X, Y, Z (Minors), Re [2011] EWHC 402 (Fam)

[2011] EWHC 402 (Fam)

Case No ME09 C00100

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 03/03/2011

Before

THE HONOURABLE MR JUSTICE BAKER

Between

KENT COUNTY COUNCILApplicant

Anthony Kirk QC and Brenda Morris (instructed by Kent County Council Legal and Democratic Services) for A pplicant

Eleanor Platt QC and Sandria Murkin (instructed by Gill Turner Tucker) for 1 st Respondent

Marianna Hildyard QC and Isabelle Watson (instructed by Clarke Keirnan) for 2 nd Respondent

Alison Ball QC and Margo Boye (instructed by Davis Simmonds and Donaghey) for 3rd Respondent

Jo Delahunty QC and Christopher Poole (instructed by Messrs Reeves & Co) for Intervenor

Hearing Hearing dates: 18 - 22 October, 25-29 October, 24 November, 7 December, 5-6 January, 14 January, 17-21 January, 8 February

Judgment

[1]First and foremost, this case is about three children. In order to protect their identity, I shall refer to them by initials. The eldest is a girl, (“X”), now aged 16. The next is a boy (“Y”), now aged 15. The youngest is another girl, (“Z”), now aged 7 ½. It is alleged that all three children have been subject to sexual abuse at the hands of a dangerous paedophile, David Mason, who has pleaded guilty to a number of serious sexual offences against them and other children, and received a very lengthy prison sentence. The local authority in the area in which the children live, Kent County Council, has concluded that the children had suffered significant harm and that the harm was caused, in part, by the failure of their mother to give them the care which a reasonable parent would provide. As a result, the local authority has started care proceedings under the Children Act 1989. Over the past few weeks, I have been conducting a fact-finding hearing to determine whether the local authority is correct in its claim about the mother’s care. That has been the main focus of this hearing.

[2]In the course of the hearing, however, a number of alarming matters have come to light about the practices and procedures of this local authority. Some of those concerns are specific to Kent, but others may involve other authorities. As a result, I have been pressed by counsel for the Respondents to make observations about those practices and procedures in the hope that lessons may be learned. I shall deal with those matters at the end of the judgment, but I stress that the main focus of my attention are these three children. It is their welfare that is paramount.

HISTORY

[3]The case has a very long history, and I regret that it will be necessary to set it out in detail.

[4]The children’s mother, (whom I will call “the mother” to preserve her anonymity), is aged 42. In addition to the three children with whom I am concerned, she has two older children, a boy V, now aged 19, and a girl W, now 17.

[5]It is an important feature of the case that the mother suffers from a learning disability. I know that, for understandable reasons, she is sensitive about this, and has found it upsetting that there has been so much talk about it in the hearing. I am sorry to cause her distress, but it is necessary to refer to it again in this judgment to explain what has happened in the case. A psychological assessment carried out by Mr. Clifford Robins on 3rd January 2010 concluded that her overall cognitive ability was in the “extremely low” range (full scale IQ 63). Mr Robins drew a distinction between “working memory” – the ability to hold information temporarily in memory for the purpose of using that information to perform a specific task - and “immediate and delayed memory” – the persistence of learned material that can be retrieved after a brief interval (“immediate”) or long interval (“delayed”). The mother’s greatest difficulties are with working memory. According to Mr. Robins, “working memory (i.e. a higher level attention ability) is an important prerequisite of many cognitive abilities”, with the result that “inadequate working memory skills will likely affect [the mother]’s ability to perform other mental operations efficiently”. Mr. Robins commented that the mother’s “ability to take in verbal and non-verbal information, hold the information in short-term or working memory and mentally process the information to form an appropriate answer is very limited.” In contrast, her “overall immediate and delayed memory capabilities are higher than expected.” Mr. Robins concludes that she “may experience difficulty in holding information to perform a specific task. The difficulties she has with working memory may make the processing of complex information more time-consuming for [her], drain her mental energies more quickly as compared to other adults and perhaps result in more frequent errors on a variety of learning tasks …. I would expect [the mother] to have difficulties understanding complicated matters, including those relating to parenting, particularly if they are abstract rather than concrete.”

[6]Mr. Robins elaborated on this in his oral evidence. He said that, if someone was presenting the mother with a lot of information, she would have difficulty assimilating and processing it. If she did not have someone to explain, she might have difficulty understanding. All local authorities have adult learning disabilities teams used to dealing with these problems, he said. Mr. Robins’ experience is that, in such cases, “practicalities are required – telling them is not enough”. Visual aids are often helpful. People with the mother’s difficulties, need, in Mr. Robins’ words, “more time, practicality, clarity and repetition”.

[7]Returning to the history, in the early 1990s, the mother entered a relationship with a man whom she subsequently married and by whom she had four children – V, W, X and Y, born between 1991 and 1996, so that at one stage she had four children under the age of 5. The family has been known to social services in Kent for many years. The initial referral was in 1996 and concerns allegations of excessive chastisement of the children by the father. Shortly afterwards, the marriage broke down. The father left the home and has had little contact with the family ever since. The mother continued caring for the children by herself, but there were a number of further referrals to social services by various persons and agencies in the following years. In 1999, V, who had a range of problems, was excluded from school. In the same year, there was a referral to the social services by the police following reports that the children were being locked in their rooms. Other referrals followed in the following years. There were concerns about issues of neglect, a lack of parental boundaries, the mother’s capacity to control the children and her general vulnerability. A number of support services were provided to the family between 2000 and 2002. X was identified in particular as a vulnerable child, and she was referred to a educational psychologist who reported that she “would appear to have significant difficulties which are adversely impacting upon her academic and social development within school”, and recommended that, “given the complexity of [her] difficulties, it will be important to ensure a consistent and co-ordinated approach by all those involved with her and her family”. At a planning meeting concerning V and X in October 2000, it was recorded that “all involved with the management of these two children expressed concerns about the home situation …. focused on [the mother]’s capacity to set appropriate limits for the children and particularly given the known special needs of V and X. The family is disadvantaged and there is a lack of hygiene at home that has some influence on peer relationships at school.” A programme of work with the family was agreed and implemented, with some success being reported, as a result of which the case was closed by social services in August 2001. Concerns about V’s behaviour continued, however, and a record from January 2002 states that the mother thought his behaviour was out of control, and that she “was not confident in managing challenging behaviour”. Further sessions to assist in her behaviour management were arranged.

[8]In the Autumn of 2002, the mother met a man called F, a friend of her nephew S, at a family wedding. They started a relationship and she quickly became pregnant by him. F, who was born in 1967, is also someone who unfortunately suffers from a learning disability (full scale IQ 62) and in addition has suffered three strokes which have affected his cognitive functioning and memory, as demonstrated in the course of a psychological assessment carried out during these proceedings by Peter Maggs, chartered psychologist. He also suffers from diabetes, asthma, high blood pressure and arthritis. He has a criminal record that includes convictions in 1986 for sexual offences including unlawful sexual intercourse. I stress, however, that there is no suggestion that he has committed any sexual offences involving these children. Curiously, F has in the past adopted the alias of his father’s name.

[9]From the outset, the relationship between the mother and F was stormy and difficult. Shortly after they met, when F and S were staying at the family home, the mother reported that S had sexually assaulted X. S was arrested and charged, and X interviewed, but in the event the CPS decided not to pursue a prosecution. Meanwhile, F continued to reside at the family home. In his evidence, he described how the mother struggled to control the children’s behaviour, alleging that the children ignored her attempts at discipline, regularly fought amongst themselves and on occasions hit the mother, leading F to intervene and discipline them himself. It seems that the mother and F became engaged, but on 22nd December 2002 the police were called following an alleged incident of domestic violence. After this, F left the home and the engagement was broken off.

[10]As stated above, however, the mother was pregnant, and in due course she and F resumed their relationship. The precise details of this are unclear and disputed, and bearing in mind that each of them suffers from memory difficulties their evidence on these sorts of details was difficult to follow. The mother alleges that, shortly before she was due to give birth to Z, she and F decided to move to Birmingham, taking V, X and Y, but not W who chose to remain with her maternal grandparents. The details of this incident are disputed and I shall consider it further below.

[11]In the event, the mother and children returned to Kent and lived for a time (as I find) at the maternal grandparents’ address. Z was born on 14th July 2003, and the social services’ file was closed again. At some point, the mother and F resumed their relationship, but again the dates and details are obscure. The only sources of evidence about this are the two adults, and their respective cognitive and memory problems mean that their evidence as to dates and details must be treated with great caution. It is F’s evidence that the mother moved back to her former home very soon after Z was born, and that he also moved back at about the same time. It is the mother’s case, however, that she remained with her parents for some months because she had lost her furniture in the Birmingham incident, and consequently did not return to her former home for some months after Z’s birth. She accepts that thereafter F visited to have contact with Z and stayed on occasions but denies that they resumed full cohabitation.

[12]On 2nd June 2004, the mother took Z to hospital after an episode of choking. At some point that day, it is alleged that F visited the house, and after his glasses were broken he lost his temper with X and assaulted her, grabbing her round the throat and causing her head to hit some furniture. The police were called and F was arrested. The police computerised records of this incident have been produced in the course of the hearing. The social services records indicate that on the following day, the mother and X withdrew the allegation, and the police took no further action. Despite the apparent withdrawal of the allegation, social services instigated an investigation under s.47 of the Children Act 1989, during which it was recorded that the mother had alleged that F picked on and hit X, and that she had instructed a solicitor to send a letter to him warning him to keep away from the house otherwise she would apply for an injunction. Some papers from a solicitor’s file have been exhibited to one of the mother’s statements in these proceedings, including a copy of a letter apparently sent to F. He, however, denies that he ever received it, and continues to deny that he assaulted X as alleged or at all.

[13]During the s.47 investigation, the school described X in terms that suggested that she was being neglected. The brief record of the outcome of the investigation includes a description of the house as “chaotic, sparsely and poorly furnished”. X had made no “disclosure” against F but was described as a “Cinderella child”. Because no “disclosure” was made, the local authority concluded that there was no continuing risk of significant harm, but in view of concerns that the mother was managing care of the household poorly, and was “on the poverty line financially and emotionally”, and that the children were “needy … with limited resources within and external to the home”, it was decided to monitor X’s welfare and put in more resources to help the family. The records of this investigation do not, however, refer to the mother’s learning difficulties, or to how those difficulties might have affected her capacity either to care for the children or respond to help proffered by the local authority.

[14]Later in 2004, there was a further investigation after X alleged that she had been sexually abused by another man, G, while she was staying with friends. X took part in an interview conducted under the Achieving Best Evidence (“ABE”) procedure, and a further s.47 investigation took place. The records of this incident shown to me are very sparse, but it seems that it was concluded that X “had been able to take appropriate avoidant action re G, her mother responded appropriately when made aware, and there was no reason to believe her mother would knowingly place her child in an abusive situation”.

[15]In September 2005, there was another referral to social services about X, prompted by two incidents. First, X arrived at school with a large cut and bruise on her face which she said had been caused by W throwing a glass at her. Then a few days later she arrived at school with her head shaved. Conflicting reports were received about how this had occurred. In minutes of a meeting held at the school on 27th September concerns are recorded about X’s social presentation, the state of the family home, and the mother’s difficulty in separating from F. A report completed for this meeting described all aspects of the mother’s care of X as poor, adding that the mother “appears unable appropriately to protect X” and as having “little insight into X’s need for emotional support”. The report described V and W as powerful figures in the family who often intimidated both the mother and X. The report concluded that X and her family were “vulnerable and in need of sustained, multi-agency support”. Once again, so far as I can see, there is no express reference in this report or the minutes of the subsequent meeting to the mother’s learning disability.

[16]Following this investigation, further help was offered to the family. A support worker from Homestart was allocated to the family. A worker from the domestic violence unit was also allocated with the aim of helping the mother achieve a complete separation from F, including assisting her to obtain an injunction. Other agencies were also involved. In the event, it seems that the mother received legal advice that she would have difficulty obtaining an injunction and instead it was agreed that a further letter would be sent to F. A review meeting on 22nd November 2005 reported some improvement across the spectrum of concerns, but it was agreed that the multi-agency work should continue. In January 2006, the social worker referred X to the local Adolescent Resource Centre (ARC) for some one-to-one work, although for reasons that are unclear this was not picked up for some months.

[17]At a child in need review meeting on 7th February 2006, it was noted that there had been some improvement in hygiene in the family home after a very high level of support, although standards remained variable. The mother told the meeting that she had ended her relationship with F and said that she no longer sees him. When challenged about this, according to the record of the meeting she said that she had not wanted to end the relationship, and that she had been forced to do so by pressure from social services, the police and the school. She said that she still loved him, but could not have him living with her because everyone was against it. She was told that serious consideration would be given to convening a child protection case conference should F return to live at the home. The meeting was given further evidence that X was being neglected. The health visitor expressed the view that the mother appeared unable to support her children in maintaining a reasonable standard of personal hygiene. The meeting agreed to maintain a high level of support and monitoring from the various agencies involved.

[18]A social work record in March 2006 states that the mother telephoned to inform the family support worker that there had been a “massive argument” between V and X. V had accused X of stealing £10 and had hit her. X had run off and not returned. She was found by the police and initially alleged that V had sexually assaulted her. Under informal questioning, however, she had confessed that she had made up that particular allegation. As there were no marks on X, the police decided not to take the matter further, although V had been warned about the physical assault. This incident was considered at the next review meeting on 28th March. The minute of that meeting records that concern was expressed by all professionals present about V’s threatening attitude towards X. Concern was also expressed about Y’s progress at school and it was said that he was often tired in the mornings. The meeting concluded that the mother and her children remained vulnerable. It was agreed that the child in need services should remain in place. At the next meeting in May 2006, the same concerns were noted. The family support worker reported that there was still a lack of routine and, although the mother had worked hard at this, she still struggled with enforcing boundaries. The same concerns were noted about X and Y. In X’s case, there was concern about her appearance, academic progress, social and emotional development, tendency to lie, lack of friends and tendency to approach strangers. Y was said to look dishevelled, messy and tired, to be struggling through lack of sleep, and to have been aggressive to other children. Staff at Z’s nursery were “very concerned” about her speech and language. The meeting reached the same conclusion – the mother and children remained vulnerable and the services needed to remain in place.

[19]A few days later, X told a girl at school that V had raped her. This triggered another s.47 investigation. X was interviewed at school. She said that V hit her sometimes but denied any other inappropriate behaviour. She said that Y had been spreading untrue rumours that V had raped her. The investigation concluded that the concerns had not been substantiated. At the next review meeting in July 2006, it was reported that the work with the mother had been overtaken by new issues, in particular difficulties with neighbours who were harassing the family. There had been no change in the position regarding X and Y since the previous meeting, and concerns about Z’s speech problems continued – the mother had apparently missed an appointment about this. There was concern that the mother was continuing to see F. It had been reported that she was seen with him behind the station with Z in a pushchair. The mother denied that this meeting had occurred. She was reminded of the local authority’s concerns about the possibility of contact with F “due to F’s past violence”. It was agreed that the action plan should remain in place, and that various referrals that had been made but not taken up – including the referral of X to ARC – should be followed up.

[20]In August 2006, Homestart ended their involvement with the family. The scheme manager wrote to social services stating inter alia:

“[the mother] is now more confident and feels able to manage. She is brighter and happier and is dealing with things in a more positive way …. She feels emotionally stronger and reports as being glad that her ex-partner [i.e. F] is no longer around. She appears to be firmer with the children and wants to maintain her confidence in all areas …. However, the main problem that threatens this is the everyday continual anti-social behaviour that she and the family experience on their door step.”

[21]Later in August, the mother reported that F had been hanging around trying to see Z. The minutes of the next review meeting in September recorded that she has reassured professionals that she remains separated from F and had sent him away on two occasions, and that she felt stronger and more able to cope, although she was upset that some services had ceased all involvement at the same time. The meeting decided that social services should “close their involvement as [the mother] is managing things better”. Clearly a major factor behind the decision to close the file was the mother’s reassurance that she had separated from F. Later that month, the family support worker completed her work with the mother. It was only after the local authority closed its file that the ARC took up the referral for X made some nine months earlier. ARC worker SF arranged eight sessions. On her initial visit, her manager noted that the house was shabby and dirty, and the children’s clothes grubby. She also noted that W appeared very “contemptful” towards X and the mother and continually put them down.

[22]Shortly after the ARC sessions commenced, a further major upheaval occurred in the family. On 24th November 2006, the mother reported to the police that she had been raped by F in the street. X had arrived on the scene during the incident. She was interviewed informally by the police and gave various, inconsistent accounts of what she had seen. F was arrested and when interviewed denied the allegation, saying that he and the mother had arranged to meet. The mother then changed her account, saying that a meeting had indeed been arranged and the reason why she had not mentioned this when first interviewed was that social services had told her not to meet him. According to the police records, analysis of the mother’s mobile phone demonstrated that she had sent text messages to F telling him that she loved him. In view of the inconsistencies, the police decided to take no action in respect of this allegation.

[23]No party has invited me to make any findings on the allegation of rape or assault arising out of this incident. It is, however, relevant for several reasons. First, the records of this incident contain contemporaneous evidence (in the form of the hearsay comment on the mobile phone analysis) that the mother had not been frank with the local authority about the extent of her ongoing involvement with F, a matter that has been further established by other evidence. Secondly, F has had no contact with his daughter Z since that date. Thirdly, although the investigating officers decided to take no action against F over this allegation, the police domestic violence unit concluded that it was not safe for the family to remain in their current address and therefore arranged an emergency move to a different part of Kent. Thus it was that the family (the mother and all five children) moved into one room in bed and breakfast accommodation in another town, with ultimately devastating consequences.

