B (Children: Uncertain Perpetrator)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Lindblom,Lady Justice King |
| Judgment Date | 04 April 2019 |
| Neutral Citation | [2019] EWCA Civ 575 |
| Docket Number | Case No: B4/2019/0311 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2019 |
[2019] EWCA Civ 575
Lady Justice King
Lord Justice Lindblom
and
Lord Justice Peter Jackson
Case No: B4/2019/0311
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL FAMILY COURT
HHJ Meston QC
ZC18C00400
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Stevenson (instructed by Avadis & Co Solicitors) for the Appellant
Father Sally Bradley (instructed by London Borough of Islington) for the Respondent Local Authority
Saiqa Chaudhry (instructed by Steel and Shamash) for the Respondent Mother
Caroline Budden (instructed by TV Edwards Solicitors) for the Respondent Children through their Guardian
Hearing date: 26 March 2019
Approved Judgment
Introduction
This appeal raises a question of principle about the proper approach to the identification of a perpetrator in circumstances where children have suffered significant harm as a result of alleged ill-treatment. It is the father's appeal from a conclusion reached in care proceedings by HHJ Meston QC, sitting in the Central Family Court on 24 October 2018. On that date the Judge gave his decision following a three-day hearing earlier in the month. The father sought clarification of the judgment, but this was not received until 18 January 2019. On 7 February, he issued an appellant's notice and on 28 February, Moylan LJ granted permission to appeal.
The proceedings concern four children, who I will call Eli (now 12), Zoe (10), Alissa (8) and Maggie (5). The local authority issued the proceedings in June 2018 after the three girls had been found to be infected with gonorrhoea. The conclusion from which the father appeals is contained in paragraphs 81–82 of the judgment:
“81. … Although I am not able to say definitely that [the father] was responsible for the infection of the children, I am not able to exclude him as there must remain a real possibility of him having caused this infection in some way…
82. Accordingly, I find nothing more than that the father is within a pool of possible perpetrators with other unknown males who may have had access to the children, or at least one of them, including the two young men in the family home.”
Mr Stevenson for the father, supported by Ms Chaudhry for the mother, argues that the Judge applied the wrong legal test, that the decision is internally inconsistent, that there were significant gaps in the evidence, that proper consideration was not given to such evidence as there was, and that in the end the finding that the father is ‘in the pool’ was unfair and has no meaningful forensic value for the welfare stage of the proceedings.
The local authority and the Guardian filed skeleton arguments in opposition to the appeal but by the time they came to make oral submissions Ms Bradley and Ms Budden, neither of whom appeared below, realistically accepted that the Judge's decision could not be sustained. At the end of the hearing we announced that the appeal would be allowed and that the matter would be remitted for rehearing, with an immediate case management hearing being listed before Theis J as Family Division Liaison Judge. I now give my reasons for concurring in this decision. As there is to be a rehearing at which all options will remain open, I say nothing as to the eventual outcome, beyond registering concern that the children, who have been in foster care since June 2018, have already been awaiting a decision for so long.
Background
The family first became known to the London Borough of Islington in 2010 due to concerns raised by hospital staff about the mother's disengaged presentation. At the time they were living in Haringey where in the following year the children were subject to a child protection plan (CPP) under the category of emotional abuse and neglect. The pre-proceedings process began but it ended in late 2012 when the family moved to Islington, where the CPP continued. Concerns about a pattern of avoidance and disengagement with professionals were noted but the CPP ended in 2014.
In August 2017, the family was evicted from its home due to rent arrears. They obtained temporary accommodation in Thurrock but were evicted from there in February 2018. Thereafter, Thurrock Council placed the family in further temporary accommodation – 2 days in a hotel, 14 days in a caravan in Southend and 14 days in a caravan in Lincolnshire. In mid-March 2018 the family moved to live with family friends in Brixton, where the mother and four children shared a room. There were also three women, two men and a 14-year-old boy living in the property. There is a dispute over whether the father lived there for the first two days but from then on he appears to have lived elsewhere due to space issues, coming to the property each day to take the older three children to school – they had continued to attend schools in north London.
