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England and Wales Family Court Decisions (other Judges) >>
C, Re [2022] EWFC 138 (B) (28 September 2022)
URL: https://www.bailii.org/ew/cases/EWFC/OJ/2022/138.html
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[2022] EWFC 138,
[2022] EWFC 138 (B)
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WARNING: 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.
IN THE FAMILY
COURT
AT
CARLISLE
IN
THE MATTER OF
C
B e f o r e :
HIS HONOUR JUDGE
CLIVE
BAKER
____________________
Between:
____________________
Transcribed from the official
recording
by eScribers
Central
Court,
25 Southampton Buildings, London WC2A 1AL
Tel: 0330 100 5223 | Email: uk.transcripts@escribers.net | uk.escribers.net
____________________
THE APPLICANT appeared in person
MISS
C
BOOTH, instructed by Bendles Solicitors, appeared on behalf of the First
Respondent
MS S HARGREAVES, instructed by GKM Solicitors, appeared on behalf of the Second
Respondent
(through her
Children's
Guardian, Ms Deborah Turner)
28th
SEPTEMBER
2022,
11.10-12.06
____________________
HTML VERSION OF JUDGMENT
____________________
Crown
Copyright
&
copy;
__________________
THE NAMES OF ANY AND ALL
CHILDREN
AND LAY PARTIES HAVE BEEN
CHANGED
TO MAINTAIN BOTH ANONYMITY AND
READABILITY.
HIS HONOUR JUDGE
C
BAKER:
- This
case
concerns
allegations of sexually inappropriate behaviour alleged to have been perpetrated by a father against his daughter. No findings have been made and the
Court
considers
it appropriate to put on public
record
the
circumstances
that gave rise to the
conclusion
that has been
reached
in these proceedings. This judgment was given orally at the
conclusion
of the
case.
- This
case
concerns
a
child
by the name of
Christina
J (as set out above, not the
child's
real
name), who was born in 2017. She is the first
child
of Abby A, who was born in 1996, and she is the only
child
of John J, who was born in 1994. It
can
be seen therefore that they are
relatively
young parents. Since
Christina's
birth, Abby has had another
child
with a different father, whom I shall
refer
to briefly in a moment.
- This
case
has been listed before me and by me, for a Finding of Fact Hearing to determine an allegation that in essence that John has in some way sexually abused his daughter. Throughout this hearing, on and off, I have
referred
to mum and dad by their given names. That is not in any sense a sign of disrespect on my part. It is to try and engender a little less formality in what are very difficult and potentially emotionally heightened
circumstances
where we are discussing matters of the utmost seriousness.
- The
case
has
recently
taken a dramatic, but in my view wholly appropriate, turn. This morning Ms Booth, who appears on behalf of Abby, sent to me, Ms Hargreaves, who
represents
Christina
and to John, who appears on his own behalf, a position statement. The statement made
clear
that having
considered
the evidence that we have heard thus far, which I will
refer
to briefly in a moment, and having thought about matters, no doubt in discussion with Ms Booth overnight, Abby was no longer pursuing the findings against John vis-à-vis his daughter. That will mean that this judgment
can
be a lot shorter. Indeed, it is potentially not necessary at all, but for
reasons
that will become plain, I think it only right and proper that I put on
record
and in due
course
on public
record
some observations I make in my role as the Designated Family Judge for
Cumbria.
- My involvement in this
case
began when the matter was transferred to me and I undertook an Issues
Resolution
Hearing on 16 August
2022.
That Issues
Resolution
Hearing was my first involvement with this
case.
It is fair to say at that point there were a number of evidential matters that needed, to put it
colloquially,
tidying up. There were various items that had still not been disclosed, but I was anxious that the matter should be listed for a Finding of Fact Hearing as soon as possible and I listed it before me beginning on 26
September,
Monday gone – it is now Wednesday – for a four day finding of fact hearing. Fortunately, the evidence that was outstanding was obtained and the Finding of Fact Hearing went ahead.
- The
circumstances
and the background leading to the need for the Finding of Fact Hearing are as follows.
- John and Abby have had a somewhat on and off
relationship,
but the huge benefit of their
relationship
was the birth of
Christina
in 2017. Their
relationship
did not survive for any length of time post the birth, although there have been periods where they have
resumed
their
relationship
since the birth. The most
recent
being a period in about early to mid-2021, there having been an occasion where for about a week Abby and John
resumed
living together. It is fair to say that without any animosity at all, both parents described their
relationship
with each other as not particularly having the 'spark' that was necessary for it to
continue,
and they have gone their separate ways. In the meantime, both of the parents have had other
relationships
of varying degrees of seriousness. The most serious
relationship
for Abby has been with an individual whom I shall simply
refer
to as Ben for the purposes of this judgment, with whom she has had another
child
by the name of Jane, who is of
course
Christina's
sister.
