reported to have hit a child at school and when asked what he would say if the school called the parents, he indicate an action with his fist. When he was asked what this meant, this meant that he would be hit, he said yes. He is reported then to hit another child in October and November and the court notes that during this time he was still requiring translation help at school.

[74]On 12th April 2021 it was the start of Ramadan and the court takes judicial notice that for 30 days from that date the family would have been fasting, breaking their fast only at nine o’clock.

[75]Later in April 2021, at 4.30pm, A turns up at Ms K’s home, which is close to the parents. He is holding a ChildLine card and has said that he has been given this by the school and said that his mother has hit him and that he wants Ms K to ring the number. Ms K is aware that the bus only comes in at four o’clock, so there has been very little opportunity for this to happen. When she asked him what had happened, he said that the mother had wanted him to change out of his school clothes and C was hitting him. He said that the mother hit him on the arms, but when Ms K asked to see his arms he changed the story to his legs and Ms K did not ask him to show her.

[76]After consulting with her child protection lead, Ms K went back with A to his home, where she said the mother told her that she had smacked A because he was throttling C and she did not want him to go out in the rain. Ms K said that the mother showed her a grabbing motion as she had tried to prevent him going out. Ms K said in her oral evidence:

“I took it that there was some physical contact to stop him throttling C and stop him going out.”

She went on to say that it became apparent from A’s continued behaviour, when he continued to be rough with C, that the mother only had physical means to try and control him and therefore she took A back with her until the father returned from work.

[77]In early May Ms K wrote a full account of this to the school and there was a MASH referral on 4th May. The parents had been asked as to when they were told that they would be visited by the social worker as a result of this incident. The visit in fact took place a month later . I accept the evidence of the parents that they first heard about this visit on that same day from another member of the relocation organisation, He informed them that there would be a visit and that same day Michael Anderson, the social worker, attended at the home. I accept the evidence from the parents that a translation service had to be used through a phone in order for them to understand why the social worker was there.

[78]The children are spoken to separately and A tells Mr Anderson that he had said that his parents hit them because they threatened to and that he was scared and then he said that:

“They had never actually hit me, but said that they will if I don’t do as they ask.”

Mr Anderson also records that C tells him that the parents do not hit them and that A does not always tell the truth. B says that she has never been hit or hurt in any way and that she has not seen them hurt her siblings.

[79]From this visit Mr Anderson concludes that there is no evidence that the parents over chastise the children and the alleged risk of harm is not substantiated. It appears that A, however, was still facing problems in settling in school.

[80]In May, prior to that visit, Ms K informed the court that A had turned up with the wrong trousers and shoes at school, that A had said that mother had told him to wear those items. Ms K had spoken to the mother and rang back to the school to explain that the mother was struggling with A and that mother had reported that she had told him that he should not wear the clothes that he had on for school, but that he had ignored her and continued to school. Ms K continued that she was aware that the mother was struggling with A, who was showing dominance towards her and his sisters. The mother in her evidence agreed that he would not do what she said on this occasion.

[81]The court is satisfied from having seen and heard from the mother, that she is trying to do her best to make sure that these children comply within the rules of the school. I accept, as Ms K recounted, that the mother did tell A not to wear the clothes that he was wearing but that he insisted on doing so and this is an example of him being untruthful when claiming that the mother had insisted that he wear them. It is an example of him lying and lying with the result that the mother would get into trouble.

[82]On 17th May A had an appointment with CAMHS and on 8th June the school log reports that on this occasion A was involved in an altercation with another boy, resulting in an injury to A’s head and eye.

[83]On 22nd June the girlfriend of Rufus reported to school that A was out with older children on the Friday at 11 pm and, knowing that he should be back by nine, they had walked him home and the father had answered the door, shouting in Arabic.

[84]Later in October A reports to a teacher that J has texted what he refers to as the ‘N’ word and when his texts are seen it seems that it is the ‘F’ word.

[85]On 3rd November there was a Team Around the Family meeting and on 5th November he is assessed by the educational psychologist.

