M (Children), Re [2013] EWHC 3758 (Fam)

2013] EWHC 3758 (Fam)

Case No.IL12C00117

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Thursday, 7 th November 2013

Before

MR. JUSTICE HAYDEN

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Re M

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Transcribed by BEVERLEY F. NUNNERY & CO

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APPEARANCES

MS. BRIGGS appeared on behalf of the Local Authority.

MS. PROBINGHER appeared on behalf of the Mother. (SM)

MS. BISBEY appeared on behalf of the Father, LM.

MS. KIRBY appeared on behalf of Father, (SN).

Ms. BRADLEY appeared on behalf of JM.

MS. BROOKS appeared on behalf of the Maternal Grandparents (RM &AM).

MS. FOTRELL appeared on behalf of the Guardian.

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J U D G M E N T

[1]I am concerned in this case with four children: AMN, who is eight years of age, having been born on [a date in] 2005; RMN, who is aged five, having been born on [a date in] 2008; JMM, who is three, having been born on [a date in] 2009; and EMM who is 25 months of age, having been born on [a date in] 2011. SM is the mother of all four children. LM is the father to JMM and EMM. SN is the father to AMN and RMN. Both fathers are represented in these proceedings, as too are the maternal grandparents, RM and AM. Their son, JM (also known as SC, but to whom I shall refer as "JM" throughout this hearing) is represented by counsel, Ms. Bradley. He has not attended at court and is not fit to do so.

[2]The children's mother, SM, experienced an unhappy childhood which has been the focus of much scrutiny during the course of this hearing, and in respect of which I will make findings later in this judgment. SM has always recognised that she is unable to care for her children and has effectively consigned each of them to her parents' care, either from birth or certainly from very early in their lives.

[3]In respect of EMM, the youngest child, SM has never lived with him. EMM was born at the North Middlesex Hospital. On 18th July 2011, he was discharged, and an agreement was made with the mother that she would live with EMM at her parents' home. In the event, the mother chose to go to be with her partner, LM, and EMM went to live with his grandparents, joining his sibling JMM, and his half-siblings AMN and RMN. That arrangement came about therefore, in effect, by default in the sense that it had never been the subject of any professional assessment.

[4]In those months after EMM's discharge de facto into his grandparents' care, it was clear, or at least it certainly ought to have been, that he and his siblings were living in circumstances that really required careful professional evaluation. It was evident that the mother had longstanding emotional and mental health difficulties. LM, her partner, had been convicted of a sexual assault on a 13-year old girl. There were, I remind myself, at that time concerns that LM may have also acted in a sexually inappropriate way to other younger girls. Those allegations have not been pursued by the Local Authority. Later, when I come to evaluate the issues of sexual abuse in this case, I will disregard those allegations altogether. I will do so because they have nil evidential value in that context. However, as allegations surrounding the family, they ought, in my view, to have, matters that I have referred to, triggered a high level of proactive social work involvement.

[5]If that picture in and of itself were not worrying enough, there was another striking concern. AM and RM, the maternal grandparents, had three other children: AM, to whom I will return in detail in due course, and twin boys, RM and JM. The twins had celebrated their 18th birthday by a macabre killing. Involved with a third man, they had gone to the home of an aged, extended family member, their sister's grandmother, entered her home and, in a joint enterprise, killed her by strangulation. They were later seen on closed circuit television laughing and joking as they divided the spoils of her meager belongings amongst themselves. Following a trial in which all three were convicted of manslaughter, the twins received sentences of 12 years' imprisonment. Reports describe them as having learning difficulties and personality disorders.

[6]Having been convicted on 14th July 2006, they became eligible for release on licence by September 2011. No doubt the Parole Board had far more information at its disposal when determining the boys' individual suitability for release, but it is profoundly concerning that JM wrote a letter to his parents as late as 10th April 2011, in which he said as follows:

"If I am supposed to get out, they better get me to hospital quick cos, as I said on the phone, I know I will kill someone when I'm out unless I get help."

[7]In custody, as I alluded to earlier, JM had changed his name to SC. As he later confirmed to a psychiatrist, S referred to "shadow people", who are, apparently, dark entities with malevolent intentions. C apparently relates to a popular film about a detective who battles dark and supernatural forces. In any event, both twins were released on parole on 9th September 2011. They were considered to be "high risk" in the community and needing constant supervision. By the conditions of their licence, the brothers were prevented from seeing each other - a condition which had its roots in violent arguments which had taken place between the two when in custody together. They were excluded from the local area of Enfield, and they were to remain on licence for an extended period.

[8]Knowing what they did directly about the risk JM posed, the thoughts he had been having and, as SM told me in evidence, her own concerns about her personal safety, (JM having threatened her verbally on the telephone), one might reasonably have expected the grandparents to be supportive of these Home Office terms. In fact they were vociferously and volubly opposed to what they perceived as the injustice of them. The maternal grandfather told a Hackney social worker that the probation services were biased against his sons, in consequence of “the high level of publicity that had surrounded the case”. Despite the fact that there were four children under age eight years living at their home, they apparently wanted the boys to come home, particularly over the Christmas period.

[9]What was emerging clearly was a troubling inability on behalf of the maternal grandparents to focus on the children's needs. An indication that this might well have been a problem in the past with their own children ought at the very least to have been signalled by the fact that their eldest daughter, AM, and, as I understand it, the twins (although information is contradictory) had each spent some time in Local Authority care. There were clear warning signs that the maternal grandparents' attitude to sexual abuse of minors was problematic. Notwithstanding LM'S conviction for a sexual offence against a minor, neither grandparent believed him to present a risk of any kind, and liberal periods of overnight contact were being encouraged between LM and his son, JMM.

