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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> LA v KH & Ors [2014] EWFC B68 (OJ) (4 June 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B68.html Cite as: [2014] EWFC B68 (OJ)

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IN THE FAMILY COURT
SITTING AT SHEFFIELD
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF LA (A CHILD)

		April/27-29 May 2014 This Judgment was handed down on 4th June 2014

JUDGE CARR QC:

INTRODUCTION

1. This case concerns a little girl LA born on 9^th October 2013. She has spent her life in the care of the third respondent, TG, and her husband, the intervener, DG. The case arises out of allegations that have been made regarding the conduct of the third respondent, TG, and the intervener, DG, as to their suitability to offer long term to LA. At present LA lives with the third respondent, TG, and the intervener lives elsewhere. They are, however, a couple and would wish to care for LA jointly. The findings sought by the local authority do not go to threshold but are a discreet matter concerning the third respondent TG and the intervener DG.

PARTIES TO THE FINDING OF FACT

2. The parents, KH, the first respondent mother, and KR, the second respondent father, accept that they are unable to provide care for their daughter but are supportive of LA remaining with the third respondent TG and intervener DG. The third respondent and intervener, TG and DG, have been together for some eighteen years and married two years ago. They have a child together EG who was born in September 1996 and lives with his parents. TG has three older sons by another man and the father of LA, KR is her middle son by that former relationship. DG was in a relationship 20 years ago with a woman by the name of LS and she has a child SR who was born on the 10^th January 1990 and is the complainant in some of the allegations against DG. SR regards DG as her father, even though he is a stepfather, and he has been the father figure throughout her life. LS and DG had another child together, a young man who is now aged 21 years, JG. JG is in relationship with a young woman, K, and together they have had a son, R, born on 23^rd July 2013. This young couple care for R but the family dynamics have caused them some difficulties. The other relevant party is KC who is a good friend of SR.

ALLEGATIONS

3. The schedule of allegations drawn up by the local authority is as follows.

Allegation 1: It is alleged that the third respondent, TG and intervener DG, deliberately withheld important information that DG was the subject of a police investigation in relation to an allegation of rape and they did so knowing full well that this would impact upon their case to care for the child LA.

Allegation 2. It is alleged that in early August 2013, DG exhibited inappropriate behaviour by commenting upon his stepdaughter's, (SR) breasts.

Allegation 3. Over the weekend of the 16^th August 2013 DG whilst in the Hedonism Club, Rotherham, proceeded to slap his stepdaughter, SR, on "her bum" and groped her. He then proceeded a short while later to grab her and push one of his fingers in between her buttocks over the top of her clothing.

Allegation 4. On Saturday 17^th August 2013 between 3.45 a.m. to 10.55 a.m. whilst in the living room at DG's home he indecently assaulted his stepdaughter, SR, on four separate occasions. On three occasions he groped an squeezed her breasts. On the fourth occasion he tried forcing his hand into her knickers and felt her pubic area.

LAW

4. The position is clearly settled by several cases but not least Re. B (Children) 2008 [2FLR] 141 which made clear that the burden of proving the findings that the local authority invite the Court to make rests on the local authority throughout. The standard of proof to be applied is the simple balance of probability and Baroness Hale of Richmond explained at paragraph 70, "The standard of proof in the finding of fact necessary to establish the threshold under Section 31(2) of the Welfare Considerations and Section 1 of the 1989 Act is a simple balance of probability, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account where relevant in deciding where the proof lies".
5. The effect of this ruling is described by Lord Hoffman in Re. B as follows. "If the 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 finding that it might have happened. The law applies a binary system in which the only values are nought and one. The fact either happened or did not. If the tribunal is left in doubt the doubt is resolved by the 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 nought is returned and that is treated as not having happened. If he does discharge it a value of one is returned and the fact is treated as having happened.

