A Council v B & Ors [2007] EWHC 2395 (Fam)

[2007] EWHC 2395 (Fam)Case No ME06C00128
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/10/2007
Before
THE HONOURABLE MR JUSTICE CHARLES
Between
A Council(Applicant)B and Others(Respondents)
Janet Mitchell & Judith Pepper (instructed by A Council) for Local AuthorityJudith Rowe QC & Kevin Jackson (instructed by Pearson & Co.) for MotherMarianna Hildyard QC & Isabelle Watson (instructed by Gregory Rowcliffe Milners & Church Bruce) for FatherMartha Monday (instructed by Davis Simmons & Donaghy) for RSam Whittam (instructed by Bindman & Partners) for SStuart Fuller (instructed by Stantons) for Guardian ad LitemHearing Hearing dates: June 11 - 29, July 2 - 3 & July 9 - 13, 2007
Judgment

Charles J :

[1]This is a fact finding hearing relating to public law proceedings concerning three children of the family.[2]I am giving this judgment in public in an anonymised form. If by accident one of the subject children or their family is identified in it I direct, and shall make an order, that that identification should not be further publicised without the leave of the court. Further I direct and will order that without the permission of the court the children and their family should not be publicly linked to this judgment by anyone who knows their identity from any source.[3]The subject children are R, N anda. A. They are two girls and a boy respectively. N and A are the children of Mr and Mrs B (the father and the mother). R is the natural child of the mother and was adopted by Mrb. B. Her father is dead. R , N and A were born in 1992, 1999 and 2002 and are respectively now 15, 8 and 5 years old.[4]R has an older brother S, who was also adopted by Mr B. He was born in 1990 and is now 16 years old. R and S have been separately represented before me and both gave evidence. N and A have been represented by their Guardian.[5]Mr and Mrs B began to live together in August 1996 and married in 1998.[6]The main reasons why I have decided to give this judgment in public are that: i) in my view this case gives rise to issues of law and policy concerning the approach to be taken at both stages of public law proceedings (namely the jurisdictional stage and the disposal and risk management stage), and ii) this is a case which demonstrates difficulties presented by families to public authorities applying a welfare test when, as is not uncommon, members of the family do not do their best to give a full and truthful account. In my view the public interest is served by judgments in such cases being placed in the public domain.[7]What a witness has said and written in evidence has to be assessed in the context of all the written and oral evidence and any overall favourable or unfavourable impression reached when a witness has completed his or her oral evidence can only be a preliminary one.[8]At this stage I record that sadly in the case of each of the main family witnesses (namely in the order they gave evidence R, S the mother and the father) and of the witnesses called by the parents when that person finished giving their oral evidence: i) I was of the view that each of them had not done his or her best to give me a full and truthful account of all the matters about which they gave evidence, and thus ii) my preliminary view was that I could not place weight on any individual parts of their evidence on the basis that it had been given by a witness who had impressed me as a person who was doing his or her best to give me a truthful and accurate account of relevant events.[9]Having heard all the evidence and submissions and revisited the papers I am confirmed in that preliminary view of those witnesses. In my view they were all witnesses who were in large measure speaking to an agenda and, with their aims in mind, were prepared both to minimise and exaggerate to extents that rendered accounts of events untruthful and unreliable, and simply to lie.[10]Sadly therefore in the cases of the parents, S and R and the witnesses called by the parents I cannot place reliance or weight on their evidence as to any of the disputed allegations on the basis that generally they impressed me as witnesses of truth.[11]This contrasts with witnesses called by the local authority. But, as outsiders to the family, they can only give evidence as to the incidents they have seen or heard.[12]The members of the family and the witnesses called by them have therefore presented the court and the local authority with a difficult situation. As will become apparent there has been a culture and practice in the family of making allegations both against outsiders and members of the family. Many of those allegations are now accepted to have been false. Others I find in this judgment to be false, in particular(a) many of the allegations made against S in July and August 2006, and(b) allegations made to, and about, schools. This and other findings in respect of the members of the family mean that arguments that allegations recorded close, or closest, to the happening of the relevant events (e.g. in police records) are likely to be more accurate, have little or no weight when considering the changing and developing allegations made by members of the family and that dramatic descriptions have to be treated with care.[13]A number of the concessions made by the parents in the earlier stages of the proceedings have been shown to be far from complete, and self serving.[14]The local authority, the Guardian and the court have therefore at public expense been presented with untrue and incomplete accounts by the relevant family members and witnesses called by them. Sadly one of the results of this is that a very considerable amount of public funds and valuable court time has been misused by, and wasted by, this family.[15]I hasten to add that I have been greatly assisted by the legal representatives of the family and record that absent their assistance it is inevitable that even more time would have been taken up considering the history, and events in the lives of the family, with the result that even more valuable court time would have been wasted in searching for the truth.[16]That general assessment of the main family witnesses increases the difficulty of the task of making findings of fact on the serious allegations made in this case to the civil standard.[17]The representatives of all the parties in submission understandably placed considerable weight on common ground, third party confirmation and reasoning based on amongst other things(i) sequences of events,(ii) the detail of the development of the evidence of a person in the numerous statements before the court,(iii) other findings that the court was invited to make and(iv) common human reactions, when inviting me to accept their client's account of and concerning the serious issues that are in dispute.[18]A significant problem in identifying which of the competing accounts is more likely than not to be true is that, as was done, reasonable competing arguments can be advanced in respect of many parts of the reasoning process and in particular the reasons advanced as to why a witness did act, or might have acted, in the manner asserted by that witness and the inferences and conclusions to be drawn therefrom.[19]In a schedule to this judgment (Schedule B) I comment further in general and specific terms about the main witnesses.[20]Finally, at this stage I comment that the approach and evidence of the family (namely the parents, S and R) and the witnesses called by the parents has resulted in the fog referred to by Lord Nicholls in Lancashire CC v B [2000] 1 FLR 583 at 588H / 589C) being a thick one.

The conceded and disputed facts

[21]The disputed facts were relevant to both the establishment of jurisdiction (threshold) and the order that the court should make (disposal). In fact threshold is conceded by both of Mr and Mrs B and the purpose of finding facts in addition to those that are conceded for this jurisdictional purpose goes primarily to disposal. It was in my view correctly effective common ground that findings over and above the combined effect of the concessions need to be made to enable properly informed decisions to be made as to disposal (as to this see for example Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728 and Re W (Threshold Criteria: Parental Concessions) (2001) 1 FCR 139).[22]The conceded significant harm, or likelihood of significant harm, in respect of each child can be categorised as physical harm, emotional harm and/or neglect, and harm to the children's social and educational development. The concessions are that the threshold criteria is made out in respect of both the mother and the father. It is common and correct ground that the relevant date for the establishment of the threshold criteria is the date when protective arrangements were initiated, namely 30th October 2006, when interim care orders in respect of all three children were made.[23]Schedules of allegations have been prepared. These identify in general terms the ambit of the allegations made and the conceded and disputed facts. They show that there are a considerable number of cross allegations within the family. The schedules are background reading for those involved in the future in making decisions regarding the family. Further relevant and important reading for those so involved in the future are the final written submissions put in by counsel for all the parties.[24]The local authority provided an updated document containing the findings sought. The parties have responded to that document.[25]The incidents and matters covered by those documents range over a number of years. They cover a number of matters about which I have not heard sufficient evidence to enable me to make findings. The parties have very sensibly(a) concentrated on particular events and allegations,(b) asked me to make findings about a number of such events and then(c) in the light of those findings, the background set out in the papers (and thus the common ground, assertions and disputes therein) to make further findings as to allegations (including those of sexual abuse) and the relationships within, and the dynamics, of the family.

Headings and my general approach

[26]As was common ground it is important to stand back and take an overview of all the evidence but for the purposes of explaining the extent and nature of my findings and the reasons for them I shall deal with the issues under headings that I hope are self explanatory and provide a sequence to the reasoning. The final step in respect of each finding has however involved an overview.[27]There is an overlap between many, if not all, of the factual issues.[28]As will be seen in my reasoning process I have not taken a strictly chronological approach because in my view it is helpful to start the reasoning process at stages where there is a considerable amount of reliable (and effectively undisputed) third party information. Their places in the chronology and history of events are of course relevant and I have prepared some chronologies which I have included as schedules to this judgment.[29]It seems to me that it is necessary and easier to assess the accounts of events by reference to chronologies and thus for them to be contained in separate documents for cross reference. They are: i) Schedule C. A short or skeleton chronology. ii) Schedule D. A chronology with comments covering the aftermath to the assault by Mrs B on S on 21 July 2006. iii) Schedule E. A chronology with comments concerning the allegations to sexual abuse relating to N. iv) Schedule F. A chronology with comments concerning the allegations of sexual abuse made by R against S and a friend of S. v) Schedule G. A chronology with comments and quotations from the evidence relating to the allegations of sexual abuse made by R against Mr B.[30]I have also prepared a schedule (Schedule H) covering some and containing findings relating to some of the incidents and allegations of domestic violence.[31]The local authority has prepared a number of chronologies, they and the composite schedule of allegations prepared by the local authority, are likely to be helpful background reading for those concerned with making decisions relating to the family at the next stage of these proceedings and in the future.

The nature of the main allegations

[32]The three main themes relate to(a) domestic violence and turmoil,(b) schooling and the relationship with schools and(c) sexual abuse.[33]The alleged violence is between the parents and towards the children. The allegations cover physical violence as well as heated arguments and vocal abuse.[34]Harm to S and R in respect of their schooling is accepted as is the point that the mother behaved inappropriately and abusively to schools and teachers. The degree and nature of the father's support for this behaviour and the involvement of the children S and R in it, is an aspect of the dispute concerning the relationship between the parents.[35]Allegations of sexual abuse are made against the father, Mr B in respect of R and against S in respect of N and R.[36]R has refused a medical. The medical of N reveals nothing abnormal.[37]The allegations in respect of N include a report of behaviour that her school thought might be sexualised. If so that might be an indication of sexual abuse but it does not provide any indication as to who the perpetrator might be.

The general position of the parties

[38]By the time of the hearing none of the parties was seeking a finding of sexual abuse against S. However in my view correctly given the allegations that had been made, and their place in the history of events, the local authority was asserting that these allegations needed investigation. Following that further investigation, in my view correctly, the only finding sought in respect of these allegations was one exonerating S.[39]The local authority in its final submissions sought a finding that R had been sexually abused as (or generally as) she alleged by Mr B over a number of years. That finding was supported by Mrs B and was naturally also sought by R. Mrs B's position was that she had no knowledge of that sexual abuse over the years. In that she was supported by R. However the local authority sought a finding that Mrs B either knew about it and failed to protect R from it, or that she should have known about it and have protected R from it.[40]Mr B asserts that the allegations of sexual abuse made against him are false and that in making such false allegations R has been either: i) expressly and directly encouraged and coached by her mother, Mrs B, and further or alternatively ii) indirectly so encouraged. In the case of(i) Mr B maintains that it is an example of, and part of, the mother's general approach to conflict and dispute which is, and has been, to make false allegations with the help and compliance of the children against persons who cross her, or with whom she has a dispute. In the case of(ii) Mr B maintains that it is the product of that general approach of the mother.[41]An aspect of Mr B's overall case is that he was one of the victims in an abusive household dominated and controlled by Mrs B. He says that in the main she was the aggressor both physically and verbally in the domestic violence both towards him and the children.[42]Mrs B asserts that in the main she and the children were the victims of physical and verbal domestic violence from Mr B. As I have said she also asserts that R (and only R) has been the victim of sexual abuse by Mr B.[43]There are some admissions as to domestic violence. An issue under this heading as to which there was movement during the hearing concerned whether S and R were hit with a belt. It became common ground that they both were but dispute remained as to whether they had been so hit by both Mr and Mrs B, or just by one of them. It was however common ground that if only one of the parents did so beat the children the other was fully aware that this was being done and failed to take any, or any effective, steps to prevent or ameliorate it.[44]Mr B asserts that the relationship between the son of the mother's new partner and R during and following the summer months of 2006 had an inappropriate sexual element. That son (Mr S junior) was in his early twenties and R was 14. R maintains that the relationship was equivalent to a close sibling relationship. Mrs B says that at the time she thought that that was the nature of the relationship but now accepts that to an outsider it demonstrated a number of worrying signs that it might contain an inappropriate sexual element. The local authority supports the view that the relationship had an inappropriate sexual element.

Approach in law

[45]I set this out in a separate document attached as Schedule A hereto.

General comments and findings about the witnesses

[46]I have already made some introductory remarks on this topic. I have prepared a schedule containing further comments and findings. It is attached as Schedule B.

Initial comments in respect of domestic violence, volatility and aggression within the household

[47]The concessions establish the threshold criteria on this basis. But in my judgment the combined concessions of both parents fall well short of providing a full and proper picture of the extent of the patently harmful and damaging aspects of their parenting and the home environment in which the children were brought up.[48]The combination of the physical and verbal violence, abuse and relationships within the household and the antagonism both between members of the household, and them and persons outside it, had the result that the children were being brought up in a fraught household in which they had no realistic prospect of being able to develop as young children, and then as teenagers, into adults against a background of emotional and physical stability or in which balanced and reasonable approaches were taken to the events of every day life.[49]Indeed the concessions and common ground within the disputed allegations demonstrate that all the children were being raised within a household containing and exhibiting and characterised by domestic physical and verbal violence and abuse, a volatile relationship between the mother and the father, conflict between S and R (and in particular S) and Mr and Mrs B, and conflict between S and R.[50]In my judgment the conflict between S and R went well beyond the degree of normal teasing and winding up between siblings (albeit that some of it can be so described). That inter sibling relationship, as with all relationships within the household, was characterised by extreme verbal aggression, regular threats and some physical violence.[51]All these elements are underplayed by the parents in their concessions and I shall make findings as to specific events which found that conclusion. I do not make findings on all the disputed events of physical and verbal violence and abuse. Rather I have selected some of them.

Initial comment on the discussion of sexual matters within the family

[52]It is effectively common ground, and in any event there is a significant amount of material to support the conclusion which I reach, that the family openly discussed sexual matters and allegations relating to sexual matters. Included within that material are the following: i) the point that the mother had told both the older children (S and R) that she and her sister had been sexually abused, ii) the evidence, which I accept, that S told R that the mother had said that they were both the product of rape. The mother did not dispute this and to my mind callously said in her evidence that although S's father was violent and abusive she wanted both her children to have the same father and therefore "needs must", iii) a letter and MSN messages to which R was a contributor contain a number of sexual references, as do accounts given (and allegations made by) R to the police, iv) a number of allegations of sexual abuse have been made by Mrs B and R that are distortions of what occurred, and treat horseplay or jokes as sexual abuse or inappropriate sexual conduct, v) a diary entry on its face written by N has a sexual content, vi) the children S and R were involved in the 2002 and 2005 incidents and the discussions which followed relating to the possibility that R had been sexually abused by Mr B, vii) as appears later the incident in 2005 that gave rise to the confrontation that followed was based on an allegation or suspicion by S that what he saw this was inappropriate sexual rather than some other inappropriate conduct, viii) S is recorded at school as asserting that a teacher should not take photographs because the teacher might be a paedophile, ix) the account of what R says she was told by N in 2005 relating to the conduct of S (namely that S had put his willy near my minny) was it seems taken by all the family as an allegation of sexually motivated behaviour although not treated as such following S's denial that it had occurred, and x) the older children (S and R) were not excluded from a whole range of discussions with for example the schools and the discussions and investigation of the concerns raised relating to N by her school in 2006 by reason of their ages or levels of understanding or their general welfare concerning what they should be involved in.

The allegation culture within the family

[53]There is clear and convincing third party evidence concerning this in connection with: i) the investigation and aftermath of the incident between S and Mrs B on 21 July 2006, and ii) the problems with the schools.[54]That clear and convincing third party information from social workers and teachers renders the making of findings in respect of these matters easier than others and the behaviour of the family in respect of them provides an insight based on reliable material into the behaviour of the family. My conclusions relating to these matters, and the insight they give, are relevant to and inform many of my other conclusions. (A). The investigation and aftermath of the incident on 21 July 2006

Introduction

[55]This event was an assault by the mother on S on 21 July 2006.[56]At the beginning of July 2006 there had also been an investigation prompted by N's school as to possible sexual abuse of N. The investigation following this referral had effectively been closed by the time of the assault on 21 July 2006 but the referral again became a relevant issue because after that assault S was accused of sexually assaulting N.[57]During the course of the hearing I invited both the mother and the father to persuade me that my initial and preliminary view of the aftermath to the assault on 21 July 2006 was not a vicious and unwarranted campaign against, or attack on, S. They failed to give any sensible reason why this was not a fair and accurate conclusion. I make that finding.[58]The assault on 21st July 2006 and the accusations made against S by members of the family that followed it prompted a police investigation and police interviews as well as investigation by the local authority.[59]The following are instructive: i) the positions of the mother and R concerning the detail of the incident on 21 July 2006, ii) the stark contrast between(a) the approach and stance of the family (and in particular Mrs B and R) to the investigation and interview in early July 2006 relating to the referral concerning N, and(b) the allegations made against S that he sexually abused N after the incident on 21 July 2006, iii) the allegations made by R against S that she was sexually and physically assaulted by S, iv) the behaviour of, and threats and other allegations made by the mother (and R), v) the general involvement of Mr B in the campaign, and vi) the involvement of R in the campaign.