[10]Against this backdrop, it is, to say the least, profoundly depressing that the Social Services' response appears to have been, at best, minimal. For months three local authorities - Hackney, Enfield and Haringey - jostled amongst themselves as to who had responsibility to lead child protective measures. It follows that without a lead there can scarcely be focus. Quite how significant that failure was will become clear when I come to determine the disputed allegations in this case. By my calculation, at least six months were lost on this issue. I can see there are many reasons why Local Authorities in this climate might wish to avoid the burden of responsibility for a case like this. It inevitably absorbs already stretched resources, both financial and in terms of personnel. I have not permitted court time to be deflected into an investigation as to whether any particular Authority was acting unreasonably or was wrong in law. There have been too many other pressing issues in this case directly concerned with the welfare of the children now that need to be considered as a priority. I do not therefore condemn any one of those Local Authorities, but I do send this signal: that if Local Authorities seek to evade responsibility for child protection to avoid costs, they are likely to face liability in negligence, administrative law and under human rights legislation. As the family courts embrace the opportunities and advantages that greater transparency may bring, Local Authorities who behave in that way will not be able to avail themselves of the cloak of anonymity under which, in the past, they might have found refuge.

[11]There followed in due course a number of separate investigations. A section 7 report was prepared, and two section 37 reports. Ms. Briggs, counsel on behalf of the Local Authority, has told me on a number of occasions during the course of this hearing that she has used her best endeavours to track down that section 7 report. It finally emerged some time this morning, I have had a chance to read through it and will refer to it.

[12]Many of the issues that I have just set out were known to the authors of these reports. They concluded, however, that the children should remain with their grandparents. Quoting from the second of the two reports, which I take to have been prepared sometime in early May or late April 2012 (for, like so many other documents presented in this case, it is undated) the author concludes as follows:

"There are some issues arising from recent interventions in both psychiatry, probation and social services in relation to how disturbed the grandparents' own children, RM, S and SM present as. These adults have made significant allegations in relation to the treatment that they received at the hands of their parents and parents' friends. It should also be noted, however, that these three children suffer from significant personality disorders and this fact will have a significant bearing on the reliability of the allegations. However, the allegations remain concerning and will need further assessment."

The report continues: It would be the Local Authority's opinion, however, that at this juncture there is no evidence indicating that this placement should discontinue. Therefore the children should remain in the care of the grandparents." Earlier in the report the authors observed that the children appeared to be happy, secure and settled in the placement.

[13]The Guardian has condemned the analysis in this report as superficial. But, in my view, the real flaw is that there is an absence of analysis altogether. The language is telling. It refers vaguely to "some issues", "significant allegations", the ubiquitous "concerns". These are gateways to analysis, they are not, in and of themselves, analysis, and they are certainly not conclusions. Section 37 reports are prepared for courts in order that they can consider risk and what, if any, intervention is required under the available legal framework. They are not discussion documents or a vehicle in which to pour professional angst. Issues must not only be identified or raised, they must be thought through, evaluated and placed in the wider context as it is assessed at the time. Simple report is rarely valuable; it must be challenged, and an expressed willingness to participate must be measured against evidence of past participation. In other words, at the interim stage the full panoply of risk assessment has to be deployed. Absent these conventional tools any risk assessment is of limited value, perhaps meaningless.

[14]What does one draw in the context of these "concerns" from the observation that "the children appeared happy", when the report itself refers to killings, sexual abuse, rape and incest? The report includes the following:

"On 23rd January 2012 a legal planning meeting was held to establish whether threshold was met to go into proceedings. We were advised that at present there was not enough evidence for threshold to be met to instigate proceedings to remove the children from the maternal grandparents' care."

That the threshold criteria on an interim basis were met is so obvious that it is redundant of any sensible argument. As to the proportionality of a removal, that is a wholly different question. It can hardly have helped sensible decision making that it was conflated into one test.

[15]Ms. Briggs, on behalf of the Local Authority, has spent much energy in her written closing submissions and indeed in her oral submissions addressing this point. Her essential argument is that the children remained with their grandparents until sufficient evidence emerged to establish what she referred to as the high test for interim removal. This, I am afraid, will not do. The fact is that the Local Authority failed to analyse the evidence that was already available to it. Ms. Briggs talks of the need for ‘close scrutiny of all historical facts’; the need for ‘primary material’; for a ‘definitive history from source material’. The court, she submits, must be persuaded that the child's welfare demands immediate separation. But section 38(2) is an interim protective measure. Of course the best possible evidence is required, both to establish it and the proportionality of intervention, guided by the section 1(3) criteria. It is the two in combination that point to what the child's best interests require, or even, to adopt Ms. Briggs' term (itself gleaned from the authorities) ‘demand’. Evaluation of risk requires balancing the two seperate sections: the reasonable grounds for believing that the children had sustained significant harm within the definition of section 31(2) of the Children Act 1989, analysed within the welfare checklist criteria, to evaluate whether or how best a child can be protected until such point as the evidence is fully marshalled and, if necessary, put to the assay in cross-examination. Ms. Briggs put the test too high. She does so, in my belief, in a braveattempt to justify ex post facto the Local Authority's actions.

[16]In the authority which she relies on, and cites to me, Re GR

[2010] EWCA (Civ) 871

, it is absolutely plain that Black LJ is precisely prescribing the process which I have just outlined. She says at para.41:

"The most recent case to which I would refer is Re B and KB [2009] EWCA 1254 in which the appeal was against the dismissal of the local authority's application for an interim care order. The trial judge had given himself what was described as an 'immaculate self-direction' in these terms: 'whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care.' However, Wall LJ [as he then was] with whom Thorpe LJ agreed, was persuaded that the judge had failed to go on properly to conduct the required balancing exercise. He said: '56. Speaking for myself, I find L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB's welfare did demand her immediate removal from her parents' care and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB's safety, using that word in a broad sense to include her psychological welfare, did require interim protection.'"

