Case No. ZC20C00674

1.This judgment follows a finding of fact hearing in public family law proceedings brought by a London Local Authority in respect of LB, a boy born in November 2020. LB’s mother, the first respondent, KB, has moderate to severe learning disability having suffered hypoxia at birth. She is non-verbal, she lacks capacity to make decisions about engaging in sexual relations or to consent to sexual intercourse, and she is fully dependent on others for her care. Her pregnancy with LB was the result of her rape by GH in late February or early March 2020. At that time KB was being cared for within her family which comprised her mother, AB, her sister CD, and her brother EF. GH had married AB in a religious ceremony in or about 2013. They had lived together until in or around 2017 when GH moved out into his own accommodation. Nevertheless, they stayed married and he continued to visit AB at her home and to help out with cleaning, shopping and ironing. GH has admitted the rape and although the details of the offence are unclear, GH says that he committed the rape when at AB’s home. The anonymity of the Local Authority and all individuals concerned, including GH, is preserved to protect the identity of KB, who is a highly vulnerable woman, and LB, her child. The circumstances of the case are such that naming GH, the Local Authority or any members of KB’s family would be likely to lead to the identification of KB and LB.2.AB described GH to police as one of KB’s paid carers. KB’s pregnancy was not detected until over 22 weeks gestation. Therefore, serious questions arise as to the arrangements for protecting and caring for KB. The Local Authority’s position is that AB and CD not only failed to protect KB but that they, and to an extent EF, exploited her for their own interests. The Local Authority’s allegations are set out in the Scott Schedule at Appendix One to this judgment. The Local Authority alleges, in short, that:i)GH raped KB for whom he had paid, caring responsibilities.ii)AB misused the Direct Payments made by the Local Authority for care provision by employing her husband GH in breach of the terms and conditions of the payments thereby evidencing a lack of transparency and an element of dishonesty.iii)AB failed to follow Local Authority guidelines in not seeking police checks or work checks when employing carers, but for which she may have prevented GH from having unfettered access to and opportunity to abuse KB.iv)AB and/or CD and/or EF abused their positions of trust in having a Lasting Power of Attorney, and care of KB’s financial matters including a bank account in an African country in her name as Company Secretary, despite her known lack of capacity.v)AB and/or CD failed to take KB for medical attention in relation to KB’s pregnancy when it should have been apparent to them that she was pregnant due to their intimate care of her.vi)AB and/or CD and/or EF and/or GH sought KB’s pregnancy to go to full term for financial gain or other motive not in KB’s interests.vii)AB and/or CD colluded to ensure the pregnancy would not be noticed by medical professionals until it was too late to perform a termination.viii)As a result of the matters above, AB and/or CD abused their duty of care and failed to protect KB and thus LB by intentionally or negligently permitting GH to have unsupervised access to KB, failing to take KB for medical attention when there were signs of pregnancy, and exposing LB to the risk of future significant emotional harm when he learns of the circumstances of his conception and birth.3.It is not in dispute that GH raped KB. The arrangements in place to care for KB at and around the time of the rape, GH’s involvement in her care, the way Direct Payments were dealt with, and the reasons for the delayed recognition of KB’s pregnancy are not agreed and have been the subject of written and oral evidence.4.Criminal proceedings against GH are concluded. Having initially denied any involvement and made allegations that the perpetrator was probably one of AB’s tenants, he pleaded guilty to the rape of KB in early 2021 after DNA testing. He also pleaded guilty to a multiple offence count of fraud in that between 1 January 2020 and 15 January 2021 he used a false identity to obtain employment. In June 2021 he was sentenced to a total of 12 years and 8 months imprisonment.5.A capacity assessment of KB by Dr Clarke, Consultant Obstetrician and Gynaecologist, on 20 January 2021 reported that:KB was affected by a birth injury, which resulted in a hypoxic ischaemic injury to the brain. This has left her effectively with extremely limited language and extremely limited comprehension…. She is barely verbal …. She is able to do basic tasks but finds it impossible to demonstrate understanding of the concepts of birth and parenthood, even explored with pictures, using sign language (Makaton). … She is not able to understand even simple concepts. She is unable to confirm her name and give spontaneous answers…. She would be completely unable to make anyone, even her close family, aware of her views or opinions due to her existing severe learning disability.KB has epilepsy, controlled by medication, and autism. Her IQ has been assessed as being between 39 and 45. She has physical disability meaning that she requires support for walking more than short distances. She suffers from bilateral optical nerve atrophy.6.KB, who is now in her 30’s, was brought up by her mother, AB who has continued to be her main carer in her adulthood. She has two younger siblings, CD, her sister, who is a healthcare professional, and EF, her brother, a teacher. They are both in their 20’s, unmarried and without children. The arrangements in February 2020 were that KB had a two bedroom flat (“the flat”) where she stayed overnight with CD. The flat was rented in KB’s name. She would visit a Day Centre three times a week. A carer, JK, would help to get her ready in the mornings. JK was a woman who had the same African heritage and spoke the same African language as the family. AB would drive KB to the Day Centre. After the Day Centre, KB would return to AB’s home before being taken to the flat once CD had come home from work. Sometimes KB would stay overnight at AB’s home. There had been longer periods, when CD was committed to a placement or study away from home, when KB stayed at the family home. When not at the Day Centre she would spend her weekdays with AB. At weekends she would spend time with CD. EF lived at AB’s home. He was not involved in the intimate care of KB, which would be done by AB, CD and/or JK.7.GH also shared the same African heritage as the family. He formed a close relationship with AB in part due to their joint involvement in a church which AB helped to found and at which she is a pastor (“the Church”). GH and AB began to live together at AB’s home after a blessing at the Church and a traditional marriage in their African country of origin. 