The accounts given by Mrs B and R of the incident on 21 July 2006

[60]There is a considerable amount of common ground about the events leading up to this incident. This includes the points that Mrs B and Mr S senior were planning a short trip to Cornwall for the week-end, N and A were staying with Mr B at his parents for that week-end and had been picked up before the incident occurred. A neighbour was having a party and a number of guests were standing outside the front of her house and witnessed the incident and there had been a build up problems with S who was behaving in an annoying way.[61]Initially the accounts given by the mother and R were in general terms, and as to a considerable amount of the detail, supportive of each other and were to the effect that S was the aggressor. Mr S senior also gave a statement that was generally supportive of the mother.[62]R's account is that she witnessed the incident and was close by when S and the mother were in the street. She is not supported in this by the neighbours or Mr S senior in their oral evidence, who do not remember seeing R being close to the fracas between Mrs B and S.[63]Mrs B has changed her account and accepts that she was the aggressor and "lost it" with S and bit him. R has however maintained her account.[64]The account given by the neighbours has some inconsistencies of the type one would expect from witnesses trying to give an accurate account to the best of their recollection. Their account is in general terms consistent with that now asserted and accepted by Mrs B namely that she was the aggressor chasing S down the street attacking him and that around the corner she bit him.[65]I acknowledge that prior to the incident S had been acting in an annoying and provoking way and Mrs B had understandable reasons to be annoyed with him. The precise details of the incident are not in my view relevant, save that they found the conclusions that(a) Mrs B assaulted S and bit him on the arm, and(b) when comparing the account given by neighbours with that initially given by both Mrs B and R the differences are such that they found the conclusion that in general terms one of the accounts is false.[66]I accept the neighbours account and therefore conclude that in giving their first (and very similar) accounts both Mrs B and R must have discussed the incident and on the basis of that discussion they both knowingly gave an untrue account which was supportive of the mother.[67]It follows that in not resiling from her account R was confirming an account that she knows to be inaccurate and untrue, and was therefore continuing and confirming an account in which she lied. This is of course relevant to her credibility but does not establish that she is not telling the truth about other matters. The stark contrast between(a) the approach and stance of the family (and in particular Mrs B and R) to the investigation and interview in early July 2006 relating to the referral concerning N, and(b) the allegations made against S that he sexually abused N after the incident on 21 July 2006,[68]At the time of the investigation earlier in July 2006 (during the course of which a police officer first spoke to Mrs B on the telephone and then she and a social worker visited the home on 7th July and saw Mrs B and all four children were there) neither Mrs B nor R raised any concerns that N may have been sexually abused by S (or by anyone else). Given the serious allegations they made later that month and in August 2006 against S, Mrs B and R have not explained: i) why they did not do so, or ii) why, if in early July they did not think it appropriate to raise such concerns with the police and the social worker at all or at the meeting because S was there, those concerns were not raised with S, or in the family as they had been in 2005 when S denied any inappropriate behaviour with N.[69]I add that it is not clear whether Mr B knew any of the detail of the interview on 7 July and whether it was discussed between him and Mrs B. Neither say that it was. The evidence was that S told Mr B the visit was about concerns raised by her school about N.[70]I accept that an explanation could be that the truth is that the mother, the father and R all thought that there were no concerns arising from the allegation reported by R the previous year that N had told her that S had put "his willy near her minny". Indeed that is the effect of their evidence relating to the earlier discussions with S in 2005. So one asks: Why the change after 21st July?[71]An alternative explanation could be that they thought that S had abused N but were content to do nothing about it. Although in July 2006 Mrs B gave incorrect information to the police officer concerning N's referral to hospital, this explanation was, in my view correctly, not suggested by anyone. Nonetheless, in my judgment the mother gave this incorrect information about N's hospital referral and advice knowing it to be untrue to allay the concerns raised concerning the discharge in N's knickers and thus any further investigation of this.[72]The position therefore is that on the evidence of the family the comment made by N the year before to R was that S had put his willy "near" N's minny and the family had accepted that nothing inappropriate had occurred and had no concerns that N was the victim of abuse by S or anyone else; the earlier discharge of blood which prompted the visit to hospital having been caused by a kick from A.[73]From that starting point, in my judgment it follows that when all three of the mother, R and the father assert in the aftermath to 21 July 2006 that N had said in 2005 that "S had put his willy in her minny" in connection with an allegation that S has, or may have, sexually abused N, they were knowingly: i) giving an untrue account, and ii) making a change from the truth that rendered the allegation far more serious.[74]R gives this account on a number of occasions in her police interview and it cannot be a mistake, or explained as a misrecording. Both Mr and Mrs B attempted to explain their assertions to this effect as a misrecording. I do not accept that that is a plausible explanation and in advancing it in my judgment they were both aware that it was untrue because they know that the recordings accurately set out what they had said at the time.[75]In my judgment in making this allegation all of Mrs B, Mr B and R lied and therefore knowingly made a false allegation against S as part of Mrs B's campaign against S triggered by her fear that S would support a prosecution of her and thereby damage, or end, her prospects of becoming a teacher. The allegations made by R against S that she was sexually and physically assaulted by S,[76]There is a significant and clearly deliberate change in respect of the "pepper incident" in that at this stage S is said to be the prime culprit whereas when first reported to the police it was his friend who was reported. (S was however put forward as a culprit in respect of this incident in the list prepared by the mother of violent behaviour of S, in it is thought 2004, and which she gave to social services). R also at this stage asserts that her mother knew about the incident at the time. I accept that, and thus find that Mrs B knew of this incident at the time it occurred and therefore that the first report to the police is an example of late reporting.[77]It is therefore clear that R (and her mother) are not giving (or supporting and therefore advancing) consistent accounts of this incident. In my view the responsibility for the events that took place lies with both boys and what R (and the mother) have done is to use the incident to found an allegation against the boy that was then "in their sights". In any event in my judgment as both the mother and R well knew at the time of the events, and the times when they reported them, the events could not fairly be described as sexual abuse particularly having regard to the general relationship between R and S.[78]It follows that in my judgment in making the allegation of sexual abuse against S that she did in respect of the "pepper incident" R (with the support of her mother) was knowingly making a false allegation of sexual abuse to achieve an end.[79]As to the other allegations of sexual and physical abuse made by R against S to the police and the social worker in July and August 2006 in my judgment the general position is that they are knowingly exaggerated, or used in an unfair way to support an attack on S instigated initially by the mother because of her fears that a prosecution in respect of her assault on S would ruin or harm her career as a teacher.[80]In reaching that conclusion it is not necessary to make findings as to each of the allegations, indeed in my judgment given the relationship between S and R, their ages and the general approach of them both to the discussion of sexual matters (shown by, for example, the letter written by R and her friends concerning R having sex with a man in his early twenties and her MSN messages) if the allegations are treated as being a reasonably unexaggerated and truthful account they do not amount to sexual abuse. As is now effectively accepted by R and Mrs B they amount to annoying and no doubt at times very annoying horseplay.[81]I do not accept that R (or Mrs B) has now come to that appreciation and at the time R made the allegations she (and Mrs B) thought that they amounted to sexual abuse by S. In my view that conclusion is supported by the changes in the "pepper incident" and the dynamics of and relationships within the family. The behaviour of and threats and other allegations made by the mother (and R).[82]There is clear and effectively undisputed evidence that the mother put S's belongings in the shed and some of them on the wall dividing her home from that of Mr and Mrs K. This is a physical demonstration of her great hostility to S at the time. As is her threat to prosecute him for stealing his own bicycle. It is part of her all out attack on S at this time because of the threat that she might be prosecuted. She does not appear to have given any thought to her responsibility for the attack (even though I accept that she had grounds for being very annoyed and angry) or the effects that this alienation might have on S.[83]The mother made clear threats to ruin S's life if he was to support a prosecution of her. She carried this threat out by making false allegations against him of sexually abusing N (and herself although these allegations have not formed part of any investigation or questioning before me) and in supporting allegations of sexual abuse and physical abuse made by R.[84]The mother and R both say that in late July 2006 a diary of N's was found and its sexual content was linked by Mrs B to the abuse alleged against S, although there is no link as such in the language. It was the view of the head teacher at N's school that it was unlikely that N could have written this entry unaided; I agree. On the evidence the only possible candidates for the persons who so assisted her are the mother and R. In my view this diary entry was introduced by them (even if one of them did not know that the other had played a part in its production) as a part of the attack on S. (It is also of note that it does not seem to have prompted any concern by R that N was being abused by being kissed by Mr B, which is part of the abuse and (in counsel's language) the grooming of her by Mr B alleged by R).[85]I also reject Mrs B's evidence and report to the police that in late July N of her own volition had raised the issue of S putting his willy near or in her minny. In my view this did not happen but if N did say something about it at this stage that was prompted by what was being said at home about the assertion and discussions about it the previous year triggered by the mother's reaction to the prospect that she might be prosecuted for assaulting S. The existence of such discussions is a natural consequence of the mother's reaction and assertions to outsiders and is supported by the clear indications from N's ABE video that N had discussed these matters with her mother.[86]There is also a record that the mother also said that N had made disclosure at her brother's nursery school. There is no other evidence of N having done so and I do not accept that she did.[87]Mrs B also made allegations against Mr and Mrs K,(a) of sexual abuse against Mr K and(b) concerning their treatment of their children. This is a good example of her approach (and that of the family) to attack those who "are in their sights" without any due regard to the truth of the allegation used in that attack. The incidents used to base the allegations against Mr K were historical and in my judgment could never have been fairly construed or taken by Mrs B to amount to sexual abuse. I reject her evidence that she did not raise them before because S was friendly with Mr and Mrs K and she did not want to harm that relationship. In any event S still was friendly with them and indeed had lived with them for a short period after 26 July 2006.

The general involvement of Mr B in the campaign

[88]He was not living at the home at this stage. As the chronologies show(a) he obtained print outs of MSN messages and a letter written by R and her friends both relating to R's relationship with Mr S junior very shortly after the visit of the police and social worker concerning N, and(b) there were arguments between him and R, one of which was the night before his conversation with the social worker on 31st July 2006.[89]In that conversation with the social worker on the telephone I am satisfied that: i) Mr B did say that it had been alleged by N that S put his willy "in" her minny, ii) Mr B knew that this was not true, and iii) Mr B either knew or should have known that by making this assertion he was supporting what was being said by Mrs B as to this incident and was thereby supporting her in making a very serious allegation against S and the linkage between this and N's visit to hospital[90]There is no evidence that at this stage Mr B was taking any steps in discussions within the family, or with the social workers, to protect S or to defuse the situation, or to make it clear that the allegations against S were exaggerated and unfair. Indeed at this stage he was also saying that but for S's behaviour the marriage would not have broken down. He told me that he now regrets this failure to support and assist S.[91]He did contact Mr and Mrs K to see if S was all right and to thank them for taking him in. This was some recognition of the plight S was in. But to my mind it makes his failure to do something within the family, or with the social workers, to assist S and to defend him from allegations which he now asserts and I agree were unwarranted, more stark. It raises the question: Why did he do this? Was it as he asserts because of the dominance of Mrs B, or was it to protect himself because he had abused one or more of the children? The involvement of R in the campaign.[92]It is apparent that R was fully and actively involved in the carrying out of the threats made by the mother against S. As appears elsewhere this is in line with the close and active involvement of both S and R in the disputes and allegations relating to their schooling.

(B) Schooling and relationships between the family and schools

[93]The papers contain schedules and background information relating to the history concerning the schooling of S and R, their changes in school and problems encountered. It was one of the areas addressed by the local authority and the history is well documented in the school and other records and the statements from teachers.[94]I shall concentrate on some of the later aspects of the history as to which I heard oral evidence. Those involved at the next stages will need to take into account the longer history relating to schooling and the harm (some of which is accepted) that this has done to S and R. A repetition with the younger two children clearly needs to be avoided.[95]S is thought to have has some learning difficulties and is not as academically bright as R. On the face of it his academic achievement appears to have suffered more than R's. The relevant harm is not however confined to academic achievement but extends to cover the development of relationships in and at school as a base for later life.[96]Reasonable comment, complaint and dispute with schools relating to any of the whole range of matters relating to schooling including relationships with teachers and with other children (e.g. bullying) is of course proper and sensible. Some of the incidents and events can be so explained and justified, a number of others could have been so explained and justified because the initial incident could have founded such discussions, but some of the events cannot be so justified.[97]The Head Teacher of the school last attended by both S and R, which was a school that was not performing well but has improved, told me and I accept that she had never come across a parent like Mrs B before and that she was an extremely difficult parent to deal with in that she was very aggressive and arrogant, sought to be domineering and there was no reasoning with her. I accept that view of a teacher with considerable experience, it is reflected in the records and evidence relating to the earlier schools. I accept that those records and that evidence are generally accurate and fair.[98]In my view Mrs B's acknowledgment that she has regularly over the years behaved inappropriately, rudely and aggressively towards teachers is only a partial recognition of the degree of her behaviour which on many occasions the teachers involved were quite justified to regard as unwarranted, intolerable, exceptional and extremely damaging to her children. The picture based on the written history and the statements and oral evidence relating to more recent events of a woman who loses control, adopts an aggressive and bullying stance, makes allegations without any regard to their accuracy or fairness and is unable, although she is intelligent, to stand back and take a measured view or see anything but her own aim and wish. Her approach is one of attack and confrontation rather than of discussion and constructive negotiation, as the Head Teacher said: there was no reasoning with her.[99]Also the documents show and the oral evidence confirmed that Mrs B closely involved the children in many of her altercations and disputes with the teachers in a very inappropriate way. As to this, for example, they both at the insistence of Mrs B attended meetings that they plainly should not have attended and were directly involved in raising and pursuing complaints.

A fracas involving R

[100]R was involved in a fracas in the lunch queue which resulted in her falling into a chair, because she was pushed, and hurting her shoulder. R and Mrs B assert that she has a weak shoulder and some of their (in my view exaggerated) accounts of physical violence against S cover this and refer to reasonably regular damage to her shoulder. R in her evidence told me, and I accept, that her shoulder comes out easily and can be put back reasonably easily. The product of this evidence is that by the time of this incident (probably May 2005) although put earlier in the statement of Mrs W, an incident when R put her shoulder out, or dislocated it, was not a major or particularly surprising event and could happen relatively easily.[101]Both Mrs B and R made an inordinate amount of fuss over this incident and sought to build it into something that it was not. In the light of their other evidence as to R's shoulder the injury was not particularly significant and the incident was one that resulted from behaviour that is not particularly unusual. Certainly it did not warrant Mrs B's reaction of refusing to accept any blame on R's part and the combined reaction of them both in treating the injury as serious.[102]I refer to this incident specifically as an example of Mrs B and R blowing an incident out of all proportion and of Mrs B acting aggressively without cause and failing to accept or understand the reality of an incident.[103]It also has relevance and overlap to some of the allegations of physical abuse made by R against S in the aftermath to 21st July 2006.

A meeting following a disciplinary action taken in respect of R's class

[104]This was in November 2005, and thus after S had started to behave very badly at school.[105]The head teacher had said that she wanted to discuss the behaviour of R's class with their parents the next morning and one of the teachers made arrangements for this. That teacher spoke to S on the telephone and his reporting of this conversation clearly did not help because he reported that R had been excluded, which was not the case. However both Mr and Mrs B must have been aware that S might have misreported the position; indeed it is part of the common ground between them that at this time S was being very difficult.[106]That evening was a parents' evening and at it Mrs B was extremely aggressive to the Deputy Head asserting that R had been illegally excluded. A meeting was arranged the next day first with the Inclusions Director and then, when she became available, the Head Teacher. The meetings were attended by both Mr and Mrs B, S and R and another adult introduced as their tutor. At this meeting Mrs B behaved in an irrationally aggressive manner raising a whole range of issues. At times S took notes and the children at Mrs B's insistence remained. Mr B said little or nothing. The meeting ended with the Head Teacher saying that she was not prepared to let Mrs B come in to the school without a prior appointment to which Mrs B responded that the school was not allowed to contact her either and that if the school needed to it should contact her mother.[107]The Head Teacher very properly described this incident in a professional and restrained way. For someone who was training to be, and hoped to become, a teacher Mrs B's behaviour at this meeting was in my judgment astonishing and wholly inappropriate. The involvement of the children was clearly inappropriate and damaging. Mrs B must either have been blind to this or did not care about it. (iii). The report to the Environmental Health Inspector[108]Shortly after this meeting a parent reported that there were rats in the school kitchen. No signs of any infestation were found on inspection. The Head Teacher said that she suspected that the parent who made the report was Mrs B pointing to a similar report at a school attended by the children earlier. She was cross examined on the basis that Mrs B had not done this and as she did when making the accusation the Head Teacher confirmed that she did not know who had made the report.[109]It became quite clear during the evidence of S and R that the suspicion of the Head Teacher was correct and it was indeed Mrs B who had made the report. In my judgment in doing so she was acting maliciously.

R's complaints to the school

[110]In late November and early December 2005 R was demanding meetings herself with the Head Teacher and raising complaints about the way she and her mother were treated. For example on 30th November 2005 she left a telephone message saying:
"I'm not very happy about what you said to my mum, I have not said nothing like that. Please get [the Head Teacher] to come back to me"
. On 1st December R spoke to the Head Teacher's PA on the telephone on more than one occasion saying that she still did not know when she would be coming in (because of an incident when her trousers were ripped and her Nan was ill), that the letter to her mum was full of lies and asking for an appointment. Mrs B could be heard in the background shouting things for R to say at times during these conversations including that she should take the PA's name and to tell her that she would be reporting the matter to the LEA.[111]This involvement of R was clearly inappropriate and harmful. Again either Mrs B must have been blind to this or did not care about it.[112]It is also an example of R and Mrs B joining forces and pursuing allegations without any proper regard to being accurate and truthful in respect of their account and use of the background and underlying events.

S's prize

[113]In the school year in 2005, S was behaving well and was chosen to take parents (and I think others) round the school and did this well. As a result he was selected for an achievement award in July 2005.[114]Mrs B (and Mr B) asserted that they did not know he had been so chosen and that S's account that Mrs B's stance was that S should not accept the award for being the head teacher's poodle is wrong and untrue. Mr B did not deal with this in any detail. Mrs B denied the allegation and said that she thought that S had simply been asked to attend the prize giving and that she did not know he had been selected for an award.[115]I have absolutely no hesitation in finding that Mrs B knew that S had been so selected and that she was angry with S for being given the award. I base this on the evidence of a school counsellor (Mrs H) whose evidence I accept with the consequence that I find that Mrs B lied to me about this. Mrs H telephoned Mrs B's mother to tell her that S would be late home and Mrs B answered the telephone and launched into a tirade shouting that S should not get the award because people did not know what he was really like and called him the Head Teacher's "fucking little poodle", Mrs B went on to say that she wanted S to have a criminal record for a minor incident reported earlier that day that S had been seen in the playground with cigarettes and it had been assumed he was selling them. Mrs B was insistent that he should have a police record for that. To my mind that stance is irrational and plainly harmful to S. It will be remembered that it was the following year that Mrs B with the support of R and Mr B did make allegations to the police about S when she felt that her career was threatened by him.[116]S attended to receive the award and Mr and Mrs B were not there.[117]I find that Mr B was also fully aware that S had been selected for this award and of Mrs B's strong and vocal opposition to it. In my view as a matter of ordinary day to day life he simply could not have avoided that knowledge.[118]As the telephone call from Mrs H shows these events took place when S was still at his maternal grandmother's. He had gone to live there shortly after the 2005 incident when he walked in on R and Mr B in R's bedroom and demanded that Mr B tell Mrs B about the incident and there was a scuffle between him and Mr B. This confirms that S's relationship with both his parents was poor at this time; indeed they both assert that they were having real problems with S due to his behaviour.

S's behaviour during the school year beginning in September 2005

[119]S was back living at home and there was a dramatic change. Very sadly his behaviour at school from September 2005 became very confrontational and aggressive.[120]In my judgment this change was a direct result of the encouragement and influence of primarily his mother because of her antagonism towards the school. For example S attended school with the SEN Code of Practice, and although often incorrectly, raised points of procedure and practice. In my judgment this must have been as a result of the influence of his mother who had access to this code.[121]In December 2005 the school made a referral about S to social services. In it they speak in less retrained language about Mrs B than the teachers did in evidence but I accept that this referral accurately reflects the degree of the difficulties presented to the school in dealing with Mrs B. I quote:
"We are concerned ---------- how mum manipulates these children i.e. gets them to ring RB directly and speak to adults as if they were adults also. Brings children into meetings to participate when it is clearly unsuitable for them to be present. S seems either hated and reviled or included in the above activities which are patently against his best interests. S echoes inappropriately parental views i.e. "me and my mum are going to get this school closed"
He is clearly included in all mum's dangerous and unethical schemes. There are social communication issues, mum seems unable to relate to other adults, is constantly abrasive hypercritical and intransigent, cannot take a broad view of anyone. The relationship with the children is not one of parenting more of challenge, throwing down the gauntlet to any other adult in loco parentis"[122]In early 2006 S was showing a newspaper article relating to the very poor performance of the school in the 2005 GCSE exams around the school and handed in a copy of the clipping with a hand written message to the Head Teacher which read: "with respect [S], PS Front page, well Done. Give yourself a merit (can I be your press manager)".[123]On 24th January 2006 a teacher, (Mrs W) had to report to the police station to answer questions under caution in respect of an allegation of assault by her on S. S now accepts that the allegation was a false one and I accept his evidence that he was encouraged to make it by his mother, although I also accept that she would not have witnessed the incident and S may have described it as an assault. S apologised for making a false allegation of physical assault but did not withdraw his allegation of verbal abuse. I record that in my judgment that too was a false allegation.[124]On the same day S attended school with another clipping which he handed in for the attention of the Head Teacher. He had written on it "Dear [head teacher] very bad, de-merit, with respect S".[125]After this S had a meeting with an Assistant Head Teacher during which he denied being sarcastic in the notes and said that if the Head Teacher did not want any more then she should be professional about it and write to him stating that. In my judgment that is "his mother talking".[126]Ultimately it was accepted during the evidence that these actions of S were supported and based on family discussions relating to this article. It was therefore part of the attacks being made by the family on the school which was trying to make improvements and attain better exam results; a goal which I understand was achieved.[127]S continued to be very disrespectful in correspondence and discussion demanding personal responses from the Head Teacher and started to send regular emails to the staff. I shall not go into the detail of this here. I record that I accept the accuracy of the account of the Head Teacher.[128]I also accept and find in accordance with the views of the teachers that in behaving as he did S was acting under and pursuant to the direct instructions and influence of his mother. (vii). Mr B's role[129]Apart from one incident in which Mr B took steps to restrain Mrs B when it appeared that she was going to physically assault a teacher, the common ground is that he took a very passive role in all the dealings between the family and the schools.[130]Some letters were written as if from him. Whoever drafted them he signed them. Also save as mentioned above he did nothing to introduce a sensible and rational relationship with the schools or to keep S and R out of the disputes and discussions.[131]Mr B said that he left the issues relating to schooling to Mrs B because this was her area and she was training to become a teacher. To my mind this is not a reasonable excuse for his lack of intervention to prevent what was obviously in many respects irrational, inappropriate and obviously very damaging behaviour by Mrs B and both children with at least his passive, and sometimes as with letters he signed and his accepted involvement relating to the newspaper cuttings and the messages on them, his more active involvement.[132]As with the allegations and campaign against S following the incident on 21st July 2006, Mr B gave his support to the campaigns against the school in which Mrs B, S and R were the more active and vocal participants.

Some comment on the allegation culture within the family by reference to the above

[133]In my judgment the aftermath to the events of 21 July 2006 and the long history with the schools establish that the family have an allegation culture in which all four of Mrs B, Mr B, S and R have made and supported allegations that are simply untrue, or allegations that are so exaggerated and misrepresented that they become untrue, to promote a campaign against others or to get back at others.[134]In both examples, as to which I heard and read a considerable amount of evidence, it is clear that the campaign and the relevant attacks within it were primarily promoted by Mrs B. In the case of the aftermath to 21 July 2006 this was in pursuance of the threats she made to ruin S's life and in respect of the schools it is common ground between all the teachers that this was the case.[135]In my judgment Mrs B is primarily responsible for the existence of the allegation culture within the family.[136]However all of S, R and Mr B have become enmeshed in the campaigns initiated by her in their separate ways. S as a victim after 21 July 2006, but as an active campaigner with the schools. So far as I am aware R has not been a victim of such a campaign but has taken an active part in both of them. Mr B although much less vocal than Mrs B has supported both campaigns.[137]I suspect that the reasons why both Mr and Mrs B have so acted are deep rooted and complex. The children (S and R) have been brought up with this approach to life and to people who have threatened them, or by whom they feel threatened, or with whom they have a dispute[138]This culture and approach to life means that the evidence of all of Mrs B, Mr B, S and R has to be approached with extreme caution when they are making allegations against each other and outsiders. In short, in my judgment without confirmation or support their word on, and account of, such allegations cannot be trusted and relied on.[139]This of course provides a very difficult and unstable platform for the consideration of the allegations and cross allegations made by them that are of importance in this case.[140]In the context of the serious allegations of sexual abuse made by R against Mr B, the allegation culture within the family and the parts played by R and Mr B in it, and the events described above, provide ample material (alone and together with my findings on physical violence and other matters, in particular the history of Mr B's accounts of relevant events) for the competing arguments relating to the fundamental issue of their credibility, that: i) R has a history of making false allegations to support her mother and that therefore her allegations against Mr B should not be believed, and ii) Mr B too has made and supported the making of untrue allegations, sided with the mother after 21 July 2006 and failed to take steps to protect the children from harm and that it should be found that he did this because he had something to hide.

Physical violence within the household

[141]It is common ground that this existed. Each parent asserts that the other is the aggressor. Both children allege that they have been the victims of physical violence. There are disputes as to who inflicted such physical violence but it is clear and effectively accepted that the parent who did not inflict violence, or particular acts of violence, knew that violence was inflicted by the other.[142]There was violence between the siblings S and R. Indeed R made some serious allegations of physical violence against S in the aftermath to 21 July 2006. These were not pursued with any vigour in these proceedings and in my judgment (like the allegations of sexual abuse) were so exaggerated and misrepresented by R that they were untrue.[143]The allegations would indicate that physical signs of the assaults would be seen by others. But there is little third party support from doctors, teachers or others who have seen the results of the alleged violence.[144]I deal with some of the specific incidents in Schedule H.