[17]My criticism of the Local Authority is, that they did not really evaluate the risk to the child at all, and indeed later to any of the children in the public law proceedings at the interim stage. They have, rather, focused on the forensic difficulties of establishing the case. Even if that were a relevant consideration - and, in my view, it is not - then there was, in my analysis, proper material upon which to undertake the exercise.

[18]The section 7 report to which I referred earlier is dated 11th February 2011. It is signed by Alison Skerritt, the social worker, and countersigned by her deputy team manager, Dina Sturgeon. I quote only from two passages at pp.19 and 22 of that document:

"AMN, RMN and JMM have suffered little harm in their lives, and this is because they have lived with their grandparents who have protected them and kept them safe from harm. However, it would be fair to say that the children would be at greater risk of suffering significant harm if they were removed from their grandparents' care to reside with their mother or their mother and LM, as SM is struggling to resolve her mental health problems. Furthermore, due to LM's conviction, the Local Authority would recommend that he only have supervised contact with the children. [Later:] In conclusion for the reasons above outlined, the children are well placed and settled at their grandparents' home. No concerns have been identified from any of the agencies involved, and the children and reports have in fact been very positive. As all parents are in agreement with the current arrangements for the moment, Mr. and Mrs. M have applied for a residence order to secure the wellbeing of their grandchildren."

[19]As I work through the evidence in this case, just how superficial the enquiries of the section 37 report and the 7 report were, I believe will become all too evident.

[20]Throughout the first week and a half of this hearing, the grandparents, represented by Ms. Brooks of counsel, sought to oppose the Local Authority's plans, and to care for each of the four children themselves. They abandoned that ambition on the eighth day of this hearing; as I recollect it, shortly before the grandfather gave evidence. SN, represented by Ms. Kirby, also abandoned his aspiration to care for AMN and RMN. LM could not countenance withdrawing his application to care for JMM and EMM, along with SM, even though SM recognised the futility of it. Given that the Local Authority's plans for JMM and EMM contemplate adoption, it is, to my mind, entirely understandable that LM feels as he does. I will address his application in more detail in due course, but it is only fair that he should know at this stage that I consider his case to be entirely unrealistic.

[21]With the exception of LM’S application, the remaining welfare issues therefore then fell into a very narrow compass indeed: what should be the extent of the contact between the maternal grandparents, SM and SN with AMN and RMN. That was the essential issued that remained. Narrow as it may be, it is certainly not, to my mind, a straightforward one.

[22]Ironically there was, from day eight therefore, arguably no need for me to determine the complex factual issues that the case has presented. However, the shift in the parties' positions arose so late in the day that I had by that stage heard virtually all the evidence, which provided the material upon which I was being asked to determine the disputed facts in the case. Nobody argued that I should not proceed with the investigation upon which I was embarked, even though it might have only limited relevance to the welfare of these children in this particular case.

[23]Before I move to the schedule of findings that the Local Authority contend for, I am going to refer first, and I am afraid at length, to those which have already been agreed. Firstly, because it is necessary to read them into the judgment so that there is a composite reference document in due course, but also because, to my mind, those agreed findings make for very informative reading. It is recorded, as of August this year:(1) The mother has a history of mental health problems. She has a diagnosis of emotionally unstable personality disorder which causes her to behave in a volatile and impulsive manner. She has reported hearing voices. Mother has a history of attempting suicide by taking overdoses and self-harming.

(2) Mother has a history of substance misuse problems. Mother reports having misused cannabis, LSD, meth amphetamines and cocaine.

(3) LM has a history of substance misuse problems. He continues to smoke cannabis.

(4) The relationship between mother and LM is volatile and violent. The parents have hit and punched one another.

(5) On 1st March 2012 mother telephoned the police and reported that LM had cut himself and threatened to jump out of their sixth-floor window. When police attended they found LM on the floor with two deep lacerations to his arm which were self-inflicted.

(6) On 20th March 2013 mother telephoned the police and reported that LM had threatened to self-harm following an argument about money.

(7) The maternal family came to the attention of the Local Authority in 1996 when AM was 12 years old, because she had been running away from home.

(8) Several referrals were made when AM was 14. Referrals came from AM's school, the police and the maternal grandparents. AM was absconding from school, running away from home, and was in a sexual relationship with KH, a man 20 years her senior, who had previously been in a relationship with the maternal grandmother and who claimed to be the father of JM and RM Jnr.

(9) AM was sexually abused by KH from the age of 13. The sexual abuse included penetrative sex. AM was introduced to KH by FH, her paternal grandfather.

(10) AM was memorandum interviewed on 14th January 1999 and confirmed her allegations that KH had raped her.

(11) The maternal grandmother allowed FH to visit the home, help with the gardening and take A out, despite being highly suspicious of him.

(12) In early February 1999 AM took a knife from the kitchen and held her siblings hostage in a bedroom. She said she wanted to harm herself.

(13) AM was placed at Degra House, a specialist residential, unit on 3rd August 1998 at the age of 14. She received intensive psychotherapy for the sexual abuse she suffered. AM presented as suicidal and self-harming during her stay at Degra.

(14) JM and RM Jnr. had behavioural difficulties in adolescence. They truanted from school, were eventually expelled and were sent to a tuition centre. Both boys were referred to an education psychologist.

