P (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Patten |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1346 |
| Date | 30 July 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/0635 & 0635(B) |
[2019] EWCA Civ 1346
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL FAMILY COURT
His Honour Judge Oliver
ZC18C00402
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Ryder (THE SENIOR PRESIDENT OF TRIBUNALS)
and
Lady Justice King
Case No: B4/2019/0635 & 0635(B)
Ann May (instructed by Oliver Fisher Solicitors) for the Appellant
Jane Hayford (instructed by Duncan Lewis) for the Respondent mother
Christopher Poole (instructed by the Royal Borough of Kensington and Chelsea) for the Respondent Local Authority
The Child and the Children's Guardian were not represented but written submissions were provided by Shrutee Dutt of Creighton and Co
Hearing dates: 19 th June 2019
Approved Judgment
This appeal arises out of an order made by HHJ Oliver on 13 February 2019 by which the judge made findings of fact against the appellant intervenor (the intervenor) in care proceedings concerning a child, P, who was born on 12 October 2015. The intervenor is the former fiancé of P's mother (the mother). The intervenor seeks an order whereby the challenged findings are substituted by an amended threshold document limited in its terms to matters in respect of which he has, consistently throughout the proceedings, made admissions.
Neither the local authority nor the children's guardian seek to uphold the judgment and therefore neither oppose the appeal being allowed. They each accept that the threshold is crossed in the terms of the intervenor's proposed amended threshold and they do not invite the court to remit the case for a fact-finding hearing in respect of the findings which are the subject of this appeal.
The mother, whilst accepting that the judge's judgment contains what Miss Hayford, on behalf of the mother, described as “gaps”, seeks to persuade the court that the judgment should be upheld and the findings, at least to some extent, remain.
In order to avoid any further delay in the making of decisions for P, the parties were informed at the hearing that the appeal would be allowed and that no further fact-finding hearing would be necessary. What follows are my reasons for allowing the appeal.
Background
The mother, having known the intervenor as a child, re-established contact with him via the internet at a time when she was living in Switzerland. The mother has two significantly older children from previous partners, each of whom live with their respective fathers. The mother moved to live with the intervenor in the United Kingdom with P in February 2018. Upon her arrival in London, the couple became engaged almost immediately, planning to marry in November 2018. The mother and P moved into the intervenor's accommodation, a residence which was little more than a bedsit. Notwithstanding the size, also living there was a Mr V and a third man named D. Mr V has criminal convictions dating from the 1970s for sexual offences against boys.
The home conditions were therefore poor, described by the social worker, and accepted by both the intervenor and the mother, to be “appalling” and “squalid”. P, then about 2yrs 5 months old, shared a bed with Mr V. The judge described this situation, in what might be thought to have been a significant understatement, as: “not have (sic) been a very good environment in which to leave P”.
On 30 May 2018, the intervenor went to see his general practitioner, conscious that he was having mental health difficulties. He told his GP that he had kicked the mother that morning and admitted to “lashing out” at P when she did something wrong by “tapping her bottom”. The doctor made a referral to social services. Social workers accordingly went to the property to speak to the mother and to the intervenor on 5 June 2018. During that visit, the mother and the intervenor told the social workers he had a “temper” and would “explode”. They further admitted that the intervenor had caused bruising to P by smacking her when she had no nappy on, and that he had kicked the mother, they also told the social workers that P was sharing a bed with Mr V. The intervenor admitted to having sexually touched his own sister when he was 16 and she was 5 years old.
The following day on 6 June 2018, a child protection medical examination was undertaken by a Dr Ahmad. The doctor noted “a number of bruises, a scratch mark in a linear scar”; eleven injuries in total. The doctor considered the marks could be consistent with the explanation and mechanisms which had been described by the mother, namely that they had all been caused by the intervenor. The mother was interviewed by the police on 6 June 2018 in which she repeated that the intervenor had been violent towards both her and P. She made no allegation of sexual violence and said that she was not scared of him as he had “promised not to hurt P again”. The intervenor, when interviewed under caution, admitted to kicking the mother, throwing items which hit her, shouting, causing bruising to P's bottom, and “shunting” P with his legs when she was “annoying the dog”.