WRITTEN EVIDENCE IN THE CASE

6. As will be apparent the local authority case rests on the evidence of DG's stepdaughter, SR, and her friend, KC. The evidence that has been generated is voluminous, stretching to two lever arch files. The papers reveal that the police investigation launched as a result of SG's allegations has been tortuous and lengthy. It is now known that DG is to be charged with indecently assaulting SR and also with an historic allegation of rape against SR's mother, LS. Although forming no part of this finding of fact the evidence in relation to the rape allegation made by LS is contained within the police disclosure, as all the papers have been revealed to the family court. Suffice it to say in respect of the rape allegation; at best it amounts to a single allegation over 20 years ago that so far as is known has never been mentioned before. This is notwithstanding that although for a period of time LS looked after her children, SR and JG, certainly for the last ten years or so the primary carer of JG ( and SR) has been DG, the intervener, and TG, the third respondent. I have not heard from LS but I have of course heard and listened to the complaints by SR. I need only say at this stage that the evidence in relation to the rape allegation only came as a result of the allegations made by SR, that much is apparent from all the papers, to some extent it appears as if they are interlinked but the local authority have chosen not to pursue any findings in respect of the historic rape allegation.
7. It has only recently come to the Court's attention that DG is likely to be charged because CPS have made a decision to proceed and it appears as if DG will be reported by summons and receive that summons at some stage through the postal services. There has, unfortunately, been a failure by the police to comply with the national protocol which came into force on 1^st January 2014.

PROGRESS OF PROCEEDINGS

8. Rotherham MBC's case was issued on 18^th October 2013. The allegations were made by SR in respect of DG's conduct on 4^th September 2013 and DG was interviewed by the police on 3^rd October 2013 in relation to, not only SR's allegation but also LS's allegation in respect of the 'rape' occurring over 20 years ago. What is apparent is that the allegation of rape only came to the local authority's attention on 14^th February 2014. I am satisfied that up to that point the local authority were not aware that DG was being investigated for the historic rape allegation. On the 27^th February 2014 the local authority sought to remove LA from the care of TG but did insist, that DG left the matrimonial home which he had returned to in December 2013. It was only on the assurance that DG left the home that LA was able to stay there and this finding of fact was set up.
9. There was an IRH on 1^st April 2014 with the plan that the case would start and be heard on 7^th April 2014. The police officer in charge of the case, DC Lewis, attended court to give evidence as to the progress of the police inquiry which seemed to have run to ground from about October 2013. DC Lewis gave evidence and the case was ready to proceed with SR giving evidence after DC Lewis. In fact SR had vacated the building unbeknown to all but later indicated that she was wiling to give evidence and be cross-examined. Due to the loss of time the case was adjourned to be heard on 27^th and 28^th May 2014 in the hope that by then the police and/or CPS would have made a decision as to where the allegations were going. As earlier indicated CPS have decided to summons DG in respect of the historic rape and the allegations of indecent assault as earlier set out as allegations 2,3, and 4.

ORAL EVIDENCE

10. The Court heard from eight witnesses in all. DC Lewis on 7^th April 2014 and on 27th/28th May 2014, SR, her friend, KC, the manager of a night club in Rotherham called Renoirs, Mr WC. DG and his son, EG, together with his stepson, JG, and the third respondent, TG. I will deal briefly with each witness and the evidence they gave.

DC ROBERT LEWIS

11. He is the officer in charge of the criminal investigation. He informed the Court that in respect of the rape allegation he had sought advice from CPS on the 2^nd April 2014 and that the cause of the delay had been that further statements had been required from LS and her now partner and he also informed the Court that SR's friend, KC, had failed to come forward and had indicated that she no longer wished to make a statement. He informed the Court that there had been a lot of correspondence. He had great difficulty in getting in touch with SR and confirmed that DG had been interviewed on the one occasion on 3^rd October 2013. Surprisingly, he made it clear that he had not informed Rotherham Social Care of the rape investigation as he took the view it was not his role to provide such disclosure. He took no responsibility for the failure to share this matter with the social worker involved, even though he had been in conversations with the social worker. He told me that he was unaware of the existence of the disclosure protocols and provided the Court with a time frame for the further investigative work that he had to undertake and he believed that a decision on prosecution by CPS could be expected in early May as indeed has turned out to be the case, although DG has yet to be summoned.