- The separation did not, despite some initial teething problems, give rise to a breakdown in the
relationship
between
Christina
and her father, and in fact it is apparent and there has been no
complaint
made by either party that John and
Christina
spent a
considerable
amount of time together during the period until October 2021. There have been various incidents that pre-date October 2021 which initially, and during the
course
of the formulation of this
case,
had taken on a suggestion of being what might be
regarded
as harbinger signs of there having been some form of sexual abuse of
Christina,
although as I will make
clear
in a moment, there are ample and
certainly
more likely explanations for some of those few and not particularly significant behaviours that were observed prior to October of 2021.
- In 2021, following a period of trying again to
rekindle
their
relationship,
John
rented
a two-bedroom flat. He told me in evidence he specifically
rented
the two-bedroom flat so that there would be a bedroom for
Christina.
I have in fact seen that flat because I have seen body-worn video footage, from a police officer when John was arrested after the allegations of sexually inappropriate behaviour towards his daughter were made. That flat was very
close
to
Christina's
school, very
close
to where mum lives, very
close,
as it happens, to where mum goes to play Bingo, and as a
consequence
there were times when John picked
Christina
up from school, although my understanding is that generally speaking he and
Christina
would spend the weekends together.
Christina
would stay overnight and she has always had, until October of 2021, a persisting and positive
relationship
with her father.
- In evidence, and if I may say so impressively, Abby
readily
volunteered that leaving aside an allegation of sexually inappropriate behaviour, John was a good father. In all other
regards
he had always, and this is my phrase, stepped up to the plate and she had no other
concerns
about the way in which John looks after
Christina.
In his evidence, and I accept it entirely and it was not suggested any different, John told me that he always paid his
child
support. I do not doubt that at all. John
came
across as a stoic, honest and impressive individual who has a
commendable
work ethic and a
considerable
love and devotion to his daughter, which makes what happened subsequent to October 2021 even more tragic.
- On 6 October 2021, as a
consequence,
I think as I understand it, of Abby's father, that is to say
Christina's
paternal grandfather, being perturbed by the fact that he had not seen a lot of Abby because Abby had been spending time with her new boyfriend, an individual by the name of Mark, Abby went and spent some time at the Bingo with her dad and asked John to look after
Christina
by picking her up from school. As I have already said, he lived very
close
to the school. He agreed to do so. I have seen the text message exchange. He did pick her up and it is also the
case
that
Christina
had spent tea-time with her father the previous day as well. The 6th October was a Wednesday.
- Having picked
Christina
up it got a bit late. There is a text exchange between John and Abby. During the
course
of that text exchange Abby suggests to John that he
could
have
Christina
overnight. John says no because he has work early the next morning. He works a varying shift pattern and he told me in evidence he was on probation so he was very
concerned
about not turning up for work. Unfortunately, as it happened, he did not in any event. Abby suggested that he 'pulled a sickie'. John did not like that idea and in the end Abby agreed to pick
Christina
up at 9 o'
clock
in the evening. By universal
consent,
Christina's
standard bedtime was 8 o'
clock
both when with mum or dad, so
Christina
was tired by the time mum turned up a little after 9. It matters not, but Abby told me in evidence that she had drunk about three pints – I
certainly
do not say that
critically
– whilst she was having fun at the Bingo. She walked the short distance from the Bingo to John's to pick
Christina
up.
- During the
course
of the walk away from dad's,
Christina
made a
comment.
The
comment
was to the effect that daddy touched me. She then indicated by pointing, having been asked by her mum where daddy had touched her. She indicated her
chest
area, somewhere in between her
chest
and her lower body and also, according to mum, held her hands over her genital area. Mum was alarmed by this, and I am not for the sake of this judgment going to
relate
the entirety of what mum says
Christina
said to her because there is some
confusion
about whether she mentioned being in bed or not. Abby and
Christina
happened, as she wandered round the
corner,
upon two police officers who were dealing with something else. One of the officers had the presence of mind to turn on their body-worn
camera,
and almost all, although not entirely all, of the exchange between Abby,
Christina
and the police officer was
captured
on the body-worn
camera.
We have all seen it and there is a transcript.
- As a
consequence
of Abby being
concerned
that
Christina
had been touched in some inappropriate and indeed potentially sexual way by her father, the police begin an investigation. The following morning two plain
clothes
police officers visited Abby and
Christina
and they
conducted
what is often
referred
to as a first account of
complaint.
I have a handwritten
copy
of the questions and answers for that, which I will
refer
to in a moment, and it is decided as a
consequence
that
Christina
should be what is
called
ABE interviewed. That ABE interview did not in fact take place until I think 21 December 2021. For a four-year-old that was too long. I will
return
to that in a moment. Social Services became directly and then tangentially involved and in the meantime
contact
between
Christina
and her father was
restricted.
- The
contact
was initially
restricted
by bail
conditions,
although by way of an undated letter John was informed that the police would be taking no further action. This doubtless was
contributed
to by the fact that during the ABE interview that was undertaken, albeit far too late,
Christina
had, putting it in very summarised form, nothing but good things to say about the time that she had been spending with her father.
- Importantly in that interview though, and I will note this,
Christina
tells the police officer asking the questions that her daddy is away working and Abby told me in evidence that that is what she told
Christina.