Comment in the light of the above on Mrs B and Mr B

[145]The schedule in respect of the allegations of sexual abuse alleged by R demonstrates that in statements to the social services and the police Mr B either did not mention, or greatly down played, two confrontations first in the kitchen in 2002 and later in 2005 after S had walked in on Mr B and R in her bedroom.[146]He did the same about his part in incidents of violence towards Mrs B and the children.[147]Incidents when he was violent to the children occurred when Mrs B was absent and could not therefore have been the result of immediate or direct provocation by her.[148]On occasions both S and R were hit with a belt by one or both of Mr and Mrs B. The non perpetrator knew of, and at least implicitly supported this because he or she did nothing effective to stop it and the children knew that he or she knew that they were being hit with a belt by the other parent.[149]More generally, in my judgment both Mr and Mrs B used physical violence as an aspect of their parenting of the children, in that they would hit or slap them and in Mr B's case with S on occasion pin him against a wall by his shoulders sometimes also scuffling with him pushing or holding his throat. This occurred particularly when the children were misbehaving, or were challenging, and the relevant parent was angry. This chastisement cannot fairly be described as slapping or smacking as a means of discipline. In my view it is clearer that Mr B used to so chastise the children than Mrs B. But I am also satisfied that Mrs B did so as well even if she did so less frequently. If I am wrong and Mrs B did not hit or slap the children she knew that Mr B did so and at least implicitly encouraged this because she did nothing effective to stop it. There was no evidence that their regular arguments were about violence to the children by the other although there was some evidence of Mrs B shouting at Mr B to stop hitting S or R.[150]Both parents underplayed this aspect of their parenting, which did not involve serious violence because it did not result in outsiders (e.g. teachers) seeing that the children had been the victims of violence.[151]Further both Mr and Mrs B often argued or communicated in loud, aggressive and offensive terms with each other and the children creating the atmosphere in the home described by Mr B senior as a war zone. But also there were plainly some good times and physical warmth between Mr and Mrs B.[152]Again at times Mr B was verbally very abusive to the children when Mrs B was not present and thus when this could not have been the result of immediate or direct provocation from her.[53]Thus in my view Mr B's presentation to the social workers of himself as only a victim, or essentially as only a victim, was not accurate. At times he was aggressive towards Mrs B and he and she would regularly argue in heated and offensive terms, rather than him being generally submissive. Importantly he was also at times when alone with the children, and thus of his own volition, violent towards them and verbally abusive and aggressive to them.[154]However in my judgment it would be quite remarkable if the picture given to outsiders at the schools and in the aftermath to 21 July 2006 of Mrs B being the dominant force in the household changed dramatically when she and Mr B were at home as she would have us believe by her assertion that at home Mr B was the aggressor and she was, or was essentially, a victim of physical and verbal abuse at his hands. I reject that assertion on the basis of the evidence as a whole, but in particular my findings in respect of the aftermath to 21 July 2006 and the history with the schools.[155]I add that it does not fit with the evidence of either S or R.[156]Also as appears later I find that she did threaten Mr B after February 2006 with the prospect that it would be alleged that he had sexually abused R.[157]In my judgment a fair overall picture was that Mrs B was the dominant force within and outside the household but that Mr B was also physically and verbally abusive within the household and not the meek, submissive, dominated and victimised man as perceived by teachers and the social services.[158]In my view: i) much of his aggression to Mrs B, the violence between them and some violence towards the children (and the damage he caused on occasion to inanimate objects) was in response to her aggressively dominant role and goading by her and the family and these reactions were at times contributed to by tiredness and drink, but ii) this does not represent a full and fair overall picture of his abusive and violent behaviour in the household because on other occasions he would be violent or verbally aggressive for other reasons to both Mrs B and the children.

Scapegoating of S

[159]This was a separate heading introduced by the local authority.[160]I record that in my judgment any picture given when discussing allegations made against S in the aftermath to 21 July 2006, or at other times, that S was generally an easy child are not correct. Generally he was not and certainly by his early teens he was difficult to parent and manage. The causes of this are outside the area of this judgment.[161]In covering the aftermath to 21 July 2006, and S's school prize, two points particularly strike me. First the common ground between Mr and Mrs B that but for S their marriage would have survived and Mrs B's statement to Mrs H that she wanted S to have a police record for selling cigarettes at school. To my mind these facts are pointers that S was blamed and attacked in the family, and problems with his behaviour were approached as being essentially or only his fault, or inherent in his character, rather than on the basis that they were caused or contributed to by his parenting and other matters.[162]I accept and find that this approach to S reflects earlier conduct relating to S (which also in part confirms the point that he was very far from being an easy child). These include: i) Mrs GS described S as being like her husband, who she accepted had sexually abused Mrs B (and her sister) as they have alleged and who she portrayed as a violent and insensitive man. This was also the picture given by Mrs B to the social worker in the aftermath of 21 July 2006, and in my view making due allowance for the campaign then being conducted against S reflected earlier attitudes towards S by Mrs and Mr B, ii) Mr B accepted that in for example 2005 he was having a great deal of difficulty with S and in doing so he gave me the clear picture that this was regarded in the family as being essentially S's fault, iii) Mrs B had made earlier reports and complaints about S, for example:(a) in it is thought 2004 she made a list of incidents of violent conduct and misbehaviour against S which she gave to social services and which include (i) a very different account of the ironing board incident to that now advanced by the mother and Mrs GS, namely: "S threw an ironing board at his terminally ill grandmother and when Mr B tried to defend her he pushed him against the toilet door", which accords with an account given by the mother to a social worker in a telephone call of 3rd September 2004 and (ii) an account of the pepper incident blaming S rather than his friend,(b) in 2004 the Mother telephoned social services and the police to make a complaint that S had caused criminal damage within the home and she alleged that S, was a danger to his siblings and grandmother,(c) it is recorded in the notes of a child in need meeting on 19th January 2005 that Mrs B thought that S had all the characteristics of oppositional defiant disorder and Mr B said S was a bully at home,(d) in 2005 S was sent to live with his grandmother Mrs GS for a few months, during which period (and perhaps before) his good behaviour at school led to him being awarded a prize, and the school reported in a referral to social services dated 9th December 2005 that he was seen as "wicked" by the family (which I accept was the perception of the school based on what the teachers saw and were told of the relationship between S and his family) and was sent to live with his grandparents (sic) and that he has since been readmitted to the family which has been disastrous for him and there has been a decline in his attitude, and(e) on 6 June 2006 the Mother telephoned the out of hours social work duty team to complain that S was bullying and beating his siblings and that she has no control over him.[163]I am not in a position to make findings about the detail of incidents included in the above mentioned list and assertions (save for the ironing board incident and the pepper incident, which I deal with elsewhere, and they are examples of different accounts being given at different times depending on who was the object of attack). But on the assumption and basis that S regularly behaved badly this approach to his parenting of making reports and complaints about him, coupled with the acknowledged physical and verbal aggression in the household, does found the conclusion urged by the local authority that Mrs B and Mr B clearly lack insight into the impact and potential for considerable harm of their approach to the parenting of S.[164]This is an aspect of (and perhaps now a part of) the acceptance by Mr and Mrs B that the threshold is met on the bases of the harm caused by, and the likelihood of harm based on, violence and conflict within and outside the home and the general lifestyle and parenting style of Mr and Mrs B.[165]The extent of that acceptance and thus of the emotional damage they have caused and are likely to cause the children if they do not change will be the subject of assessment and decision at the next stages of these proceedings and the reports relating to them. So, for example, the following views recorded in a core assessment dated 22nd January 2007 will have to be addressed: i) Mrs B believes that her behaviour and attitude towards her children, other family members, professionals and members of the public is adequate and she is unable to see what emotional damage she causes her children, and ii) the children regard their mother as a role model and naturally rely on her judgement and decisions. The physical, emotional and sexual abuse Mrs B witnessed and experienced by her parents, appears to have repeated itself in her own nuclear family as she raises her children in the same way."[166]These comments also have a relevance to the points I have made earlier relating to the involvement of S and R in disputes with the schools and to Mrs B either being blind to or not caring about the harm this did and to Mr B doing nothing to prevent the obvious harm it was causing to the children.

Sexual abuse of N

[167]I have dealt with some of the detail of this in Schedule E.

Allegations against S

[168]In my view correctly no party sought a finding against S.[169]I have concluded that I can go further and find that on the evidence there is no real possibility that S has sexually abused N as was alleged in the aftermath to the incident on 21 July 2006. The allegations made at that time that N had reported that S had put his willy "in" her minny are in my judgment untrue. Indeed the evidence of the family was to the effect that in 2005 N did not say this but said that he had put it "near" her minny.[170]Sadly there are obvious signs that N had discussed the allegations being made against S in some detail with her mother before her ABE interview. By reference to them I find that this had happened and thus that N's ABE interview cannot be relied on to found allegations against S, or indeed anyone else.[171]As I have indicated in my judgment the allegation made against S that he had sexually abused N was a part of a vicious and unfounded attack on S following the incident on 21st July 2006 in which all of Mrs B, R and Mr B played a part.[172]In my view taken alone, or together with the history and concerns set out in the chronology in Schedule E, the assertion that S had put his willy near N's minny when she was in the bath, does not found a real possibility that he has sexually abused N.

Sexual abuse of N by someone else

[173]In my view it was perhaps surprising that given the allegations made by R against Mr B that he had sexually abused her over a long period starting when she was 7, and R's desire to protect N from a similar fate, that it was not alleged by anyone (either before or during the proceedings) that N had been sexually abused by Mr B (or someone else). This possibility was acknowledged in submissions as was the inconsistency of either R or Mrs B alleging that N had been abused by someone other than S, given the allegations made by them in 2006.[174]In my judgment the history and concerns set out in Schedule E taken alone, or together with the possibility that N misreported that it was S who had put his willy "near" her minny when she was in the bath, because it was someone else, do not raise a real possibility that N has been the victim of sexual abuse.[175]That is not to say that I do not still hold the view I expressed to Mrs GS that(a) the history and concerns raised did clearly warrant a close examination by the family of the question whether they raised real or reasonable concerns that N has been the victim of sexual abuse, particularly given the history of alleged and accepted sexual abuse in the family, and(b) my point that it was surprising that she and her daughter did not so examine them. But in my judgment that examination does not found the conclusion that this is a real possibility.[176]The observations of blood and/or discharge at school are not clear and discharge is a continuing problem. The blood seen when N was taken to hospital could well have been caused as reported to the hospital and medical examination then, and later, did not indicate that N had been sexually abused. The point that in early July 2006 Mrs B misreported the earlier visit to the hospital and asserted that N had a medical condition does not provide a secure foundation for a conclusion that the cause of that discharge was not as reported initially or was caused by abuse.[177]N's observed and reported behaviour at school could well have many explanations and similar behaviour is continuing. The behaviour had been observed at the school for some time and had not of itself prompted a concern that merited further investigation or report, no doubt because it could have many quite innocent causes. Sexual abuse of R by Mr B Introduction

Sexual abuse of R by Mr B

[178]Schedule F relates to this.

Knowledge of Mrs B

[179]Mrs B told me that she kept an eye on things to see whether Mr B was abusing R after the allegation and confrontation in the kitchen in 2002 and after the confrontation in 2005 when S had walked in on R and Mr B in R's bedroom.[180]Keeping an eye out after the 2005 incident may well have not shown anything on R's account, because on that account the abuse effectively stopped or greatly decreased after that until the sexual advances alleged in July and August 2006. My understanding of Mrs B's evidence that she was also asserting that she kept an eye out after 2002 could on one view be inconsistent with the common ground of her acceptance that R was not telling the truth and her demand that she apologise to Mr B. But it would be a natural and sensible thing for any parent to do.[181]I reject Mrs B's evidence that she was unaware that R had asserted that Mr B spread yoghurt on her and licked it off. Her explanation for not remembering this is very unconvincing, namely that she was concentrating on Mr B's reaction. Even if she was, she would have to be taking into account what Mr B was reacting to and this is an unusual allegation remembered by Mr B, S and R.[182]In my judgment, whether or not after the 2002 incident Mrs B was keeping an eye out for any signs that Mr B was, or might be, sexually abusing or grooming R, if what R alleges is true Mrs B must have seen things, heard things and been aware of things that would have indicated to any reasonable adult either that this was the case, or that there was a very serious prospect that it was the case.[183]In my view the frequency and nature of the abuse alleged by R (including the use of yoghurt which must have been kept somewhere by Mr B), the size of both houses in which it is alleged to have occurred and the periods during which(a) Mr B had to go through a room slept in by S to get to R's room (on R's account never waking or disturbing S as the occupant of that room), and(b) R was sharing with N (who on R's account never woke up or made any comment as to what was happening) make it almost inconceivable that this was not the case and certainly more likely than not that it was the case.[184]In my judgment the point made by and on behalf of Mrs B that she was not at home that much, has no weight. She was sleeping at home most nights and was out in the day. For example and although Mr B worked shifts she would be likely to have known, and if she was keeping an eye out would have known when he was getting up and would have been able to listen to where he was in the house and how long he took doing things. If she was keeping an eye out she could, and surely would, have got up herself to see where Mr B was and/or ask R and N whether Mr B had been into their room. This could have been done without asking what he had been doing there. Further if she was not keeping an eye out on a number of mornings it is likely that she would have heard where Mr B was in the house and that he had gone into and remained in R's room for some time.[185]The consequence of this is that if Mr B was sexually abusing R in the persistent way she alleges (and Mrs B now says she accepts and believes) Mrs B either knew that this was happening and did nothing about it, or saw and heard things that would have indicated to any reasonable adult that R was being sexually abused by Mr B, or that there was a very serious prospect that this was the case and did nothing about it.[186]An argument advanced on behalf of Mr B was that although Mrs B had many faults she would not have behaved in this way. There is force in that. But in my judgment her allegations as to her childhood and the abuse inflicted on her together with the demonstration of her self centred approach in the aftermath to 21 July 2006 and with the schools and the reason she gave for having two children (S and R) with an abusive father mean that this argument advanced by Mr B is far from being determinative.[187]But this finding as to Mrs B's knowledge means that if a finding is made that Mr B did sexually abuse R as she alleges: (A). another serious finding, namely this complicit role of Mrs B follows, and (B). it would have to be taken into account in determining the care and placement of the children.[188]I am not in a position to make further findings as to the detail of that complicity, but record that it was not alleged that she took any active role in the abuse but that she turned a blind eye to it and did nothing to prevent it.

Knowledge of S

[189]The same factors also point to S knowing that something was going on between Mr B and R. Throughout most of the relevant period S was often confrontational, but he did not accuse Mr B or R of any such conduct, or of regularly going into R's room in the early mornings as she alleges happened. This is an indication that it was not happening, but after the move of home Mr B would not have been going through S's room to see R in the mornings and there is much less reason for S to identify the abuse than Mrs B.[190]S did however say that for some time leading up to the 2005 confrontation he was suspicious that something was going on between Mr B and R and it is clear that at the time of that incident his stance was that something sexually inappropriate was going on, or was about to occur, in the bedroom. This supports a conclusion that Mr B was abusing R and supports my conclusion as to Mrs B's complicity in this.

The arguments in very general terms

[191]By the time of final submissions the local authority were supporting the making of a finding that R was sexually abused by Mr B as she alleged. The Guardian very properly adopted a neutral stance but drew my attention to issues that the Guardian considered to be relevant to the fact finding exercise and set out findings the Guardian invited the court to make. Counsel for S concentrated on the allegations against S, which left counsel for Mr B to advance his case and to meet the arguments put by counsel for R, Mrs B and the local authority (and the Guardian) in support of a finding that Mr B sexually abused R. Mr B sought a finding that he had not sexually abused R.[192]All counsel put in helpful written submissions. Although this judgment and its schedules are lengthy I acknowledge that they do not deal with all of those arguments. Some are not mentioned and I could have discussed others at greater length. Naturally I have given all the written and oral arguments careful consideration in my efforts to reach a properly reasoned finding of fact on the civil (more likely than not) test. Thus my failure to mention a line of argument or to discuss it in detail is not an indication that I have ignored it.[193]I have however not placed weight on arguments founded on(a) assertions of actions and events in the past as to which I have not heard oral evidence and which were disputed and were, for example, said to be earlier examples of false or exaggerated allegations being made (an example is the dispute with neighbours (Mr and Mrs KH) involving allegations of physical and racial abuse), or(b) assertions as to the general family backgrounds of Mr and Mrs B. This is because many of the underlying matters are not agreed and in my view the correct approach is for me to focus on the issues covered and tested in many days of oral evidence.[194]Counsel sensibly recognised the unreliability of the witnesses and therefore both sides of the argument were supported by reference to what was, or would seem to be, likely and reasoning based on the surrounding circumstances both as to the actions of relevant people and their motives. Such arguments have the problem that they include elements of supposition based on what it is thought other people might or might not do.[195]A conclusion on "a more likely than not basis" has to be based on findings based on evidence and sufficiently convincing reasoning that in respect of this serious allegation it is either R or Mr B who is telling the truth. Only one of them can be and my biggest problem is that in my judgment they have both shown themselves to be very unreliable witnesses.[196]Other major problems facing me are that(a) many of the arguments are double edged and the background circumstances can be said to support each of the rival contentions,(b) there are great difficulties in attributing or giving degrees of weight to rival arguments, and(c) the arguments that clearly support one side are met by arguments that clearly support the other which cannot be balanced or compared on a mathematical basis or "like with like" basis.[197]A feature of both lines of argument is the common ground that in 2002 and 2005 there were confrontations during which Mr B was questioned as to whether he had sexually abused R. This common ground is of course important, as is the extent of the common ground on the detail of the events.[198]Points made by all parties, were that in respect of some of the first and later statements and allegations made by members of the family: i) if there had been no realistic opportunity for them to discuss what they were going to say this adds force to common ground in those accounts and to points that are supportive of the evidence of others, and ii) if a point was volunteered when, for example, a history was being given and it did not relate to a matter then in dispute or directly to an allegation being made, this adds to its force. I agree. So for example, reliance was placed on the point by both sides of the argument that S had given an account of the 2005 incident to Mrs EE on 4 August 2006 (in the aftermath to 21 July 2006) before R made her allegations of sexual abuse against Mr B on 30 October 2006. Also the point was correctly made that from 21 July 2006 to his ABE interview on 10 November 2006, when he gave an account of the 2002 incident, S had had no contact with R or his mother and little if any contact with his father. I accept these points and thus that not only does S's evidence confirm that those events took place, the force of parts of his ABE interview and his first description to Mrs EE of the 2005 incident is increased by those timing factors.[199]These points are not based on the proposition that these accounts by S were given close to the relevant events and therefore should have weight. At the start of this judgment I have recorded that in my view that proposition has little or no weight in this case. My note of caution as to dramatic descriptions is also not affected by, and therefore remains notwithstanding, these points.[200]In very general terms the arguments advanced by reference primarily to the matters covered in the oral evidence in favour of a finding that R is telling the truth and she has been sexually abused in the way she asserts by Mr B are:• R has given a consistent account of grooming and sexual abuse, and her oral evidence on this was given convincingly and matters asserted by R would be difficult for her to make up.• The argument that Mr B was getting his retaliation in first, and was seeking to shift blame onto Mrs B based on amongst other things(a) the alleged untruthfulness and evasiveness of Mr B's disclosures to social services following 21 July 2006,(b) the alleged untruthfulness and evasiveness of Mr B's police statements and his very late introduction of an allegation that Mrs B had suggested the use of yoghurt to him as part of their sexual foreplay and(c) the progression and alleged inconsistency of his allegations that he was threatened by Mrs B that she would accuse him of sexually abusing R and the acceptance by Mr B that no such threats were made until after Mr B left the home in April 2006.• The argument that on a fair analysis of those disclosures, and allegations and Mr B's actions (particularly after April 2006) shows that he was seeking to hide and avoid his own abuse of the children and in particular of R, which was based on amongst other things (a) Mr B's failure to address the 2002 and 2005 incidents after they took place, (b) his favouritism for R, (c) his support for the allegations made against S, and(d) his failure to properly confront and deal with his perception of the relationship between R and Mr S junior whilst raising it with R on a regular basis having searched for and found material that supported the view that that relationship was inappropriate.• It is well known that it is difficult for the victim of abuse of the type alleged by R to disclose and the trigger to her disclosure and her reasons for not disclosing earlier are understandable.• The common ground as to the 2002 and 2005 confrontations, and thus that they took place. As to the 2002 confrontation the unlikelihood of R making up the allegation about the yoghurt and of Mrs B coaching her to make it and then making her apologise.• As to the 2005 confrontation that it was the result of something S did and saw and Mr B's explanations of what was happening are unconvincing, and that S mentioned it when giving a history to Mrs EE on 4 August 2006, and thus before R made her allegations of sexual abuse against Mr B.• The fact that Mrs B and R had no notice of the proceedings that led to the removal of the children on 30 October 2006 or any realistic opportunity during that evening to concoct allegations against Mr B.• The common ground as to the arguments between her and Mr B in July and August 2006, the intensity of those arguments, and the unconvincing nature of his explanation of a part of an argument overheard by Mrs K that "he wanted something in return".• R's disclosure to Mr S junior.[201]Again in very general terms the arguments advanced primarily by reference to the matters covered in oral evidence in favour of a finding that Mr B is telling the truth and he has not sexually abused R as she has alleged or at all, are:• The closeness of Mrs B and R and their track record of making false allegations (a part of the allegation culture in the family).• The alleged communication(a) between Mrs B and R after 30 October 2006 and before her interview of 1 November and her ABE and(b) between Mrs B and N before N's ABE interview.• Inconsistencies in R's account.• The inherent improbability of some aspects of it including the point that if he had sexually abused R as she alleges Mrs B would have known about it.• R's account is not, as was alleged, a classic account of grooming because of the lack of any allegations of abuse between May 2005 and July/August 2006 when the allegations did not include attempts at penetrative sex which was what was alleged to have happened in May 2005.• R's failure to raise any concerns earlier for example at the time of or after the visit by social services and the police in respect of the report from N's school and when shortly thereafter the concerted attack was made on S.• The contact and the accepted good parts of the relationship between Mr B and R after he left the home in April 2006.• R's inappropriate relationship with Mr S junior.• R's refusal to have a medical.[202]I will discuss many of the arguments advanced within those general descriptions under the headings that follow. Others are discussed in schedules hereto.