(15) In 2006 JM and RM Jnr. were convicted of the manslaughter and robbery of AH, AM's paternal grandmother. It is recorded that they were sentenced to nine years' imprisonment.

(16) At the time of the twins' arrest in 2006, a computer was found at the family home with 68 indecent images of children on it. No action was taken by the police regarding these images in light of the charges of murder against the twins. Ms. Briggs has advised me, and it is not contested, that these images were set at Category 4 by the Crown Prosecution Service, which, as I understand it, means that they involve images of penetrative sex with under-age children.

(17) JM and RM Jnr. both have diagnoses of severe personality disorder. They have both reported hearing voices, have expressed suicidal ideation and have self-harmed. They are assessed to present a high risk in the community.

(18) Prior to the twins being released, the maternal grandparents stated that they did not consider that the twins presented a risk to children and they disagreed with the restrictions placed on the twins.

(19) Maternal grandmother provided mother's telephone number to JM prior to his release from prison. He then sent several texts of a sexual nature to the mother.

(20) The maternal grandparents have said that they believe the mother deliberately engineered RM Jnr's recall to prison.

(21) In 2006 F was convicted of two counts of sexual activity with a child under 16. The girl concerned was 13 years old. She disclosed that she was asleep and woke up to find F touching her, her bra undone. F [by which is meant LM] was sentenced to two years conditional discharge, and was on the sexual offenders' register for two years.

[24]Those 21 findings are all agreed facts in this case. In my view, they tell their own story.

[25]Dr. McClintock, a consultant forensic psychiatrist instructed in these proceedings, told me, for reasons which, in my view, seem eminently sensible, that on the basis of the agreed findings and his own interviews of Mr. and Mrs. M, he regarded Mr. and Mrs. M as having absolutely no understanding of the emotional needs of a child. AM, he said, revealed only occasional glimpses. Whether or not, Dr. McClintock said, the findings were made in relation to what I will for convenience call the sexual abuse allegations, the maternal grandparents' lack of emotional empathy precluded them as carers for any child. In his interview with the grandfather, Dr.

(e) :

"RM had very little to say about the childhood issues experienced by the twins. He thought they were not very serious or worrying, and from his narrative one would not have been able to understand their difficulties at that time. There was a feeling from his narrative that he had not really thought of the reality of the homicide. He had only attended court for a few days of the trial and it was as if he had left it up to his wife to practically and psychologically deal with the situation. Just as with AM, he knew that the twins were not meant to be given access to the internet, that the telephone provided had internet access disabled, but clearly this was easily reversed. RM had a very passive approach to dealing with this issue. He did not seem to understand that for a young man who had been unable to control his behaviour to such an extent that he committed a homicide, that the temptation of using the internet on a mobile phone was going to be difficult to resist. He simply explained this issue away as 'he's an adult', without understanding how he was creating a high risk situation. In a similar manner, RM seemed to have limited understanding of the issues shown by the twins and he needed significant prompting in order to provide the information at interview. He seemed to construct RM's difficulties as surrounding the single issue of his deliberate self-harm, rather than thinking about the totality of their problems. He seems to have had more contact with JM and saw his issues as being very serious. With SM there was a limited description of her issues and he seemed to think that her drug use was serious, simply because she used cocaine, rather than looking at the problem as a whole. Whilst I do not expect Mr. and Mrs. M to have the level of understanding of psychological issues exhibited by professionals in this case, I was struck by his very limited understanding. There was also a very passive acceptance that SM simply kept on having children that she could not look after and that they would in turn be placed with the grandparents. In the same way as RM seemed to understand his children's difficulties as being centred on a single issue, he thought the cause of the difficulties was entirely due to the genetic contribution of the maternal uncle. This could not be correct and he was unable to see that there might have been any contribution to their difficulties from the way in which they were raised."

[26]Dr. McClintock concluded as follows:

"I was very struck by the parents' passive stance to dealing with their children's issues, the lack of intervention and boundary setting, and lack of curiosity about the full extent of what was going on. Even now, they seem to fail fully to understand their children's difficulties and I think that their parenting style and the issues shown by their adult children does not bode well for them being able to care for these grandchildren. There is little evidence that they have changed their parenting style or are able to do so. For example, although the grandmother was able to agree with me that she had been naïve and had problems with boundary setting, the grandfather completely distanced himself from the idea that he and his wife had made any contribution to the difficulties shown by their children. This is going to make it extremely difficult and probably impossible to offer any form of intervention which would increase their level of insight and improve their parenting style."

[27]I have emphasised these conclusions because this level of distance from their own childrens needs seems to me to be relevant in evaluating the allegations against them.

[28]Whilst dealing with Dr. McClintock's evidence at this point, it seems to me that it would be helpful to assess and address his conclusions in relation to the mother and to LM. I can do this relatively briefly. Dr. McClintock observes, at E138:

"The relationship between SM and LM is co-dependent and unstable. He acts as her 'carer', and it seems that he is there to provide practical and emotional support, helping with housework, soothing and reassuring SM when she is distressed, and helping her to have some kind of routine to her life. In turn, SM finds that his attentions sometimes have a smothering quality. This irritates her. She sometimes feels that they should separate, and in fact there have been separations and reconciliations in the past. It seems, however, that physical aggression from SM to LM has been common, and he has simply accepted this, feeling that it is preferable for her to assault him rather than take her anger out on herself by self-harm. SM helps LM by reading documents for him, and they travel together in case he gets lost. The couple were unable to attend their first appointment with me reportedly because SM had a migraine and LM was not able to make the journey to Harley Street on his own. They have a highly enmeshed relationship, and I think this is compounded by their financial situation with State benefits being linked to the maintenance of this relationship and their respective roles as carer and cared for. There are tensions within this relationship because of the power imbalance, but the emotionally dependent traits to LM personality have meant that when the relationship has ended or there have been threats of separation, he has harmed himself or threatened to do so. This relationship is so dysfunctional that these parents would be unable to provide an emotionally safe and nurturing environment in which to raise a child. This is a product not just of their independent psychological difficulties but also the manner in which they interact."