It is right to say that there were other indications when Abby gave evidence that she had not taken any particular opportunities to be overly negative about John in the intervening period, and of
course
it is obvious from the fact that I have
related
that the ABE interview produced nothing but positive
comments
from
Christina
about the time she spent with her father that it
can
be
readily
assumed that the period of time in between October and December 2021 was not spent by Abby
reinforcing
or
repeating
questions or asking about what Abby thought
Christina
had alleged.
- John was interviewed. I have
read
that interview. The police decided to take no further action. Social Services became involved. They indicated that until a risk assessment was
conducted
with
respect
to John, he should not have any
contact
with
Christina.
Quite who or how that risk assessment was going to be undertaken, I do not know.
Certainly
I have seen no
record
whereby either Abby or John are told who is going to undertake a risk assessment or how. Ultimately John was obliged to issue proceedings in the family
court
in order to try and
re-establish
a
relationship
with
Christina.
He made his application on 4 February
2022.
That has
culminated
in this Finding of Fact Hearing.
- During this hearing I was due to hear evidence from a number of people, but they were gradually whittled down by disclosure being produced that answered
certain
questions and indeed
reconsideration
of the
relevance
of some of the evidence, and ultimately I heard evidence only from Abby, John and a Dr Knight. Dr Knight, who gave evidence
remotely,
was the paediatrician who examined
Christina
on 7 October as part of the police investigation. That examination was undertaken in accordance with the Royal
College
of Paediatricians' guidance and it
revealed
reddening
in
relation
to the external genitalia of
Christina
and led Dr Knight to the
conclusion,
as is
recorded
in his documentation, that
Christina's
presentation was
consistent
with something potentially having happened, although it was not probative of the Abby because of
course,
and I am paraphrasing here, there are many potential differential diagnoses when it
comes
to a
child
presenting in such a manner.
- During his evidence, which was
compelling
and
reflected
his many years of experience of undertaking such examinations, he told us that there were other potential explanations for the
reddening.
His evidence accords with the Royal
College
of Paediatricians' analysis of the data as set out in their guidance in
relation
to such observations of
reddening.
It was, as he put in his
report,
consistent
with touching but
could
be
caused
by other things.
- He did take swabs. Those swabs were given to the police for any forensic examination. Latterly, I think yesterday during the
course
of this hearing, through the good offices of those who instruct Ms Booth and I think Ms Booth herself, a
response
came
back from the police indicating that those swabs have not been tested because the officer decided that there was not much point because of what was due to be tested was the father's DNA and perhaps, and if I may say so this is the fundamental problem underlining the entirety of this
case,
it had occurred to the officer that John being the
child's
father, it was probably fairly obvious that there may well be DNA belonging to the father on the
child
in any event because of
course
during the police interview the father had explained that he had undertaken various activities with the
child,
including toileting her. That of
course
could
lead, to DNA being present on the
child's
intimate area. Accordingly, the swabs would
reveal
nothing of any use.
- It might have been
reasonably
thought that they
could
have also tested for sexually transmitted diseases, infection, other potential
causes
of the
redness.
That
clearly
was not done either. That is the evidence as it stands.
- During the
course
of Abby's evidence and as a
result
of
careful,
and if I may say so very well-prepared
cross-examination
by Ms Hargreaves, which was not undertaken in the spirit of hostility and indeed was not
responded
to by Abby and anything other than an open and, in my view, generally honest way, it became highly apparent that there were many potential explanations for some of the things that had
caused
Abby
concern
previously about
Christina's
behaviour. By way of example, and I do not need to go into a huge amount of detail, there had been a previous occasion when
Christina
had said, "show me your dick" That of
course
is, to an adult, an overtly sexual
comment
although of
course
it may also be part of adult
conversation
or 'banter'.
Christina
was two at the time and it
concerned
Abby, as well it might, and there was also at about this time there were occasions when
Christina
was sticking her hands, as two-year olds sometimes do, down the front of her nappy or pants.
Clearly
this happened because Abby text John about it and asked him if he knew why
Christina
was doing this. He
responded
that he did not know and the issue passed. I have seen those texts.
- It became
clear
during evidence, again by way of example, that in fact the individual Ben, who Abby was living with at this time and therefore
Christina
was living with and who is the father of
Christina's
sister, had a number of
characteristics
that make him a much greater and more likely
candidate
for adverse influence on
Christina.
By Abby's own admission he was not particularly parentally orientated. He did not undertake a particular parental role with either of the
children.
He would not take them out. More
concerning,
and I am
conscious
that I have not heard from him, but I have no doubt whatsoever that Abby believed what she told me, he was an individual who
could
be loud, aggressive, threatening and
certainly
Abby perceived him to have on a number of occasions forced her to have sex with him when she was not
consenting.
She also said that he was the sort of person who would not think twice about swearing in front of the
children.
John had a wholly different attitude to swearing and denied using swear words much and never in front of
children.
He said his family were strict with
respect
to these attitudes. His evidence on this was not
challenged.
- In that
context
it was obvious from whom
Cristina
was more likely to have picked up and heard inappropriate and sexualised language.