SR - DG's STEPDAUGHTER

12. SR attended to give her evidence on 27^th May 2014. She was treated as a vulnerable witness and gave her evidence behind screens, pursuant to her request. Her evidence was principally contained within her police statement and Rotherham MBC had not taken further evidence from her. The local authority tended SR for cross-examination which was conducted by Ms. Quinney on behalf of DG.
13. Essentially in relation to allegation No. 3, it was clear that the evening of 16^th August 2013 carrying on until the 17^th August 2013 that the family chosen to celebrate JG's 21^st birthday. SR had gone out with her half-brother, JG, and only later met up with DG and TG. It was quite plain from her evidence that it had been a big family celebration and she told the Court of the difficulties that she was having with her brother, JG, regarding his child, R. It is quite plain there have been difficulties about her mother, LS, seeing her grandchild, R, because JG did not wish it. She also accepted that there had been some conversations between herself and DG regarding money that she had borrowed from, his mother, her step grandmother and also the fact that she owed DG money as well. She gave her evidence in such a way that Ms. Quinney was able to demonstrate that it bore little resemblance to the allegations that she had made to the police. The only evidence in respect of Allegation No. 3 comes from SR and it is of course refuted by DG entirely. SR suggested that she was indecently assaulted in the Hedonism Club on two separate occasions. When taken as a whole SR's evidence of what happened, she says, in the Hedonism Club is inconsistent with her statement and it seems unreliable. In oral evidence she said of DG "He slapped me on the bottom. I did not take it nicely. I had a go. He said, 'What's up?' That was it". At that point she confirmed that nothing else had happened but then said "He put his finger in my bum crack". This was not consistent with her account to the police (F62) which describes more than one incident. In her evidence she describes molestation of her friend, KC, suggesting "my dad had picked her up (KC), wrapped her legs round Dad, round his waist. I saw that close up", This was totally at odds with what KC herself said and as such it seems highly unlikely.
14. In respect of Allegation No. 4, SR gave evidence that she was indecently assaulted on four separate occasions in circumstances where she came back in the early hours of 17 August 2013, following JG's party and decided to go to bed on the settee in DG and TG's living room, even though she no longer lived at their home. The description of the four alleged assaults occurring when, on her own account, SR had had a fair quantity to drink and was most likely drunk, was not credible, in that she maintained she simply stayed there, apparently when these four separate assaults took place. When taken with the other evidence it is difficult to understand the way in which SR puts this allegation.
15. In respect of Allegation No. 2 this came out for the first time when SR made her complaint to the police in September 2013. The evidence in respect of Allegation 2 comes solely from SR. It is quite clear that she alleges the occasion occurred when the family were having a barbecue and it is clear that SR was living with DG and TG at this time and she simply says that the incident freaked her out a bit, but her Facebook entries throughout July are in friendly and courteous terms to DG with not a mention of any incident whatsoever.

KC - SR'S FRIEND

16. KC came and gave evidence and insisted that she had been the victim of inappropriate remarks and touching by DG on the occasion of JG's 21^st celebrations on 16^th August 2013. She insisted that she had no reason to lie, otherwise why would she make the complaint and come to Court. She did, however, confirm that had it not been for SR she would not have pursued the matter and had not made any complaint to the police. The local authority do not seek separate findings in relation to the alleged touching by DG of KC on the night 16^th August 2013. The nature of the allegations by KC is that she alleges that DG picked her up and had her wrap her legs around him. KC is adamant that that incident happened in a night club known as Renoirs and certainly not at the nightclub Hedonism as is suggested by SR. They were both trying to describe the same incident but on all accounts everyone, even SR, accepts that she was not present in Renoirs and therefore could not have seen the behaviour that KC told me about. KC also failed to mention that apparently DG had tried to kiss her even though the statement that she gave to the local authority, which was relied upon during the course of this hearing, mentioned it.
17. On any view of KC's evidence it would have taken place in the plain sight of TG and KC insisted that DG was on his own when he followed her between the two cluds, Hedonism and Renoirs. All the other evidence in the case, including that of SR, is that the group left the Hedonism nightclub together and DG was not on his own. In evidence KC identified the friend she was with who could apparently have corroborated her account, but KC was clear her friend did not wish to get involved, as indeed KC confirmed that she herself would not have made complaint.
18. KC made an account of what she said happened on her mobile telephone but subsequently deleted it. As indicated no findings are sought but there are numerous inconsistencies in the account given by KC as against the other evidence.