I accept his evidence as reflecting what I have seen of his relationship during these proceedings.

[29]I am driven to conclude that there is no prospect of LM being able to care for his children. Listening to his evidence carefully, I sense that on some level he recognised that, but had nonetheless felt that it was important, as his counsel put it, that he should fight on right to the end. That he did, and it seems to me in the circumstances unnecessary for me to comment on any of the practical problems that would have been posed by his wish to care for his children, which the Local Authority have responded to, other than to say that they were of themselves considerable.

[30]I turn now to the Local Authority's schedule of contested findings. There are some 28 of them in total. They relate to sexual abuse, failure to protect and inability to set appropriate sexual boundaries. Ms. Briggs addresses each of these allegations individually in her very detailed written submissions. Ms. Fotrell, on behalf of the Guardian, approaches the issues thematically. Ms. Bradley, on behalf of JM (also known, as I have said, as SC), attacks the credibility of SM as a witness, emphasising her defensiveness, her unresponsiveness (as it is perceived to be) in the face of challenging cross-examination. She points to lack of detail in the allegations. She seeks to identify motive for making false allegations. Ms. Bradley contends that when factoring each of these features into an evaluation of the evidence, there is, as she puts it, insufficient evidence to support the making of the findings sought. Ms. Brooks employs a similar strategy.

[31]I turn to the legal framework. With some hesitation, it seems to me safe to say that this is now a settled area of law. There is no doubt that the burden of proving each and every one of the allegations in the case rests on and remains with the Local Authority. There is equally no doubt that the standard of proof to be deployed is the balance of probabilities test, as set out in Re B (Care Proceedings: Standard of Proof)

[2008] UKHL 35

. Ms. Fotrell draws my attention to the passage of Lord Hoffmann, which, though oft repeated, in my view bears repetition in these cases:

"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. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

[32]Findings of fact in these cases must be based on evidence, including evidence that arises from reasonable inferences being drawn. That is a wholly different matter to suspicion or speculation. In virtually every case where a judge at a fact-finding hearing is required to analyse whether significant harm, in all its awful manifestations, may have arisen, it is always necessary to take the evidence as a whole, the multiple strands of material, and see whether each contributes to a clearer ultimate picture. As Munby LJ observed in Re A (Fact-Finding: Disputed Findings)

[2011] 1 FLR 1817

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

[33]As Ms. Fotrell helpfully reminds me, in Re U (Standard of Proof); Re B

[2004] 2 FLR 263

really crytstalises the approach to be taken. "Evidence cannot be evaluated and assessed in separate compartments.

(P) )

[34]In surveying this wide evidential landscape, it seems to me to be helpful to start with the agreed or uncontentious facts. At the conclusion of the oral evidence these have ranged even further than the agreed findings which I have already set out extensively.(1) In evidence and cross-examination both maternal grandparents acknowledge that their daughter was indeed sexually abused by KH - a man 20 years older than she was - and that he had been abusing her since she was 13 years of age.

(2) The grandfather agreed that he knew KH had claimed to be in a relationship with a 13-year-old girl when he, KH, was 19. Moreover, the grandfather emphasised that that was something that KH “boasted about” (I use his phrase) and “bragged about” (again his phrase). The grandfather referred to KH in evidence as “a paedophile”, though it was clear that he was not entirely comfortable with that term, and later withdrew from it. He withdrew on the somewhat tortuous basis that KH might merely have been bragging about this relationship or, to put it another way, pretending to be a paedophile when he was in fact not one. In my view a rather ludicrous proposition.

(3) Both grandparents knew that FH was associated with KH, and they accept that he raped their daughter, A.

(4) The grandfather knew, and spent time with, KH, whom he knew, it seems to me, beyond any doubt, to be a paedophile.

(5) The grandfather told Linda Brewster, the social worker conducting the section 37 enquiry, that he and his family were "surrounded by paedophiles".

(6) The grandparents' home was perceived as a refuge by various vulnerable youngsters: TL, TB, DB and MB.

(7) It is accepted that the grandparents permitted an intimate but, it is said, a non-sexual relationship between SN and their daughter SM when he was an adult of 20 years and she was 14 to 15 years of age. That relationship was allowed to develop in the house because - and this was said by both the grandfather and the grandmother - SN, though chronologically an adult, was himself “naïve and child-like”. That appeared to each of them in some way to even the gap, to bridge, as it were, childhood and adulthood. The distortion of that thinking is both apparent and troubling.

(8) Both the grandparents minimised LM’S conviction for sexual assault on a minor.

(9) Both grandparents on their own account - either deliberately in the case of the grandmother or unwittingly as the grandfather claims - denied knowledge of LM conviction to the Child Protection Committee on 4th October 2011, when they most certainly knew of that conviction.

(10) The maternal grandparents claim that, with her consent, SM was permitted to go upstairs to her bedroom with SN to "give him her virginity" on her 16th birthday, whilst they, the grandparents, remained in the house.

(11) 68 indecent images of children were found on the grandfather's computer, which was situated in the living room of the house. These images, as I have already mentioned, contained Category 4 material, which is material at the higher end of the spectrum of gravity for child pornography.