- In January 2020 Ben was imprisoned first on
remand
and then as a
consequence
of being sentenced, for the supply of
cocaine.
He is
currently
serving a prison sentence and has no
contact
with his daughter. Abby, perhaps wisely, ended her
relationship
with him. It
can
be seen therefore that
Christina
has had a
chequered
experience,
certainly
up until Ben was
removed
from the family by the
Criminal
Justice System, and in the
circumstances
it became
clear
during the evidence that any suggestion that John might be
responsible
for previous
concerning
behaviour displayed by
Christina
did not in fact particularly hold water.
- The account that was given and
can
be viewed on the 6 October body-worn
camera
footage is an example of how not have a discussion with a
child
about an allegation of sexual abuse. Almost everything that is said in front of
Christina
during the
course
of that brief
conversation
is either suggestive, leading, or in some other way in breach of the guidance given with
respect
to speaking to
children
about such allegations. That is not Abby's fault. I also have some sympathy for the police officer being
caught
somewhat off guard by what he was being told. Abby was a
concerned
parent and I accept entirely that she was not doing anything deliberately. It would have been better if she had been shut down immediately and the allegation, for want of a better way of putting it, handed over to more experienced officers but I accept that is with the benefit of hindsight.
- More experienced officers did attend Abby and
Christina's
property the following morning. Two plain
clothes
officers undertook a first account of
complaint
with
Christina.
Of
course,
that is in the
context
of
Christina
having already seen her mum upset, emotional,
retelling
a somewhat
confusing
and, in places I think it is fair to say, potentially not entirely accurate account of what
Christina
may or may not have said to her mum on the evening of 6 October to the police officer wearing the body-worn
camera.
In that
context
on the morning of 7 October
Christina
tells the two police officers according to the handwritten note that is at G124 of the bundle – that her dad had 'hit me and touched me down there'. When asked did he do anything else, she
responds,
"He put shampoo in my eyes." "When did this happen?" "Yesterday." "Where were you?" "At the park." "Did you go anywhere else?" "Just the park and to my dad's." "What did he use to touch you?" "He used his hands." "What
could
you feel when he touched you?" "Hard." "What were you wearing?" "My unicorn outfit, my unicorn t-shirt, unicorn jumper and unicorn trousers." "He touched you more than once or once?" "More than once." "He touched you on top of your trousers or underneath?" "Underneath." "Where were you when this happened?" "In the park on the big slide." "Did anything else happen when you were with your dad?" "Yes. He let me fall, but a unicorn
caught
me with its magic powers." That account, if I may say so, is the only
recording
of an account from the
child's
own mouth where the
child
says something about her father touching her. It is an account given in the presence of Abby and, of
course,
it is an account that
cannot
be analysed in
context
because it is not
recorded
either via audio or on video. It is only
recorded
in writing.
- There is a later occasion when
Christina
speaks to a social worker. What she says to the social worker
contains
nothing that
could
in any way be interpreted as sexual abuse.
- Almost everything else that is
contained
within that first account of
complaint
at G124 that is
recorded
as
Christina
saying on 7 October is demonstrably inaccurate. Because of the investigation that the police undertook, the father's account of his and
Christina's
movements on 6 October was verified by the police looking at the local
CCTV
in shops et
cetera,
to see where dad and
Christina
went the previous day. She did not go to the park, she was not wearing her unicorn t-shirt, her unicorn jumper or her unicorn trousers. She was wearing her school uniform because that is where dad had picked her up from and almost
certainly,
I think I
can
say, a unicorn did not stop her falling with its magic powers.
- That account of
course
gave rise to the need for an ABE video interview. I have watched the interview and I have the transcript and, as I have already
related,
Christina
is given every opportunity but produces nothing negative about the time that
Christina
spent with her dad. In fact, everything she says about her father is positive.
- Subsequent to the police indicating that they would take no further action, as I understand it, the local authority's involvement effectively
ceased,
although they do make a
referral
to an organisation
called
SafetyNet UK, which is an organisation which according to its letterhead has the function of "supporting the
recovery
of those affected by rape, exploitation, sexual and domestic abuse". The
referral
to SafetyNet is
contained
within the bundle and I have
read
it, as indeed are the other Social Services documents. Of
course,
by implication the
referral
itself implies that somebody has suffered from rape, exploitation, sexual or domestic abuse, a fact that had been by no means established, but leaving that aside, SafetyNet support amounted to, as I understand it, a single telephone
conversation
with mum which questions were asked about
Christina.
- There is a letter from SafetyNet dated 31 March
2022
and in it, it purports to diagnose
Christina
with suffering from post-traumatic symptoms that include hypervigilance and increased anger and indeed displaying sexualised behaviour, all of which it is suggested is
consistent
with her having been sexually abused, ultimately of
course
by her father. It is to be noted that I have not heard any evidence from SafetyNet and that that letter was not prepared for
court
purposes. It was in fact prepared, as it says at the very top, in support of Abby's
request
for a third bedroom to the Housing Association so that
Christina
and her sister did not have to
continue
sharing a room. Notwithstanding those
caveats
the
conclusion
that are set out in the letter, which are not expressed at all equivocally, are to say the least highly speculative and untenable in the
context
of one phone
call.