[86]I now come to the main event that has triggered the proceedings. It would appear that on or before 24th November B tells her friend something about her home. because that evening the friend’s mother rings head of Year 7. He notes what the friend’s mother says, which is that her daughter had come home and told her that B had told her a secret about her family. The friend’s mother also reports that B had told her daughter that her parents hit her when she has done something wrong.

[87]So, just considering this piece of evidence, the court is aware that B loves to entertain and tell stories to people and to be the centre of attention and here it appears that she has told a friend that there is a secret. However when giving details of the secret she just goes on to say that when she is naughty she is hit.

[88]The court notes that what she could be describing here is a smack and appropriate physical punishment.

[89]Smacking in the UK is not illegal, but generally frowned upon and the court notes that most children brought up in UK households would not expect to be smacked.

[90]It is therefore not surprising that the friend was so concerned about this that she reports it to her mother. The fact that either B or the friend refers to this as being a secret perhaps gives the information a sinister connotation and suggests that it is something wrong that needs to be hidden.

[91]In any event, the friend’s mother relays the information to Head of Year. In his oral evidence he says that the friend’s mother tells him that B told the friend, that her B’parents, hit her. The head of year is told that in the third lesson that her friend had told B to tell a teacher. So, the court is now aware that as at 24th November it was the friend who wanted B to tell the teacher, not B.

[92]On the next morning the Head of Year speaks to the safeguarding lead, and they plan to speak to both the friend and B that morning.

[93]But what does B do? Does she go on her own and report this information to her form teacher? No. Something very different happens. The form teacher, says that that morning from the start of break the girls, two friends of B, and B, all poke their heads around her door. The form teacher says that it is not B, the one who likes to tell stories and be with adults, that puts herself forward, but it is one of her friends. She tells her the form teacher that they had a conversation with B, that she said something that has worried them and that they had told her that it was important to speak to her.

[94]The court considers that it is relevant that the push for B to report this information to the attention of adults came from B’s friends, not from B herself. What happens is that B is pushed forward to centre stage and now tells the form teacher what she says happened.

[95]I was impressed by the form teacher as a witness and consider that she was trying to be accurate and help the court. In her oral evidence she said that B was quite matter of fact when she was talking. There was no apparent distress on the part of B and the form teacher writes on a piece of paper what she says B has said. It starts as follows:

“Usually my family hit me. Yesterday we came back from school. My sister hit her nose and my father thought it was me, so he hit me. He hit me with his hand lots on my arm.”

[96]It is noted that, although B had said that her father had hit her yesterday, to the police later she said that this had happened two days before, which would have been just prior to her conversation with her friend.

[97]So, here she says that it was the practice of her family to hit her. She then describes an incident where the father thought that she had hit her little sister and so he then punishes her by hitting her. So, she is referring to a time when she is aware that the father thought that she, B, had done something wrong.

[98]The form teacher brings this to the attention of the Head of Year. The court notes that the form teacher was able to inform the court that B was a lovely girl and she agreed that B would tell stories. It was she who gave the example of an occasion when she complemented B on her headscarf and B had told her that her mother had painted the colours on it. She felt that B would tell stories just for the story and to continue conversations.

[99]The safeguarding lead, and the Head of Year then see B. There are two main joint accounts which they provide and they are almost identical. I refer to the CPOMS note, which notes as follows:

“B reported to ( the head of Year) and ( the safeguarding lead) that mum hits her with an open hand on her forearm. B says this happens when her younger sister, C, hurts herself. Her mum and dad think she has hurt C and they hit her. B says that this happened to her two days ago. B says that when this happens she won’t say anything and will go up to her room. When asked to describe how she feels, B says it makes her sad. B says she wanted someone to tell mum and dad that if her sister gets hurt it is not because of her.”

[100]So, here it is not B asking for anyone to tell her parents not to hit her, but is asking effectively not to hit her when she is not responsible.

[101]It is also of note, and I will refer to it later, that this is B again talking about being physically punished for being naughty.

[102]There is an allegation that B says that physical punishment was used by the parents towards A after Michael Anderson’- the social worker’s visit when they become aware that A has complained about them. This comes from B, but the court notes that the later statement of the Head of Year and the safeguarding lead does not repeat this and only reports that says they are told that nothing changed after that event and that the hitting continued.