[24]There are worryingly few records held by the local authority about the family’s move. Given the wide-ranging concerns about the family in the previous year, and the circumstances which led to the upheaval, one would naturally expect that the family would have been picked up by social services in the area into which they moved. A referral was made on 23rd January 2007 to the duty team for children and families by the domestic violence prevention officer. The form describes the mother as fleeing from domestic violence, refers to the fact that she has had previous assistance from social services although no file was open at that stage, and observes that the mother was “very vulnerable” and that there were “no boundaries for [the] children”. Two days later, the duty manager in the new area gave the following instructions:

“please contact referrer and advise we will not be able to offer a service due to only dealing with child protection. [The mother] needs to be given [a telephone] number for Women’s Support Services in respect of domestic violence”

. In another note on the file, it is recorded that “due to staff shortages and high number of child protection referrals [this] case cannot be allocated for assessment”. To my mind, this was an astonishing decision. Even allowing that my view is coloured by hindsight, I cannot comprehend how any social worker could have come to this conclusion if acquainted, as she should have been, with the full history of this family.

[25]Shortly after moving into the single room in the bed and breakfast accommodation, the mother was introduced by the landlady to a man calling himself “David Mathews” (with one “t”) who lived in the same accommodation and, she said, would be able to help out if they had any problems. Very quickly, “David Mathews” befriended the mother and the children, and when he moved out shortly afterwards the children started to visit and then stay overnight with him. The mother was asked about how this had happened in cross-examination. I shall deal with her revealing evidence on this point later in the judgment. In her interviews with the police, and her written and oral evidence, the mother was unclear and inconsistent about when the children had started staying with “David Mathews”, and the records originally disclosed by social services shed no light. However, in the course of the hearing, further records were produced containing entries made by SF, the worker from ARC who had eventually been allocated to work. She traced the family to their new location in bed and breakfast accommodation, and endeavoured to engage X in one to one work with little success. Her last visit was on 12th January 2007, some eight weeks after the family had moved. SF’s note of that visit reads as follows: “Things within the house appeared to be the same as ever. All the children, particularly X, appeared extremely unkempt and they all appeared to be very bored. [The mother] informed me V is now staying at a friend’s house during the week and returned to see them at the weekend, as he was unable to cope with the long commute everyday. When I enquired after W I was informed she had been staying with a man who used to live in the b and b accommodation. He has now been re-housed but the children all take it in turns to spend the night at his new house. X informed me her night was on Saturday and she was very much looking forward to it. I asked X where they sleep when they stay and how old the man is. She said the man is unable to sleep in his bedroom due to some illness and therefore sleeps on the sofa and the child that happens to be staying there that night sleeps on the chair. She also stated she thought the man was around 40 years old”.

[26]This contemporaneous record thus demonstrates conclusively that the children were staying at the flat of the man they knew as David Mathews as early as January 2007. The record refers to “all the children” staying. It is clear from the note that this includes W and X, but not V. Whether it includes Y and Z is not clear. The mother has accepted that Y did stay on occasions, and on balance I think it more likely than not that he was also staying there by January 2007. The mother insists that Z has never stayed. I shall consider this point later.

[27]There is one other matter that should be mentioned about this important record. In the version originally produced (early in the hearing, at page Q8 in the court bundles) the sentence immediately following the passage quoted above read as follows:

“[The mother] seemed fully aware of the arrangements and seemed happy [my emphasis] to let the children stay with the man”

. A few days later in the hearing, another copy of the note was produced, from older written records, in which this sentence read:

“[The mother] seemed fully aware of the arrangements and did not seem happy [my emphasis] to let the children stay with the man”

. When SF attended to give evidence, she said that the original note she had put on computer had contained the latter version, and that a hard copy of this version had been printed off and stored on the written files. She added that, when she had been re-reading the note on the computer in the week before attending court, she had noticed this sentence, realised that it was erroneous – the note that she had meant to record was that the mother “seemed happy to let the children stay”. SF therefore altered the record on the computer, and it was this amended version that was the one that was first disclosed into these proceedings.

[28]I shall have something to say later in this judgment about the local authority’s record-keeping and its approach to its disclosure obligations in these proceedings. Suffice it to say at this stage that it is alarming that(1) a record could be altered without consideration of the consequences and

(2) none of the other parties were apparently told of this discrepancy until SF arrived to give evidence. But far more alarming is the fact that no social worker appears to pick up on this note, and appreciated the potential danger facing the children of this “very vulnerable” mother. Ironically, had a social worker read the original version typed by SF, which said that the mother “did not seem happy” about the arrangement, it is surely more likely that some action would have been taken. I can only assume that no one read SF’s note. What makes this even more reprehensible is that this information was available at the time when social services were actively considering the referral by the domestic violence prevention officer and concluding that there were no child protection issues that obliged them to offer a service to the family.

[29]Indeed, for the next nineteen months, there was little involvement between social services and this family. In January 2007, W and X started attending the M School in the same town as the bed and breakfast accommodation. In March, the family moved to a new house in the same town. “David Mathews” helped them with the move. In April, the mother contacted social services asking for help because her purse had been stolen. The local authority’s records indicate that appropriate advice was given to assist her sorting out her finances, but no further role for social services was identified, although the mother told them that she had not found a school place for Y prior to his starting at the M School in September. In June, the M School made a referral to social services following an incident in which W, who was reported to have a poor attendance records at school, had truanted to go to London with “a man called Dave”. The school’s referral continued:

“as W is only 13 years old this is a bit worrying, and mum was not aware of it even though W said mum knew about it”

. Concern was also expressed about W forging the mother’s signature and misusing school dinner money. It seems that social services took no action following this referral. In September, Y started attending the M School and Z, now aged 4, joined the reception class at the local infants’ school. Z was quickly referred for speech and language review as her speech was often unintelligible.

[30]In June 2008, W told staff at school that she had been sexually assaulted by a 35-year-old man called R who she had been meeting in the town. She also told the school that X was in touch with the man via text messages. It should be noted that the referral form the school stated:

“both girls’ appearance is much improved…. There are no current issues that give cause for concern.”

The man in question was interviewed by the police but no action taken against him.

[31]Within a few days, the school had referred W to social services again, stating that, in the course of inquiries about the allegation against R, W had “disclosed that she is continually suffering attacks of physical violence made by her mother and elder brother V”. The handwritten notes taken by a member of the school staff, T1, give further detail of W’s allegations against her mother and brother, including an allegation that her mother “will pick up something to use as a weapon”. In addition, they refer to comments made by W to the effect that she stayed at “Dave’s”. The school note adds:

“he was the man she went to London last Summer and Mum knew about that at the time but denied it later when challenged …. No problems – trusts implicitly. W sleeps in a bed. Dave sleeps on sofa. Not happened recently as Mum, V or Mum’s friends have come after her. Dave is one of W’s safe places to be.”

Much of this note taken by the school is repeated in a typed note made by social services of a telephone call from T2, another member of staff at school. This typed note also includes this further information:

“W states that she only has one safe place at an adult male friend’s house. He has never attacked her and was also abused as a child.”

[32]Following this referral, W was interviewed by social worker ES at school, and repeated her allegations against her mother and V. She said that she did not want to go home that night. It was agreed that she could stay at Dave’s house for the night, after police checks had been completed. ES then visited “David Mathews” at home accompanied by a police officer, SB. Both of them gave evidence about the visit at the hearing. SB insisted that she had completed a routine police national computer (PNC) check of the name “David Mathews” which revealed nothing. ES said that she was told by SB that a check had been completed. Their evidence about how and when the check was carried out was not entirely consistent, and there is no independent evidence that it was ever done. I accept the officer’s evidence that she did indeed make the telephone call as she claimed, but on any view the process of checking the suitability of the proposed placement was grossly inadequate. First, the officer did not ask “David Mathews” to produce evidence of his identity. In evidence, she said that she followed routine procedure in not doing so. If that is correct (and I have no reason to believe otherwise) the routine procedure is inadequate. In passing, I note that the report of the subsequent internal review carried out by a senior local authority employee, SH, wrongly states that “David Mathews” provided some paper evidence of his identity. Secondly, neither the officer nor the social worker examined the bedroom where W would be sleeping. Thirdly, neither of them seemed to have been alerted by the fact that W had been to London with “Dave” in the previous summer. Fourthly, had the social worker read the social work records, she ought to have come across SF's note of January 2007 which referred to all the children staying with an adult male on a regular basis. Fifthly, it seems that neither the social worker nor the police officer asked “David Mathews” much, if anything, about his background, although the officer said in evidence that he had spoken to them about his own abuse as a child. Finally, and to compound all these omissions, both ES and SB told the court that they had been uneasy following the visit to the house.

[33]Clearly, it was initially intended that W would only stay with “David Mathews” for a short period. A further s.47 investigation was instigated. The mother denied that she had been violent to W. The unsigned record of the outcome of the investigation noted that “home conditions are not good – mum appears to be less intelligent than the children and they take control. W has possibly seen a better life and wants to live elsewhere which could be explanation for allegation against her mum”. The plan agreed at the end of the investigation was to provide services to the family to address these issues in order to facilitate W’s return home. It was decided that there should be a reference to the local mediation service, and a referral was duly made. At a further meeting on 23rd July, it was agreed that W would remain at David Mathews’ house “under a voluntary arrangement with the mother retaining parental responsibility” and child benefit being transferred to David Mathews. As part of this arrangement, it was agreed that ES would refer the case to the private fostering officer, to carry out the private fostering assessment required by statute. As ES frankly acknowledged in her oral evidence, no such referral was ever made, although it seems that a subsequent review meeting on 9th September was told that it had been done. Thus W continued to live at the house of the man believed to be David Mathews with the full knowledge of social services but without the statutory checks being carried out. Notwithstanding the inexplicable failure to commission the fostering assessment, social services assisted “David Mathews” in pursuing the transfer of W’s benefits, and supported his application for a larger property on the grounds that this was needed to enable him to look after W. At the meeting in September, it was noted that the situation seemed to have improved. W had withdrawn her allegations against her mother and was visiting the family home regularly. The mother was in a new relationship with a man called IR who was going to move into the family home shortly. The notes of the meeting stated that it was hoped that this would have a positive effect. As stated above, the meeting was told that the referral for a private fostering assessment had been made, and a core assessment was being carried out by ES. Once this had been completed, the case would be closed.

[34]In the event, neither a fostering assessment nor a core assessment was ever completed. Once again, it was a referral by the school that prompted further action. A note dated 12th November 2008 prepared by one of the school’s child protection officers records that W was worried that she might be pregnant, having had sex with her new boyfriend, U. The school approached “David Mathews”, having recently discussed W’s ongoing health problems with him as her “private foster carer”, and asked his permission for W to attend a clinic. He expressed his gratitude and gave his consent. W told her mother that she had had unprotected sex with U but ultimately decided that she did not want to be accompanied to the appointment by her mother. In the event, tests revealed that W was not at that stage pregnant. However, the mother was worried and wanted the police to be informed. The school’s child protection officer contacted social services and on their advice the school informed the police who decided to interview W at home together with “David Mathews”.

[35]In passing, I comment that this incident illustrates how successfully and insidiously “David Mathews” had secured the confidence of the professionals involved with the family.

[36]Initially, W said that she would be having nothing further to do with U. However, two days later matters took a different direction when the mother informed the school that “David Mathews” had assaulted U. As a result, another s.47 investigation was instigated. “David Mathews”, and for that matter W and U, all denied the allegation of assault. As before, the outcome of the s.47 investigation was recorded on the local authority’s standard form. The decision recorded was that although the concerns were substantiated, W was not judged to be at continuing risk of significant harm. The reason for this decision was said to be:

“there is no complaint to follow and there appears to be no further risk to W. All parties are covering up the incidences [sic] between themselves.”

The inconsistency between these two sentences should have been obvious to anyone reading the note but was not, it seems, noticed by the social workers at the time. It was, however, agreed by the professionals, “David Mathews” and the mother that W should return home as soon as possible. “David Mathews” was warned that “he may be at risk of harbouring a minor”. Subsequently, however, it was agreed that W could “move back gradually” and that she could remain with “David Mathews” up to the Christmas period. At this point, according to their records, the local authority inexplicably concluded:

“therefore there is no further action for social services and the case will be closed down.”

On 12th January ES wrote to the mother advising her that she was closing down her involvement with the family “as from today”.

[37]It seems that W did return home for a brief period, but within a few weeks, by February 2009, she had left home again and was living with U. A member of the school staff, T2, made another referral to social services informing them of this development. After a month, having heard nothing from the local authority in response to this referral, T2 and her manager visited social services offices on 11th March to report their ongoing concerns, which included the fact that W was frequently absent from school. On the same day at school, W told T1 that X had alleged that her mother’s new partner, IR, had sexually assaulted her. T1 then spoke to X in the presence of W who told her to say what had been happening, whereupon X cried and said that IR had been touching her while her mother was out. On the following day, the senior child protection officer at school recorded that, when investigating this further, X said that she was merely recounting a rumour which Y had started. The school decided to monitor the situation and did not at that stage pass on the information to social services. T2 noted, however, that “there is a possibility of course that mum has warned X off, hence the story of it being a rumour that was being recounted rather than an actual incident”.

[38]In June 2009, T2 spoke to a social worker about W’s situation, and in particular the fact that, aged 15, she was living with a boyfriend aged 21. The local authority decided to carry out a private fostering assessment of this arrangement. In the course of this assessment, information was received giving rise to a number of concerns, including(1) the fact that W was in a sexual relationship with U,

(2) that U had persistently lied about the relationship,

(3) that the accommodation was dirty and cluttered,

(4) that U claimed to have autistic spectrum disorder and had a history of self-harming,

(5) and that he had little insight into W’s difficulties and needs. Nevertheless, the authority decided to approve the placement as a private fostering arrangement, and duly gave notice of that fact to the school on 2nd July.

[39]At the beginning of July 2009, another child apparently unconnected with this family alleged that she had been sexually assaulted by “David Mathews”. She told the police that the cupboard next to the bathroom in his flat had a hole in the wall through which he had filmed children in the bathroom. “David Mathews” was arrested and fingerprinted and it was then discovered that his real name was David Mason, a man with a record for sexual offences against children some years earlier who was wanted by police in Scotland for similar offences. In the course of a series of police interviews, Mason admitted that he had sexually assaulted another child. Shortly afterwards, the mother attended a meeting with W and U at the home of a friend and neighbour of Mason’s and learned about the arrest.

[40]On about 7th July, at the suggestion of school staff whom she had approached, W typed a note setting out allegations about David Mathews/Mason, which included a wide range of sexualised behaviour and comments, although she did not allege that he had sexually abused her. She did, however, state that he had given her sleeping pills when she had a headache, thereby knocking her out, and encouraged her to drink a bottle of vodka. W also alleged that he had bathed Z when she had visited. She also said that Mason had always insulted her mother, “calling her a dirty cow and saying that she should never be allowed to have kids because she could not take care of us”. The note was handed to the social worker who was conducting the private fostering assessment of W’s “placement” with her boyfriend U.

[41]On 7th July, the mother spoke to T1 at the M School. T1’s note of this conversation states that the mother “wanted to talk about all she could remember about Dave Mathews”. She recounted how he had given X and Y money and told them to say it was for doing jobs at his flat. She said:

“X stopped going to Dave’s flat when he had given her money and asked her to give him a ‘hand job’ and had touched her leg.”

The note continues: “Y at this time felt uneasy about going and Mum then stopped all the kids going there”.

[42]On 24th July, W and X were interviewed by the police under the Achieving Best Evidence (“ABE”) procedure. In her interview, W gave an account similar to that she had typed at school. She did not allege that Mason had sexually abused her, but she gave details of his behaviour that was, on any view, highly inappropriate. She said that Y had stayed with him every weekend after they left the bed and breakfast accommodation, but had suddenly stopped doing so, for an unknown reason. When he stayed, he and Mason always shared the bedroom. X also stayed “every now and again”, but W herself “never really stayed up there because I didn’t know him, I don’t trust guys I don’t know”. Later, she told the police how she had moved up there when she fell out with her mother and V. She described how Mason had challenged her to drink a bottle of vodka, and she had got drunk, blanked out, and woken up to find that she had been undressed and put in her pyjamas. Mason had also told her not to wear underwear at night because it was unhealthy; told her to speak to him if she had rashes because he had the right medicines; given her tablets; played tickling games with her; criticised her for wearing tight clothes; encouraged her to invite friends up to visit and stay; secretly made intimate recordings of a friend; given her and her friends a pornographic video to watch while they were having a sleepover and claimed that he had made a hole in the wall to watch her changing. W said that Z never stayed but was brought up there on occasions by her mother or X. When Z visited (though not when her mother was present), Mason used to give her a bath. In answer to a question whether X had said if anything had happened, W said:

“she did tell me once, I think she told my mum, I’m not sure, that he’d said to her ‘if I give you some money will you give me a blow job?’ and I don’t know if she did or not, she just told me that that’s what he asked her”

. W said that this conversation had occurred before she moved to live with Mason.

[43]In her interview, X gave a detailed account of being sexually abused by Mason. She said that she had stayed at his flat on about four or five occasions. She claimed that this had not started before the family moved out of bed and breakfast accommodation, although this is contrary to what she had said to SF at the time. She said that Y had stayed there “every single weekend, Friday till Sunday”, and used to come back with money. Mason had given her money to do stuff with him. He had tried to get into bed with her, had got her to masturbate him, had touched and licked her private parts, and forced her to have oral sex. On one occasion, she had gone to be alone in the bedroom and woke up to find that her clothes had been taken off and Mason was naked in bed with her. He had threatened to hurt her and lock her in a cupboard if she did not do what he wanted. X said that he had also bathed her and washed her private parts in the bath. She recalled that W had said that she took Z up there, and that he bathed Z and gave her food, but X did not know if anything had happened. She said that Mason had tried to make her and Y “get it off with each other” and have a bath together but they had refused. She also said that, a couple of weeks before W moved in, she had tried to tell her mother ,“she said that he wouldn’t do anything like that otherwise she would have known it before. But when one of his neighbours said he’d been arrested that she found out it was true.”

[44]At a meeting on 27th July, school staff told social services, apparently for the first time, about the allegations against IR made and retracted by X in March. On 28th July, a police officer and social worker (unidentified in the records but apparently a worker called BR) visited the home and spoke to X and Y about those allegations. The only record of this conversation is a note on the social services computer disclosed at a late stage in the proceedings in circumstances I shall describe below. The note, which is anonymous and unsigned, states that X had no recollection of her conversations with school staff but did recall that Y had started false rumours at school. Y, who was apparently seen separately, said that he had heard the rumours but not started them. He described how IR cuddles X on the bed. The unnamed social worker concluded the note by stating that she was “concerned about blurred sexual boundaries”.