- The
reason
the
children
needed not to share a room is because of an occasion when
Christina
had been observed by Abby to in effect be suggesting some sort of
contact
between a hairclip and her sister's genitalia, saying to her sister, "Don't worry, it won't hurt." This happened after the examination of
Christina
by Dr Knight. It transpired, and for this
reason
it was very helpful that Dr Knight gave evidence, that Dr Knight's standard procedure, which doubtless he adopted during his examination of
Christina,
was to say to
children
when he was about to examine them intimately that
certain
procedures may or may not be uncomfortable or may hurt or may not hurt, and of
course
as the evidence transpired it became plainly obvious that there was a parallel between what
Christina
was or had said to her sister and indeed the experience that she had had during the intimate examination that had taken place on 7 October. Thus, the evidential foundation for the assertion or
conclusion
that
Christina
was displaying sexualised behaviour towards her sister was, to put it mildly, highly suspect.
- That is a
relatively
brief summary of the background of this matter. This morning Ms Booth, on behalf of Abby, provided myself and the other parties with a position statement. That position statement says as follows:
a. "The mother
remains
resolute
that the words she heard from
Christina
on the evening of 6 October 2021 were, 'Daddy touched me'. The mother does not
resile
from the observations of
Christina's
behaviour as described at
court.
The mother
considered
that it was both necessary and appropriate to safeguard her daughter, to withdraw until there was a risk assessment. It is submitted that this was an appropriate and proportionate
response.
A risk assessment was
clearly
never going to be undertaken unless and until proceedings were
commenced.
The safeguarding letter advises that a finding of fact is necessary and that no interim
contact
advice
could
be offered prior to a robust risk assessment.
b. "The mother has listened to Dr Knight and the evidence of [John], and has
reflected
upon the evidence which she has given orally over the
course
of the hearing. The mother accepts that some of
Christina's
behaviour is likely to be attributable to observing domestic violence and
criminal
activity perpetrated by Ben, her former partner. This has only become apparent to the mother during the
cross-examination
by
counsel
for the guardian. The mother accepts that some of the behaviour described previously to be sexualised may be due to the
child
protection medical. Dr Knight
recounts
that during intimate examinations he tells
children
generally that this is not going to hurt.
Christina
is said to
recount
that to her sister. The mother accepts that
Christina
could
have been playing doctors and nurses as a
result
of her experience of the
child
protection medical examination. This
realisation
has only become apparent to the mother during the
cross-examination
by
counsel
for the guardian.
c.
"The mother accepts Dr Knight's explanation that erythema of the
child's
vagina may have multiple
causes
and the mother notes that the hymen was intact although understands per Dr Knight's evidence that it is known for the hymen to
remain
intact post penetration."
- I add as an aside there that Dr Knight's evidence, and indeed all of the literature, indicates that damage to the hymen
can
indicate penetration. An intact hymen does not
confirm
that penetration has not taken place, but it makes it less likely to have taken place, and Dr Knight
confirmed
that in evidence.
d. "The mother accepts that
Christina
has experienced some issues toileting and on occasion may have not been sufficiently
clean
to avoid infection post-evacuation or urination. The mother accepts following
counsel
for the guardian's
cross-examination
that her very first account to the police may have not given
Christina
an authentic voice. She asserts she was doing the very best that she
could
do to try and protect
Christina.
The mother accepts that in her panic she may have not heard that
Christina
was in bed."
- Again, I pause to indicate that it became
clear
during evidence that Abby was not
certain
as to whether
Christina
had said she had been asleep or whether she had been in bed. That was significant because John's explanation was that it being late and Abby picking
Christina
up past her bedtime of 8 o'
clock
meant that
Christina
was in fact falling asleep and in order to wake her up he had tickled her, tapped her on the shoulder, et
cetera,
because he did not want her falling asleep, as is set out in his statement, because that would make it more difficult for her to go to sleep when she did eventually
return
to her mother's
care.
- The position statement goes on:
e. "The mother accepts that John J was an excellent father up until his separation from
Christina,
that is to say up until October 2021. The mother accepts upon hearing father's evidence and that of Dr Knight, that
Christina
has not been touched by her father on the evening of 6 October and/or on other occasions prior to that date in a sexually inappropriate manner. The mother accepts upon hearing the father's evidence and that of Dr Knight that the father or another person with whom he has allowed the
child
to spend time has not exposed the
child
to sexualised or inappropriate behaviour in
comments
…"
f. "
Conclusion:
The mother has found the hearing and
cross-examination
to be a
reflective
experience. She asserts that she has not been able to, in the absence of a risk assessment or a neutral third-party evaluation of the events of 6 October 2021 and prior, understand the meaning, if any, of
Christina's
statement, 'My daddy touched me.' Upon
reflection,
the mother
can
see that there may be explanations for
Christina's
presentation and behaviour that does not have nefarious or
casual
links to the father. The mother hopes the
court
will understand that she has exercised non-
contact
as a safeguarding measure until she was satisfied for
Christina's
safety."