8.AB took KB to her GP on 14 February 2020 reporting a cough but no vomiting. The national lockdown due to the Covid-19 pandemic began a few weeks later. In subsequent months KB’s GP records show some on-line requests made by AB for letters about KB, but no requests for appointments until 30 July 2020. On that date AB used the GP surgery’s online system to request an appointment. She was telephoned by a GP at the surgery on the same date who recorded,Secondary amenorrhea…Telephone call to a patient’s mum … Several months of amen, used to have slightly irregular periods but was every month before this, some brown discharge in underwear, no itch, no urinary syx, not weight loss, not sexually active and never has been but noticed breasts are swollen and stomach is swollen – adv to do pregnancy test asap just to be sure, to call us back if positive. Otherwise have booked for examination Monday.9.On Monday 3 August 2020, the same GP saw KB with AB who had brought in two pregnancy tests, both positive. A further pregnancy test was conducted in the surgery which was also positive. The GP noted, KB said very little during the consultation – was unable to ascertain if she understood if she was pregnant …Discussed what thoughts were regarding pregnancy – Mum AB seemed initially cheerful in the consultation – stated that she would have to look after the baby and that she was glad KB was not suffering from any sickness. Mum AB seemed to be expecting KB to continue the pregnancy. Discussed implications of pregnancy - discussed concerns around AB’s ability to consent, discussed if she has fallen pregnancy [sic.] and she is unable to consent to sexual intercourse we would be concerned about rape. This seems to have come as a shock to AB/ AB does not think KB has got a partner and they are together all the time since the lockdown in March …. AB discussed that she knows sometimes periods can be irregular and that is why she did not think about it much more … and only after noticing the stomach swelling and breast swelling she thought something is not right.10.On the same day, 3 August 2020, KB attended the Maternity Assessment Unit at a London Hospital where a scan confirmed that she was 22 weeks and 3 days pregnant. That dates conception, allowing for some leeway, at the end of February/beginning of March 2020. Dr Clarke was not present at that attendance but notes that “there was no request to facilitate termination of pregnancy at any time from the family or social care.” She first saw KB, in the company of AB, on 27 August 2020 by which time KB was over 25 weeks pregnant. Dr Clarke “confirmed with AB that termination of pregnancy was not something that she or the family were considering…” 11.An application was eventually made to the Court of Protection for a declaration that it was in KB’s best interests to undergo a Caesarean section. I heard that application on 12 November 2020 and made the declaration sought. At that time, the father of the unborn baby was still unknown.12.GH was arrested on 3 November 2020 and interviewed but he initially denied having any knowledge of who the father of KB’s then unborn child might be. 13.LB was delivered by Caesarean section in November 2020. KB was and is unable to care for him as his parent. His father was then unknown and there were concerns about the circumstances under which KB had had sexual intercourse whilst in her family’s care. LB was made the subject of an interim care order in favour of the Local Authority in November 2020. He was placed with foster carers with whom he remains, having contact with KB and other family members.14.The police interviewed GH again in December 2020 and he appeared to blame lodgers at AB’s house for KB’s pregnancy. He strongly denied being KB’s carer.15.DNA evidence established that GH was LB’s father. GH was interviewed a third time by police but gave “no comment” answers. GH pleaded guilty to a single count of rape of KB and was sentenced in June 2021 to 12 years imprisonment for rape and a consecutive period of 8 months for fraud related to having obtained work using a false name. A search of his home had produced a false identity card and bank cards. GH had made an application for leave to remain in the UK saying that he was destitute, unmarried and had no children. In fact he was in work under a false name, married to AB and had children from a previous relationship in his African country of origin.16.In the pre-sentence report prepared by a Probation Officer, GH is reported as having said that although he had told the police that he was never at AB’s house without AB being present, that was not true. He said that KB would often get up in the night and wander around and on the night of the offence he said that he had heard her awake and he had gone to her room … He said, “I don’t know what happened to me” and told me that KB had “grabbed me” and that sexual intercourse had taken place.”The Probation Officer noted that this version of events was difficult to reconcile with what he knew about KB’s condition. The sentencing judge did not accept that KB “was in any way responsible” and said to GH that this was “but another example of failing to acknowledge your own actions.”