[103]So, here the court notes that B is telling of being hit because it is thought that she has hurt C. It is similar to what she has said before . To a great extent therefore this is repeated information and talks about the parents hitting her as a punishment and that she felt that they had not understood that it was not her fault. It seems, as I have said, that the main message is not that they should not hit her, but rather that they should not hit her when it is not her fault.

[104]However, she is asked more. She is asked whether she feels safe at home. This is not an open question. This is not an ABE interview, there is no indication or reminder with regard to truth and lies. B responds that she does not feel safe, that she feels safe at school. It is then noted that B starts talking about her mother using a stick and the CPOM notes are as follows:

“B then disclosed that mum will sometimes use a stick to hit her leg. B says this happened when she forgot to do her maths homework. B says she has been hit 20 times in the last year. B showed the( safeguarding lead) and (the Head of Year) her forearms and that the marks were gone now.”

[105]Therefore what she showed was her arms with no marks. This information, however, is enough to prompt the safeguarding lead to set up a MASH referral and it appears that the strategy meeting takes place at school. Before the meeting ends , the police attend to speak to the children.

[106]The Head of Year is present when the police see the children . His note is that B reports to him that mother hits her on the leg with a stick at home, that B has said this happened after her mum found out that she had not done her maths homework; that B also reported that she took money from her father, so that she can buy cream from the shop for the marks that are left when the stick has hit. B says that her mum usually hides the stick in a cupboard. B said that she found the stick this morning in the washing machine.

[107]The police note is not as detailed. It notes that she says that she has been hit at home by her mother, who has used sticks to strike her on both forearms and legs and she said that this happened when she believed her mother was upset about her younger sister.

[108]So, here, again, B is giving more detail about the stick. B says now that as a result of the marks that she gets money from father; that there is cream that she puts on the marks; that the mother specifically found a stick to use and that the stick is usually hidden in a cupboard.

[109]So, with B now saying that mother has now found the stick she is now suggesting that mother has proactively sought out an implement with which to hit her and that it was hidden away. The suggestion here is therefore not that the mother would spontaneously hit her for punishment but that she brought home the stick with the intention that it would be used for inflicting punishment . This is a serious and sinister suggestion about the personality of the mother which is at complete odds with the view of Ms K.

[110]The court has noted that Ms K has said about the mother that she was very open about everything in the home; that Ms K was not restricted in what she saw or what cupboard she opened. Ms K said that she did open the obvious cupboard that B may have be referring to, but that she has never seen a stick there or anywhere else in the house .

[111]The court also needs to use common sense. Would it be likely that a stick that was used for hitting would fit into a washing machine and be kept there? The court considers this most unlikely.

[112]The court also notes that B pulls up her sleeves to show the marks and it is noted, of course, that there are no marks.

[113]A is now seen by the police and the Head of Year and the safeguarding lead. They note that initially A says that he has not been hit by either parent and has not seen B being hit by anyone. However, A is overheard talking to his sister, and saying to her that he has been struck. This is overheard by the safeguarding lead, who subsequently brings A back to speak to the police and A then confirms that he himself has been struck by his parents. He goes on to give explanation. He says that they would hit him when he has been too rough with C. So, here again, is A saying that he is a child who would get hit when he played too rough? In other words, when he was being punished for doing something wrong.

[114]A also said that B does get smacked by their mother when she has been naughty, and A said this included making C cry and stamping her feet upstairs, which they were not supposed to do. So, here, again, the main part of the report is that A and B get smacked when they do something naughty.

[115]The strategy meeting concludes that the children should not go home and it is agreed that the police will separate the children under their protective powers.

[116]There is another entry in the CPOMs where A says that they are only hit by mum, or slapped by mum, when they do something naughty and within this there is an entry that has noted that A says that within the phone call with his mother that his mother told him not to speak to anyone. That is denied by the mother.

[117]So, what is actually happening at the home when all this is going on? What knowledge does the family have? The mother is at work. She is cleaning in the pizzeria where she normally works and the father is at home. The children do not come home on time on the bus, so the father rings A.

[118]The father says that he is told by A that they are meeting with the police and that they should be leaving in five minutes. After 45 minutes the father phones again. This time he says that A informs him that B had made an allegation accusing the mother and that C would be removed.