[45]At a strategy meeting on 20th August, social services and the police discussed the future of the investigation. By this stage a number of children had been identified as possible victims of abuse by Mason. The minutes of the meeting noted:

“it appears that [Mason] may have used W as a link to other vulnerable children who were brought to the home”

. There was also concern about how Mason had acquired his false identity, which included a new National Insurance number. It was alleged that he had been assisted in this respect by the local MP.

[46]On 9th and 10th September, Mason was interviewed again and on this occasion made wide-ranging confessions of sexual abuse of X, Y and Z plus a number of other children. According to Mason, the abuse of X continued throughout 2008 and included all types of sexual activity, including full penetration. Some abuse of X was perpetrated in front of Y. Abuse of Y included oral sex and masturbation, on occasions involving X. The abuse of Z had occurred on several occasions and included touching and oral sex, in the presence of X. Mason said that the children in this family were vulnerable and naïve and that as a result they were easier to abuse. He insisted, however, that W had not been involved.

[47]A further strategy meeting was convened on 10th September at which the police reported the extent of Mason’s admissions. There was a discussion of other issues concerning the family. The allegations against IR made by W and X but subsequently retracted were considered. Amongst those attending the meeting was T3, the head teacher from Z’s infants’ school who coincidentally had taught the older children at their previous primary school and thus had known the family for many years. T3 stated that the mother had always had special needs – a rare example of this being expressly acknowledged in the social services records. She also expressed the view that the mother was a very vulnerable person who had been unable to look after the children from early on. The meeting concluded that the children should be removed from home, and that pending receipt of legal advice, the mother would be seen that afternoon with a view to securing her agreement to the children being voluntarily accommodated. Later that day, the mother duly attended a meeting with a social worker, BR, and police officer SB, who told her of the new information and the concerns that the children may be sexually active with each other. The mother agreed to X and Y being accommodated, and after initial reluctance gave her consent to Z being accommodated as well. The children were then taken to three separate foster placements. It should be noted that at this meeting the mother was not accompanied by a solicitor, an appropriate adult or any other supporter, notwithstanding the fact the comments made at the meeting earlier that day to the effect that she had special needs.

[48]On the following day, X was interviewed again under the ABE procedure. She denied taking Z to Mason’s house, or that she had seen him abuse her. On the question of her mother’s knowledge, X said:

“I said that I didn’t want to go up there any more because Dave’s trying to get me to do things for money and she goes, ‘No, it’s not true’, otherwise she would know about it, but she didn’t believe me at the time but now she actually believes it is true …. I told her that he tried to touch me in private places but she said no, that’s not true, because she would know about it. The person I did tell was my sister, W ….”

X added that W had then told her mother what X had said, but her mother still did not believe it:

“she said it can’t be true otherwise she would know about it.”

She said that she had tried to tell her mother about three or four times.

[49]On 14th September, Y, who hitherto had been reluctant to talk about David Mason, was spoken to, although not interviewed formally under ABE. He said that he had slept at Mason’s flat on thirty to forty occasions, but denied all allegations of sexual activity. He agreed that he had been given money by Mason, but said it was for hoovering the flat. Mason had asked him if he would like to earn more money, but Y had refused. When asked why, he said that it was because he thought that he wanted sex for money. Z was also spoken to, but said nothing on which any reliance could be made.

[50]On 21st September, the mother was interviewed under caution by police officer SB. Despite the fact that SB had attended the meeting eleven days earlier at which there had been reference to the mother’s special needs, no appropriate adult was present at this interview. During the interview, the mother described how the children had started going to stay at Mathews/Mason’s flat, how W had gone to live with him and how the children had stopped staying there. She recounted her version of what X had said:

“X said something to me, but I didn’t know if to believe her at the time. She said something about him trying to touch her up, but I didn’t know if to believe it or no”

. She repeated this later in the interview, and when the officer checked the phrase “Dave was trying to touch her up” she said:

“that’s exactly what X told me”

. The mother said different things about when X had said this. At one point, she said this had occurred “a couple of months” before she had heard about Mason being arrested. Later she said that the first time this had been said was before Christmas 2007. The mother thought that X had normally stayed with Y and had only stayed there on her own on one occasion. As for Z, she was adamant that she had never stayed, and had only visited when the mother had been there herself. She admitted that X had taken Z out a few times, but did not know where they had gone. She said that she had been worried when the children had suddenly stopped going there, but did not know why this had happened. In view of what X had said, she had thought W was at risk going to stay with Mason, but added:

“W wouldn’t listen to me …. I didn’t let W stay there, W was determined to stay there”

. When asked why she hadn’t told social services about Mason touching up X when they visited to discuss W’s proposed move, she said “it didn’t cross my mind about that bit at that time”. She denied that W had told her that X had told her that Mason had abused her, but did say that W had warned her to be “wary” of Dave.

[51]During the interview, it emerged that the mother did not think that “touching up” amounted to sexual abuse. She understood that “touching up” meant touching intimate and private parts of the body but thought that the phrase “sexual abuse” meant sexual intercourse.

[52]On the same day, senior managers within the local authority decided that the three children should return home under a written agreement. This decision was opposed by a number of other professionals involved in the case, including some of the social workers and the police, who felt that the children would not be safe returning home in these circumstances. A meeting took place within social services at which BR and JC, the social workers who at that time had direct dealings with the family, expressed strong opposition to the plan. So far as I am aware, no record has been produced either of the process by which the decision was made or of the meeting between senior and junior social services staff. The written agreement was signed by the mother, and included a provision that the mother agreed that(1) IR would not move into the family home (as had been planned for the end of the month) until more complete assessments of him had been made;

(2) “IR’s current level of contact with the children will not increase any more than the current amount of Friday to Sunday evening every other weekend”, and

(3) IR will not be allowed to have any unsupervised contact with any of the children at any time. Following this the children were returned home. However, a few days later on Monday 28th September, the family’s current social worker, JC, made an unannounced visit to the property and found IR present. The local authority took the view that this was a plain breach of the written agreement. The mother and IR maintained that IR had only arrived that day and the agreement had allowed him to have contact over an amount of time equivalent to a weekend. According to the social worker, X and Y said that IR had in fact arrived the day before whereupon the mother called them liars.

[53]On the following day, 29th September, social workers and police officers visited W and the flat where she was still living with her boyfriend U to ask her about the remarks concerning IR she had made to school staff in March. The note states:

“W remembered the incident immediately. She said X was upset on the way to school one morning, and when she asked her why, X had told her that IR ‘kept touching her …. She went to T1 and told her’ …. W said that after school, at home, mum ‘really had a go at X’ and the next day X told school she had ‘made it up about IR to get him into trouble’ W also said ‘mum always does that’ …. We asked W what she thought about IR – she said ‘it’s not right, X sits on his knees and cuddles him, but she’s 14. Z doesn’t do that and she’s little’. She also said ‘X always has love bites on her neck from him too’. We established that the last time was about 3 weeks ago. We asked if mum knew about this. W said she does, and says ‘it’s just a bit of fun’”

. In passing I mention that the record of this conversation was one of the documents that, in circumstances I shall describe below, were not disclosed until a late stage in the hearing.

[54]On the same day, another professionals meeting took place attended by representatives of social services, the schools and the police. The meeting was requested by the police following the decision to return the children in the light of what was described as “a difference in professional view” between the various agencies. Police and school staff said they were very concerned about the decision being taken without proper consultation. SW, the social services district manager, explained the reasoning for that decision. The social worker JC then informed the meeting about his visit to the home on the previous day. It was agreed that further legal advice would be sought immediately with a view to applying for interim care orders on the basis of interim plans for the removal of the children into foster care, coupled with various assessments, including a protective parenting assessment and cognitive assessment of the mother. A further s.47 investigation was started in respect of the allegations against IR. The record of this investigation, which was another document not disclosed until a late stage in the hearing, is incomplete.

[55]On 5th October 2009, the local authority filed an application for a care order. In order to set the scene for consideration of the wider issues, it is necessary to set out the history of the proceedings in rather greater detail than usual.

[56]Before doing so, I should mention two other concluding points in the chronology. First, on 21st December 2009, David Mason pleaded guilty to twenty-six offences at Canterbury Crown Court, including sexual offences involving a number of children including X, Y and Z, plus an offence of furnishing false information for the purposes of obtaining a national insurance number. He was sentenced to an indefinite period of imprisonment for public protection, with a direction that he should serve a minimum of seven years before being considered for parole. His name was placed on the sex offenders register. Secondly, following the conviction, a review was carried out by SH, the policy and performance officer for safeguarding in the local authority’s children, families and education unit, into the process by which W came to be living with David Mason. Whilst accepting that there should have been a referral for a fostering assessment, and that the managerial oversight “was not as robust as it might have been”, That report concluded, “based on the information that was known at the time, that even if an assessment of the private fostering arrangement had been undertaken, it would not have been considered inappropriate or unsafe”. I shall indicate at the end of this judgment whether or not I share this conclusion.

HISTORY OF THE PROCEEDINGS

[57]At the first hearing before the FPC, the case was transferred to the county court and listed for a contested interim hearing. The mother, who was represented by her then counsel (not Miss Murkin), agreed to the children being voluntarily accommodated, this time in two foster homes, with X and Z together and Y in a separate placement, where they remain to this day, with the mother having supervised contact. At the first hearing in the county court on 27th October, the contested interim hearing was listed on 24th November, and further directions given, including leave to the mother to instruct an expert to carry out a cognitive assessment. F, who had applied to be joined as a party, was directed to file a statement in support of that application. In the event, the interim issue was not contested, interim care orders were duly made at the hearing on 24th November, with provision for renewal until the final hearing, and the case was transferred to the High Court.

[58]Early in January 2010, X’s foster carer emailed social services stating that X had alleged that she had been sexually abused by three named persons, including David Mason and F. When spoken to by DH, the social worker who had recently been allocated to the case, X named Mason and S as men who had sexually abused her. She alleged that F had physically abused her but firmly denied that he had sexually abused her. It was decided that no further investigation was necessary into these allegations.

[59]At the first hearing in the High Court on 25th January 2010, before Bodey J., the case was timetabled with directions through to a final hearing before me starting in October, with a time estimate of 15 days. The question whether F should be joined was adjourned to a further hearing before me on 15th April. At that hearing, I decided that F, as Z’s father, should be joined. Meanwhile, on 23rd March, IR had also applied to be joined as a party, on the basis that he understood that X had made an allegation of sexual abuse against him which he wished to defend. At the hearing on 15th April, counsel for the local authority, Miss Morris, indicated that the authority no longer sought a finding that IR had sexually abused any of the children. The authority was directed to file a revised schedule of proposed findings, and the application by IR to be joined was adjourned to the next hearing. The mother was directed to file a statement setting out the nature of her relationship with IR and her proposals for his future involvement with the children. In her statement filed in compliance with that direction on 14th May, the mother indicated that she and IR were engaged, that she very much wanted IR to be part of her children’s lives, and to be a father figure to them. She said that the children missed him very much and sent text messages to him through her. At the next hearing before me, the question of IR’s party status was again adjourned to enable the mother and F to respond to the local authority’s schedule of findings which had by then been served. The schedule included a proposed finding that the mother had allowed W to move in with David Mason after being informed by X that he had abused her, to which the mother responded that the placement was arranged by the local authority. I therefore directed the local authority to disclose all relevant documents concerning W’s placement with David Mathews/Mason. At the next hearing on 13th August, listed as an issues resolution hearing, it was indicated by counsel then appearing for F, that, notwithstanding the local authority’s decision not to seek a specific finding against IR, her client may wish to invite the court to make such a finding. Furthermore, she indicated that F wished the court to explore the discrepancies between the admissions made by David Mason and the statements made by the children to the police and others as to the extent of the sexual abuse that had taken place, and in particular whether Z had been abused. F was therefore ordered to file a document setting out whether he wished all or any of the children to give evidence, whether he wished David Mason to give evidence, the extent and relevance of such evidence, and the specific findings (if any) that he sought against IR. The matter was listed for a further hearing before the final hearing to determine whether the children and/or David Mason should give evidence, and the joinder of IR as a party. Further directions were given as to disclosure and other preparatory matters.

[60]At the next hearing on 10th September, counsel then representing F indicated that her client no longer sought any finding against IR. As no party was seeking any findings against him, he was given leave to withdraw his application to be joined, although Miss Alison Ball QC, who appeared for the first time at that hearing on behalf of the children’s guardian, presciently warned that it might be necessarily for the issues concerning his alleged abuse of X to be considered at some point. The application on behalf of F for W, X and David Mason to give evidence was pursued on the grounds that, first, F wished to know exactly what had happened to his daughter and, secondly, it was in the children’s interests for the full details of what had happened to be established to inform those who would be providing therapy to the children. That application was opposed by the other parties, and I rejected it, on the basis that, given the findings sought by the local authority, it was unnecessary for the children and David Mason to give evidence and, in the case of the children, there was a significant risk that calling them to give evidence would cause them additional harm. In the light of those decisions, the time estimate for the hearing starting on 18th October was reduced to ten days, including two days for judicial reading and watching the recordings of the ABE interviews. Further directions were given, including provisional timetabling through to a final hearing in the event that the court made findings sufficient to satisfy the threshold under s.31 of the Children Act 1989.

[61]On 18th October, counsel attended a short hearing for various “housekeeping” issues to be considered, in the course of which Miss Murkin on behalf of the mother indicated that she wished to invite the court to make findings against F. On 20th October, the third day of the listed hearing but the first day set aside for evidence, Miss Eleanor Platt QC appeared for the first time, leading Miss Murkin for the mother. As public funding had only just been granted for leading counsel, I allowed Miss Platt a further 24 hours to master the papers, and postponed the start of the evidence until the following morning. That afternoon, all counsel save Miss Platt attended court to address issues of disclosure. I was informed by Miss Ball that a perusal of some of the local authority files which had been brought to court had revealed a number of relevant documents that had not been disclosed. It was submitted that it would therefore be necessary for all the files to be read to identify all relevant material. Manifestly, this was a task that should have been carried out by the local authority at an earlier stage. Miss Morris indicated, however, that it was physically impossible for the local authority representatives to carry out that task without a further adjournment, to which I was unwilling to agree at that late point. I therefore acceded to Miss Ball’s proposal that the task be divided between all counsel, and that the local authority provide the files to the Respondents’ counsel for the purpose of identifying relevant documents, on the basis that they would not read any legal document nor disclose any document identified to the parents without the court’s leave, thereby giving the local authority the opportunity to raise any objection to wider disclosure. In the event, when the hearing resumed on the following morning, a bundle of further relevant documents from the local authority files was handed to the court with no objection. More documents were filed during the day. It then emerged that W’s files had not been included in the material disclosed – indeed, initially, Miss Morris informed me that the local authority was unsure as to the location of her files. As set out above, I had ordered the local authority to file and serve all documents relating to W’s placement with Mason at a directions hearing in June. Subsequently the files relating to W were found, and the same exercise undertaken by the Respondents’ counsel. Meanwhile, I continued hearing oral evidence. At that stage, no party sought an adjournment. All were anxious that there should be no further delay in the proceedings.

[62]On day seven of the hearing, however, I was informed that the local authority had realised that there were an unspecified volume of further information concerning the family stored on its computer system which had not been disclosed – indeed, not even perused by anybody on behalf of the authority to establish whether it should be disclosed. The local authority’s response, which might not unfairly be characterised as a panic measure, was to print off the entire computerised record and arrange for sufficient copies to be delivered to court. This material, each copy of which was sufficient to fill four further lever arch files, was duly delivered to court – unpaginated, unindexed, and unread by those representing the local authority. When counsel for the Respondents embarked upon the task of sifting through these voluminous records, they discovered a number of further relevant pages which had not previously been disclosed, which were put in a further section of the bundle (identified as bundle BB). Amongst these pages were notes of the conversations with X and Y on 28th July 2009 summarised at paragraph 44 and with W on 29th September 2009 summarised at paragraph 53 above. These documents were plainly relevant. In particular, the note of the statements allegedly made by W during the 29th September conversation were manifestly of great significance to the fact-finding exercise because, if true, they would(1) prove that IR had behaved inappropriately towards X

(2) lead to an inference that he had sexually abused the children and

(3) prove that the mother had not only failed to protect the children but had actively condoned IR’s actions and forced X to retract her allegations against him.

[63]Understandably, Miss Watson, on behalf of F, now sought to withdraw the earlier withdrawal of allegations against IR. She submitted that, unless the allegations against IR were resolved in this fact-finding hearing, they would “continue to haunt the case”. At first the local authority stuck to its position of not seeking a finding against IR. This led to extensive submissions from, and discussions with, all parties, at the conclusion of which I formed the clear view that F was entitled to change his position, that the Court’s inquiry at this fact-finding stage would have to be extended to cover the matters arising from the newly- discovered documents, and that the hearing would therefore have to be adjourned. The following day (the tenth day of the hearing) I gave a judgment setting out the two reasons for this decision. First, the information disclosed amounted to a prima facie case that IR has behaved inappropriately with X which, if true, could lead to a finding that the children would be at risk of abuse by IR. The position adopted by the local authority and F at the outset of these proceedings was understandable and tenable in the light of the documents then available to those representing them, namely that, in their judgment, there was no realistic prospect of a finding being made against IR on the basis of the information then disclosed. Following disclosure of the new information, however, the position adopted on behalf of F was equally understandable and tenable - namely, on the basis of the information subsequently disclosed, there was a prima facie case for IR to answer. Whether or not any findings were ultimately made against IR would depend on all the evidence, but it was necessary for the Court to investigate the matter because the mother’s case is that she wishes IR to be a part of the household to which the children should be returned. Secondly, and of equal importance, the new information, if true, might have affected the findings that the Court would be invited to make about the mother’s alleged incapacity to protect the children, since the newly-disclosed information recorded W alleging that the mother had coerced X into withdrawing the allegations against IR, and that IR had behaved inappropriately towards X in the family home, and possibly in the mother’s presence. I concluded:

“the allegations against IR, and the allegations against the mother of failing to protect, are thus inextricably linked in a way that was not apparently the case with the allegations of sexual abuse perpetrated by Mason. Furthermore, whereas Mason made what appears to be a full confession, IR denies any wrongdoing. Thus, whereas it has not been necessary to establish the precise details of the abuse perpetrated by Mason in order to consider the allegation that the mother failed to protect the children from that abuse, in my judgment it is necessary to investigate the truth, or otherwise, of the allegations against IR in order to evaluate the allegation that the mother failed to protect the children from him.”