Mr W.C.

19. Mr. W.C was the manager of Renoirs nightclub. He was an acquaintance of TG and DG in terms that he knew TG's sons. He came across as a straightforward young man who was clear in his evidence that as the acting manager at Renoirs his job was to scan the CCTV and ensure that no drunken people entered the night club and that he kept an orderly house. It is quite clear from his evidence, which I accept, that at Renoirs he spent a large portion of the evening chatting with DG and TG. He confirmed that TG had little to drink, although DG had consumed alcohol, but was not drunk. He saw no incident involving DG with any young woman and stated that TG was with him in Renoirs all the time. He told the Court that Renoirs was the last venue in Rotherham to close and that there were periods when it was quiet and periods when it was busy. He recalled that TG and DG left at around the club closed, at about 5 a.m. in the early hours of 17^th August 2013.

DG.

20. DG throughout the proceedings has been unrepresented, being unable to obtain public funding. On the delay to the proceedings on 7^th April 2014 he indicated that he had sought an appointment with a solicitor and it was part and parcel of the reason for adjourning the case to the 27th/28th May. At this hearing by way of direct access he engaged the services of counsel, Ms. Quinney, but all the paperwork in the case prior thereto had been his. He gave evidence in accordance with his statement which was detailed and exact. I was impressed with his evidence and it was clear that he had done considerable work in trying to piece together the events of that evening.
21. In respect of Allegation No. 1 he insisted, and in this regard I accept his evidence, that he believed the matter would have been dealt with by the police and as far as he was concerned the allegation of rape was simply malicious.
22. In respect of Allegation No. 2, involving the barbecue, he had brought together other evidence in the form of his son, JG and his wife, TG and was clear that the thing that struck out in his mind was that he had had a fair amount to drink, he was pushed into a pool and had to go upstairs to get changed and there he had a frank conversation with his son, JG, in that he (DG) informed JG that he could not afford a pram for his newly born grandson, R. There was never an incident involving SR and it was fabricated.
23. In respect of Allegation No. 3, he had a clear recollection of what he was doing and in particular that he was at all times with his wife TG enjoying the evening out celebrating JG's birthday. His account was clear and consistent and supported by Mr. WC who had no reason to lie. In terms of his communications with his daughter, SR, by way of Facebook, it was apparent he had no idea whatsoever what she was talking about. I found DG to be a straightforward and honest witness.
24. In respect of in Allegation No 4, I accept his evidence. I am satisfied that he walked home arriving at about 6 AM on 17 August 2013 and fell on the sofa into a deep sleep and although his stepdaughter SR was asleep on another sofa nothing untoward happened.

EG

25. EG was 16 at the time of JG's 21^st celebrations. He was not a party to the celebrations but instead stayed at home so he told me because he was under age. He came across as a diffident young man who had, in my view, attended Court to tell the truth. He told me and was clear in the evidence he gave that when he got up in the morning to go to work, his father was downstairs asleep wrapped in a blanket and he (EG) was concerned about getting to work. I asked him whether or not his father was wearing any clothes and he simply stated that he could not see due to the blanket. This to my mind was important because SR had said DG was naked and if EG was simply trying to protect his father then one would have expected him to state that his father, DG, was fully clothed but all he told me was that he never recalled seeing any pile of clothes on the living room floor and that it seems to me to be in contradiction to the evidence of SR and it is EG's evidence I accept. It was also pertinent that EG was aware, because he woke up, that in the early hours of the morning his parents had come back. The time frame for the alleged assaults to have taken place is therefore very small indeed, if I accept the evidence from DG that he came home by 6 a.m. which would accord with EG's evidence and that EG was up and about by 8.30 a.m. on 17^th August 2013, when SR told me she got in sometime after 3am on 17 August 2103, it seems highly unlikely that SR's allegations aretrue.