[119]The father contacts Ms K, who immediately accompanies father to the mother’s work.

[120]There has been much evidence about the phone calls, about who spoke to whom, about what, and it is confusing. The father says that he had two phone calls with A and both he and the mother state clearly that the mother was not with the father for either of those calls. Yet, in the CPOMs record the safeguarding lead says he spoke to mum and dad on the phone. Neither the mother nor the father has a recollection of this and it seemed to me that the safeguarding lead himself did not seem sure. There is a lack of clarity as to who was speaking when.

[121]I am satisfied, however, that the father did speak to A twice on the phone. I am satisfied that A mentioned that C would be taken away and that the father got very upset during that second phone call and that B heard the father getting upset and she became upset. I am satisfied that the father’s voice was in distress and it was loud.

[122]I am not satisfied as to the fact that the mother spoke to A about not speaking about being smacked.

[123]So, who formally informed this family about what was going on?

[124]The answer is no one.

[125]No witness could tell the court as to which individual informed these parents that all three children were going to be removed and why. The safeguarding lead said that he spoke to the mother. He said that it was to his best recollection, when he saw A using the phone and speaking to the mother that he himself had also used A’s phone to explain matters as best he could.

[126]I was not particularly impressed by the safeguarding lead as a witness. He holds a very responsible role as safeguarding lead, but he seemed at times to be very defensive in his evidence, justifying his actions and arguing his case rather than simply setting out the facts.

[127]The mother had no recollection of being spoken to by anyone at school and I am not satisfied that anyone from the local authority or the school spoke to the mother about the police protection provision and why it was taking place and what was going on. Ms K was with the mother and the father when four uniformed officers came to see them with a purpose of removing C. The mother’s recollection is that they were asking the police for the reason why this action was being taken and that the officers claimed that they did not have the authority to inform them. No translator was present. They were dependent on the imperfect internet in that part of Devon in order to get some online translation.

[128]I have no doubt that seeing the officers turn up was traumatic. Ms K said that she could see that C was going to be removed in any event and so, therefore, in order to make things easier, she offered to go with C.

[129]There is a record that Ms K spoke to the police to inform them that she considered the mother a good mother and that the only physical chastisement had been appropriately when she had cuffed the children. Ms K confirmed that she thought when she used the word “cuff”, however, she did not associate it with any connection with the head and that she had not seen the mother cuff a child’s head.

[130]The court notes, sadly, that three days later the mother was found completely unresponsive. A mental health medical professional confirmed that, although she was taken to hospital, she came back very soon and the opinion was that her dramatic response of being completely unresponsive was completely proportionate to the trauma that she had experienced on having her children, including C, removed.

[131]It would appear that the view of the school, of the mother and the father were that this family was in crisis and they were not being properly informed.

[132]Although the children were removed , it has been the evidence of the mother and the father and indeed the school, that not until Tracy McCann became the allocated social worker was there proper communication between the Local Authority and the parents. The parents say that since her appointment there has been a sea change. They have been kept informed.

[133]Since the allocation of Tracey McCann, the parents have been able to cooperate as best they can, with the tuition offered and they have been able to cope with contact better. The placements also have been better suited.

[134]B has continued to apparently grieve over what she refers to as her lies and stories that led to this family being split. The court notes and has had sight of the current carer’s book which repeats notes of B telling the carer that it is all B’s fault for her making up stories. I have read the carer’s diary and I note that there are the following entries.

[135]On 19th May, the foster carer of B who was born in the same country as B’s parents notes the following ::

“There’s a boy who have hitted B in school. That’s what B said.”

[136]“On 20th May Tracey told the carer that no one hit B”. The court notes that this is an example of B being untruthful about something someone did. This was not an entertainment. This was not trying to continue a story. She was telling an untruth.

[137]At the end of the diary B’s carer notes in the general things that she says about B that:

“She talks with a doll a lot because she thinks it is her mum and keeps apologising that it was her fault to separate them by lying.”

Further to that she writes: “She lives to make up stories from her head” and this is something that is repeated frequently within the diary.