Consistency and demeanour

[203]As appears elsewhere I accept that taken in isolation R's evidence to me on aspects of the sexual abuse she alleges up to and including the 2005 incident when S walked in on her and Mr B in her bedroom was convincing. But other parts of her evidence taken in isolation were unconvincing and taken as a whole, and in isolation, I was left unconvinced by her evidence.[204]In my judgment R's account is not as clear and consistent and therefore as compelling as asserted on R's behalf. Equally, however in my judgment the inconsistencies do not found a conclusion that the account is false. To my mind the existence and nature of the inconsistencies and lack of clarity can reasonably and with effectively equal force be said to support each of the rival contentions. This is because they can be said to support the arguments that they reflect inconsistencies and lack of clarity in an account of a distressing history, or of a concocted history.[205]For example: i) there is a lack of clarity concerning the number of times that R asserts she had penetrative sex with Mr B or this was attempted by Mr B and as to the accounts of those events. From her interviews, and in particular her ABE interview on 10 November 2006 when the police officer attempted to get clear descriptions(a) it is unclear to me how many times she is alleging that there was penetrative sex or an attempt at penetrative sex (see for example the summary of the police officer near the end of her ABE interview on 10 November), and the interview contains an assertion that this occurred on only two occasions but also contains descriptions that indicate that she might be saying that it happened more often, and(b) it seems to me that her accounts, and thus for example her assertion that she thought Mr B put baby oil on his penis once before penetrative sex, are not clear or clearly linked to an occasion on which R says such sexual activity took place. But I accept that such matters were not gone into in any detail in her evidence other than in connection with the 2005 incident when S came into her room. And in respect of that incident the evidence focused on what she and Mr B were wearing and where they were in the room and not what she saw, felt and experienced during the alleged penetrative sex (or attempt at penetrative sex) ii) in her interview on 1 November 2006 R is recorded as saying that Mr B's alleged behaviour stopped as she got older and in her ABE interview there is a lack of clarity as to when the abuse by, for example, Mr B touching and licking her vagina and putting one or two fingers into her stopped. But her ABE interview is to the overall effect that the abuse ended when she was between 12 and a half and 13 and a half (the latest I have found in her ABE interview which would be September 2005). In giving this account R does not link the change to the May 2005 incident, but she was not asked about this in her interview or in her evidence, iii) in my view it is nonetheless odd that R did not link a cessation or a continuation of sexual abuse to the May 2005 incident, which must have had a real impact in the household (for example because S mentions it to Mrs EE on 4 August 2006) and was the last occasion when R asserts that there was penetrative sex or an attempt at it. But I accept that not too much can be made of this because it was not pursued with her in evidence, and iv) in my view R's general vagueness as to timing does not fit easily with her assertion in interview, albeit the part of her interview relating to physical violence, that every time something happened she would write it down but Mr B found the book and ripped it up in about January 2006. I repeat that in my view these examples of lack of clarity could reflect either a genuine and honest attempt to describe a painful memory and a reluctance to describe what happened and what R saw and felt, or a concocted account.[206]I accept the point that, on the evidence there is a gap in the abuse and advances alleged by R from 2005 until July 2006 (Mr B having left the home in April 2006) and no specific allegation of continuing abuse after May 2005. I therefore accept that this can found a distinction from other cases of grooming. The riposte made that the incident with S scared Mr B off has some force but does not explain why he would have renewed sexual advances in July 2006. Jealousy of the relationship with Mr S junior, the effects of drink or an inability to help himself were offered as possible explanations. They all have elements of speculation. However, and in any event, in my view it is difficult and dangerous to build a conclusion on perceived norms of grooming by reference to the cessation of abuse or the re-introduction of sexual advances in this case.[207]Further, and in any event, in my view R's demeanour when giving her account of the later alleged advances was much less convincing than her account of the earlier alleged abuse. As appears elsewhere as she was giving this evidence I did not find it all convincing.[208]As to the May 2005 incident R's account on 1 November 2006 "S walked in to see Mr B with his boxers down on top of her" is not repeated anywhere else by R but the notes taken by the police officer of her conversation with Mrs B on 30 October 2006 record that Mrs B told the police officer that on this occasion she was told by S that he saw Mr B "lying on R's bed with his belt off and his jeans undone".[209]R's case is not now, or in her ABE interview, that S came in and saw Mr B on top of her or lying on the bed. Her case is that this was the last occasion on which there was penetrative sex or an attempt at penetrative sex but that when S came in Mr B had jumped off her and she was on the bed and he was on the floor. There are a number of accounts as to what Mr B and R were wearing. I return to this incident. It is important.[210]There are other inconsistencies between the account on 1 November 2006 and later accounts. The accuracy of the notes of that interview was not challenged. I conclude in Schedule F that the point that the 1 November account is contained in notes rather than a transcript adequately explains one of the inconsistencies, but in my view it does not explain those referred to in the preceding two paragraphs.[211]As pointed out in Schedule F, there are inconsistencies between the accounts of R and Mrs B concerning the 2002 incident and in particular as to what R told Mrs B, in the car, or in any event before the confrontation the next day. As to that R's accounts are clearly to the effect that she told her mother more than just that Mr B had been messing about with her and also said that it was Mrs B (rather than R) who put what R had said to Mr B in the kitchen (see highlighted passages in Schedule F, in particular of R's ABE interview on 10/11/06). I comment further on these inconsistencies in Schedule F.[212]I repeat that as with the examples of a lack of clarity in R's account these examples of inconsistencies do not in my view point clearly in one direction or the other on the central issue of credibility. The nature of the yoghurt allegation / inherent improbability of it and of other aspects of the abuse alleged[213]I agree that the allegation about the use of yoghurt is unusual and that it can therefore be said that it is an unlikely thing for a child of R's age to make up or for a parent to encourage a child to assert.[214]I also agree that the late introduction of an assertion by Mr B that Mrs B had suggested the use of yoghurt as part of their sexual foreplay was unconvincing and smacked of a dishonest attempt to fortify his "coaching allegations".[215]However in my view the discussion of, and approach to, sexual matters in this family, the access of R to magazines and other material that might have included such a suggestion and young school girl (and boy) chatter as demonstrated when R was older in connection with the assertion at school that R had had sex with a 22 year old and N's diary allegedly found by R and shown to Mrs B in late July 2006, found a strong argument that it is something that R could have come across and have used in making an allegation that was false. The description of R on occasions being a drama queen and mischief making (a description used for example in the record of a conversation between the police officer who visited about the report from N's school and Mrs B on 6 July 2006, in the context of the different ways in which Mr B was said to have treated S and R) also supports this argument.[216]The nature of this allegation made by the mother and R is also something of a "Catch 22" because if true it increases the force of the point that Mrs B would have known of the sexual abuse because it would have been likely to result in tell tale signs.[217]I have mentioned other inherent improbabilities relating to the size of the home, the configuration of the rooms, R sharing a bedroom and the timing and frequency of the alleged abuse when discussing Mrs B's knowledge and S's knowledge of the alleged abuse.

Coaching / collusion / R's ability to make false allegations

[218]I accept the argument that the lack of notice of the proceedings and removal of the children on 30 October 2006, and the events of that evening, strongly support the conclusion that Mrs B and R did not have a detailed discussion on that evening which of itself caused R to invent and make false allegations of sexual abuse against Mr B, and I so find.[219]The confrontation in May 2005 could not have been prompted by discussions between Mrs B and R because the trigger to that allegation of sexual abuse against Mr B was S walking in on Mr B and R. There is no suggestion that S was put up to this by anyone.[220]Although allegations were made by S of Mrs B putting ideas into his head to found a complaint and then criticising him for complaining as she had suggested, I accept the argument that(a) the common ground that Mrs B made R apologise to Mr B following the confrontation in the kitchen in 2002 after R's "disclosure" in the car, and(b) Mr B's acceptance that the issue was not raised again until after April 2006 (save in connection with the May 2005 confrontation) strongly supports the conclusion that R did not make the allegations that she did in 2002 at the express instigation of Mrs B, and I so find.[221]I therefore find that Mrs B did not expressly and deliberately shortly before they were made suggest and persuade R to make the allegations that she did in 2002 and on 30 October 2006 as part of an attack on Mr B. But that finding does not dispose of the "coaching issue".[222]First in respect of 2002, as I have pointed out, there is some inconsistency between the accounts of Mrs B and R. But on Mrs B's account there is force in the argument advanced by Mr B(a) that her reaction to an assertion by R that Mr B had been messing about with R, which she accepts she took as being an allegation of sexual abuse, converted an innocent complaint into one of sexual abuse, and(b) that this conversion was then adopted by R who, because of the fuss and the allegation culture in the family, made the allegation in dramatic and false terms. Although R denies that and I have accepted that her initial assertion, and thus her overall account, was not expressly prompted by Mrs B, it is common ground that R withdrew that account and it follows that R was therefore then taking the position that it was a false account described in dramatic terms.[223]It is also noteworthy, and supportive on my view that R was capable of and could have invented the whole account (including the yoghurt allegation) that on their evidence neither Mrs B (I include her because I do not accept her evidence that at the time she was unaware of the yoghurt allegation) nor S thought that R could not have, or would not have, made the whole thing up.[224]If as R has asserted she told her mother in the car as part of the "disclosure" about the yoghurt I accept that this point that a false account was prompted by the reaction of Mrs B loses its force. But in any event even by this stage I am satisfied that R had been exposed to the allegation culture within this family and thus had experience of false allegations being used to effect against people with whom her parents, and in particular her mother, were annoyed.[225]These points water down the force of, and in my view effectively neutralise, the argument that this confrontation was based on a spontaneous "disclosure" by a young child which includes an unusual allegation and thus one it is unlikely she would invent. (Threats made by Mrs B)[226]Moving on to April 2006. I accept and find that following his vacation of the home in April 2006 Mrs B did threaten Mr B that she would make allegations that he had sexually abused R. I return later to the argument relating to the progression of Mr B's assertions of threats being made and have not forgotten the arguments advanced in respect of this in reaching this conclusion.[227]Mr B asserted that Mrs B made such threats after April 2006 (when he left the home). S also asserted that Mrs B made such threats. Their evidence has to be treated with caution but in my view the following five points, and in particular the second one because it is based on the evidence of Mrs K (see comments about her in Schedule B ) found this conclusion: i) A police officer who investigated the incident on 7 April 2006 when Mr B was arrested for an assault on R says in his statement that Mrs B "mentioned that two years ago Mr B was in the bedroom with R with his belt undone". This does not accurately date the May 2005 incident but there is evidence of only one such incident and it must in my view be a reference to it. The point was not pursued at that stage, even when Mr B was released and Mrs B made an allegation of fraud against him. In her statement Mrs K says that she heard R call Mr B a paedophile during a family row and because she called the police on the occasion of this family row, and said that Mr B then moved out, it was thought that this related to the incident on 7 April 2007. But, whether S suggested that Mrs B should do this as she alleges, or she did so off her own bat, this report to the policeman shows that the incident was something that Mrs B then raised and therefore had in mind when making complaints against Mr B, albeit in the context of Mr B allegedly physically assaulting R on 7 April 2006. At the time of the May 2005 incident it was not viewed as an allegation or indication of impending physical assault by use of a belt or otherwise but as one of sexually inappropriate behaviour. (I add that, although there are allegations about the use of a belt at no time during the hearing was the May 2005 incident relied on in this context. Indeed on some accounts Mr B was said to be in his boxers and not in trousers with his belt undone), ii) the evidence of Mrs K that sometime between Mr B moving out of the marital bedroom and leaving the home (so between February and April 2006) Mrs B told her that she would get what she wanted from Mr B by blackmailing him on the basis that he had sexually abused R. I accept that Mrs B said that to Mrs K, iii) although in my judgment his evidence has to be approached with caution and his father did not recall this, the evidence of Mr S junior that Mrs B told him that he need not worry about Mr B going to the police about his (Mr S junior's) relationship with R because R had made allegations against Mr B of sexual abuse. This evidence was volunteered orally in that context rather than any discussion of the alleged "disclosure" by R to Mr S junior that she had been sexually abused by Mr B. In my view it is most unlikely that Mr S junior would have been asked to say that by anyone, or that he would invent it, and I accept it as something he correctly remembers having been said by Mrs B to him, iv) the records from N's school relating to reports of concerns relating to N indicates that Mrs B was making a number of allegations against Mr B in June/July 2006, albeit that these do not include allegations of sexual abuse of R (or anyone else), and v) in respect of his interview with Mrs EE on 4 August 2006 as part of his account of the history, and before R made her allegations of sexual abuse against Mr B on 30 October 2006, Mrs EE noted that S volunteered that he remembered his mother saying that if Mr B did not defend her she would use this incident to blackmail him, and later in the same note Mrs EE records:
"--- S said there were lots of times when his mother would threaten Mr B with informing the police about his doing with R. However he believes that his mother would use such information to blackmail Mr B."
I accept that these assertions would run counter to Mr B's acceptance that such threats were not made until after April 2006 if they relate to an earlier period. This point (i.e. the timing of threats relating to allegations of sexual abuse) was not pursued with S. With this timing qualification these references by S in an interview that was not directed to allegations of sexual abuse against Mr B support Mr B's evidence that the mother made such threats that she would accuse him of sexually abusing R.[228]I therefore find that, as Mr B told the police on 23 October 2006, that Mrs B was making threats against Mr B to have him arrested for interfering with R and would destroy him. As they both knew after 21 July 2006 she had carried out a similar threat against S with the help of R and indeed Mr B. As appears earlier in this judgment in my view the making such threats would also be entirely consistent with Mrs B's general approach to conflict or potential conflict and the allegation culture in this family.[229]In my judgment, my acceptance of the evidence, and thus my finding, that Mrs B indicated to outsiders (Mrs K and Mr S junior) that allegations of sexual abuse of R had been made against Mr B is an indication that R's allegations are not true because if they were in my view Mrs B's complicity in the abuse (see my finding as to her knowledge of the abuse if R's allegations are true) would make it unlikely that she would have told either Mrs K or Mr S junior about it. Her doing so would however be consistent with the allegation culture in the family if it was based solely in the 2002 and 2005 incidents and the common theme of the family evidence that it had been accepted that Mr B had not and was not sexually abusing R, just as it had been so accepted that N had not been sexually abused by S. When it suited her Mrs B (with the support of R and Mr B) was quite prepared to make such allegations against S.[230]It was not I think specifically put to R whether she knew that Mrs B had made, or was making such threats or whether she knew that Mrs B had told others of the allegations made in 2002 and 2005, or whether she accepted that she had called Mr B a paedophile during an argument which was thought to be the argument on 7 April 2006. I however accept that Mrs K did hear R say this and there is a link between that allegation and the allegation of sexual abuse she made on another, and probably more fraught, occasion on 30 October 2006.[231]As I have indicated S's evidence and statement to a social worker (Mrs EE) in early August 2006 might indicate that Mrs B had been making such threats to Mr B frequently and for some time (and possibly contrary to Mr B's evidence before April 2006). S was not in the home after 21 July 2006 and would not have heard any such threats thereafter. The issue whether R knew of these threats or conversations with Mrs K and Mr S junior was not tested or gone into in any detail.[232]In those circumstances, and although I suspect that R would have denied knowledge of any such threats being made, I am not in a position to reach a properly informed conclusion on whether or not R knew that Mrs B was making such threats and had had the above mentioned conversations with Mrs K and Mr S junior. If she did, this could form the basis for her allegations on 30 October 2006 and would make her failure to make the allegations earlier more difficult to explain and understand.[233]However, for the purpose of this judgment I shall assume that R did not know of these threats and conversations, and in my view on that assumption the evidence concerning the dynamics and relationships in this family generally, and in particular of: i) the discussions between R and her mother concerning the continuation of the relationship between Mr and Mrs B, and ii) the discussions between R and her mother about the assault on 21 July 2006 and its aftermath and thus the false allegations that were made against S, strongly support the conclusion, and I find, that R would have known that the confrontations in 2002 and 2005 could be used to make allegations of sexual abuse against Mr B, even if they were never so discussed between her and Mrs B in the context of R's relationship with Mr S junior and the arguments flowing from that and her use of her mobile telephone or otherwise. (Discussions between Mrs B and R)[234]N's ABE interview concerning the allegation that she was sexually abused by S contains clear indications that Mrs B had discussed the detail of the allegations with N before that interview and I find that she did so and that she did so in a way that influenced N to say that S had put his willy in rather than near her minny and thus to inaccurately describe the common ground in the family as to what N had told R at the time. So I find that in this way Mrs B had "coached" N. This also provides strong support for the point, and I so find, that in addition to the actual assault, she also discussed the allegations R made against S, with R. After such discussions, as I have explained, R to achieve a desired end, supported her mother by making false allegations against S. In my view the fact that R made such false allegations then based on a well known family incident relating to S, similar to (although less serious than the 2002 and 2005 confrontations) is a strong pointer in favour of the conclusion that R could have made the general allegations she did on 30 October 2006 because of such confrontations rather than the existence of sexual abuse.[235]Mrs B denied that she had spoken to R after her removal from home on 30th October 2006 and her interview on 1st November 2006. The telephone records produced during the hearing demonstrated that this was untrue and this denial by Mrs B is I agree a strong pointer in favour of the conclusion that she and R did speak about the allegations of sexual abuse during this period and thus after the general allegations on 30 October 2006 and before the more detailed allegations that followed.[236]In my judgment a clear indication that they had done so is R's assertion in her interview on 1 November 2006 that "her mum had kept a close eye on them". As to that: i) It fits with Mrs B's oral evidence but not with the descriptions of the 2002 and 2005 incidents at the time, because in those descriptions there is no indication that Mrs B indicated to R that she had done that, ii) it also does not fit with Mrs B's reaction as observed by the police officer and the social worker Mr SK to R's "disclosure" on 30 October 2006 or with Mr S senior's recollection of her reaction (see Schedule B). As to this reaction of Mrs B I record that I have placed no weight on Mrs EE's perception that in her view R and Mrs B were play acting. I accept that this was the view of Mrs EE and she had had the most dealings with the family. But she was not in the house and this was not the impression of those who were and they told me and I accept that the situation was highly charged. In those circumstances I have concluded that I should not pay regard to the impression of Mrs EE who by that stage had formed a very poor opinion of Mrs B and regarded Mr B as essentially only a victim, and further and in any event iii) it does not fit with R's description of her abuse and the 2002 and 2005 incidents. If her account is true it is one in which as a 10 year old she was not supported or believed by her mother and put at its lowest (and as acknowledged by Mrs B) her mother's reaction played an instrumental part in R withdrawing her allegations and apologising to Mr B for making them. After that, and particularly in 2005 and when issues of sexual abuse are raised in respect of N and allegations are made against S, R felt unable to confide in and seek help from her mother. Her account of the degree and frequency of the abuse also makes it very difficult to see how R could have thought that her mother was keeping an eye of her and Mr B and not have appreciated what was happening and that she had been telling the truth in 2002. So R's account does not fit with her being a child who thought that her mother was keeping an eye on her and Mr B.[237]It is also in my view clear from the similarities of the original accounts given by Mrs B and R of the assault on 21 July 2006 that they had discussed this before giving those accounts. As I have recorded elsewhere R's account, which she sticks to, and Mrs B's original account (which she has resiled from) is untrue and therefore is based on those discussions rather than R's observations of the event. This also points to R's ability to give and maintain a false account of an event to achieve an end.[238]I also reject Mrs B's evidence that when she gave R an early Christmas present in November of a computer she was unaware that she had not deleted from it a document setting out allegations Mrs B was making against Mr B and references to material produced in the evidence put to the court. In my judgment the fact that she invited the foster parents to check that the computer had been cleared was a deliberate part of her plan and was made at least in the hope, if not the expectation, that they would not do so. If she had truly been worried about this it is very difficult to follow why what was left on the computer was something that was so relevant and she did not explain what other records (if any) relating to the allegations had been deleted. This record must have been put on recently and therefore must have been at least one of, if not the only, thing that would prompt the thought that the computer needed to be cleared of information relating the proceedings and disputes.[239]In my judgment it is more likely than not that R was directed to the existence of this file (even if it was not opened) when she was shown how to operate the computer by Mrs B when she delivered it.[240]The information on the document does not cover the allegations of sexual abuse and because the computer was given to the police by the foster parents R had little opportunity to study the information in the document and therefore I accept that her evidence was not significantly influenced by it. But its inclusion in the files on the computer was in my judgment a deliberate attempt by Mrs B to provide information to R for use in support of her case and against Mr B.[241]There is therefore compelling evidence of(a) past collusion between Mrs B and R resulting in false accounts that were supportive of Mrs B being given by R against S, and(b) discussion between Mrs B and R and an attempt to provide information to R following the events of 30 October 2006 and before her police interview.[242]Further there is compelling evidence that R has in the past been prepared to and has given false accounts of events and has been embroiled in the allegations culture within the family.[243]The point that Mrs B had no notice of the hearing on 30 October 2006 and thus of the removal of the children on that day were advanced as reasons for finding that Mr B's allegations of coaching and collusion by Mrs B were wrong and that in the period from 21 July 2006 to 30 October 2006 Mr B was laying the ground for a defence of allegations that he had sexually abused R, or was "getting his retaliation in first". I return to this.[244]As appears above I accept that on 30 October 2006 there was no time for a detailed discussion. As appears later I also accept that there is considerable force in the point that Mr B was laying the ground or getting his retaliation in first.[245]But in my view part of the basis for that argument against Mr B, namely(a) that he knew from April 2006 that the marriage had broken down and that he could well be facing allegations of violent and abusive behaviour (on my findings including those based on threats by Mrs B, she would raise allegations that he had sexually abused R), and(b) from 21 July 2006 he knew that the family was being investigated by social services, also found the argument that Mrs B also knew that she could well be facing allegations and thus that she too was laying the ground or getting her retaliation in first.[246]Given the allegation culture within this family and the history of them making false allegations to serve their purposes and aims in my judgment it would be surprising if they were both not taking opportunities, as they presented themselves, to lay the ground and in effect get their case and thus their retaliation in first. This would be "par for the course" and in my judgment they were both doing this to social services and the police and in Mrs B's case to Mr S senior and junior.[247]A different situation emerged when as a result of the competing assertions and disclosures the local authority largely accepted Mr B's account of the history, formed a very low opinion of Mrs B and supported an application to court by Mr B without giving notice to Mrs B. Before then the local authority and the police were faced with allegation and counter allegation from both sides as to current, recent and historical events.