JG

26. JG set out his recollections of the barbecue incident, Allegation No. 2, and also Allegation No. 3. He came across as a straightforward young man who was plainly proud of his newly born son, R, and of his relationship that he has with his partner and his partner's family. He told the Court that he knew his father was upset on the occasion of the barbecue that he was unable to buy him the pram for R. I am quite satisfied that he was present at the time DG was meant to have behaved inappropriately to SR. I accept the evidence that was given by JG that nothing of the sort happened and likewise in relation to allegation No 3 when by all accounts JG was present for a large part of the time.

TG

27. TG was the last to give evidence and she confirmed her statement to the Court and also to the police. She told me of the happy relationship she and DG enjoyed and that how pleased she was that their five sons got on with each other and enjoyed each other's company. She came across as plainly devoted to her granddaughter, LA. She told me of the incident at the barbecue (allegation 2) when she went upstairs and found JG and DG talking about the pram for R. She confirmed that SR was upstairs but that she left and went downstairs. I am satisfied that TG had a clear recollection of the barbeque.
28. She gave evidence that she went out for the celebrations in respect of JG's birthday, but that SR did not go to Renoirs and that she (TG) spent the evening with DG and his conduct did not give her any cause for concern that evening. She recalled that they arrived back home at 5.15 but there had been difficulties with the taxi driver and in fact DG had walked the couple of miles from the centre of Rotherham to where they lived. He got in at about 6am, and because she took the view he was the 'worse for wear', so when he fell asleep on the settee she covered him with a blanket and at the time she got it, SR was still awake and so she provided her with a pink dressing gown and a black and white rug to enable her to go to sleep and thereafter she (TG) went upstairs to go to sleep and only got up when she heard movement in the house.
29. TG adamantly denied an allegation made by SR that she had thrown SR's clothes in the street. I accept her evidence and I am satisfied that she took SR's clothes to JG's home where SR was temporarily lodging. I found her to be an honest and straightforward witness in the terms of how she gave her evidence.