[64]The consequences of this decision, as identified in that judgment, were that IR had to be joined as a party and given the opportunity to obtain legal representation and to prepare the case; that all parties had to be given an opportunity to amend the findings they seek in the light of the new information disclosed, and respond to the amended findings sought by other parties; that consideration would have to be given to what further evidence should be adduced, and that the hearing would therefore have to be adjourned. At that point, Anthony Kirk QC was instructed to represent the local authority leading Miss Morris, and immediately indicated that the local authority, on reflection, also wished to change its position and seek findings against IR. At the same time, Miss Platt indicated on behalf of mother that her client wished to amend the findings that she was seeking against F, to include an allegation that he had assaulted X in June 2004. After further argument, I granted her leave to make this amendment. I then considered the future of the proceedings. Six days were found in the middle of January for the conclusion of the hearing, but it was agreed that there would have to be a case management conference in the interimto review, inter alia, the question whether, in the light of the new disclosure, any of the children should give oral evidence. Comprehensive orders and directions were agreed between the parties and drafted by Mr. Kirk.

[65]Thereafter, Miss Jo Delahunty QC and Mr. Christopher Poole were instructed to represent IR, and, in addition, Miss Marianna Hildyard QC was engaged to lead Miss Watson on behalf of F. By this stage, therefore, all parties were represented by leading and junior counsel. A great deal of work and preparation was put in by all legal representatives to identify the issues that had by this stage multiplied alarmingly. The local authority duly filed an amended schedule of proposed findings including allegations against IR. A further document was filed on behalf of the mother setting out revised findings sought in respect of F. At the case management conference on 24th November, directions were given for a hearing on 7th December to determine whether W and/or X should give evidence, including a report on the issue from the guardian, and a statement from W (who was by that stage aged 17), to be prepared by a solicitor on the children’s panel and setting out her answers to written questions agreed by the parties. By a separate order made that day, the Chief Constable for Kent was directed to disclose certain specified information concerning allegations against IR and F. In a briefing note prepared by Mr. Kirk, I was informed that it had been ascertained that there was yet further undisclosed material relating to the case stored on the G drive of the local authority’s computer and that it was being examined to see if there was anything relevant to the issues. Some further pages from these records were subsequently filed and served.

[66]Prior to the hearing on 7th December, statements were filed from the police and social workers involved in the conversations with X and Y on 28th July and with W on 29th September 2009 confirming the contents of the information disclosed in bundle BB. At that hearing, having considered those statements, the statement prepared on W’s behalf by the panel solicitor, the report from the guardian, and submissions from all parties, I ruled that W should be called as a witness at the hearing, but that X should not. No party asked me to give reasons for that decision, which has not been challenged. I do not therefore propose to add to what is regrettably a very long judgment by setting out my reasons here, save to say that I attempted to follow the guidance given by the Supreme Court in Re W (Children)(Abuse: Oral Evidence)

[2010] UKSC 12

, and that, in the case of W, aged 17 and willing to give evidence, the balance clearly came down in favour of her being called, whereas, in the case of X, aged not yet 15, with apparent learning difficulties and unwilling to give evidence, the balance clearly fell the other way. In addition, the court gave further directions as to evidence incorporated in another draft finalised by Mr. Kirk.

[67]By this stage, W was in fact 7 months pregnant, and it was feared that she might not be able to attend the hearing in mid January. Arrangements were therefore made for her to give evidence on an earlier date in the Christmas vacation. She duly attended and gave evidence from her home town via video link. She answered questions from Mr. Kirk and Miss Platt but in the course of her cross-examination by Miss Hildyard she became distressed, and her evidence was interrupted. On resuming the hearing, Mr. Kirk indicated that the local authority had reflected on her evidence, and in the light of certain significant inconsistencies in it had concluded that it could no longer rely on W as a credible witness. I indicated that, for reasons I will set out below when analysing the evidence, I shared that view, and it was therefore decided that her oral evidence would be abandoned. Mr. Kirk and Miss Hildyard indicated that neither the local authority nor F would now pursue findings against IR. Furthermore, all parties rightly agreed that W’s testimony could not be relied on in support of the mother’s allegations against F. Miss Ball submitted that the court could not rely on W’s evidence as to whether David Mason had had an opportunity to abuse Z.

[68]The effect of this development was to narrow the scope of the rest of the fact-finding hearing. The long list of witnesses lined up to attend the adjourned hearing in January, which included a number set to be recalled, was pruned. No further evidence was led concerning the allegations against IR, and the local authority amended its findings schedule for a final time to remove all findings against him. As a matter of prudence, I decided that IR should remain as a party, although in the event his counsel thereafter played only a marginal role. The evidence concluded within the further six days allocated. Counsel then prepared lengthy written submissions dealing with the findings sought and cross-allegations made, and counsel for the local authority and guardian also prepared lengthy written submissions on the wider issues arising in the case. At a hearing on 8th February, all counsel delivered supplemental oral submissions, and finally on reserving judgment I acceded to a request by Mr. Kirk to allow the local authority to prepare a supplemental written response to the serious criticisms levelled by Miss Ball and Miss Boye on behalf of the guardian.

THE FINDINGS NOW SOUGHT BY THE PARTIES

[69]In its final version of the schedule of findings sought, having abandoned its allegations against IR, the local authority seeks the following findings:(1) X has been sexually abused by David Mason.

(2) Y has been sexually abused by David Mason.

(3) Z has been sexually abused by David Mason.

(4) The mother did not believe that the children had been abused by David Mason.

(5) The mother does not believe that the children have been abused by David Mason.

(6) On the mother’s own admission, X did try to tell her that she was being abused by David Mason, but the mother failed to take any or any appropriate action.

(7) The mother allowed W to move in with David Mason after she had been informed by X that she been abused by him.

(8) The mother allowed the children to continue to attend David Mason’s address even though she knew of the allegations made by X against him.

(9) The mother did not take any appropriate action when she was told in March 2009 that X had alleged that she had been abused by IR. Her reaction was one of instant dismissal.

(10) On 12 March 1986 F was convicted of offences of sexual intercourse with a girl under the age of 16 years, soliciting a girl under the age of 21 to obtain immoral earnings and (it seems) conspiring with others to live on such earnings.

(11) On 2 June 2004 X was allegedly physically assaulted by F. The mother did not properly support X, aged 9, in pursuing her complaint of assault against him. Instead, it was withdrawn.

(12) The mother maintained an ongoing association with F despite advice from social services that he posed a risk to her and the children.

(13) The mother is unable/unlikely to be able to protect the children from sexual abuse in the future as she does not accept that they have been abused.

(14) The mother has a long history of poor parenting. In 2004, X’s school reported concerns about her physical condition. Over the years the mother has received significant social services support in the following areas but with little lasting effect (a) the home being dirty; (b) the home being untidy; (c) the home being unhygienic; (d) the home being cluttered; (e) equipping the home; (f) basic parenting skills; (g) assertiveness and maintaining boundaries; (h) the impact of domestic violence on the children; (i) the physical care of the home; (j) the physical care of the children; (k) relationships with, and between, the children; (l) managing the children’s behaviour; and (m) lack of stimulation.

(15) In addition, the mother has been unable and/or has failed appropriately to meet the children’s emotional needs in view of: (a) the emotional impact on X of repeatedly not being believed by the mother when she alleged abuse; (b) her failure to assert herself as the responsible adult in the household in respect of effectively managing the children’s behaviour and keeping them safe; (c) a failure to protect the children from exposure to emotional harm by way of them witnessing violence between her and F and allowing them to come into contact with, and maintain contact with David Mason; and (d) a failure to promote their emotional and social development by inhibiting meaningful relationships with their peers due to their physical presentation and behaviour.

(16) The mother is responsible for the physical and emotional neglect of the children, inadequate supervision and, despite receiving support, maintaining an unhygienic and chaotic household. The particulars include: (a) longstanding concerns over the physical care of the children; (b) V hitting and threatening W; (c) V hitting X; (d) X being victimised and bullied in the home; (e) V threatening the mother; (f) X hitting the mother.

(17) The mother had prioritised her relationships with men over and above her children. In particular, (a) she failed to support X in pursuing her complaint against F; (b) she took no action when X complained of abuse by her partner; and (c) she breached the written agreement with the local authority dated 23rd September 2009 by allowing IR to be at the home when he should not have been, and lied to social services about how long he had been there

[70]I will set out the response of the mother and F to these allegations when I analyse the allegations below.

[71]The mother seeks the following findings against F (which I paraphrase from Miss Platt’s document).(1) He suggested to her that they should move to Birmingham, and arranged for her furniture and possessions to be transported to Birmingham by van, obtained with money she provided. He drove her to Birmingham in his car together with X and Y, shortly before she was due to give birth, but left the mother and children there after one or two days.

(2) After the mother returned to Kent, his relationship with the children was poor. He did not wish them to be present when he visited.

(3) On or about 2nd June 2004 he assaulted X, causing X to run away. He was arrested but X did not wish to pursue the matter so no police action followed.

(4) He failed to take up supervised contact when it was offered in 2005 and has had no contact since February 2006.

(5) Despite receiving various solicitors’ letters, he continued to visit the mother and accost her in the street, but did not inquire about Z’s welfare.

[72]I shall deal with F’s response in more detail below, but in short he denies the allegations.

THE LAW

[73]Under s.31(2) of the Children Act 1989, “a court may only make a care order or a supervision order if it is satisfied(a) that the child concerned is suffering, or is likely to suffer, significant harm, and

(b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him, or (ii) the child’s being beyond parental control”.

[74]The following legal principles derived from reported cases are of particular relevance to this fact-finding hearing:(1) In family proceedings there is only one standard of proof, namely the simple balance of probabilities: Re B

[2008] UKHL 35

(2) "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1" (per Lord Hoffman in Re B, supra, at paragraph 2),

(3) A court weighing up hearsay evidence has to take into account the fact that it was not subject to cross-examination.

(4) "If a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure" - R v Lucas

[1981] QB 720

(5) "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof": per Butler-Sloss P in Re T

[2004] EWCA (Civ) 558

[2004] 2 FLR 838

at para.33.

(6) Because it is generally in the best interests of a child to be brought up with its natural family, “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent …. [I]t is not the provenance of the state to spare children all the consequences of defective parenting …. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s.31 (2) [are] made out” (per Hedley J in Re L (Care: Threshold Criteria)

[2007] 1 FLR 2050

(7) However, “[t]he test under s.31 (2) is, and has to be, an objective one. If it were otherwise, and the ‘care which it is reasonable to expect a parent to give’ were to be judged by the standards of the parent with the characteristics of the particular parent in question, the protection afforded to children would be very limited indeed, if not entirely illusory. It would in effect then be limited to protection against the parent who was fully able to provide proper care but either chose not to do so or neglected through fault to do so. That is not the meaning of section 31(2). It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best” (per Hughes LJ in Re D

[2010] EWCA Civ 1000

THE WITNESSES

[75]By the end of the hearing, the papers filed in the proceedings were voluminous and organised (if that is the right word) into 33 sections (A to GG). I heard oral evidence from the following witnesses in the following

[76]The sheer volume of evidence in this case, and the wholly unsatisfactory way in which the local authority handled the disclosure of relevant information in its possession, would by themselves have posed significant challenges to the court analysing that evidence to see if the section 31 criteria had been established. That task has been made even more challenging by the difficulties about the evidence of a number of the witnesses, in particular the mother, F and W. In addition, the court has had to grapple with the difficulties in evaluating potentially significant hearsay evidence. In particular, neither X and David Mason gave oral evidence but each made statements to others and in interviews upon which one or more parties sought to rely.

The mother

[77]As set out above, the mother suffers from a significant learning disability and, in particular, has a problem with working memory as explained by the psychologist Clifford Robins in his evidence summarised at paragraphs 5 and 6 above. Someone with an impaired working memory is put at a particular disadvantage when being questioned about historic events, since the process of questioning involves sustaining a train of thought, with frequent references back to questions and answers given earlier in the process. All carefully constructed police interviews, and equally carefully constructed cross- examinations, depend on the interviewee or witness following that train of thought and upon a shared understanding about what has gone on earlier in the process. The mother’s problems with working memory mean that the court cannot assume that she followed the train of thought or retained the shared understanding which would normally be held in the mind during the questioning process. Furthermore, there is a particular danger that a person with a learning disability may be more likely to be influenced by leading questions. During the mother’s cross examination, I noticed on a number of occasions how easily she tended to follow cues in the questions when giving her answers. This means that the court must be exceedingly cautious when interpreting and evaluating the answers given by the mother in the police interview and in her oral evidence. One recognises, too, that the mother’s difficulties pose additional problems for those representing the mother in seeking to prepare statements of evidence and take instructions for the conduct of the case.

[78]It follows that the court must constantly bear in mind the mother’s learning disability at all times when assessing her evidence, and, in particular, when considering alleged inconsistencies and fabrications in her evidence. I make it clear that I have kept her learning disability firmly in mind throughout this hearing. Having said that, and making all allowances for her difficulties, I was driven to the conclusion that the mother has on occasions been less than frank with the court in her oral evidence. In particular, I have found that her inconsistent accounts about when and in what circumstances her children went to stay with David Mason cannot be attributed solely to her disabilities. In the course of the evidence, I indicated my clear view that the mother (like F) clearly had very great difficulties in giving accurate evidence about dates and times, and this difficulty may account for some of the inconsistencies in her evidence about the issue of when the children went to stay with David Mason. But the mother’s various answers about that issue were so inconsistent that I am driven to conclude that she has not told the whole truth about that matter. Likewise, I found that her evidence on the issue of what exactly X told her about her being abused by David Mason to be inconsistent and that this inconsistency cannot, on any reasonable analysis, be attributed to her learning disability. Even allowing for that disability and the fact that the police interview carried out by SB in September 2009 took place without an appropriate adult being present, I conclude that her statement to the police officer (as summarised at paragraph 50 above) that X had said that “Dave was trying to touch her up” to be clear and unequivocal. Having listened to the recording of that interview in addition to reading the transcript, I am left in no doubt that the mother made that statement free of any mental impairment or undue influence. The statement is unequivocal and I find it impossible to believe that she was confused or led into giving a mistaken answer to the question. I therefore find that the mother has been untruthful in some of the answers she has given. Bearing in mind the Lucas direction, it does not follow, of course, that all of her evidence is untruthful. But the court is faced, therefore, with evaluating the evidence from a witness whose evidence is unreliable, both as a result of her learning disability, and with working memory, and, secondly, by her capacity and willingness to tell lies on occasion. F

[79]Similar difficulties arise when evaluating the evidence given by F. He has a learning disability and, as set out above, has suffered three strokes which have manifestly affected his memory. Miss Hildyard and Miss Watson submit on his behalf that the fact that he has expressed himself with greater fluency than the mother should not diminish the significance of his diagnosis of an equivalent mild learning disability. In fact, in my judgment he was not noticeably more fluent than the mother in oral evidence. I did not find that he was as easily led by the questions as the mother patently was, but nonetheless it was striking that he frequently answered a question by simply saying: “I don’t remember”.

[80]Making all allowances for his manifest difficulties, however, I find that he too was not always a truthful witness. I found that he took advantage of his memory difficulties so as to deny a memory of an event in circumstances in which, to my mind, such a denial was utterly implausible. One obvious example of this is his evidence about the move to Birmingham. As set out above, it is the mother’s case that, at F’s insistence, she and the children (except W) moved to Birmingham in 2004. The mother gave a very detailed account in her evidence about the decision, including an account of how her furniture was transported to Birmingham in a van driven by a friend of F called Dominic, of how F had subsequently deserted her in Birmingham, and how, after a stay in hospital, she had returned back to London without her furniture which had subsequently been lost. Some of these allegations are corroborated by two contemporaneous records. F says that he has no memory of the trip to Birmingham or of a friend called Dominic, yet a hospital record taken during the mother’s brief admission in Birmingham states:

“phone call from patient’s ex partner ([F’s first name]) saying there is a friend of his called Dominic coming up to collect children”

. Making all allowances for F’s disabilities, I do not accept that he has no memory of this incident and I find that his denial of any memory is fabricated. I was equally unpersuaded by his account, when cross-examined by Mr Kirk, of his reason for adopting his father’s name as a pseudonym. In assessing F’s evidence, I am therefore, in a position of similar difficulty to that faced when analysing the mother’s evidence. I accept that F has a learning disability and an impaired memory and I also find on occasions he has been untruthful. Again, remembering the Lucas direction, it does not follow that all his evidence is unreliable, but it follows that the court must tread very carefully before relying on his evidence in the absence of corroboration. W

[81]When considering W’s evidence – her police interview, her oral evidence, and hearsay statements about other things she has said – the court does not have to consider any question of a learning disability. In her interview and evidence, W came across as being clearly intelligent and was able to follow the train of thought. There is, however, evidence from the local authority records that she is capable of lying. In one record (emanating from the school), it is said that she “is very manipulative and has a strong desire to live her life her own way. It appears she is capable of making unfounded allegations if she feels it will get her the desired result”.

[82]During her oral evidence it became increasingly clear that W had been untruthful, either during that evidence or earlier. On a number of important issues, she gave an account in her oral evidence which was either totally inconsistent with her previous statements or gave a wholly implausible gloss on those earlier statements. For example, i) Cross-examined by Miss Platt, W said that she had heard nothing bad about David Mason before she went to live with him in July 2007. In her police interview, however, she said that before she moved there, X had told her that David Mason had offered her money if she gave him a blow job. ii) Furthermore, contrary to her police interview, in her oral evidence she said that David Mason was never alone with Z in the bathroom. iii) In the course of her conversation with police and social workers on 29 September, W said that, in March 2009, after X had told T1 that IR had touched her, that evening her mother had “really had a go at her”. In her oral evidence, W said that she did not see her mother have a go at X but assumed that she had. iv) In the same conversation with police social workers on 29 September, W referred to X having love bites on her neck from IR and added that her mother was “okay about it”. In her oral evidence, at first she said that she did not see love bites on X, had not said that they had been caused by IR, had never said that her mother was okay about it and that the police record was therefore wrong. Cross-examined by Miss Hildyard, however, she said that she could not remember everything she had said on 29 September but “guessed that she did see love bites on X’s neck from IR”. Later, she said that she did remember that X had love bites but could not remember how she got them. v) As stated above, in June 2008, W alleged that she had been sexually assaulted by a man called R. In her statement and in her oral evidence, she admitted that she had made up that allegation.