[138]This local authority has been faced with considerable problems in trying to find appropriate placements for the children and, and very sadly for these children, this has led to them experiencing a number of moves .

[139]A, has been moved six times and is now in a residential assessment placement.

[140]B has moved seven times and even little C four times. I understand that B and C are now in placements that are known to the parents.

[141]The distress of the children and the parents at their separation seems to have taken the local authority by surprise. In the early days between the date of the children going into care and the allocation of the current social worker it seems that the local authority were expecting B to keep calm in order to help C keep calm.

[142]The court was not impressed by this evidence of the then social worker when she accepted that she had explained to B that unless she was calmer that not only contact may have to be stopped but that C might be removed from her placement.

[143]The court has not been required to make any findings about the local authority concerning this case and their interaction with the children. But the court does note that the records make very concerning reading, especially on one occasion. This was when, after the social worker had warned B that C might be removed from living with RC if she could not be control her emotions , RC returns from school to find C has been removed from the home . She is given no notice – she has been told in terms that she , B needs to control herself or C might be removed.

[144]One can only imagine the guilt that B must have felt – believing from what she had been told by the social worker, that she must have been responsible for C now being placed on her own .

[145]No ABE interviews were ever undertaken of the children. These children have repeatedly tried to retract what they had said.

[146]So, what has happened in this case? The very fact that there are no ABE interviews does not preclude the court from considering whether there is evidence enough to come to the conclusion that on the balance of probabilities there had been physical abuse or excessive chastisement. But the court does note that the absence of ABE interviews means that neither of these children had the advantage of the explanation of the truth and lies and in the context of B, with her prolific tendency to story telling and telling lies, that is a relevant issue.

[147]The first analysis this court has to consider is whether there is evidence to support the children having been physically disciplined in any way, or touched by the parents through discipline.

[148]The court considers it is helpful to consider a number of factors which support the allegation that, contrary to what the parents say, they do in fact on occasion physically punish the children. I set these out in a bullet point list:• A has hit other children at school;

• Ms K had noted that the children were very physical with each other, such as smacking each other;

• Hitting was normalised in the soap opera that they watched;

• Ms K had seen the mother cuffing the children in order to get them away from the computer;

• Mother herself had accepted that when she had seen A holding C at the throat that she had flipped her hand quickly at him, effectively slapping him away;

• A was a big child and was seen more than once by Ms K as being aggressive with his much younger and much smaller sister, C and that it would take common sense to realise that it would be difficult for anyone to control him without some physical discipline;

• In April, when A had reported his mother for hitting him and Ms K went to the mother’s home, Ms K was concerned that the mother would only be able to try and control A through something physical;

• A considered himself as ranking number two in the family and that, therefore, it was bound to be difficult for the mother to control him;

• The parents gave evidence that when living in the country they had moved to before they moving to the UK, the children were disciplined at times at school by being hit with sticks. The parents had not objected to this. The parents’ response to this is that they had not approved of their children being hit by sticks, but they noted that it was the custom of that country and that as refugees they felt that they could say nothing;

• Ms K noted on an occasion when the father was angry that he raised his hand. The father’s response was that this was in fact a habit and he uses his hands to express himself, but Ms K felt that he was raising his hand to the children;

• B had told her form teacher; had told the Head of Year and had told the safeguarding lead that she was physically punished when she did something wrong and A confirmed this, giving examples of things that B did which resulted in punishment.

• A himself informs the police that his parents only hit B when she is naughty; the Head of Year asked A to clarify this as he had told the police that this did not happen and A confirms that B does get hit, but it is only when she is naughty. He said that B will hit C and shout at his mum and A tells DC White that he himself gets hit when he does something wrong.

[149]The parents have refused to accept that they would smack the children or physically punish the children as a usual punishment. It is the view of the court that they have not been truthful about this. The court reminds itself of the Lucas direction, that people can lie for many reasons. The obvious reason here is that these parents realise, to their cost, that the UK is very sensitive about parents using their hands against their children, even for reasonable punishment and they are now refusing to admit it. The court considers the cultural context of this family. If they smack the children, could they not be doing so because it was something that they were used to?