Coaching / collusion / R's ability to make false allegations of sexual abuse – conclusion

[248]Although I reject Mr B' contention that the allegations made against him by R are the result of direct coaching and influence very shortly before they were made (i.e. before the 2002 confrontation or on 30 October 2006) I accept and find that: i) Mrs B did exert influence on R through(a) the allegation culture within the family, for which she was primarily responsible, and(b) discussions within the family generally (including the two Mr Ss) and between Mrs B and R after Mr B had left the home and then after the assault of S on 21 July 2006 (when they were all aware that confrontation, divorce and issues relating to the children with allegation and counter allegation were likely and the family history and such allegations were discussed), ii) Mrs B did discuss and describe a false account of her assault on S to R, who then gave that false account to the police and others, iii) after 21 July 2006, R and Mrs B clearly had some discussions relating to sexual abuse of N by S, for example in connection with the entry in N's diary. I have also found that all of Mrs B, Mr B and R made the same change and thereby gave the same false account of what was initially reported by R as having been said to her by N (the change from "near" to "in" her minny). That change must in my view have been based on such discussions between them and I find that those discussions included ones between Mrs B and R and that they led to the allegation being made in the false way that it was, iv) I am not in a position to make findings as to the detail of other discussions between R and Mrs B in the period from April to 30 October 2006 relating to the history of disputes and confrontations within the family, but I do find that that history was discussed (see (i) above), v) on the assumption that before 30 October 2006 there were no express discussions between Mrs B and R that either of them might or could make allegations of sexual abuse against Mr B, and that R did not know that (as I have found) Mrs B had in fact raised this possibility with Mrs K and Mr S junior, (a) R would have known that allegations of sexual abuse against Mr B could be based on the 2002 and 2005 confrontations (rather than the fact of sexual abuse) and used to telling effect against Mr B, and (b) R had shown herself quite capable of advancing false allegations to support her mother and this provides a basis for asserting that she could well have done so on 30 October 2006 to support her mother and herself in their wish to keep the children at home, and vi) after 30 October 2006 (when R made her "disclosure") and before R spoke to the police on 1 November 2006 and her ABE interview Mrs B discussed R's allegations against Mr B with her, but I am not able to make any finding as to the detail of those discussions.[249]These conclusions establish a strong and sound platform for the argument that R's allegations are based on that influence and direct discussion after the "disclosure" on 30 October 2006, and are false.[250]But they do not of themselves establish that the allegations are false. R's reasons for not asserting earlier that up to and including 2005 she had been, and again in 2006, was being abused sexually abused by Mr B[251]I acknowledge that a victim of sexual abuse of the type asserted by R would be likely to find it difficult and very painful to disclose it and in R's case that difficulty would be compounded by the common ground as to the 2002 and 2005 confrontations, namely that in 2002 she was not believed and in 2005 she joined with Mr B in denying that anything inappropriate had happened. I therefore accept that there is force in the proposition that illogical reasons for non disclosure should be considered against that background and in the point that a victim of such abuse might well adopt such reasoning to avoid having to make difficult and very painful disclosures.[252]R's reasons were that she did not want to jeopardise the roof over the family's head or for N and A to be absent from their father and that she was keeping an eye on and protecting N. R said that it was the prospect of N living with Mr B and the risk that she would suffer, as she had, that prompted her disclosure in the fraught circumstances that prevailed on 30 October 2006.[253]The preservation of a roof over the heads of the family was a reason advanced by R when describing her reasons for accepting in 2002 that she was not telling the truth about Mr B. It and keeping the family together also reflects the evidence as to what, from time to time, Mrs B had said to S and R about the continuation of her relationship with Mr B. Those reasons are also reflected in S's interview with Mrs EE on 4 August 2006 because he is recorded as saying in response to a question whether R would speak to Mrs EE about the allegations of sexual harassment or abuse that he felt that she would say it never happened because she does not want to lose the family network.[254]But those reasons for non-disclosure do not sit easily with the departure of Mr B from the home in April 2006, the new relationship between Mrs B and Mr S senior and thus the break up of the marriage.[255]The idea that R by herself could protect N when she had not been protected is illogical, albeit that to my mind it is understandable. But if R was sexually abused as she alleges, it does not sit at all easily with the attack made on S for sexually abusing N.[256]I accept that at a meeting when all the children and Mrs B were present (which is what occurred when the school's report about N was investigated) it would have been difficult for R to raise the concerns which she asserts she actively had about protecting N from Mr B, but she could have used this as an opportunity to approach the social worker later. Again I accept that that would not have been easy. But to join in the active attack of S and in doing so to "up the allegation against him by misreporting what it is common ground N said at the time - "near her minny " upped to "in her minny" - does not fit with R actively protecting N from sexual abuse at the hands of Mr B (or indeed S). Indeed if, as she asserts, at this time R was actively concerned to protect N from Mr B and was keeping an eye on N, her joinder of the attack on S to assist in protecting her mother is very troubling in that it shows an ability to hide active concerns about N's welfare whilst making false accusations against her brother.[257]In my view notwithstanding the points acknowledged in the first paragraph under this heading I have concluded that R's actions in respect of, and in the aftermath of, the investigation following the report from N's school and the assault on S on 21st July 2006 cast considerable doubt on R's credibility both as to her reasons for not speaking up earlier and more generally as to the truth of her allegations against Mr B.

Contact with Mr B

[258]There was an unsuccessful contact shortly after Mr B left the home in April 2006 but after contact recommenced in around June, it went reasonably well apart from the arguments between Mr B and R which I discuss elsewhere. Even with those arguments it is clear that at times R suggested that she and Mr B do things together. Mr B helped her with her leafleting job. She suggested a fishing trip on 13 August 2006 which did not take place because of the weather. She also sought Mr B's help on her first day back at school (6 September) because she feared that she would have difficulties with a girl with whom she had been friendly but who R asserts was the ringmaster of the rumours that R had had sex with a 22 year old.[259]Mr B was contacted and helped look for, and find, R when after an argument with Mrs B she went missing for a short time. This was timed shortly after the alleged incident on 19 August 2006 and if that timing is wrong it was common ground that R spent a night at the home of Mr (and Mrs) B senior with Mr B on 22 or 23 August 2006[260]This does not fit with the evidence of Mr S senior that R always had to be persuaded to see Mr B and I therefore reject that evidence, although I accept that Mr S senior might have perceived this because he was involved in that persuasion, which I accept occurred in respect of visits to Mr B and his family, and not with the times that R sought out or suggested Mr B's help.[261]The warning set out under the previous heading and the fact that a child who has been abused can often look to the abuser for support and company, to my mind lessens the impact of the submission that this contact indicates that(a) R was not abused as she asserts, and(b) she did not by, or at, this stage hate Mr B as she asserts. But in my view this submission cannot be ignored, particularly having regard to R's combative nature (to which I return when considering the allegations of sexual advances and the arguments in 2006 between R and Mr B).

R's relationship with Mr S junior

[262]In my view this is relevant mainly to(a) the credibility of Mr S junior's confirmation of R's assertion to the police that she had told him about the sexual abuse by Mr B shortly before 30 October 2006, and(b) whether there was justification for Mr B raising concerns about R's relationship with Mr S junior, and its part in the arguments between Mr B and R in July and August 2006.[263]I am not in a position to make detailed findings about this relationship and I wish to make it quite clear that the evidence before me does not found a conclusion that they had a sexual relationship.[264]However, in my judgment, it is clear on the evidence that any responsible adult observing the relationship between Mr S junior and R would have been justifiably concerned that the relationship was not, as R and he assert, akin to a big brother / little sister relationship but contained inappropriate elements with sexual connotations that should be ended. In reaching this conclusion I have had particular regard to the following: i) contrary to their evidence, but confirmed by Mr S senior, the relationship was very tactile, and therefore in my view the perception of Mr MD was understandable that they (like Mrs B and Mr S senior) presented as a couple on a visit to see him for a barbeque. Even if the impression flowing from it was incorrect this tactile behaviour was plainly inappropriate, ii) the relationship also founded the rumours and arguments at school that R was having sex with a 22 year old. This too is a clear indication that something needed to be done to put an end to the aspects of the relationship that could found such rumours, iii) Mr S junior said that the relationship had caused some gossip at the pub with his friends that he was having a relationship with a young girl which caused him some difficulty. I acknowledge that the source of this problem could have been Mr B and an ex girl friend of Mr S junior who worked at the pub, but again if there was nothing to found any such rumours from the observed behaviour of R and Mr S junior it is not easy to see why Mr S junior's friends paid the gossip any attention and it caused him any difficulty, iv) even by the standards of this family (where very regular text and telephone contact and MSN messaging is a norm) the volume of that communication between R and Mr S junior was inappropriately excessive. The content of the MSN messages obtained by Mr B on 8/9 July 2006 plainly includes some sexual comments and innuendo and was clearly inappropriate, and v) Mr S junior's upset reaction as described by Mr S senior to the telephone call from R on the occasion in August 2006 when she alleges that Mr B made sexual advances to her which was received when they were returning from a night club in a taxi, the fact that it was R who was contacted when Mr S junior had a motor accident in January 2007, the very regular communication between Mr S junior and R when she moved to foster care and R's reaction to Mr S junior having a new girlfriend (which was one that included annoyance) all point to the relationship between R and Mr S junior being one that had inappropriate elements.

Corroboration from the alleged earlier disclosure to Mr S junior

[265]In my judgment, and this was not effectively disputed, after R went to foster carers she and Mr S junior had a number of discussions. In my judgment they included discussions relating to R's allegations against Mr B. It is apparent that during them there was the opportunity for R to tell Mr S junior that she had told the police that she had told him about the abuse shortly before 30 October 2006.[266]There are a number of inconsistencies between what Mr S junior says he was told and R's account. One of them relates to the allegation that Mr B looked in at R through a window when she was in the shower. This is included in Mr S junior's statement. It was included in R's oral evidence as having happened at the home of Mr B senior. Mr B senior was asked about the possibility of this happening and in the absence of any evidence following a visit to that home to take measurements I accept the evidence of Mr B senior to the effect that what R described is not realistically possible and her evidence as to the shower curtains was wrong. On that basis I find that this part of R's evidence (albeit a small one) was untrue and was introduced to support the version given by Mr S junior. Mr S junior also describes an attempt at penetrative sex whilst Mr B and R were in the shower when baby oil was used and Mr B spreading yoghurt on her back and licking it off when watching television. Neither appear in R's ABE interview or elsewhere.[267]These inconsistencies point to a conclusion that Mr S junior did not collude with R after 30 October 2006 to say that she had made a disclosure to him earlier because if that collusion had taken place I would have expected greater consistency between their accounts. But they are also quite stark inconsistencies and in my view they are inconsistencies of a type which support the argument that R is overall giving a false account rather than one that they are in line with the inaccuracy of the memory of a truthful witness giving an account on different occasions of distressing events that happened.[268]So if as R, and Mr S junior, assert R told him before 30 October 2006 that she had been sexually abused by Mr B his account of what R told him is a two edged sword.[269]Mr S junior said that he had promised R that he would not tell anyone because she wanted it kept secret and that is why he did not do so until he gave his statement to the police on 26 November 2006 (it was, he said, delayed in part because the relevant police officer was away). This reason for his continued silence after 30 October 2006 when R made her allegation and after 1 November 2006 when she spoke to the police makes no logical sense. It is clear that he knew that R had made the allegation and that therefore it was no longer a secret. Rather it had become a vital part of the allegation and counter allegation in which the family were embroiled and about which Mrs B was attending court hearings. It was common ground between him and Mrs B that he had a brief conversation with Mrs B about him going to the police and she told him to check his dates. (I comment that if he did, it became common ground between all (perhaps apart from R) that the date he gave for the incident at Mr B senior's house and the call received in the taxi was wrong). In my judgment this limited conversation with Mrs B runs counter to the general evidence as to her character and involvement in making allegations. In my judgment after 30 October 2006 Mrs B did discuss at length the allegations R was making, and her own allegations against Mr B, at the home of the two Mr Ss, indeed this would be a natural thing for her to do.[270]As I have found earlier straight after 30 October Mrs B also had discussions with R and the inconsistencies between Mr S junior's and R's account could be explained by him basing it on what Mrs B told him of R's account. But if he had been "put up to" alleging an earlier disclosure to him by Mrs B it is difficult to understand why his "corroboration" was not introduced at an earlier stage in the court proceedings.[271]In my view the obvious relevance of Mr S junior's "corroboration" and the point that it was not mentioned to the court in early November 2006 is a mystery if, as Mr S junior and R, assert R did "disclose" to him shortly before 30 October 2006. In my judgment, this mystery together with the inducement to Mr S junior to support allegations against Mr B because he would have known that Mr B would be, or was, making allegations that his relationship with R was inappropriate render Mr S junior's statement as to what R told him before 30 October 2006 unreliable as corroboration.[272]Further if that statement was based on things R told him before 30 October 2006 in my judgment: i) it is arguable that the discussion was a part of R and Mr S junior's preparation for their defence of an attack by Mr B on their relationship (and thus the mirror argument to that advanced against Mr B) and flowed from either or both of(a) the conversation I have found Mr S junior had with Mrs B as to why he need not worry about Mr B going to the police about the relationship between R and Mr S junior, and(b) perhaps R's alleged threat to Mr B on 10 July 2006 that she would say that he had abused her, rather than Mr S junior guessing that Mr B had abused R as she alleged was the trigger to this "disclosure", and ii) the weight of the argument on inconsistencies between it and R's allegations favours the view that R's account is false to a greater extent than the same argument based on the inconsistencies in her own accounts. But as with her own inconsistencies I do not regard the inconsistencies between the account in Mr S junior's statement and R's overall accounts as being determinative or a compelling factor in all the circumstances of this case.[273]The combination of these points means that secure reasoning cannot be based on the evidence of Mr S junior and R that she made a disclosure to him before 30 October 2006. The relationship between Mr S junior and the arguments between R and Mr B in July and August 2006[274]As I have said, in my judgment Mr B as a parent would have been justified in asserting that this relationship had inappropriate aspects and thus trying to change it, or put an end to it.[275]It is common ground that together with R's clearly excessive use of the mobile telephone it formed a significant part of the arguments between Mr B and R in July and August 2006. The use of the mobile led to a bill that was clearly unaffordable by Mr B.

R's refusal to have a medical

[276]R did not give a reason for this. Mrs B said that R had told her that if she did not have a medical she could carry on believing she was a virgin; to my mind this is not convincing and in any event it does not come directly from R.[277]A medical would be likely to reveal whether R has, or has not, had penetrative sex. If it revealed that she had this would be consistent with her allegations against Mr B but would not indicate that she had had such sex with him. Whereas if it revealed that she had not had penetrative sex this would be a clear factor in favour of a finding that her allegations against Mr B are not true.[278]The refusal to have a medical is therefore something which can be said to found an inference that the reason for R's refusal to have it is that it would show that she is a virgin. But the argument that she would not want to introduce further argument about who else might have had penetrative sex with her would also have some force.

The allegations of sexual advances being made by Mr B in July and August 2006

[279]This links to the matters raised above under the heading contact with Mr B.[280]As she was giving her evidence of the sexual advances Mr B was alleged to have made on 26 July, 30 July and 19 August my view was that the evidence did not ring true. The first incident lacks detail, on the basis of R's recollection the second was based more on suggestive facial expressions and mannerisms of Mr B than on what Mr B was alleged to have said, and what Mr S junior says he heard being said by Mr B does not have any sexual connotation. Mr S junior heard some of the argument over the telephone because he had rung R and she had left the telephone connection open. R first comments on what Mrs K remembers overhearing when she knows about this and the interpretation of that flows from the recollection of Mrs K rather than anyone else. The third is at a very surprising location, namely the home of Mr B's parents.[281]It was argued that(a) the first followed a shopping trip and could have been an attempt by Mr B to restart the sexual abuse and the control it might give,(b) the second two were contributed to by drink,(c) they were all based on jealousy of the relationship with Mr S junior and a fear that this might prompt disclosure of Mr B's earlier abuse and(d) Mr B could not help himself particularly after he had been drinking. All of these are possible but necessarily speculative.[282]Allegations were made by Mrs B and by her mother Mrs GS of excessive drinking by Mr B which fall to be considered in the light of Mrs B's answers to police questionnaires which assert no such problem and Mr B's job as a driver (although he did not have any relevant tests) at work. In my view when this is done the allegations of both Mrs B and Mrs GS are so exaggerated as to be deliberately untrue. Also I do not accept the evidence of Mr S junior that on the night of 30 July Mr B was drunk. This however does not mean that I do not accept that on 30 July and 19 August he had been drinking beer or lager. Indeed I find that he had been. I also accept that drinking did have an effect on Mr B and his behaviour. Indeed in respect of incidents of physical violence I have found that it did and I am satisfied that his drinking on 30 July and 19 August would have had some effect on his behaviour and in particular his temper.[283]The existence of the heated arguments that it is accepted took place on 30 July and 19 August point in opposite directions.[284]It can be said that they indicate that the underlying issues were not confined to the use by R of her mobile telephone and her relationship with Mr S junior. On the other hand it can be said that they do not fit with the suggestion that Mr B was seeking to "keep R on side".[285]Mr B's evidence that he went upstairs to talk to R on 30 July after Mr S junior had left because he had not had any quality time with R and this had annoyed him is again a "two edged sword".[286]It can also be said that they show, as do a number of other parts of the evidence, that by this stage R was a combative girl. For example she gave evidence that was not contradicted that in July or August 2006 she set out from home in a rage to confront Mr B in the pub over the excessive and nuisance telephone calls he was making on a Sunday. She also amply demonstrated her ability to make allegations of sexual and physical abuse against a member of the family by doing so against her brother S after the incident on 21 July 2006.[287]On her account she protested and prevented the advances going anywhere further.[288]It seems to me that if the sexual advances alleged in 2006 were the only allegations of sexual abuse the argument that they do not fit with the contact between R and Mr B in 2006 would be a very strong one, notwithstanding my acceptance of R's reluctance to see Mr B on some occasions.[289]But they cannot be so isolated and need to be considered with the more serious allegations of abuse ending in, or greatly diminishing after, 2005. Indeed in my view a progression of reasoning that isolated those assertions and then led to a conclusion from a finding based in such a consideration of them would be seriously flawed. A main reason for this that they follow allegations of persistent and serious abuse over earlier years which if true would have a considerable impact on the actions and reactions of both Mr B and R. (The alleged threat by R, earlier on 10 July 2006 that she would accuse Mr B of sexually abusing her and the lack of any further threat of that in the later arguments)[290]When I was listening to the evidence relating to the allegations of sexual advances and arguments in 2006 I found it surprising that there was no allegation from R that during the arguments she threatened to disclose the alleged earlier abuse. This is a different point to the argument that R had many opportunities to disclose to others (including a disclosure at the same time as the allegations were being made against S which overlaps with the second and third incidents) because that would involve the disclosure of something R would understandably want to keep secret whereas a threat to Mr B to do it would not.[291]Mr B asserts that such a threat was made by R on 10 July 2006 but not that it was repeated. R denies this and that she and Mr B met on 10 July 2006. There is some confusion and potential inaccuracy over the timing alleged by Mr B from telephone records but in my judgment this does not lead to a conclusion that Mr B and R did not meet when he alleged. In any event I find that on or around 10 July 2006 R and Mr B did meet and the relationship between Mr S junior and R was raised. This was(a) effectively common ground and formed a step in the rival arguments as to the actions and motivation of Mr B in raising R's relationship with Mr S junior with her, and(b) to my mind is the natural and inevitable consequence of the immediate background. That was: i) the visit on 7 July 2006 of a social worker and a police officer about the report from N's school to the effect that the issue whether N had been sexually abused merited investigation, and ii) Mr B obtaining on 8 or 9 July 2006 downloads of MSN messages and a letter written by R and girls she was at school with. The obtaining of these messages and the letter makes it clear that the issue of the relationship between Mr S junior and R was a "hot topic" and in my judgment it was one that merited investigation by Mr B, Mrs B and Mr S senior.[292]As to the letter I accept and find that Mr B obtained it as a result of a search and did not simply come across it. His accessing of the MSN messages was also an aspect of the search he carried out at that time. The arguments being that this search to find out more about the relationship between Mr S junior and R was motivated by either(a) a genuine and merited concern about it as Mr B alleges, or(b) a wish to find material to prevent or protect himself from allegations by R that he had sexually abused her, as alleged by R, Mrs B and the local authority.[293]The MSN messages and letter provide ample material for questioning whether the relationship between Mr S junior and R was an appropriate one.[294]In my judgment the allegation culture in this family supports a conclusion that on being confronted, as I find she was by Mr B, with a statement or accusation that her relationship with Mr S junior was inappropriate that R would make a threat or allegation against Mr B. The 2002 and 2005 incidents could not have been forgotten by R whether or not she was aware that Mrs B had been making threats that she would raise allegations that Mr B had sexually abused R. (As appears above I am not in a position to make a finding whether or not R was aware of this).[295]But to my mind it is a puzzle why, if R made this threat on 10 July 2006 it was not repeated in the later arguments. Explanations could be that:(a) (A) she knew or felt that that it had no real force because it was not true and that it had had no effect when made earlier by her (and her mother if she knew of this), or(b) (B) she felt that it had had no effect and her further inhibition was based on her wish for secrecy and her fear and insecurity arising from the abuse alleged in the years up to 2005. The latter could also be an explanation for the changing nature of the contact and the ups and downs of the relationship between Mr B and R in July and August 2006. (The intensity of the arguments in July and August 2006 between Mr B and R)[296]It is common ground that the arguments in July and August 2006 covered R's relationship with Mr S junior and her use of the mobile telephone provided to her by Mr B.[297]It is also common ground that they were intense and very heated. In this context: i) there is evidence that R would be very combative and appear upset in arguments with friends, and that she can be a drama queen and a bit of a madam, ii) the social workers told me and I accept that R calmed down very quickly after she left her home on 30 October 2006, iii) I have concluded that the intensity of her upset on 30 / 31 July 2006 was in part a display, but that she was very upset (Mr B described her as hysterical), and iv) Mr B senior said, and I accept, that his son (Mr B) was very angry indeed and R was very upset when he went in to see them because of the noise and commotion of the argument on 19 August 2006.[298]In my judgment, notwithstanding the points or qualifications in sub-paragraphs (i) to (iii) of the preceding paragraph there is force in the point that the degree of upset and anger goes beyond the common ground as to the subject matter of the arguments (relating to the telephone and Mr S junior) and therefore is a factor to be taken into account in favour of the conclusion that Mr B had abused R in the past and made advances to her on the occasions of the arguments.[299]Another such factor is the lack of any convincing explanation as to why Mr B took out a mobile contract for R given the high risk, if not the inevitable consequence, that she would run up a huge bill. S did not have such a contract and had a pay as you go telephone. It seems to me that a sensible course would have been to fund a similar arrangement for R. Thus the provision of a contract is arguably an act that indicates that Mr B was trying to please R to keep her "on side." But the existence of the arguments which were initiated by Mr B do not support this view.[300]The provision of this telephone contract is also potentially an aspect of the favouritism that S alleged was shown to R from about 2002 and which to the extent that it was accepted that S had a difficult relationship with Mr B was accepted by Mr B. (What Mrs K heard on 30th July 2006)[301]The comment is that:
"I want something in return"
. I accept that it was made. I also accept that it could have a number of innocent explanations. But it could also have the explanation that Mr B wanted sex or sexual favours in return. It is the unconvincing explanation given by Mr B that by saying this he was indicating that he wanted the telephone back or money towards the bill that simply does not fit with the language Mrs K overheard that gives support to the argument that the latter is the true explanation.[302]To my mind the fact that the telephone was returned a few days later adds nothing to the debate.[303]I accept that on his account that Mr S junior may not have heard this part of the argument over the open line because it occurred after he had sought help from Mrs B and his father. There is no evidence that he took his telephone with him and continued to listen to the argument when he did this and they went round to the B home.[304]However Mrs K did not at the time consider that in the context of all that she overheard of the arguments between R and Mr B that day (and her evidence was to the effect that there had been an argument earlier in the day) that this remark carried with it a request or demand for sexual favours or warranted a report being made. As to that it should be remembered that by this stage the relationship between Mr and Mrs K and the Bs (and in particular Mrs B) had been soured by the aftermath of the incident on 21 July 2006. But it seems to me that this (like so much else in this case) points both ways in that it could have prompted a desire to make a report or to not do so. (Conclusions)[305]As with the allegations of sexual abuse up to and including 2005, and other direct conflicts between R and Mr B I am unable to reach a conclusion on an evidential and properly reasoned basis on the issues whether it is Mr B or R who is telling the truth about: i) the alleged sexual advances in 2006, and ii) the alleged threat made by R on 10 July 2006, although I do find as set out above that they met on or around that day and the central point of their discussion was R's relationship with Mr S junior.