[83]So manifestly unreliable was W’s oral evidence, that the local authority was moved to abandon any reliance on it and as a result withdrew its case against IR. No party now seeks to rely on W’s evidence. In those circumstances the court must again tread exceedingly carefully. W has manifestly told a number of lies about important issues in the case. Her motive for telling lies is unclear. It was suggested by Miss Hildyard that she was acting in this way to protect her mother, but I am in no position to reach any conclusion as to her motive. Once again, I remind myself that the fact that a witness lies about some matters does not mean that all her evidence is unreliable. In this case, however, it must follow that the court must be very wary of relying on any aspect of W’s evidence in this case. X

[84]For the reasons set out above, X did not give oral evidence at this hearing. Nevertheless, the transcript of her police interview is included in the court papers and there are many instances in the other documents filed in these proceedings of statements made by X relevant to the issues in the case. It is of course, well established that hearsay evidence is admissible in care proceedings and, in appropriate circumstances, can be relied upon by the court to support a finding. In the case of statements made by X, however, the court must be exceedingly careful. First, much of what she has said is contentious and has not been subjected to cross-examination. Secondly, it is clear that X suffers from a degree of learning disability and other problems that may affect her reliability as a witness. Thirdly, there are many references in the papers to X’s tendency to tell lies. For all these reasons, statements attributed to X must be treated with the very greatest caution.

David Mason

[85]Another important figure in this case who has not given evidence, of course, is David Mason. Once again, however, the court has the benefit of a transcript of his police interview and occasional other statements attributed to him are quoted in the papers. Furthermore, he has pleaded guilty to series of offences involving X, Y and Z. In his case also, however, the court must be very careful. First, he too has not been subjected to cross-examination. Secondly, he is plainly a man capable of the most deceitful conduct. Thirdly, I am reminded that it is not uncommon for paedophiles to exaggerate the extent of the abuse they have perpetrated and that, accordingly, the court cannot automatically rely on the fact of his conviction as proving that he has committed the offences in respect of which he has made what appears to be a confession. I bear all these points in mind and treat statements attributed to him with an appropriate degree of caution.

[86]It follows that much of the evidence heard by the court is, for one reason or another, exceedingly questionable and in some cases wholly unreliable. This makes the task of assessing the evidence, and considering the findings sought by the parties, unusually difficult, even for a case of this complexity.

THE FINDINGS SOUGHT BY THE PARTIES - SUMMARY

[87]I shall analyse the evidence about the findings sought in this case under the following headings:(1) Were X, Y and Z sexually abused by David Mason?

(2) Did the mother fail to protect the children from abuse?

(3) The allegations concerning F

(4) Issues of neglect

(5) The mother’s failure to control the children

WERE THE CHILDREN SEXUALLY ABUSED BY DAVID MASON?

[88]This issue illustrates the difficulties posed by the unreliability of the evidence outlined above, for the question whether X, Y and Z were sexually abused by David Mason, and if so, the extent of that abuse, depends to a very considerable extent on the accounts given by W and X in their police interviews, the admissions made by David Mason in interview and the fact of his conviction. Y, of course, has said very little at all about this issue.

[89]It is, however, clear that David Mason had the opportunity to abuse the children over a prolonged period of time. One important and unchallenged piece of evidence is the account given by SF about her conversation with the mother and X on 12 January 2007, in which she was told that the children were taking it in turns to stay overnight regularly with a man who used to live at the bed and breakfast accommodation and who, I find, was unquestionably David Mason. I accept SF’s evidence that the mother “seemed fully aware of the arrangements and seemed happy to let the children stay with the man”. (Although I am critical of the way in which the computer record of this conversation was subsequently changed, I accept SF’s account of her reason for changing it and I am satisfied that the amended version is correct). When questioned about this matter in July and September 2009, (and again in the mother’s case during oral evidence), the mother and the children were less clear about when W, X and Y had started staying with David Mason, saying or implying that it had started at a later date. The contemporaneous record taken by SF, however, gives a clear and incontrovertible marker, and I find accordingly that W, X and Y were staying with David Mason on or before 12 January 2007. I recognise that this finding is dependent upon statements made to SF by the mother and X during that conversation but, even making allowances for the learning disability or difficulties of both the mother and X and for X’s general unreliability, I see no reason to doubt the truth of what was said to SF on that occasion. Thus the opportunity that David Mason had to abuse the children started in January 2007. It is more difficult to make a clear finding about when the children stopped staying, because the mother, W and X have said different things at different times about this point. It is clear, however, that W moved to live with David Mason in July 2008, staying until December of that year. On balance, I find that X and Y came to visit and stay with David Mason up to at least December 2008. Thus David Mason had the opportunity to abuse X and Y over a period of nearly two years.

[90]I accept that paedophiles may on occasions lie about the abuse they have perpetrated, but given the clear opportunities that David Mason had over this period to abuse the children, the fact that he is unquestionably a devious and dangerous man, and the details of the accounts given by David Mason and X, I am in no doubt that he has sexually abused X and Y over a prolonged period of time. I am in no position to make detailed findings as to what he did, nor is it necessary to do so, but in my judgment the abuse perpetrated was extensive, repeated and profoundly damaging to the children.

[91]In the end, no counsel has sought to argue against that finding, but the question whether Z was abused by David Mason is strongly disputed. The mother adamantly refuses to accept that such abuse occurred. F, who wished to participate in this hearing partly to establish the truth about this issue, now accepts that abuse did take place. Miss Ball, on behalf of the guardian, has highlighted the paucity of clear evidence on this issue. In particular, she warns against relying on W’s account of Z’s visits to the house. The evidence on this issue is unquestionably much thinner than the evidence concerning the abuse perpetrated on X and Y. On balance, however, looking at the totality of the evidence, I find that Z was sexually abused by David Mason. I see no reason to reject his account which is broadly consistent with that provided by W. The mother’s evidence on this issue is to my mind influenced by her desperate wish to believe that Z has not been abused, which I find has led her to conceal from the court, and possibly herself, the extent of the opportunities that David Mason had to commit such abuse. It is likely that the abuse of Z was far less extensive than that perpetrated on X and Y, but nevertheless I find that it happened and unquestionably caused her significant harm.

[92]W, of course, is not the subject of these proceedings. No party seeks a finding that she has been abused. David Mason denies abusing her and W has never said that she was abused, although in her interview she gave a detailed account of David Mason behaving in a way that clearly amounted to grooming. I make no finding on this issue but I am profoundly concerned about the way in which W was lured into the company of this manipulative and dangerous paedophile, spending months living in his house, and exposed to his character. Manifestly, although unwittingly, she facilitated contact between David Mason and a number of other children. As I said at the end of her evidence, I was left profoundly concerned about W, who now, aged 17, is herself in the late stages of pregnancy. Her confident, plausible and superficially mature demeanour may make her more vulnerable. I hope she receives the help that she manifestly needs.

MOTHER’S FAILURE TO PROTECT CHILDREN FROM SEXUAL ABUSE

[93]A central part of the enquiry conducted in the course of this fact-finding hearing has been the allegation that the mother has failed to protect her children from sexual abuse. The local authority’s specific case on this issue, in short, is that the mother did not, and still does not, believe that the children were abused by David Mason; failed to take any or any appropriate action when X told her that she was being abused by David Mason; allowed W to move in to live with David Mason knowing that X had alleged that she was being abused by him; continued to allow the children to visit David Mason’s address knowing of X’s allegations; and failed to take action when told of X’s allegations against IR in March 2009. In reply, counsel for the mother submit that their client’s alleged failure to protect the children needs to be considered in the light of her learning disability generally, and, specifically, her lack of understanding of what is meant by the phrase “sexual abuse”. They submit that the evidence demonstrates that the mother has not grasped the reality of what may have happened to her children, which, they say, is hardly surprising given her learning disability. They invite the court to accept the mother’s account in her oral evidence that she did not know that David Mason had sexually abused X until after she spoke to his neighbour in July 2009. They argue that it is “hardly credible” that a clearly bright girl like W would have lived for a period of several months with a man who she knew had abused her sister X. Furthermore, Miss Platt and Miss Murkin submit that, when evaluating the local authority’s criticism of the mother for failing to recognise the risk posed by David Mason, the court should have regard to the fact that a number of professionals and others were aware of the family’s involvement with David Mason and yet failed to appreciate the danger. Miss Platt and Miss Murkin put it in this way (rhetorically, but pertinently):

“Did the local authority or the school have any inkling that this man was grooming these and so many other children in the area and at the same school? Why should this mother have any better understanding than social workers, police and teachers? Indeed we know that she is likely to have a much lower level of realisation and understanding than those three groups.”

This latter submission is supported to an extent by Miss Ball and Miss Boye who, whilst acknowledging that the issue of threshold is not a matter for the guardian, describe the local authority’s allegation of failure to protect as “particularly unattractive given the local authority’s own failures in recognising or finding out about Mason and the absence of appropriate assessment of and specialist input for the mother”.

[94]In assessing the contention that the mother failed to protect the children from sexual abuse by David Mason, I remind myself that it is essential for the court to have regard to all the evidence, weighing up each piece of evidence in the context of the others and not in isolation. Once again, I consider the evidence of SF is crucial to the analysis on this point. I find as a fact that, by 12January 2007, W, X and Y were staying regularly with David Mason and that the mother knew about this and had raised no objection. In my judgment, making all appropriate allowances for her learning disability, this was, manifestly, an imprudent and irresponsible attitude. It is submitted on her behalf that the mother was deceived in thinking that David Mason was a reliable person by the words of the manager of the bed and breakfast accommodation into which she and the children moved in November 2006. In my judgment, it was not reasonable or wise of her to rely on that person’s introduction. That person has not given evidence before me, but as I understand the mother’s case, she told her that David Mason would be someone who could help the family settle in the new town and show them around. This was not, on any basis, justification for allowing three young children to stay, separately and regularly, in the small flat of a man aged over fifty of whom she knew nothing. By allowing the children to stay regularly with David Mason, the mother was not acting as a responsible parent. It is submitted that, in assessing her actions, the court must take account of her limitations. Of course, I have that factor in mind, as I have done throughout the hearing, but the assessment of whether a parent has demonstrated reasonable care is an objective test: see Re D supra. It has to be so, in order to give adequate protection to children.

[95]Miss Ball and Miss Boye remind me in their closing submissions that, when SF was told about the children staying at David Mason’s home, she apparently made no adverse comment and gave no warning to the mother. Furthermore, after SF’s visit, there was apparently no further action taken by the social services about this issue. I reject the suggestion that the fact that the arrangement for the children to stay with David Mason had come to the attention of the authorities in some way absolved the mother of the responsibility of deciding whether it was safe for the children to stay there. The children continued to visit and stay with David Mason for eighteen months before W went to live with him. A reasonable parent should not have allowed this to happen. This mother’s learning disability may be one reason why she failed to stop this happening, but it was not the only reason. During that period, social services had very little involvement with the family. Since David Mason’s arrest, the mother has been confronted with the evidence of his actions on a number of occasions. She repeatedly refused to accept that her children had been abused. In her meeting with social worker BR and police officer SB on 10 September 2009, the mother said:

“I know for a fact they won’t do stuff to Dave for a start”

. In her interview with Clifford Robins, consultant psychologist, on 15 December 2009, she said:

“by the way the kids act at the moment, I don’t think, hand on heart, that he’s done anything to them and I truly believe that”

. By this stage, David Mason had pleaded guilty to over twenty counts of sexual abuse, including acts of abuse against her children. As late as 29 July 2010, when seen by another professional, the mother is recorded as saying:

“I don’t believe my children have been sexually abused as they would have told me about it”

. By this stage, the mother had had many conversations with a variety of professionals who had discussed with her the evidence that David Mason had abused the children. She consistently refused to accept that this had occurred and did not appreciate the possibility or nature of the risk.

[96]Much of the evidence has centred on the question whether X told the mother that David Mason had abused her, and if so, at what point. The local authority case is that the mother was told about the abuse by X at an early stage in the period when she was staying there, and it relies in particular on the following evidence. First, the mother met T1 at the school shortly after David Mason was arrested in July 2009. T1’s contemporaneous note includes the following passage:

“X stopped going to Dave’s flat when he had given her money and asked her to give him a “hand job” and touched her leg. Y at this time felt uneasy about going and Mum then stopped all the kids going there”

. In oral evidence, T1 confirmed that the words quoted in this note were the mother’s actual words and that she had read this note back to the mother who had then agreed that it was accurate. In cross-examination by Miss Hildyard, the mother said that it was not right that she had told T1 that X had told her that David Mason had asked her to give him a “hand job”. I did not believe her evidence on this point. Miss Platt and Miss Murkin submit that there is nothing in the note to indicate that X herself told her mother that this had happened. I regard that as fanciful and untenable. The local authority submits that the clear inference was that this incident had occurred some time earlier and that had certainly pre-dated the conversation between the mother and David Mason’s neighbour in July 2009. I take into account the mother’s learning disability and difficulty evaluating time and dates, but I unhesitatingly accept the local authority’s submission.

[97]Secondly, the local authority relies on a passage in the police interview with the mother on 21st September 2009, in which she said:

“X said something to me, but I didn’t know if to believe her at the time. She said something about him trying to touch her up but I didn’t know if to believe it or no at all, because I thought he was a nice guy and he was just a family friend, but I didn’t know his background or nothing, so I didn’t know if to believe her. And then a couple of months after that, after the kids stopped going up there, W phones me up and tells me to go up and see U (W’s boyfriend). So I go up to U’s, and then when I get up to U’s, Dave’s old neighbour… is up there as well, and she told me that Dave had been arrested that night and what he’s been arrested for.”

[98]Miss Platt rightly submits that this interview should not have been carried out by the police without the presence of an appropriate adult but having carefully listened to the recording of the interview I do not accept any suggestion that the officer was acting in some way oppressively. As Mr Kirk points out this is a passage of free narrative. Even allowing for the fact that the mother has difficulty assessing times and dates, it is clear that the mother was telling the police that X told her that David Mason had tried to touch her up some time before the neighbour told her he had been arrested. Later in the interview, the mother said that she believed that X was telling her the truth when she said that she had been touched up but that she did not think that “touching up” was an act of sexual abuse.

[99]In her oral evidence, mother denied that X had ever told her about men doing things to her. She said:

“she did shout something when she was in the living room and when I was in the kitchen. I asked her to repeat it because I didn’t hear it, but she wouldn’t.”

The mother repeated this account at several points in her oral evidence. Making all allowances for her learning disability and the care which the court must exercise when considering her evidence, I found evidence on this point wholly unconvincing. I find that she has lied about it, pretending that she did not hear what it was that X had said. I find that X did tell her that David Mason had touched her but that she refused to accept it. In reaching that finding, I remind myself that X’s account in interview must be treated with very great caution, and that W’s evidence is unreliable for the reasons set out above. But I find that the mother was telling the truth to T1 and to the police officer. As to when the conversation with X took place, if it occurred before W went to live with David Mason (as W herself said to the police) the extent of the mother’s failure to protect would be very great. But in view of the mother’s difficulties in understanding time and dates, and the unreliability of W as a witness, I cannot reach any clear conclusion as to when the conversation with X took place. I am therefore unable to find that the mother allowed the children to stay with David Mason after X had told her that she had been sexually abused by him. I do, however, reach the clear conclusion that X did tell her mother on a date some months before July 2009. Furthermore, in view of the mother’s persistent denials until recently that David Mason had abused any of the children, I find that she did not believe X. In addition, although not a point specifically made by the local authority, I find that she told no one in social services or elsewhere about what X had said until after Mason was arrested.

[100]The extent of her inability to protect the children when dealing with cunning and determined paedophiles such as David Mason was laid bare in a striking passage during Mr Kirk’s cross examination. I quote from the note of that evidence repeated in the local authority’s final submissions, which accord substantially with my own note. “Q. I am wondering why you didn’t put your foot down and say ‘I want them back’.? A I tried to but Dave was persuasive and he wouldn’t listen. Q. Were you worried about her staying overnight? A. I was, yes, being with him in the house overnight. Q. What were you worried about? A. We hadn’t met him long. Even though we’d built up a friendship, I didn’t know him, nor did X or the others. My concern was him telling me on the phone he would walk her home and be persuasive on the phone and getting me to say “yes” to her staying there. In the back of my mind I wasn’t happy about it. He was a lot older and he could have done anything. Q. What could he have done? A. He could have touched her up, or something Q. You recall this incident with Dave on the telephone being persuasive, laying the law down his end, you being surprised and worried? You didn’t know much about him, worried too that he might possibly might want to try and touch her up? A. Yes that’s right Q. [Judge] So did the thought cross your mind at that point when he was persuading you over the phone? A. It did go across my mind, yes Q, During the phone call? A. Yes Q. [AK QC] I know none of us are brilliant at dates and it’s difficult at looking back, isn’t it, to try and get accurate dates in our minds? This phone call, that incident, was it the first time that X had stayed overnight? A. That was, yes.” Q, During the phone call?

A. Yes

[101]On the day after Mr Kirk’s cross examination, the mother said in evidence that she had made a mistake during that part of his questioning and that it had been W, not X, whom David Mason had persuaded her to allow to stay in that way. I did not believe the mother was telling me the truth when she sought to correct her evidence on that point. Her naive and trusting character was evident in other parts of the evidence, for example her account of how David Mason had brought expensive presents for X and Y; of how X and Y would not have allowed David Mason to touch them “because they are not the type of children to do that”; her comment that she was in a way glad that Y had insisted that nothing had happened to him because she tended to believe him; and her understandable but unrealistic insistence that Z had not been abused.