(12) The grandfather accepts that he flirted with TL. He claimed that it was his practice with women who were “not good looking enough”, in order that he might spread cheer to them. The Grandfather seemed to have no concept how risible or arrogant his account was.

(13) It is accepted by the grandparents that they suggested playing with their Ann Summers game (an adult game) with TL.

(14) The grandparents accept that they permitted AMN to speak to her uncle JM even though they contend that the indecent images found on the computer at the home might well have been put there by him.

[35]The grandparents' relationship with their own children also, it seems to me, permits the identification of clear and uncontentious findings:(1) Though both grandparents accept that AM was repeatedly sexually abused and groomed for paedophile abuse, they both contend that they saw nothing in her behaviour which revealed that, and can see nothing now, even with the benefit of hindsight.

(2) Problems with their children self-harming or running away or acting up at school were simply not perceived as distress. The maternal grandfather attributed it to genetics.

(3) Both grandparents contended initially that their daughter SM psychological difficulties and indeed her self-harming behaviour were related entirely to her pregnancy and had not been seen before. When confronted with evidence that revealed that not to have been the case - for example, the hospital visit on 3rd April 2004, some months before the conception - they attributed the behaviour then to bullying at school. What is significant is that neither was prepared even to contemplate that it might have been a manifestation of acute distress, let alone that it might be related to the very issue that she was complaining of - sexual abuse by her brother over a long period of time. This was a thought process, I find, that they were simply unable or unprepared to embark on.

(4) The disturbing behaviour of the twins, escalating to the eventual homicide of a family member is also not contemplated by either grandparent as having anything to do with the upbringing they received or any deficiency in their own parenting of them.

(5) The maternal grandparents have minimised the risk the twins represent, though it was, as the grandmother told me, necessary at one stage for her own protection for her to have contact with JM in custody supervised by three guards, for her own safety in case he attacked her. The grandfather contended that the risk has been exaggerated.

(6) Both grandparents accept that JM expressed murderous intentions towards people, including to the grandmother.

(7) The grandfather did not visit his daughter at all in the months that he she was at Degra House in a therapeutic unit, claiming he simply was unfit to do so.

(8) When SM made allegations of incestuous of sexual abuse by her brother, the maternal grandmother's immediate reaction was to disbelieve her and to put the telephone down, though it is right to say that she reflected upon it and later telephoned her daughter back, probably quite quickly. Nonetheless the reaction reveals a huge absence of emotional empathy with her daughter.

[36]The position of both grandparents is now to reject their daughter's allegations; in the grandfather's case, outright, in the grandmother's case a rejection but with occasional glimpses of ambivalence.

[37]The evidence supports certain wider findings. Firstly, in evidence both grandparents, but particularly the grandfather, spoke of the mother, SM, with a degree of negativity that I found to be disturbing. The grandfather did that in evidence, even though he knew this to be one of the very criticisms that the Local Authority had leveled against him, and which he had denied through his counsel, Ms. Brooks. But in the witness box he was unable to hold back those criticisms which came flowing forth. He criticised the mother for not coming to their house often enough. He claimed the children did not notice her absence at all. The court has heard that AMN in particular is in fact very fond of her mother and disappointed when she does not see her. It is also recorded that the grandfather has been negative towards the mother at contact, and I have been taken to a write-up of a particular session in which it is clear that he spoke about her in front of the children in the most extraordinarily negative terms. I accept entirely, as Ms. Brooks properly points out, that in extensive notes on contact this is only one session. But it does not, to me, lessen the impact of it.

[38]There are echoes of this negativity and an almost palpable coldness to the mother in the evidence of the grandmother and, I am afraid, in the evidence of SN. SN relationship with the maternal grandparents has been observed by a number of professionals to be extraordinarily close. I have seen that for myself during the course of these 10 days. Just as they emit coldness to the mother, they radiate warmth to him. Despite the compelling body of evidence which I have summarised, so much of which, as I have stressed, is ultimately not in dispute, SN does not offer a single word of criticism of the grandparents. On the contrary, he considered them suitable to raise his children: the M family, surrounded by paedophiles (to quote RM), the family that has produced four psychologically disturbed children, now adults, two of whom are killers; a home in which the grandparents, it seems to me, must be driven to accept, even if they cannot articulate it, that they failed to protect their daughter AM from rape and from paedophile grooming. None of this elicits any criticism from SN. It is chilling to see the Svengali-like hold that the Ms have over him, even allowing that he may suffer some intellectual limitation. Why the mother should be regarded by her own parents in this way and yet support them in their wish to care for her children is a conundrum I have not been able to resolve. I simply observe - and it may be classic understatement - that it only points to a highly dysfunctional household.

[39]What emerges here is a family where sexual boundaries are clearly fluid; a family in which children were profoundly unhappy and seriously psychologically disturbed; a home in which neither parent had any real understanding of a child's emotional needs. It begs the question, it seems to me: what was happening in this household to cause the manifestation in each of the children of such profound and violent unhappiness? It is in that context, as I say, having regard to the wider picture, that I come to evaluate the allegations of SM.

[40]Perhaps what is most striking about the mother's allegation that JMbehaved in a sexual way towards her for a number of years is that JM himself seems to say something of the same thing to Dr. Celia Taylor, the lead consultant forensic psychiatrist and head of service at East London NHS Foundation Trust. In an interview with Dr. Taylor, the psychiatrist records reading what JM had written about his life as a child, at E, p.300, section 3. It reads:

"My twin and me and my sisters all competed for our parents' love. Me and my twin were close but still fought all the time. Me and my little sister, S, fought all the time. But when I was 12 and she was 11, we started to become way too close for a brother and sister and that carried on until I came to prison."

