Birmingham City Council v W & Ors [2018] EWHC 610 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No BM17C00010

[2018] EWHC 610 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue SITTING AT BIRMINGHAM CIVIL JUSTICE CENTRE, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/03/2018

Before

MR JUSTICE KEEHAN

Between

Birmingham City CouncilApplicant

W1 st Respondent

H2 nd Respondent

T3 rd Respondent

P4 th Respondent

London Borough of Haringey5 th Respondent

Mr D Payne (instructed by Birmingham City Council) for Applicant

Miss V Edmonds (instructed by Osborne and Co) for 1 st Respondent

Miss S Lewis (instructed by Anthony Collins Solicitors LLP) for 2 nd Respondent, child.

Miss D Howells (instructed by Wilson LLP) for 3 rd Respondent

Mr A Neaves (instructed by Barnes and Partners) for 4 th Respondent

Miss V Roberts (instructed by London Borough of Haringey) for 5 th Respondent

Hearing Hearing dates: 7 th March 2018

Judgment

Mr Justice Keehan :

[1]In this matter I am concerned with H, who was born on 28th June 2016. The mother of H is First Respondent, W. The maternal aunt of H is the Third Respondent, T who resides with her partner The Fourth Respondent, P. H’s father, has played no part and no role in these proceedings.

[2]The mother was having in difficulties in her life and, therefore, when H was 5 months old she placed H with her sister, T and her partner P. They live in the London Borough of Haringey. H has remained in their care for the last 16 months. I am told by all professionals that H is well settled, happy and developing well in this placement. It had been agreed by the local authority – Birmingham City Council - who initiated the proceedings in 2017, by the mother, the aunt, her partner and the children’s’ guardian that the appropriate welfare/best interests order the court should make was for H to remain in the care of the aunt supported by her partner under the auspices of a Child Arrangements

[3]In light of events which subsequently arose, the London Borough of Haringey was joined as a party to the proceedings. It became apparent in the course of assessments, from information provided from the London Borough of Haringey, that in 2003, 15 years ago, 2 of P’s daughters, K and L, then aged about 17 or 18 years of age, made allegations that he had sexually abused them when they were around the ages of 5 to 7 years old. At that time the children did not undergo ABE interviews with the police but they made and signed narrative statements. In these narrative statements, K then alleged that her father had subjected her to penile and digital penetration of her vagina on a number of occasions and L alleged that one occasion her father had attempted penile penetration of her vagina. There was a police investigation. P was interviewed. Ultimately, the police decided not to proceed and no charges were brought. Subsequently, as the years passed, in accordance with then good practice, the police destroyed the interview with P so there is no contemporaneous evidence of what P said in response to questions asked by police in respect of the allegations of the girls.

[4]In November 2016, and I mention this as a matter of fact, not as a criticism, the girls – K and L – were contacted by a social worker. Their other sister, F, who had not given a statement in 2003 investigation, was also contacted. They were asked about their allegations of physical and sexual abuse and they responded that they maintained them.

[5]Subsequent to that, I have before me a number of statements. One appears to be a joint statement by L and K dated 8th May 2017. It is signed by L and the signature date is 10th May 2017. It reads:

“I L born on 19th March 1986 and K born on 31st January 1983 as we stated before, we withdraw any faults past or present sexual allegations and do not want to be part of any court proceedings. Declare our father has close relationship with his grandchildren and all his children including us. We were angry in the past for our own selfish reasons and apologise for any distress this may have caused now.”

[6]In relation to F, there is a handwritten statement, dated 17th May 2017. It reads: "My name is F born on 20th March 1990. I would like to make clear I was not forced into my father’s car in 2003. My father saw me in Hornsey Park Road. I was with a friend. My father called me over, he asked me to come home to Caxton Road. I got in the car with him and his partner, who was pregnant. My friend was making her way home and met my mother and 30 minutes later the police came to the home and asked if I was ok and I said I was ok and the police said my mother wanted me home and I left. If want to contact me, please feel free.”