On 15 May 2018, the mother told the father that Maggie had discharge in her underwear. They agreed to keep it under review and on 17 May, the father took Maggie to the doctor. Tests were positive for gonorrhoea. The GP made a referral to social services. On 25 May, the mother took Maggie to the GP for further testing, and samples tested positive for gonorrhoea in the vulva, mouth and anus.
On 4 June, the mother and all four children attended an appointment with Dr Harris, consultant community paediatrician. Dr Harris confirmed the diagnosis of gonorrhoea in Maggie and informed the mother of the serious nature of the matter and of concerns as to sexual abuse. The mother said that the children could not have been sexually abused as she looked after them; instead the gonorrhoea must have been acquired from an unclean toilet seat, given they lived in a house with a number of other adults. Dr Harris spoke with the children in the absence of the mother but no disclosure of abuse was made. She noted that the children's answers “appeared genuine, spontaneous and appropriate for children of their age.” She examined the three girls and noted a normal genital examination with no signs of hymenal injury, though in Zoe's case discharge was present in the vulva. Dr Harris' conclusion was that in the absence of sexual abuse allegations an evidence-based explanation remained lacking, but she considered that the adults had been severely neglectful.
Testing of Zoe and Alissa also gave positive results for gonorrhoea, although it is unclear whether swabs were taken at all sites. Eli tested negatively. Each parent was tested (in the father's case twice) and both tested negatively. The father's GP confirmed that there was no record of his being previously infected or treated.
On 5 June 2018, the police exercised their powers of protection in relation to all four children and placed them in foster care, where they remain. Both parents were arrested on suspicion of sexual assault and neglect. Each made prepared statements in interview denying the allegations against them and expressing their shock.
On 6 June, the local authority issued proceedings and on 7 June obtained emergency protection orders. Interim care orders were made on 13 June.
Dr Ahmos Ghaly, consultant in genitourinary medicine, was jointly instructed. His report stated that:
(1) “A positive culture for N gonorrhoeae from any site in a child without prior peer sexual activity is strongly suggestive of sexual abuse. The question of whether gonococcal infection in children can be acquired through fomites [objects likely to carry infection] still arises. To date there are no convincing data to support nonsexual mode of transmission in children.”
(2) “It is worthwhile stating that failure to identify an infected perpetrator does not rule out the possibility of sexual abuse, since treatment may render an individual culture negative within hours of therapy. The latter treatment is a simple one dose of antibiotics and the suspect may be treated before being tested.”
(3) “It is possible that one child got infected sexually and transmission to others took place through the infected child if it can be seen that there were intimate sexual contact.”
(4) “Other route such as sharing infected towels, fomites, underwear have not been substantiated and established.”
(5) “The incubation period range from 3 days to 14 days. N gonorrhoea cannot survive outside the body for any significant length of time.”
(6) “It would have been beneficial to obtain/identify all adult contacts who came in touch with the children at the material time and obtain all relevant GUM [genitourinary medicine] medical notes if possible.”
(7) “It therefore follows that it is difficult to establish with any degree of certainty the exact source and causal link of the children's gonorrhoea. However in all the circumstances of the case sexual mode of transmission is more likely.”
Dr Ghaly also responded to some specific questions of clarification. In particular he was asked whether gonorrhoea could be transmitted from sitting on a toilet seat. His response was “very unlikely.” In oral evidence he said that it was likely that the infection occurred earlier in May and that these children had been in contact with “multiple adults” of whom he did not have details or information as to whether they had infection.
The four children were interviewed under ABE conditions. While the interviews do not appear to have been particularly skilfully conducted, none of the children made any allegation of sexual abuse.
The police investigation did not lead to any further action. The occupants of the south London property were treated as witnesses, not suspects (so no samples were taken from them), and little detailed information was gathered about the circumstances in which the children were living at that address. Nor was any information obtained through the family proceedings, despite the Guardian having clearly...
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