He told Dr. Taylor that he had been the black sheep of the family, that he had received frequent beatings. He added that whilst his mother might not have protected him, she had consoled him. Mr. C, it is recorded, told Dr. Bartlett (Dr. Taylor's colleague):

"I don't believe they love me. I know my dad didn't love me. My mum, I realised a couple of years ago."

[41]I accept the points that Ms. Brooks and Ms. Bradley make about the core unreliability of both JM and SM, but in respect of this allegation it seems to me that both corroborate the other.

[42]Secondly, SM gave her evidence, in my view, reluctantly and hesitatingly. She had historically referred to her brother going beyond touching her sexually and said that he had masturbated in front of her. She did not make that allegation in front of me. But what most struck me in her evidence was her insistence that JM appeared to feel that what was going on was "normal". I sense that on some level too had thought that it might be. She struck me as feeling guilty about the relationship and confused, though of course she has no need to, and I emphasise that because I know she is listening to this judgment. Normality, for the reasons I have already alluded to, was an elusive concept in the M household. It struck me that SM wanted to minimise the abuse. She made no complaint that her parents actually knew what was going on. She did not even say that they ought to have known.

[43]Interestingly, JM made an allegation that he had been abused by a woman who had stayed at the home in a camper van. He said that his parents had known of it, and told Dr. Taylor that they had "closed their eyes". That, I find, to be a telling phrase, because it chimes with what had happened to AM, where I find the parents must have closed their eyes to what was happening. Whether JM was sexually abused by the woman in the camper van or not, I am not in a position to determine. Nobody asked me to determine it. But what struck me as odd in the grandmother's response was that she said it could not be true because there was no room for the camper van in the garden. Somewhat bizarrely, she accepted there was a woman with daughters in a camper van, and that they were there in consequence of the connection with the grandfather's bike club, which we know had become a conduit for paedophile visits. SM does not say that her parents closed their eyes to her abuse, she is entirely silent on it, but her entire description conveys precisely that impression. There is a congruity therefore between what SM is describing, what must have happened to AM, and what JM himself actually articulates.

[44]Though the grandfather denies SM's allegations, he offered in evidence that JM may well have sexually harassed his sister in a sexually verbal, though non-physical, way. He denied having witnessed this happening, but considered that it might have happened in some way quite naturally between brother and sister. This seemed to me not only to reveal the grandfather's distorted thinking about sexual matters but his whole approach to sex in general. The longer he remained in the witness box, the more he revealed himself to me to be a bullying egotist with no empathy for others whatsoever. Dr. McClintock's assessment of his personality could not, in my view, have been more accurate. Of course this too has forensic significance in the wider canvass, for only a parent who was completely impervious to a child's distress could let such things happen as occurred in this home and in this case. I also agree with Dr. McClintock that the grandmother, while she may have some flicker of understanding of the needs of her children, has only the dimmest of sparks.

[45]I find as a fact and to the requisite standard of proof that over a number of years in the childhood of SM, JM behaved sexually inappropriately towards her. I find that he had lost sense of any normality, and I find that the grandparents either knew or chose not to see what was happening or, sad to say, that they simply did not care.

[46]I turn now to TL. TL did not want to attend court. She had to be prevailed upon, by witness summons. She had been provoked into making a complaint, she told the court, by an unexpected encounter with RM when he was pushing a pram, in the sense that it was seeing him involved in the care of children that disturbed her. No party suggested that she had any hostile animus to the Ms. On the contrary, TL seemed to accept that they had taken her in and had looked after her. She was one of a number of vulnerable young women to whom the Ms had purported to offer sanctuary. As the grandmother said:

"All we did was to try and help her"

. TL’ complaint is limited to one incident of digital penetration whilst she was asleep. I do not minimise it by describing it in those terms, but merely to emphasise how specific the allegation is. It is not accompanied, for example, by threats of force, nor is it suggested that the grandfather persisted. It was all over quite quickly. TL is describing an episode 25 years ago. She was challenged on time and dates, about which she was certainly unclear, and Ms. Brooks made appropriate forensic capital from that. But the account she gave of inappropriate comments earlier in the evening, the suggestion of playing an adult game, exploratory sex which extended to digital penetration, all this is classic sexual paedophile behaviour. It is, sadly, known to those of us who practice in these courts. I do not consider that it would be known to TL. I considered her account entirely separately from any other evidence in the case, before ultimately then placing it in its wider context. I am bound to say that I found TL to be an honest, indeed a brave and compelling witness.

[47]It is significant too that RM confirms that reference to an Ann Summers game was indeed made by him that evening, though not in the terms that TL suggests, and that he did talk flirtatiously about kissing her. I am unclear for what reason Mr. RM should be able to recall such an apparently uneventful evening 25 years on, and in such detail. I find myself entirely sure of the honesty of TL complaint. That she made no complaint the next day because she did not think she would be believed, is a point emphasised by counsel. But there was really no point in her complaining. She told me that AM had asked her if she had enjoyed herself, which she took to be a direct reference to RM’s assault on her, and indeed I am satisfied it was. There was in TL' account both sadness, extreme distress, embarrassment and a sense of betrayal - all of which served only to make it more compelling. I find the grandmother did say those words and I am therefore left only to conclude, as Ms. Brooks recognised, that this goes beyond merely closing her eyes, which she did in the case of her own daughters, but had progressed to, in effect, collaboration. She knew all too well that her husband was sexually interested in young women and under-age girls. They are a dangerous couple and a serious risk of both sexual and emotional harm to any child. SN I hope will listen to this judgment with great care.