[7]Subsequently, the three young people, who are now in their 30s and have children of their own, were contacted again by a social worker from Birmingham City Council. On this occasion, they made it plain that they retracted their allegations about their father, they were not true in terms of the sexual allegations, although they maintained what they said about episodes of over physical chastisement, and made plain that they did not want to be involved in these court proceedings. I am told by Birmingham City Council and accept that the three young people insisted on being seen together and that they were reluctant to answer questions or to be involved in the conversation. Subsequent to that, the social worker endeavoured to draft witness statements to reflect what they had said in this meeting. The draft witness statements were sent to them. They are not signed or been formally replied to. All were sent, at their request, via L’s email account. The only response was from L who said, in terms, that she was satisfied and it was fine.

[8]Against that background, the London Borough of Haringey complain the witness statements are not clear and are not signed.

[9]P, I am told and accept, has always denied the allegations of sexual abuse but he does accept that there were elements of over chastisement in his parenting of those three young people and, I assume, of his two sons. I am told and accept that, in at least recent years, the three young people have a warm and close relationship with their father with whom they are in regular contact, all three live reasonably close to P’s home and regularly take the grandchildren to visit him and to attend family events.

[10]Save for the London Borough of Haringey, no party to these proceedings invited me to list this matter for a fact finding hearing on the basis that the nature of the evidence before the court is such that the court would be unable to make a finding of fact that the allegations are true. I asked counsel on behalf of the London Borough of Haringey to please identify the evidence relied upon in support of the findings of fact sought and why I should list this matter. This evidence comprised the witness statements made in 2003 to the police by K and L; the recorded contents of the conversation with the with social worker in November 2016; the meeting with the social worker in November 2017; a witness statement made by the mother of the three girls in subsequent private law proceedings between her and Mr. Michael which provided no primary evidence at all and the witness statement by P in those private law proceedings in which he denied the allegations.

[11]The London Borough of Haringey submitted it is necessary in order to afford protection to H that I hold a fact-finding hearing because she is at risk of suffering harm in the care of the aunt and P. They assert that H is at risk of suffering sexual abuse, albeit perhaps when she is older. The difficulty the London Borough of Haringey had in relation to these submissions is, notwithstanding the fact that at least two of P daughters lives in the London Borough of Haringey and they been aware of K and L’s allegations for a considerable period of time, they have done absolutely nothing(a) to clarify with K and L why they retracted their allegations and why they adopt the stance they do now and

(b) done nothing to undertake even the barest enquiries into the circumstances in which P’s grandchildren visit him at his home. I accept there is some distinction to be drawn between a 21 month old baby living in the household in which P lives and contact taking place between P and grandchildren in the presence of their respective mothers and/or fathers. This distinction does not begin to explain why this local authority, the London Borough of Haringey, have done absolutely nothing to make even the barest of enquiries. It is all well and good to make a concession that more should have been gone or that the stance adopted by the local authority was “not properly thought through”. It was, to put it mildly, a particularly unfortunate set of circumstances. What is more, while insisting that the court should list matter for a fact finding hearing, I was surprised to learn that this matter has not been brought to the attention of the director or assistant director of Children’s Services until today when, at my request, a telephone call was made to take instructions from the director, who was not available, and the assistant director's instructions were taken instead.

[12]At one point, the London Borough of Haringey had indicated if the court decided a fact finding should not take place and approved the placement with the aunt and P, it would institute its own public law proceedings to remove H from their care. I failed to see any legal basis upon which the local authority could in those circumstances satisfy the threshold criteria of s.31(2) or s.38 of Children Act 1989. It appears today that that position is accepted by the London Borough of Haringey and they would not seek to issue public law proceedings in respect of H nor seek her removal, but they now invite me to make a supervision order. This had been sought for the first time at 2.20pm this afternoon. It has never previously been indicated nor raised. It strikes me, very plainly, as care planning on the hoof without any adequate thought being given to the welfare needs of the child at all. I indicated to counsel that I had the impression that the stance by the London Borough of Haringey in relation to H was in terms to protect themselves against any possible adverse criticism in the future and had little or nothing to do with the welfare of this little girl. I have heard nothing subsequently to cause me to change my mind.

[13]There have been assertions by the London Borough of Haringey about why it is that the three young people, in particular K and L, have retracted their allegations made 15 years ago. Reference is made to possible coercion from P or another on his behalf: these assertions are based on pure and simple speculation without a jot of evidence to support the same.