The 2005 confrontation

[306]I remind myself of the warning that in this case the point that the first explanation given carries weight does not apply. The graphic terms of S's first account to the police on 10 November 2006 do not in my view carry great weight although I accept that they run counter to his general support for Mr B.[307]But in my view, as already indicated, the point that S mentioned this incident when giving a history to Mrs EE on 4 August 2006 and thus before R made her "disclosure" on 30 October 2006 is significant and demonstrates that the 2005 incident and confrontation occurred and was a significant event in the history of the family. I have mentioned in Schedule G that the indications in that note that there was more than one occasion that S walked in on R and Mr B cannot be relied on. Not least because R and S confirmed that there was only one such incident.[308]Also the suspicions expressed by S of Mr B and R's behaviour, in these two accounts of this incident, are consistent with the common ground in the account itself because it provided a reason why, as was common ground, S went upstairs to see what was happening.[309]Those suspicions provide support for R's allegations that Mr B was regularly abusing her. Although she puts many of the incidents in the early morning her allegations are not so confined and S seems to describe them going off together at other times of the day.[310]In my judgment both the account of R and that of Mr B of this incident is unconvincing, as is Mrs B's alleged acceptance of the explanation offered by R for not having knickers on, that she was suffering from diarrhoea.[311]As I have mentioned there are a number of inconsistencies in R's account on 1 November 2006 and her later accounts. There are also a number of inconsistencies in the accounts of Mr B, S and R as to what Mr B was wearing and where they were in the room and what they were both doing when R came in.[312]Notwithstanding the points made later as to Mr B's explanation and reaction I do not accept, as R alleges, that this was an occasion on which Mr B had penetrative sex and that as she said in her ABE interview and oral evidence Mr B heard S coming and jumped off her, rather than in her 1 November 2006 account, when she said S walked in to see Mr B with his boxers down on top of her. In my judgment both accounts lack credibility in the overall context of the incident. In my view this part of R's 1 November account is untrue as it does not fit with any of the other accounts and R changed it. The later account of Mr B hearing S and jumping off her does not fit easily with S's account and R's account of her reading a book (which Mr B accepts in his statement of 13 June 2007) and is also not easy to fit with her account of penetrative sex. I accept that some support for this account can be derived from the mention by S on 4 August 2006 that when he went in they were moving quickly. But this part of the account is linked to him going into his parent's bedroom and thus the part of the note that would suggest that there was more than one incident when he walked in on R and Mr B therefore may be inaccurate. But reading it as a description the 2005 incident in conjunction with where he says R was (i.e. on the floor not the bed) I have concluded that this reference does not provide convincing support for R's account that Mr B had just jumped off her and they had been having penetrative sex, or this was being attempted on the bed.[313]I find that it is more likely than not that on this occasion Mr B and R did not have penetrative sex and that penetrative sex was not attempted.[314]However Mr B's explanations as to why he was in R's room with his belt undone are very unconvincing of themselves (i.e. tidying up and that he occasionally left his belt undone and he was looking for his black shorts) and they become even more unconvincing when coupled with his accepted reaction ("it isn't what it looks like") and his physical assault on S that was considerably underplayed by Mr B in his police statements, as was the whole incident which was shortly followed by S going to live with his maternal grandmother.[315]In my judgment this explanation and reaction provide strong support for a conclusion that something inappropriate of a sexual nature (as opposed to for example chastisement with Mr B's belt) occurred, or was about to occur, and that such inappropriate conduct was not an isolated or "one off" incident. The second part of this possible conclusion is supported by the point that S was suspicious of R and Mr B and the intensity of Mr B's reaction. The arguments that Mr B was getting his retaliation in first and was seeking to hide his own abuse of the children and in particular R[316]These are important and major points advanced against Mr B and as I have indicated they are based on a number of factors. My discussion of them in this judgment should be read with the schedule I have prepared relating to R's allegations of sexual abuse by Mr B (Schedule G), this contains a number of citations, shows the progression of Mr B's disclosures and evidence and to a large extent is based on the final written submissions put in on behalf of the mother, whose counsel was the first to argue these points in closing submissions. This Schedule and those arguments were adopted by R and on a number of points by the local authority.[317]I have mentioned the difficulties and reluctance of a young girl who has been sexually abused to disclose that abuse. In this context I must remind myself of the problems faced by a man who has been victimised and falsely accused to assert and admit this and thus that an account by such a man can come out in small pieces and contain understatements and inconsistencies.[318]However having given myself that reminder I accept and have concluded that these arguments have real force.[319]Like R, Mr B joined in the campaign against S initiated by Mrs B following her assault on S on 21 July 2006. Mr B did not make a statement to the police relating to the allegation that S had sexually abused N but his is the first recorded assertion that N had said that S had put his willy in (as opposed to near) her minny, he also joined with Mrs B (and Mr S senior, who must have based his support on what he had been told primarily by Mrs B) in confirming that S was to blame for the break up of their marriage and he refused to consent to S having a medical. In short Mr B was effectively a full member of the attack on S prompted by Mrs B's fear that if she was prosecuted this would ruin or damage her teaching career.[320]As I have already said in my judgment the support for the attack on S by both R and Mr B is a factor that casts serious doubt on their credibility.[321]Mr B also supported Mrs B in her disputes and assertions against the teachers.[322]I accept that a reasonable alternative explanation to that advanced by Mr B (namely victimisation by and fear of Mrs B) for these actions and this support is that he had something to hide and that this was that, although he was less dominant than Mrs B in their relationship, he had been and was violent and abusive towards the children, and had sexually abused R.[323]My findings in respect of the violence within the household mean that I have concluded that Mr B gave a false and incomplete account of those matters and thus a false and incomplete impression to the local authority. Again a reasonable alternative explanation to those advanced by him and the problems of disclosure for a man who has been a victim as well as an inflictor of physical abuse is that he wanted to create a false impression and to hide or avoid blame for the abuse he had perpetrated.[324]I accept and find that the citations and descriptions of Mr B's disclosures to the police and social services and his evidence in these proceedings provide sound bases for the argument that Mr B was trying to get his retaliation in first and to hide his own abuse of the children, and in particular of R. For example they demonstrate avoidance and playing down of the 2002 and 2005 incidents, even though on 23 October 2006 Mr B had asserted to the police that he was afraid that Mrs B had threatened him with arrest for interfering with R.[325]I agree that this avoidance and playing down of these incidents and his assertion that R also threatened on 10th July 2006 to accuse him of sexually abusing her provide strong support for the argument that he was getting his retaliation in first. But as is regularly the case if this is what he was doing it is arguably surprising that he did not mention these incidents because they were well known in the family and if he was seeking to retaliate first he would have been likely to mention, and therefore confess and avoid them.[326]As I have already mentioned his late introduction of the assertion that Mrs B has suggested the use of yoghurt in their sexual foreplay was, I agree, unconvincing.[327]In Schedule G I discuss Mr B's failure to address the 2002 and 2005 incidents after they took place. As I have said in my judgment over his visit to the home on 8 / 9 July 2006 Mr B searched for the material he found in the form of MSN messages and the letter. But he then failed to address in a constructive and appropriate way, with for example Mr S junior or Mrs B, the concerns that he says he had, and could justifiably have had, that R's relationship with Mr S junior had inappropriate sexual elements. Rather he argued with R about it.[328]Again a reasonable alternative explanation to those advanced by him for those actions or lack of action and the problems of disclosure for a man who has been a victim as well as an inflictor of abuse is that he wanted to keep R "on side" and to prepare the ground for a counter attack on her if and when he was accused of sexually abusing R.[329]Problems with these arguments about getting his retaliation in first and preparing his grounds of defence are that some of his actions for example his heated arguments with R and his nuisance telephone calls (which I find occurred although not as frequently as alleged by Mrs B and R with the support of Mr S senior and junior) are not consistent with the execution of such a plan or campaign because they would have been likely to, and in fact did, anger R and thus precipitate a disclosure (which they did not until 30 October). As I have said reasons for such departures by Mr B from his profilactic plan were advanced but they are necessarily speculative.[330]A point in favour of Mr B having such a protective plan is the mirror image of his own argument against Mrs B and R that after April 2006 they knew that the marriage was over and confrontation and dispute was likely if not inevitable and that after 21 July 2006 the social services and police were involved and allegation and counter allegation were being made. He had the same knowledge and I accept that it is possible that he was worried that the relationship between Mr S junior and R would lead R to make disclosures against him.[331]Overall in my judgment and although there are two sides to many aspects of them these arguments have force and are forcefully supportive of the conclusion that R's allegations are true and therefore that Mr B did sexually abuse her as (or substantially as) she alleges.

Threats

[332]I have made a finding that after April 2006 Mrs B did threaten Mr B that she would accuse him of sexually abusing R and said that I would return to the arguments advanced on behalf of Mrs B relating to the progression of his allegations that she had made such threats.[333]Those arguments were to the effect that the progression demonstrated that the allegation was untrue. I set out the progression relied on at the end of Schedule G. The arguments have an overlap with those that Mr B was seeking to get his retaliation in first, which I accept have force, and were advanced (together with those on the progression relating to the allegation of threats) to support the argument that they constitute cogent evidence that R's allegations are true.[334]The arguments specifically directed to the progression of allegations that threats had made included the following: i) the accounts are mutually inconsistent, ii) they show that Mr B only started to assert that there were threats of false allegations of sexual abuse at the end of September 2006 (obliquely) and on 23 October 2006 when it must have been apparent to him that the truth was about to come out, and iii) when he did start to mention threats of sexual abuse, he did so in a way calculated to undermine R's allegations when they did come out, because for example he made no mention of the 2002 or the 2005 allegations – which would have added credence to the allegations.[335]I accept that isolated to the allegations that threats were made these arguments have force but in my judgment they do not outweigh the arguments and reasoning I have relied on in reaching my finding that after April 2006 Mrs B did threaten to make allegations that Mr B had sexually abused R, in particular because that finding is in large part based on third party evidence.[336]That finding is a factor in favour of a conclusion that Mr B was not getting his retaliation in first but was making disclosures in a limited, muddled, conflicting and progressive way as a person who was a victim albeit also an inflictor of abuse. But in my view this factor falls a long way short of rendering the argument that Mr B was seeking to get his retaliation in first a weak one. As I have said under the previous heading in my view in all the circumstances they have force.