The mother twice rejected the local authority's offers to move her and P to safe, alternative housing. Given the circumstances, the mother's refusal meant that the police felt that they had no alternative but to exercise their powers of protection in relation to P, and P was placed in foster care on 6 June 2018. On the same day, the local authority issued care proceedings and an interim care order was made. This child, still only 3 years 8 months, has therefore been subject to proceedings and in a short-term foster placement for 12 months of her short life.
The proceedings
The intervenor was joined as a party on 9 July 2018. He filed a statement in the same terms as his admissions to the police. He accepted that P had suffered significant harm as a result of the care that he and the mother had provided and that the home environment was unsuitable. Subsequently, on 13 July 2018, the police interviewed both the mother and the intervenor under caution on suspicion of child cruelty and neglect.
On 2 August 2018, the mother was again interviewed under caution. During the course of that interview the mother was challenged about the state of the premises and the fact that she was letting P “sleep with a 70-year-old man” (Mr V). The mother said that she “stayed awake all night watching them”. The police pressed the mother, asking her why she did not simply put P into bed with her. The mother's response was that the intervenor would want sex and wouldn't want P in the middle. There then followed this passage:
“Q. So would you be having sex then when your daughter's in bed next to you?
A. No, I didn't even want to.
Q. So you didn't want to?
A. No, I didn't want. He was forcing me sometimes to do it and when I don't want to.
Q. So he was forcing you to have sex? What, did you consent to have sex?
A. I didn't want it but he kept forcing me sometimes.
Q. So did he rape you then “is that what you're saying”.
A. Sometimes maybe he is.
Q. Sometimes yes?
A. Because when I don't feel like…. don't feel it, he forces me to do it.
Q. So your saying your saying that F has raped you in the past?
A. I'm only saying sometimes I don't want to do it, he forced me, that's all I'm saying.”
As a consequence of this exchange, a new investigation, now of rape, was opened.
The court had before it a document known as CRIS Live. This document records details of the investigation into the alleged rape(s). The investigation sheets record the considerable efforts to which the police went in order to progress the investigation between 2 August 2018 and December 2018. The mother was difficult to contact but, eventually, arrangements were made by the police to meet her at locations which would be familiar and convenient to her. Attempts were also made to arrange a VRI (Video Recorded Interview). Miss Hayford, on behalf of the mother, accepts that the mother failed to keep any of the appointments which were made by the police and which would have allowed the police properly to investigate the case.
Inevitably, given the mother's singular fail to cooperate, the police took no further action.
Meanwhile, the care proceedings progressed. By 13 December 2018, the court had the benefit of a cognitive assessment of the mother which had been prepared by a psychologist, Dr Gary Taylor, who found the mother's full-scale IQ to be 72, putting her in the borderline range of intellectual functioning with a reading age of 10 years. The court also had a phycological report prepared by a Dr Julia Heller, a consultant forensic clinical psychologist, dated 24 July 2018. Dr Heller is an expert specialising in the field of personality disorder and risk assessment; she diagnosed “dependant personality disorder” in respect of the mother. It is not necessary for the purpose of this judgment to go into the detail of that report, but simply to observe that Dr Heller said:
“The essential feature of this disorder is a pervasive need to be taken care of that leads to submissive behaviours and fear of separation. The disorder is characterised by passivity and a reliance on others to make decisions. People with this diagnosis often have difficulty expressing disagreement with other individuals, especially those on whom they are dependent.”
Finally the court had before it a lengthy multi-disciplinary family assessment of the mother dated 15 October 2018. The report, whilst very significantly redacted, was written on the basis that the assessors were fully well aware of the mother's additional allegations, both of rape and the mother's allegation that the intervenor was guilty of controlling and coercive behaviour. The assessment (as yet untested by cross-examination) paints a tragic picture of the unmitigated brutality of the mother's own upbringing which, it says,...
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