- The mother's
conclusions
are entirely
reasonable
and accord wholly with the evidence and the
case
law that I put into a document and gave to all of the parties yesterday and will be appended to this judgment. It also accords entirely with my now final view in
respect
of this matter. I accept that as a
consequence
of the process that started in October 2021 and as a
consequence
of the advice and observations that the mother was given by professionals, and if I may put it in as ill-defined way as this - 'the system' - the approach that the mother took of not allowing
contact
between
Christina
and John was
consistent
with both the process and indeed the message that was being
conveyed
by various professionals as the wheels of justice, both
criminal
and family,
crept
into motion on and after 6 October 2021.
- The
reason
I have given such a lengthy judgment is that I have been
reflecting
during the
course
of this hearing on that process and whilst I do not have any particular solutions to offer (other than those I analysed six years ago in the
case
of
Re
V (A
Child)
(
Rev
1) [2016]
EWFC
58), it seems to me only right that I put in the public domain my
concerns
in
respect
of this
case
and the process in general.
Reading
the police evidence, the Social Services' notes, and for example, the letter from SafetyNet, it seems to me that everyone failed to
remind
themselves of one important fact: an important fact that should have been put in the balance when
considering
the risk presented by John. That fact is that John was
Christina's
father.
- Parents touch their
children.
In particular, parents touch young
children.
Parents touch their
children
in intimate areas, be that their genitals or their anal area. They do so of necessity, and they are often entirely justified in doing so. They touch their
children
when they toilet them, when they
clean
them and when they bath or shower them. They may do so to deal with medical issues or
complaints
of difficulty or soreness. They may do so accidentally when dressing them or playing. An assertion by a
child,
certainly
a
child
of four as in this
case,
or indeed younger, that a parent has touched them 'down there' or in their 'special area' or in an intimate area on one occasion does not automatically equate to sexual abuse.
- For such a touch or touches to be abuse, it seems to me that such action must have the quality of abusive behaviour. It seems to me that it must be of a nature, a type or a frequency that is neither justified, necessary nor
reasonably
explained, in particular by a parent. That of
course
may be physical abuse or a physical assault. If the person acting towards a
child
in such a way subjectively derives sexual gratification or arousal or anticipates or desires such gratification or arousal, then the actions are sexually abusive. Sometimes the latter
can
be inferred from the nature of the former. In other words, sometimes the suggestion of subjective sexual gratification or arousal
can
be derived from the nature of the actions taken towards the
child.
- I pose this question: if the roles were
reversed,
if John had
collected
Christina
for
contact
on 6 October and walked from her mother's, having picked her up at 9 o'
clock,
he having had three pints having just been to the Bingo, and
Christina
had said to him "Mummy touched me" and indicated her
chest
and her stomach and her genital area, and had John walked round the
corner
to a police officer and
related
that accurately (or inaccurately) in detail (or vaguely) to a police officer, how likely is it that Abby would not have not have any
contact
with her daughter for almost a year as a
consequence
of what was set in place as a
result
of that allegation being made?
- I find it almost impossible to
conclude
that the answer to that question would be anything other than 'unlikely'. I find it difficult to understand without a
considerable
degree of speculation why the answer with
respect
to John appeared to be different. Further, it is lamentable that it took two and a half months for an ABE interview to be undertaken with a four-year-old,
rendering
that process potentially both
contaminated
and of less evidential value, although in fact as it turned it did have the value of showing the
child's
positive view of the time she spent with her father.
- I
regret,
as the
recently
appointed Designated Family Judge for this area, that it has taken almost an entire year for the family justice procedure to be
concluded
such that John
can
walk from this
court
rightly without a stain on his, up until now, unblemished
character.
I
regret
that only a year later the injustice of this
case,
whereby
Christina
and John have forgone a year of their lives together,
can
now be put right. It stems from the fact that no professional during this process appears to have taken a step back and thought to themselves this is a
case
about a father and the suggestion that a father has sexually abused his daughter. No one seems to have asked the question - what is the actual evidence for sexual abuse having taken place? Had that question been properly and appropriately analysed at a much earlier stage a more sober view and advice
could
have been given.
Certainly,
if professionals suggest that a
relationship
between a
child
and a parent should
completely
cease
to await a risk assessment taking place, I do not understand why one is not then undertaken as a matter of some urgency.
- I make those
comments
without any
criticism
whatsoever of Abby. I have no doubt whatsoever that she was acting in a protective
capacity
in
circumstances
where, if I
can
put it this way, once the wheels had started rolling, pushed along as it was by various safety-first approaches that ignore the weight of evidence, that she was acting in what she
considered
to be a protective
capacity.
It struck me that she was a
caring,
honest and loving mother trying to do the best for her daughter. However, I
return
to the question I asked at the beginning of this passage. If the roles had been
reversed,
would Abby
really
have been separated from her daughter for an entire year? Why should that have happened to John? I do not have answers to that question, but it may be that asking such a question in the right
circumstances
may temper an otherwise unjustified rush to
conclusions
that will ultimately not withstand scrutiny and might lead to the wrong advice being given in
circumstances
where the
relationship
between
child
and a parent is at stake.