Overall conclusions on the allegations that R was sexually abused by Mr B

[337]As will be apparent if I was to stop immediately after the heading: "The allegations of sexual advances being made by Mr B in July and August 2006" the analysis and reasoning would broadly point to a conclusion that R was not telling the truth and she has not been sexually abused by Mr B as she alleges. But if I had started at the other end of my headings the analysis and reasoning (read in particular with Schedule G) would broadly point in the other direction. If the headings had been included in the reverse order, this paragraph would be the other way round.[338]Sadly the overall position is that in my judgment the arguments in favour of the credibility of both Mr B and R are at their strongest when the evidence and actions of the other are being considered and analysed. Both start from their participation in the allegation culture which casts very considerable doubt on their credibility, which was not dispelled by what they said and their presentation in the witness box. The stark conflict of fact between them then has to be considered in the context of the numerous arguments as to why one is more likely than the other on this aspect of the case to be giving a truthful account and an analysis of those arguments shows that the actions, statements and approach of R and Mr B relied on by one side of the argument do not clearly or determinatively establish that argument, that many of them can be said to lead to both conclusions and that their consideration in many instances does not result in a comparison of like with like.[339]After considerable effort, following the approach in law I have set out, I have concluded that: i) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges or substantially as she alleges, and thus that she is telling the truth, ii) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was not sexually abused by Mr B, and thus that Mr B is telling the truth, iii) my answer to the question which of the above two possibilities (and thus which of Mr B and R is telling the truth) is more likely, would be a guess because I cannot even answer that question by attributing and giving weight to the competing arguments on a properly founded and reasoned basis, and iv) on an approach founded on evidence and reasoning, and not on suspicion and/or concern, I am unable to conclude that there is no real possibility that Mr B sexually abused R as she asserts or substantially as she asserts and I have therefore concluded that there is a real possibility that he did.[340]I have concluded if Mr B was sexually abusing R in the persistent way she alleges Mrs B either(a) knew that this was happening and did nothing about it, or(b) saw and heard things that would have indicated to any reasonable adult that R was being sexually abused by Mr B, or that there was a very serious prospect that this was the case and did nothing about it, apart from, after April 2006, making threats to accuse Mr B of such abuse.[341]In my reasoning for reaching these conclusions I have not found it easy to express the impact of seeing and hearing the witnesses and in particular the members of the family give their evidence. I record that this has been an important element of my consideration and overview.[342]I acknowledge that both of the rival arguments have force. I also acknowledge that some of my findings and the ordering of my reasoning can be said to found one of the rival contentions. Also no doubt some inconsistencies in my reasoning could be identified and different possible conclusions from it could be advanced. This in my view is a product of the problem I have been faced with and my overview and ultimate conclusion is that I cannot penetrate the uncertainties that exist to make findings to the civil standard (more likely than not) or indeed as to which of the stark rival contentions is more likely.[343]I have considered whether a middle course is open to me. Namely(a) a general finding that there was some sexual abuse or sexually inappropriate behaviour and R has exaggerated, or(b) a finding that some sexually inappropriate behaviour occurred, or was about to occur, when S walked in on Mr B and R in 2005 and such inappropriate sexual conduct was not an isolated or "one off" event.[344]I was urged against making any such finding, although it was accepted that I could make such a finding in respect of the 2005 incident.[345]There is force in the proposition that R has exaggerated because this is part of the allegation culture of the family. But that has also included the conversion and distortion of innocent actions to found serious allegations and not just the exaggeration of culpable behaviour. It cannot therefore be safely reasoned that any exaggeration by R would have a culpable base.[346]Also I am quite unable to define on an evidential basis conduct amounting to sexual abuse of R by Mr B that is not the abuse alleged or substantially the abuse alleged by R. Any such identification would therefore be based on speculation and suspicion and would effectively be a guess.[347]I have therefore concluded that a middle course is not open to me. Schedule to the main judgment in A Council v B & Others setting out the approach adopted by Charles J with regards to the standard of proof in this fact-finding judgment. A Council v B & Others [2007] EWHC 2395 (Fam): Schedule A My Approach in law Standard of proof – approach to fact finding[1]I have applied the approach set out in my own decision A Local Authority v K, D & L [2005] 1 FLR 851. I add that I have also had regard to Re T (Abuse : Standard of Proof) [2004] 2 FLR 838, and Re G (a child) (non-accidental injury: standard of proof) [2001] 1 FCR 97 which are not among the cases mentioned in K, D & L.[2]That approach concerns the standard of proof (the civil standard and thus the balance of probabilities) and the basis on which findings to that standard are made (on evidence, facts found to the civil standard and reasoning). The most relevant paragraphs of my judgment in K, D & L are paragraphs 25 to 37.[3]This is a case which raises serious allegations. It engages the comments made and referred to in K D & L as to the effect of that and inherent probabilities and improbabilities in determining, on the evidence, whether on the balance of probabilities an event occurred.[4]As appears from K, D & L, and the cases referred to in it, and above, the court has to have regard to and weigh all the competing factors and should not evaluate the evidence in separate compartments. As a process of reasoning a stage by stage analysis may be appropriate but an overview of the totality of the evidence has to be carried out.[5]In this case the Lucas warning is particularly relevant. More likely than not / likelihood in the sense of a real possibility6. As I point out in paragraph 30 of my judgment in K, D & L the phrase "more likely than not" in the passage in Re H & R describing the civil standard of proof identifies a sense in which the word "likely" can be used, and perhaps its primary usage and that in applying the balance of probabilities test, the court is not determining whether there is a real possibility that the relevant event occurred, but is determining whether it is more likely than not that it did so.[7]In Re H & R the House of Lords also explained the meaning of the word "likely" in the phrases "likely to suffer harm" and "likelihood of harm" and explained that here it means a real possibility, a possibility that cannot safely be ignored having regard to the nature and gravity of the feared harm. This is a different test or standard in respect of the assessment of what is likely in the future and thus in the assessment of risk or future circumstances.[8]The 3/2 divide in the House of Lords is as to what has to be proved to the civil standard to establish that real possibility in a case where it can only be established by reference to an allegation of inflicted harm to another child (or the child in question) and thus in Re H and R, sexual abuse.[9]The majority decide that in those circumstances the real possibility of harm required to satisfy the threshold can only be established by proving that it was more likely than not that the alleged harm (there sexual abuse) took place. As is clear from the speech of Lord Nicholls he envisaged that the same approach is to be taken if the local authority seek to satisfy the threshold on the basis of an allegation that a child has been killed by a parent ([FLR] report at 98 D/E). The minority took a different view by reference in part to the purpose of the Children Act and were of the view that for a decision maker (here the court) to be satisfied of the existence of a risk does not require proof of the occurrence of past historical events but proof on all the evidence of facts which are relevant to the making of the prognosis.[10]In my view the purposive approach of the minority finds echoes in the approach of the House of Lords in later cases, both on threshold and disposal, when the issue is not whether harm has been inflicted on a child but as to the identity of the person or persons who inflicted such harm.[11]Re H and R was decided before the Human Rights Act came into force.[12]A real possibility test has now been applied to the determination of the size of the pool of possible perpetrators (see North Yorkshire CC v SA [2003] 2 FLR 849).[13]In respect of both tests (more likely than not / real possibility) it seems to me that an approach based on the evidence, facts found to the civil (or appropriate) standard and reasoning must be taken. A stark choice14. If a court can on the evidence, facts found and reasoning conclude that one of two stark choices is not a real possibility to my mind it follows that this will effectively reduce the choice to one and therefore that choice will be established to the civil standard (more likely than not).[15]I acknowledge that on the face of it, it might be said that applying the "more likely than not test" in the manner explained in Re H & R there is logic and force in an assertion that the court should generally be able to determine a stark issue on the balance of probabilities (more likely than not).[16]The stark choice could be, for example: i) Was A the victim of inflicted harm?, orii) Was the harm found to have been inflicted on A inflicted by X or Y? That harm could be death, sexual abuse or other physical harm.[17]However, in my view a mathematical, scientific or purely comparative approach to the fact finding exercise facing the court (i.e. whether there was inflicted harm or abuse or the identification of the perpetrator of such harm or abuse once it is established) by reference to percentages, or a mathematical (or other clear) attribution of factors, does not pay sufficient attention to the realities of the issues and problems faced by a court in care proceedings.[18]This is demonstrated by the points that(a) it has been accepted by the House of Lords (see for example Re O & N; Re B [2003] 1 FLR 1169) that a court may well not be able to decide to the civil standard the stark choice between which of two possible perpetrators inflicted established harm, and(b) over the years many courts have reached this conclusion.[19]To my mind those demonstrative points also indicate and it is the case that even when a decision maker is presented with a stark choice the answer to the question:
"Which is the more likely, A or B?" does not necessarily answer the question "
Has it been established that it is more likely than not that A is the answer (or B is the answer)? See also K, D & L at paragraph 90.[20]There are of course distinctions between a decision as to whether harm has been inflicted and who the perpetrator of that harm is. This is recognised in Re O and N. Indeed it seems to me that these distinctions form part of the reasoning founding the decision made in that case which is based on policy and the interaction of the jurisdictional (trigger to interference in the lives of a family by a public authority) and disposal (risk management applying the paramountcy principle) of care cases. But in my judgment these distinctions do not found a conclusion that it is only in cases where harm is established and the choice of perpetrator is reduced to two that the court will be unable to reach an answer to a stark choice applying the civil test (more likely than not) and the evidential approach set out in Re H & R.[21]In my view the fog referred to by Lord Nicholls in Lancashire CC v B [2000] 1 FLR 583 (at 588H to 589C) exists both in cases where(a) the position is that if harm was inflicted the perpetrator is clear and thus the issue is whether the harm was inflicted, and(b) the position is that inflicted harm is clear or established to the appropriate standard and the outstanding issue is as to who inflicted it.[22]In my view in both of these types of case the court may not be able to penetrate that fog with sufficient clarity to decide the relevant issue, and thus what happened, to the civil standard.[23]For demonstration purposes only, because in my view a mathematical or 51/49 approach does not properly reflect the task facing the court, the factors in the evidence taken as a whole could show that there was a 40% chance that there had been inflicted harm or abuse and a 35% chance that there had not (or vice versa). In percentage terms that means that: a) on a real possibility test or approach neither result can be excluded, andb) the final 25% remains to be attributed. That attribution involves a further consideration and weighing of a range of diverse factors and the court may not be in a position to penetrate the uncertainties with sufficient clarity to reach an attribution that means that a conclusion that it is more likely than not (51/49) that harm or abuse has, or has not, been inflicted. In that sense the unattributed portion, or the unpenetrated fog, results in a draw. Further as I have said in my view an answer to the question which of the two choices is more likely will not necessarily give sufficient clarity to say whether one of them is more likely than not to be the truth.[24]So in my view when there is a stark choice on fact finding if an answer can be given on the evidence, facts found and reasoning to the "real possibility" test that will eliminate one of the choices and establish the relevant fact, but an answer (if it can be given) to the question "which of the two choices is more likely" will not of itself do so.[25]In my view there is therefore generally a progression of reasoning involving first the identification of the factors in favour of the competing conclusions, an assessment of their weight and if that does not found a finding that something is more likely than not the uncertain balance needs further examination. Approach to making a determination to the civil standard in respect of allegations of inflicted harm or abuse 26. I am of the view, on the present state of the authorities (see further below) that the court should in care proceedings strive to reach a conclusion whether it is more likely than not that a child has, or has not, been the victim of inflicted serious harm or abuse, and if the finding is that the child has, then who the perpetrator is.[27]But having made that effort the court may be driven to the conclusion that it cannot do so and that on the evidence, facts found to the civil standard and reasoning it cannot make a finding to the civil standard (more likely than not) and both the relevant accusation and denial remain real possibilities. i). I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges or substantially as she alleges, and thus that she is telling the truth,ii) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was not sexually abused by Mr B, and thus that Mr B is telling the truth,iii) my answer to the question which of the above two possibilities (and thus which of Mr B and R is telling the truth) is more likely would be a guess because I cannot even answer that question by attributing and giving weight to the competing arguments on a properly founded and reasoned basis, iv) on an approach founded on evidence and reasoning, and not on suspicion and/or concern, I am unable to conclude that there is no real possibility that Mr B sexually abused R as (or substantially as) she asserts or in some other way and I have therefore concluded that there is a real possibility that he did, andv) I have concluded that if Mr B was sexually abusing R in the persistent way she alleges it is more likely than not that Mrs B either(a) knew that this was happening and did nothing about it, or(b) saw and heard things that would have indicated to any reasonable adult that R was being sexually abused by Mr B, or that there was a very serious prospect that this was the case and did nothing about it, apart from after April 2006 making threats to accuse Mr B of such abuse.[29]The issues relating to the consequences of this essentially arise (and in respect of the issue whether a finding exonerating Mr B should in those circumstances be made) can be dealt with at the next stage of the proceedings.[30]In those circumstances I did not hear full argument on those issues and what follows represents preliminary views. It is included to identify issues and arguments that I would like the parties to address. The underlying problem31. To my mind this is in large measure based on the tensions between the powerful reasons for(a) setting the jurisdictional test or trigger for intervention by a public authority in the lives of a child and its family at an appropriately high level, and(b) taking an appropriate approach to risk management to prevent harm to a child by one or more of its primary carers.[32]It will immediately be appreciated that the solutions to this underlying problem have the potential for creating tragic results to members of a family. If a child is removed from the care of a parent, or both parents, on the basis of a finding or allegation of inflicted harm and that finding or allegation is wrong tragically all members of the family suffer harm. If a child is not so removed and then suffers harm (by for example being killed or sexually abused) then tragically that child and indeed its family suffer harm.[33]It is therefore clear that when allegations that serious harm has been inflicted on a child by a parent or carer are raised difficult legal and policy questions arise that are of general importance and public interest.[34]In my view generally when a risk and its management are being considered, whether in the context of a risk of harm to a child in its day to day life or any other type of risk, the severity of the possible consequence if preventative measures are not taken is an important factor. As a result preventative measures are more likely to be taken if the harm or risk in question would be very serious (e.g. death, serious injury or sexual abuse) on the basis that the seriousness of the possible consequences means that the risk of them occurring cannot in all the relevant circumstances sensibly or safely be ignored.[35]Also generally the existence of a risk is assessed and, in the light of that assessment, managed without there being any finding by a court and the relevant decision maker acts on his view of all the circumstances including relevant allegations.[36]There is therefore tension between(a) the approach laid down and taken in Re H & R to the making of findings of fact in respect of serious allegations of inflicted harm, and(b) a general approach to risk management. This is because in reaching a finding on inflicted harm to the civil standard a factor to be taken into account is the point that the more serious the allegation the less likely it is to have occurred. So, in the context of care proceedings (and thus the interference in the lives of a family by a public authority pursuant to a care or supervision order) when, on the approach of the majority in Re H & R, a risk of serious future harm (a likelihood of serious future harm) can only be based on establishing that it is more likely than not that such harm has been inflicted by a carer in the past, the seriousness of the allegation is a factor against the making of the relevant finding to give jurisdiction to take protective measures against the risk of such alleged harm being inflicted again. Whereas, and in contrast, it seems to me that generally in terms of risk management (and indeed in an application of the tests under the Children Act relating to interim orders) the seriousness of the consequences of alleged harm recurring is a factor in favour of taking protective measures and preventative measures are taken and required without proof to the civil standard of the alleged inflicted harm.[37]In my view there is a recognition of this general approach to risk management in Re H & R in the exposition of the test to be applied to establish "likelihood of harm", namely a real possibility, a possibility that cannot safely be ignored having regard to the nature and gravity of the feared harm.[38]If these problems are related to the facts of Re H & R and this case the serious harm in question was sexual abuse, and in Re H & R it is made clear that the same approach is to be taken if the harm in question was death. On the approach taken in Re H & R (as applied at the disposal stage in Re M & R [1996] 2 FLR 195) the position is (or at least it is strongly arguable that it is) that if the risk of future sexual abuse by X of a child can only be based on a finding that X has so abused that child or another child in the past then: i) if jurisdiction can be established on some other ground in determining the future care of the relevant child or children, and thus the issues of risk management relating to them, the court and the local authority have to proceed on the basis that the alleged sexual abuse did not take place, andii) if jurisdiction can only be established by proving the alleged sexual abuse the court and the local authority can do nothing. This is so even if the court on the evidential approach set out in Re H & R has not been able to conclude that there is no real possibility that X did sexually abuse (or kill) a child as alleged and indeed therefore has concluded that there is a real possibility that X did inflict that harm. It is based on an application of the general rule or position set out in paragraph 10 of Lord Nicholls' speech in Re O & N .[39]So applying the tests and approach in Re H & R and Re M & R (without any qualification based on later authority and in particular Re O & N – see below) the result is (or it is strongly arguable that the result is) one which means that the relevant law and policy provides that in this case the court, the local authority and those involved in the assessments of the family would have to consider the placement and future care of the three children on the basis that Mr B did not, with the knowledge of Mrs B, seriously and persistently sexually abuse R and thus on the basis that the risk that Mr B with the knowledge of Mrs B did seriously and persistently sexually abuse R can (or must), in all the circumstances, safely and sensibly be ignored.[40]At the heart of this approach is(a) the reasoning and conclusions of the House of Lords as to the need to establish the threshold and thus the jurisdiction to interfere in the lives of a family,(b) the logic of taking the same approach to the establishment of the likelihood of harm at the threshold stage and the establishment of risk of harm at the disposal stage and(c) the danger of undermining the protection to families given by the jurisdictional threshold if a different approach to the establishment and assessment of risk of future harm was taken at the second and disposal stage.[41]This was, as I understood it, effectively the position advanced by counsel for all the parties in the written submissions put before the court and is reflected in the points made by counsel for the Guardian that(a) if the allegation of sexual abuse of R by Mr B is established to the H & R standard it is a "fact",(b) if it not established to the Re H & R standard it is not a "fact", and(c) if it is established to the H & R standard that R was not sexually abused by Mr B it is a "fact" that the abuse did not happen.[42]In my view a problem with this approach is that it does not cater for the position if the court cannot make one of findings (a) and (c) and therefore it is not a "fact" that the abuse alleged took place and it is not a "fact" that it did not take place. An assessment of risk and outcome on the basis that the alleged abuse is not a fact (because it has not been proved to the civil standard as required by Re H & R) is not the same thing as one on the basis that it is a fact that it did not happen.[43]But as is demonstrated by the written submissions this approach leads to one where at the second (risk assessment and more inquisitorial) stage the court and the local authority cannot base a risk of harm and thus take preventative measures on the basis of unproved allegations because they should be treated as "doubts and suspicions" even though on the evidential approach demanded by Re H & R the court has concluded that it cannot penetrate the fog and there is a real possibility both that the alleged harm was inflicted and a real possibility that it was not.[44]So in my view this approach leads to problems when findings (a) or (c) cannot be made and the court and the local authority are left with a situation that the fact of the allegation having been made is established, and is relevant to the decisions that fall to be made as to the short, medium and long term welfare of children, but the general rule does not set the basis for treating the allegation as one that is true or false.[45]This is a different problem to that inherent in the "more likely than not test", namely that that test is not based on a certainty, or being sure, and envisages the prospect that there is a real possibility that a finding based on it might be wrong.[46]Necessarily the court knows of the diverse serious consequences for the child, adult(s) and their family that flow from a finding relating to inflicted harm but in my view in the determination of the underlying facts (namely was the alleged harm inflicted and if so who was the perpetrator) these are not relevant considerations. The uncertain perpetrator cases47. Problems flowing from the legal and policy approach referred to above have been addressed by the House of Lords in cases where the fact that a child has been the victim of inflicted harm has been established to the relevant (H & R) standard but the perpetrator cannot be so identified to the civil standard (i.e. it cannot be said from the pool of people, of whom it can be said that there is a real possibility that he or she is the perpetrator, who is more likely than not to have been the perpetrator). Again the harm inflicted would include death.[48]The cases are the Lancashire case and Re O & N. The Lancashire case focused on the establishment of the threshold (jurisdiction) and the decision in that case was based on a purposive construction of the threshold conditions. In reaching that decision the House of Lords had regard to the potentially dangerous irresponsibility of a conclusion that the court did not have a discretion to make a care order or supervision order in such circumstances, whilst recognising that a parent who may be wholly innocent will face the possibility of losing his or her child.[49]The difficulties flagged up by Lord Nicholls in the Lancashire case concerning the second stage of care proceedings arose and were dealt with in Re O & N.[50]Both cases contain a unanimous decision in which Lord Nicholls gave the main speech. In Re O & N, as he says, Lord Nicholls considers the practical implications of the decision in the Lancashire case at the welfare stage.[51]The general rule or position as to the effect of a finding or the absence of a finding to the civil standard is set out by Lord Nicholls in Re O & N at paragraph 10, as follows (in the citations passages in italics are my emphases):
" [10] Before turning to the provisions of the Children Act 1989 I should make an introductory observation. Courts and tribunals constantly have to decide whether an alleged event occurred. The general rule is that if the likelihood that a past event occurred is proved to the requisite standard the law regards that event as definitely having happened. That passage continues: 400. "
If not, it is treated as not having happened."[52]In Re H & R at 98H in the [FLR] report, in line with that general approach, Lord Nicholls had said that:
"The starting point here is that courts act on evidence. They reach their decision on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, the court will have regard to the undisputed evidence. The judge will attach to that evidence such weight or importance as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proven on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on that score. This is the area of controversy. In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in s 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established. ------------ "
And at 100E to H in the [FLR] report he says: 402. " The next pointer is that the second threshold condition in para (a) is cheek by jowl with the first. Take a case where a care order is sought in respect of a child on the ground that for some time his parents had been maltreating him. Having heard the evidence, the court finds the allegation is not proved. No maltreatment has been established. The evidence is rejected as insufficient. That being so, the first condition is not made out, because there is no factual basis upon which the court could conclude that the child is suffering significant harm attributable to the care being given to him. Suspicion that there may have been maltreatment clearly will not do. It would be odd if, in respect of the selfsame non-proven allegation, the selfsame insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm to the child in the future. 403. The third point is that if indeed this were the position, this would effectively reverse the burden of proof in an important respect. It would mean that once apparently credible evidence of misconduct has been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has been disproved and there is a real possibility that the misconduct did occur. Accordingly, there is a real possibility that the child will suffer in the future and, hence, the threshold criteria are met. I do not believe Parliament intended that section 31(2) should work in this way."[53]That general rule and in particular the second part of it (and thus the cited view expressed in Re H & R as to the effect of unproven allegations and judicial doubts based on an evidential approach to the determination of the primary allegation of inflicted harm) was a main source of the divide in the Court of Appeal in the two cases before the House of Lords in Re O & N as to the approach to be taken at the welfare or disposal stage of a case in which inflicted harm is established to the civil standard but the perpetrator of that harm cannot be so established. This is because they founded the argument that even though neither A or B could be excluded as perpetrators, because there was a real possibility that he or she was the perpetrator, as neither had been found on the balance of probabilities to be the person who inflicted the established harm they both had to be treated as innocent when decisions were made as to the future care and placement of the relevant child, and thus on risk management issues. The divide in the Court of Appeal is explained by Lord Nicholls in paragraph 2 of his speech as follows:
"The context is the "uncertain perpetrator" type of case, where a child suffers physical harm at the hands of his parents, but the court is unable to identify which parent was the perpetrator or, indeed, whether both were perpetrators. The threshold criteria are met. The court so decides at a preliminary "fact finding" hearing, and the case then proceeds to the "welfare" stage and a "disposal" hearing. In one of the appeals before your Lordships' House, Thorpe LJ expressed himself to the effect that at the disposal hearing in such a case the judge cannot disregard the risk the mother presents as a primary carer for the child in question. In the other appeal, Ward LJ said the case should proceed on the basis that the child was not harmed by the mother and that there is no risk of the child suffering physical harm from her. "
[54]The solution was reached in Re O and N largely by reference to legal policy. In doing so, weight was placed on the point that the court was dealing with a situation in which it had been established (or was indisputable) that a child had been the victim of inflicted harm and the issue was which of two potential carers (or whether potential carers) of that child had inflicted that harm.[55]I have already cited paragraph 10 of Lord Nicholls' speech, in Re O & N. He continued his introductory remarks as follows:
" [11] But the general rule does not always apply. Questions of proof of a past event arise in widely varying contexts. Sometimes the law limits the matters the decision-maker may take into account. When this occurs the reason is legal policy, not the requirements of logic. ------------ [12] The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory, it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood - beyond reasonable doubt, more probable than not, real possibility and so on - required in any particular legal contexts raises a question of legal policy. [13] Here again, the policy decision on the requisite degree of likelihood is a separate question from the policy decision on the matters the court or tribunal may take into account. As to the latter, the matters a decision-maker may take into account, are normally bounded only by the need for them to be relevant, that is, they must be such that, to greater or lesser extent, they will assist the decision-maker in reaching a rational conclusion. The context may, indeed, require that this principle should apply in its full width: see, in the context of asylum cases and the difficulties of proof, which beset asylum seekers, Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, especially Brooke LJ at 458-470 and Sedley LJ at 477-479. The legal context may permit, or require, the decision maker to take into account any real possibility that a past event occurred, or even a mere possibility. Rationality does not require that only past events established on a balance of probabilities can be taken into account. Or the context may require otherwise. The range of matters, the decision maker may take into account when carrying out this exercise depends upon the context. This, regain is a question of legal policy, not logic. "
[56]Lord Nicholls then links these general comments to the Children Act and, having referred to Re H and R, and the conclusion therein that "likely to suffer harm" means a real possibility, a possibility that cannot safely be ignored having regard to the nature and gravity of the feared harm, he goes on to say at paragraphs 16, 17 and 18:
" [16] ---- This is a comparatively low level of risk. By a majority the House held that, for the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the selfsame non proven allegations, the selfsame insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future: see Re H(Minors)(Sexual Abuse: Standard of Proof) at 591 and 100 respectively. [17] This would not be an acceptable interpretation of s. 31(2). This suggests that, given the purpose of the threshold criteria, both limbs of the "significant harm" condition called for proof of fact. Like the inference that the child is already suffering harm, the inference that the child is likely to suffer significant harm, must be founded on one or more proved facts, as distinct from unproved allegations. Therein lies the protection Parliament intends the threshold criteria shall provide against arbitrary intervention by public authorities. This is the principal rationale for what might otherwise seem an unduly rigid approach. [18] The same considerations do not apply throughout the whole of the Children Act 1989. The particular reason why the threshold conditions require proof of facts is not germane in every instance, where a decision has to be made regarding the existence or extent of future harm to a child. In the case of each statutory provision it is necessary to consider the language and purpose of the provision to see whether, for reasons of legal policy, any limitation should be placed on the matters a decision maker may take into account when assessing the risk in question. ---------------------- "
[57]Lord Nicholls then discusses the Lancashire case and turns to the "uncertain perpetrator". At paragraphs 23 to he says:
"The welfare stage[23] Crossing the threshold is not a reason for making a care order. When the threshold criteria are met the court proceeds to the welfare stage. The court must decide whether it is in the best interests of the child to make a care order as asked by the local authority. As with 'private law' orders made under section 8 of the Act, so with care and supervision orders made under section 31(1), the paramount consideration in making this decision is the child's welfare: section 1(1) and (4). This involves looking at the past and also looking into the future. In considering which course is in the child's best interests, the court will have regard to all the circumstances of the case. [24] This has long been axiomatic in this area of the law. The matters the court may take into account are bounded only by the need for them to be relevant, that is, they must be such that, to a greater or lesser extent, they will assist the court in deciding which course is in the child's best interests. I can see no reason of legal policy why, in principle, any other limitation should be placed on the matters the judge may take into account when making this decision. (my emphasis) If authority is needed for this conclusion I need refer only to the wide, all embracing language of Lord MacDermott in J v C [1970] AC 668, 710-711. Section 1 of the Guardianship of Infants Act 1925 required the court, in proceedings where the upbringing of an infant was in question, to regard the welfare of the infant 'as the first and paramount consideration'. Regarding these words, Lord MacDermott said: "
I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood." In principle the same approach is equally applicable under section 1 of the Children Act 1989. [25] The Children Act directs the court, when making a decision regarding a child's welfare, to have particular regard to the factors set out in the welfare checklist in section 1(3). One of these factors is any harm the child 'has suffered or is at risk of suffering': section 1(3)(e). Questions have arisen on the interaction of this paragraph and section 31(2) as interpreted in re H (minors) (Sexual abuse: standard of proof) [1996] AC 563 and Lancashire County Council v B [2000] 2 AC 147. The questions have arisen in three areas. The welfare stage: 'uncertain perpetrator' cases [26] The first area concerns cases of the type involved in the present appeals, where the judge finds a child has suffered significant physical harm at the hands of his parents but is unable to say which. I stress one feature of this type of case. These are cases where it has been proved, to the requisite standard of proof, that the child is suffering significant harm or is likely to do so. [27] Here, as a matter of legal policy, the position seems to me straightforward. Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question. (my emphasis) [28] That would be a self-defeating interpretation of the legislation. It would mean that, in 'uncertain perpetrator' cases, the court decides that the threshold criteria are satisfied but then lacks the ability to proceed in a sensible way in the best interests of the child. The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator (my emphasis). As Hale LJ said in re G (Care proceedings: split trials) [2001] 1 FLR 872, 882: "the fact that a judge cannot always decide means that when one gets to the later hearing, the later hearing has to proceed on the basis that each is a possible perpetrator." This approach accords with the basic principle that in considering the requirements of the child's welfare the court will have regard to all the circumstances of the case. [29] In such cases the judge at the preliminary hearing, while unable to identify the perpetrator, may decide that one or other of the parents, perhaps both, was guilty of failure to protect. It was submitted that herein lies a better solution to the problem. The court should assess future risk on the basis of this proved shortcoming. This would be a better way to proceed because it would avoid attaching to each parent the stigma of possible perpetrator. [30] I do not believe this would be a satisfactory alternative. Inability to identify the perpetrator is not always accompanied by a finding of failure to protect. The judge may find that the child was injured in only one incident, by one or other of the parents, in a momentary loss of self-control. Further, when assessing future risk, failure to protect is one matter, perpetration is another. A finding of failure to protect is not a reason for leaving out of account at the welfare stage the undoubted fact that one or other of the parents inflicted the physical harm on the child. This may be important in cases where circumstances have changed since the injuries were inflicted and the parents are no longer living together. [31] In 'uncertain perpetrator' cases the correct approach must be that the judge conducting the disposal hearing will have regard, to whatever extent is appropriate, to the facts found by the judge at the preliminary hearing. Nowadays the same judge usually conducts both hearings, but this is not always so. When the facts found at the preliminary hearing leave open the possibility that a parent or other carer was a perpetrator of proved harm, it would not be right for that conclusion to be excluded from consideration at the disposal hearing as one of the matters to be taken into account. The importance to be attached to that possibility, as to every feature of the case, necessarily depends on the circumstances. But to exclude that possibility altogether from the matters the judge may consider would risk distorting the court's assessment of where, having regard to all the circumstances, the best interests of the child lie. [32] Similarly, and for the same reason, the judge at the disposal hearing will take into account any views expressed by the judge at the preliminary hearing on the likelihood that one carer was or was not the perpetrator, or a perpetrator, of the inflicted injuries. Depending on the circumstances, these views may be of considerable value in deciding the outcome of the application: for instance, whether the child should be rehabilitated with his mother. [33] From what I have said above it follows that I respectfully disagree with the approach adopted by Ward LJ in the case of child L and child C. Judge Downey concluded, expressly, that the evidence was not sufficient to exclude the mother and positively identify the father as the perpetrator of the injuries other than the fractured skull. In the light of this factual conclusion it would be quite wrong for the case to proceed on the false basis that the mother had been found not to be the perpetrator. The approach adopted in Re H, followed by Ward LJ in the case of child L and child C, is not apt at the welfare stage in 'uncertain perpetrator' cases. [34] I wholly understand that parents are apprehensive that, if each of them is labelled a possible perpetrator, social workers and others may all too readily rule out the prospect of rehabilitation with either of them because the child would be 'at risk' with either of them. As already noted, failure to protect is one thing, perpetration is another. A parent fears that, once the possibility that he or she was a perpetrator is brought into the scales, cautious social workers will let that factor outweigh all others. [35] I understand this concern. Whether it is well founded, generally or in particular cases, is an altogether different matter. Whether well founded or not, the way ahead cannot be for cases to proceed on an artificial footing. Rather, in cases of split hearings judges must be astute to express such views as they can at the preliminary hearing to assist social workers and psychiatrists in making their assessments and preparing the draft care plan. For their part social workers, I do not doubt, will have well in mind the need to consider all the circumstances when assessing the risk posed by a carer who is, but who is no more than, a possible perpetrator. To this end transcripts of judgments given at the preliminary hearing should always be made readily available when required, so that reliance does not have to be placed on summaries or even bare statements of conclusions: see Dame Elizabeth Butler-Sloss P in re G (Care proceedings: split trials) [2001] 1 FLR 872, 876. [36] I must mention a further point. The burden of proof on care order applications rests on the local authority. But, it was submitted, to proceed as mentioned above would improperly reverse the burden of proof. The parent would have the onus of exculpating himself when the local authority failed to prove he was a perpetrator but the possibility that he was a perpetrator was left open. I am unable to accept this submission. It cannot stand with the decision in Lancashire County Council v B [2000] 2 AC 147. As already noted, the effect of this decision was that a care order may be made in this type of case even though the local authority failed to prove, to the requisite standard of proof, which parent was the perpetrator of the physical harm. The approach described above does no more than give effect to this decision at the welfare stage in the only sensible way which is possible. On the present appeals, I add, no submission was made that the House should reconsider the decision in Lancashire County Council v B [2000] 2 AC 147, nor have I heard anything to suggest the House should do so.[58]So the House of Lords in Re O and N take an approach which gives effect at the welfare stage to their decision in the Lancashire case and in considering the purpose of the relevant provision use strong language ("grotesque") just as they did in the Lancashire case ("dangerously irresponsible") when describing the argument and result they rejected when considering threshold.[59]In doing so they confirm the approach of the majority in Re H and R (see paragraph 16, albeit that the minority view in Re H and R would it seems to me support the result described as extraordinary therein, and as odd by Lord Nicholls in Re H and R).[60]Lord Nicholls went on to consider the approach at the welfare stage to unproved allegations of harm if the threshold was established without reference to such allegations of harm (e.g. on the basis of neglect). The House of Lords thus considered to what extent at the welfare stage the court may take into account the possibility that the non-proven allegation is true. Lord Nicholls says at paragraphs 37 to 41 : "The welfare stage: unproved allegations of harm[37] The second area where a question has arisen about the interaction of section 1(3)(e) and section 31(2) does not directly concern the present appeals. Nevertheless I should comment briefly so that the observations made above are seen in context. This second area relates to the type of case where the threshold criteria are satisfied on one ground, such as neglect or failure to protect, but not on another ground, such as physical harm. At the welfare stage, to what extent may the court take into account the possibility that the non-proven allegation might, after all, be true? [38] This raises a question of legal policy. On the one hand there is the family protection purpose of the threshold criteria. On the other hand there is the general principle that at the welfare stage the court has regard to all the circumstances. On balance, I consider that to have regard at the welfare stage to allegations of harm rejected at the threshold stage would have the effect of depriving the child and the family of the protection intended to be afforded by the threshold criteria. Accordingly, at the welfare stage in this type of case the court should proceed on the footing that the unproven allegations are no more than that. [39] This accords with the approach of the Court of Appeal in re M and R (Child abuse: evidence) [1996] 2 FLR 195. On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. The children had suffered emotional harm at the hands of the mother and her partner and were likely to suffer significant harm in the future. The judge made an interim care order and adjourned the case to consider whether to return the children to the mother and her partner. The local authority appealed against the judge's refusal to make a care order. One ground of appeal was that the judge had erred by not taking the allegations of sexual abuse into account at the welfare stage. [40] The Court of Appeal, comprising Butler-Sloss, Henry and Saville LJJ, dismissed the appeal. Part of the reasoning of the decision was to the effect that it would be extraordinary if Parliament intended that, in one and the same case, evidence insufficient to satisfy section 31(2)(a) should be sufficient nevertheless to satisfy section 1(3)(e): see Butler-Sloss LJ at [1996] 2 FLR 195, 204. Butler-Sloss LJ drew attention to the unsatisfactory results which could follow in practice were this so. [41] I should also note that the position is not materially different when unproved allegations of harm are abandoned, as distinct from being rejected by the court. This situation arose in re R (Care: disclosure: nature of proceedings) [2002] 1 FLR 755. The local authority made, but later abandoned, allegations of sexual abuse within the family. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm. Charles J held that as matters stood the local authority and the court should assess risk on the basis that the allegations of sexual abuse were just that and nothing more. Part of the background, and relevant as such, was that the allegations had been made. Also part of the background, and likewise relevant, was the fact that the allegations had not been proved and, as matters stood, would not be proved. It would be wrong for the local authority to deal with the family on the basis that it believed the children had been sexually abused. That overall approach, the judge noted, accorded with the current reality.[61]He notes in those passages that the approach he adopts accords with the decision of the Court of Appeal in Re M and R and comments I made in Re R (Care: Disclosure: Nature of Proceedings) 2002] 1 FLR 755 that risk should be assessed on the basis that abandoned allegations of sexual abuse were just that and nothing more and that that approach was one that accorded with the overall reality.[62]Thus the decision in Re O and N shows that at the second or disposal stage of care proceedings in a case in which the court cannot identify the perpetrator of actual harm which has been proved to the required standard to have been inflicted on a child, it can and should a) have regard to(i) the real possibility that a potential carer who was within the pool of perpetrators identified by the court injured a child, and thus in my view (see in particular para. 32 of the speech) to(ii) the reasons why that real possibility has been found to exist, and thus the degree of likelihood that a parent is the perpetrator, and b) assess the course that will best promote the welfare of the child having regard to the risk that that person poses by reason of that real possibility (see also the Lancashire case at 589H / 590A).[63]This is an approach that allows the court when considering risk management to consider degrees of likelihood and thus of real possibility. It is therefore one which, at the welfare stage, allows the court to proceed on a finding of real possibility rather than an application of the general rule referred to at paragraph 10 of Lord Nicholls' speech.[64]Re O & N also indicates that at the welfare stage the court (and thus others) can have regard to unproved or abandoned allegations of harm on the basis that they are only that.[65]It is not explained what that means or how that is to be done or how that part of the guidance fits with the earlier passages relating to what the court can have regard to at the welfare or disposal stage concerning the possibility that a parent or carer was the perpetrator of proved inflicted harm. These are among the points that in my view require further consideration and argument. The underlying aim of the Children Act (and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) that relate to it (in particular Article 8). 66. Generally this is to protect children from harm and to promote their welfare.[67]At the welfare stage the aim is to reunite a family when the circumstances enable that to be done. It follows that serious and sustained efforts of the relevant public authorities should be devoted to that end.[68]Where a care plan engages the extreme step of severing all (or at least most) parental links with a child it can only be justified in exceptional circumstances or by the overriding requirement of the child's best interests (see the decision of the European Court of Human Rights in Re P, C and S v UK [2002] 2 FLR 631 in particular at paragraph 118 and Re C & B (Care[69]This underlying aim coupled with the test at the welfare or disposal stage that the court's paramount concern is the welfare of the child means that a child can be returned to a parent who has been found to have inflicted significant harm on that child or a sibling of that child. This can be done when the parent has not accepted the finding. They also warrant and lead to: i). the taking of risks to promote family life. Such risks need to be managed so far as is practicable, andii) the view that at that stage the investigatory aspects of care proceedings are more engaged than they are at the threshold or jurisdictional stage (see also my decision in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755).[70]This approach at the welfare or disposal stage, having regard to all the circumstances, has the potential for introducing questions as to the degree of certainty with which a finding of inflicted harm was made that has not been accepted and thus followed by an admission. On the approach taken in Re O & N in my view it can involve a consideration of the degree of likelihood that a parent or carer was the perpetrator of inflicted harm. Points requiring further consideration71. This is not intended to be an exhaustive description of these points. (1). The effect of the Convention. 72. Re H & R was decided before the Human Rights Act 1998 came into force. Later cases and in particular Re O & N were decided after that and in Re O & N Lord Nicholls refers to the different approach to the establishment of risk that has been taken to establishing whether there is a "reasonable likelihood of a well founded fear of persecution for a Convention reason" (see R (Sivakumar) v Home Secretary [2003] 1 WLR 840 in particular paragraph 19 of the speech of Lord Steyn, and the case mentioned by Lord Nicholls Karanakaran v SSHD [2000] 3 All ER 449).[73]I acknowledge that(a) there are real distinctions to be made between removing a child from, or returning a child to, its parents in whose care it is or might be at risk of harm and the return of a person to another country where he asserts he will be persecuted, and(b) those distinctions may found different conclusions based on legal policy as to the test for establishing risk or likelihood of harm and its management.[74]However in my view the impact or potential impact of in particular Articles 2, 3 (including the positive obligations imposed by them) and Article 8 on the approach taken under the Children Act merits further consideration and argument. Understandably as yet none of the parties have addressed this in their written submissions. I have not researched it.[75]It seems to me that the following point merits consideration. It is that the approach in Re H & R arguably prevents the public authorities, who have statutory duties to take steps to protect children from harm of the types mentioned in Articles 2 and 3, are powerless to do so when the likelihood or risk that they might suffer such harm: i) would be established applying the tests applied to establish "reasonable likelihood of a well founded fear of persecution for a Convention reason", or a real possibility test, butii) cannot be established applying the approach in Re H & R (and applied in Re M & R at the disposal stage). Article 8 (and thus the competing interests thereunder) is also relevant. (2). Should / can the majority decision in Re H & R as to the establishment of likelihood / risk of harm be revisited?76. This is part of the earlier argument relating to the Convention. In addition it should be considered whether the developments in the uncertain perpetrator cases and their reliance on legal policy warrant such a revisit.[77]I acknowledge the distinction between a case where harm is established and one where it is not. However in an uncertain perpetrator case as recognised in the Lancashire case the result now reached is that a parent who may be wholly innocent will face the possibility of losing his or her child. That is the same horrific prospect that is faced by a parent who is wrongly accused of sexually abusing, killing or otherwise inflicting harm on a child. If in the former case the court making the disposal or welfare decision can examine the degree of likelihood that a person was the perpetrator of proved inflicted harm because there is a real possibility that he or she did inflict the harm, the question arises whether, having regard to that development, it should be able to do the same when the real possibility relates to the infliction of the harm rather than who inflicted it.[78]If that majority view in Re H & R can be revisited the question then arises as to whether the approach to be adopted is the minority view, or some other view. (3). Should / can the decision in Re M & R as to the establishment of risk of harm be revisited?79. Again this is part of the earlier argument relating to the Convention. In addition it should be considered whether the developments in the uncertain perpetrator cases and their reliance on legal policy warrant such a revisit. In this context the points raised by Lord Nicholls in paragraphs 42 to 45 of his speech in Re O & N are relevant.[80]I pose the question whether the policy and purposive arguments in the Lancashire case and Re O & N together with the change at the disposal stage to a process that is more obviously and substantively investigatory, support a conclusion that a different approach to the establishment of a risk of harm can be taken at that second stage if the court has the jurisdiction to interfere in the lives of a family on other grounds.[81]If it did one result could be that the protection from interference in the life of a family would remain, as in Re H & R, if the only basis for that interference is the establishment of serious inflicted harm on a child, but that if the court had jurisdiction by another route and was therefore involved in decisions as to placement, welfare and risk management a different approach to the establishment and management of risk could be taken. (4). How is an unproved allegation to be taken into account by reference to the guidance in Re O & N? 82. I have already referred to this.[83]As indicated it seems to me that in the uncertain perpetrator cases the guidance has the effect that the court at the disposal stage can have regard to the reasons why there is a real possibility that a potential carer was the perpetrator and the conclusions reached at the first hearing on the likelihood that one carer was or was not the perpetrator.[84]Can a similar approach be taken to unproved allegations of inflicted harm?[85]In his speech Lord Nicholls by reference to authorities makes reference to two types of allegation namely one that has been the subject of consideration by the court and as to which it has been unable to make a finding that it is more likely than not to have occurred, and one that has not been the subject of a court decision because it has been abandoned.[86]One view is that on an application of the general rule referred to in paragraph 10 of his speech a court proceeding "on the footing that the unproved allegations are no more than that" would, applying that rule, have to treat them on the footing that the event alleged (e.g. sexual abuse by X) had not taken place. Lord Nicholls says that the position is not materially different when unproved allegations of harm are abandoned. That approach to the application of the general rule in paragraph 10, and that rule itself, is it seems to me based on an adversarial approach which identifies the person with the onus of proof. In Re O & N that approach is confirmed at the jurisdictional or threshold stage of care proceedings.[87]At the jurisdictional or threshold stage, as I point out in Re R, care proceedings are largely adversarial and at the next stage the non-adversarial or inquisitorial nature or element of the proceedings comes to the fore (see [2002] 1 FLR at 771/2).[88]So perhaps the general rule set out in paragraph 10 by Lord Nicholls either(a) does not apply at all, or(b) as a matter of legal policy, as was held to be the case relating to uncertain perpetrators, need not be applied, at the second and disposal stage of care proceedings in respect of unproved allegations.[89]I confess that in Re R I did not have that general rule in mind and my focus was on the point that having regard to the decisions in Re H & R and Re M & R that the local authority could not proceed on the basis of a belief that the children had been sexually abused (see 768C). My view and description of the reality in that case was not that the general rule relating to unproved allegations meant that the local authority and the court should proceed on the basis that the sexual abuse (the unproved allegations) had not occurred. Rather that reality was that allegations had been made and denied (see 768D, 768F and 769 A/D).[90]On that approach the reality here would be that the allegations of sexual abuse by R against Mr B have been made and denied and the court has concluded that it cannot make a finding based on evidence, findings and reasoning that it is more likely than not that R was sexually abused by Mr B, and on the same basis cannot conclude that there is not a real possibility that she was not so abused (and therefore has concluded that there is a real possibility that she was).[91]It is at least arguable that the general rule does not represent reality, rather it treats something that has not been proved as not having happened. The reality I described in Re R would enable the court at the welfare stage to approach the allegations as disputed rather than unproved allegations (to which the general rule applies) and thus, as in the uncertain perpetrator cases, to look at the reasoning at the first stage relating to the degree of likelihood.[92]Is Lord Nicholls supporting that approach or one in which the general rule applies with the result that the court and the local authority and others must proceed on the basis that the sexual abuse did not occur?[93]It seems to me that at the inquisitorial or more inquisitorial stage of the proceedings, in which a conclusion based on evidence and reasoning (and thus an in Re H & R approach) that there is a real possibility that harm was inflicted (or was inflicted by X) has been reached, there are significant differences between assessing what would best promote the welfare of the child: i) on the basis that that real possibility should be treated as a fact or a relevant factor, andii) on the basis that as a result of a rule of law or of legal policy that because it was not proved to the civil standard (more likely than not) the alleged inflicted harm was not inflicted, and thus in effect that the denial of it is true.[94]At the heart of this argument is the question whether as was decided in Re O & N in the case of an uncertain perpetrator at the inquisitorial stage, at which the court has regard to all the circumstances, those circumstances or realities include the possibility that the alleged harm was inflicted when it has not been established that it was more likely than not that it was, or that there is no real possibility that it was. (5). What test should be applied to exonerate a person accused of inflicting harm?95. The general rule referred to by Lord Nicholls in respect of unproved allegations like the principle "innocent until proved guilty" is not a finding of innocence or exoneration. Rather it has such an effect for a limited purpose.[96]On the law as it stands, it seems to me that: i) a positive finding of exoneration, like a finding that harm has been inflicted, has to be based on the civil test, namely more likely than not, ii) in a case such as this, where there is a stark choice, a finding of exoneration is the same as one that the alleged abuse did not take place and is thus a mirror image of a finding that it did,iii) if such a finding is made, then the consequences of the legal policy set out in paragraph 10 of the speech of Lord Nicholls in Re O & N apply to it with the results that the real possibility that the conclusion may be wrong (which is inherent in the test) is ignored and the finding made "on the more likely than not" test is treated as a definite fact, because it is treated as something that definitely happened or did not happen,iv) this has the result that assessments, and decisions by the court and the local authority, proceed on the basis that it is a definite fact that the person exonerated did not act as alleged (and therefore in this case that Mr B did not sexually abuse R, that Mr B's denial of R's allegations are true, and that her allegations are untrue), andv) this is the mirror image of the position if a finding was made that it was more likely than not that Mr B had sexually abused R as she alleges. Then the court and the local authority would proceed on the basis that it is a definite fact that such sexual abuse took place, that R's allegations are true and that Mr B's denials are untrue.[97]In a case where there is potentially more than one perpetrator a finding exonerating a person of inflicting harm would often have two stages. The first would identify the pool of possible perpetrators and the second would involve the issue whether the actual perpetrator can be identified from the pool. At the first stage the test to be applied is the "real possibility test", at the second the test is the "more likely than not test". As I have indicated (see paragraph 14 of this Schedule), if it can be said that it is not a real possibility that A inflicted harm on B that conclusion would clearly found one that it is more likely than not that A did not do so. So, at the first stage, a finding excluding a person from the pool, on the basis that there is no real possibility that he or she inflicted the relevant harm is also a finding that exonerates that person. Following the identification of the pool the court goes on to see whether a finding can be made that it is more likely than not that a person (or persons) within the pool did not inflict the relevant harm. If it can, any such person is excluded from the pool and exonerated. When the pool is reduced to two, or always comprised only two, a finding that it is more likely than not that one of them inflicted the relevant harm is the mirror image of a finding that it is more likely than not that the other did not. So one is found to be the perpetrator and one is exonerated, applying the "more likely than not test".[98]In a case such as this one where, if the alleged harm was inflicted there is only one possible perpetrator, it may be that an examination of the evidence founds a conclusion that there is no real possibility that that harm was inflicted. Such a conclusion would exonerate the person accused of inflicting the harm because the finding that the harm was not inflicted would be based on (or alternatively he or she would have satisfied a) higher test than the "more likely than not test". When, as in this case, such a finding cannot be made and both the allegation and the denial are therefore real possibilities a finding that the harm was inflicted or, its mirror image that it was not and therefore the person accused is exonerated, is based on the more likely than not test.[99]As I have explained, in my view, an inability to find that it is more likely than not that the alleged inflicted harm occurred does not equate to a finding that it is more likely than not that it did not occur, and vice versa. To reach a conclusion on a stark choice between two real possibilities that one of them is more likely than not to be correct, the court has to be able (on the evidential approach set out in Re H and R) to penetrate with sufficient clarity, the competing factors and the relevant uncertainties to reach that "more likely than not" finding. Sometimes it will be able to do this and therefore reach a conclusion based on that test that a person inflicted harm, or that the person alleged to have inflicted harm did not do so, and therefore should be exonerated. Sometimes, as is the position in this case in respect of the allegations of sexual abuse made by R against Mr B, it will not.[100]This issue is linked to the issue discussed in (4) above. (6). Which of the above arguments are open at first instance?101. This point arises primarily in respect of the first 3 arguments.

Order

Future Harm) [2001] 1 FLR 611 in particular at 33 and 34 of the judgment of Hale LJ.)