Hertfordshire County Council v Ms T & Anor, Court of Appeal - Family Division, August 03, 2018, [2018] EWHC 2796 (Fam)

Resolution Date:August 03, 2018
Issuing Organization:Family Division
Actores:Hertfordshire County Council v Ms T & Anor
 
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Neutral Citation Number: [2018] EWHC 2796 (Fam)

Case No. WD17C01307

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

The Strand

Date: Friday 3 August 2018

Before:

MR JUSTICE KEEHAN

(In Private)

B E T W E E N :

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HERTFORDSHIRE COUNTY COUNCIL Applicant

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(1) MS T

(2) MR J

Respondents

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MR R SINGH appeared on behalf of the Applicant.

MR R TRESMAN appeared on behalf of the First Respondent.

The Second Respondent did not attend and was not represented.

MS F KING appeared on behalf of the Guardian.

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J U D G M E N T

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.

MR JUSTICE KEEHAN:

INTRODUCTION

1 I am concerned with two children, Child A, who is nine years of age, and Child B, who is seven years of age. The mother of both children is Ms T, who is 35 years of age, and the father of both children is Mr J, who is 38 years of age.

2 On 3 November 2017 the children were made the subject of a police protection order pursuant to s.46 of the Children Act 1989. On 6 November 2017 the parents agreed to the children being accommodated by the local authority pursuant to the provisions of s.20 of the 1989 Act. On 1 December the local authority made an application for an emergency protection order which was granted. It also applied for care orders in respect of both children and the local authority was granted interim care orders on 4 December last year. The children have remained in the care of the local authority since November.

3 The local authority seeks full care orders in respect of both children with a plan of long term foster care preferably the children remaining with their current carers. The children's guardian supports the local authority's application and the care plan for the children. The mother opposes the same and seeks the return of the children to her sole care. The father, having been arrested, as I shall describe in a moment, he has absconded. His whereabouts are unknown and he has played no part in these proceedings.

BACKGROUND:

4 The father is an Afghanistani national, the mother is Latvian and speaks Russian with some limited English. She has been assisted ably, if I may say so, through these proceedings by a Russian interpreter. In about 2006 the parents met in London. In February 2009 Child A was born. In 2010 the father sustained serious injuries in an attack which left him disabled and a wheelchair user. On 4 June 2011 the parties married and later that month Child B was born. In 2012 the father was sentenced to a term of imprisonment for a violent disorder offence. In 2013 the family became known to the Local Authority A Children's Services. In November of that year Local Authority A completed a children and family assessment. There were concerns about Child A's poor behaviour and attendance record at school but no further action was taken.

5 In late 2016 and/or early 2017 the Local Authority B Children's Services became involved with the family. Child A had not been attending school for some period of time and it was believed that the family were homeless. In February 2017 the NSPCC made a referral to Local Authority B in respect of alleged physical abuse and/or neglect of the children. On 26 October last year as a result of a joint investigation by the Home Office and the National Crime Agency into people trafficking into the United Kingdom the mother and father were arrested and their mobile phones were seized. An examination of the father's phone revealed that there were five videos of indecent images of sexual activity with children. Four of those videos related to a man, confirmed to be the father, having sexual intercourse with a twelve year old girl. These were first generation images meaning that they were filmed on the father's mobile device. There was one video of a young boy around eight years of age being masturbated by a woman.

6 On 22 November last year the father, in the presence of the mother, showed the social worker Mr W the video of the eight-year-old boy being sexually abused. It was shown so as to demonstrate, it was said, that the child was not Child A. Upon being received into local authority care, the foster carer noted that both children exhibited sexualised behaviour. On 27 November Child A told his foster carer that he had been sexually touched by a man when he was six or seven years old. He said he told his grandmother, the maternal grandmother, who told him not to speak about it or to tell anyone else. On 29 November the Home Office advised the local authority that there was credible intelligence that the mother and father planned to leave the United Kingdom as soon as possible with the children. The following day, the father requested of his GP three months' medication telling him that he was planning to take a holiday for three months from 5 December. The GP referred that request to the local authority.

7 On 1 December the mother answered her police bail, the father did not. Since then, his whereabouts have been and remain unknown although he has either directly or through third parties sought to make contact with the mother. On 6 December when speaking to the social worker, Mr W, the mother confirmed that the grandmother had told her of Child A's allegations of sexual abuse and she confirmed that nothing was done and no report was made. On 5 February this year the then social worker, Ms Z, spoke to the mother about the videos. She was so disturbed by the mother's reaction, as I shall elaborate in a moment, that she gave the mother time to reflect and arranged a further meeting on 23 February 2018.

THE LAW

8 The burden of proving that the threshold criteria is satisfied rests solely with the local authority. The standard of proof is the balance of probabilities, Re B [2008] 2 UKHL 35. The threshold criteria are set out in s.31(2) of the Children Act 1989. I must be satisfied that the children have suffered or are at risk of suffering significant harm. I must bear in mind that the welfare best interests of both children are my paramount consideration: s.1(1) of the 1989 Act. In determining this matter I have regard to the welfare checklist set out in s.1(3) of the 1989 Act. At all times I have regard to the Article 6 and Article 8 rights of the children and of the parents but bear in mind that where there is a tension between the Article 8 rights of a child, on the one hand, and of the parent, on the other, the rights of the child prevail, Yousef v The Netherlands [2003] 1 FLR 210.

9 When considering the evidence, particularly the evidence of the mother, I give myself a revised Lucas direction, namely, I should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied. I also take into account the decision of the Court of Appeal in Re H-C [2016] EWCA civ 136 where McFarlane LJ (as he then was) said at para.100:

``One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully...

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