- Furthermore, every effort should be made in such
circumstances
to ensure that the family justice system does not take 11 months to
resolve
such issues.
POSTSCRIPT:
Subsequently by way of a
consent
order the parties agreed and the
court
endorsed a
Child
Arrangements Order that has Abby living with her mother and spending every and all weekend with her father as well as extended periods of time with her father during school holidays.
---------------
Appendix:
John J v Abby A
Law
- In
considering
the factual disputes in this matter I have had particular
regard
to the following matters:
a. The burden of proof lies with the party who seeks to assert that a disputed fact occurred.
b. That burden must be fulfilled to the
civil
standard of proof. That is to say on the balance of probabilities. If I determine that something is more likely than not to have happened, then that fact is established. If I determine that something is more likely not to have happened, then the fact is not established. It is not open to me to
conclude
that something 'may' have happened and mere suspicion does not establish a fact.
c.
In some
circumstances
the 'burden' of proof may provide the answer in that a
conclusion
that a fact is equally as likely as it is unlikely – the 50/50 scenario - means that the person asserting the fact has not proved that it took place and therefore it did not happen.
d. The person
responding
to the allegation being asserted against them does not need to 'prove' that it did not happen although of
course
their
response
to any allegation is
relevant
to my overall evaluation of the evidence as is the exploration of alternative scenarios.
e. It is dangerous to speculate and findings of fact must be based on evidence – although in family proceedings 'evidence'
can
mean a wide variety of things including oral testimony of someone who was present to proper inferences drawn from
circumstances
and surrounding established facts as well as
corroborative
evidence.
f. A
court
can
and indeed should take into account and weigh both the 'micro' and the 'macro' – that is to say the individual detailed evidential building blocks
relating
to a fact being determined and the wider picture
relating
to the general factors, background and
context.
The interrelationship between all the evidence available to the
court
must be
considered
and weighed
carefully.
g. Oral testimony is important however a judge must always be
careful
to ensure that full account is taken of all the
circumstances.
The
Court
must
consider
what
corroborative
or indeed
contradictory
evidence exists that
relates
to the fact being asserted.
h. Oral testimony
can
be misleading – a truthful person may be a 'bad' witness in terms of, for example, their ability to speak
coherently
and
certainly,
calm
their nerves, the ease with which they are
confused
or the illogicality of their thought processes.
Conversely
a dishonest person may be a good witness. On a more
complex
level, 'dishonesty' in the
context
of
relating
past events must be
carefully
considered.
Someone
can
relate
something that is wholly untrue whilst entirely believing it to be factually
correct.
Human memory is fallible – the brain does not make a video
recording
that is indelibly stored forevermore, rather it
recalls
snap shots that are dependent for their accuracy not only upon the
circumstances
and influences that applied at the time but
can
also be altered
convincingly
by subsequent events, perceptions and emotions. Those memories will still be 'true' to the person
relating
them despite the fact that they may bare little or no
resemblance
to what actually happened.
i. Likewise, I
remind
myself that the
considerations
related
at (h) above also mean that I must guard against 'trivial persuasion' i.e. the notion that evidence
related
in meticulous detail is in some way more
reliable
because of that detail. It is not necessarily so.
j. With
respect
to dishonesty, a
conclusion
that a witness has lied about a particular event does not automatically mean that everything they say is tainted by that dishonesty. A more intricate
consideration
of the
reasons
for and motivations behind dishonesty (deliberate or mistaken) must be
considered
when evaluating the effect of a 'lie' on the veracity of their other evidence (R v Lucas [1998] QB 720).
- It strikes me that in
circumstances
where the backdrop is a dispute between parents, the words of Baroness Hale in
Re
B [2010] UKSC 12 at [29] should be at the forefront of the
Court's
mind:
"…there are specific risks to which the
court
must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication."
- The
Court
of Appeal have
considered
the
circumstances
and law surrounding issues pertaining to allegations of sexual abuse in the
case
of
Re
Y and E (
Children:
Sexual Abuse Allegations) (2019) EWCA
Civ
206.
- The opening observations of Baker LJ
resonate
wholly with the issues in this
case:
"This is a very troubling
case.
The findings made against the appellant are of the utmost seriousness and, if upheld, will affect the whole family for the
rest
of their lives."[1]
- Baker LJ highlights the guidance provided by the following
cases:
i. TW v A
City
Council
[2011] EWCA
Civ
17
ii.
Re
W,
Re
F [2015] EWCA
Civ
1300
iii.