[48]Finally, I turn to MB. In some ways it is difficult to understand why it is that RM disputes MB’s evidence, for he told me that he would often be flirtatious in a purely verbal way to those whom he perceived to be in need of cheering up, or those who were not as good looking as RM apparently perceived himself to be. MB does not describe herself as being a child at the time that RM would say things like:

"Give me a kiss", or: "

Slap her arse". Essentially she told me she found him creepy. I found her reliable. Though I do not in any way wish to trivialise her complaint, it is at a wholly different end of the spectrum to those others that I have been addressing.

[49]In the course of this judgment I have looked at the allegations in contention in a narrative context. It has been a laborious exercise. It has not been undertaken earlier, as I see it, by any other professional at any other stage. It ought to have been. Cases like this require that kind of rigour throughout. Those working these cases must put them together and must look at all the facets of the evidence in order to evaluate the big picture. I hope that is not perceived as a counsel of perfection, and I say it conscious of the enormous pressures that are on social work time. But it is only through that forensic rigour that the right long-term and interim solutions will be arrived at. In the exercise I have not found it necessary to make findings, for example, about the man who has become known as T or the allegation of rape by Y. They are, it seems to me, superfluous to the issues that I have to address, and I make no findings either way.

[50]I turn now to the care plans. These have been, as they always are during the course of a public law case, the subject of continuing scrutiny throughout the hearing, and they have been amended I think a number of times during the course of the hearing. That is not in any way uncommon in proceedings which are essentially dynamic.

[51]I deal firstly with JMM and EMM. The plan for them is an adoptive placement. LM opposes it, as I have said, and, for the reasons I have already given, I have had to discount him as a carer. There is no other family member available to put themselves forward. But I have been more cautious than I might perhaps have been in the past in assuming from this that the next automatic logical step is to look at adoption. Indeed, of particular concern here is that the plan involves the separation of half siblings with no guarantee at all of future contact. I have wondered if there might be other options, looking at their respective needs throughout the whole of their lives. I have given particular thought to the judgment of McFarlane LJ in Re G

[2013] EWCA (Civ) 965

. At para.48 of that judgment he observed:

"Where the issues before the court include the option of adoption, then the evaluation must be undertaken in the context of the welfare provisions within the Adoption and Children Act 2002, s 1. In an application under the ACA 2002, s 1(2) provides that 'the paramount consideration of the court ... must be the child's welfare, throughout his lifetime'. Given the focus that this judgment gives to the need to take into account the negatives, as well as the positives, of a plan to place a child away from her natural family, it is of particular note that s 1(4)(c) in the ACA 2002 welfare checklist requires the court to have regard to: 'the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person'. 49. In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option. 50. The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

Lord Justice McFarlane goes on to illustrate it in this way at para.51:

"One only has to take an extreme example of the effect of linear consideration to see the potential danger for this approach. The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome. Much therefore depends on which end of the line the selector starts the process. Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order. If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at 'rehabilitation to a parent' as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All will agree that such an approach would be untenable. I hope, however, that this example demonstrates how inappropriate the linear model is for a judge who is tasked with undertaking a multi-faceted evaluation of a child's welfare at the end of which one of a range of options has to be chosen."

[53]In addition to that judgment, Ms. Fotrell, in what, if I may say so, was an extremely helpful and erudite analysis of the law emerging in this area, drew my attention to Re B-S

[2013] EWCA (Civ) 1146

; Re V

[2013] EWCA (Civ) 913

, and Re P

[2013] EWCA (Civ) 963

[54]These two half-sibling groups both have, in my view, very different needs. AMN and RMN's entire sense of self is rooted within this family. They have the opportunity of what seems to me to be an impressive family placement, and all the signs in respect of it look propitious. It is also clear that they are children who are claimed within the extended family. They have, I am confident, a secure relationship with their father, who has, despite his limitations, which he has recognised, a great deal to offer them. So too does the mother. It is plain the children enjoy their contact with her. It is plain, particularly in Angel's case, how important her mother is to her, and I am particularly keen to do all I can to promote that relationship, knowing how the mother struggles with her own psychological problems to keep focused on a relationship which I have no doubt is just as important to her as it is to AMN.

[55]JMM and EMMs' dominant requirement is for a safe, secure and stable home. They are younger, their bond with their parents and family is much weaker. There are, to my mind, complex reasons for them being brought up in a family where they are not exposed to the risks of sexual and emotional harm that are ever present in their own family. Whilst it is likely the relationship with their half sibling will diminish considerably, even fall away completely that is balanced by the preservation of their relationship with each other. Their interests point a magnetic north towards adoption.

[56]I must say finally that I have, in this case, been deeply troubled by plans for ongoing contact between AMN and RMN and the maternal grandparents. The risk they represent to these children is not only high, it is insidious. I find on my own evaluation, supported by the professional assessment, that they are wholly ignorant of their grandchildren's emotional needs. That causes me to wonder what it is that they have to contribute in contact. I am not wholly convinced that they can be, as it were, some kind of sprat to catch a mackerel, i.e. that if they come to contact they will ensure the mother attends, and that sufficiently justifies their own attendance. Both the social worker, who impressed me in the course of her evidence, and the Guardian, who has plainly reflected very carefully on this issue and on the case generally, think that these children need contact with their maternal grandparents, albeit limited to twice per year. The Guardian has met the children on several occasions and has a real knowledge of them. It is ultimately for that last reason that I have deferred to professional recommendation rather than to superimpose my own instinct, which may or may not have had some support from the independent social worker, David Ryan. But in making the Special Guardianship orders in respect of these two children, I cannot emphasise with sufficient force the need for this contact to be kept under constant, vigilant and informed review.

[57]In all the circumstances, therefore, I approve the plans in relation to all four of the children. ________