[150]The finding of this court is that the weight of the evidence satisfies the court that the children have, at times, been physically disciplined by the parents. However, the court needs to consider whether that physical punishment was abusive or excessive.

[151]In the English language there are lots of words that might be used for physical punishment, such as tap, cuff, smack, push, beat. All of them indicate a movement and some of them the degree of the force. The court has been informed that there are not the same number of words in the Arabic vocabulary to distinguish between these various actions and the court has been helped in understanding the descriptions of actions by the action being demonstrated.

[152]Ms K told the police that the mother would cuff the children, by which she meant a quick movement of the hand, but not to their heads, and the mother accepts that she would do that to A and accepts that she had to pull A. The children use the words hit, smack and slap.

[153]I look first at what evidence there is concerning the parenting of the children and what was reported by them, I note, of course, that these children did not evidence any marks on them at all. It is accepted that the children were never asked about the degree of force used.

[154]So, what is the evidence that helps the court to have a context of any physical encounter?

[155]Looking first at the fact that the evidence of Ms K, who spent so much time with this family between September 2019 and March 2020, was that she never saw the parents hit them. All she saw was the father raising his hand. The court notes that if these parents were using excessive punishment, physically abusing the children without reason, hitting them all the time, that Ms K would have seen some of it.

[156]Next, and the court considers this a very important evidential factor, the main account by B and by A, which was given to more than one individual, was that they were only hit when they were naughty, ie, in the context that there was punishment, and the court notes the various behaviours that A described that would end in a punishment.

[157]Further, there were no suspicious marks seen on the children and if smacking or cuffing were used with extreme force one would have expected some marks to be evident.

[158]The court notes that if a stick was used that that would suggest excessive punishment and, concerning the issue of the stick, A only comments that he was threatened with a stick. It is not one of the findings sought. It is B who gives the details about being hit with a stick.

[159]When considering B, the concern of the court is that she is enjoys story making. It is now understood that she had been hit the evening before she talks to her friend for something that was not her fault. The court can infer that she felt that she had been wronged.

[160]The court notes that she does not mention a stick to he3r form teacher. When things escalate and she is taken to the Head of Year and the safeguarding lead she starts her account of a stick. However, by the time she talks to the police her account is far more extravagant.

[161]She is talking now of regular use of the stick, about where the stick was found, where it is kept. It is the view of the court that real caution needs to be exercised when considering what B reports. She is universally regarded as a child who tells tales. The court has found an example in the carer’s diary where she told another untruth about someone hitting her at school. B says that the stick was picked by the mother. The inference is that this was a weapon, an implement, selected by the mother, to be kept secret for punishment. Ms K knows this mother well – and I accept her evidence that B’s evidence is not consistent with the open welcoming woman that Ms K knows.

[162]I accept that the mother is a kind, gentle woman and that she was very open about her home and that there were no areas of the home that Ms K was not allowed to see. The suggestion that a stick would be kept in a washing machine perhaps shows how far B’s imagination had gone.

[163]It is noted that A does not talk about a stick being used on him or C when they were being punished. He only mentions the father running after him with a stick. The court view is that this reference is not enough to make it probable that sticks were used in punishing the children.

[164]In considering the above points and all the other evidence, the court is not satisfied on the balance of probabilities that there has been any excessive chastisement or physical abuse.

[165]The court reminds itself of the words of Mrs

Justice Pauffley in the case of Re A cited above :

[166]Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country,children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. This is what has happened in this case. This court is satisfied that there is no evidence to suggest that either A or B had “suffered more than sadness and transient pain from what was done to” them. I do not therefore find allegations 1,2,3,or 4 proved. I do not accept that the parents influenced the accounts of the children – therefore I do not find allegations 5 or 6 proved. I do not accept that the evidence supports a finding that there is “dysfunction “ in this family . The evidence simply shows that this is a family from a different culture I therefore make no finding re allegation 7.

[167]This court, as has been explained, has found the evidence of Ms K invaluable. Her evidence was that she had never been spoken to by Social Services. It is perhaps a lesson to be learned in a case like this, where different cultures are involved and there is a support worker, that such consultation can be useful and can prevent misunderstandings. - - - - - - - - - - - - - - -