Re
E (A
Child)
[2016] EWCA
Civ
473
iv. AS v TH and others [2016] EWHC 532 (Fam)
- I have also
read
the
Court
of Appeal decision in
Re
K (
Children)
(2019) EWCA
Civ
184. At paragraph 22 Jackson LJ summarises with approval general principles with
respect
to allegations of sexual abuse:
a) No
case
of sexual abuse without probative medical or direct physical evidence is to be
regarded
as straightforward.
b)
Children
are poor historians and many are suggestible. The greatest
care
must be taken to minimise the risk of obtaining unreliable evidence from a
child.
c)
The ABE guidance should be followed.
d) The need to analyse and acknowledge deviations in ABE practice and
consider
whether the flaws are so fundamental as to
render
the interviews unreliable. Material
can
be
cogent
despite deviations in the interview process.
e) The need for
careful
assessment of hearsay evidence of what a
child
has said, particularly where it is the only evidence.
f) The need for additional
caution
when
relying
on a statement made outside an ABE interview or following earlier unrecorded questioning.
- Paragraphs 22 to 51 of AS v TH and others provides a
comprehensive
analysis of the
case
law and guidance with
respect
to allegations of sexual abuse. Paragraphs 33 to 42 of
Re
W,
Re
F (above) provides a helpful summary of the elements of the ABE Guidance that are most pertinent to family proceedings, although I also have a
copy
of the full Guidance and am familiar with it and its previous iteration's
contents.
- I have
reminded
myself of the above
case
law prior to this hearing
commencing
and again before preparing this judgment.
- For
reasons
that will become apparent there are some aspects of the
case
law that engage directly with the issues in this
case,
both in terms of the formal, professional discussions that took place and the informal discussions that took place between the
child
and non-professionals (primarily her mother):
a. In accordance with the foregoing general principles, when assessing whether or not allegations of sexual abuse are proved to the
requisite
standard, the
court
should focus on all of the
relevant
evidence in the
case,
including that from the alleged perpetrator and family members (see
Re
I-A (Allegations of Sexual Abuse) [2012] 2 FLR 837).[2]
b. "As we have already pointed out, the [ABE] Guidance makes it
clear
that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the
child
to
repeat
on
camera
what she has said earlier to somebody else. We
regret
to say that we are left with the
clear
impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR
repeat
on
camera
what she had said to her mother. That emphatically is not what ABE interviews are about and we have
come
to the view that we
can
place no evidential weight on it." [Emphasis in original][3]
c.
When social workers or other professionals are speaking to
children
who have made allegations they must be very
careful
to
consider
the purpose of the exchange and whether it is being
conducted
with a view to taking proceedings to protect the
child
or for separate therapeutic purposes where the
restrictions
upon prompting would not apply but the interview would not be for the purposes of
court
proceedings (
Re
D (
Child
Abuse: Interviews) [1998] 2 FLR 10).
d. The
courts
have further endorsed a number of the general principles set out in the ABE Guidelines:
i. It is desirable that interviews with young
children
should be
conducted
as soon as possible after any allegations are made (
Re
M (Minors)(Sexual Abuse: Evidence) [1993] 1 FLR 822).
ii. Where a
child
has been interviewed on a number of occasions the
court
may attach diminishing weight to what is said in the later interviews (
Re
D (
Child
Abuse: Interviews) [1998] 2 FLR 10).
iii. The
court
will wish to see
responses
from the
child
which are neither forced nor led (
Re
X (A Minor) (
Child
Abuse: Evidence) [1989] 1 FLR 30).
iv. It is normally undesirable for a parent to be present in an interview with the
child
(
Re
N (
Child
Abuse: Evidence) 1996 2 FLR 214 and see the
Cleveland
Report
para 12.35).
v. In
Re
S (A
Child)
[2013] EWCA
Civ
1254 Ryder LJ
confirmed
that the guidance set out in the
Cleveland
Report
at paragraph 12.34 with
respect
to interviewing
children
remain
good practice.
e. Where there has been a failure to follow the interviewing guidelines, the
court
is not
compelled
to disregard altogether the evidence obtained in interview but may
rely
on it together with other independent material to form a
conclusion
(
Re
B (Allegations of Sexual Abuse:
Child's
Evidence) [2006] 2 FLR 1071). However, where the
court
finds that no evidential weight
can
be attached to the interviews the
court
may only
come
to a
conclusion
that
relies
on the
content
of those interviews where it has
comprehensively
reviewed
all of the other evidence (TW v A
City
Council
[2011] 1 FLR 1597). See also
Re
C
(A
Child)
(Fact-Finding) [
2022]
EWCA
Civ
584.
- The
criminal
law often deals with allegations of sexual abuse. The
Crown
Court
Compendium
Part I: Jury and Trial Management and Summing Up – updated in July 2019, published by the Judicial
College,
perhaps provides the most
relevant
and balanced approach to issues surrounding the offence sexual abuse, specifically section 20: "Sexual Offences". Those matters that a jury must, in appropriate
circumstances
be directed upon, are also
relevant
for this
court's
consideration,
appropriately adapted to the
context
of the burden and standard of proof in these proceedings.
HHJ
C
Baker
27th
September
2022
Note 1
Re
Y and E, Para 2 [Back]
Note 2 AS v TH and others [2016] EWHC 532 (Fam), para 30 [Back]
Note 3 TW v A
City
Council
[2011] EWCA
Civ 17; [2011] 1 FLR 1597 at para 52
[Back]
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