FINDINGS

30. In respect of Allegation No. 1 which concerns not only DG but also TG. The essence of the allegation is that TG and DG deliberately withheld from social care the details of the historic allegation of rape in the knowledge that this would detrimentally impact on their joint wish to care for LA. The social worker's view is set out in the safe care assessment (C87) and final statement (C109) and reiterated in the position statement (C140). I fully accept that it was not until the 14^th February 2104 that the police made the local authority aware of the further investigation in respect of the historic allegation of rape against DG about which he had been questioned about on the 3^rd October 2013. It is quite clear that neither TG or DG had made any reference to this matter in their discussion and assessment sessions over the intervening months and the social worker concluded, "this conscious decision made by the couple has completely undermined all the assessment work undertaken with them" and as such it was the view of the local authority, certainly on the 27^th February 2014 that LA should be removed.
31. Of greater importance is the police's failure to share this important information with the local authority and indeed the guardian expressed her view forcibly in her position statement (C218). Having listened to the oral evidence of TG and DG and the matters contained in their statements I consider they were entitled to expect social services to have been informed by the police. I am quite satisfied that DG and TG regarded the historic allegation as malicious arising out of the allegations made by SR. It does seem preposterous that a 20 year gap should exist in circumstances where the alleged victim of the rape, LS, allowed her daughter, SR, and her son, JG ,to reside with DG and TG. I consider it is unfortunate that this did not come out in discussions between the relevant parties but I do not regard the acts of either DG or TG as deliberate. TG gave clear evidence before me and her devotion to LA shone through and had she any thought that this would impact on her care of this much loved grandchild I have no doubt at all that she would have informed the authorities. The actions of the couple in terms putting their relationship after the care of LA are impressive. Following the allegations made by SR, DG had to leave his home and go and reside with his mother and was only allowed back into the home on the 5^th December 2013. This shows real commitment to LA and had TG & DG realised the impact it would have had on the future care of LA I have no doubt at all that they would have informed the local authority. The most that can be said is this is naivety and a lack of understanding of the process, and of course given the long relationship between TG and DG, when she has never had any cause to question his behaviour either to her or to any of the children, it is hardly surprising that they regarded the allegation of rape as malicious.
32. Allegations 2, 3 and 4 all relate to SR, DG's stepdaughter. Allegation 2 is solely reliant on the evidence of SR. Her account is disputed by the combined testimony, both oral and written of DG, TG and JG, who were all present on this alleged occasion. DG, TG and JG all provide a clear consistent and simple account of events of that afternoon. It is plain that SR was living with DG and his family at the time but she made no steps at all to mention this matter until 3^rd September 2013 when she made her complaint. However, she says (F61) "This freaked me out a bit" but nonetheless she continued to Facebook message DG and seeking his support and advice (C156). I do not find this allegation made out.
33. Allegation 3, Hedonism Club. The only evidence to support this comes from SR. It was not witnessed by SR's friend, KC, and in the oral evidence of TG and JG neither saw anything inappropriate. Even by her own account SR had drunk a substantial quantity as likewise had DG. SR essentially alleges that DG groped three women who were known to him, herself, JG's partner K and a young family friend and this in the full view of his wife, TG, his son, JG and the father of JG's partner with whom all acknowledge DG was speaking to. Nobody intervened and I am left with the clear view that they did not intervene because it is did not happen. I consider Allegation 3 can be safely discounted and has not been proved.
34. . Allegation 4: indecent assault. SR's account is not supported by any other evidence and whilst DG denies absolutely the matter, there is substantial circumstantial support, particularly from his son EG and his wife TG. Set against this background is SR's account that there have never been any incidents at all of inappropriate behaviour by DG towards her in all the period that she was growing up. Her evidence was that she did not go to her brother's JG's house where she was then living, but chose to go back to DG and TG's house. Given the time of year it would have been light and it is unclear that if the first incident of indecent assault had happened why she did not leave immediately to go to JG's home. However all the evidence suggests that DG did not get in until 6 a.m. and fell asleep, his family support the fact that he sleeps heavily and is difficult to wake up. Certainly on the morning of 17^th August 2013 his son, EG, gave up trying to wake him up. The fact that on SR's evidence she fell asleep four times does not suggest any trauma or fear and all of this would pretty well have had to have taken place in broad daylight. SR maintained that her dress was manhandled by DG in the assaults, but TG says that SR had changed and gave detail of the neatly folded dressing gown left on the sofa by SR, which is not an act of someone who was fleeing DG in distress. It is absolutely clear that DG did not know what SR was talking about when she started to Facebook him as the entries show.
35. SR also provided Facebook entries that those records do not accord with the evidence that she gave and therefore she was driven to say that the Facebook entries must have been hacked. I do not find that Allegation No. 4 proved.

CONCLUSION

36. It will obviously be a matter for the CPS to decide what course they take in respect of this matter. Having heard and listened to the evidence of these eight witnesses over the course of three days, applying the test set out in Re. B I make no findings at all. The local authority has not discharged the burden of proof that rests on them in proving the four allegations set out in their schedule. Given the way in which the evidence was presented before the Family Court, it is very difficult to see how any Jury, properly directed, could be satisfied beyond reasonable doubt that DG had behaved in the way SR suggests he did. I consider that in respect of the allegations made by SR they have no reasonable prospect of success and that it is a very great pity that allegations made in September 2103 have not yet been charged in June 2014 I am satisfied so that I am sure that the allegation of rape made by LS has only come about as a result of SR's allegations and looking at the written evidence, it is very difficult to see how there is any reasonable prospect of a conviction, and indeed in the light of the evidence I have heard I sincerely hope that CPS will revisit their decision when they obtain this judgment.