[102]I accept that it would have been reasonable for the mother to feel reassured that social worker ES, and police officer, SB had visited David Mason’s home prior to W moving to live there and raised no objection. She would have been entitled to assume that the local authority, by facilitating the move, and taking steps to assist David Mason, for example by endorsing the transfer of W’s child benefit into his name, was indicating that there was no reason to be concerned. In my judgment however, the grievous failings of the local authority in this case do not absolve the mother of responsibility for her failure to protect the children. By the time W went to live with David Mason, she and the other children had been visiting and staying with David Mason regularly for eighteen months, and, as I have found, in the case of X and Y, subjected by him to serious sexual abuse.

[103]The local authority seeks to support the submission of failure to protect by reference to the events of March 2009. For reasons explained above, no finding is now sought against IR in respect of that matter, but the local authority invites the court to find that, irrespective of the truth of the allegation against IR, the mother was culpable for failing to take any or any appropriate action when she was told of the allegation. It seems to me, however, that the local authority’s case on this point is heavily dependent on W’s evidence. Once that is disregarded, as it must be, the local authority falls back on inferences from comments made by the mother to T2 at the school and in her statement. Without going into full details, I am not persuaded that the evidence is sufficiently strong to make a finding against the mother on this issue.

[104]At this point, it is convenient to deal with a further point on which the local authority has relied concerning the mother’s relationship with IR. When the children were returned home in September 2009, the terms of the written agreement signed by the mother included restrictions on IR’s contact with the children. A few days later, IR was found at the home in circumstances which were considered by the local authority to amount to a clear breach of the agreement. The relevant clause read:

“IR’s current level of contact with the children will not increase any more than the current amount of Friday to Sunday evening every other weekend”

. The local authority submits that this meant that IR was only to be allowed contact at weekends between Friday and Sunday evening, but the mother says that she thought it meant that IR should not be present for a longer period than two evenings every other weekend. In my judgment, the drafting of the clause lacked clarity, and furthermore I am not satisfied that sufficient regard was paid to the mother’s learning disability when seeking to explain the terms of the agreement. There was some suggestion that the children had alleged that IR had been present for longer than the mother had asserted, but the evidence on this point is also far from clear. I therefore do not accept that there was a breach of the agreement which amounted to a further failure to protect the children.

[105]Looking at the evidence as a whole, however, I am satisfied that the mother failed to protect her children from sexual abuse by David Mason, had an insufficient understanding of what is meant by “sexual abuse”, and displayed a vulnerability and naivety when confronted with situations where her responsibilities as a mother required her to take action to protect her children. A reasonable mother would not have allowed her children to stay on a regular basis with a single fifty-year-old man about whom she knew nothing. A reasonable mother would not have allowed herself to be persuaded by David Mason to allow this to happen in the way the mother described in evidence. A reasonable mother would have been more alert to the dangers and less willing to assume that nothing wrong was happening because, had it been, the children would have told her. I recognise that these failings may to a considerable extent be attributable to her learning disability, but in my judgment that does not permit the court to say that her behaviour was not unreasonable. In those circumstances, I find that the mother’s failure to protect the children in this case is sufficient to satisfy the threshold criteria under section 31. As I indicated to Miss Platt during final submissions, however, the fact that the threshold is crossed in this respect does not necessarily mean that nothing can be done to address the mother’s difficulties in appreciating risk and protecting her children. It does not necessarily mean that the children must be permanently removed from her care. I shall return to this point later in the judgment.

ALLEGATIONS CONCERNING F

[106]It is convenient to deal with the issues concerning F raised by the local authority at the same time as the findings which the mother invites the court to make against him. The findings sought are summarised at paragraphs 69 (10) to (12) and 71 above. I propose to deal with all the issues concerning F under the following headings:(1) whether F was violent to the mother and the children;

(2) whether F took the mother and the children to Birmingham and deserted her there;

(3) the events of 2 June 2004, including the question raised by the local authority whether the mother failed to support X in pursuing her complaint against F; and

(4) whether the mother, as alleged by the local authority, maintained an ongoing association with F despite advice from social services that he posed a risk to her and the children.

[107]Before dealing with these issues there are two preliminary points which need to be made. First, the issues between the mother and F are particularly difficult to analyse because of the problems identified above arising out of their respective learning disabilities and the general problems concerning their reliability as witnesses. Secondly, the court has not been asked to make any findings in respect of the incident in November 2006 in which the mother alleges that she was forced by F to have sexual intercourse in public. With hindsight, it might have been better for this incident to have been fully ventilated before me, but no party, for their own reasons, has invited the court to investigate the incident. Had they done so, it might have assisted the court in weighing up where the truth lies on other issues between the mother and F. For whatever reason, the allegation has not been pursued and accordingly I accept the submission made by Miss Hildyard and Miss Watson that this court, and any further assessments, must proceed on the basis that the alleged incident did not happen. Similarly, there is a reference in the papers to an incident when F was allegedly stopped with a young woman in his car. This allegation is also denied, it has not been pursued and must therefore be disregarded by the court and those professionals entrusted with the task of carrying out further assessments.

Was F violent to the mother and children?

[108]In her oral evidence, the mother described F as supportive and loving during their relationship. She said that it was only the difficulties over the children that caused problems between them, and led him to be aggressive and threatening and on occasions violent. In evidence, she described how he had intervened when she was struggling to control the children’s behaviour and how on occasions he had physically chastised the children. She described how he had slapped X across the face and legs and W on the legs and arms. Asked in cross-examination how often he had chastised the children in this way, she said it was more than ten times “but not much more”. She said that on one occasion he had threatened W with a belt, at which point she had intervened and he had struck her on the arm. Apart from that incident, he had only assaulted her on one occasion, around Christmas 2002 when they were having an argument because she thought he was having an affair and, according to the mother, he had pushed and slapped her, causing her to fall.

[109]In his evidence, F said that he had smacked the children five or six times. Despite his problems with memory, he was able to describe how he had intervened when the children were fighting amongst themselves and not obeying their mother. “I shouted at them to stop it, saying ‘you sit there and you sit there’. One day a fight occurred between V and W and I had to get them off each other and I smacked V on the leg and told him to sit down. I also smacked W and told her to go upstairs”. F said that he never took a belt to W and “did not think” that he had smacked X on the face. He wished that he did not smack the children “because it was obviously wrong”. In their closing submissions Miss Hildyard and Miss Watson submit that, whilst it is clear that F used inappropriate physical chastisement in an effort to discipline the older children, the fact that he accepted in his evidence that it was wrong to hit them at all shows some insight and acknowledgment of his actions. They further submit that the mother’s allegations that F had threatened W with a belt and that she had got “caught in the crossfire” during the incident was unreliable because it had not been mentioned before the mother’s final statement.

[110]Once again, I take into account the learning difficulties suffered by both the mother and F. I find, on balance, that F did, on occasions, excessively chastise the children. I find that he slapped V, W and X on the legs and that on at least one occasion he slapped X across the face. I am not persuaded that he ever took a belt to W, or threatened her with a belt, but I do find that the mother did on one occasion intervene when he was chastising W and that she sustained some sort of minor injury in the scuffle. I also accept the mother’s account of how F assaulted her during an argument around Christmas 2002. I accept that F regrets his over-chastisement of the children, but, whilst this is to his credit, the fact is that he did act at times in a way which was unreasonable and contrary to their interests.

The Birmingham incident

[111]The mother has given a detailed account of how F took her and the children to Birmingham shortly before Z was born and then abandoned them there. She describes how he persuaded her to move to Birmingham and how they drove up to that city in two vehicles, one a car driven by F containing herself and X, the other a van driven by a friend of F’s called Dominic containing V, Y, and the mother’s furniture. The mother states that W did not move to Birmingham but rather stayed with her grandparents (a point that was corroborated by W in her police interview). On the way up, Dominic’s van was stopped by the police because it had no valid tax disc or insurance. The mother also stated that F had told her during the journey to Birmingham that he was intending to return to Kent to live with another woman. She said that she had thought they were moving to Birmingham “to build a life together” and she was upset and annoyed. She described how on arrival they went to the address where they were going to live which she is no longer able to pinpoint. She described that F showed her around Birmingham but had then left. She said that shortly afterwards she had started having contractions and was admitted to hospital in Birmingham. Her hospital records had been produced confirming that she was indeed admitted to a hospital in that city on 2nd July 2003. There are a number of comments in the medical notes concerning the arrangements for looking after the children during the mother’s admission. For example, on the day of admission:

“phone call from the ex-partner ([F’s name]), says there is a friend of his called Dominic coming up to collect the children. I have told him that social services are coming to collect the children, he said not to bother them as Dominic would collect them.”

A further note states: [the mother] very tearful after receiving a phone call from her sister. States that she has been informed by her sister that her partner F has moved back down to Kent and is seeing another woman. [The mother] only moved to Birmingham on Monday (to be with F).” Subsequently, according to the mother, Dominic duly drove the children back to Kent. The mother says that she followed shortly afterwards, and the discharge note on the hospital records states:

“03.07.03 - [the mother] has been discharged from hospital and she states she is going back to Kent to stay with her parents”

. The mother states that her furniture was never returned and she believes that it was left in the van in which it was subsequently crushed.

[112]The amount of detail in this account is significant, particularly in light of the mother’s learning disability, and as demonstrated above it is corroborated to some extent by contemporaneous medical records. On behalf of F, Miss Hildyard and Miss Watson identify a number of inconsistencies in the mother’s various versions of this account, but, in my judgment, the overall level of consistency in her various accounts is relatively high. In stark contrast, F has no memory of the incident at all. He denies taking the mother to Birmingham and denies having a friend called Dominic. He said in evidence that, as a result of an incident that had occurred some years previously, it was not safe for him to return to live in Birmingham, his home town, which he only visits now and again for short periods.

[113]I accept the mother’s account about the Birmingham incident. In my judgment, it demonstrates a degree of callousness in F’s character. The episode is further evidence of the mother’s gullible and naïve nature which has led her into difficult and disadvantageous situations. It shows that F, like others, has been able to manipulate and exploit her feelings for him. Miss Hildyard and Miss Watson submit that:

“in any event whilst the events in Birmingham may be said to demonstrate a less than caring attitude, even on the mother’s case they lived together for some period after this and maintained some relationship until November 2006 during which she continued to love him.”

Whilst this is true, the fact that they did resume their relationship is yet further evidence of the mother’s gullible and naïve nature and F’s capacity to exploit it.

The 2nd June 2004 incident

[114]The events of 2nd June 2004 are summarised at paragraphs 12 and 13 above. Miss Platt and Miss Murkin invite me to find that, on that date, “F hit X or otherwise assaulted her at a time when the mother was out, and the children were being supervised by a neighbour”. I am not prepared to make that finding. There is no clear account from X about what happened on that day, and in any event X is acknowledged to be an unreliable witness. The mother has also given inconsistent accounts of what happened that day and the fact that such inconsistency may be explained by her learning disability does not make her evidence any more reliable. In their final submissions, Miss Platt and Miss Murkin make a somewhat more limited submission:

“Whilst it is difficult to know the exact details of the events of 2 June 2004, there was a serious event between F and X in the family home such that she disappeared for some time, was very distressed on her return and that the police arrested him and he spent the night in the cells.”

X may well have been distressed during the incident but it does not follow that the reason for her distress was because F had assaulted her. I agree with Miss Hildyard and Miss Watson no findings against F can properly be made in relation to this incident, and accordingly I proceed on the basis that F did not assault X on 2nd June 2004.

[115]The local authority, however, relies on this incident for different reason. Mr Kirk and Miss Morris submit that, when X alleged that F had physically assaulted her, the mother did not properly support X then aged 9 in pursuing her complaint. The mother said on more than one occasion in her evidence that it had been X’s decision to drop her allegation. At one point, in answer to a question from me, she said:

“In my own mind I would have liked her to take it a bit further, but X made up her mind that she didn’t want to take it further.”

The reason the mother gave for X’s decision was that she was scared of F. I agree with the local authority that, faced with a child who feared further violence from F, the mother supported X’s decision not to proceed. Furthermore, it is concerning that the mother was willing to continue her association with F after this incident. I accept the local authority’s submission that the mother failed to give X proper support during this incident, and this finding is yet further evidence of her inability to protect her children.

Ongoing association between the mother and F

[116]The local authority further submits that the mother maintained an ongoing association with F despite advice from social services that he posed a risk to her and the children. There is plenty of evidence to support this submission. The mother has repeatedly said that she wanted the relationship to continue. For example, in February 2006, she told a social worker, LD, that she still loved F, did not want to end the relationship and that the local authority was putting a lot of pressure on her to end it. In a meeting around the same time, the mother said a similar thing:

“she indicated that she had not wished to end the relationship with F, and that she had been forced to do this because of all the pressure from social services, police and the school. [The mother] informed the meeting that she still loved F but that she could not have him living with her because everyone was against her remaining involved with him. According to [the mother] ‘all was well’ before agencies started to interfere with her and her family.”

There are a number of other recordings of the mother making similar comments. In her oral evidence (in chief) she confirmed that the local authority had thought that she shouldn’t go on seeing F but that she had not agreed with that at the time. In cross-examination by Miss Hildyard, she said that she and F stayed friends until November 2006 “for Z’s sake”. She accepted that they had had sexual intercourse on occasions but claimed that this had been at F’s instigation. She claimed that F had borrowed money from her regularly, a fact which F accepts although he insisted that the amounts borrowed were less than the mother claimed and that he had repaid her.

[117]I find that the mother did continue her relationship with F up to November 2006 because she loved him and needed him. I find that he was less attached to her than she to him, that he took the opportunity to have sexual intercourse with her, an opportunity afforded by her emotional dependence on him, and that he borrowed money from her which, on occasions, he failed to repay. I do accept that, for both of them, their joint parenthood of Z was one reason why they continued a relationship. I accept that F wanted to see his daughter, and I do not accept submissions made on the mother’s behalf that he failed to show concern for Z’s welfare. I find that the mother wanted him to have a relationship with Z. In cross-examination, she agreed that he was proud of Z and loving towards her. I find that the mother wanted Z’s relationship with F to continue, partly because she thought it was right for Z, but also because it was a way of keeping alive her own relationship with him. At times, she went along with the local authority’s thinking - for example, by instructing a solicitor to send letters to F - but I find that she was wholly inconsistent in her attitude towards him. I find that she did not accept the local authority’s concerns. This was yet another example of her inability to prioritise and protect her children.

NEGLECT

[118]I turn finally to the additional ground relied on by the local authority, namely that the mother has a long history of poor parenting. I have listed the detailed assertions which the local authority makes under this heading at paragraph 69 (14) to (16). As pleaded by the local authority, there is considerable overlap with the aspects of parenting already considered in particular the mother’s incapacity to protect the children. The further allegations not considered so far fall under two separate headings(1) allegations of neglect (i.e. about the physical condition of the children and that the house was unclean and untidy) and

(2) the allegation that the mother failed to control the children. It will, I hope, be helpful if I deal with these two allegations under separate headings.

[119]So far as neglect is concerned, there is a good deal of evidence that the mother struggled on occasions in the past to sustain adequate levels of cleanliness and hygiene, and as a consequence the children were often found to be in a state of neglect at school, with the result they were subjected to adverse comments from friends. Equally, there is plenty of evidence that the mother’s home was dirty, untidy and chaotic. I have set out the evidence at some length in summarising the history and do not repeat it here. It should be noted, however, that the allegations are largely historic. There is little if any evidence in the papers that the concerns about cleanliness and hygiene were at a significant level in 2009. Further, there are certain features commonly found in neglect cases that are not present here. There is, for example, little evidence that the children were hungry or underfed. There is also little evidence about concerns over school attendance. There is no suggestion that the mother regularly failed to keep medical appointments for the children. In addition, there is evidence that mother was able to make improvements in the quality of her parenting of the children when given assistance by the local authority family support workers. Admittedly, that improvement was not consistent and not always sustained, but it is rightly pointed out by Miss Platt and Miss Murkin that it was sufficient to lead the local authority to close its files on more than one occasion. It is, of course, right, as I shall make clear below, that the local authority demonstrated a serious lack of judgment in its assessment in the level of risk facing this family but those errors arose in the areas of sexual abuse, and the mother’s capacity to protect the children from such abuse, rather than neglect.

[120]I find that the mother struggled for a number of years to provide the children with a consistent and acceptable standard of physical care. In particular, the children were often dirty and unkempt, and the house was unclean and chaotic. By itself, this would not be sufficient to satisfy the threshold condition under s. 31, but of course the court must consider all the evidence together. The history of neglect is a factor in this case, but it is by no means the most significant defect in the mother’s parenting.

FAILURE TO CONTROL THE CHILDREN

[121]I take a more serious view of the second aspect of the allegations of poor parenting, namely the mother’s capacity to control the children. Indeed, in my judgment, this is a most important aspect of the case. There is considerable evidence that the mother has a chronic incapacity to control her children. On this point, I accept the evidence of F that the children, especially V and W but also X and Y, paid no attention to the mother’s attempts to manage their behaviour, persisted in their unruly conduct, and indeed assaulted her on a number of occasions, a fact which the mother herself accepts. She accepts she was unable to stop the children fighting. She accepts that V and W were forging her signature. Indeed, she had particular difficulty coping with V and W who did not get on with each other, were regularly fighting, so that in the end she was simply unable to control their behaviour. This factor was a major reason for W’s decision to move to live with David Mason. When asked why she did not prevent W from moving to live with David Mason, the mother said that she could not stop her doing so – “she didn’t listen to what I said… I tried to stop her but she was beyond my control.”

[122]There is no evidence that the mother subsequently acquired the capacity to control the children. On the contrary, I am satisfied that this lack of control continued up to the start of these proceedings. No doubt the mother’s home became slightly less unruly when W moved out, and it seems that V has become less difficult now that he has his own girlfriend, but in my judgment, the mother’s incapacity to control her children’s behaviour is a core feature of her personality. As her children get older, she simply cannot manage them. I accept of course that her learning disability plays a part in this, but, looked at objectively, this mother lacks the capacity to manage the behaviour of her children. In my judgment, this is a key factor in her historic and tragic failure to protect her children from sexual abuse.