[14]Should I, notwithstanding these matters, direct the matter be listed for a fact finding hearing? I first have to consider the position of the three young people. The London Borough of Haringey submit that all three should be called, under compulsion of a witness summons if necessary, so that they may be cross examined about their allegations and, if they are true, the reasons why they have retracted the same. It would appear in advancing this position, that the London Borough of Haringey has given no consideration at all as to the potential adverse psychological and emotional consequences for these three young people. They would be cross examined about their allegations in front of their father, whether they gave it by video link or from behind a screen or howsoever. They would be cross examined on what are said to be inconsistencies in their allegations and more particularly their retractions of the same; the purpose of which could only be to undermine the credibility of the three of them.

[15]Taking at its highest, what evidence do I have? I have a denial maintained throughout by P. I have no probative evidence from the mother of the three young people. I have no other extraneous material which would assist me in determining the truth or otherwise of their allegations then made and/or of P’s denial. I am left with what K and L said 15 years ago when they were about 17 or 18 in relation to events which had taken place allegedly some 12 years previously. I do not know why, and I will not speculate on why, they made the allegations. It could be they are true. It could be, as they now assert, they had their own selfish reasons as teenagers to make the allegations. It would appear that when contacted without warning they maintained the allegations in November 2016. But in writing, in 2017, they confirmed that they withdrew these allegations and K and L made plain they had no wish to take any part in any court proceedings. It is fair to assume F would take the same approach. They maintained their retraction in a joint meeting with the social worker in November 2017. Inevitably, the retraction is less detailed than the allegation: this does not call into question the veracity of the retraction.

[16]But where does it leave the court? I have 3 potential witnesses who are, to put it mildly, reluctant. The prospects are that they would have to be compelled against their will to attend, if needs be by the issue of witness summonses. They would have to appear in court in person or by video link and be asked the most intimate questions about their childhoods. If they changed their minds in the course of evidence and said the allegations were true and tried to explain the retraction, where would that leave me? Similarly, if they maintain the retraction, where does that leave me? It would frankly leave the girls’ credibility in tatters, even if not left in tatters, their evidence would be extremely unlikely to provide me with the cogent evidence I would need before I could be satisfied that it was more likely than not that the allegations are true. The standard of proof is, of course, the simple balance of probabilities but, given the serious nature of allegations, it does call for cogent evidence before the court could make a finding of fact.

[17]In my judgment, in considering whether I should require them to give evidence, I have to have regard to their Article 6 and 8 rights. All three of them are greatly concerned about their own families and own children and the potential adverse impact on them. To require them to give evidence against their will, for speculative questions, about their past would in my judgment be the plainest breach of their Article 6 and, more importantly, Article 8 rights. I have to balance that against the potential risks to H. In my judgment, I could only contemplate so grievously breaching L, K and F’s human rights if there were a realistic prospect that in doing so I would be able to make findings of fact against P and therefore be able to afford protection to a risk of harm to H. There is no such prospect of the evidence enabling me to make such a finding. I find it would be wholly wrong to act in breach of article 6 and 8 rights of these three young people.

[18]Surveying the totality of the evidence as I have just set out, I am in no doubt whatsoever that the prospect of this court, at the conclusion of any fact finding hearing, being able to make findings of fact against P in relation to the sexual abuse allegations previously made against him by K and L is remote in the extreme. Accordingly, I see absolutely no purpose or benefit – still less that it is necessary – to hold a fact finding hearing.

[19]In order to ensure that H is protected against any unwarranted further court application, I will direct that any private law or public law application should be reserved to me and accordingly upon issue any such application, if made, should be immediately be allocated to me.

[20]The London Borough of Haringey would do well at a very senior level to reflect very carefully on their actions – or more properly their lack of actions to date – and what future courses and steps they should take in respect of this family only after the very closest and careful examination of the facts and of the realistic risks that exist, if any, in this case.

[21]I see no basis for acceding to the application made very, very late in the day by the London Borough of Haringey that I should make H the subject of a supervision order. There is not a jot of evidence that the T and P will not readily cooperate with the local authority in any steps they wish to take to visit, to support or to check upon the wellbeing of H now or in the future. Accordingly, the application for a supervision order is dismissed.

Order

although the aunt may have a preference for the court to make a Special Guardianship Order in her favour. For the purposes of this judgment, that distinction matters not.