SUMMARY OF FINDINGS

[123]In summary, therefore, the findings I make in this case are as follows:(1) X, Y and Z were sexually abused by David Mason over a prolonged period.

(2) Despite being confronted with the evidence that this abuse has occurred, the mother has refused, until recently, to accept that X and Y were abused, and still refuses to accept that Z was abused.

(3) The mother allowed W, X and Y to stay overnight with David Mason on a regular basis. A reasonable parent would never have allowed that to happen.

(4) On a date unknown but some time before July 2009, X told the mother that she had been sexually abused by David Mason. The mother refused to believe her and failed to tell anyone about the allegation until after Mason had been arrested.

(5) On occasions when he was living with the family, F over-chastised W, X and Y. On one occasion, he slapped X across the face. On two occasions, he assaulted the mother.

(6) In June/July 2003, shortly before Z was born, F took the mother and V, X and Y to Birmingham, and abandoned them there.

(7) On 2nd June 2004, X alleged that F had assaulted X. The court does not make a finding that this assault did occur, but finds that the mother failed to give proper support to X in pursuing the complaint.

(8) The mother continued her association with F despite advice from the local authority that he posed a risk to her and the children.

(9) The mother struggled for a number of years to provide a consistent and adequate level of physical care for the children.

(10) The mother has a chronic inability to control her children. V, W, X and Y routinely paid no attention to her attempts to manage their behaviour, persisted in fighting and other unruly conduct, and on occasions assaulted her.

[124]I emphasise that no findings are made against IR, and accept the submission made by Miss Delahunty and Mr Poole that it is to be assumed that the allegations made against him are untrue. The local authority must ensure that this is properly recorded. Miss Delahunty has told me that she and Mr. Kirk are endeavouring to agree an appropriate process.

[125]The fact that the threshold criteria under s.31 are satisfied is, however, only the first stage in these proceedings. Before the court can make a final decision about the future of X, Y and Z, there must be comprehensive assessments both of their individual needs and of the capacity of the mother, supported by IR, to care for them. The assessments of the mother must include a thorough appraisal of whether she can acquire the capacity to protect the children, and crucially must be carried out having due regard to her learning disability. In addition, there must be a proper assessment of F to see what role, if any, he should play in Z’s life, and that assessment must have proper regard to his disabilities, which include not only his learning disability but also significant physical problems.

[126]For the reasons set out above, the test of whether the s.31 (2) threshold is crossed is an objective one because of the need to ensure that children are protected. But decisions about the children’s future must only be taken when the court has all the necessary information. It is axiomatic that the best person to bring up a child is the natural parent. It is in the interests of the children that the court should only make orders for their permanent removal from the natural family if it concludes that such a course is necessary for their welfare. In the case of disabled parents, the court and the professionals who advise it, must ensure that they are given a reasonable opportunity, consistent with the overall welfare of the children, to overcome the disadvantages attributable to their disabilities. To do otherwise would be discriminatory and morally repugnant. At the directions hearing that will follow shortly after the handing down of this judgment, I shall invite the parties to identify what assessments are necessary in this case. I am pleased to see from the note prepared by Mr. Kirk and Miss Morris dated 16th February 2011 that the local authority has already started work on planning for those assessments, and that the mother has, at last, been referred to the adult learning disabilities team.

WIDER ISSUES

[127]It is not uncommon for a complex children’s case in the High Court to expose wider issues that go beyond the specific facts of the individual case. The wider issues that have been exposed in this case are, however, unusually extensive and troubling.

[128]As I observed to counsel at several points, the hearing that I have conducted was a fact-finding hearing in care proceedings, not a judicial enquiry or a serious case review. I do, however, consider it appropriate to identify those wider issues that have emerged, in the hope that lessons can be learned and professional practice improved for the benefit of other families in the future

[129]The specific issues that I shall now address are:(1) the policy and practice of this local authority towards parents with learning difficulties:

(2) the local authority’s failure to respond to information concerning David Mathews/Mason and the children;

(3) the failure of the local authority to carry out a fostering assessment when W went to live with David Mason;

(4) the local authority’s approach to W’s “placement” with U;

(5) the deficiencies in the local authority’s record-keeping, and in particular the problems of its computerised records, and

(6) the local authority’s approach to the disclosure of documents in these proceedings.

[130]In preparing these observations, I have been greatly assisted by all counsel, in particular Miss Ball, ably assisted by Miss Boye, on behalf of the guardian, who at my invitation have taken the principal role of identifying the local authority’s errors and omissions, and setting them in the wider context of national social work practice, and Mr. Kirk and Miss Morris, who have articulated the local authority’s response. In addition, the local authority has very properly filed evidence from senior employees addressing these wider issues – specifically, from the Leader of the Litigation and Social Work Group of the authority’s Directorate of Law and Governance, and the Director of the Specialist Children’s Services Group.

[131]Before considering the specific issues, I wish to emphasise that I am only too aware of the extreme difficulties faced by Kent County Council, and other local authorities, in the current economic climate. Social services have for many years been delivered with limited resources. Furthermore, I know that social workers often feel undervalued by courts, not to mention the media and general public. For that reason it is important that courts should recognise good social work as well as poor practice. It is a matter of regret that it is the deficiencies in Kent’s practice that have attracted attention in this case.

Parents with learning difficulties

[132]The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice. This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society. One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully. Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family.

[133]To meet the particular difficulties encountered in identifying and helping those with a learning disability in the family, the government published in 2007 “Good Practice Guidance on Working with Parents with a Learning Disability”. In their closing submissions, Miss Ball and Miss Boye contended that such good practice guidance is required because there is little evidence of effective joint working between adult and children’s services and practitioners in each area rarely have a good working knowledge of the policy and legislative framework within which the other is working. They submitted that local authorities frequently do not take account of the fact that, if children are to be enabled to remain in their own families, a specialist approach to a parent with a learning disability is absolutely central to any work that is done, any protection which is offered and any hope of keeping the family together. The 2007 guidance points out, inter alia, that a specialised response is often required when working with families where the parent has a learning disability; that key features of good practice in working with parents with a learning disability include(a) accessible and clear information,

(b) clear and co-ordinated referral and assessment procedures,

(d) long-term support where necessary, and

(e) access to independent advocacy; that people may misunderstand or misinterpret what a professional is telling them so that it is important to check what someone understands, and to avoid blaming them for getting the wrong message; that adult and children’s services and health and social care should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children; and that, if a referral is made to children’s services and then it becomes apparent that a parent has a learning disability, a referral should also be made to adult learning disability services. The guidance also stresses that close attention should be paid to the parent’s access needs, which may include putting written material into an accessible format, avoiding the use of jargon, taking more time to explain things, and being prepared to tell parents things more than once.

[134]The Guidance contains much more important advice, but I have selected the passages cited above because it is manifestly clear that, in this case, Kent County Council failed to comply with those passages of the Guidance on many occasions. That is hardly surprising, because the clear impression I formed from the evidence of the social workers called to give evidence in the hearing is that they were completely unfamiliar with the Guidance. If there are local learning disability protocols in existence in Kent, none of the social workers called in this case was aware of them. SW, who was district manager of children’s services in the area where the family lived, had not read the Guidance. She said in evidence that she was prepared to trust in a good social worker’s inherent ability to recognise when a learning disability issue arose and refer the matter to the learning disability team. This is exactly the sort of complacent attitude that the Guidance was designed to address. In the light of Mr Robins’ report, it is now clear that the mother suffers from a learning disability. In the thousands of pages of social service records devoted to this family, there are hardly any references to that fact. For example, there is nothing to indicate that the workers who dealt with the family at the time of the move into bed and breakfast accommodation in November 2006, or with W’s move to live with David Mason in July 2008, were aware of the mother’s difficulties. It is right to acknowledge that SF, a junior worker employed by ARC, noticed and noted that the mother presented as having learning disabilities. That makes it all the more striking that so many of her senior colleagues failed to notice or note it. T3, the teacher who had known the family for many years, specifically referred to the mother’s disability at the strategy meeting on 10th September 2009. The social worker, BR, then working with the family attended that meeting. Later that day, a discussion took place between BR, and the mother in which the mother was persuaded to allow the children to be voluntarily accommodated. There is no indication that any steps were taken at that crucial meeting to ensure that the mother was given proper assistance before agreeing that her children should be taken into care. In his submissions in response to Miss Ball, Mr Kirk cites the package of intensive support offered to the family, and to the statement filed by LD, senior social worker involved with the family from 2004 until the move in November 2006, in which she refers to the mother as someone who since 2001 has presented as a vulnerable single parent who experienced significant difficulties in meeting the day to day needs of her children. But strikingly there is no reference to the mother’s learning disability in that evidence. As Mr. Kirk and Miss Morris concede, given her evident learning difficulties, a referral to the adult learning disabilities team should have been made at an early stage in social services’ involvement with the family.

[135]Kent County Council needs urgently to review its practice concerning parents with learning disabilities. All social workers, and family support workers, working with children and families need to be trained to recognise and deal with parents with learning disabilities. The Guidance issued by central government needs to be followed. In a statement filed in these proceedings, the Director of the Specialist Children’s Services Group in the local authority, tells me that work has begun on developing a policy in relation to learning difficulties, which will be completed in 2011, and that, in the meantime, she will ensure that all staff are reminded of the Guidance and of the need to seek appropriate specialist assessments. I would like to be kept informed of the progress of this work. In addition, I shall be carefully scrutinising the future work carried out with the mother and F in the remainder of these proceedings to ensure that the Guidance is followed appropriately.

Failures to respond to information concerning David Mason and the children

[136]The detailed summary of the background set out at the start of this judgment demonstrates a catalogue of failure by the local authority to take steps which might have protected the family and prevented the abuse of the children in this family by David Mason. The specific criticisms are as follows.(1) Having learned that the children of a woman whom she recognised to be suffering from a learning disability were staying with a single man, SF failed to ensure that this manifestly worrying information was properly investigated.

(2) The social services in the area from which the family had moved should have received the reports from SF and, had they been read by a social worker familiar with the history, it should have been realised that the children were in danger.

(3) The social services in the area to which the family had moved failed to respond appropriately to the referral from the domestic violence unit. Had they familiarised themselves with the history, and been made aware of the information given to SF about the children staying with “Dave Mathews”, it is inconceivable that the case would not have been taken up. As Mr. Kirk concedes, this problem would not have arisen if there had been a proper transfer summary from one area office to the other.

(4) Social services failed to respond appropriately to the referral from the school in June 2007 about W going to London with “Dave”. It seems that the social workers who received the referral failed to acquaint themselves with the family history, and were unaware of the information given to SF in January.

(5) When social worker ES and police officer SB visited “Dave Mathews” in July 2008 prior to W’s placement, they carried out only a perfunctory check of the accommodation, failed to take any steps to verify his identity, and failed to report or act on their shared sense of unease about the proposed placement.

[137]This series of errors and omissions is evidence of a serious lack of co-ordination amongst the various departments with Kent social services. Mr. Kirk submits that the level of cunning and deception shown by David Mason was such that it is doubtful whether any steps would have led to his identity being exposed until circumstances occurred that led to his fingerprints being taken. In their supplementary submissions, and subsequent note dated 16th February 2011, he and Miss Morris highlight the efforts he made to acquire a new identity, and submit that having succeeded in that aim, he was free to adopt a new life as Dave Mathews, working alongside children and caring for W when she fell out with her family. With respect, that submission misses the point. Irrespective of his identity, the mother should have been advised that these children should not have been visiting and staying with a single middle-aged man of whom she knew nothing, yet so far as I am aware this advice was never given. The local authority was in possession of the information, but so poor was the level of communication within the authority that the information was neither adequately shared nor acted upon.

[138]If this case is typical, Kent County Council needs urgently to review the way in which information it learns about vulnerable families in its area is shared amongst its various departments and offices to ensure that those families receive the help and protection they need.

The local authority’s failure to carry out a fostering assessment

[139]Following the visit of ES and SB to “Dave Mathews’” home, the local authority seems to have believed that it was the intention of W only to remain with him for a short period. To my mind, however, it was clearly appreciated by the local authority that there was a chance that she would stay there for a longer period. Indeed, it was accepted by ES that she should have made a reference for a full private fostering assessment, but failed to do so.

[140]The statutory provisions governing private fostering arrangements are set out in Part IX of the Children Act 1989. Section 66(1) provides that a “privately fostered child” means a child who is under the age of sixteen and who is cared for, and provided with accommodation in their own home by, someone other than(i) a parent of his;

(ii) a person who is not a parent of his but who has parental responsibility for him; or

(iii) a relative of his. However, under section 66(2), a child is not a privately fostered child if the person caring for and accommodating him (a) has done so for a period of less than 28 days; and (b) does not intend to do so for any longer period. Section 67(1) provides:

“it shall be the duty of every local authority to satisfy themselves that the welfare of children who are or are proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted and to secure that such advice is given to those caring for them as appears to the local authority to be needed”

. Under section 67(5), where a local authority are not satisfied that the welfare of a child who is or is proposed to be privately fostered within their area is being or will be satisfactorily safeguarded or promoted, they are under a mandatory duty to take steps to protect the child. Specifically, unless they consider that it would not be in the best interests of the child, they must take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by a parent or some other person with parental responsibility or a relative. In addition, the authority is under a duty to consider the extent to which they should exercise any of their functions under the Act.

[141]These statutory provisions are buttressed by further regulations made pursuant to powers granted by section 67 and 104 of, and paragraph 7 of schedule 82 to, the 1989 Act, namely, the Children (Private Arrangements for Fostering) Regulations 2005, SI 2005/1533. Regulation 4 specifies the action to be taken by a local authority on receipt of notification of a proposal to foster a child privately. Under regulation 4(1), “where a local authority have received notification under regulation 3 they must, for the purposes of discharging their duty under section 67(1) of the Act… arrange for an officer of the authority within seven working days to(a) visit the premises where it is proposed that the child will be cared for and accommodated;

(b) visit and speak to the proposed private foster carer and to all members of his household;

(d) speak to, and, if it is practicable to do so, visit every parent of or person with parental responsibility for the child; and

(e) establish such matters listed in Schedule 2 as appeared to the officer to be relevant”. Regulation 4(2) adds:

“having completed his functions under paragraph (1) the officer must make a written report to the local authority”

. The matters set out in Schedule 2 include, inter alia, the suitability of the proposed accommodation and the capacity of the proposed private foster carer to look after the child. Regulation 8 imposes a further mandatory obligation on each local authority to arrange for an officer to visit every child who is being fostered privately in their area at intervals at not more than six weeks in the first year of the arrangement and at intervals of not more than twelve weeks in any second or subsequent year: regulation 8(1). When carrying out a visit under this regulation, the officer must speak to the child alone unless he considers it inappropriate; regulation 8(3). In addition, the officer must establish such matters listed in schedule 3 for the regulation as appeared to him to be relevant. The list in schedule 3 is similar to that in schedule 2 and includes inter alia, the suitability of the accommodation and the capacity of the foster carer to look after the child.

[142]Under the Every Child Matters reforms, the government in 2005 published fresh guidance in this area, the Children Act 1989 Guidance for Private Fostering, and in addition National Minimum Standards for Private Fostering. Paragraph 4.1 of the Guidance provides:

“local authorities need to have in place and implement effectively procedures for determining the suitability of all aspects of a private fostering arrangement and for ascertaining the private foster carers, and their household and premises, provide an environment in which the child’s welfare will be safeguarded and promoted”

. Paragraph 4.2 provides inter alia:

“in order to assess the capacity of a proposed or actual private foster carer to look after a child… an assessment should be undertaken using the dimension headings of the Framework for the Assessment of Children in Need and their Families (2000) as a guide…. Depending on the circumstances of the child and the proposed or actual private foster carer, a more in-depth core assessment may also be required.”

Paragraph 4.3 adds inter alia:

“in assessing the capacity of the proposed or actual private foster carer to look after the child, local authorities should consult with appropriate agencies who may already be involved…”

The guidance makes specific reference to the suitability of the accommodation providing, inter alia, that “the assessment should also include the nature of living and sleeping facilities and the effect of possible overcrowding. Each privately fostered child must have his own bed, and the accommodation arrangements should reflect the child’s needs for privacy and space…”: regulation 4.46. Much further guidance is provided and, in conclusion, paragraph 4.53 provides: “having considered all aspects of the child’s needs and the capacity for private foster carer, the social worker will be able to make an assessment about the overall standard of care provided to the child”.

[143]The local authority performance of its duties under the statute and regulations is supported not only by this Guidance but also by the National Minimum Standards. These require, inter alia, that the local authority determines effectively the suitability of all aspects of a private fostering arrangement in accordance with the regulations; that the local authority provides advice and support to the parents of children who are privately fostered within their area as appears to the authority to be needed; and that the local authority has in place and implements effectively a system for monitoring the way in which it discharges its duties and functions in relation to private fostering.

[144]The local authority in this case manifestly failed to comply with its obligations under these provisions. The social worker fully appreciated that a fostering assessment was required but completely failed to make the necessary referral. There was no adequate supervision provided to the social worker to correct this very serious admission. What makes this breach of duty even more serious is that both ES and the police officer who visited David Mathews/Mason’s home were uneasy about the proposed foster placement. Manifestly the local authority failed to comply with the national minimum standards in several respects. It failed to respond effectively to the notification of the proposed placement of W with Mathews/Mason. It manifestly failed to determine effectively the suitability of the proposed private fostering arrangement in accordance with the regulations. It failed to give advice and support to the mother. Insofar as there is any system in place for this local authority to monitor the way in which it discharges its duties and functions in relation to private fostering, that system manifestly failed in this case.

[145]The consequences of this deplorable breach of duty are very serious. I respectfully disagree with the conclusion reached by SH in her internal review that, even if a private fostering assessment had been undertaken, the arrangement would not have been considered inappropriate or unsafe. I do not see how any reasonable social worker, entrusted with the task of carrying out the thorough assessment required in the regulations and having regard to the guidance, could have concluded that it was in W’s interests to be fostered by the man she thought was called “Dave Mathews”. If the local authority carried out its duties properly, it is possible that the truth about David Mason’s identity would have come to light sooner. As it is, his true identity remained a secret for another year, during which time he was free to commit acts of sexual abuse of children, including the children in this family.

The local authority’s approach to W’s “placement” with U

[146]I have already described the circumstances in which W, having left “Dave Mathews”, went to live with her boyfriend U (see paragraph 38 above). I acknowledge that this is an issue which does not directly concern the fact-finding exercise in which I have been involved, but I expressed anxiety when it was mentioned in the evidence, and Miss Ball on behalf of the guardian has understandably made submissions about it. I regret that I may have failed to alert Mr. Kirk to this issue until a late stage, but I am grateful to him for a last-minute email setting out the local authority’s response. He submits that the local authority witnesses, including SW, the district manager of children’s services in the area where the family lived after November 2006, voiced considerable reservations about this arrangement, but asserts that, given W’s determination to pursue her relationship with U, the authority was presented with a dilemma, the choices being to start care proceedings and move her completely away from the area, to seek to involve the wardship jurisdiction to attempt to put an end to the association, or to assess and monitor the arrangement with their consent.

[147]I hesitate to pass comment on this issue, given that W is not the subject of these proceedings. But in view of the seriousness of the point, I feel it imperative to say that, in my judgment, the local authority manifestly reached the wrong conclusion about this matter. I have already referred to the detailed regulations, guidance and national standards governing private fostering arrangements. But to find the fundamental principle governing such placements, one need look no further than the formal notice of this placement served on the school by the local authority on 2nd July 2009, which states inter alia:

“Kent County Council Children’s Services has a duty to ensure that the welfare of any privately fostered child is satisfactorily safeguarded and promoted”

. In my judgment, W’s welfare was manifestly not being safeguarded and promoted when, as a 15-year-old from a troubled and vulnerable background, she was placed, following an assessment by the local authority, in a formally-approved “foster placement” with a 21-year-old man with a history of behavioural problems and self-harming with whom she was having an unlawful sexual relationship. The police and the courts would not have tolerated such an arrangement, and nor should social services. I understand the local authority’s hesitation about taking legal action, but the decision to approve the arrangement as a private fostering placement is, to my mind, incomprehensible.

The local authority’s record-keeping

[148]The procedures which Kent followed for making and keeping records about this family were seriously deficient, and greatly impeded the process of disclosure to which I refer below. The main problem was a computer system that, bluntly, was not fit for purpose. During the hearing, a number of social workers complained about the system, known as ICS, and latterly a statement was produced from a senior official in the authority, the Director of the Specialist Children’s Services Group, who gave details of the practical problems identified by workers who have used the ICS software. These include:(1) that it can be slow to operate or access;

(2) that is not regarded as user friendly;

(3) that it does not effectively provide summaries to enable a case history to be viewed at a glance;

(4) that it does not print out the full information contained on the screen; and

(5) (in my judgment, a crucial failing) that the maker of an individual record is not necessarily identified. In addition it is possible for anyone who is able to access the system to alter a record leaving no trace of the fact that a change had been made. This confirms what I was told by others during the hearing, that having been introduced in December 2007, the ICS system in Kent had to be discontinued for a period from April 2009. During that period, some records were stored on the old computer system, while others were stored in Word documents held on the G drive. In addition, there were paper files relating to the family. Clearly, those who were working with vulnerable families must have been severely hampered by these problems. It is noticeable that the period of particular difficulty included the time when W went to live with David Mason.

[149]The local authority’s record–keeping was described as “inadequate” (meaning it failed to meet minimum standards) in a very critical recent Ofsted inspection of safeguarding and looked after children services in Kent carried out in October 2010. Amongst the many criticisms made in the report, I note the following. “The ICS system is recognised as being ineffective in supporting the business processes of the organisation. Three disconnected systems, including ICS, are used in tandem to compensate. This results in generally poor recording and difficulties in obtaining and understanding case histories exacerbated by missing or poorly completed case chronologies which are only required to be complied in cases that are proceeding to court.” This is exactly what happened in the current case. There was no social work chronology on the files or the computer, and a retired social worker was engaged shortly before the hearing to compile one. Not surprisingly, it was incomplete and inadequate. In the course of the hearing, it emerged that the version of it in the possession of counsel for the local authority was different from the version disclosed to the other parties. The purpose of a social work chronology, which has been standard practice for a number of years, is to enable any social worker accessing the file to identify what the issues are in the family. This case was crying out for such a document. It is likely that, had a social work chronology been on file, some of the errors and omissions would have been avoided. It should also be noted that certain social services’ actions during this case have been inadequately recorded, and in some instances apparently not recorded at all. For example, the note in the computer record of the important visit to the home on 28th July 2009 (described at paragraph 44 above) is unsigned and anonymous, and the computerised record of the s 47 investigation started after the visit to the home on 28th September 2009 is incomplete. More worryingly, no record at all has been produced of the reasons for the decision taken by senior staff on 21st September 2009 to return the children, a decision taken without consulting the key workers and other professionals involved with the family, including the police.

[150]The statement of the Director of the Specialist Children’s Services Group exhibits a report by the local authority’s head of management information, who states that at national level the ICS system has been considered an inappropriate tool for social work practice and that, as a result, authorities including Kent are redesigning their information and recording systems. To that end, Kent has recently carried out an upgrade to the system, and has engaged an independent consultancy to review the system and its deployment by the authority.

[151]The problem with computerised local authority records clearly extends beyond Kent. As the hearing progressed, it became clear to me that the difficulties highlighted in this case would make the task of the children’s guardian much harder. The guardian is of course empowered by s.42 of the Children Act to inspect files held by the local authority relating to the child who is the subject of the proceedings. The files which guardian is entitled to inspect under this important statutory provision are not confined to those directly dealing with the children who are the subject of the proceedings, but extend to all information held by the local authority relating to the children: Re R (Care Proceedings: Disclosure)

[2000] 2 FLR 751

. Depending on the circumstances, such information might (as in this case) include files concerning siblings of the subject children, and sometimes extend to information in files concerning unrelated children. I became concerned that the exercise of this power was being undermined by the difficulties I was hearing about in this case. With my encouragement, Miss Ball and Miss Boye have attempted to find out the extent of concern about this issue, and have obtained a short report from Nagalro dated 4th February 2011, supported by over twenty emails from individual guardians recounting their experiences of this problem. In view of the length of this judgment, I do not propose to recite this information, beyond the following paragraph from the Nagalro report which summarises the situation:

“The advent of electronic records has immeasurably increased the difficulties for children’s’ guardians, and it is clear from members’ comments that the difficulties are so pervasive that records are looked at much less frequently and thoroughly if at all [my emphasis]. The main obstacles identified in feedback to Nagalro are the access to local authority computer systems, the problems of locating information once logged into the system, problems with copying records and the lack of support from Cafcass for this aspect of their performance of the task.”

[152]I am extremely grateful to Nagalro and the individual guardians for their comments. I do not intend that their response should go unheeded, and I invite Miss Ball to consider and advise as to what wider circulation it should have.

The local authority’s approach to disclosure

[153]As already described, (see paragraphs 61 to 65 above), the disclosure of documents by the local authority in this case occurred in a wholly unsatisfactory piecemeal and haphazard fashion.

[154]The legal principles and rules governing disclosure in care proceedings are well known, but can be summarised as follows:(1) It is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure: Practice Direction Case Management, 31 January 1995,

[1995] 1 FLR 457

(2) Standard disclosure requires a party to disclose only (a) the documents on which he relies; and (b) the documents which (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by relevant practice direction: Civil Procedure Rules, rule 31.6.

(3) The initial onus as to disclosure lies on the local authority which starts care proceedings in which it seeks to establish facts on which decisions about the children’s welfare will be taken. This requires the local authority actively to consider what relevant documents it possesses and whether or not there is any countervailing argument against disclosure, such as public interest immunity: see Re C (Expert Evidence: Disclosure: Practice)

[1995] 1 FLR 204

; Re R (Care: Disclosure: Nature of Proceedings)

[2002] 1 FLR 755

(4) In conducting the preparation for the hearing, the local authority has to carry out a proper examination of the background material, including the relevant files held in the social services department in order to comply with its obligations as to disclosure and to assist in the preparation of statements of evidence. This task can only be carried out by someone within the local authority who has a proper understanding of the relevant legal principles, the issues in the case, and the procedures of the court: see Re R(supra) at page 773H per Charles J. By reason of their respective training and experience, these matters are familiar to a litigation lawyer but not necessarily to a social worker: Re Rat page 774C.

(5) “It is not only the applicant local authority and their advisors who have duties in respect of the preparation of cases… all the respondents also have such duties. The guardian has access to the local authority’s files. However… this access does not mean that the other respondents should treat, or regard, the guardian as a bloodhound or a detective or otherwise rely on the guardian to take prior responsibility to see there has been full and proper preparation of evidence, disclosure and instructions to experts”: Re R at page 774 E-F.

(6) “All respondents and their advisors (a) have mirror duties and responsibilities to those… set out relating to the local authority in respect of their evidence; (b) should check the decisions made as to the experts to be instructed and the terms of those instructions and thus the input they want to have into those terms; (c) should consider whether it appears that the local authority have performed their duties in preparing the case and as to disclosure; (d) should consider what further information or material should be obtained; and (e) should pursue issues as to disclosure at interlocutory hearings if they have not been agreed.”: Re R at page 773G-H.

[155]Following criticisms made by me during the hearing about the local authority’s performance of its duties as to disclosure in this case, a statement was filed by the Leader of the Litigation and Social Welfare Group of the local authority’s Directorate of Law and Governance. In the statement, he makes the following points (inter alia): “the lawyer to whom the case is allocated will attend a legal planning meeting. Copies of any relevant child protection conference minutes, core assessments, and other reports or minutes will usually provided before that meeting ….[I]f a decision is taken to issue care proceedings, the lawyer will advise on what evidence should be filed, what further evidence should be sought, and what expert assessments will be required ….It is not usual for the Council’s lawyers to conduct an exhaustive examination of the social work records. The court will be aware of the various locations in which those records might be maintained, and will have seen how voluminous they can be …. I apologise if this is thought to be a contravention of Re R, but local authority lawyers have to perform a balancing act between the demands of case preparation and the need to ensure that every case allocated to them is given proper attention. That balancing act has been made significantly more difficult by the requirements placed on them by the Public Law Outline, the increase in the number of care proceedings following the Baby Peter case, and the growing pressure on local authority budgets”.

[156]I am in some sympathy with these points. I fully appreciate the pressures on all those who work for local authorities, including social workers and lawyers, as a result of apparently ever-increasing regulation coupled with apparently ever-reducing resources. The courts must be careful not to impose too onerous a burden on those acting for local authorities, and other parties, lest it becomes simply impossible for them to do their job. Nonetheless, it seems to me that the rationale behind Charles J’s approach is irrefutable. It is only the local authority lawyer who is professionally equipped to understand the issues before the court, and the principles and processes of disclosure. In each case, the local authority lawyer must, at an early stage, weigh up the task which confronts him to determine how to fulfil the local authority’s legal obligations as to disclosure. Put simply, he needs to know where the information is stored, whether it be on paper or electronically, and the type and volume of information involved. Once he or she has carried out that analysis, a plan needs to be drawn up to enable the local authority to comply with its obligations. In some cases, where the family involved has not hitherto been known to the local authority, the process of disclosure will be straightforward. In other cases, however, where the family has been known to the local authority for a longer period, or where the child protection issues involve a number of children and families, there may be very substantial records held by the local authority which have to be inspected, including on occasions files relating to children other than those who are the subject of the proceedings (for example, as occurred in this case, files relating to an older sibling). The process will then inevitably be more complex and the lawyer has no alternative other than to set sufficient time aside to go through that material to establish what has to be disclosed.

[157]This case illustrates all too clearly what can go wrong if this process is not followed. Through no fault of her own, junior counsel representing the local authority at the outset of the proceedings had an incomplete and inaccurate understanding of the information held by her client. She was therefore in no position to make an accurate assessment either as to the findings which it was appropriate for the local authority to invite the court to make or the strength of the evidence in support of those findings. When the extent of the lack of preparation and disclosure became clear, the local authority adopted the desperate remedy of disclosing all material to the respondents and abdicating to them responsibility for determining what was and was not relevant.

[158]On this point, there is no new lesson to be learnt over and above that derived from the decision of Charles J in Re R. Unless and until the rules are changed, or a higher court adopts a different approach, local authorities must comply with the duties as to disclosure set out above. I share the view of Charles J that the task of identifying relevant material needed for disclosure so as to deal with the issues of the case is a matter for the lawyer and not the social worker. This case illustrates the reason why. It seems that the lawyers had assumed that the social workers had identified and brought to their attention all relevant material. In fact, some significant documents had not been disclosed. Fortunately in this case that omission was corrected, albeit at considerable extra cost of time and possibly money. As a result, the court was eventually able to investigate the allegations against IR. As set out above, in the end those allegations were withdrawn. But suppose there had been substance to those allegations. The effect of the local authority’s failure to disclose the material would have been that those allegations went un-investigated. This demonstrates that circumstances may arise where a local authority’s failure to comply with its duties as to disclosure may jeopardise the safety and welfare of the very children whom the local authority and the court are supposed to protect.

FINAL OBSERVATIONS

[159]The Ofsted inspection carried out in October 2010, coinciding with the start of the fact-finding hearing in this case, concluded that the overall effectiveness of services in Kent to ensure that children and young people are safeguarded and protected is inadequate, and meaning that the service did not meet minimum requirements. The inspectors found that “serious deficiencies in the social care fieldwork service result in too many children being left without sufficient safeguards or adequate protection arrangements”. This case demonstrates that Ofsted’s assessment is correct. W, X, Y and Z are four of the children who have been left unprotected by the inadequacies of Kent social services. I hope that those with responsibility within the authority learn the lessons of this tragic story.

[160]In passing that judgment, I repeat that I am only too aware of the difficulty facing Kent, and other local authorities, with the squeeze on their resources. I am also aware that this case has highlighted concerns about the work of other agencies. There are lessons here for the court, the police, counsel, and politicians.

[161]The judge - In criticising others as I have done in this judgment, it would be hypocritical not to acknowledge that the court too has fallen short in some respects. In particular, if the court had had a stronger grasp of the detailed facts at an earlier stage, different decisions might have been made that would have ultimately saved time and avoided unnecessary delays. Somehow, more time needs to be made available to judges to pre-read cases before directions hearings in complex cases.

[162]Police – Earlier in this judgment, I expressed concern about the procedure for conducting a PNC check. It seems to me surprising that the person whose record is being checked is not as a matter of routine asked to show any identification. Had that been done in this case, it is possible that the police and social services suspicions about the man calling himself “David Mathews” might have been aroused. In addition, the conduct of the mother’s police interview was, in my judgment, seriously compromised by the failure to arrange for an appropriate adult to be present. The interviewing officer had been present at the meeting a few days earlier at which T3 had described the mother’s difficulties in terms that ought to have made it manifestly obvious that an appropriate adult should have been present during the interview, yet the officer indicated in evidence that she had not thought it necessary to make that arrangement. It may be that clearer guidance needs to be made available to officers entrusted with the responsibility of interviewing witnesses.

[163]Counsel - In a case involving a long history of social involvement recorded in a mass of documents stored in various places in what often appears to be a random order, it is absolutely essential that counsel for the local authority prepares a chronology setting out the history with page references so that the court can acquire a full understanding of the background. This was not done in this case until late in the hearing, after I had been complaining about the omission, and after one of the defence counsel (Miss Watson) had stepped into the breach and drawn up an outline chronology herself. I know that this might appear somewhat curmudgeonly and I am well aware of the pressures on counsel for the local authority. Nevertheless, I stress that this is a vital document, and its preparation should be a priority. It should also be emphasised that the social work chronology which is often (though not in this case) kept at the front of the social services record is not an adequate substitute for counsel’s chronology, although typically it will be of assistance to counsel in preparing the chronology for the hearing.

[164]Politicians - David Mason would not have been able to prey so devastatingly on this family had he not been able to obtain a new identity. One crucial step in achieving this was the acquisition of a new national insurance number. He was assisted in this by his Member of Parliament, to whom he gave an account of his background that she in turn repeated in a letter to the local authority director of housing. That account said, in short, that he was suffering from amnesia. It omitted, of course, any reference to his criminal record for sexual offences, or the fact that he was wanted for similar offences in Scotland. In that letter, the MP said that her office “has been trying extremely hard to ensure that he obtains a national insurance number”. The purpose of the letter (dated 20th November 2006) to the local authority director of housing was to obtain an extension of his temporary accommodation until the new number was available. That extension was granted. The temporary accommodation in which Mason was living was the bed and breakfast establishment into which the family in this case moved a few days later.

[165]It is not for this court to give guidance to Members of Parliament, but it may be that some thought needs to be given as to whether greater caution should be exercised before help of this sort is given to a constituent who seeks assistance in obtaining a new national insurance number.

[166]Despite the criticisms of the actions of agencies and professionals made above, we must not lose sight of the fact it is David Mason who was responsible for the dreadful abuse perpetrated on the children in this family. There will always be people who seek to commit wicked crimes on children. All professionals involved in child protection must seek to improve their practice to ensure that, as far as possible, children and vulnerable adults like this mother are protected from their predations.

order

(1) T2, community liaison manager at the M School attended by W, X and Y;

(2) T1, assistant SEN coordinator at the M School;

(3) Clifford Robins, consultant psychologist who carried out assessments of the mother and DA;

(4) T3, head teacher of the infants school attended by Z and previously a class teacher at another primary school attended by the four older children;

(5) ES, the social worker involved with the family between July 2008 (when W went to live with David Mason) and January 2009;

(6) SW, formerly district manager of children’s services in the area where the family lived after November 2006;

(7) SF, the social worker assistant working for ARC allocated to work with X in 2006-7;

(8) JC, the social worker allocated to the family in September 2009;

(9) LD, a senior social worker involved with the family from 2004 until the move in November 2006;

(10) W;

(11) SB, the police officer involved at the time of D’s move to live with David Mason and who later conducted the ABE interviews of W and X in 2009;

(12) AL, a principal social worker previously overseeing ES;

(13) the mother; and

(14) F.